Who was right?

IT IS worth while, before the controversy crystallizes in the memory as one in which we (the United States) were wrong, and they (the World Court) were right, to shake up the set-pieces a little and see where they reassemble under the prodding of a little thought.

The United Nations was set up to bring about world peace, as I guess most of us remember. Complicated instruments were baptized with that imperative in mind. The crucial provision in the United Nations Charter is Article 24, and what it says is: "In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security . . ." That means that when there is a dispute between Nicaragua and El Salvador in which the UN is involved, the Security Council has "primary responsibility" on how to dispose of it.

Well, what about secondary responsibility? Here we consult Article 33, which provides, in part, that "the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice."

But what if a party in contention does not seek to avail itself of the secondary means of proceeding? When the United States ratified its own membership in the World Court, it reserved the right to determine the court's jurisdiction as it might be said to apply to the United States. This reservations was, of course, philosophically compatible with the idea of the veto in the Security Council.

Ask yourself, then, whether the dispute between Nicaragua and the United States is a political or a factual dispute, on the understanding that factual disputes are more properly the business of courts to decide, while political disputes are more properly the concern of the Security Council.

If there are factual questions to be solved, how will the World Court solve them? By subpoenaing the KGB records of the Kremlin, and the CIA records of the United States? Will Mr. Chernenko's attorney disclose the volume of military hardware shipped in El Salvador to aid the revolution there? Will the United States Solicitor General reveal how we have ascertained that Nicaragua is pressing its revolution by force of arms?

Triple fiddlesticks. Professor Abram Chayes of the Harvard Law School, who was counselor to the State Department during Mr. Carter's regime and is now counsel to Nicaragua, contending all the silly things professors of law get paid to contend when rich clients are out on a limb, wrote a Harvard Law Review article in 1965 ("A Common Lawyer Looks at International Law") in which he acknowledged that "most great disputes between states, even when they involve important legal elements, are not justiciable." Lloyd Cutler, who was counsel to President Carter, said to the American Society of International Law on April 14: ". . . the [World] Court has never before determined that an act of aggression or an unlawful use of armed force has occurred or that a threat to the peace exists, nor has it ever before been asked to grant an interim or a final remedy for such an event."

So? Senator Moynihan and Anthony Lewis charge that Ambassador Jeane Kirkpatrick and her legal advisor, Allan Gerson, are ignorant of the law. Moynihan adds the homily that even though the Soviet Union does not abide by the law, that doesn't mean we shouldn't. It's true that just because the Soviet Union shoots people and uses poison gas, we shouldn't. But we are not here talking about abstract imperatives to good conduct. We are talking about points of contention between great powers. If the United States and the Soviet Union conclude a treaty not to engage in antisatellite technology, it makes all the difference whether the Soviet Union abides by the treaty: because the United States' pledge to do so is precisely contingent on Soviet compliance.

The Soviets desire to rule the world, and en route to doing so is Central America. They push there, we properly resist there. The notion that a World Court should assume the authority to tell the Soviet Union to go ahead, and us to cease and desist, is the kind of squishy-soft eristic cuckoo-talk that used to cause Daniel Patrick Moynihan to weep in despair, back when he was in the United Nations, back when he was fighting the good fight.