Morrison, Fred L. (January, 1987). Legal Issues in The Nicaragua Opinion. American Journal of International Law 81: 160-166. "Appraisals of the ICJ's Decision. Nicaragua vs United State (Merits)"
The opinion of the International Court of Justice in the Nicaragua 1 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, 2 has vetoed subsequent proposed Security Council resolutions on the subject, 3 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.
The opinion will be a source of scholarly discussion on a number of general issues, only some of which can be mentioned here. Whether the Court's interpretations will withstand the test of time to become an accepted part of customary international law, or are later viewed as steps or even aberrations in that development can only be decided on the basis of their acceptance and application in state practice. 4
Two of these issues are substantive: the ruling of the Court on sources of new international law and its interpretation of the limits on the use of self-defense to aggression. Two are procedural: its treatment of nonappearing states and the consequences of its bifurcation of jurisdiction and merits phases. Each of these topics merits more substantial treatment than is possible in the short space available here. The basic issues can only be outlined.
SOURCES OF LAW
The most significant new pronouncement is the Court's treatment of the genesis of new customary international law. It will have ramifications far beyond the immediate controversy.
This and other innovations were occasioned by a peculiarity of the now revoked 1946 United States Declaration accepting the jurisdiction of the Court. That document excluded "disputes arising under a multilateral treaty, unless . . . all parties to the treaty affected by the decision are also parties to the case before the Court." 5 Thus, Nicaragua's claims based directly upon alleged violations of the United Nations Charter and inter-American treaties were excluded from consideration, even on the assumption that jurisdiction [*161] was established. 6 Nicaragua had anticipated this problem and had originally pleaded its case in the alternative under the Charter and treaties and under customary international law. 7 Its problem was in establishing a customary law separate from the Charter and treaty obligations.
The Court found -- in rather substantial detail -- that much of the alleged customary law was established principally through its elaboration of two resolutions of the United Nations General Assembly, Resolution 2625 (XXV) on the Principles of Friendly Relations and Resolution 3314 (XXIX) on the Definition of Aggression. The status of General Assembly resolutions has been a subject of academic and political controversy for many years, although few have argued for a direct law-creating effect for them. This decision goes much farther than its predecessors in transforming them from exhortations or "soft law" principles into "hard law" prescriptions, at least in the eyes of the Court.
The Court does not explain the genesis of this obligation with any clarity. The source of new obligation is not that usually argued in the literature, uniform state practice as evidenced by declaration and subsequent conduct. Indeed, the Court candidly acknowledges the inconsistency of that state practice. 8 Nor is it to be found in the crystallization or interpretation of Charter obligations. The kernel of the Court's reasoning is to be found in the middle of paragraph 188 of the opinion:
The effect of consent to the text of such resolutions cannot be understood as merely that of a "reiteration or elucidation" of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves. 9
This appears to base the international legal obligation more on a kind of broadly expanded Ihlen declaration, 10 a view that has some peculiar and potentially drastic consequences. Every resolution that purports to express a legal norm, even a "soft law" exhortation or aspiration, has the potential of being recognized by the Court as a binding and strictly enforceable obligation, at least for those states which did not expressly dissent from it.
This is clearly much broader than the traditional obligation in accordance with the Ihlen declaration. It permits an obligation to be created by silence (by not objecting to a consensus resolution), without a showing of reliance by the other party.
[*162] The new international law thus created would apparently be binding only between the states that acquiesced in the declarations in question, and as such would give rise to a new body of multilateral, but not universal, law. The consequence is a solution less drastic than one that would recognize a universal validity for such resolutions. It will nevertheless enhance the legal status of those resolutions and consequently the importance of express negative votes in international organizations (not necessarily only the General Assembly), if the state is not fully satisfied that every provision of the proposed resolution, separately and literally applied, is acceptable to it. 11 In effect, the decision changes General Assembly resolutions from a step in the evolution of international law to the end result of that process.
The concern about this expansion of justiciable rules of law is compounded by the Court's method of interpretation of the two resolutions in question. It dealt with single articles or paragraphs, with little reference to the resolutions as a whole. 12 It appears to be a technique of interpretation even more based on text than is called for by the Vienna Convention on the Law of Treaties. 13 If this technique is followed, the practice of seeking diplomatic compromises through "balancing" the language of different articles in resolutions appears futile -- if not doomed.
