Abstract
This chapter assesses the impact of the ‘Nicaraguan’ cases, i.e. cases in which Nicaragua has been involved before the International Court of Justice, on the law of treaties. It focuses on two main aspects: the first is the relationship between various principles and (or) maxims of interpretation and the customary rules of interpretation reflected in Articles 31–33 of the Vienna Convention on the Law of Treaties. The second is the relationship between treaty and customary law, considered against the background of the quintessential Nicaraguan case, the Military and Paramilitary Activities in and against Nicaragua.
We are indebted to Professor Christian J Tams for comments on earlier drafts. The usual disclaimer applies.
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Notes
- 1.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Preliminary Objections, Judgment, ICJ Reports 1984, p. 392 (hereinafter ‘Nicaragua v. United States (Jurisdiction)’); Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 14 (hereinafter ‘Nicaragua v. United States (Merits)’).
- 2.
South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment, ICJ Reports 1966, p. 6 (hereinafter ‘South West Africa, Second Phase’). By the casting vote of the President, the ICJ denied standing to Ethiopia and Liberia in the instance, which led to the United Nations stepping in and which culminated in the request for an Advisory Opinion in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 16 (hereinafter ‘Namibia’).
- 3.
A brief look at the docket of the Court during the relevant period confirms the point. See also contribution by Pellet A in this volume.
- 4.
The ILC ‘confined itself to trying to isolate and codify the comparatively few general principles which appear to constitute general rules for the interpretation of treaties’ and therefore Articles 31 and 32 VCLT do not constitute an exhaustive list of interpretative principles to be used by international tribunals: see paragraph 1 of the commentary to draft Articles 27–28 on the Law of Treaties, YbILC 1966, Vol. II, p. 218. Principles outside the express terms of the VCLT, to which international tribunals have had recourse are, for example, those of effectiveness (effet utile), restrictive interpretation (in dubio pro mitius), verba ambigua accipiuntur contra proferentem, expressio unius est exclusio alterius, and so forth. See also Gardiner (2010), p. 51.
- 5.
- 6.
See for example Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, ICJ Reports 1991, pp. 69–70, para 48 (hereinafter ‘Arbitral Award of 31 July 1989 (Judgment)’); Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports 1994, p. 21, para 41 (hereinafter ‘Libya/Chad (Judgment)’); Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, ICJ Reports 1996, p. 812, para 23 (hereinafter ‘Oil Platforms (Jurisdiction)’).
- 7.
See most recently Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, ICJ Reports 2016, para 35 (hereinafter ‘Alleged Violations (Jurisdiction)’).
- 8.
Supra n. 1.
- 9.
Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, ICJ Reports 2009, p. 213 (hereinafter ‘Navigational and Related Rights (Judgment)’).
- 10.
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, ICJ Reports 1992, p. 351 (hereinafter ‘El Salvador/Honduras (Merits)’).
- 11.
See for example Nicaragua v. United States (Merits), supra n. 1, pp. 136 ff, paras 272 ff referring to the object and purpose of a treaty and the ordinary meaning of its terms.
- 12.
El Salvador/Honduras (Merits), supra n. 10, pp. 582–583, para 373.
- 13.
For the process of recognition by the Court of the declaratory nature of the rules on treaty interpretation of the Vienna Convention see Torres Bernárdez (1998), pp. 723 and 727–729.
- 14.
See e.g. Dawidowicz (2011).
- 15.
See Navigational and Related Rights (Judgment), supra n. 9, p. 240, para 58.
- 16.
Ibid., p. 241, para 59.
- 17.
Island of Palmas case (Netherlands, USA), Award of 4 April 1928, RIAA, Vol. II, p. 845.
- 18.
Higgins (2009), p. 868.
- 19.
See Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment, ICJ Reports 1960, p. 37.
- 20.
- 21.
South West Africa, Second Phase, supra n. 2, dissenting opinion of Judge Tanaka, p. 294. Judge Tanaka goes as far as to suggest that developments in the field of human rights led to the emergence of a new customary rule that should be taken into consideration for the purposes of interpretation. Specifically: ‘[…] the recognition of the generation of a new customary international law on the matter of non-discrimination is not to be regarded as detrimental to the mandatory, but as an authentic interpretation of the already existing provisions of Article 2, paragraph 2, of the Mandate and the Covenant. It is nothing other than a simple clarification of what was not so clear 40 years ago. What ought to have been clear 40 years ago has been revealed by the creation of a new customary law which plays the role of authentic interpretation the effect of which is retroactive’.
