81 A.J.I.L. 116
Appraisals of the ICJ's Decision. Nicaragua vs United State (Merits)
Franck, Thomas M. (1987). Appraisals of the ICJ's Decision. Nicaragua vs United State (Merits). American Journal of International Law 81 (1): 116-121. "Some Observations on the ICJ's Procedural and Substantive Innovations"
[*116] SOME OBSERVATIONS ON THE ICJ'S PROCEDURAL AND SUBSTANTIVE INNOVATIONS
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.
This was a case that, essentially, turned on the facts, and the Court made important decisions bearing on the procedures of fact determination. Some of these seem inadequately reasoned. In only one sentence the Court explained its refusal to invoke powers under Article 51 of the ICJ Statute that allow it to form an independent investigative body to explore crucial, contested data. The judges justified that important choice with no more explanation than that it would not have been practical or desirable, particularly since such a body, if it was properly to perform its task, might have found it necessary to go not only to the applicant State, but also to several other neighbouring countries, and even to the respondent State, which had refused to appear before the Court. 1
With the factual issues both decisive and murky, and with one of the parties absent, the effort of undertaking an on-the-spot investigation might have been especially warranted.
Having decided to confine all activities to its seat, the Court was left to sort out a welter of contradictory evidence presented by the parties in order to determine which of them had engaged in what activities at what time. [*117] While the United States did not participate at the merits stage, much evidence had already been placed before the tribunal at the earlier phases and more was made available to the judges, who were allowed to take note of information obtained outside the formal proceedings. 2 In those proceedings, the presented evidence included testimony of witnesses, sworn statements by government leaders, other statements by relevant officials, documents, photographs, newspaper reports and reports of various governmental and nongovernmental investigators, including hearings and studies by U.S. congressional committees.
U.S. nonappearance, as the Court remarked, created a "general disadvantage," especially because of the lack of witnesses to dramatize and support U.S. assertions and the failure of U.S. lawyers to confront the witnesses produced by Nicaragua. 3 The principal disadvantage to the United States, however, derives from the nature of fact-centered litigation pitting a closed against an open society. Nicaragua was able to prove its allegations of fact almost entirely with evidence provided by Americans, ranging from statements made by the President to assertions by members of Congress, a former CIA agent, journalists, academics and human rights investigators. This gave Nicaragua an enormous litigating advantage over the United States, which could scarcely expect a closed society to permit its citizens to provide evidence of Nicaraguan complicity in the El Salvador insurgency. Indeed, Nicaraguan officials uniformly attested to the nation's innocence of all wrongdoing. Inevitably, the United States had to rely on photographs, documents and statements, much of which the Court -- except for Judge Schwebel whose opinion includes an extensive "Factual Appendix" -- appeared to discount as "self-serving."
This evidentiary disadvantage was made worse by the Court's formulation of an evidentiary rule that underscores the lesser weight to be given to "self-interested" evidence, as opposed to evidence "against interest." The judges were quite explicit that statements "emanating from high-ranking official political figures, sometimes indeed of the highest rank, are of particular probative value when they acknowledge facts or conduct unfavourable to the State represented by the person who made them. They may then be construed as a form of admission."4 The Court thought that two sources of evidence were "prima facie" of "superior credibility"; namely, evidence of "disinterested witnesses" and "evidence of a party . . . against its own interest."5 It is not surprising, given those rules, that the facts alleged by Nicaragua were easily verifiable by admissions against self-interest,6 whereas those asserted by the United States were unable to be verified to the Court's satisfaction. Nicaraguan government officials and, for that matter, private citizens hoping to remain at large in the country do not make advertent admissions against their nation's self-interest. Americans do, and, where [*118] covert operations are concerned, American officials may be compelled by law to make disclosures to numerous persons, some of whom make disclosures to others. The Court's ruling on the relative weight of factual evidence may operate to skew the fact-finding process significantly in favor of closed societies, a possibility unconductive to growth in the ICJ's role.
