| I. | Substantive International Law - First Part |
| 2. | SOURCES OF INTERNATIONAL LAW |
| 2.1. | General Questions |
| 2.1.4. | Ius cogens / Obligations erga omnes |
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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. 100-101] As regards the United States in particular, the weight
oof an expression of opinio juris can similarly be attached to its
support of the resolution of the Sixth International Conference of American
States condemning aggression (18 February 1928) and ratification of the
Montevideo Convention on Rights and Duties of States (26 December 1933),
Article 11 of which imposes the obligation not to
recognize territorial acquisitions or special advantages which have been
obtained by force. Also significant is United States acceptance of the principle
of the prohibition of the use of force which is contained in the declaration on
principles governing the mutual relations of State participating in the
Conference on Security and Co-operation in Europe (Helsinki, 1 August 1975),
whereby the participating States undertake to "refrain in their mutual
relations, as well as in their international relations in general,"
(emphasis added) from the threat or use of force. Acceptance of a text in these
terms confirms the existence of an opinio juris of the participating
States prohibiting the use of force in international relations.
A further confirmation of the validity as customary international law of the
principle of the prohibition of the use of force expressed in Article 2,
paragraph 4, of the Charter of the United Nations may be found in the fact that
it is frequently referred to in statements by State representatives as being not
only a principle of customary international law but also a fundamental or
cardinal principle of such law. The International Law Commission, in the course
of its work on the codification of the law of treaties, expressed the view that
"the law of the Charter concerning the prohibition of the use of force in
itself constitutes a conspicuous example of a rule in international law having
the character of jus cogens" (paragraph (1) of the commentary of
the Commission to Article 50 of its draft Articles on the Law of Treaties, ILC
Yearbook, 1966-II, p. 247). Nicaragua in its Memorial on the Merits
submitted in the present case states that the principle prohibiting the use of
force embodied in Article 2, paragraph 4, of the Charter of the United Nations "has
come to be recognized as jus cogens". The United States, in its
Counter-Memorial on the questions of jurisdiction and admissibility, found it
material to quote the views of scholars that this principle is a "universal
norm", a "universal international law", a "universally
recognized principle of international law", and a "principle of jus
cogens".
[pp. 152-153 S.O. Singh] In this context the Court's approach has
indeed been cautious. For example, the requirement "to report" under
Article 51 of the Charter is not insisted upon as an essential condition of the
concept of self-defence but mentioned by the Court as an indication of the
attitude of the State which is invoking the right of self-defence but certainly
not closely following the treaty. The Court's observations in paragraph 200 of
the Judgment are indeed to the point in this connection. In the present case
therefore the Court's approach has been a logical one, inasmuch as it has
decided not to apply the multilateral treaties to the resolution of this dispute
but to confine its observations to the basis of customary international law,
ruling that it had jurisdiction to apply customary law for the settlement of the
case before the Court. It is felt that this is not only the correct approach in
the circumstances of this case for many reasons, but also that it represents the
contribution of the Court in emphasizing that the principle of non-use of force
belongs to the realm of jus cogens, and is the very cornerstone of the
human effort to promote peace in a world torn by strife. This aspect does need
to be emphasized.
[pp. 199-200 S.O. Sette-Camara] I fully concur with the rest of the
Judgment, as I firmly believe that the non-use of force as well as
non-intervention - the latter as a corollary of equality of States and
self-determination - are not only cardinal principles of customary international
law but could in addition be recognized as peremptory rules of customary
international law which impose obligations on all States.
With regard to the non-use of force, the International Law Commission in its
commentaries on the final articles on the Law of Treaties said:
"the law of the Charter concerning the prohibition of the use of force
in itself constitutes a conspicuous example of a rule in international law
having the character of jus cogens" (International Law
Commission Yearbook, 1966, Vol. II, p. 247).
As far as non-intervention is concerned, in spite of the uncertainties which
still prevail in the matter of identifying norms of jus cogens, I submit
that the prohibition of intervention would certainly qualify as such, if the
test of Article 53 of the Vienna Convention on the Law of Treaties is applied. A
treaty containing provisions by which States agree to intervene, directly or
indirectly, in the internal or external affairs of any other State would
certainly fall within the purview of Article 53, and should consequently be
considered void as conflicting with a peremptory norm of general international
law.
