This essay examines the discussion of human rights and domestic jurisdiction by the International Court of Justice in the Nicaragua case. Independently of the final verdict about the lawfulness of U.S. help to the contras under principles of either self-defense or humanitarian intervention, the Court’s views on the relationship among human rights, domestic jurisdiction and intervention are wrong in law. Furthermore, the philosophical assumptions of the Judgment are profoundly disturbing. For the reasons set forth below, I submit that the Court’s approach embodies a backward view of international law and justice that was totally unnecessary to the resolution of the case.

International law in common with other sciences is compelled to lay down certain major premises or postulates. These are variously termed the “fundamental,” “primordial,” “inherent,” or “absolute rights” of the state. Thus Hall says:

Chapter VI of the Charter of the United Nations has generally been regarded as one of its most poorly drafted parts; and the experience of the Security Council in dealing with cases recently coming before it has both evidenced the uncertainties of the text and added to the confusion as to its meaning. The difficulties of the Council were increased by the tendency of members to disregard the text of the Charter and by the lack of Rules of Procedure. As a result important issues have been raised, especially in the Soviet-Iran case, and more particularly as to the decision that a dispute exists concerning which the Council may make recommendations.

One of the features of the Marshall Court’s business that emphasizes the contrast between that Court and its modern counterpart is the attention given to piracy cases. Piracy, defined as the unauthorized deprivation of property on the high seas, has disappeared from the present Court’s docket, and virtually disappeared as a crime; but from 1815 to 1823, piracy cases were among the most numerous and controversial of those decided by the Court.

Does Security Council Resolution 678, read in conjunction with the United Nations Charter, confer authority on the President under United States domestic law to introduce the United States Armed Forces into hostilities? The operative part of the resolution provides that the Security Council:

• 1. Demands that Iraq comply fully with resolution 660(1990) and all subsequent relevant resolutions, and decides, while maintaining all its decisions, to allow Iraq one final opportunity, as a pause of goodwill, to do so;

• 2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the foregoing resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;

• 3. Requests all States to provide appropriate support for the actions undertaken in pursuance of paragraph 2 of the present resolution;

• 4. Requests the States concerned to keep the Security Council regularly informed on the progress of actions undertaken pursuant to paragraphs 2 and 3 of the present resolution;

• 5. Decides to remain seized of the matter.

In the beginnings of international law, in Grotius and his predecessors and immediate successors, discussion of the Right of War, the jus ad bellum, takes up a great deal of room by the side of the Right in War, the jus in bello. Today, however, the question, When is war justified? has almost ceased to be discussed. The so-called predecessors of Grotius, like himself and his immediate followers, accepted from the Roman law the notion of the bellum justum piumque. This concept was purely formal. To make a war a bellum justum piumque nothing more was required than compliance with the precepts of the fetial law as to the formalities of declaring war. To be sure, these, at least originally, required a resolution of the Senate and its ratification by the Centuriate Comitia. Later, however, this requisite, to which one could perhaps not always deny some material significance, completely disappeared behind the empty ceremony which the Pater Patratus performed at the boundary of the enemy country with the “hasta ferrata aut sanguinea prœusta” hurled across the same. Nay, in the war with Pyrrhus, a deserter from the former’s army was allowed to buy a piece of ground in Rome, into which the spear was flung as into hostile territory, in order that the Pater Patratus might not have to go all the way to the frontier. On these formalities, which naturally became more and more futile, Roman historians based their country’s reputation of never having waged an unjust war. Still, the fetial law had at least the one advantage of giving the adversary a 33 days’ respite for deliberation.

In its Judgment of February 5, 1970, in the Case Concerning the Barcelona Traction, Light and Power Company, Limited (New Application, 1962, Belgium v. Spain, Second Phase), the International Court of Justice, by a vote of 15 to 1, rejected, for lack of jus stanai, a Belgian claim of a right of diplomatic protection of alleged Belgian shareholders in a Canadian company allegedly victim of a series of denials of justice by Spanish authorities. Essentially, the Court’s decision denies the existence of any general rule of international law or of any special circumstances or considerations of equity which confer a right of diplomatic protection of national shareholders in a foreign company where the acts complained of were directed by authorities of a third state against the company rather than against any legal rights of the shareholders as such. The opinion of the Court is, for the most part, soundly reasoned and comes after thorough argument of the precedents and brilliant presentation of opposing contentions of law and fact by distinguished counsel. Attorneys may safely advise clients that the Court’s opinion sets forth the existing law and that any special protection of shareholders as such in a foreign company must be based on treaty stipulations or special agreements.

The fiftieth session of the UN Human Rights Commission took place in Geneva between January 31 and March 11, 1994, under the chairmanship of Peter P. van Wulfften Palthe of the Netherlands. During its annual six weeks of rhetoric and resolutions, the Commission adopted 109 resolutions and decisions, most by consensus. It adopted resolutions or took other actions addressing human rights violations in thirty countries.

For the second time the United States Senate, on March 19, 1920, refused its advice and consent to the ratification of the Treaty of Peace with Germany, signed at Versailles on June 28, 1919. The first rejection took place exactly four months before, namely, on November 19, 1919. The vote on the treaty in November was 39 for and 55 against, and in March 49 for and 35 against. Both votes were upon resolutions of ratification containing reservations and understandings the acceptance of which by the Allied and Associated Powers was made a condition precedent to the going into effect of the ratification of the United States. A resolution of ratification without reservations or conditions of any kind was presented to the Senate on November 19, 1919, and defeated by a vote of 38 for to 53 against. No resolution of this kind was offered or voted upon in March. The treaty has thus failed to receive in either form the concurrence of two-thirds of the Senators present as required by the Constitution for the making of treaties by the President.

Austen Chamberlain, British Secretary of Foreign Affairs, declared in the House of Commons, December 15, 1924, that Great Britain would “ regard as an unfriendly act any attempt at interference in the affairs of Egypt by any other Power, and would consider any aggression against the territory of Egypt as an act to be repelled with all the means at their command.” Similar statements have frequently been made by the responsible ministers of the Powers when discussing “ spheres of influence.” It is probably not possible to give a precise meaning to the phrase “ sphere of influence” because, as Hall says, “ perhaps in its indefiniteness consists its international value.” Nevertheless, the phrase has been applied specifically to characterize the control of portions of Asia and Africa, certain islands in the Caribbean, and of regions in Central America. In these regions are to be found in operation arrangements, some secret and some public, stipulated either by treaty, diplomatic declaration, “ gentlemen's agreements,” or effected, ofttimes, by military or economic penetration, varying greatly in degree and intensity, which enable Powers and their citizens to enjoy advantages in these regions without exercising, necessarily, sovereign control.

In the wake of Vietnam and Watergate, Congress set out to attack the imperial Presidency and to recapture its “historic constitutional role” in foreign policy. The tools of congressional activism included the National Commitments Resolution, the War Powers Resolution, the Case Act, the legislative veto over arms sales and nuclear exports, trade restrictions aimed at the Soviet Union and regulation of intelligence activities. In response, Presidents Carter and Reagan charged that Congress was invading presidential prerogatives. Joined by former executive branch officials and academic commentators, they saw an imperial Congress and believed the solution was a strengthened Presidency.