Even more important than the Court's ruling on the weight of various kinds of factual evidence was its decision on sources of law. The majority's emphasis on customary law is generally to be welcomed, but its application to this dispute creates problems. Once the majority judges had resolved that the Vandenberg reservationA to the U.S. acceptance of Article 36(2) jurisdiction would preclude them from applying the law of the UN and OAS Charters, they nevertheless found that relevant customary law imposes on the United States most of the same standards pertaining to the use of force as are embodied in those Charters. 7
Having held that the Vandenberg reservationA does not bar the Court from deciding the case because the merits could be determined by reference not to treaties but to customary law,8 B the Court then directed its research to the content of that customary law. It examined states' "actual practice and opinio juris" 9 C and dutifully cautioned that opinio juris should be "confirmed by practice." 10 But the judges also held that "opinio juris may, though with all due caution, be deduced from, inter aliaD, the attitude of the Parties and the attitude of States towards certain General Assembly resolutions." 11 What does the Court mean by "attitude"? The illustrative example given by the judges was Assembly Resolution 2625 (XXV), the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. "The effect of consent to the text of such resolutions," they said, cannot be understood as merely that of a "reiterationE or elucidationF" 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. The principle of nonuse of force, for example, may thus be regarded as a principle of customary international law. . . . 12
The "attitude" of states to a rule of law, it seems, may be determined by their voting behavior in the General Assembly.
Although this statement was not, strictly, necessary to the outcome, 13 it will probably, over the long run, overshadow the impact of the core decision itself. In the Court's view, voting for a norm-declaring resolution is an exercise in opinio juris. What of the need to test opinio juris against state conduct, as, for example, in respect of the principle of the nonuse of force? While [*119] the majority opinion conceded that "examples of trespass against this principle are not infrequent," it still concluded that the rule nevertheless "is part and parcel of customary international law."14 Why? The Court speaks vaguely of the existence of opinio juris and "substantial practice" 15 -- but adds nothing more specific. Yet opinio juris is not evidence of practice, unless the verbal behavior of states in the Assembly is to be presumed to attest to their actual behavior in the "real world."
Traditionally, a normative principle has been thought to enter into customary law only after being confirmed by practice, that is, after it is demonstrably adhered to by the actual conduct of the large preponderance of international actors capable of violating it. The customary norms cited by the Court are adhered to, at best, only by some states, in some instances, and have been ignored, alas, with impunity in at least two hundred instances of military conflict since the end of World War II.
The effect of this enlarged concept of the lawmaking force of General Assembly resolutions may well be to caution states to vote against "aspirational" instruments if they do not intend to embrace them totally and at once, regardless of circumstance. That would be unfortunate. Aspirational resolutions have long occupied, however uncomfortably, a twilight zone between "hard" treaty law and the normative void. Even if passed with a degree of cynicism, they still may have a bearing on the direction of normative evolution. By seeking to harden this "soft" law prematurely, however, the Court advises prudent states to vote against such resolutions, or at least to abstain.
The most important part of the opinion, and the most troubling, is the Court's interpretation of the rights of states to act in collective self-defense under Article 51 of the UN Charter. Strictly speaking, this is not a necessary part of the Court's decision. Once the majority of judges had found no compelling evidence of intentional involvement by the Nicaraguan Government in the direction and supplying of Marxist forces seeking to overthrow the Government of El Salvador, it was practically inevitable that certain verified -- indeed, some factually uncontested -- activities of the United States would be found unlawful. The U.S. defense had been based primarily on an allegation of law, not of fact: that Washington's activities in the region constituted an exercise of the right of collective self-defense. The Nicaraguan rejoinder, by contrast, was based essentially on an allegation of fact: that the Sandinistas were doing nothing unlawful against neighboring regimes. After that Nicaraguan assertion was accepted by the Court, the U.S. assertion of a right of self-defense need not have been examined at all. Yet the Court chose to take it up, and thereby made some of its most important and controversial pronouncements. While accepting the Nicaraguan position that no intentional aid was being given to rebels in El Salvador, the Court went on to speculate that even if such help were being provided, no right of collective self-defense would accrue to the United States.
