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The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In Between?

Abstract
Abstract

At the time the United States withdrew from participation in the Nicaragua case at the International Court of Justice, the US government expressed concern that ‘the course on which the Court may now be embarked could do enormous harm to it as an institution and to the cause of international law’. This essay examines whether or to what extent the anticipated negative effects came to pass. It concludes that dire predictions of harm to the Court were overstated. Twenty-five years later, the rate at which states accept the Court's jurisdiction has held steady. Only a few states have added jurisdictional reservations concerning military activities. The mix of cases being brought to the Court has shifted towards a more representative distribution. States are generally complying with the Court's decisions, though some compliance problems remain. The most serious negative impact has been on the willingness of the United States (still the Court's most active litigant) to participate fully in international dispute settlement.

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1 Military and Paramilitary Activities in and against Nicaragua, [1984] ICJ Rep. 392 (Jurisdiction), [1986] ICJ Rep. 14 (Merits).

2 ‘Statement Concerning US Withdrawal from the Nicaragua Case’, 18 January 1985, reprinted in (1985) 24 ILM 246.

3 For other perspectives also presented at the symposium, see, e.g., J. Norton Moore, The Impact of the Nicaragua Case on the Law: Use of Force, Intervention and Matters of Evidence (forthcoming) (registering concern that Court has harmed itself by its minimalist approach to the law of use of force).

4 United States Diplomatic and Consular Staff in Tehran, [1980] ICJ Rep. 3.

5 Interpretation of the Agreement of 25 March 1951 between the World Health Organization and Egypt, [1980] ICJ Rep. 73.

6 In addition to the statement cited in note 2, supra, see Statement of the Legal Adviser of the State Department, Abraham D. Sofaer, to the Senate Foreign Relations Committee, 4 December 1985, (1986) 86 Department of State Bulletin 67.

7 L. F. Damrosch (ed.), The International Court of Justice at a Crossroads (1987) (hereinafter, Crossroads).

8 L. Gross, ‘Compulsory Jurisdiction under the Optional Clause: History and Practice’, in ibid., at 19, 23.

9 The figure of 47/161 in 1984 comes from ibid., at 22–3. Information as of June 2011 is taken from the Court's website at www.icj-cij.org.

10 On withdrawal of the US declaration, see (1984–85) 39 International Court of Justice Yearbook 1, at 76–7; (1985–86) 40 International Court of Justice Yearbook 1, at 60.

11 On withdrawal of Israel's declaration, see (1984–85) 39 International Court of Justice Yearbook 1, at 81–2; (1985–86) 40 International Court of Justice Yearbook 1, at 60.

12 On El Salvador's renewal for ten years from 26 November 1978, see (1985–86) 40 International Court of Justice Yearbook 1, at 67–9. El Salvador's declaration was reprinted in the Court's yearbooks through the end of the 1980s and thereafter was treated as having expired; see (1991–92) 46 International Court of Justice Yearbook 1, at 73, note 1.

13 Territorial and Maritime Dispute (Nicaragua v. Colombia), [2007] ICJ Rep. 832, at 870–1 (Colombia gave notice of termination on 5 December 2001; Nicaragua filed its application on 6 December 2001).

14 Gross, supra note 8, at 26 (table of reservations ratione materiae, including those on war, hostilities, or belligerent or military occupation).

16 For Honduras's modified declaration, see (1985–86) 40 International Court of Justice Yearbook 1, at 71–2.

17 Border and Transborder Armed Actions (Nicaragua v. Honduras), [1988] ICJ Rep. 69, at 78–90, 107 (application filed on 28 July 1986; jurisdiction and admissibility under Art. 36(1) unanimously upheld in judgment of 20 December 1988, without reaching Art. 36(2) issues).

18 For the current version of Nigeria's declaration as amended in 1998, see the Court's website. Norway amended its Art. 36(2) declaration on 25 June 1996, to incorporate by reference its exclusions pursuant to the dispute-settlement provisions of the UN Convention on the Law of the Sea (UNCLOS) (which it had ratified the previous day), in respect of disputes concerning the law of the sea. Art. 298(1)(b) of UNCLOS allows states to make an optional declaration excluding disputes concerning military activities from the compulsory dispute-settlement provisions of the Convention, and Norway's declaration pursuant to that Article evidently does so (although, by its terms, it addresses only arbitration under Annex VII of UNCLOS). The combination of Norway's ICJ Art. 36(2) declaration and its UNCLOS Art. 298 declaration could exclude disputes over military activities at sea from the ICJ's compulsory jurisdiction, but that possibility is not considered further here.

