The World Court's Achievement
Falk, Richard(1987). The World Court's Achievement. American Journal of International Law 81 (1): 106. "Appraisals of the ICJ's Decision. Nicaragua vs United States (Merits)" 81 A.J.I.L. 106
Even if conceived of only as a legal text, the array of judicial opinions contained in Nicaragua v. United States constitutes an extraordinary document. It represents a fascinating attempt through judicial inquiry to assess convincingly the relevance of law to an ongoing armed conflict. As such, despite procedural objection to entry upon this terrain by the three dissenting judges, it leads the Court to pronounce specifically upon the core issue of when force can permissibly be used in international relations, as well as the contours of a claimed right of collective self-defense in the setting of interventions and civil strife.
What is more startling, the Court adjudicates mainly in favor of a small, beleaguered Third World country that is confronted by a pattern of escalating military intervention being planned and financed by the government of a superpower. This Judgment was rendered under difficult circumstances. The United States Government signaled its bitter opposition in advance to any recourse to judicial procedures, refused to appear during the merits phase of the proceedings, and has already scornfully repudiated the authority of the Court to pronounce upon the issues in controversy. Never in its history as an institution has the World Court been, at once, so prominent and embattled. At this moment of genuine jurisprudential triumph, the Court's institutional authority has been attacked as never before, and from a source previously supportive.
There are myriad matters of legal theory, doctrine and judicial practice raised by the interplay of viewpoints on the Court that tempt commentary, as well as the encounter on a political level between the Court and a leading state. My attempt here is to discuss certain highlights, leaving more detailed inquiry to other occasions.
I. JUDICIAL STYLE AND JUDICIAL FUNCTION
The Judgment of the World Court, joined in by twelve judges on the major findings and opposed by three, on some issues by only one, will long be studied as a positive model of judicial style. It succeeds, in my view, in conveying an overall impression of technical competence and fairness, despite the inflamed setting of a dispute that relates to fundamental issues of political survival and uses of force. Its quality of legal reasoning is admirable; the process by which it reaches conclusions is developed with enviable clarity.
Beyond this, the Judgment is exemplary in striking a balance between fairness to a sovereign state accused of serious violations of international law and a diligent effort to interpret the relevant rules and principles in a constructive manner. If anything, the majority judges lean over backwards to give the United States every reasonable benefit of the doubt. For instance, despite persuasively concluding that the contras are trained, financed and guided by the United States Government, the majority refuses to impute the violations of international humanitarian law by the contras to the U.S. Government. Similarly, while finding that the Central Intelligence Agency prepared and disseminated a manual for use by the contras that encourages practices in violation of international law, the Court refrains from imputing violations that result to the United States. Considering that the United States refused to participate in the proceedings after the adverse Judgment on the jurisdictional phase was rendered, it has to be concluded, I believe, that U.S. nonappearance did not mean that factual and legal considerations favorable to the United States position were not fully and fairly evaluated. Nothing in Judge Schwebel's exhaustive dissenting opinion shakes my confidence in the authoritativeness of the majority assessment of the main lines of controversy.
What is more impressive, perhaps, is the contribution made by the Judgment to the proper exercise of judicial function in an institutional setting of diverse cultures and ideologies. No other World Court judgment is as satisfying in the quality of its legal reasoning, building persuasively its main conclusions on general principles of analysis that enjoy wide support and grapple sensitively with the complicated and elusive factual background of controversy. No effort is made by the Court to buttress this reasoning with the familiar litany of Anglo-Europeans -- McNair, Lauterpacht, De Visscher, Gidel, Rousseau, Guggenheim, Anzilotti. The implicit legal hegemony of Western approaches and scholarship is nowhere evident, nor, it should be added, is there any swing, latent or manifest, to Third World or Marxist viewpoints. As such, the majority opinion is of great help to all sectors of world public opinion seeking to comprehend the contours of minimum world public order on matters of war and peace. The possibility of legal universalism has been powerfully validated. n1
n1 I reach this conclusion despite my advocacy elsewhere of a pluralist jurisprudence (Western, Marxist, non-Western) as the most appropriate stance for the World Court. See R. FALK, REVIVING THE WORLD COURT (1986). Now I believe a pluralist jurisprudence is preferable to provincial (that is, Western) jurisprudence, but that a universal jurisprudence is best of all.
