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The Nicaragua Case: New Answers to Old Questions?

Published online by Cambridge University Press:  09 March 2016

R.St.J. MacDonald
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 24 , 1987 , pp. 127 - 160
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1987

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References

1 The factual background is set out in paras. 18–25 and 75–17’ of the Court’s judgment in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, [1986] I.C.J. Rep. 14. For a contrary view, see the Factual Appendix to Judge Schwebel’s Dissenting Opinion of 269 pages.

2 [1984] I.C.J. Rep. 392. The literature on the subject is already voluminous: see inter alia Briggs, “Nicaragua v. United States: Jurisdiction and Admissibility,” (1985) 78 Am. J. Int’l L. 379–84; Reisman, , “Has the International Court Exceeded its Jurisdiction?,” (1986) 79 Am. J. Int’l L. 128–34.CrossRefGoogle Scholar

3 Arts. 51, 42–43, and 53.

4 For a thorough analysis of the differences in the doctrines as they emerged after the confusion of the nineteenth century, see Bowett, , Self Defence in International Law 8-15 (1958)Google Scholar. See also Opperman, , “Intervention,” in Encyclopedia of Public International Law, Vol. 3, at 233–36Google Scholar; Bryde, “Self-Help,” in ibid., Vol. 4, at 215–17; Partsch, , “Self-Preservation,” in ibid., Vol. 4, at 217–19.Google Scholar

5 Waldock, , “The Regulation of the Use of Force by Individual States in International Law,” (1952) 81 Recueil des Cours, Vol. 2, at 451, 493.Google Scholar

6 UNICO, Vol. 6, Doc. 215/I, at 10, and UNICO, Vol. 6, Doc. 784/I, at 334–35.

7 Kelsen, , The Law of the United Nations 911 (1951).Google Scholar

8 ILC Yearbook of International Law (1966), Vol. II, at 246; A/CN 4/SER/ 1966, Add. I.

9 General Assembly Resolution 2625 (XXV), 25 U.N. GAOR Supp. (No. 28), at 121; UN DOC. A/Res/2625 (XXV) (1970).

10 Rosenstock, , “The Declaration of Principles of International Law Concerning Friendly Relations: A Survey,” (1971) 65 Am. J. Int’l L. 713.CrossRefGoogle Scholar

11 Higgins, , “The Legal Limit to the Use of Force by Sovereign States: United Nations Practice,” (1961), 34 Brit. Yb. Int’l L. 269, 288–89.Google Scholar

12 Ibid.; Brownlie, , International Law and the Use of Force by States 278–79, 370–72 (1963)Google Scholar; Rifaat, , International Aggression 217 (1979).Google Scholar

13 For a good review of the pertinent resolutions, see Goodrich, , Hambro, , and Simons, , Charter of the United Nations 50 (1969)Google Scholar; and supra note 11, at 288–95.

14 Franck, , “Who Killed Article 2(4)?,” (1970) 64 Am. J. Int’l L. 809, 812–20.CrossRefGoogle Scholar

15 See also the third principle in this context.

16 UN DOC. A/AC.119/SR 32 (1964).

17 Arangio-Ruiz, , “The Normative Role of the General Assembly of the United Nations and the Declaration of the Principle of Friendly Relations,” (1973) 137 Recueil des Cours, Vol. 3, at 421, 528–29.Google Scholar

18 Stone, , Aggression and World Order 96 (1958).Google Scholar

19 Bowett, , “Reprisals Involving Recourse to Armed Force,” (1972) 66 Am. J. Int’l L.CrossRefGoogle Scholar

20 Reisman, , Nullity and Revision 850 (1971).Google Scholar

21 See paras. 42–56.

22 See paras. 187–88.

23 See para. 190 and the Separate Opinion of President Nagendra Singh at p. 143. Judge Sette-Camera also thought that the principle of non-intervention was a rule jus cogens: see his judgment at pp. 189–90.

