1 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27). I do not address here the legality of the actions undertaken by the United States, especially those involving the use of force for human rights purposes.

2 1986 ICJ Rep. at 130-35, paras. 257–69. For Congress’s formal findings that Nicaragua had breached its human rights obligations, see H.R. Rep. No. 237, 99th Cong., 1st Sess. 63–73 (1985), reproduced in pertinent part in id. at 90–92, paras. 169–70.

3 1986 ICJ Rep. at 130, para. 257.

4 Id. at 130–31, para. 258.

5 Id. at 134, para. 267.

6 See text accompanying note 4 supra.

7 See text accompanying notes 28–42 infra.

8 American Convention on Human Rights, opened for signature Nov. 22, 1969 (entered into force July 18,1978), reprinted in Organization of American States, Handbook of Existing Rules Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/11.60, Doc. 28, at 29 (1983).

9 As Judge Schwebel reminded the Court, the “essentialist” meaning of Article 2(7) was long ago rejected by the Court’s own precedent. See Nationality Decrees Issued in Tunis and Morocco, 1923 PCIJ, ser. B, No. 4, at 7, 24 (Advisory Opinion of Feb. 7). See also Legal Consequences for States of the Continued Presence of South Africa in Namibia, 1971 ICJ Rep. 16, 57 (Advisory Opinion of June 21) (referring to the binding force of the Charter provisions). Here the Court is applying customary law because of the U.S. multilateral treaty reservation; see further note 16 infra and accompanying text.

10 See Rajan, M., The Expanding Jurisdiction of the United Nations 98–123 (1982)Google Scholar; Higgins, R., The Development of International Law Through the Political Organs of the United Nations (1963)Google Scholar; and Jones, G. J., The United Nations and the Domestic Jurisdiction of States 33–65 (1979)Google Scholar.

11 See American Convention on Human Rights, supra note 8; European Convention on Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 222; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3, Rev.5 (1981), reprinted in 31 ILM 58 (1982). When one adds the impact of these conventions to the widespread acceptance of the Universal Declaration of Human Rights, there is little doubt about their contribution to the development of customary law on the subject.

12 States bound by specific human rights conventions do not confine their human rights claims to the parties to those conventions. Examples are the Helsinki process and the Carter administration’s offensive on the Soviet human rights situation.

13 See generally Center for the Study of Human Rights, Human Rights: A Topical Bibliography (1983); Vincent-Daviss, Human Rights Law: A Research Guide to the Literature, Parts I, II & III, 14 N.Y.U.J. Int’l L. & Pol. 209 (1981), id. at 487 (1982); and 15 id. at 211 (1982), respectively. For non-English-language works, see Public International Law (published periodically by the Max Planck Institute).

14 Attested to by the success and growth of nongovernmental human rights organizations. See, e.g., Rodley, Monitoring Human Rights in the 1980s, in Enhancing Global Human Rights (J. Dominguez, N. Rodley, B. Wood & R. Falk eds., 1979).

15 Arts. 1(3) and 55.

16 Seen in the light of the impressive subsequent development of human rights law, the human rights articles of the Charter constitute a paradigmatic example of the kind of treaty rule defined by the Court in its leading case on custom as a “norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law . . . so as to become binding even for countries which have never . . . become parties to the [treaty].” North Sea Continental Shelf Cases (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3, 41 (Judgment of Feb. 20). Cf D’Amato, The Concept of Human Rights in International Law, 82 Colum. L. Rev. 1110 (1982) (arguing, inter alia, that because of the generalization of provisions in human rights conventions nations are now customarily entitled to request human rights observance).

17 In Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), a U.S. court held, inter alia, that official torture, but not necessarily other human rights violations, was prohibited by customary international law. It does not follow, however, that the analysis by the International Court, whose function is to decide controversies by applying international law, need be as restrictive as that of a U.S. Federal court, which is subject to well-known constitutional constraints in the interpretation and application of customary international law.

18 Perhaps the Court should have first distinguished among the different matters it mentioned (composition of the government, ideology, alignment and human rights) to determine separately which of those fell within Nicaragua’s exclusive domestic jurisdiction.

19 The United States has signed, but not yet ratified, a number of human rights conventions, including the American Convention.

20 1986 ICJ Rep. at 134, para. 267. The formalism of the Court is evident in the assertion that the inter-American mechanisms “have functioned” in the case of Nicaragua; the Court meant only that the Commission visited Nicaragua and compiled reports, not that the human rights situation in Nicaragua had improved. On the latter, see infra note 53.

21 These accepted general mechanisms of human rights enforcement include diplomatic pressure, moral and political support for the pro-human rights opposition, economic sanctions and various kinds of proportionate nonarmed countermeasures.

