[André Nollkaemper is is Professor of Public International Law and Vice-Dean for Research at the Faculty of Law of the University of Amsterdam.]
Cross posted on the
SHARES blog
The ICJ´s decision in
Nicaragua surely is one of its most cited judgments. It remains the leading authority on attribution of conduct of non-state actors and on (collective) self-defense. It also is a popular point of reference in analyses of the formation of customary law and on the jurisdiction of the Court. In his excellent
The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, Marcelo Kohen points out that the Judgment also is a relevant source for understanding the concept of responsibility to protect (R2P), even though that concept only came into existence some twenty years after the judgment.
Kohen rightly argues that R2P, by placing emphasis on collective security and discounting unilateral action, has been placed firmly in the footsteps of – and is fully consistent with – Nicaragua´s holdings on non-intervention, and that there is nothing in the concept of R2P ‘allowing for a reversal of the principle of non-intervention or otherwise allowing states to intervene without SC authorization.’ (at 163).
It is hard to expect otherwise. The application of the concept of R2P continues to give rise to controversies between states and other relevant actors. The small step forward that appeared to be brought by SC Res 1973(2011) proved to be two substantial steps backward, following the overly broad interpretation that led NATO to overthrow Gadaffi. The absence of consensus on meaning, scope and implementation at the political level obviously means the lack of a basis for a change in the relevant principles of international law, notably those on protection of human rights, non-intervention and the use of force.
Nonetheless, as Julia Hoffmann and I argued in our recent
book, rereading
Nicaragua in the light of the wide variety of controversial issues surrounding R2P makes sense. On the one hand, the US had based its support for the contras in part on the fact that Nicaragua had committed violations of human rights (eg par. 267), the same rationale that underlies the aspirations of many who relied on R2P in the context of Libya or Syria. On the other hand, the main ambition of the US was not so much to protect human rights as to (support the) overthrow of the regime. This may not be a generally accepted aim of R2P doctrine, but it certainly can be part of the agenda of R2P supporters. The middle way that the Court had to find between the laudable ambitions to protect human rights on the one hand, and the no-go area of allowing a state to support the overthrow of a foreign regime, is potentially relevant to the R2P debate.
