The decision in the Nicaragua case is one of the most important judgments ever delivered by the International Court. It is by far the “heaviest” case, in the parlance of the English barrister, ever decided by the Court in the absence of a party. It has broken new ground for the application of Article 53 of the Statute. It deals in detail with the multilateral treaty reservation of the United States (the “Vandenberg amendment”). It contains provocative reasoning about the genesis and maintenance of rules of customary international law, separate from treaties such as the United Nations Charter. It contains seminal findings on the use of force and the exercise of the inherent right of self-defense under Article 51 of the Charter. It presents fresh and doubtless controversial interpretations of the principle of nonintervention. It prescribes limits to “collective counter-measures” in response to conduct not deemed to amount to “armed attacks.”

The refusal of the United States to consider itself bound by the recent decision in the Case Concerning Military and Paramilitary Activities in and against Nicaragua, coupled with the earlier termination of its adherence to Article 36(2) of the Statute of the International Court of Justice, has sparked a small storm of controversy and concern. Part of this concern involves how the United States, presumably a law-abiding and law-respecting nation, could possibly bring itself to snub the International Court of Justice and, by extension, the ideal of international law. Another part of this concern involves the likely consequences of the United States move on the vitality of the Court as the focal institution of a slowly evolving system of international law. A less obvious concern, but arguably one of paramount importance, calls into question the wisdom of insisting that the ICJ retain its optional compulsory jurisdiction. It is this less obvious concern that we propose to discuss here.

The ultimate authority of the International Court of Justice flows from the same source as the ultimate authority of all other judicial bodies. Every court’s decisions are an authoritative source of law in a realistic sense only because they are accepted as such by the community whose controversies the court is charged to resolve. In the case of the World Court, it is the community of nations that confers that authority and under the Court’s Statute, its jurisdiction is conferred solely by the consent of the nations whose disputes it is called to adjudicate. It is for this reason that the case Nicaragua v. United States and the actions of both the Court and the United States Government in connection with it are of special importance to those who are concerned with international law.

The Judgment of June 27, 1986 of the International Court of Justice provides convincing evidence of the high judicial quality of the Court and its Members. The really exceptional wealth of legal issues considered, carefully weighed and balanced, and decided in this case will long be a source of study for international lawyers. The present summary observations can examine only selected issues.

The only significant point of disagreement this author might have with the June 27, 1986 decision on the merits by the International Court of Justice in the case of Nicaragua v. United States of America concerns its failure to hold the United States Government fully responsible for the violations of the laws and customs of warfare committed by the contra forces in Nicaragua. The Court carefully premised this result on the finding that it had insufficient evidence to reach a definitive conclusion on such a delicate matter. Nevertheless, the Court held it established that the U.S. Government largely financed, trained, equipped, armed and organized the contras. Somewhat questionably, in the Court’s estimation, it remained to be proven that the Reagan administration actually exercised operational control over the contra forces.

In the merits phase of decision in the case brought by Nicaragua against the United States, the World Court briefly mentions references by states or publicists to the concept of jus cogens. These expressions are used to buttress the Court’s conclusion that the principle prohibiting the use of force found in Article 2(4) of the United Nations Charter is also a rule of customary international law.

Central to the World Court’s mission is the determination of international custom “as evidence of a general practice accepted as law.” Students of the Court’s jurisprudence have long been aware that the Court has been better at applying customary law than defining it. Yet until Nicaragua v. United States, little harm was done. For in the sharply contested cases prior to Nicaragua, the Court managed to elicit commonalities in argumentative structure that gravitated its rulings toward the customary norms implicit in state practice. The Court’s lack of theoretical explicitness simply meant that a career opportunity arose for some observers like me to attempt to supply the missing theory of custom.

Even if conceived of only as a legal text, the array of judicial opinions contained in Nicaragua v. United States constitutes an extraordinary document. It represents a fascinating attempt through judicial inquiry to assess convincingly the relevance of law to an ongoing armed conflict. As such, despite procedural objection to entry upon this terrain by the three dissenting judges, it leads the Court to pronounce specifically upon the core issue of when force can permissibly be used in international relations, as well as the contours of a claimed right of collective self-defense in the setting of interventions and civil strife.

As a recurring feature of the Cold War that has dominated international relations for the past four decades, foreign intervention in civil armed conflicts has focused and inflamed scholarly debate over the content of the relevant legal restraints. Conflict has raged particularly around the following issues: First, what forms and degree of assistance to rebels constitute an armed attack within the meaning of Article 51 of the Charter authorizing individual and collective self-defense? Second, in cases where assistance does not reach the armed attack threshold, are there any circumstances in which the target state and/or its allies may nevertheless use forceful measures to terminate it?

The decision of the International Court of Justice in the case between Nicaragua and the United States brims with important procedural and substantive implications for the future of law and adjudication in disputes between states.

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.