In this regard, the majority is to be further commended for the accessibility of its language. Any intelligent person can read this opinion and understand its rationale. No specialized legal background is required, and yet the complexity and subtlety of the fact and law questions are in no way slighted. On the contrary, the reasoning comprehensively considers every possible, plausible objection to its principal legal conclusions.
Further, the question of judicial function is effectively and adroitly handled. The majority demonstrates its capacity to assess even the most controverted facts in an ongoing armed conflict and to pronounce clearly upon their consequences in law. To exempt such issues from judicial scrutiny, assuming jurisdiction is well founded, is to relinquish all those efforts of the last several decades to bring the use of force in international affairs within some type of third-party framework.
Of course, enormous problems remain. Jurisdiction is rarely available in opposition to the political will of a leading state in the national security area, and this case can be treated as an anomaly. Quite probably, in light of this Judgment, leading governments will be more reluctant than ever to agree in advance to submit to the Court legal disputes touching on vital interests, especially on claims of the use of force. Beyond this, the absence of any prospect of enforcement may strengthen the public impression that international law, in general, is worthless. Because this Judgment antagonized the U.S. Government, it can be argued, the weight of public opinion in the world will move to discredit the World Court as the prime judicial institution in international society, even if the decision itself is widely accepted as reasonable.
Such speculations are appropriate, but once the Court was seized with the case, there was little choice but to proceed. n2 Given this necessity, the majority responded heroically. The Judgment rendered, even if repudiated by the United States Government, provides a valuable basis for public education on the international law of war and peace in the nuclear age. It challenges, as well, the conscience of American citizens, raising the crucial question as to whether we believe the national interest is served by a foreign policy that is not bound by impartial interpretations of international law.
n2 But cf. Judge Oda's dissent on this, especially para. 18. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14, 212, especially at 219 (Judgment of June 27) (Oda, J., dissenting).
II. PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW
Perhaps, the most notable achievement of the Court's Judgment is its explication of the law governing the use of force in international relations, especially as it pertains to the complex interplay among concepts of "intervention," "armed attack," "self-defense" and "collective self-defense." To be sure, these issues are embedded in doctrinal controversy associated with varying perceptions of security interests in the world, as well as with antagonistic ideological stances. The fundamental encounter is between essentially imperial viewpoints that seek vague and extensive delimitations of these key legal conceptions and statist viewpoints that seek clear and intensive delimitations that minimize discretion to interpret and manipulate facts at the governmental level. As seems appropriate, the Court chooses, without expressing such a commitment, the statist approach, one generally favorable to the jural implications of state equality and sovereign rights and to the geopolitical implications of shifting the weight of international law behind the situation and reality of weak states. Such a disposition is legally appropriate, regardless of moral and ideological overtones, because the Court is itself part of a formal order of states that purports to deny imperial (or leading) actors a privileged position.
One consequence in real-world politics of this alignment, or historically viewed, this realignment, is to challenge the behavioral patterns of big states, and thereby to abet, however unwittingly, unilateralism and defiance in the capitals of the superpowers. As the Court's response in the Iranian Hostages case reveals, n3 the relatively weaker state, on occasion, will challenge a statist orientation by boycotting judicial procedures and asserting a defiant conception of respective rights and duties. Nevertheless, it seems correct in the setting of the legal control of force to associate discretionary views toward the use of force with relative reliance on military preponderance. This reliance may be on a limited or regional scale (for instance, France, Israel), as well as on a global scale.
n3 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ REP. 3 (Judgment of May 24).