Finally, this approach creates a substantial shift in responsibility for decisions. International treaties, creating new international law, have traditionally been negotiated at international conferences, signed, subjected to careful review both in the executive branch and in the legislature, and finally submitted for ratification. An equal obligation can apparently be created, under the Court's new theory, when a representative to an international organization permits a resolution to pass by consensus, failing to record an express negative vote. This is an act of a much lower official, preceded by much less consideration of the obligations incurred, confined almost exclusively to the executive branch and made without opportunity for public review or comment. Whether states are willing to accept this expanded view of the binding effect of resolutions remains to be seen.
THE DEFINITION OF AGGRESSION
The Court gave particular credence to the General Assembly's Definition of Aggression. 14 That resolution was the result of committee consideration and deliberation that lasted nearly 30 years. The deliberations were extended [*163] because there were essentially two competing concepts. One was formalistic and concentrated on the first use of certain forms of armed force. The other was a more contextual view, asserting that certain forms of coercion could be the equivalent of aggression. 15 A compromise solution was reached that enumerated some aggressive acts, but left the identification of others to the Security Council in individual situations and preserved the provisions of the Charter concerning the lawful use of force. 16 The opinion rests solely on the enumeration of aggressive acts and fails to discuss the implications of the other provisions. This fragmentation of the resolution totally distorts the character of the consent given to it. It changes the impact of the resolution from a balance between the two competing definitions to an imbalance in which the "enumerative list of aggressive acts" approach, long opposed by the United States, carries the day.
The opinion also states that only the substantive, and not the procedural, limitations on the use of force have become customary international law. 17 It nevertheless recognizes a rule (apparently substantive and not procedural) that collective self-defense can be exercised only on the basis of a contemporaneous assertion by the victim state that it has been attacked and a request for outside assistance. 18 This requirement flies in the face of the networks of collective self-defense treaties, and may well be unrealistic in an electronic age.
While these substantive issues will be of general importance, two additional procedural issues will be of interest mostly to those who follow the work of the Court itself.
Since the United States did not appear in the merits phase of the proceeding, the Court examined the merits on the basis of the evidence available to it. 19 In doing so, it explicitly took into account a document prepared by the United States Government and made available to the Court, but not formally presented to it. 20 The Court has long been willing to consider the statements of nonappearing parties in at least some circumstances. "Telegraphic nonappearances," in which the state indicates its refusal to appear [*164] and briefly articulates its objections to jurisdiction in a telegram to the Court, are frequent. 21 In at least two other cases in recent years, the views of absent parties have been brought to the Court by extraordinary means. The French submitted a "White Book" to the Court's library in Nuclear Tests, 22 and Iceland managed to get most of its case before the Court in Fisheries Jurisdiction 23 by means of press statements that were duly included in the written proceedings of its British opponents. Given the paucity of defendants that have appeared voluntarily in recent years, 24 the Court must either recognize such communications or deal with an entirely one-sided presentation. Since, in reality, the effectiveness of its judgments is based to a large measure on their persuasiveness, the former is clearly the wiser course. Following civil law approaches, the Court has never been as fastidious about the rules of evidence as is customary in common law jurisdictions. Its candid recognition of such extraordinary communications and regulation of the extent to which they are considered merely clarifies an existing practice.
One passage, however, should cause concern to those who would like to see international controversies brought before the Court. It suggests that the United States, by joining the proceedings to contest the Court's jurisdiction, somehow submitted to it. 25 If followed, that view would encourage states that seriously contest the Court's jurisdiction to stay away from the tribunal altogether, rather than to submit their jurisdictional arguments to it. If resort to the Court means forgoing extraordinary postjudicial remedies for exces de pouvoir, then states may well choose to ignore it totally, especially in light of the Court's obligation to satisfy itself on jurisdictional questions. 26
The jurisdiction of the Court is established by the Statute and the relevant jurisdictional documents (declarations under 36(2), compromissory clauses or treaties). 27 It exists vel non without regard to the conduct of the respondent state subsequent to the filing of the application. To extend the doctrine of forum prorogatum to objecting parties will only encourage them to stay even farther from the forum -- surely an undesirable result.
RELATIONSHIP OF PHASES
As it has done in several recent cases, the Court sua sponte separated the issues of jurisdiction and admissibility from the merits, an action that raises two interesting issues. The Court began to use this procedure regularly about a decade ago, primarily to permit it to examine jurisdiction when the [*165] respondent state did not appear. 28 Thus, in the absence of jurisdiction, it would not be burdened with the argument on the merits; in the presence of jurisdiction, the respondent might decide to appear in later phases.