24 See generally Sinclair, , The Vienna Convention on the Law of Treaties 14–15, 203–41 (1984).Google Scholar

25 See para. 188.

26 The prohibition on reprisals in customary international law is expressly affirmed : para. 191. See also President Singh at p. 1 of his Separate Opinion.

27 Para. 191. Though there is some support for the view that the Charter recognized a hierarchy of force in Art. 39, it seems that the intent of the drafters of the Charter was to affirm the threat of all forms of force to world peace regardless of strength. See Stone, op. cit. supra note 18, at 92.

28 Paras. 202–5.

29 Separate Opinion of President Singh at p. 146.

30 Para, 202.

31 Para. 205. See too Obradovic, , “Prohibition of the Threat or Use of Force,” in Sahovic, Milan (ed.), Principles of International Law Concerning Friendly Relations and Cooperation 86 (1972).Google Scholar

32 Paras. 123–25.

33 Paras. 244–45.

34 Para. 205.

35 The Court adopted the view that when intervention takes the form of support and assistance to armed bands, the intervening government is to be imputed with the same motives as the armed bands, even though the aim of the intervening government may have been less far-reaching.

36 Para. 205.

37 Para. 228. But the supply of humanitarian aid to a rebel force is not contrary to international law if aid is also given to government forces: para. 243.

38 The principle was relied upon before by the Court notably in the Corfu Channel case, [1949] I.C.J. Rep. 35.

39 The use of the concept of sovereignty as a touchstone to judge the validity of the use of force was emphasized by the 13 Power Amendment to the Definition of Aggression : see Ferencz, , “Defining Aggression : Where it Stands and Where It Is Going,” (1972) 66 Am. J. Int’l L. 491, 498.CrossRefGoogle Scholar

40 Paras. 88–91.

41 Para. 251.

42 The Court’s reluctance to consider aerial trespass in the context of the use of force is understandable in the light of the KAL flight 007 disaster. Questions of trespass would inevitably involve the right of self-defence, which is probably better left to a full and argued discussion. On the right of self-defence in aerial trespass, see Lissitzyn, , “The Treatment of Aerial Intruders in Recent Practice and International Law,” (1953) 47 Am. J. Int’l L. 559 CrossRefGoogle Scholar; Fitzgerald, , “The Use of Force Against Civil Aircraft: The Aftermath of the KAL Flight 007 Incident,” (1984) 22 Canadian Yearbook of International Law 291.Google Scholar

43 Brownlie, op. cit. supra note 12, at 363.

44 Paras. 213–14.

45 Paras. 213–14, and 253.

46 Para. 215. On this point Judge Schwebel agreed: see paras. 234–40 of his Dissenting Opinion.

47 Paras. 92 and 227.

48 Para. 188.

49 For the Aggression Resolution, see General Assembly Resolution 3314 (XXIX), 29 U.N. GAOR. Supp. (No. 31), at 142; UN DOC. A/9631 (1974).

50 Tucker, , Principles of International Law 64 (1966).Google Scholar

51 For the first three principles, see the Caroline case; Jennings, , “The Caroline and McLeod Cases,” (1938) 32 Am. J. Int’l L. 82 CrossRefGoogle Scholar, and Harris, , Cases and Materials on International Law 46 (1979).Google Scholar

52 Schwarzenberger, , “Armed Conflict,” in 2 International Courts 35 (1968).Google Scholar

53 A great deal of ink has been spent on developing this thesis. The best is still probably in Bowett, op. cit. supra note 4. See also Waldock, , “The Regulation of the Use of Force by Individual States in International Law,” (1952) 81 Recueil des Cours, Vol. 2, at 451–517 Google Scholar, and Brierly, , The Law of Nations 413–32 (1963).Google Scholar

54 The best statement is still in Brownlie, op. cit. supra note 12. Rowles usefully emphasizes the difficulty of formulating an alternative limitation: “‘Secret Wars,’ Self-Defense and the Charter: A Reply to Professor Moore,” (1986) 79 Am. J. Int’l L. 368-83.

