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.

Dugard then turns to my observations on the impact of the Nicaragua case on attitudes of the United States concerning international dispute settlement, not only toward the ICJ but also as regards international tribunals more generally. Since my article was mainly focused on the ICJ, with secondary observations relating to other interstate dispute settlement institutions, I did not address the International Criminal Court, which has been established to prosecute and punish individuals rather than to resolve disputes between states. I do agree with Dugard, however, that US skepticism about the ICC is part of the same trend discussed in my article. Indeed, opponents of the ICC in the United States frequently allege that the Nicaragua case is one among various indications that international tribunals cannot be assumed to apply their specific terms of reference fairly and correctly in cases involving the United States. For those who share this view, concerns arising from Nicaragua might arguably be transferable from the ICJ to the ICC, inter alia because most of the jurisdictional provisions of the ICC under the Rome Statute involve military or paramilitary conduct, and also because the Nicaragua judgment included rulings on the international law of the use of force (in both its jus ad bellum and jus in bello aspects) that might serve as precedents for ICC decisions. I personally believe that concerns in the United States about the ICC are vastly overstated. In March 2009, an independent task force convened by the American Society of International Law concluded in a balanced assessment that the ICC complies with international norms of fundamental fairness. There is, however, no denying that Nicaragua’s after-effects continue to be felt in the public debate over what the US stance should be on the many important policy questions concerning involvement in (or distance from) ICC processes.

Dugard next criticizes the United States for having “sabotaged” the ICJ advisory opinion on the Wall in the Occupied Palestinian Territory and having “single-handedly obstructed compliance” with that opinion. His views on that matter are well-known, but to address them adequately would take us far afield from the themes of the symposium. In the aspect of my contribution relevant to compliance with the Court’s rulings, I identified certain post-Nicaragua compliance problems involving provisional measures and final judgments in contentious cases; I alluded to but did not attempt to investigate corresponding questions for advisory opinions (p. 137, 143, 145-146). For various reasons — including their advisory rather than binding character, the fact that the advice is given to UN organs rather than directly to states, and the different ways in which the dispositive paragraphs of advisory “opinions” as contrasted to “judgments” may be formulated — evaluating compliance with advisory opinions may entail a rather different kind of inquiry than is the case for compliance with decisions in contentious cases.

Finally, Dugard refers to my doubts about whether the series of post-Nicaragua cases involving use of force has contributed to stable resolution of the underlying situations. He misinterprets my view as “reflect[ing] the US position that the ICJ should not pronounce on contentious political issues.” My contribution to the symposium was of course made in personal capacity, and Dugard’s paraphrase is not my view. Whatever may have been the litigation positions of the US government before, during, or after Nicaragua on whether the Court should avoid or address certain “political” matters, I did not suggest that the Court should adopt some version of a “political question” doctrine, in the sense of refraining from deciding legal questions otherwise properly falling within its jurisdiction merely because of the political context in which they arise. My point (which I did not develop at the symposium, since use of force issues were being dealt with by other panelists, some of whom have published their papers in this issue, or will do so in a forthcoming issue, of the Leiden Journal of International Law) was only that there is little basis to infer from the indicated cases that either their initiation or their eventual disposition has significantly advanced the cause of peaceful settlement of the particular disputes. There may have been other benefits (to the initiators or to the system) of these litigation strategies, but the conflicts themselves had to be (or in several cases still have to be) resolved through nonjudicial means.