Jack Goldsmith’s Accurate Description of the “Unwilling or Unable” Test

LJIL Symposium: Response of Lori F. Damrosch to Comments by John Dugard

[Lori F. Damrosch is Henry L. Moses Professor of Law and International Organization and Hamilton Fish Professor of International Law and Diplomacy at Columbia Law School] My article, ‘The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In Between?’ originated as a contribution to a symposium convened on the 25th anniversary of the delivery of the merits judgment in the case. I took as my starting point one of the statements issued by the US government while the case was pending, which had predicted that the International Court of Justice would harm itself unless it refrained from becoming politicized. My article then inquired into whether the predicted negative trends had materialized, with attention to patterns of acceptance of the Court’s jurisdiction, its docket, and compliance with its rulings. I concluded that most of the dire predictions were overstated and that the most serious negative impact has been the on the willingness of the United States to participate fully in international dispute settlement at the ICJ and elsewhere. One aspect of the 25-year trends I surveyed was the remarkable growth in the Court’s docket after the Nicaragua case and the shift in the geographic distribution of cases to include a much higher proportion from the developing world. In his comments on my article addressed to that point, Professor John Dugard refers to the Court’s 1966 judgment in the South-West Africa cases, which I had not discussed simply because my remarks at the June 2011 conference focused on developments subsequent to the Nicaragua case. I therefore did not think it necessary to elaborate the reasons why the Court, prior to Nicaragua, had gone through a period of very few cases on its docket, although I did briefly allude to that fact in my contribution (p. 140). Alain Pellet, whose contribution will appear in the next issue of the Leiden Journal of International Law, also surveyed the relevant history. As the literature on the Court explains, between the late 1960s and the early 1980s preceding Nicaragua, the Court had suffered a collapse in confidence resulting in part from its handling of the cases brought by Ethiopia and Liberia against South Africa to contest the maintenance of apartheid in the territory of South-West Africa, which South Africa administered under a League of Nations mandate. Because that story has been fully told elsewhere, I began my treatment with the Nicaragua judgment and the statement of the United States government in response thereto. To the extent that African countries in particular had avoided the Court after the 1966 dismissal of Ethiopia’s and Liberia’s contentious cases, the rehabilitation had already begun by the time of Nicaragua. Tunisia and Libya, as well as Burkina Faso and Mali, went to the Court shortly before the Nicaragua case or during its pendency, for delimitation of their maritime or land boundaries. After the mid-1980s, African states submitted still more cases by consent or brought them under other headings of the Court’s contentious jurisdiction, so that there is now a large number of such cases and an impressive record of resolution by the Court of intra-African disputes. The fact that the Court had an African President, Judge T.O. Elias, during the Nicaragua period may have contributed to the renewal of African interest in considering the Court as a potential forum for dispute settlement. African states may also have found in the Nicaragua case some signals that the Court was prepared to handle their cases in a manner responsive to the valid criticisms that had been made in the wake of dismissal of Ethiopia’s and Liberia’s cases against South Africa two decades earlier. Presumably, such a restoration of confidence would have to be sustained over time, as has apparently happened in view of the significant proportion of the Court’s docket attributable to intra-African disputes.

LJIL Symposium: From Nicaragua to R2P: Continuity and Change

[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.

LJIL Symposium: The Nicaragua Case: Its Impact

[John Dugard is Professor of Law at the Universities of Leiden and Pretoria and was a Member of International Law Commission from 1997 to 2011] My comments on the impact of the Nicaragua Case are directed mainly at the article by Lori Damrosch on the implications of the decision for the International Court of Justice and international adjudication. As Andre Nollkaemper will examine Marcelo Kohen’s piece on the subject of intervention and R2P I shall comment only briefly on this article. Humanitarian intervention has a dubious status in customary international law. Most international lawyers probably take the view that it is prohibited by Article 2(4) of the UN Charter. However, some international lawyers (including the present writer) take the view that it has sufficient support in state practice and treaty law (Article 4(h) of the African Union Constitutive Act) to at least keep it alive as a residual justification for intervention when the Security Council is prevented from acting because of the veto of a permanent member – a very real possibility as evidenced by the manner in which the United States, China and Russia have used their vetoes or threatened their veto in order to protect one of their friends or surrogates accused of systematic human rights violations. Marcelo Kohen is therefore unwise to reject humanitarian intervention completely and to argue that it has been ‘replaced’ by R2P. At best humanitarian intervention without Security Council support is an important residual right; at worst it constitutes recognition of the fact that certain interventions in order to protect human rights should be seen as ‘legitimate’ albeit ‘illegal’ (see Report of Independent International Commission on Kosovo (2005) 186; T Franck Recourse to Force: State Action against Threats and Armed Attacks (2002) 180, 184). Humanitarian intervention, according to the latter view, is to be seen as euthanasia is seen in domestic law: as an intervention that is illegal but as one that may be condoned or forgiven. In essence Lori Damrosch argues that the International Court of Justice has succeeded in becoming a ‘World Court’ since the Nicaragua Case in that it has been more widely used, particularly by developing nations, but that this ‘popularity’ has been at the expense of the United States which has become more critical of the Court. I agree with this assessment but in my view Lori has understated her case.