- 22.
Tyrer v. UK, ECHR Application No. 5856/72, Judgment, 25 April 1978, 26 publ Court A, p. 16, para 31.
- 23.
See Rights of nationals of the United States of America in Morocco (France v. United States of America), Judgment ICJ Reports 1952, p. 189 (hereinafter ‘United States nationals in Morocco (Judgment)’) on the interpretation of the term ‘dispute’ in the context of 1936 Treaty between Morocco and the United States.
- 24.
See Kasikili/Sedudu Island (Botswana/Namibia), Judgment, ICJ Reports 1999, p. 1062, para 25, with respect to the meaning of ‘centre of the main channel’ and ‘thalweg’ in an Anglo-German Agreement of 1890, where the Court upheld the meaning of the terms as it was at the time of treaty conclusion.
- 25.
Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, ICJ Reports 1978, p. 32, para 77 (hereinafter ‘Aegean Sea Continental Shelf (Judgment)’).
- 26.
The Court’s judgment did not come out of the blue. The question of the effect of the passage of time on treaty interpretation had already been discussed, for example, within the International Law Commission where there was support for both the principle of contemporaneity and the evolutive approach. It seems that at the end of the day the conclusion was that the interpreter should resolve this matter through the application of ordinary methods of treaty interpretation and taking into account whether the treaty itself conveys an answer. See for example Report of the International Law Commission on the work of its fifty-seventh session (2005), A/60/10, p. 220, para 479 and Report of the International Law Commission on the work of its fifty-eighth session (2006), UN Doc. A/61/10, p. 415, para 22. The same approach was approved by the Institut de droit international at Wiesbaden in 1975 in its resolution on the ‘Intertemporal Problem in International Law’. Although the resolution takes the Huber dictum in Island of Palmas as a starting point, it reaches the following conclusion, of which the finding in the Navigational and Related Rights is reminiscent: ‘Wherever a provision of a treaty refers to a legal or other concept without defining it, it is appropriate to have recourse to the usual methods of interpretation in order to determine whether the concept concerned is to be interpreted as understood at the time when the provision was drawn up or as understood at the time of its application’ (56 AIDI 536, para 4).
- 27.
ILC Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, Report of the International Law Commission on the work of its sixty-fifth session (2013), UN Doc. A/68/10, p. 23 (hereinafter ‘2013 ILC Report’).
- 28.
Navigational and Related Rights (Judgment), supra n. 9, p. 242, para 64.
- 29.
On the issue of whether subsequent conduct can be used as an argument to support or limit an evolving understanding of a treaty see Nolte (2013), pp. 184 ff.
- 30.
Navigational and Related Rights (Judgment), supra n. 9, p. 242, para 64.
- 31.
Ibid., p. 237, para 48.
- 32.
See 2013 ILC Report, supra n. 27, p. 27: ‘The “presumed intention” is thus not a separately identifiable original will […] And although interpretation must seek to identify the intention of the parties, this must be done by the interpreter on the basis of the means of interpretation which are available at the time of the act of interpretation’.
- 33.
See also the ILC commentary to Article 13 of the Articles on State Responsibility: ‘One possible qualification concerns the progressive interpretation of obligations […] But the intertemporal principle does not entail that treaty provisions are to be interpreted as if frozen in time. The evolutionary interpretation of treaty provisions is permitted in certain cases but this has nothing to do with the principle that a State can only be held responsible for breach of an obligation which was in force for that State at the time of its conduct’ (YbILC 2001, Vol. II, Part Two, p. 59. See also Crawford (2013), pp. 246 ff.
- 34.
In Namibia, supra n. 2, p. 31, para 53, the Court referred to ‘the primary necessity of interpreting an instrument in accordance with the intentions of the parties’, and used this as its grounds for adopting an evolutionary approach to the interpretation of the concepts contained in Article 22 of the Covenant of the League of Nations. See also Aegean Sea Continental Shelf, supra n. 25, p. 32; Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p. 79, para 142; Navigational and Related Rights (Judgment), supra n. 9, p. 242, para 65; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, pp. 82–83, para 204.
- 35.
Navigational and Related Rights (Judgment), supra n. 9, p. 242, para 65.
- 36.
