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World Court Digest

III. The International Court of Justice
2.3. The Optional Clause
2.3.3. Reservations

¤ 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 itself.
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 Salvador.

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 international law.
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. 182),
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 dispute.

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.