LJIL Symposium: Discussion of the ICJ Nicaragua Judgment

[Dov Jacobs is an Assistant Professor of International Law at Leiden University]

This first part of the symposium will provide an opportunity to discuss some aspects of what is considered to be one of the key judgments of the ICJ, some 25 years after it was issued.

The two comments you will read today, from John Dugard and André Nollkaemper are in response to the following articles that are published in the Leiden Journal of International Law. These articles are part of a two issue symposium celebrating the 25 years since the Judgment. In Volume 25(1), the Journal published contributions by Lori Damrosch, Marcelo Kohen, but also Paul Reichler. In upcoming Volume 25(2), you will be able to read contributions by Judge Yusuf, James Crawford and Alain Pellet.

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

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.

The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, by Marcelo Kohen

This article focuses on the analysis by the International Court of Justice of the principle of non-intervention in domestic affairs in its judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua and contrasts it with the evolution of international law and practice in this field. It is proposed that the Court’s 1986 analysis not only remains of actuality today, but also constitutes a precursor to legal developments that have since taken place. This is particularly the case with regard to the relationship between the protection of human rights on the one hand and the safeguard of state sovereignty and the collective security regime on the other. The 1986 judgment helped to clarify the content of humanitarian assistance. It constituted the starting point for the development of this concept in a series of GA resolutions that were subsequently adopted. The controversial doctrine of ‘humanitarian intervention’, as well as state practice in violation of this principle, in no way led to modifying existing international law. Similarly, the new concept of ‘responsibility to protect’, which places emphasis on collective security and discounts unilateral action, has not led to the disappearance of the principle of non-intervention either.