Ibid., p. 242, para 66. Indeed, this is very close to the position previously taken by the ILC. In the Report on the Fragmentation of International Law, the study group suggested that ‘[t]he starting point must be […] the fact that deciding this issue is a matter of interpreting the treaty itself. Does the language used give any indication? The starting-point of the argument might plausibly be the “principle of contemporaneity” - with regard to the normative environment as it existed at the moment when the obligation entered into force for a relevant party. When might the treaty language itself, in its context, provide for the taking account of future developments? Examples of when this might be a reasonable assumption include at least: (a) Use of a term in the treaty which is “not static but evolutionary”. […] (b) The description of obligations in very general terms, thus operating a kind of renvoi to the state of the law at the time of its application’, Report of the Study Group of the ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (finalized by M Koskenniemi, UN Doc. A/CN.4/L.682, 13 April 2006), para 478.
- 37.
United States – Import Prohibition of Certain Shrimp and Shrimp Products, WTO Appellate Body Report, 12 October 1998, WT/DS58/AB/R, paras 128 ff.
- 38.
Ibid., para 130.
- 39.
See Navigational and Related Rights (Judgment), supra n. 9, Separate Opinion of Judge Skotnikov, p. 284, paras 5–6.
- 40.
Ibid.
- 41.
Ibid.
- 42.
See ibid., Declaration of Judge ad hoc Guillaume, pp. 294 ff, paras 9 ff.
- 43.
See Bernhardt (1995), p. 1419.
- 44.
‘Lotus’, Judgment, 1927, PCIJ Series A, No. 10, p. 18: ‘Restrictions upon the independence of States cannot […] be presumed’.
- 45.
See generally Jennings and Watts (1992), p. 1278: ‘The principle of in dubio mitius applies in interpreting treaties, in deference to the sovereignty of states. If the meaning of a term is ambiguous, that meaning is to be preferred which is less onerous to the party assuming an obligation, or which interferes less with the territorial and personal supremacy of a party, or involves less general restrictions upon the parties’.
- 46.
See S.S. ‘Wimbledon’, Judgment, 1923, PCIJ Series A, No. 1, pp. 24–25: ‘the fact remains that Germany has to submit to an important limitation of the exercise of the sovereign rights which no one disputes that she possesses over the Kiel Canal. This fact constitutes a sufficient reason for the restrictive interpretation, in case of doubt, of the clause which produces such a limitation. But the Court feels obliged to stop at the point where the so-called restrictive interpretation would be contrary to the plain terms of the article and would destroy what has been clearly granted’ (emphasis added). See also Article 3, Paragraph 2, of the Treaty of Lausanne (Frontier between Turkey and Iraq), Advisory Opinion, 1925, PCIJ Series B, No. 12, p. 25: ‘if the wording of a treaty provision is not clear, in choosing between several admissible interpretations, the one which involves the minimum of obligations for the parties should be adopted. This principle may be admitted to be sound. In the present case, however, the argument is valueless, because, in the Court’s opinion, the wording of Article 3 is clear’ (emphasis added); Access to, or anchorage in, the Port of Danzig, of Polish War Vessels, Advisory Opinion, 1931, PCIJ Series A/B, No. 43, p. 142: ‘The fact that Poland claims special rights and privileges for her war vessels in the port of Danzig, renders it necessary to find some juridical basis for the claim. The port of Danzig is not Polish territory, and therefore the rights claimed by Poland would be exercised in derogation of the rights of the Free City. Such rights must therefore be established on a clear basis’ (emphasis added); Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, PCIJ Series A/B, No. 46, p. 167: ‘In this connection, the Court observes that no such limitation necessarily ensues from the old provisions relating to the free zones; that in case of doubt a limitation of sovereignty must be construed restrictively’ (emphasis added).
- 47.
Territorial Jurisdiction of the International Commission of the River Oder, Judgment, 1929, PCIJ Series A, No. 23, p. 26.
- 48.
- 49.
Tomuschat (1999), p. 171.
- 50.
EC–Measures Concerning Meat and Meat Products (Hormones), WTO Appellate Body Report, 16 January 1998, WT/DS48/AB/R, para 165.
- 51.
See ibid and footnote 154. The footnote recites the definition from Oppenheim’s International Law, and offers an overview of the relevant case law and references to academic literature.
- 52.
See Fitzmaurice and Merkouris (2010), p. 195.
- 53.
