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Legal Issues in the Nicaragua Opinion

Published online by Cambridge University Press:  27 February 2017

Fred L. Morrison
Fred L. Morrison*
Affiliation:
University of Minnesota
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Extract

The opinion of the International Court of Justice in the Nicaragua case will be of interest primarily because of its general pronouncements on questions of international law. Its impact on the immediate controversy appears slight; the United States Government has strongly indicated its view that the Court lacked jurisdiction over the controversy, has vetoed subsequent proposed Security Council resolutions on the subject, and is appropriating additional funds for the contested activities, without apparent reference to the Court’s decision. This Comment is limited to the general theoretical and legal issues and will not treat the underlying factual issues, the Court’s disposition of the immediate case or the implications of the opinion for the evolution of the dispute.

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. 160 - 166
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 (Judgment of June 27).

2 Department Statement, Jan. 18, 1985, Dep’t St. Bull., No. 2096, March 1985, at 64. See also departmental statements following the June 27 decision.

3 See, e.g., UN Doc. S/PV.2704, at 54–55 and 57–61 (1986) (rejecting a resolution proposed in UN Doc. S/18250 (1986)).

4 The decision is, of course, not a binding precedent. See Statute of the International Court of Justice, Art. 59, 59 Stat. 1055 (1945), TS No. 993.

5 This was part of reservation (c) to the 1946 Declaration accepting the jurisdiction of the Court, 61 Stat. 1218 (1947). It is commonly known as the Vandenberg reservation.

6 In its decision of Nov. 26, 1984, the Court had found that this objection to jurisdiction was not exclusively of a preliminary character and postponed its decision to the merits stage. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, 425, para. 76 (Judgment of Nov. 26). In the opinion on the merits, the discussion is at 1986 ICJ Rep. at 31-38 and 146, paras. 42-56 and 292(1). This objection applied only to jurisdiction claimed under the 1946 Declaration.

7 Application of Nicaragua, Apr. 9, 1984, paras. 15–19 (claim under Charter and treaties) and 20–25 (claim under customary law).

8 1986 ICJ Rep. at 98, para. 186.

9 Id. at 100, para. 188.

10 Legal Status of Eastern Greenland, 1933 PCIJ, ser. A/B, No. 53 (Judgment of Apr. 5).

11 For this view, see Wolfrum, Gewohnheitsrecht und Stimmverhalten, 1986 Vereinte Nationen 93.

12 For example, in paragraph 195, 1986 ICJ Rep. at 103, the Court refers to Article 3(g) of the Definition of Aggression as a statement of customary international law on the subject, without referring to Article 8 (“In their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions”) or to Articles 4 and 6, which appear to preserve a right of individual and collective self-defense.

13 Article 31(1) of the Vienna Convention calls for interpretation of the terms of a treaty “in their context and in light of its object and purpose.” The context clearly includes the entire text of the treaty, not isolated paragraphs.

14 GA Res. 3314 (XXIX) (Dec. 14, 1974).

15 For a discussion of some of the earlier history of this effort, see Thomas, A. J. Jr. & Thomas, A., The Concept of Aggression in International Law 21–44 (1972)Google Scholar.

16 For a statement of the U.S. understanding of the connection of the articles, see Rosenstock, 70 Dep’t St. Bull. 498 (1974). The definition enumerates specific acts in its Article 3, but does so “subject to and in accordance with the provisions of article 2.” That article gives the Security Council the power to conclude otherwise, “in light of other relevant circumstances.” Article 8, the definition’s rule of interpretation, says that it must be read as a whole. The Court referred only to Article 3.

17 1986 ICJ Rep. at 105, para. 200.

18 Id., para. 199.

19 ICJ Statute, supra note 4, Art. 53.

20 1986 ICJ Rep. at 25 and 44, paras. 31 and 73. The document, Revolution Beyond our Borders, was originally published as a U.S. government document. It was later submitted to the United Nations and circulated as UN Docs. A/40/858 and S/17612 (1985). Copies were made available to the Court.

21 Examples can be found in United States Diplomatic and Consular Staff in Tehran, 1980 ICJ Rep. 3 (Judgment of May 24), and in the Nuclear Tests Cases (Austl. v. Fr.; NZ v. Fr.), 1974 ICJ Rep. 253, 457 (Judgments of Dec. 20).

22 1974 ICJ Rep. 253, 457.

23 Fisheries Jurisdiction (UK v. Ice.; FRG v. Ice.), Merits, 1974 ICJ Rep. 3, 175 (Judgments of July 24).

24 If cases brought before the Court by contemporaneous compromis are excluded, it has been more than a decade since a state appeared before the Court as a defendant—other than the United States in the jurisdictional phase of this case.

25 1986 ICJ Rep. at 23, para. 27.

26 ICJ Statute, supra note 4, Art. 53(2).

27 This includes Article 36(6).

28 Jurisdictional phases were previously ordered in Fisheries Jurisdiction, Aegean Sea Continental Shelf and Nuclear Tests, after the respondent states had objected to jurisdiction in preliminary communications to the Court but did not appear formally in the proceedings.

29 Rules of Court, ICJ Acts and Documents, No. 4, Art. 79, paras. 1–5 (1978).

30 Id., para. 6.

31 See Dissenting Opinions of Judges Oda, 1986 ICJ Rep. 212, 214–46, paras. 1–72, and Sir Robert Jennings, 1986 ICJ Rep. at 528, 528–29.

32 Judge Ruda, who had opposed jurisdiction under the FCN Treaty, nevertheless participated in the determination of questions arising under that Treaty, explaining his reasons in 1986 ICJ Rep. at 176–77, paras. 16–17 of his opinion. Judge Ago, who had dissented from jurisdiction under the 1946 Declaration, explained his reasons for nevertheless participating in the decision on merits arising under that head of jurisdiction in 1986 ICJ Rep. at 181–82, para. 2 of his separate opinion.

33 Judge Lachs; see 1986 ICJ Rep. at 170–71, pt. III of his separate opinion.

34 Intervention was allowed in Haya de la Torre (Colom. v. Peru), 1951 ICJ Rep. 71 (Judgment of June 13). It was refused, after hearing, in Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, 1981 ICJ Rep. 3 (Judgment of Apr. 14), and Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, 1984 ICJ Rep. 3 (Judgment of Mar. 21). The application of Fiji to intervene in Nuclear Tests became moot. Application to Intervene, 1974 ICJ Rep. 530, 535 (Orders of Dec. 20).

35 See Sztucki, Intervention under Article 63 of the ICJ Statute in the Phase of Preliminary Proceedings: The “Salvadoran Incident,” 79 AJIL 1005 (1985); Chinkin, Third-Party Intervention before the International Court of Justice, 80 AJIL 495 (1986).