The Court's Rules provide explicit procedures for preliminary objections raised by the respondent party, 29 but deal only summarily with procedures for a jurisdictional phase raised by the Court itself. 30 Although the procedures for dealing with preliminary objections are frequently applied by analogy in the case of a jurisdictional phase, there are clear differences. The burden of raising the objection, the order of argument, the burden of persuasion and the preclusive effect are (or may be) different. In a close case, the decision to separate the phases might have an outcome-determinative effect. It may well be time to study this issue and to establish formal standards for this new (and welcome) procedure.
One particular point might be addressed in that analysis. What is the proper course of action, in the second phase of a case, for a judge who believed (in the first phase) that there was no jurisdiction? In the present case, two judges who had voted against jurisdiction also voted against the claim on the merits, apparently basing their subsequent votes largely on the lack of jurisdiction. 31 Two other judges who opposed jurisdiction in part nevertheless participated in those parts of the decision over which they had found no jurisdiction. 32 Although balanced in this case, the effect of such procedural differences could well determine the outcome in future cases. The proper role in later phases for a judge who initially asserts lack of jurisdiction deserves explicit study and possibly explicit regulation.
It is also possibly worth noting that at least one judge may now be concerned about the summary manner in which El Salvador's attempted intervention was treated. 33 The modern Court has only once allowed an intervention in its entire history. 34 It is clearly on the horns of a dilemma. If it [*166] encourages interventions, the primary disputing states may prefer ad hoc arbitration, where intervention is not possible. By summarily refusing interventions without granting a hearing, as it did in this case, justice is not seen to be done. 35
The above comments look forward -- to the issues that the case raises for the shaping of an international legal order for the future. I have intentionally not dealt with the underlying jurisdictional issues of the case, the factual controversies or the application of the law to the facts of the particular situation, but that silence should not be taken as agreement. The more general issues should attract scholarly discussion. They are not new. The creation of new international legal norms is a matter of general and continuing interest that transcends the boundaries of particular subfields of international law. The standards for the legitimate use of force have engaged that discussion since the inception of the debate over the definition of aggression and will continue to do so. For those concerned with the future role of the Court, the more procedural issues will also be of interest.
n1 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14 (Judgment of June 27).
n2 Department Statement, Jan. 18, 1985, DEP'T ST. BULL., No. 2096, March 1985, at 64. See also departmental statements following the June 27 decision.
n3 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)).
n4 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.
n5 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.
n6 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.
n7 Application of Nicaragua, Apr. 9, 1984, paras. 15-19 (claim under Charter and treaties) and 20-25 (claim under customary law).
n8 1986 ICJ REP. at 98, para. 186.
n9 Id. at 100, para. 188.
n10 Legal Status of Eastern Greenland, 1933 PCIJ, ser. A/B, No. 53 (Judgment of Apr. 5).
n11 For this view, see Wolfrum, Gewohnheitsrecht und Stimmverhalten, 1986 VEREINTE NATIONEN 93.
n12 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.
n13 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.
n14 GA Res. 3314 (XXIX) (Dec. 14, 1974).
n15 For a discussion of some of the earlier history of this effort, see A. J. THOMAS, JR. & A. THOMAS, THE CONCEPT OF AGGRESSION IN INTERNATIONAL LAW 21-44 (1972).
n16 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.
n17 1986 ICJ REP. at 105, para. 200.
n18 Id., para. 199.
n19 ICJ Statute, supra note 4, Art. 53.
n20 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.
n21 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).
n22 1974 ICJ REP. 253, 457.
n23 Fisheries Jurisdiction (UK v. Ice.; FRG v. Ice.), Merits, 1974 ICJ REP. 3, 175 (Judgments of July 24).
n24 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.
n25 1986 ICJ REP. at 23, para. 27.
n26 ICJ Statute, supra note 4, Art. 53(2).
n27 This includes Article 36(6).
n28 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.
n29 Rules of Court, ICJ ACTS AND DOCUMENTS, No. 4, Art. 79, paras. 1-5 (1978).
n30 Id., para. 6.
n31 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.
n32 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.
n33 Judge Lachs; see 1986 ICJ REP. at 170-71, pt. III of his separate opinion.
n34 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).
n35 See Sztucki, Intervention under Article 63 of the ICJ The "Salvadoran Incident," 79 AJIL 1005 (1985); Chinkin, Third-Party Intervention before the International Court of Justice, 80 AJIL 495 (1986).