Nuclear Tests (New Zealand v. France), Judgment, ICJ Repοrts 1974, pp. 472–473, para 47: ‘When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for’. In this case, however, the ICJ was interpreting a unilateral act rather than a treaty provision.
- 54.
Article 32 of the VCLT provides that ‘[r]ecourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable’ (emphasis added). The word ‘including’ indicates that the interpreter may have recourse to supplementary means other than those expressly mentioned: see Sbolci (2011), p. 158. On this issue see further below.
- 55.
See n. 47 above.
- 56.
Navigational and Related Rights (Judgment), supra n. 9, p. 237, para 48.
- 57.
Ibid.
- 58.
For the concept of sovereign equality of states and its implications see Art 2(1) UN Charter and Fassbender (2012).
- 59.
Navigational and Related Rights (Judgment), n. 9, p. 237, para 48 (emphasis added). For a similar approach see The Diversion of Water from the Meuse, Judgment, 1937, PCIJ Series A/B, No. 70, p. 20, where the PCIJ found that a treaty provision may not be interpreted so as to impose a significantly greater burden on one party than on the other, unless such intention of the parties is manifest: ‘It would only be possible to agree with the contention of the Netherlands’ Agent that the Treaty had created a position of inequality between the contracting Parties if that were expressly indicated by the terms of the Treaty; but the text of Article 1 is not sufficient to justify such an interpretation. The text of this Article is general; it furnishes no evidence of any differentiation between the two Parties’ (emphasis added).
- 60.
See also Kokott (2012).
- 61.
See Navigational and Related Rights (Judgment), supra n. 9, Separate Opinion of Judge Skotnikov, pp. 283 ff: ‘the restrictive interpretation in the present case would not be contrary to the plain terms of Article VI of the 1858 Treaty and would not destroy what has been clearly granted. The problem before the Court is precisely the lack of clarity as to how the term “comercio” should be interpreted. In these circumstances, the Court should have examined the intentions of the Parties at the time of the conclusion of the Treaty, taking full account of the well-established principle that limitations on the sovereignty of a State are not to be presumed. […] The Court ignores the SS ‘Wimbledon’ dictum […] and related jurisprudence. Consequently, its conclusion runs counter to the principle that limitations on sovereignty are not to be presumed’ (emphasis added).
- 62.
See Navigational and Related Rights (Judgment), supra n. 9, Declaration of Judge ad hoc Guillaume, p. 298, para 15: ‘As the Court has pointed out, exceptions or “limitations of the sovereignty of a State over its territory are not to be presumed” (Judgment, para 48). In my view, by operation of this presumption and of the language itself of the Treaty, the limitation imposed on Nicaragua’s territorial sovereignty must be given a restrictive interpretation, as the Permanent Court held in a comparable case, that of the SS ‘Wimbledon’, in respect of navigation on the Kiel Canal’.
- 63.
See Navigational and Related Rights (Judgment), supra n. 9, Separate Opinion of Judge Skotnikov, p. 284: ‘No evidence submitted by the Parties showed that Nicaragua and Costa Rica intended at the time the Treaty was concluded to give an evolving meaning to the word “commerce”. Accordingly, the Court’s presumption should have been that Nicaragua, when concluding the 1858 Treaty, was unlikely to have intended to act against its own interest by granting Costa Rica navigational rights which were not in line with the contemporaneous meaning of the term “comercio” and which would evolve and expand over time along with the meaning of that term’ (emphasis added).
- 64.
Mavrommatis Palestine Concessions, Judgment, 1924, PCIJ Series A, No. 2, p. 34; Free Zones of Upper Savoy and the District of Gex, Order, 1929, PCIJ Series A, No. 22, p. 13; Corfu Channel (United Kingdom v. Albania), Merits, Judgment, ICJ Reports 1949, p. 24; Anglo-Iranian Oil Company (United Kingdom v. Iran), Preliminary Objections, Judgment, ICJ Reports 1952, p. 105; Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion, ICJ Reports 1960, p. 160; Territorial Dispute, n. 6 p. 23, para 47; Fisheries Jurisdiction (Spain v. Canada), Preliminary Objections, Judgment, ICJ Reports 1998, p. 455, para 52; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, ICJ Reports 2011, pp. 125–126, paras 133–134.
- 65.
