|III. ||The International Court of Justice|
|2. ||THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE|
|2.3. ||The Optional Clause|
Military and Paramilitary Activities
(Nicaragua/United States of America)
Merits. J. 27.6.1986
I.C.J. Reports 1986, p. 14
Cf. also: Preliminary Objections, infra III, 3.5.
[pp. 32-34] The reservation in question is not necessarily a bar to
the United States accepting the Court's jurisdiction whenever a third State
which may be affected by the decision is not a party to the proceedings.
According to the actual text of the reservation, the United States can always
disregard this fact if it "specially agrees to jurisdiction". Besides,
apart from this possibility, as the Court recently observed: "in principle
a State may validly waive an objection to jurisdiction which it might otherwise
have been entitled to raise" (I.C.J. Reports 1985, p. 216, para.
43). But it is clear that the fact that the United States, having refused to
participate at the merits stage, did not have an opportunity to press again at
that stage the argument which, in the jurisdictional phase, it founded on its
multilateral treaty reservation cannot be tantamount to a waiver of the argument
drawn from the reservation. Unless unequivocally waived, the reservation
constitutes a limitation on the extent of the jurisdiction voluntarily accepted
by the United States and, as the Court observed in the Aegean Sea
Continental Shelf case,
"It would not discharge its duty under Article 53 of the Statute if it
were to leave out of its consideration a reservation, the invocation of which by
the Respondent was properly brought to its notice earlier in the proceedings."
(I.C.J. Reports 1978, p. 20, para. 47.)
The United States has not in the present phase submitted to the Court any
arguments whatever, either on the merits proper or on the question - not
exclusively preliminary - of the multilateral treaty reservation. The Court
cannot therefore consider that the United States has waived the reservation or
no longer ascribes to it the scope which the United States attributed to it when
last stating its position on this matter before the Court. This conclusion is
the more decisive inasmuch as a respondent's non-participation requires the
Court, as stated for example in the Fisheries Jurisdiction cases, to
exercise "particular circumspection and ... special care" (I.C.J.
Reports 1974, p. 10, para. l7, and p. 181, para. 18).
It has also been suggested that the United States may have waived the
multilateral treaty reservation by its conduct of its case at the jurisdictional
stage, or more generally by asserting collective self-defence in accordance with
the United Nations Charter as justification for its activities vis-à-vis
Nicaragua. There is no doubt that the United States, during its participation in
the proceedings, insisted that the law applicable to the dispute was to be found
in multilateral treaties, particularly the United Nations Charter and the
Charter of the Organization of American States; indeed, it went so far as to
contend that such treaties supervene and subsume customary law on the subject.
It is however one thing for a State to advance a contention that the law
applicable to a given dispute derives from a specified source; it is quite
another for that State to consent to the Court's having jurisdiction to
entertain that dispute, and thus to apply that law to the dispute. The whole
purpose of the United States argument as to the applicability of the United
Nations and Organization of American States Charters was to convince the Court
that the present dispute is one "arising under" those treaties, and
hence one which is excluded from jurisdiction by the multilateral treaty
reservation in the United States declaration of acceptance of jurisdiction. It
is impossible to interpret the attitude of the United States as consenting to
the Court's applying multilateral treaty law to resolve the dispute, when what
the United States was arguing was that, for the very reason that the dispute "arises
under" multilateral treaties, no consent to its determination by the Court
has ever been given. The Court was fully aware, when it gave its 1984 Judgment,
that the United States regarded the law of the two Charters as applicable to the
dispute; it did not then regard that approach as a waiver, nor can it do so now.
[pp. 36-38] It could be argued that the Court, if it found that the
situation does not permit the exercise by El Salvador of its right of
self-defence, would not be "affecting" that right itself but the
application of it by El Salvador in the circumstances of the present case.
However, it should be recalled that the condition of the application of the
multilateral treaty reservation is not that the "right" of a State be
affected, but that the State itself be "affected" - a broader
criterion. Furthermore whether the relations between Nicaragua and El Salvador
can be qualified as relations between an attacker State and a victim State which
is exercising its right of self-defence, would appear to be a question in
dispute between those two States. But El Salvador has not submitted this dispute
to the Court; it therefore has a right to have the Court refrain from ruling
upon a dispute which it has not submitted to it. Thus, the decision of the Court
in this case would affect this right of El Salvador and consequently this State
Nor is it only in the case of a decision of the Court rejecting the United
States claim to be acting in self-defence that El Salvador would be "affected"
by the decision. The multilateral treaty reservation does not require, as a
condition for the exclusion of a dispute from the jurisdiction of the Court,
that a State party to the relevant treaty be "adversely" or "prejudicially"
affected by the decision, even though this is clearly the case primarily in
view. In other situations in which the position of a State not before the Court
is under consideration (cf. Monetary Gold Removed from Rome in 1943, I.C.J.
