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World Court Digest

III. The International Court of Justice
1.4. Political Questions/
Determination of the Existence of a Dispute

¤ Military and Paramilitary Activities
(Nicaragua/United States of America)
Merits. J. 27.6.1986
I.C.J. Reports 1986, p. 14

[pp. 26-27] In the first place, it has been suggested that the present dispute should be declared non-justiciable because it does not fall into the category of "legal disputes" within the meaning of Article 36, paragraph 2, of the Statute. It is true that the jurisdiction of the Court under that provision is limited to "legal disputes" concerning any of the matters enumerated in the text. The question whether a given dispute between two States is or is not a "legal dispute" for the purposes of this provision may itself be a matter in dispute between those two States and if so, that dispute is to be settled by the decision of the Court in accordance with paragraph 6 of Article 36. In the present case, however, this particular point does not appear to be in dispute between the Parties. The United States, during the proceedings devoted to questions of jurisdiction and admissibility, advanced a number of grounds why the Court should find that it had no jurisdiction, or that the claim was not admissible. It relied inter alia on proviso (c) to its own declaration of acceptance of jurisdiction under Article 36, paragraph 2, without ever advancing the more radical argument that the whole declaration was inapplicable because the dispute brought before the Court by Nicaragua was not a "legal dispute" within the meaning of that paragraph. As a matter of admissibility, the United States objected to the application of Article 36, paragraph 2, not because the dispute was not a "legal dispute", but because of the express allocation of such matters as the subject of Nicaragua's claims to the political organs under the United Nations Charter, an argument rejected by the Court in its Judgment of 26 November 1984 (I.C.J. Reports 1984, pp. 431-436). Similarly, while the United States contended that the nature of the judicial function precludes its application to the substance of Nicaragua's allegations in this case - an argument which the Court was again unable to uphold (ibid., pp. 436-438)-, it was careful to emphasize that this did not mean that it was arguing that international law was not relevant or controlling in a dispute of this kind. In short, the Court can see no indication whatsoever that, even in the view of the United States, the present dispute falls outside the category of "legal disputes" to which Article 36, paragraph 2, of the Statute applies.

[p. 220 D.O. Oda] I believe that the Nicaraguan Application should be declared non-justiciable, since in my view the dispute at issue is one which does not fall into the category of "legal" disputes within the meaning and intention of Article 36, paragraph 2, of the Statute. It may be argued (and the present Judgment deliberately attempts to do so, see para. 32) that the interpretation of the competence of the Court as conferred in accordance with that provision has been settled by a determination of jurisdiction. However, the question as to whether this dispute should be considered as justiciable in terms of the concept of "legal disputes" within the meaning of the Statute is related to the merits of the dispute. Accordingly, it deserves and requires reconsideration at the present stage (see Section B below).
Furthermore, even if my contention were not well founded, it would in my view have been prudent for the Court, in the light of the merits of the present case, to find it a matter of judicial propriety not to proceed with a case so highly charged with issues central to the sensitive political relations of many States: a circumstance that undoubtedly accounts for much of the vigour with which the Respondent has first challenged, then been seen to defy, the Court's jurisdiction (see Section C below).

[p. 221 D.O. Oda] Looking back at the history of the settlement of international disputes by arbitration or adjudication, one may clearly see that the "legal disputes" subject to such settlement were limited in scope and, more basically, that their referral to such a settlement was always to depend ultimately on the assent of the States in dispute.

[p. 236 D.O. Oda] In consequence, the fact that the Court or its predecessor entertained a handful of previous cases submitted on the basis of Article 36, paragraph 2, of the Statute affords absolutely no ground for concluding that voluntary acceptance of the obligation for submission of legal disputes to the Court's jurisdiction under that Article equates with the submission of all disputes however politically charged they may be. The United States, though having voluntarily accepted the Optional Clause, appears to be of the view that the present dispute does not fall within the meaning of what is a "legal dispute" under Article 36, paragraph 2. Even if it did not explicitly contend this during the proceedings on jurisdiction, which were largely devoted to the jurisdictional position of the Applicant, its reliance on the "ongoing armed conflict" argument furnished a clear indication that the Respondent viewed the dispute as "not susceptible of decision by the application of the principles of law" - or, in other words, that the sense of "legal dispute" had not evolved so far as to embrace the subject-matter of the application. Whether this view is right or wrong is beside the point in considering a voluntary acceptance of jurisdiction.
In sum, the Court should note that the meaning of "legal disputes" is not to be taken separately from the fact that the Court's jurisdiction over "legal disputes" can only be accepted voluntarily. The Court is at present not in a position, as it was in the Aegean Sea Continental Shelf case, to apply an extended concept of the law, one not contemplated at the time of the filing of the declaration, because by doing so it would risk imposing its jurisdiction in contravention of the voluntary character of that instrument, whereas in the case referred to it did so in order to be quite sure of respecting that character in the case of the Respondent's declaration.

[p. 238 D.O. Oda] ... it has throughout this century been considered that any dispute which a State was prepared voluntarily to submit to judicial settlement should be one where the parties are in conflict as to their respective rights, or where differences arise by virtue of a claim of right made by one against the other; and disputes such as the present one, at least where it concerns allegations of threat or use of force and intervention, have not been deemed to fall into this category. The distinction between "legal" and "non-legal" (or political) is certainly vague inasmuch as, on the one hand, a legal dispute may eventually give rise to political friction and tension and, on the other, any political dispute is almost bound to contain certain aspects of a legal nature; yet in the 60-year history of the past and present Courts, issues regarding matters of an overwhelmingly political nature have never been dealt with by way of adjudication before the Court on the basis of Article 36, paragraph 2, of the Statute.

[pp. 239-240 D.O. Oda] While Article 36 of the United Nations Charter states that "legal disputes should as a general rule be referred by the parties to the International Court of Justice", this certainly should not be interpreted as implying that the term "legal disputes" covers disputes which are non-justiciable because of their overwhelmingly political nature. In other words, it is normal to assume that the term "legal disputes" refers to disputes whose primary characteristic it is to be "legal". Otherwise - since practically every dispute has a "legal" aspect as at least a secondary characteristic - there would have been no reason to include the word "legal" in the provision. Furthermore, the qualifying phrase "as a general rule" serves to stress the necessity of not jumping to the conclusion that the presence of a legal element in a dispute attracts the application of the provision. For it is well known that the phrase in question, just like "in principle", functions as a pointer to the possibility of exceptions and borderline cases. Moreover, it may be observed that, in practice, the parties to international legal disputes do not, as a general rule, refer them to the Court, while, for its part, the Security Council has almost invariably failed to make recommendations for such referral; this may be deplored, but should not be ignored as an indication of the relative cogency of the rule.
Under the United Nations system, where the maintenance of international peace and security falls within the functions of the Security Council, resort to force as a means of self-defence is permissible only until such time as the Security Council has taken the necessary measures, and any measures taken by the member State in the exercise of its right of self-defence must be reported immediately to the Security Council. This would mean, in my view, that a dispute in which use of force is resorted to is in essence and in limine one most suitable for settlement by a political organ such as the Security Council, but is not necessarily a justiciable dispute such as falls within the proper functions of the judicial organ.