| II. | Substantive International Law - Second Part |
| 13. | INTERNATIONAL ECONOMIC LAW |
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Military and Paramilitary Activities
(Nicaragua/United States of America)
Merits. J. 27.6.1986
I.C.J. Reports 1986, p. 14
[pp. 125-126] As already noted, Nicaragua has also asserted that the
United States is responsible for an "indirect" form of intervention in
its internal affairs inasmuch as it has taken, to Nicaragua's disadvantage,
certain action of an economic nature. The Court's attention has been drawn in
particular to the cessation of economic aid in April 1981; the 90 per cent
reduction in the sugar quota for United States imports from Nicaragua in April
1981; and the trade embargo adopted on 1 May 1985. While admitting in principle
that some of these actions were not unlawful in themselves, counsel for
Nicaragua argued that these measures of economic constraint add up to a
systematic violation of the principle of non-intervention.
The Court does not here have to concern itself with possible breaches of
such international economic instruments as the General Agreement on Tariffs and
Trade, referred to in passing by counsel for Nicaragua; any such breaches would
appear to fall outside the Court's jurisdiction, particularly in view of the
effect of the multilateral treaty reservation, nor has Nicaragua seised the
Court of any complaint of such breaches. The question of the compatibility of
the actions complained of with the 1956 Treaty of Friendship, Commerce and
Navigation will be examined below, in the context of the Court's examination of
the provisions of that Treaty. At this point, the Court has merely to say that
it is unable to regard such action on the economic plane as is here complained
of as a breach of the customary-law principle of non-intervention.
[p. 138] A State is not bound to continue particular trade relations
longer than it sees fit to do so, in the absence of a treaty commitment or other
specific legal obligation; but where there exists such a commitment, of the kind
implied in a treaty of friendship and commerce, such an abrupt act of
termination of commercial intercourse as the general trade embargo of 1 May 1985
will normally constitute a violation of the obligation not to defeat the object
and purpose of the treaty. The 90 per cent cut in the sugar import quota of 23
September 1983 does not on the other hand seem to the Court to go so far as to
constitute an act calculated to defeat the object and purpose of the Treaty.
[pp. 252-253 D.O. Oda] I totally fail to understand what the Court
has attempted to contend in connection with the trade embargo ordered on 1 May
1985. From my point of view, the United States decision on a trade embargo quite
unlike that on laying of mines, is open to justification under Article XXI 1.
Trade is not a duty of a State under general international law but may only be a
duty imposed by a treaty to which that State is a party, and can be suspended
under certain circumstances expressly specified in that treaty. In fact, the
United States, when declaring a trade embargo on 1 May 1985, did not announce
its reliance on this particular provision of the Treaty, but, instead, gave
notice on the same day to terminate the Treaty. Even so, I am inclined to
maintain that, in principle, the trade assured by Article XIX, paragraph 3, of
the Treaty, could also justifiably have been suspended in reliance on another
provision, Article XXI, of the same Treaty.
"Laying mines" is totally different, in that it is illegal in the
absence of any justification recognized in international law, while Article XXI
of the Treaty, being simply one provision in a commercial treaty, can in no way
be interpreted to justify a State party in derogating from this principle of
general international law. I must add that this action did not meet the
conditions of necessity and proportionality that may be required as a minimum in
resort to the doctrine of self-defence under general and customary international
law. I thus conclude that, under the jurisdiction granted to the Court by
Article XXIV of the 1956 Treaty, the Court should have found the United States
responsible only for violation of Article XIX by laying mines in Nicaraguan
waters.
| 1 | Article XXI of the 1956 FCN Treaty. |
