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Appraisals Of The ICJ's Decision: Nicaragua V. United States (Merits).


Maier, Harold G.* (January 1987). Appraisals Of The ICJ's Decision: Nicaragua V. United States (Merits). The American Society of International Law 81: 77. 81 A.J.I.L. 77

* Professor of Law, Vanderbilt University; Editor in Charge, Special Section.


The ultimate authority of the International Court of Justice flows from the same source as the ultimate authority of all other judicial bodies. Every court's decisions are an authoritative source of law in a realistic sense only because they are accepted as such by the community whose controversies the court is charged to resolve. In the case of the World Court, it is the community of nations that confers that authority and under the Court's Statute, its jurisdiction is conferred solely by the consent of the nations whose disputes it is called to adjudicate. It is for this reason that the case Nicaragua v. United States and the actions of both the Court and the United States Government in connection with it are of special importance to those who are concerned with international law.

In April 1984, the United States received information that the Government of Nicaragua was about to file a claim against it in the International Court concerning the role of the United States in the ongoing Nicaraguan civil war. In response to that information, the United States filed with the Court a statement in which it suspended its acceptance of the Court's jurisdiction "as to disputes with any Central American state." 1

In November 1984, the Court concluded that it retained jurisdiction over the claim filed by Nicaragua despite the U.S. action and decided to consider the merits of the case. 2 Following this decision, the United States announced that it was withdrawing from further participation in the case on the grounds that the controversy involved "an inherently political problem that is not appropriate for judicial resolution." 3 On October 7, 1985, the United States took a further step and terminated its acceptance of the Court's compulsory jurisdiction under Article 36(2) of the Statute of the International Court of Justice. 4 Meanwhile, proceedings in the Court continued without further participation by the United States, and on June 27, 1986, the Court handed down its decision on the merits. 5

In view of the importance of this decision and its implications for both the future of international adjudication in general and the future of the International Court of Justice in particular, the Board of Editors voted in April 1986 to devote a special section of the January edition of the Journal to a series of short commentaries on the case. In addition to all members of [*78] the Journal's Editorial Board, more than 20 other scholars were invited to submit comments to be considered for publication. The 16 comments published here represent the response to those solicitations.

The commentaries focus on both the procedural and the substantive legal principles dealt with in the opinion and on the implications of the case and the U.S. actions in response to it for the future of the Court. Several of the comments treat the Court's use of customary international legal principles and consider both whether the opinion accurately reflects current law and its possible impact on the future role of custom in international law-formation. Another important issue, dealt with by several authors, raises the effect of multilateral and bilateral acceptances of the Court's jurisdiction and whether acceptance of compulsory jurisdiction is now a thing of the past. Also treated is the question of the extent to which acceptance of jurisdiction under Article 36(1) remains a reliable base for community expectations about the possibilities for successful international adjudication in future cases. Two authors deal with the question whether the Court has acted most effectively to protect itself and nurture its authority as an effective international judicial body. Other authors examine the impact of the decision on the customary international law of human rights and on the doctrine of jus cogens.

Taken together, the comments reflect a wide spectrum of legal and political viewpoints. This section represents a first attempt, at least in recent times, to address institutionally a current international legal issue in a fashion sufficiently timely to permit immediacy of impact, while maintaining sufficient scholarly distance truly to contribute to the development of international legal literature. Both objectives are sought to be achieved by the submissions published here.

These pieces represent each author's best effort to describe, within the limited space permitted, the impact of this case on the development of international law and the future of international adjudication. It is certain, however, that the ripples from Nicaragua v. United States are only beginning to spread throughout the international legal system. It is hoped that this special section in the Journal will play at least a small role in helping to predict and clarify the ultimate impact of this case on the international process of authoritative decision making.


n1 DEP'T ST. BULL., No. 2087, June 1984, at 89.

n2 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ REP. 392 (Judgment of Nov. 26).

n3 Department Statement, Jan. 18, 1985, DEP'T ST. BULL., No. 2096, March 1985, at 64.

n4 See Contemporary Practice, 80 AJIL 163-65 (1986).

n5 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14 (Judgment of June 27).
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