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Some Observations on the ICJ’s Procedural and Substantive Innovations

Published online by Cambridge University Press:  27 February 2017

Thomas M. Franck
Thomas M. Franck*
Affiliation:
New York University
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Extract

The decision of the International Court of Justice in the case between Nicaragua and the United States brims with important procedural and substantive implications for the future of law and adjudication in disputes between states.

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. 116 - 121
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.