| I. | Substantive International Law - First Part |
| 6. | USE OF FORCE AND RELATED PROBLEMS |
| 6.1. | Use of Force |
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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.100-103] As regards the United States in particular, the weight
of 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
States 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".
As regards certain particular aspects of the principle in question, it will
be necessary to distinguish the most grave forms of the use of force (those
constituting an armed attack) from other less grave forms. In determining the
legal rule which applies to these latter forms, the Court can again draw on the
formulations contained in the Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance with
the Charter of the United Nations (General Assembly resolution 2625 (XXV),
referred to above). As already observed, the adoption by States of this text
affords an indication of their opinio juris as to customary
international law on the question. Alongside certain descriptions which may
refer to aggression, this text includes others which refer only to less grave
forms of the use of force. In particular, according to this resolution:
"Every State has the duty to refrain from the threat or use of force to
violate the existing international boundaries of another State or as a means of
solving international disputes, including territorial disputes and problems
concerning frontiers of States.
..........................................................
States have a duty to refrain from acts of reprisal involving the use of
force.
..........................................................
Every State has the duty to refrain from any forcible action which deprives
peoples referred to in the elaboration of the principle of equal rights and
self-determination of that right to self-determination and freedom and
independence.
Every State has the duty to refrain from organizing or encouraging the
organization of irregular forces or armed bands, including mercenaries, for
incursion into the territory of another State.
Every State has the duty to refrain from organizing, instigating, assisting
or participating in acts of civil strife or terrorist acts in another State or
acquiescing in organized activities within its territory directed towards the
commission of such acts, when the acts referred to in the present paragraph
involve a threat or use of force."
Moreover, in the part of this same resolution devoted to the principle of
non-intervention in matters within the national jurisdiction of States, a very
similar rule is found:
"Also, no State shall organize, assist, foment, finance, incite or
tolerate subversive, terrorist or armed activities directed towards the violent
overthrow of the regime of another State, or interfere in civil strife in
another State."
In the context of the inter-American system, this approach can be traced
back at least to 1928 (Convention on the Rights and Duties of States in the
Event of Civil Strife, Art. I (1)); it was confirmed by resolution 78 adopted by
the General Assembly of the Organization of American States on 21 April 1972.
The operative part of this resolution reads as follows:
"The General Assembly Resolves:
1. To reiterate solemnly the need for the member states of the Organization
to observe strictly the principles of nonintervention and self-determination of
peoples as a means of ensuring peaceful coexistence among them and to refrain
from committing any direct or indirect act that might constitute a violation of
those principles.
2. To reaffirm the obligation of those states to refrain from applying
economic, political, or any other type of measures to coerce another state and
obtain from it advantages of any kind.
3. Similarly, to reaffirm the obligation of these states to refrain from
organizing, supporting, promoting, financing, instigating, or tolerating
subversive, terrorist, or armed activities against another state and from
intervening in a civil war in another state or in its internal struggles."
The general rule prohibiting force allows for certain exceptions. In view of
the arguments advanced by the United States to justify the acts of which it is
accused by Nicaragua, the Court must express a view on the content of the right
of self-defence, and more particularly the right of collective self-defence.
First, with regard to the existence of this right, it notes that in the language
of Article 51 of the United Nations Charter, the inherent right (or "droit
naturel") which any State possesses in the event of an armed attack, covers
both collective and individual self-defence. Thus, the Charter itself testifies
to the existence of the right of collective self-defence in customary
international law. Moreover, just as the wording of certain General Assembly
declarations adopted by States demonstrates their recognition of the principle
of the prohibition of force as definitely a matter of customary international
law, some of the wording in those declarations operates similarly in respect of
the right of self-defence (both collective and individual). Thus, in the
declaration quoted above on the Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with the Charter
of the United Nations, the reference to the prohibition of force is followed by
a paragraph stating that:
"nothing in the foregoing paragraphs shall be construed as enlarging or
diminishing in any way the scope of the provisions of the Charter concerning
cases in which the use of force is lawful".
This resolution demonstrates that the States represented in the General
Assembly regard the exception to the prohibition of force constituted by the
right of individual or collective self-defence as already a matter of customary
international law.
[p. 108] Intervention is wrongful when it uses methods of coercion
in regard to such choices, which must remain free ones. The element of coercion,
which defines, and indeed forms the very essence of, prohibited intervention, is
particularly obvious in the case of an intervention which uses force, either in
the direct form of military action, or in the indirect form of support for
subversive or terrorist armed activities within another State. As noted above
(paragraph 191), General Assembly resolution 2625 (XXV) equates assistance of
this kind with the use of force by the assisting State when the acts committed
in another State "involve a threat or use of force". These forms of
action are therefore wrongful in the light of both the principle of non-use of
force, and that of non-intervention.
