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.

Surprisingly Lori Damrosch fails to mention the judgment of the International Court in the South West Africa Cases of 1966 (1966 ICJ Reports 6). The decision of the Court in this case that Ethiopia and Liberia lacked the necessary standing to challenge the policy of apartheid as applied in South West Africa/Namibia was hailed as racist, Eurocentric and colonialist by the developing world. As a result of this decision the International Court was in effect ‘boycotted’ by African and Asian states. Neither the 1971 advisory opinion of the Court in the Namibia Case (1971 ICJ Reports 16) nor the famous obiter dictum of the Court in Barcelona Traction (1970 ICJ Reports 3 at 32) on obligations erga omnes succeeded in rehabilitating the Court. This explains why the Court had so few cases in the seventies and early eighties. It was the decision of the Court in the Nicaragua Case which showed that the Court was prepared to rule against a major Western Power in favour of a developing nation on the merits and not to escape so doing by upholding preliminary objections to jurisdiction or standing that in effect rehabilitated the Court.

Since 1986 the International Court has considered a wide range of issues in cases between states from all regions. African and Asian states in particular have shown a new confidence in the Court. Today the Court can claim to be a ‘World Court’. Even the Russian Federation, which in a previous life as the USSR for ideological reasons refused to accept the Court as a forum for the settlement of disputes, has shown a willingness to appear before the Court. Witness its submissions before the Court in the advisory proceedings on Kosovo and its appearance before the Court in the case brought against it by Georgia.

Lori Damrosch rightly argues that Nicaragua has had a negative effect on the United States. She acknowledges that Nicaragua has ‘powerfully affected every subsequent decision involving the United States position towards dispute settlement’ (p 147). In support of this conclusion she cites the 2005 repudiation of the Protocol to the Vienna Convention on Consular Relations in the wake of Avena and the reluctance to ratify the Law of the Sea Convention because of its dispute settlements procedures. She might have added the refusal of the United States to become a party to the International Criminal Court and the manner in which the United States has sabotaged the advisory opinion of the International Court in the Wall (2004 ICJ Reports 136). In the latter case the United States has single-handedly obstructed compliance with an Opinion unfavourable to Israel by the Quartet and the Security Council. (See J Dugard ‘Advisory Opinions and the Secretary-General with Special Reference to the 2004 Advisory Opinion on the Wall’ in L Boisson de Chazournes and M Kohen (eds) International Law and the Quest for its Implementation: Liber Amicorum Vera Gowlland-Debbas (2010) 403.)

Nicaragua has marked a turning point for the International Court. A point which saw the Court become a ‘World Court’, but at the same time one which saw the most powerful state in the world, and one which had hitherto looked favourably upon the Court as an institution for the settlement of disputes, turn its back upon the Court.

Finally Lori expresses doubts about the wisdom of allowing the ICJ to adjudicate on issues affecting the vital interests of states. She expresses doubts as to whether litigation involving disputes about genocide in the former Yugoslavia, intervention in the DRC or Georgia or the construction of the Wall in Palestine ‘has contributed to stable resolution of the underlying situations’ (p 143). Again, this reflects the US position that the ICJ should not pronounce on contentious political issues. But the United States is out of step with the Rest of the World on this subject. The creation of the ICC means that the leaders of states may be held individually responsible for serious violations of international law. There is therefore no reason why states should not likewise be held responsible (albeit it not criminally) for serious, systematic violations of international law. The establishment of the ICC sends out a clear message that the vital interests of states are not beyond scrutiny by international courts. This was also the message of Nicaragua.