Léo Matarasso
in Peuples/Popoli/Peoples/Pueblos n.ro 8 (octobre 1986)
The International Court of Justice (ICJ), sitting in The Hague, handed down its judgement in the case of Nicaragua vs. The United States on 27 June this year. The Court ruled against the defendant in a powerfully substantiated 143-page judgement resulting in a 16-point decision. Most of these points were approved by an 11-4 majority, some, indeed by 12-3 or oven 14-1.
The main difficulty encountered by the Court, sprang from the fact that Nicaragua had rested its claims on violation by the United States of obligations embodied in the Charter of the United Nations and that of the Organization of American States. In its submission to the Jurisdiction of ICJ, however, the United States had argued that such jurisdiction did not extend to disputes arising out of multilateral treaties, i.e. the Charter of the United Nations and the Organization of American States in tills case.
The Court first held that it had jurisdiction without, going into the merits of the case.1
Turning next to the merits, the Court conceded that the text on which Nicaragua based its claims were indeed multilateral treaties, but ruled that nothing prevented it from applying other sources of law, particularly international customary law.
The Court’s decision is essentially based on certain fundamental principles of customary law, such as the principle of non-intervention in the domestic affairs of a sovereign State, and the principle that there should be no resort, to force as a means of settling international disputes. Little importance should be attached to the fact that these principles have been adopted and set out in detail in multilateral treaties. They nevertheless conserve their standing as fundamental principles and can be found in customary sources of international law.
These are the principles the United States has violated, for example, by training, equipping, financing and providing supplier, for the armed forces known as the “Contras”, by attacking Nicaragua’s ports or laying, mines in its waters, etc.
The Court also ruled that the United States in under an obligation to compensate the Republic of Nicaragua for the harm caused by these violations. It did not place a figure on this reparation, reserving its judgement, on this score for the subsequent stages of the action.
The praiseworthy feature of this decision is its clear illustration of the notion that certain fundamental legal principles are, as prof. Monique Chemillier-Gendreau has strongly emphasised, “uncircumventable”.2
One must nevertheless be on one’s guard against the tendency to see in this ICJ decision an audacious interpretation of international law. The judgement is couched in moderate terms. Its strength justly lies in its conformity to the most classic concepts of the law of Nations. This makes it hard to contest. It also explains the relative silence with which it has been greeted by certain sections of the media.
By the same token, its conformity to the law of Nations makes this decision a moral and political victory for the people of Nicaragua.
1 see Rodolfo Mattarollo “Nicaragua’s suit against. Washington before the Court of the Hague”, Le Monde Diplomatique, July 1985.
2 see the important article by Prof. Monique Chemillier-Gendreau “How the Court of the Hague has condemned the United States for its actions in Central America”, Le Monde Diplomatique, August 1986.