See paragraph 6 of the commentary to Articles 27–28 on the Law of Treaties, YbILC 1966, Vol. II, p. 219, para 6: ‘The Commission […] took the view that, in so far as the maxim ut res magis valeat quam pereat reflects a true general rule of interpretation, it is embodied in article 27, paragraph 1, [eventually Article 31(1) VCLT] which requires that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in the context of the treaty and in the light of its object and purpose’.
- 66.
Ibid.: ‘When a treaty is open to two interpretations one of which does and the other does not enable the treaty to have appropriate effects, good faith and the objects and purposes of the treaty demand that the former interpretation should be adopted’; see also US–Standards for Reformulated and Conventional Gasoline, WTO Appellate Body Report, 29 April 1996, WT/DS2/AB/R, p. 23.
- 67.
Navigational and Related Rights (Judgment), supra n. 9, p. 238, para 52.
- 68.
Ibid., paras 50–52.
- 69.
Ibid.
- 70.
Ibid., p. 242, para 63.
- 71.
El Salvador/Honduras (Merits), supra n. 10, p. 583, para 375.
- 72.
Ibid.
- 73.
Ibid., pp. 582–583, paras 373 and 376.
- 74.
Arbitral Award of 31 July 1989 (Judgment), supra n. 6, p. 72, para 56.
- 75.
See for example the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, Advisory Opinion, ICJ Reports 1950, p. 229, where it is stated that ‘[t]he principle of interpretation expressed in the maxim: ut res magis valeat quam pereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions for the settlement of disputes in the Peace Treaties a meaning which […] would be contrary to their letter and spirit’. See also United States Nationals in Morocco (Judgment), supra n. 23, pp. 196 and 199, where the Court, referring to the Interpretation of Peace Treaties Advisory Opinion, concluded that ‘[it] cannot adopt a construction by implication of the provisions of the Madrid Convention which would go beyond the scope of its declared purposes and objects. Further, this contention would involve radical changes and additions to the provisions of the Convention.’ The Court, in the Interpretation of Peace Treaties Advisory Opinion, at p. 229, stated: ‘It is the duty of the Court to interpret the Treaties, not to revise them’.
- 76.
El Salvador/Honduras (Merits), supra n. 10, p. 584, para 377.
- 77.
See generally Brown (2007), pp. 92–97.
- 78.
El Salvador/Honduras (Merits), supra n. 10, Separate Opinion of Judge ad hoc Torres Bernárdez, pp. 720–722, paras 192–193.
- 79.
Alleged Violations (Jurisdiction), supra n. 7, paras 42–43.
- 80.
Ibid., para 26.
- 81.
Ibid., paras 42–44.
- 82.
Ibid., para 43.
- 83.
United States - Continued existence and application of zeroing methodology, WTO Appellate Body Report, 4 February 2009, WT/DS350/AB/R, para 268.
- 84.
The Court’s stance on whether ‘object and purpose’ is a single concept or two distinct concepts has not always been consistent. A notable exception from the unitary approach was the case of Border and Transborder Armed Actions (Nicaragua v. Honduras), Preliminary Objections, Judgment, ICJ Reports 1988, p. 89, para 46, where the Court said that a particular solution ‘would be clearly contrary to both the object and the purpose of the Pact’, essentially implying that the concepts ‘object’ and ‘purpose’ are distinct. This approach was also followed in Oil Platforms (Jurisdiction), supra n. 6, pp. 138 ff, paras 275 ff, where the Court examined possible frustration of the purpose and of the object of a treaty of friendship separately. See on this matter Gardiner (2010), pp. 194 ff.
- 85.
Nicaragua v. United States (Merits), supra n. 1, p. 137, para 273.
- 86.
Ibid., p. 135, para 270. The inclusion of such an obligation to abstain from acts calculated to frustrate the object and purpose of a treaty was proposed during the drafting of the 1966 Draft Articles on the Law of Treaties in relation to Article 23 enshrining the principle of pacta sunt servanda. According to the commentary, the proposal was rejected by the Commission as redundant. The obligation was considered clearly implicit in the general requirement of performance of the treaty in good faith. See paragraph 4 of the commentary to Article 23 on the Law of Treaties, YbILC 1966, Vol. II, p. 211.
- 87.
Nicaragua v. United States (Merits), supra n. 1, p. 137, para 273.
- 88.