Reports 1954, p. 32; Continental Shelf (Libyan Arab Jamahiriya/Malta),
Application to Intervene, Judgment, I.C.J. Reports 1984, p. 20, para. 31) it
is clearly impossible to argue that that State may be differently treated if the
Court's decision will not necessarily be adverse to the interests of the absent
State, but could be favourable to those interests. The multilateral treaty
reservation bars any decision that would "affect" a third State party
to the relevant treaty. Here also, it is not necessary to determine whether the
decision will "affect" that State unfavourably or otherwise; the
condition of the reservation is met if the State will necessarily be "affected",
in one way or the other.
There may of course be circumstances in which the Court, having examined the
merits of the case, concludes that no third State could be "affected"
by the decision: for example, as pointed out in the 1984 Judgment, if the
relevant claim is rejected on the facts (I.C.J. Reports 1984, p. 425,
para. 75). If the Court were to conclude in the present case, for example, that
the evidence was not sufficient for a finding that the United States had used
force against Nicaragua, the question of justification on the grounds of
self-defence would not arise, and there would be no possibility of El Salvador
being "affected" by the decision. In 1984 the Court could not, on the
material available to it, exclude the possibility of such a finding being
reached after fuller study of the case, and could not therefore conclude at once
that El Salvador would necessarily be "affected" by the eventual
decision. It was thus this possibility which prevented the objection based on
the reservation from having an exclusively preliminary character.
There remains the claim of Nicaragua that the United States has intervened
in the internal and external affairs of Nicaragua in violation of Article 18 of
the Organization of American States Charter. That Article provides:
"No State or group of States has the right to intervene, directly or
indirectly, for any reason whatever, in the internal or external affairs of any
other State. The foregoing principle prohibits not only armed force but also any
other form of interference or attempted threat against the personality of the
State or against its political, economic, and cultural elements."
The potential link, recognized by this text, between intervention and the
use of armed force, is actual in the present case, where the same activities
attributed to the United States are complained of under both counts, and the
response of the United States is the same to each complaint - that it has acted
in self-defence. The Court has to consider what would be the impact, for the
States identified by the United States as likely to be "affected", of
a decision whereby the Court would decline to rule on the alleged violation of
Article 2l of the Organization of American States Charter, concerning the use of
force, but passed judgment on the alleged violation of Article 18. The Court
will not here enter into the question whether self-defence may justify an
intervention involving armed force, so that it has to be treated as not
constituting a breach either of the principle of non-use of force or of that of
non-intervention. At the same time, it concludes that in the particular
circumstances of this case, it is impossible to say that a ruling on the alleged
breach by the United States of Article 18 of the Organization of American States
Charter would not "affect" El Salvador.
The Court therefore finds that El Salvador, a party to the United Nations
Charter and to the Charter of the Organization of American States, is a State
which would be "affected" by the decision which the Court would have
to take on the claims by Nicaragua that the United States has violated Article
2, paragraph 4, of the United Nations Charter and Articles 18, 20 and 21 of the
Organization of American States Charter. Accordingly, the Court, which under
Article 53 of the Statute has to be "satisfied" that it has
jurisdiction to decide each of the claims it is asked to uphold, concludes that
the jurisdiction conferred upon it by the United States declaration of
acceptance of jurisdiction under Article 36, paragraph 2, of the Statute does
not permit the Court to entertain these claims. It should however be recalled
that, as will be explained further below, the effect of the reservation in
question is confined to barring the applicability of the United Nations Charter
and Organization of American States Charter as multilateral treaty law, and has
no further impact on the sources of international law which Article 38 of the
Statute requires the Court to apply.
[p. 197 S.O. Sette-Camara] Therefore the decision of the Court as it
stands in the operative part of the Judgment could in no way "affect"
El Salvador such as to warrant application of the multilateral treaty
reservation. In this sense I do not concur with paragraph 51 of the reasoning.
Nor do I agree with the argument contained in paragraph 53. The distinction
between "adversely" affecting and otherwise, is irrelevant and beside
the point. Nothing in the operative clause of the Judgment could, I submit, "affect"
the rights or obligations of El Salvador either "adversely" or "favourably".