55 Bowett, op. cit. supra note 4, at 269; Brownlie, op. cit. supra note 12, at 241.

56 S.C.O.R., 13th year, 833rd meeting.

57 Kelsen, op. cit supra note 7, at 793-97.

58 See paras. 195, 51, 229.

59 Para. 194, and also para. 35.

60 Judge Schwebel, D.O. para. 172.

61 Judge Schwebel expressly disagreed with the view, should it be that of the Court, that self-defence was permissible if and only if “an armed attack occurred.” See also “Aggression, Intervention and Self-Defence in Modern International Law,” (1972) 136 Recueil des Cours, Vol. 2, at 419, 483–86.

62 There may be room to argue that the use of force to rescue nationals in imminent danger is not inconsistent with the purposes of the United Nations: see Henkin, , How Nations Behave 142 (1979)Google Scholar; Jeffrey, , “The American Hostages in Tehran: The I.C.J, and the Legality of Rescue Missions,” (1981) 30 Int’l & Comp. L. Q. 717.CrossRefGoogle Scholar

63 Para. 195.

64 See Stone, “Hopes and Loopholes in the 1974 Definition of Aggressor,” (1977) 71 Am. J. Int’l L. 224, 237–39; Ferencz, supra note 39, at 491; Harris, , Cases and Materials of International Law 694 (1983)Google Scholar. Interestingly, Kelsen thought that armed attack was narrower than aggression at a time when the issue was not so controversial: op. cit. supra note 7, at 797.

65 See paras. 193, 230, 247.

66 Paras. 92–112.

67 President Nagendra Singh and Judge Ruda.

68 Paras. 6, 166–71 of Judge Schwebel’s Dissenting Opinion; and [1986] I.C.J. Rep., at 533 for Judge Sir Robert Jenning’s Dissenting Opinion.

69 Para. 166 of Judge Schwebel’s Dissenting Opinion.

70 Judge Oda makes justifiable criticism of the Court’s failure to examine the historical antecedents of collective self-defence: D.O. of Oda paras. 90–97.

71 Para. 195.

72 Paras. 196–99.

73 Para. 237.

74 See paras. 189–200 of Judge Schwebel’s Dissenting Opinion.

75 See, however, Rowles, supra note 54, at 568–83.

76 Para. 232.

77 See Sir Robert Jenning’s Dissenting Opinion, [1986] I.G.J. Rep. 535.

78 Para. 237.

79 Para. 201 of Judge Schwebel’s Dissenting Opinion.

80 Para. 206. In making this suggestion Judge Schwebel may be advocating something akin to the “margin of appreciation” in the jurisprudence of the European Court of Human Rights. This doctrine permits national governments a certain latitude in making specified derogations from the convention because they are in a better position than the judges of the Court to determine the necessity of a derogation at the time of the derogation.

81 Para. 214. This argument was put by Argentina to the Security Council at the time of the Falklands war and it was rejected: see UN DOC. S/PV 2360. See also Green, , “The Rule of Law and the Use of Force: The Falklands and Canada,” Proceedings of the 1984 Conference of the Canadian Council on International Law 253, 261.Google Scholar

82 D.O. of Judge Schwebel, para. 212.

83 This is probably Judge Schwebel’s view.

84 Paras. 178, 188, 200, 235.

85 Para. 200.

86 The Court seems to have considered the reporting restrictions incorporated in Art. 51 to be mandatory. See also the Separate Opinion of President Nagendra Singh. Judge Schwebel thought the reporting restriction was procedural and did not apply to covert measures: paras. 221–30.