[pp. 118-119] As to the claim that United States activities in
relation to the contras constitute a breach of the customary
international law principle of the non-use of force, the Court finds that,
subject to the question whether the action of the United States might be
justified as an exercise of the right of self-defence, the United States has
committed a prima facie violation of that principle by its assistance to the
contras in Nicaragua, by "organizing or encouraging the
organization of irregular forces or armed bands ... for incursion into the
territory of another State", and "participating in acts of civil
strife ... in another State", in the terms of General Assembly resolution
2625 (XXV). According to that resolution, participation of this kind is contrary
to the principle of the prohibition of the use of force when the acts of civil
strife referred to "involve a threat or use of force". In the view of
the Court, while the arming and training of the contras can certainly be
said to involve the threat or use of force against Nicaragua, this is not
necessarily so in respect of all the assistance given by the United States
Government. In particular, the Court considers that the mere supply of funds to
the contras while undoubtedly an act of intervention in the internal
affairs of Nicaragua, as will be explained below, does not in itself amount to a
use of force.
[p. 127] On the legal level the Court cannot regard response to an
intervention by Nicaragua as such a justification. While an armed attack would
give rise to an entitlement to collective self-defence, a use of force of a
lesser degree of gravity cannot, as the Court has already observed (paragraph
211 above), produce any entitlement to take collective counter-measures
involving the use of force. The acts of which Nicaragua is accused, even
assuming them to have been established and imputable to that State, could only
have justified proportionate counter-measures on the part of the State which had
been the victim of these acts, namely El Salvador, Honduras or Costa Rica. They
could not justify counter-measures taken by a third State, the United States,
and particularly could not justify intervention involving the use of force.
[p. 128] The effects of the principle of respect for territorial
sovereignty inevitably overlap with those of the principles of the prohibition
of the use of force and of non-intervention. Thus the assistance to the contras,
as well as the direct attacks on Nicaraguan ports, oil installations, etc.,
referred to in paragraphs 81 to 86 above, not only amount to an unlawful use of
force, but also constitute infringements of the territorial sovereignty of
Nicaragua, and incursions into its territorial and internal waters. Similarly,
the mining operations in the Nicaraguan ports not only constitute breaches of
the principle of the non-use of force, but also affect Nicaragua's sovereignty
over certain maritime expanses. The Court has in fact found that these
operations were carried on in Nicaragua's territorial or internal waters or both
(paragraph 80), and accordingly they constitute a violation of Nicaragua's
sovereignty. The principle of respect for territorial sovereignty is also
directly infringed by the unauthorized overflight of a State's territory by
aircraft belonging to or under the control of the government of another State.
The Court has found above that such overflights were in fact made (paragraph 91
above).
These violations cannot be justified either by collective self-defence, for
which, as the Court has recognized, the necessary circumstances are lacking, nor
by any right of the United States to take counter-measures involving the use of
force in the event of intervention by Nicaragua in El Salvador, since no such
right exists under the applicable international law. They cannot be justified by
the activities in El Salvador attributed to the Government of Nicaragua. The
latter activities, assuming that they did in fact occur, do not bring into
effect any right belonging to the United States which would justify the actions
in question. Accordingly, such actions constitute violations of Nicaragua's
sovereignty under customary international law.
[pp. 151-152 S.O. Singh] A major consideration in the resolution of
the dispute in this case has been the principle of non-use of force. It is
indeed a well-established tenet of modern international law that the lawful use
of force is circumscribed by proper regulation, and this is so from whichever
angle one looks at it, whether the customary viewpoint or that of the
conventional international law on the subject. However the customary aspect does
visualize the exceptional need for the provision of the "inherent right"
to use force in self-defence. The aforesaid concepts of the principle and its
exception do have an existence independent of treaty-law as contained in the
United Nations Charter or the Inter-American system of conventional law on the
subject. In this context it appears necessary to emphasize certain aspects,
which is attempted below.
In fact this cardinal principle of non-use of force in international
relations has been the pivotal point of a time-honoured legal philosophy that
has evolved particularly after the two World Wars of the current century. It has
thus been deliberately extended to cover the illegality of recourse to armed
reprisals or other forms of armed intervention not amounting to war which aspect
may not have been established by the law of the League of Nations, or by the
Nuremberg or Tokyo Trials, but left to be expressly developed and codified by
the United Nations Charter. The logic behind this extension of the principle of
non-use of force to reprisals has been that if use of force was made permissible
not as a lone restricted measure of self-defence, but also for other minor
provocations demanding counter-measures, the day would soon dawn when the world
would have to face the major catastrophe of a third World War - an event so
dreaded in 1946 as to have justified concrete measures being taken forthwith to
eliminate such a contingency arising in the future.