[p. 198 S.O. Sette-Camara] The Court concludes that it must regard
itself as without competence to deal with either of the two claims of breach of
the OAS Charter. As to the alleged violation of Article 18 of the OAS Charter by
the United States intervention in the internal or external affairs of Nicaragua,
a subject disposed of by subparagraph (3) of the operative part, I fail to see
by what stretch of imagination such a decision could be said to affect El
The so-called Vandenberg Amendment applies to disputes under multilateral
treaties which are also multilateral disputes. The current case is between the
Applicant - Nicaragua - and the Respondent - the United States of America. Any
other State which has any reason to consider that it might be affected by a
Judgment of the Court, and which has jurisdictional links with the Parties in
the case, and with the Applicant in particular, is free to initiate proceedings
of its own or to intervene under Articles 62 and 63 of the Statute. The only
relevance of the multilateral treaty reservation in the merits phase of the
proceedings is, I submit, that the Court cannot ignore the problem of third
States parties to multilateral treaties which might be affected by the Judgment,
and should deal with it in the proper terms, namely that they are free to come
before the Court to defend their rights and interests if they so desire.
[pp. 217-219 S.O. Oda] It may well be contended that principles such
as the non-use of force and the non-intervention now exist independently as
customary and general international law. However, I cannot agree with the
Judgment in its contention that the Court may entertain the Nicaraguan
Application under Article 36, paragraph 2, of the Statute on the alleged
assumption that the United States reservation regarding "disputes arising
under a multilateral treaty" simply excludes from the jurisdiction
conferred on the Court under that provision of the Statute legal disputes
concerning "the interpretation of a [multilateral] treaty", or that,
since the present case involves a "question of international law", the
Court's entertainment of it should not be affected by that reservation inasmuch
as the Court, independently of "the interpretation of a treaty", can
confine itself to the application of the principles of customary and general
I believe that the issue - which relates to applicable law - of whether,
once the Court assumes jurisdiction over a case, it can apply the rules of
customary and general international law apart from any applicable treaty rules,
is quite different from the other issue - which relates to the Court's
jurisdiction - of whether a State's declaration excludes "disputes arising
under multilateral treat[ies]" (United States reservation) from "the
jurisdiction of the Court, [which by nature can only be voluntarily accepted] in
all legal disputes concerning (a) the interpretation of a treaty, (b) any
question of international law ..." (Statute, Art. 36, para. 2). The United
States declaration of acceptance of the Court's jurisdiction excluded disputes
arising under multilateral treaties subject to exceptions which do not qualify
my reasoning and, in any event, have not materialized in the present case.
The persistent use of the term "reservation" to describe the
exception clauses attached by States to their declarations under Article 36,
paragraph 2, of the Statute, and more especially the attachment of the term "Vandenberg
Reservation" to the exception in the United States declaration relating to
disputes that arise under a multilateral treaty, have surely contributed to a
misconception of the inherent scope of such declarations, and of that one in
particular. Because of the idealism underlying the notion of a sovereign State
submitting to be judged, the so-called "acceptance of the Optional Clause"
has always been imagined in terms of the ideal case, where that submission is
total and "unreserved". Nevertheless, the very structure of Article
36, paragraph 2, should make it clear that, in framing a declaration, a State,
guided by the categories there suggested (the historical origins of which I
shall explain in paras. 27-40), has simply to delineate the bounds of the area
of legal disputes over which, subject to reciprocity, it is prepared to accept
the Court's jurisdiction independently of treaty clauses or special agreements.
If it is under no obligation to make any declaration at all, still less is it
obliged to take the ideal case as its standard.
Hence the fact that exception clauses may frequently be useful as a means of
delineation does not justify any presumption that a State employing them has
retracted various parts of an a priori wholesale acceptance of the
Court's jurisdiction; on the contrary, the instrument remains a positive
indication that the State has unreservedly accepted that jurisdiction within a
certain area which those exceptions have merely helped to define. Outside that
area, there is simply no acceptance, not even an acceptance subject to a "reservation",
and to reason as if there were is to yield to a kind of optical illusion.
In the present case, it seems that thinking about a certain exception in
terms of a "reservation" has helped the Court to imagine that if
multilateral treaties were ignored as a source of positive law, the "reservation"
would lose its potency, so that the exception could be circumvented. I have
explained above why I find this erroneous. The reference to multilateral
treaties is merely a means of drawing the boundaries of jurisdiction so as to
exclude certain disputes: there is no justification for supposing that a dispute
"arising under" a multilateral treaty can nevertheless be brought
under the Court's authority because (inevitably) it can also be analysed in
terms of general international law. Having decided that the present dispute did
"arise under" such a treaty or treaties, the Court should have
concluded that only in the circumstances described by the exception itself,
namely, the presence of all parties affected or specific waiver, could the
boundary of acceptance of jurisdiction be widened to admit the dispute under
Article 36, paragraph 2.