87 Reisman, , “Coercion and Self-determination: Construing Charter 2(4),” (1984) 78 Am. J. Int’l L. 642 CrossRefGoogle Scholar. Replied to by Schachter, , “Legality of Pro-Democratic Invasion,” (1984) 78 Am. J. Int’l L.CrossRefGoogle Scholar

88 Most notably the fifth principle of the Declaration Concerning Friendly Relations (1970), and Art. 7 of the Definition of Aggression (1974).

89 See Virally, , “Article 2(4),” in Cot, and Pellet, (eds.), La Charte des Nations Unies 123–24 (1985)Google Scholar; Schwebel, Contra, “Aggression, Intervention, and Self-Defence in Modern International Law,” (1972), 136 Recueil des Cours, Vol. 2, at 419, 483–86.Google Scholar

90 Schachter, , “General Course in Public International Law,” (1982) Recueil des Cours, Vol. 5, at 144.Google Scholar

91 Most notably perhaps by Reisman, and McDougal, , “Humanitarian Intervention to Protect the Ibos,” in Lillich, (ed.), Humanitarian Intervention and the United Nations 167, 171–78 (1973)Google Scholar, and Lillich, , “Humanitarian Intervention,” in Moore, (ed.), Law and Civil War in the Modern World 229–51 (1974)Google Scholar. However, the publicists are far from united. See, for example, Akehurst, , “The Use of Force to Protect Nationals Abroad,” (1977) Intl Rel. 3, 16CrossRefGoogle Scholar; Farer, , “The Regulation of Foreign Intervention in Civil Armed Conflict,” (1974) 142 Recueil des Cours, Vol. 2, 297, 387–404Google Scholar; Schachter, , “The Rights of States to Use Armed Force,” (1984) 82 Mich. L. R. 1620, 1628–35.CrossRefGoogle Scholar

92 Para. 206.

93 ibid.

94 Paras, 266–68.

95 Judge Schwebel’s Dissenting Opinion, paras. 179, 1, 16.

96 On whether the Governor of Grenada had the lawful right to invite the United States to invade Grenada, see Boswald-Beck, , “The Legality of the United States Intervention in Grenada,” (1984) Neth. Int’l L. J. 355.CrossRefGoogle Scholar

97 Wright, , “Subversive Intervention,” (1960) 54 Am. J. Int’l L. 521 CrossRefGoogle Scholar; Fitzmaurice, , “The General Principles of International Law,” (1957) 92 Recueil des Cours, Vol. 2, at 5, 176–79Google Scholar; Schachter, , “General Course in Public International Law,” (1982) Recueil des Cours, Vol. 5, at 21, 160–66.Google Scholar

98 See Farer, supra note 9, at 397.

99 See “Resolution of Institut de Droit International on the Principle of Nonintervention in Civil Wars,” (1975) 56 Annuaire de l’Institut de Droit International 544–49.

100 See paras. 346–49.

101 See paras. 210–11, 246–49.

102 Counter-intervention is normally concerned with the three-party situation. But there is a two-party situation. This arises where a state takes action against a state that is supporting rebels in the former country. The Court noted that the intervening state may be using force contrary to Article 2(4) but declined to comment on whether the state subject to intervention could take measures involving force if that use of force did not constitute armed force despite the question being undeniably relevant from the theoretical viewpoint: para. 210. In light of the Court’s general approach to limit the legitimate use of force to the singular exception of an armed attack, the issue will probably be answered in the negative.

103 Dissenting Opinion of Judge Schwebel at para. 215–20.

104 Paras. 13, 155, 170 of the Dissenting Opinion of Judge Schwebel. See also the Dissenting Opinion of Judge Sir Robert Jennings.

105 para, 27; and see the statement of Sir Robert Jennings at p. 534.

106 Para. 67.

107 Separate Opinion of President Nagendra Singh. The difficulties in the law are emphasized by Moore, , “The Secret War in Central America and the Future of World Order,” (1986) 80 Am. J. Int’l L. 43–127, at 83–92.CrossRefGoogle Scholar