22 Shortly after the Chilean junta overthrew and murdered President Allende, the UN Commission on Human Rights established an Ad Hoc Working Group to inquire into the Chilean situation. See Bossuyt, The United Nations and Civil and Political Rights in Chile, 27 Int’l & Comp. L.Q. 462, 463 (1978). The representative of Chile challenged the competence of the working group, insisting that it was not a state and not a party to the International Covenant on Civil and Political Rights, which Chile had ratified, and that Chile could not accept that bodies extraneous to it should claim to exercise powers not vested in them by the Covenant. See UN Docs. A/C.3/31/6 and A/C.3/31/SR.46, para. 19 (1976). That position was rejected in the Third Committee (Bossuyt, supra, at 463–66) and ignored by the General Assembly, which routinely acknowledges or commends the group’s reports in its resolutions condemning the human rights situation in Chile. See, e.g., GA Res. 38/102, 38 UN GAOR Supp. (No. 47) at 205, 206, UN Doc. A/38/47 (1983).

23 See Bossuyt, supra note 22, at 465.

24 The Court made the observation quoted in the text at note 44 infra, and then added: “Consequently, Nicaragua’s domestic policy options, even assuming that they correspond to the description given of them by the Congress finding [i.e., totalitarian dictatorship], cannot justify on the legal plane the various actions of the Respondent complained of.” 1986 ICJ Rep. at 133, para. 263 (emphasis added).

25 The requirement of a “consistent pattern of gross and reliably attested violations of human rights” as a necessary condition for raising international concern was developed by UN practice, starting with Resolution 1503 (XLVIII) adopted in 1970 by the Economic and Social Council, 48 UN ESCOR Supp. (No. 1A) at 8, UN Doc. E/4832/Add.1 (1970).

26 One could perhaps agree in principle with the Court’s assertion if by “totalitarianism” the Court meant just a value-charged label for a particular political system or religion, e.g., socialism or the African one-party system or Moslem fundamentalism, and not a system where the government violates internationally recognized human rights. Thus, it is, of course, not unlawful for the USSR to have a socialist system, but the Soviet Government’s internment of political dissidents and prohibition of Jewish emigration are in breach of the USSR’s international duties. See generally Dinstein, The International Obligations of the U.S.S.R. in the Field of Human Rights, 15 Soviet Jewish Aff. 165 (1985).

27 Examples of the Court’s avoiding the formulation of broad principles unnecessary to the disposition of the case at hand are numerous. See, e.g., Nuclear Tests (Austl. v. Fr.), 1974 ICJ Rep. 253, 263 (Judgment of Dec. 20) (avoiding declaratory judgment on lawfulness of nuclear explosions). The Court’s frequent use of ellipsis, once criticized by Judge Lauterpacht, was perhaps called for in the Nicaragua case.

28 There is no difference, for the purposes of this essay, between the obligation to respect human rights and a commitment to install a liberal democracy: the latter is also a human rights commitment. Yet whether a government violates just that commitment or engages in more substantial human rights deprivations has crucial consequences in terms of the lawfulness of countermeasures. The humanitarian intervention argument was expressly rejected by the Court in unduly broad terms. See 1986 ICJ Rep. at 134–35, para. 268. Nevertheless, the ruling should not affect (1) the lawfulness of nonmilitary countermeasures for human rights purposes; and (2) the use of force to remedy egregious human rights violations. Whether either of those situations is an accurate description of the U.S. efforts in Nicaragua is a different matter on which there is substantial disagreement.

29 1986 ICJ Rep. at 131, para. 259. This concession is, of course, completely fictitious: to hold otherwise would have been nothing short of extravagant. See the Joint Declaration on Fundamental Rights by the EEC Council, Parliament and Commission of Apr. 5, 1977, in which the heads of state of the EEC members declared that respect for and preservation of representative democracy and human rights in each of the members is an essential element of EEC membership. 1978 Bull. Eur. Comm., No. 3, at 5. For a similar requirement in the projected Argentine-Brazilian common market, see infra note 32; and on the Council of Europe, see 1986 ICJ Rep. at 383, para. 245 (Schwebel, J., dissenting).

30 Judgment, 1986 ICJ Rep. at 131, para. 259. Art. 3(d) reads: “The solidarity of the American States and the high aims which are sought through it require the political organization of those States on the basis of the effective exercise of representative democracy.”

31 See Arts. 31 and 32, Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, UNTS Regis. No. 18,232, UN Doc. A/CONF.39/27, at 289 (1969).

