The International Court of Justice in Military and Paramilitary Activities in and against Nicaragua confronted a dilemma that paralleled in many ways the one confronted by the United States Supreme Court in the famous 1803 case of Marbury v. Madison. Each dispute confronted a young court that had not yet established its legitimacy; each court faced a powerful, recalcitrant defendant that challenged its right to decide the case; and each therefore seemed to face two equally unpalatable choices: avoiding the case and seeming to admit defeat, or resolving it only to have the judgment ignored. Either choice seemed to entail profound damage not only for the court as an institution but also for the legal system in which it operated.

The Nicaragua case raises anew long-unresolved questions about the circumstances in which the Court may or should decline to exercise its jurisdiction. It is far from self-evident, of course, that in the absence of a specific grant of discretionary authority the Court is entitled to abstain from judging the merits of a contentious case, once it is satisfied that its jurisdiction has been established. Its judgments, however, and some supportive scholarly writings, suggest variously that discretionary authority is inherent in the Court as a judicial institution; that it is to be inferred from language contained in Articles 36 and 38 of the Statute; that it is implicit in the nature of international law or the remedies available to the Court to fashion relief for violations of it; or that unless otherwise indicated it should be deemed implicit in, even coextensive with, express grants of jurisdiction. In this brief survey, I will suggest that as a general rule the discretionary authority of the Court derives principally from the political community’s tacit acceptance of the Court’s assertions of discretion; that this validation is ambiguous and tenuous, at best; and that it is in the institutional best interests of the Court to justify its exercise of discretion, in each instance, in a more candidly principled way than it has done in the past.

The most important single consequence of Nicaragua v. United States of America may well turn out to be its impact on the vitality of the law of the United Nations Charter governing force and self-defense. Will the case make it more likely, or less, that that law will become an increasingly effective working part of the international system?

The Military and Paramilitary Activities case deepens the gloom already surrounding the two forms of the International Court’s compulsory jurisdiction. Neither Article 36(2) of the ICJ Statute, which confers general compulsory jurisdiction upon the Court in cases of reciprocal state declarations, nor that part of Article 36(1) which vests jurisdiction when treaties so provide has been particularly successful in recent practice. No one denies that the ICJ has served a useful, if occasional, role when it has heard and decided cases voluntarily submitted by then-willing states pursuant to the specially conferred provision of Article 36(1). What is in question is the utility of the all too many recent cases where the Court has taken jurisdiction pursuant to the compulsory provisions of its Statute and then has been, to one degree or another, disregarded.

Every student who has ever taken a traditional international law course has learned Manley Hudson’s four elements for the emergence of a rule of customary international law:

1. (a) concordant practice by a number of States with reference to a type of situation falling within the domain of international relations;

2. (b) continuation or repetition of the practice over a considerable period of time;

3. (c) conception that the practice is required by, or consistent with, prevailing international law; and

4. (d) general acquiescence in the practice by other States.

A small 3-day meeting of international lawyers and other experts was convened by the International Institute of Human Rights in Strasbourg, France, in November 1986 to consider the current status of the right to leave any country, including one’s own, and to return to one’s country. The approximately 30 participants were from Costa Rica, Egypt, the Federal Republic of Germany, France, Morocco, the Netherlands, Sweden, Switzerland, the United Kingdom, the United States and Zambia.