19 Djibouti (2005): ‘Disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, fulfilment of obligations imposed by international bodies and other similar or related acts, measures or situations in which the Republic of Djibouti is, has been or may in future be involved.’ Germany (2008): ‘(ii) any dispute which (a) relates to, arises from or is connected with the deployment of armed forces abroad, involvement in such deployments or decisions thereon, or (b) relates to, arises from or is connected with the use for military purposes of the territory of the Federal Republic of Germany, including its airspace, as well as maritime areas subject to German sovereign rights and jurisdiction.’ Greece (1994): ‘any dispute relating to defensive military action taken by the Hellenic Republic for reasons of national defense.’ Hungary (1992): ‘disputes relating to, or connected with, facts or situations of hostilities, war, armed conflicts, individual or collective actions taken in self-defence or the discharge of any functions pursuant to any resolution or recommendation of the United Nations, and other similar or related acts, measures or situations in which the Republic of Hungary is, has been, or may in the future be involved.’

20 Examples include the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation; the 1992 Framework Convention on Climate Change; the 1992 Convention on Biological Diversity; the 1993 Chemical Weapons Convention; the 1997 International Convention for the Suppression of Terrorist Bombings; the 1998 Rome Statute of the International Criminal Court; the 2000 UN Convention on Transnational Organized Crime; the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons; and the 2003 UN Convention against Corruption.

21 Cf. G. Born, ‘A New Generation of International Adjudication’, unpublished manuscript of February 2011, forthcoming, (2011), 61 Duke Law Journal (counting only 27 out of 18 750 treaties concluded between 1990 and 2010 with such clauses).

22 These include: Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua Intervening), [1992] ICJ Rep. 351; Application for Revision of Judgment (El Salvador v. Honduras), [2003] ICJ Rep. 392; Territorial and Maritime Dispute in the Caribbean Sea (Nicaragua v. Honduras), [2007] ICJ Rep. 659; Territorial and Maritime Dispute (Nicaragua v. Colombia), [2011] ICJ (Judgments on Applications by Costa Rica and Honduras for Permission to Intervene); Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), [2009] ICJ (Judgment); and Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), [2011] ICJ (Provisional Measures).

23 Text at notes 4652, infra.

24 See Posner E. A., ‘The Decline of the International Court of Justice’, in Voigt S., Albert M., and Schmidtchen D. (eds.), International Conflict Resolution (2006), 111.

25 See Satzer J., ‘Explaining the Decreased Use of International Courts: The Case of the ICJ’, (2007) 3 International Review of Law and Economics 11.

26 See also Voeten E., ‘International Judicial Independence’, unpublished manuscript of May 2011, forthcoming in Dunoff J. and Pollack M. (eds.), International Law and International Relations: Synthesizing Insights from Interdisciplinary Scholarship (2012), at 20 (citing Posner, supra note 24, for the proposition that ‘states stopped using the ICJ largely because the judges did not apply the law impartially’).

27 Satzer, supra note 25, attempts an analysis of democracy levels in relation to patterns of ICJ filings. For an analysis of resort to the Court by countries whose legal systems are based on civil law, common law, or Islamic law, see Powell E. J. and Mitchell S. McLaughlin, ‘The International Court of Justice and the World's Three Legal Systems’, (2007) 69 JP 397 (finding that civil-law states tend to use the Court to a relatively greater extent than the other systems, and also finding that democratic states are more likely to accept compulsory jurisdiction than autocratic states).

28 Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening), Application of 23 December 2008.

29 Whaling in the Antarctic (Australia v. Japan), Application of 31 May 2010.

30 O. Schachter, ‘Disputes Involving the Use of Force’, in Crossroads, supra note 7, at 223–6.

31 J. I. Charney, ‘Disputes Implicating the Institutional Credibility of the Court: Problems of Non-Appearance, Non-Participation, and Non-Performance’, in Crossroads, supra note 7, at 288, 305.