32 See American Declaration on the Rights and Duties of Man, Res. XXX of the Ninth International Conference of American States (1953), reprinted in 1 Human Rights: The Interamerican System, pt. 1, ch. 4, at 1 (T. Buergenthal & R. Norris eds. 1984), and the impressive list of human rights-related declarations, resolutions and recommendations of inter-American conferences and meetings of consultation in id., pt. 1, ch. 5, at 1–195, spanning an 80-year period. See generally Cabranes, The Protection of Human Rights by the Organization of American States, 62 AJIL 889 (1968). The region may be moving toward requiring democracy as a condition for full membership, as in Western Europe. For example, in a recent unprecedented step, the Presidents of Argentina and Brazil declared that the projected common market will be open only to democratic nations. See N.Y. Times, Aug. 12, 1986, at A20, col. 1. Treaties provide further evidence that liberal democracy is presupposed in the scheme of human rights protection in the Americas. In addition to Article 23 (right to participate in government), see, e.g., Articles 15, 16 and 22 of the American Convention, supra note 8.

33 See, e.g., American Convention, supra note 8, Preamble (mentioning the “framework of democratic institutions” as necessary to protecting human rights), and Art. 23 (mandating representative democracy). Cf. African Charter, supra note 11, Preamble (which does not require democracy), and Art. 13 (which is much less mandatory and detailed than the inter-American counterpart).

34 The Court retrenched itself behind the formalistic twin distinctions, political intentions vs. legal undertakings, and binding vs. nonbinding treaty provisions, ignoring well-established rules of treaty interpretation. See Art. 31(1), Vienna Convention, supra note 31 (treaties must be interpreted in the light of their object and purpose). The Court, however, did not hesitate to use broad interpretive guidelines in deciding that the United States had deprived the Treaty of Friendship, Commerce and Navigation with Nicaragua of its object and purpose. 1986 ICJ Rep. at 135-38, paras. 270–76. See Judge Oda’s criticism on this point, id. at 249–50, paras. 79–82 (Oda, J., dissenting). Interestingly, Nicaragua identified nonintervention as one of the basic purposes of the OAS system. Memorial of Nicaragua 168–72 (unpub.). Human rights are not mentioned even once.

35 These include the resolution of the 17th Meeting of Consultation of Ministers for Foreign Affairs of the OAS. See Report on The Situation of Human Rights in the Republic of Nicaragua, OEA/Ser.L/V/II.53, doc. 25, at 1–3 (1981), and the communication of July 12, 1979, sent by the Nicaraguan junta in the aftermath of the victory over the Somoza forces to the OAS Secretary-General, id. at 3–7; 1986 ICJ Rep. at 88–89 and 131, paras. 167 and 260. This communication included a “Plan to Secure Peace,” which stated the intention of the Nicaraguan Government to respect human rights and govern the country democratically.

36 Nuclear Tests, 1974 ICJ Rep. at 267.

37 1986 ICJ Rep. at 132, para. 261

38 Id. (emphasis in original).

39 In criticizing the Court on this point, Judge Ago aptly observed: “Je ne comprendrais pas . . . que les gouvernements réunis à l’Organisation des Etats américains aient accepté d’adopter une mesure aussi exceptionnelle que le retrait de la reconnaissance d’un gouvernement. . . ‘légitime’ [i.e., the Somoza Government], sans avoir une solide garantie qu’il serait remplacé par un gouvernement répondant précisément aux caractéristiques définies dans le plan de paix . . . .” Id. at 186, para. 12 (Ago, J., sep. op.).

40 That statement by the French President read as follows: “the Prime Minister had publicly expressed himself in the National Assembly in his speech introducing the Government’s programme. He had indicated that French nuclear testing would continue. I had myself made it clear that this round of atmospheric tests would be the last. . . .” 1974 ICJ Rep. at 266. As Judge Schwebel points out, an international obligation need not be made in a particular form. Thus, there is considerable merit to his claim that the successful revolutionaries, by their conduct, assumed an international obligation that the Nicaraguan Government later failed to honor. 1986 ICJ Rep. at 384–85, para. 248 (Schwebel, J., dissenting).

41 Particularly disturbing is the Court’s consideration elsewhere of U.S. or Nicaraguan acquiescence or express consent as producing legal effect. See, e.g., 1986 ICJ Rep. at 100, para. 189 (U.S. consent to resolution of inter-American organization); and especially at 107, paras. 203 and 204 (U.S. consent to GA resolutions). The Court was even undeterred by the express U.S. rejection of the binding nature of the resolution on intervention. Id., para. 203. Moreover, in the jurisdictional phase, the Court attached great weight to Nicaragua’s “constant acquiescence” as a factor for asserting its own jurisdiction, and dismissed the rather strong U.S. arguments that Nicaragua had never consented to the jurisdiction of the Court. See Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 396, 413, para. 47 (Judgment of Nov. 26). See Reisman, Has the International Court Exceeded its Jurisdiction?, 80 AJIL 128 (1985).