The Nicaragua case raises anew long-unresolved questions about the circumstances in which the Court may or should decline to exercise its jurisdiction. It is far from self-evident, of course, that in the absence of a specific grant of discretionary authority the Court is entitled to abstain from judging the merits of a contentious case, once it is satisfied that its jurisdiction has been established. Its judgments, however, and some supportive scholarly writings, suggest variously that discretionary authority is inherent in the Court as a judicial institution; that it is to be inferred from language contained in Articles 36 and 38 of the Statute; that it is implicit in the nature of international law or the remedies available to the Court to fashion relief for violations of it; or that unless otherwise indicated it should be deemed implicit in, even coextensive with, express grants of jurisdiction. In this brief survey, I will suggest that as a general rule the discretionary authority of the Court derives principally from the political community’s tacit acceptance of the Court’s assertions of discretion; that this validation is ambiguous and tenuous, at best; and that it is in the institutional best interests of the Court to justify its exercise of discretion, in each instance, in a more candidly principled way than it has done in the past.

The most important single consequence of Nicaragua v. United States of America may well turn out to be its impact on the vitality of the law of the United Nations Charter governing force and self-defense. Will the case make it more likely, or less, that that law will become an increasingly effective working part of the international system?

The Military and Paramilitary Activities case deepens the gloom already surrounding the two forms of the International Court’s compulsory jurisdiction. Neither Article 36(2) of the ICJ Statute, which confers general compulsory jurisdiction upon the Court in cases of reciprocal state declarations, nor that part of Article 36(1) which vests jurisdiction when treaties so provide has been particularly successful in recent practice. No one denies that the ICJ has served a useful, if occasional, role when it has heard and decided cases voluntarily submitted by then-willing states pursuant to the specially conferred provision of Article 36(1). What is in question is the utility of the all too many recent cases where the Court has taken jurisdiction pursuant to the compulsory provisions of its Statute and then has been, to one degree or another, disregarded.

Every student who has ever taken a traditional international law course has learned Manley Hudson’s four elements for the emergence of a rule of customary international law:

1. (a) concordant practice by a number of States with reference to a type of situation falling within the domain of international relations;

2. (b) continuation or repetition of the practice over a considerable period of time;

3. (c) conception that the practice is required by, or consistent with, prevailing international law; and

4. (d) general acquiescence in the practice by other States.

For all their greatness, democracies historically have difficulty in perceiving and deterring totalitarian aggression. William Stevenson reminds us in A Man Called Intrepid that debate raged within the United States as to whether we should enter World War II on the side of England even after the rest of Europe had fallen to the Nazis. The American ambassador to England cautioned against such entry, arguing that England was militarily doomed. President Roosevelt, who had months earlier secretly committed U.S. intelligence assets to British support, felt that he did not have the necessary popular support to enter the war. And the British were so concerned about American indecisiveness that even after Pearl Harbor they executed a covert operation to persuade Hitler to declare war on the United States, which, of course, he did before America entered the war against Germany.

The opinion of the International Court of Justice in the Nicaragua case will be of interest primarily because of its general pronouncements on questions of international law. Its impact on the immediate controversy appears slight; the United States Government has strongly indicated its view that the Court lacked jurisdiction over the controversy, has vetoed subsequent proposed Security Council resolutions on the subject, and is appropriating additional funds for the contested activities, without apparent reference to the Court’s decision. This Comment is limited to the general theoretical and legal issues and will not treat the underlying factual issues, the Court’s disposition of the immediate case or the implications of the opinion for the evolution of the dispute.

In the wake of the 1984 Judgment of the International Court on jurisdiction and admissibility issues in the Nicaragua case, the United States reviewed the utility and desirability of continued participation in the optional jurisdictional regime established by Article 36(2) of the Statute of the International Court of Justice. The Executive concluded essentially that the experiment initiated by the regime neither had succeeded nor was likely to succeed in the future; that its subscription was ragged and asymmetrical in terms of world politics; that the Court, the custodian of this mode of jurisdiction, had adopted new theories of interpretation that were inconsistent, in the U.S. view, with the thrust of the provision; that the Court itself had changed; and that, in sum, continued United States participation would discriminate against United States interests while contributing nothing to world order. Accordingly, on October 7, 1985, the Secretary of State informed the Secretary-General of the United Nations that the United States was terminating, in accord with the terms of its Declaration and the provisions of the Statute, its adherence to the optional regime under Article 36(2) of the ICJ Statute.

This essay examines the discussion of human rights and domestic jurisdiction by the International Court of Justice in the Nicaragua case. Independently of the final verdict about the lawfulness of U.S. help to the contras under principles of either self-defense or humanitarian intervention, the Court’s views on the relationship among human rights, domestic jurisdiction and intervention are wrong in law. Furthermore, the philosophical assumptions of the Judgment are profoundly disturbing. For the reasons set forth below, I submit that the Court’s approach embodies a backward view of international law and justice that was totally unnecessary to the resolution of the case.