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The International Court of Justice Lives up to its Name

Published online by Cambridge University Press:  27 February 2017

Herbert W. Briggs
Herbert W. Briggs*
Affiliation:
Cornell University
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Extract

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.

Type
Appraisals of the ICJ’s Decision: Nicaragua v. United States (Merits)
Information
American Journal of International Law , Volume 81 , Issue 1 , January 1987 , pp. 78 - 86
Copyright
Copyright © American Society of International Law 1987

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References

1 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27).

2 Id. at 146–49, para. 292.

3 Id. at 146.

4 Id. at 149.

5 Id.

6 Id. at 33–34, para. 46.

7 Id. at 33, para. 45.

8 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, 421–26, paras. 67–76 (Judgment of Nov. 26).

9 Id. at 425, para. 75.

10 1986 ICJ Rep. at 31–38, paras. 42-56.

11 One can only speculate on whether Members of the Court were bemused by the logical trap that Judge Sir Hersch Lauterpacht constructed in Interhandel: if the Connally domestic jurisdiction reservation was incompatible with the Statute of the Court, he wrote, then the U.S. Declaration of which it was a part was invalid; it was not separable “so as to remove from the Declaration the vitiating element of inconsistency with the Statute and of the absence of a legal obligation.” Interhandel Case, 1959 ICJ Rep. 6, 101 (Judgment of Mar. 21) (Lauterpacht, J., dissenting). While this view has been followed by a number of international lawyers and is one way of looking at the problem, it may be regarded as excessive to impugn the good faith of a state that solemnly declares itself willing to accept the jurisdiction of the Court in all legal disputes on the interpretation of a treaty and on any question of international law merely because the Declaration may include reservations that the Court, in the exercise of its statutory function to determine the jurisdictional law, may excise as incompatible with the Statute.

12 Department Statement, Dep’t St. Bull., No. 2096, March 1985, at 64, reprinted in 24 ILM 246 (1985).

13 1986 ICJ Rep. at 24, para.

14. Id., para. 28.

15 Cf, e.g., Dissenting Opinion of Judge Gros in Nuclear Tests (Austl. v. Fr.), Interim Protection, 1973 ICJ Rep. 99, 118 (Order of June 22).

16 See also the “brief” for the United States position prepared by John Norton Moore and published in this Journal under the ambiguous title The Secret War in Central America and the Future of World Order. 80 AJIL 43 (1986).

17 See the enlightening treatment of evidence and the Court by Keith Highet, Evidence, the Court, and the Nicaragua Case, supra p. 1.

18 1986 ICJ Rep. at 92, para. 172.

19 Id. at 93, para. 173 (quoted by Court).

20 Id., para. 174 (quoting the 1984 Judgment).

21 1986 ICJ Rep. at 96, para. 179.

22 Id. at 97, para. 182.

23 Id. at 72, para. 131.

24 Id. at 22, para. 24.

25 Id. at 28, para. 35.

26 Id. at 103, para. 195. This holding, which was fatal to assertions on behalf of the United States, also contradicts the slippery concept of collective self-defense developed in Mcdougal, M. & Feliciano, F., Law and Minimum World Public Order 232 ff. (1961)Google Scholar, which gained a certain vogue until presented by the United States in this case.

27 1986 ICJ Rep. at 122, para. 237.

28 Id. at 123, para. 238.

29 Id. at 103–04, para. 195.

30 Id. at 104, para. 195.

31 Cf. id. at 120–22, paras. 233–36.

32 Id. at 108, para. 205.

33 Id. at 108–10, paras. 207–09.

34 Id. at 109, para. 207.

35 Id., para. 209.

36 Rowles, “Secret Wars,” Self-Defense and the Charter—A Reply to Professor Moore, 80 AJIL 568, 580 (1986).

37 The contemptible attack on “Warsaw Pact” judges on the Court by the White House and the State Department overlooks the Statute of the Court and politicizes the functions of a judge. In fact, moreover, no Soviet judge sat in the case here discussed; and any international court applying international law would be fortunate to have on the bench a judge of the learning, fairness and legal experience exemplified by Judge Manfred Lachs of Poland. Cf. his dignified concurring opinion in this case and his letter of July 10, 1986 to the New York Times.

38 1984 ICJ Rep. at 437, para. 101.