32 Ibid., at 309.

33 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United Kingdom & United States), [1992] ICJ Rep. 3, at 114; see also [1998] ICJ Rep. 9, at 115.

34 Aerial Incident of 3 July 1988 (Iran v. United States), [1996] ICJ Rep. 9; Oil Platforms (Iran v. United States), [2003] ICJ Rep. 161.

35 Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia), [2007] ICJ Rep. 191.

36 Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), [2008] ICJ Rep. 412.

37 Legality of Use of Force (Serbia & Montenegro v. United Kingdom), [2004] ICJ Rep. 1307 and related cases.

38 Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), [2005] ICJ Rep. 168; Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Burundi), [2001] ICJ Rep. 3; Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), [2006] ICJ Rep. 6.

39 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), [2008] ICJ Rep. 353.

40 Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ Rep. 226; Legality of the Use by a State of Nuclear Weapons in Armed Conflict, [1996] ICJ Rep. 66.

41 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004] ICJ Rep. 136.

42 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, [2010] ICJ Rep.

43 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), [2011] ICJ Rep.

44 Military and Paramilitary Activities in and against Nicaragua, [1984] ICJ Rep. 215 (Declaration of Intervention).

45 LaGrand (Germany v. United States), [1999] ICJ Rep. 9 (Provisional Measures).

46 Avena and Other Mexican Nationals (Mexico v. United States), [2004] ICJ Rep. 12. In connection with the US Supreme Court's consideration of the petition of one of the members of the Avena group, I co-ordinated an amicus brief submitted by US experts on the ICJ, in which one strand of the argument was that parties to ICJ cases have generally complied with the Court's judgments; see Brief for International Court of Justice Experts as Amici Curiae, Medellín v. Texas, 552 US 491 (2008).

47 Charney's analysis (supra note 31), published in Crossroads, examined such questions using data available through 1986. For an update covering 15 additional years, see Paulson Colter, ‘Compliance with Final Judgments of the International Court of Justice since 1987’, (2004) 98 AJIL 434.

48 See Paulson, supra note 47, at 456–60; Ginsburg T. and McAdams R. H., ‘Adjudicating in Anarchy: An Expressive Theory of International Dispute Resolution’, (2004) 45 William and Mary Law Review 1229, at 1308–11.

49 Ginsburg and McAdams, supra note 48. Cf. Powell and Mitchell, supra note 27, at 412 (finding extremely high rate of compliance – up to 28 of 29 PCIJ and ICJ decisions – in cases involving territorial, maritime, or cross-border river issues).

50 Prior to Medellín, supra note 46, the cases that reached the US Supreme Court involved either provisional-measures orders (Breard v. Greene, 523 US 371 (1998); Federal Republic of Germany v. United States, 526 US 111 (1999)) or individuals whose claims had not been specifically addressed in Avena (Sanchez-Llamas v. Oregon, 548 US 331 (2006)).

51 Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988).

52 Medellín v. Texas, 552 US 491 (2008), at 508.

53 Elettronica Sicula S.p.A (ELSI) (United States v. Italy), [1989] ICJ Rep. 15.

54 Letter from Condoleezza Rice, US Secretary of State, to Kofi A. Annan, Secretary-General of the United Nations, 7 March 2005.

55 A resolution of advice and consent recommended in the report of the Senate Foreign Relations Committee of 19 December 2007 would provide: ‘The United States further declares that its consent to accession to the Convention is conditioned upon the understanding that, under Article 298(1)(b), each State Party has the exclusive right to determine whether its activities are or were “military activities” and that such determinations are not subject to review’, (2007) S. Exec. Rep. 110–9, 110th Cong., 1st Session, at 19, Section 2(2).

56 Opponents also point to the Court's decision in Oil Platforms as raising doubts about whether the United States should accept any new jurisdictional commitments, given that the Court proffered an interpretation of the UN Charter through the back door of a commercial treaty.

* Hamilton Fish Professor of International Law and Diplomacy and Henry L. Moses Professor of Law and International Organization, Columbia University []. The author thanks Bernard H. Oxman and Joan Donoghue for comments on a draft of this paper.

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Leiden Journal of International Law
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