[*120] The Court asked: If Nicaragua has been giving support to the armed opposition in El Salvador, does this constitute an armed attack authorizing the United States to give support to the armed opposition in Nicaragua as an act of collective self-defense of El Salvador?16 It answered this in the negative. "In the case of individual self-defence," the opinion declares, "the exercise of this right is subject to the State concerned having been the victim of an armed attack." A fortioriF, the same requirement applies to the exercise of collective self-defense. 17 No one had asserted that El Salvador was the victim of an "armed attack," which, the Court asserted, must involve the sending of regular, or irregular, armed forces across international boundaries but does not include "assistance to rebels in the form of the provision of weapons or logistical or other support. Such assistance may be regarded as a threat or use of force or amount to intervention in the internal or external affairs of other States," 18 but it may not be regarded as an armed attack.
Thus, the Court was able to conclude that "under international law in force today -- whether customary international law or that of the United Nations system -- States do not have a right of 'collective' armed response to acts which do not constitute an 'armed attack'."19 In the majority's view, "only when the wrongful act provoking the response was an armed attack,"20 i.e., something reaching the threshold of the dispatch of armed bands "on a significant scale,"21 may the United States go to the aid of an El Salvador by giving aid to an insurgency in a Nicaragua. This seemingly rigid barrier is slightly dented by a vague assertion that there may, in undefined circumstances, be "some right analogous to the right of collective self-defence"22 against a level of intervention falling short of an actual "armed attack."
The consequence of this substantive rule appears to be that fire may be fought with water, but not with fire. It is a proposition that leaves victimized states little option but to confine countermeasures to their own territory, where, it appears, they may secure the aid of friendly states in dealing with insurgents.23 They are not, however, allowed to strike back at the base camps, the source of their troubles, in the states sponsoring proxy civil war, at least not until the intervention reaches the "armed attack" threshold defined by the Court. Source states get a free ride, legally invulnerable to individual or collective response against their own territory, even if the insurgency is planned, trained, armed and directed from there.
[*121] Given the nature of proliferating proxy wars and international terrorist networks, it is inconceivable that the United States will agree to go along with such a grant of immunity. Such a refusal inevitably means that Washington will not revive its terminated acceptance of the Court's compulsory jurisdiction, not, at least, without an "armed conflict" reservation of the kind found in the Indian and Kenyan acceptances. Indeed, such a clause should have been part of the U.S. acceptance long ago.
There is much else in the Judgment that is of importance. Scholars and students will mine the rich veins of obiter dicta for decades. The overall impression of the Judgment, however, is that it will have unfavorable implications for the rule of law, at least in the short run. If the majority judges were determined to hold the United States accountable, a more modest Judgment, along the lines indicated by Sir Robert Jennings, might have served them better.
n1 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14, 40, para. 61 (Judgment of June 27).
n2 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.
n3 Id. at 42, para. 67.
n4 Id. at 41, para. 64.
n5 Id. at 43, para. 69.
n6 Id., para. 70.
n7 Id. at 93-95, paras. 175-77.
n8 Id. at 38, para. 56, and 97, para. 182.
n9 Id. at 97, para. 183.
n10 Id. at 98, para. 184.
n11 Id. at 99-100, para. 188.
n12 Id. at 100.
n13 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.
n14 1986 ICJ REP. at 106, para. 202.
n16 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.
n17 Id. at 103-04, para. 195.
n18 Id. at 104.
n19 Id. at 110, para. 211.
n21 Id. at 104, para. 195. See also id. at 199, paras. 229-30, and at 127, para. 249.
n22 Id. at 110, para. 210.
n23 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.
My own notes:
nA Vandenberg reservation requires that all parties to a multilateral treaty that would be affected by a decision on the treaty be parties to the case.
nB In international law, customary law refers to the Law of Nations or the legal norms that have developed through the customary exchanges between states over time, whether based on diplomacy or aggression. http://en.wikipedia.org/wiki/Customary_law
nC opinio juris
nD Inter alia: Latin. Among other things
nE Reiteration To say or do again or repeatedly
nF Elucidation To make clear or plain, especially by explanation; clarify.
nG A fortiori: For a still stronger reason; all the more.