Without entering upon the intricacies of the specific complexity associated with Nicaragua's claims, it is possible to characterize the majority view of these guiding legal conceptions. The posture of the discussion is shaped, in part, by the bearing of the multilateral treaty reservation in the United States acceptance of the Court's compulsory jurisdiction, the interpretation of which divides the majority from the dissent as sharply as any question of substance. The effect of the majority view is to regard the reservation as precluding direct application of the United Nations and Organization of American States Charters. As a result, the content of international law in this dispute before the Court must be derived exclusively from customary international law. Yet to discern customary international law, it is helpful for the Court to rely upon conceptions embodied in the UN Charter. The dissenting judges contend that such an attitude toward customary international law amounts to an improper end run around the multilateral treaty reservation, thereby encroaching upon the fundamental idea that a state must give its consent to be bound by the obligation to submit disputes to compulsory jurisdiction. On balance, the majority view that there was no intention by the United States to exempt from compulsory jurisdiction all subject matter addressed by multilateral treaties seems the most reasonable way to construct the reservation, but the argument is somewhat inconclusive, and without any entirely satisfactory resolution.
Once this lingering jurisdictional obstacle is removed, the path is cleared for doctrinal and substantive scrutiny of Nicaragua's various claims that force has been illegally used by the United States. The Court sharply differentiates its elaborate inquiry into the facts from its application of law. Much of the case rests on the character of Nicaragua's role in assisting the revolutionary insurgency in El Salvador. With considerable objectivity and composure, the Court seeks to assess the evidence, taking accuont of the nonappearance of the United States, yet endeavoring "to guarantee as perfect equality as possible between the parties." n4 It give greatest weight to disinterested sources and to admissions against interest, but surveys a wide range of materials for evidence, including such official formulations of United States allegations as are contained in the State Department publication Revolution Beyond our Borders.
n4 1986 ICJ REP. at 40, para. 59.
The Court reaches the crucial conclusion that there exists no basis for construing Nicaragua's support for the El Salvador insurgency as "an armed attack"; hence, there is no ground upon which to invoke "self-defense." And if self-defense cannot be validly invoked, then the United States lacks any permissible basis for using force against Nicaragua, and its uses of force, including the mining of harbors, arming and guiding of the contras, and military overflights, are illegal uses of force that amount to illegal interventions and acts of aggression. The Court acknowledges that Nicaragua's help to the insurgency in El Salvador might constitute an "intervention," but refuses to accept the view that counter-intervention in such a situation can legally include uses of force against the political independence and territorial integrity of the intervening state. Furthermore, the Court holds that under some circumstances actions taken to overthrow another government might qualify as "an armed attack," but concludes that the evidence here does not nearly measure up to attributing such a role to Nicaragua. At most, the evidence establishes a record of diplomatic support for the insurgency and some sporadic involvement in the transshipment of arms to insurgent forces, especially through the early months of 1981. In assessing United States goals, the Court aptly notes that the escalation of U.S. military involvement occurred after Nicaragua had greatly reduced its alleged role in El Salvador and that the rationale for U.S. policy increasingly shifted from interdiction of Nicaraguan aid to the insurgents to the restructuring of internal political arrangements within Nicaragua.
Here again, the Court responds with care and clarity. It refuses to regard the 1979 resolution of the OAS Meeting of Consultation as establishing a legal burden on Managua to practice pluralist democracy. Contrary to the position of the United States Government, the Court views this resolution as a political undertaking, and certainly not as a valid basis for mounting an intervention against Nicaragua or using force to promote the White House's ideas about conformity with the 1979 resolution.
The Court gives the United States the benefit of the doubt in most gray areas. It even rejects Nicaragua's claims that military maneuvers in Honduras and offshore were illegal interventions and adopts a very restrictive view of the relationship between contra conduct and U.S. accountability. Surely, a biased or ideological judicial body would not lean over backwards to restrict U.S. responsibility in this manner.
In the end, the Court decides that the claim by the United States to have used force as part of its undertaking to join in the collective self-defense of El Salvador lacks factual foundation because no prior armed attack occurred. Such a central inference is borne out by a reading of the vast literature on the internal conflict in El Salvador, very little of which gives much weight at all to Nicaragua's role.
III. JUDGE SCHWEBEL'S DISSENT
Judge Schwebel has performed a notable service by setting forth so fully his generalized support of the U.S. legal position, and by trying to reinforce the legal analysis with an elaborate factual annex that runs to 132 pages, 4 pages longer than his legal opinion. It is also notable because Judge Schwebel distances himself from several aspects of the official United States position, including nonparticipation in the substantive proceedings themselves, responsibility for distributing to the contras a manual urging violations of the laws of war, and mining of Nicaragua's harbors without proper notification to international shipping.