Ibid. The same conclusion was later reaffirmed by the Court in the case concerning the Arbitral Award of 31 July 1989. The issue in this case was whether or not the overall objective of the parties to settle the entirety of their maritime dispute, as described in their agreement’s preamble should prevail over the specific terms laid down in the text of the same agreement. The Court answered the question negatively, thereby confirming that the use of the ‘object and purpose’ is limited to guidance in the process of interpretation (see supra n. 6, pp. 72–73, paras 55–56).
- 89.
The Court did not rule out the possibility for such a separate obligation to exist (in fact one may argue that it was essentially acknowledged), but neither did it positively confirm it. It stated that ‘if there is a duty of a State not to impede the due performance of a treaty to which it is a Party, that is not a duty imposed by the treaty itself […] This claim therefore does not in fact fall under the heading of possible breach by the United States of the provisions of the 1956 Treaty, though it may involve the interpretation or application thereof’. The subsequent substantial analysis concentrated on the 1956 FCN Treaty itself and the actions that may indeed defeat its object and purpose (Nicaragua v. United States (Merits), supra n. 1, p. 135, para 270 and pp. 136–138, paras 273–276).
- 90.
Nicaragua v. United States (Merits), supra n. 1, p. 138, paras 275–276.
- 91.
For a thorough analysis on the use of the ‘object and purpose’ in treaty interpretation see Buffard and Zemanek (1998), p. 311.
- 92.
Arbitration Between the Republic of Croatia and the Republic of Slovenia, PCA Case No 2012-04, Partial Award, 30 June 2016, paras 215 ff.
- 93.
El Salvador/Honduras (Merits), supra n. 10, p. 383, para 375.
- 94.
Ibid.
- 95.
Paragraphs 8–10 of the commentary to Articles 27–28 on the Law of Treaties, YbILC 1966, Vol. II, pp. 219–220.
- 96.
See Dörr and Schmalenbach (2012), p. 540.
- 97.
Alleged Violations (Jurisdiction), supra n. 7, para 42.
- 98.
El Salvador/Honduras (Merits), supra n. 9, p. 586, para 379.
- 99.
Ibid., para 380. Cf Nolte (2013), pp. 178–179 where this finding of the Court is characterised as ‘exceptional’. According to Nolte: ‘In most cases […] courts and tribunals have accepted that the specification of the “ordinary meaning” by agreed subsequent conduct is determinative, regardless of whether this conduct suggests a broader or a more restrictive alternative of the initial textual meaning’.
- 100.
El Salvador/Honduras (Merits), supra n. 10, p. 586, para 380.
- 101.
Article 31(3)(b) speaks of ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’ (emphasis added).
- 102.
See generally Tzanakopoulos (2016), p. 82 with further references to similar practice by domestic courts.
- 103.
Pun intended.
- 104.
Cf Pound (1921), pp. 832 ff.
- 105.
- 106.
See e.g. LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, pp. 503 ff, paras 104 ff.
- 107.
United States nationals in Morocco (Judgment), supra n. 23, pp. 199–200.
- 108.
Ibid.
- 109.
Fitzmaurice (1953), p. 65.
- 110.
North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, ICJ Reports 1969, p. 28, para 37 (hereinafter ‘ North Sea Continental Shelf (Judgment)’).
- 111.
Ibid., pp. 37, paras 60 ff.
- 112.
Ibid., pp. 38–39, para 63.
- 113.
United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment, ICJ Reports 1980, p. 31, para 62.
- 114.
Ibid.
- 115.
Named after the Senator who successfully presented the amendment for approval to the United States Senate.
- 116.
Nicaragua v. United States (Jurisdiction), supra n. 1, p. 424, para 71.
- 117.
Ibid., p. 422, para 69.
- 118.
Ibid., pp. 423–424, para 71.
- 119.
Ibid.
- 120.
Ibid., p. 422, para 69 and p. 431, para 89.
- 121.
Ibid., p. 422, para 69.
- 122.
Nicaragua v. United States (Merits), supra n. 1 p. 93, para 174.
- 123.
Nicaragua v. United States (Jurisdiction), supra n. 1, p. 424, para 73.
- 124.
Nicaragua v. United States (Merits), supra n. 1, p. 93, para 174.
- 125.
Nicaragua v. United States (Jurisdiction), supra n. 1, p. 425, para 76.
- 126.
See Nicaragua v. United States (Merits), supra n. 1, p. 94, para 176: ‘As regards the suggestion that the areas covered by the two sources of law are identical, the Court observes that the United Nations Charter, the convention to which most of the United States argument is directed, by no means covers the whole area of the regulation of the use of force in international relations’.
