In the case of Nicaragua v. United States of America, concerning military and paramilitary activities against Nicaragua, the Court had first to make a judgement on its jurisdiction. On November 26, 1984, the United States Government has invoked a number of reasons for trying to escape international justice.
We know that the submission to the procedure before the Court and to its decision’s rests for each State on a voluntary act. This approach commits the State which engages itself to accept the jurisdiction of the Court in any lawsuit with another State having acted in the same way. But each State may accompany certain reservations with its declaration of acceptance of the jurisdiction. Thus, the United States of America had stated that it excluded from the jurisdiction of the Court “disputes arising from a multilateral treaty, unless all the parties to the treaty which the decision concerns also were parties to the case submitted to the courtyard”.
Nicaragua, in its Application, relied on the violation by the United States of America of obligations contained in both the Charter of the United Nations and the Charter of the Organization of American States (OAS), two texts which are multilateral treaties. But other Central American states could be considered as concerned by the decision. The United States of America therefore argued in the first part of the case that the Court lacked jurisdiction.
These pleadings were an opportunity for them to give their arguments: incompetence of the Court since the law applicable according to the applicant’s own request was withdrawn from the field of jurisdiction by the American reserve. Incompetence also, because the problems of the use of force and of collective self-defense have political and military aspects that fall outside the jurisdiction of a court. By carefully reserving all substantive issues, the Court in 1984 rejected these arguments and positively decided the question of its jurisdiction.
The judgement rendered on the merits and motivated in one hundred and forty-two pages, is a perilous and rather fascinating exercise of balance and cautious subtlety. The operative part has sixteen points, decided by eleven votes to four, or for the most part twelve to three or fourteen to one. In its drafting, it reflects the difficult but not impossible coherence of a Court formed of jurists as diverse in their cultures, their temperaments, their formations, their ideologies. The result is a clear condemnation of U.S. actions in Central America.
The Court recognises that El Salvador is a State concerned which could be “affected” by the decision but is not a party to the case. It therefore admits the application of the American reserve, but it does so strictly. This reservation prevents it, of course, from basing its decision on the Charter of the United Nations or that of the OAU. But this does not prevent it from using other sources of law: customary international law and general imperative law (jus cogens). Strongly rooted socially, these sources of law, unaccompanied by the formalism by which treaties express the will of the States, are of an authenticity guaranteed by other factors of acceptance, tacit factors that it belongs to the judge to identify.
It is on the basis of this law that the Court has condemned the (multiple) violations committed by the United States of America against international legality: “violations of the principles of non-intervention, non-use of force and sovereignty of another State, by training, arming, equipping, financing and supplying the Contras; attacking Puerto Sandino, Corinto, Potosí, San Juan del Sur; by flying over the territory of Nicaragua, laying mines in the internal or territorial waters of Nicaragua”, “encouragement to commit acts contrary to the general principles of humanitarian law, producing in 1983 a manual entitled Psychological Operations in Guerrilla Warfare”.
If the phrase of June 27, 1986, with few exceptions, did not have all the echoes it deserves in the mainstream press, it is because the United States Government, its allies and all ideological apparatus that serves them are sought after by this judgement and want to downplay the scope for two reasons. On the one hand, it reveals that certain fundamental legal principles are unavoidable; on the other hand, in the contemporary ideological confusion and the war of information, the Court appears by this decision as the indispensable organ of objectivation of the situations because it operates the necessary qualifications of the facts.
The United States of America, failing in the proceedings on the merits, had thought that it could guarantee itself against any application of the law which was condemned to have been sustained, initially, the Court’s incompetence for various reasons, among those who been applying their reserve. But they claimed to be yet another source of the law was not applicable by the Hague jurisdiction to this dispute because, in matters of recourse to armed force (and this is what it is about “the relevant provisions of the United Nations Charter summarize and supersede the principles of general and customary international law in this field”).
The evasion of the greatest world power before the application of the law is consumed. This terrible disregard of the basic text that underpins contemporary international society: the United Nations Charter, and the desire to extend this exclusion to the whole of international law, are in line with the change in the attitude of States with regard to the United Nations system, illustrated in particular by their withdrawal from UNESCO.
Allergic to the international legality, products of a democratic mechanism in which all the States of the world participate, the United States of America knows that there will not be an honest jurist to justify their actions in Central America by maintaining that Nicaragua, a small a country of three million inhabitants, economically weak, military threatens the American giant. And they are choosing, through a procedural mechanism, to paralyse the application of fundamental texts.
The Court accepts the paralysis imposed, but demonstrates its vitality and the vitality of the law by refusing to extend this paralysis to other sources of international law. And, in doing so, it opens a small skylight on hope. For, under the neutral terms of the jurists’ memoirs, the American arguments led to the end of hope: if the Court cannot rely on the Charter, it cannot rely on any other rule of law, and if it cannot entertain grievances relating to the unlawful use of armed force (because these grievances are the sole responsibility of other bodies, that is to say the Security Council, where the crippling virus is called a veto), then, when the force of arms sets out, there is no room for the law.
The judgement of June 27, 1986 refuses that. Law is the social institution whose purpose, when not deviated, is to regulate, limit or even eliminate the use of force. As a result, the years of debate within the specialised committees are not entirely useless in order to build up international law in stone, to determine how the commitment of States is expressed, to refine the principle of good faith, to give a definition of aggression, build a humanitarian law.
Principles as fundamental as the respect of the sovereignty of a State, the prohibition of the use of the force (except case of self-defense carefully identified), the prohibition of the intervention in the affairs of a State, the inviolability of the territory, were all constructed as norms of international law by the will of the States expressed not only in the form of certain treaties duly signed and ratified, but also by adherence to an international custom: the result of State attitudes (precedents) accompanied by acceptance of the norm (opinio juris).
The affirmation of the existence of this custom in the recent judgement clarifies the question of voluntarism for the greater good of international law. It is true, and it cannot be otherwise, that international law is the result of the will of States; but there can be no confusion between the will of the State, the mature fruit of social consciousness, and the caprices of a changing political will, the excess of voluntarism which would reduce international law to almost nothing. What the deep will of the people of the United States of America has forged over decades, and in agreement with other peoples, as the basic norms of the democratic functioning of international society, the current United States Government cannot remove it by playing a reserve.
Finally, it is interesting to find in the writings of international judges the remark that “while the United States of America can certainly make its own assessment of the human rights situation in Nicaragua, the use of force cannot be the appropriate method for verifying and ensuring compliance with these rights”. And to respond to the United States of America, which sees the excessive militarisation of Nicaragua as proof of its aggressive aims, the Court retorts that “it is irrelevant and useless to take a position on this allegation that there are no rules in international law other than those which the State concerned may accept, by treaty or otherwise, imposing the limitation of the level of armaments of a sovereign State, this principle being valid for all States without distinction”.