Most important, Judge Schwebel acknowledges "that there is room for the Court's construction of the legal meaning of an armed attack, as well as for some of its other conclusions of law." n5 In effect, Judge Schwebel admits that the subject matter is in an area of legitimate controversy, and that the majority opinion deserves the respect of law even if he disagrees with its conclusion. Such a position is dramatically different from the Reagan administration's rejectionist view of the decision as reflecting the biases of Communist and Third World judges, and therefore as deserving no respect.
n5 Id. at 272, para. 15; cf. also id. at 309-10 and 317-18, paras. 104 and 121-22 (Schwebel, J., dissenting).
On the larger questions, however, Judge Schwebel's dissent goes down the line with Washington. He characterizes the facts to support a legal conclusion that El Salvador was the victim of an armed attack and that therefore all subsequent uses of force by the United States represented a valid reliance on the doctrine of collective self-defense. Further, he accepts the view that the United States had a special obligation to enforce the commitment by Nicaragua to the OAS that it would establish a pluralist democracy within its borders.
Ironically, but helpfully, Judge Schwebel's dissent reinforces the persuasiveness of the majority opinion. It strains so hard and relies on such onesided and partisan source material, yet arrives at a set of legal conclusions that is in dramatic variance to the premises of "the Reagan Doctrine" without ever confronting the contradiction between what the United States demands of Nicaragua and its own foreign policy in relation to foreign insurgencies.
One matter of substance can be commented upon. Somehow, Judge Schwebel appears to accept covert operations as a legitimate use of force in international affairs if characterized as "defensive" by the user. He observes, for instance, that such activities "were not reported to the United Nations Security Council, as, by their nature, covert defensive measures will not be." n6 The imperial perspective seems prominent here. We are hardly prepared to endorse a conception of legitimate covert operations that validates state-sponsored terrorism characterized by its user as "defensive," but this is precisely what is implied. The majority cites President Reagan's claim that "covert actions have been a part of government . . . as long as there has been a government" and that a country has "the right . . . when it believes that its interests are best served to practice covert activity." n7 To exempt covert operations from legal accountability must certainly not have been Judge Schwebel's intention, but his reasoning and language leave room for this unfortunate inference. n8
n6 Id. at 269, para. 7.
n7 1986 ICJ REP. at 49, para. 83.
n8 For a careful survey of persistent reliance on covert operations, see the recent book J. PRADOS, PRESIDENTS' SECRET WARS: CIA AND PENTAGON COVERT OPERATIONS SINCE WORLD WAR II (1986). Few specialists would argue, I believe, that the character of this activity can be reconciled with international law.
A final criticism. Judge Schwebel follows older World Court tradition by bolstering his analysis of the issues with abundant reliance on the modern masters of continental and Anglo-American international law. At this stage, in my opinion, such reliance weakens rather than strengthens the appeal to international law, as it fosters the impression of Western origins, bias and ideological hegemony.
We are left in the quandary of how to assess an unenforceable World Court decision on a matter of high salience. No doubt, many will follow those liberal commentators who are beginning to say that, regretfully, the World Court cannot be entrusted with issues bearing on national security. If I thought that the Pentagon and White House were capable of consistently upholding the national interests of the American people in the area of war and peace, I might agree. As matters now stand, political democracy requires the extension of constitutionalism to the domain of foreign policy. It is not enough for leaders to invoke international law. Impartial assessments are needed, and in this difficult instance, the World Court has demonstrated its competence and capacity to do just this. In my view, anyone with even a 25 percent open mind is likely to be convinced by the majority opinion here.
It may be that governmental defiance will not carry the day. Support for President Reagan's Nicaragua policy is shaky in Congress and among the citizenry. If the effect of the World Court decision is to shift even slightly the internal and international balance of opinion on the wisdom and propriety of further uses of force against the Sandinista Government, it may yet contribute to a political process whereby legal claims are indirectly upheld. We must rethink the question of judicial effectiveness in the broader setting of public opinion and political democracy, and not confine our evaluation to conventional concerns about governmental nonresponsiveness.