- 127.
Ibid.: ‘the Charter, having itself recognized the existence of this right (inherent customary law right of self-defence under Art 51 of the UN Charter), does not go on to regulate directly all aspects of its content. For example, it does not contain any specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law. Moreover, a definition of the “armed attack” which, if found to exist, authorises the exercise of the “inherent right” of self-defence, is not provided in the Charter, and is not part of treaty law. It cannot therefore be held that Article 51 is a provision which “subsumes and supervenes” customary international law’.
- 128.
Ibid., p. 93, para 175.
- 129.
Ibid., p. 95, para 178.
- 130.
See Article 43 VCLT: ‘The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty’.
- 131.
Which in this article is understood to be synonymous to general international law. Whether the two are actually synonymous is a matter for another day and another study.
- 132.
See the chapter on custom in this collection.
- 133.
See US Department of State ‘US Withdrawal From the Proceedings Initiated by Nicaragua in the International Court of Justice’, 18 January 1985, available at http://www.nytimes.com/1985/01/19/world/text-of-us-statement-on-withdrawal-from-case-before-the-world-court.html?pagewanted=all.
- 134.
See the characteristic example of D’Amato (1987), p. 101. D’Amato characterised the judgment as a failure of legal scholarship and the Judges of the Court as a collectively naïve. Regarding the relationship between treaty and custom, D’Amato argued that the Court’s ‘lack of understanding, or conscious avoidance, of the theory of the interaction of custom and treaty undermines the authority of its Judgment’.
- 135.
See Nicaragua v. United States (Merits), supra n. 1, Dissenting Opinion of Judge Schwebel, pp. 302–305, paras 91–96; and Dissenting Opinion of Judge Jennings, pp. 530–533.
- 136.
Ibid.
- 137.
Ibid., Separate Opinion of Judge Singh, p. 152.
- 138.
Ibid.
- 139.
See ibid., Dissenting Opinion of Judge Oda, pp. 216 ff.
- 140.
See ibid., Separate Opinion of Judge Sette-Camara, pp. 197–198 and Separate Opinion of Judge Ni, pp. 201 ff.
- 141.
Ibid., Separate Opinion of Judge Ago, pp. 183–184, paras 6–7. For a general assessment of the ICJ’s methodology in determining the existence of customary international law see Talmon (2015).
- 142.
See Crawford (2012), p. 22.
- 143.
Article 43 VCLT.
- 144.
- 145.
- 146.
See e.g. North Sea Continental Shelf (Judgment), supra n. 110, p. 38, para 61.
- 147.
In accordance with Article 13 of the UN Charter, the General Assembly of the UN has the power to initiate studies and make recommendations for the purpose of ‘encouraging the progressive development of international law and its codification’. The General Assembly has accordingly established the International Law Commission and given it the mandate to codify and progressively develop international law. See the Statute of the International Law Commission, adopted by the General Assembly in Resolution 174 (II) of 21 November 1947, as amended by Resolutions 485 (V) of 12 December 1950, 984 (X) of 3 December 1955, 985 (X) of 3 December 1955, and 36/39 of 18 November 1981.
- 148.
North Sea Continental Shelf (Judgment), supra n. 110, p. 38, para 63.
- 149.
Guide to Practice on Reservations to Treaties, Report of the International Law Commission on the work of its sixty-third session (2011), UN Doc. A/66/10/Add.1, pp. 369 ff.
- 150.
See North Sea Continental Shelf (Judgment), supra n. 110, p. 39, para 65 and ibid., Dissenting Opinion Morelli, p. 198: ‘Naturally the power to make reservations affects only the contractual obligation flowing from the Convention […] It goes without saying that a reservation has nothing to do with the customary rule as such. If that rule exists, it exists also for the State which formulated the reservation, in the same way as it exists for those States which have not ratified’.
- 151.
Guide to Practice on Reservations to Treaties, supra n. 149, pp. 370–371.
- 152.
Ibid.
- 153.
Or ‘the future lasts forever’, the title of an autobiographical essay by Althusser (1992).
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Tzanakopoulos, A., Ventouratou, A. (2018). Nicaragua in the International Court of Justice and the Law of Treaties. In: Sobenes Obregon, E., Samson, B. (eds) Nicaragua Before the International Court of Justice. Springer, Cham. https://doi.org/10.1007/978-3-319-62962-9_9
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