Thus, if the so-called Vandenberg Reservation is applicable in this case,
and the United States acceptance of the Court's compulsory jurisdiction
consequently does not extend to disputes arising under the Charter of
the United Nations and the Charter of the Organization of American States, and
if the Judgment yet declares that the Court can entertain the present case as
admissible under Article 36, paragraph 2, as stated:
"The Court concludes that it should exercise the jurisdiction conferred
upon it by the United States declaration of acceptance under Article 36,
paragraph 2, of the Statute, to determine the claims of Nicaragua based upon
customary international law notwithstanding the exclusion from its jurisdiction
of disputes 'arising under' the United Nations and OAS Charters" (para.
the Court should have proved, not that it can apply customary and general
international law independently, but that the dispute referred to it in the
Applicant's claims had not arisen under these multilateral treaties. The
Judgment, however, fails to do this. I must repeat my belief that. in so far as
the Judgment holds the Vandenberg Reservation to be applicable, in my view,
correctly, the Court should not, and indeed could not, on the basis of Article
36, paragraph 2, of the Statute, have entertained the whole dispute, which the
United States has allegedly pursued.
[p. 529 D.O. Jennings] The jurisdiction of the Court is consensual,
this requirement being an emanation of the independence of the sovereign State;
which, it is in the present case not without pertinence to note, is also the
basis of the principle of non-intervention. Consequently the Court, in the
exercise under Article 36, paragraph 6, of its Statute of its competence to
decide a dispute concerning its jurisdiction, must always satisfy itself that
consent has in fact been accorded, before it can decide that jurisdiction
exists. Moreover, the Court has to be mindful that a consent given in a
declaration made under Article 36, paragraph 2, - the "Optional Clause"
- is a consent that no State needs to make and that relatively very few have
ever done so. Accordingly, any reservation qualifying such a consent especially
demands caution and respect.
[pp. 533-534 D.O. Jennings] ... it is, in my view, not possible to
circumvent the multilateral treaty reservation by resort to a residuary
customary law; even supposing the latter could be disentangled from treaty and
separately identified as to its content. The multilateral treaty reservation
does not merely reserve jurisdiction over a multilateral treaty, where there is
an "affected" party not a party to the case before the Court; it
reserves jurisdiction over "disputes arising under a multilateral treaty".
Clearly the legal nature of a dispute is determined by the attitude of the
parties between which the dispute is joined. Nicaragua eventually, though not
originally, pleaded its case in the duplex form of a dispute under multilateral
treaties or, in the alternative, a dispute under customary law. But there are at
least two sides to a dispute. The United States did not countenance a dispute
arising only under custom. Its response to the charge of the unlawful use of
force, was based firmly on the terms of Article 51 of the Charter. One party
cannot in effect redefine the response of the other party. If the Respondent
relies on Article 51, there is a dispute arising under a multilateral treaty.
Consequently, I am unable to see how the main elements of this dispute - the
use of force, and collective self-defence - can be characterized as other than
disputes arising under a multilateral treaty. That being so, it follows from the
multilateral treaty reservation, that the Court's jurisdiction is lacking, not
merely in respect of a relevant multilateral treaty, but in respect of that
Accordingly, I have voted "No" to subparagraph (2) of paragraph
292; not at all on grounds of substance but on the ground of lack of
jurisdiction. It follows also that I have had to vote "No" to
subparagraph (4), dealing with certain direct attacks on Nicaraguan territory,
and to subparagraph (5), dealing with unauthorized overflight of Nicaraguan
territory; again because of lack of jurisdiction to decide one way or the other
on the question of self-defence.
[p. 535 D.O. Jennings] One is, however, immediately faced with the
difficulty that a plea of collective self-defence is obviously a possible
justification of intervention and that this is the justification which the
United States has pleaded. So it is again a dispute arising under Article 51 of
the United Nations Charter. If one turns to the Inter-American system of law,
the same problem arises. Article 18 of the Charter of the Organization of
American States deals with intervention in peculiarly comprehensive terms, in
that it prohibits intervention "for any reason whatever"; it also, in
Article 21, deals with force and self-defence, but in specifically treaty terms.
Thus, by that article, the American States "bind themselves in their
international relations not to have recourse to the use of force, except in the
case of self-defense in accordance with existing treaties or in fulfillment
thereof" (emphasis added).
The latter phrase can only mean that self-defence in the inter-American
system by definition requires recourse to multilateral treaties; such as,
obviously, the Rio Treaty on Mutual Assistance, as well as the Principle of the
OAS Charter (Art. 3 (f)) that: "An act of aggression against one
American State is an act of aggression against all the other American States."
In short, I am wholly unable to see how the issues of intervention raised in the
instant case - intervention indeed by either Party, for each accuses the other
of it - can be categorized as other than a dispute, or disputes, arising under
multilateral treaties, and thus caught by the multilateral treaty reservation;
at any rate where self-defence has formally been pleaded as a justification.