There can be no doubt therefore of the innate legal existence of this basic
reasoning, irrespective of the later developments which have now found a place
in the treaty provisions as reflected in Article 2, paragraph 4, and Article 51
of the United Nations Charter. However it is pertinent that the origin of legal
regulation of use of force is much older than the United Nations Charter and
this has been acknowledged to be so. If an issue was raised whether the concepts
of the principle of non-use of force and the exception to it in the form of use
of force for self-defence are to be characterized as either part of customary
international law or that of conventional law, the answer would appear to be
that both the concepts are inherently based in customary international law in
their origins, but have been developed further by treaty-law. In any search to
determine whether these concepts belong to customary or conventional
international law it would appear to be a fallacy to try to split any concept to
ascertain what part or percentage of it belongs to customary law and what
fraction belongs to conventional law. There is no need to try to separate the
inseparable, because the simple logical approach would be that if the concept in
its origin was a customary one, as in this case, and later built up by treaty
law, the Court would be right in ruling that the present dispute before the
Court does not arise under a multilateral treaty, so as to fall outside the
Court's jurisdiction because of the Vandenberg Reservation invoked by the
Respondent.
[p. 176 S.O. Ruda] If, juridically, assistance to rebels cannot,
per se, be justified on grounds of self-defence, I do not see why the
Court feels bound to analyse in detail the facts of the case relating to such
assistance. Neither do I perceive the need for entering, in the Judgment, into
the questions of the requirements, in the case of collective self-defence, of a
request by a State which regards itself as the victim of an armed attack, or a
declaration by that State that it has been attacked or of its submission of an
immediate report on the measure taken in the exercise of this right of
self-defence.
From my point of view it would have been sufficient to say, just as the
Court does in its conclusions, that even if there was such assistance and flow
of arms, that is not a sufficient excuse for invoking self-defence because,
juridically, the concept of "armed attack" does not include assistance
to rebels.
[pp. 530-531 D.O. Jennings] Let us look first, therefore, at the
relationship between customary international law, and Article 2, paragraph 4,
and Article 51 of the United Nations Charter. There is no doubt that there was,
prior to the United Nations Charter, a customary law which restricted the lawful
use of force, and which correspondingly provided also for a right to use force
in self-defence; as indeed the use of the term "inherent" in Article
51 of the United Nations Charter suggests. The proposition, however, that, after
the Charter, there exists alongside those Charter provisions on force and
self-defence, an independent customary law that can be applied as alternative to
Articles 2, paragraph 4, and 51 of the Charter, raises questions about how and
when this correspondence came about, and about what the differences, if any,
between customary law and the Charter provisions, may be.
A multilateral treaty may certainly be declaratory of customary
international law either:
"as incorporating and giving recognition to a rule of customary
international law that existed prior to the conclusion of the treaty or, on the
other hand, as being the fons et origo of a rule of international law
which subsequently secured the general assent of States and thereby was
transformed into customary law" (see Baxter, British Year Book of
International Law, Vol. XLI, 1965-1966, p. 277).
It could hardly be contended that these provisions of the Charter were
merely a codification of the existing customary law. The literature is replete
with statements that Article 2, paragraph 4, - for example in speaking of "force"
rather than war, and providing that even a "threat of force" may be
unlawful - represented an important innovation in the law. The late Sir Humphrey
Waldock, in a passage dealing with matters very much in issue in the present
case, put it this way:
"The illegality of recourse to armed reprisals or other forms of armed
intervention not amounting to war was not established beyond all doubt by the
law of the League, or by the Nuremberg and Tokyo Trials. That was brought about
by the law of the Charter ..." (106 Collected Courses, Academy of
International Law, The Hague (1962-II), p. 231.)
Even Article 51, though referring to an "inherent" and therefore
supposedly pre-existing, right of self-defence, introduced a novel concept in
speaking of "collective self-defence" 1. Article 51 was introduced
into the Charter at a late stage for the specific purpose of clarifying the
position in regard to collective understandings - multilateral treaties - for
mutual self-defence, which were part of the contemporary scene.
| 1 | Cf. Aréchaga, 159 Collected Courses, The Hague (1978-I), at p. 87, and p. 96 where he goes so far as to assert: "The so-called customary law of self-defence supposedly pre-existing the Charter, and dependent on this single word [inherent] simply did not exist." |
