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Published online by Cambridge University Press: 27 February 2017
A wise prince must rely on what is in his power and not on what is in the power of others.
Machiavelli
The International Court of Justice in Military and Paramilitary Activities in and against Nicaragua confronted a dilemma that paralleled in many ways the one confronted by the United States Supreme Court in the famous 1803 case of Marbury v. Madison. Each dispute confronted a young court that had not yet established its legitimacy; each court faced a powerful, recalcitrant defendant that challenged its right to decide the case; and each therefore seemed to face two equally unpalatable choices: avoiding the case and seeming to admit defeat, or resolving it only to have the judgment ignored. Either choice seemed to entail profound damage not only for the court as an institution but also for the legal system in which it operated.
1 5 U.S. (1 Cranch) 137 (1803).
2 Lachs, The Development and General Trends of International Law in Our Time, 169 Recueil des Cours 11, 253 (1980 IV).
3 Case of Certain Norwegian Loans (Fr. v. Nor.), 1957 ICJ Rep. 9 (Judgment of July 6).
4 Id. at 34 (Lauterpacht, J., sep. op.).
5 Statute of the International Court of Justice, 59 Stat. 1055 (1945), TS No. 993.
6 1957 ICJ Rep. at 39.
7 Id. at 66.
8 Interhandel Case (Switz. v. U.S.), 1959 ICJ Rep. 6 (Judgment of Mar. 21).
9 61 Stat. 1218(1947).
10 See generally Glennon, Nicaragua v. United States: Constitutionality of U.S. Modification of ICJ Jurisdiction, 79 AJIL 682 (1985).
11 Art 94(1) of the United Nations Charter, 59 Stat. 1031, TS No. 993, provides that “Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.”
12 See generally Franck, T., Judging the World Court (1986)Google Scholar.
13 See id. at 17–19.
14 The administration of President Theodore Roosevelt negotiated several treaties obliging the parties to use the Permanent Court of Arbitration to settle treaty disputes, but the Senate insisted that the President make further special agreements subject to Senate consent. Roosevelt withdrew the Senate-amended treaties, describing them as “nonsense.” “I wish either to take part in something that means something,” he said, “or else not to have any part in it at all.”
Id. at 18.
15 See Lachs, supra note 2, at 157.
16 See Glennon, United States Mutual Security Treaties: The Commitment Myth, 24 Colum. J. Transnat’l L. 201 (1986).
18 Art . XXI, para. 1(d), Treaty of Friendship, Commerce and Navigation, Jan. 21, 1956, U.S.-Nicar., 9 UST 449, 465, TIAS No. 4024, 367 UNTS 3.
18 These comments apply to the utility of the Judgment in the international arena. For an enforcement effort in a domestic tribunal, a holding would be essential. Ironically, while the International Court’s reliance upon customary international law rather than treaty law may not (from Nicaragua’s standpoint) have been the most desirable outcome internationally, it is useful for some domestic enforcement purposes. For example, the jurisdiction of the Court of Claims excludes claims deriving from treaties. See 28 U.S.C. §1491 (1982); Note, Jurisdiction of Cases Related to Treaties: The Claims Court Treaty Exception, 26 Va. J. Int’l L. 1 (1986).
19 Art. XXIV, para. 2 of the Treaty, supra note 17, 9 UST at 467.
20 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, 426, para. 77 (Judgment of Nov. 26).
21 Id.
22 Id., para. 78.
25 Rules of Court, Art. 38, ICJ Acts and Documents, No. 4 (1978).
24 See note 17 supra and accompanying text.
25 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (Judgment of May 24).
26 ICJ Statute, supra note 5, Art. 59.
27 The impetus for bifurcated proceedings was provided by Barcelona Traction, Light & Power Co., Ltd. (New Application), 1970 ICJ Rep. 4 (Judgment of Feb. 5), in which the Court required the parties to plead the merits and then decided the case on the basis of a preliminary objection. The Court was criticized for imposing an unnecessary and expensive procedure.
28 1984 ICJ Rep. at 425.
29 Rules, supra note 23, Art. 79, para. 7