42 The Court then assumed, arguendo, that Nicaragua had made a legal and not a political commitment to democracy and free elections. Even then, said the Court, the United States would not have been justified in demanding the fulfillment of that obligation, because the commitment had been made not to the United States but to the OAS, which was alone empowered to demand its fulfillment. 1986 ICJ Rep. at 132, para. 262. This position is simply an unexpected revival of the principle laid down in the Court’s 1966 infamous decision in the South West Africa Cases. See South West Africa (Ethiopia v. S. Afr.; Liberia v. S. Afr.) (Second Phase), 1966 ICJ Rep. 6, 47 (Judgment of July 18). If that doctrine is rejected, and subsequent developments strongly indicate it should be (see, e.g., the Namibia decision, 1971 ICJ Rep. at 57, 58 (apartheid flagrant violation of human rights provisions of UN Charter, which states have the duty to recognize)), and Nicaragua has indeed made a legal commitment to establish a democratic system and observe human rights, then the individual members of the OAS are perfectly entitled to request compliance. See 1986 ICJ Rep. at 383, para. 246 (Schwebel, J., dissenting). The thrust of the Contadora process clearly confirms this view. See Joint Communiqué of the Seventh Joint Meeting of the Ministers for Foreign Affairs of the Contadora Group and of the Central American Countries, 24 ILM 187, 188 (1985); and Contadora Act on Peace and Co-operation in Central America (rev.), id. at 191, 195–96.

43 1986 ICJ Rep. at 131, para. 258. This principle was exalted by President Nagendra Singh as a “sanctified absolute rule of law.” Id. at 156, sec. IV (Nagendra Singh, J., sep. op.).

44 1986 ICJ Rep. at 133, para. 263 (emphasis added).

45 See, e.g., Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 25 UN GAOR Supp. (No. 28) at 121, UN Doc. A/8028 (1970). The Court placed exaggerated reliance on this nonbinding instrument. See, e.g., 1986 ICJ Rep. at 99–100, para. 188.

46 The Hegelian Myth is part of a broader cluster of moral assumptions examined in Luban, The Romance of the Nation-State, 9 Phil. & Pub. Aff. 392 (1980).

47 Significantly, in ordinary speech we use the expression “free state” to denote a state in which human rights are respected, and not one in which the government has discretion vis-à-vis the external world.

48 See generally Carrio, G., Sobre los Límites del lenguaje normativo (1973)Google Scholar.

49 Richards, Rights and Autonomy, 92 Ethics 1, 6 (1981). See also Benn, Freedom, Autonomy and the Concept of a Person, 66 Aristotelian Soc’y Proc. 109 (1976).

50 See Beitz, C., Political Theory and International Relations 76 (1979)Google Scholar.

51 See, e.g., Shue, Book Review, 92 Ethics 710, 716 (1982).

52 A striking example of this confusion of government with people is the Court’s discussion of the meaning of the Sandinistas’ pledge to democracy. The Court read the junta’s clarification that “it was the Nicaraguans themselves who were to decide upon . . . the country’s domestic policy” as weakening the Sandinista pledge to democracy, the implication being that the whole matter fell under Nicaraguan domestic jurisdiction. See text accompanying note 38 supra. But that is precisely the content of the undertaking that the U.S. Congress considered the junta to have violated: that the Nicaraguans themselves must decide upon their domestic policies, that is, that the Government must hold free elections! The junta’s declaration quoted by the Court thus reinforces rather than weakens the pledge to democracy and free elections. Denying free elections amounts precisely to denying to Nicaraguans their right to control their domestic policies. The Court would have been right if the junta had reserved to itself, to the Government, and not to the Nicaraguans, the right to decide upon the country’s domestic policies.

53 According to the most reliable and impartial reports available, the human rights violations by the Government of Nicaragua are a matter of serious concern. See Amnesty International, Nicaragua: The Human Rights Record (1986); see also Dep’t of State, Broken Promises: Sandinista Repression of Human Rights in Nicaragua (1984). Yet the deprivations, while serious, do not seem to have reached egregious proportions. More difficult is whether the rebels, or at least a part of them, can be described as pro-human rights forces. Cf., e.g., Amnesty International, supra, at 32–36 (reporting human rights abuses by opposition forces) with Separate Opinion of Judge Ago, 1986 ICJ Rep. at 186–87, para. 13 (the rebellion originated in a true disagreement of democratic forces with Sandinistas).