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Drawing the Right Line

Published online by Cambridge University Press:  27 February 2017

Tom J. Farer
Tom J. Farer*
Affiliation:
University of New Mexico
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Extract

As a recurring feature of the Cold War that has dominated international relations for the past four decades, foreign intervention in civil armed conflicts has focused and inflamed scholarly debate over the content of the relevant legal restraints. Conflict has raged particularly around the following issues: First, what forms and degree of assistance to rebels constitute an armed attack within the meaning of Article 51 of the Charter authorizing individual and collective self-defense? Second, in cases where assistance does not reach the armed attack threshold, are there any circumstances in which the target state and/or its allies may nevertheless use forceful measures to terminate it?

Type
Appraisals of the ICJ’s Decision: Nicaragua v. United States (Merits)
Information
American Journal of International Law , Volume 81 , Issue 1 , January 1987 , pp. 112 - 116
Copyright
Copyright © American Society of International Law 1987

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References

1 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 40, para. 61 (Judgment of June 27).

2 Speaking of the Department of State’s publication Revolution Beyond our Borders, the Court remarked that it was aware of its contents. Id. at 44, para. 73.

3 Id. at 42, para. 67.

4 Id. at 41, para. 64.

5 Id. at 43, para. 69.

6 Id., para. 70.

7 Id. at 93–95, paras. 175–77.

8 Id. at 38, para. 56, and 97, para. 182.

9 Id. at 97, para. 183.

10 Id. at 98, para. 184.

11 Id. at 99–100, para. 188.

12 Id. at 100.

13 The Court could have proceeded solely on violations of the customary law rule of proportionality, violations of the Treaty of Friendship, Commerce and Navigation and violations of customary rules of humanitarian and maritime law.

14 1986 ICJ Rep. at 106, para. 202.

15 Id.

16 Id. at 70–71, para. 127. This is a paraphrase of the Court’s hypothetical statement of the norm as urged by the United States.

17 Id. at 103–04, para. 195.

18 Id. at 104.

19 Id. at 110, para. 211.

20 Id.

21 Id. at 104, para. 195. See also id. at 199, paras. 229–30, and at 127, para. 249.

22 Id. at 110, para. 210.

23 The Court makes clear its position on what has long been the subject of controversy among scholars: the right to intervene in civil strife. The majority confirmed that there is no “general right of intervention, in support of an opposition within another State.” Id. at 109, para. 209. Thus, in civil strife, “intervention is allowable at the request of a government of a State” while not allowable “at the request of the opposition.” Id. at 126, para. 246. Legal historians still debating the rights and wrongs of the Vietnam War will be more than a little interested in this mildly surprising clarification.