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Nicaragua v USA

1984 ICJ

Part 1: The long and complicated issue of jurisdiction in the case regarding certain military and paramilitary activities

Did Article 36(5) of the Statute of the ICJ apply to Nicaragua? Was Nicaragua a legitimate party to the Permanent Court of International Justice? Was the 1984 notification, in which the US stated it did not recognize the jurisdiction of the ICJ in matter related to Central American nations, valid in the present case? Did the Court have jurisdiction in matters of the Treaty of Friendship, Commerce, and Navigation? Was the application admissible?

Legal Questions

Article 36 (2) of the ICJ Statute

2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation.

Article 36 (5) of the ICJ Statute

5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.

Article XXIV of the Treaty of Friendship, Commerce and Navigation

1. Each Party shall accord sympathetic consideration to, and shall afford adequate opportunity for consultation regarding, such representations as the other Party may make with respect to any matter affecting the operation of the present Treaty. 2. Any dispute between the Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the Parties agree to settlement by some other pacific means.

Was Nicaragua a party to the Permanent Court?

USA said no 24 Sept 1929 Nicaragua made a declaration 4 Dec 1934 Nicaragua s executive signed ratification proposal (unconditional, permanent) 14 Feb 1935 Senate signed, published in La Gaceta 12 Jun 1935 11 Jul 1935 Chamber of Deputies signed, published in La Gaceta 18 Sept 1935 29 Nov 1939 Ministry of External Relations sent to SecGen of League of Nations notice that ratification had already occurred, and that the instrument would be submitted shortly thereafter

Permanent Court Question

League of Nations never received instrument, Nicaragua blamed attacks on commercial shipping during WWII for failure to deliver Nicaragua attended the UN Conference on International Organization in San Francisco, and ratified the Charter on 6 Sept 1945, and Statute of the ICJ on 24 Oct 1945 as an original member of the UN USA claimed Art 36(5) still in force did not apply to Nicaragua, which had not delivered instrument

Permanent Court Question

Nicaragua interpreted 36(5) as excluding those which were expired, which Nicaragua s wasn t Ratification of the Statute to the ICJ in effect perfected ratification to Permanent Court Court s 16th Report (1939-1945) and Yearbooks ( 46- 47, 54- 57, to present) included Nicaragua on lists of States having signed the Optional Clause and bound by the compulsory jurisdiction clause, which was in force * denoted special circumstances

Permanent Court Question

Registry to the Court wrote disclaimers in publications indicating that they were not official records 1968 started annual reporting to the General Assembly, and Nicaragua was said to recognize compulsory jurisdiction Other State parties listed Nicaragua The Court s publications, reports to GA, and Sec-Gen s depositary of declarations affirmed Nicaragua formalized its ratification

Permanent Court Question

Nicaragua did not declare it was not bound ICJ noted it would likely reject the argument of non-binding jurisdiction if Nicaragua used it as a defense in a case against Nicaragua US argued against intolerable uncertainty in the system if Nicaragua s thesis was supported Court noted it seemed that the USA, in its 1984 notification, just days before Nicaragua s application, implied it considered Nicaragua bound under the conditions of 1929

Permanent Court Question

USA argued that Nicaragua represented itself in relations as not being bound Court found the 1943 and 1955 diplomatic information insufficient Court decided it was Nicaragua s intent in 1929, and the formality missing was negligible since the changeover from the League and Permanent Court to the UN and ICJ Compulsory jurisdiction in 36(2) was affirmed

Is the 1984 Notification valid?

Nicaragua contended that there was no right under international law for unilateral modification of Art 36 declarations unless that right had been expressly reserved Court noted that States are free to choose on what they become party to Good faith is an important principle The 1946 declaration by USA stated that changes may be made, but would take effect only after 6 months Neither 6 months nor reasonable time having not passed, the 1984 notification was not in effect Both countries were bound by compulsory jurisdiction in accordance with their original deposits for party status

Does the Court have jurisdiction in matters of the Treaty?

In the 1946 declaration, the USA specified that the Court s compulsory jurisdiction did not extend to: disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the USA specially agrees to the jurisdiction Nicaragua s claim did not confine the subject matter to the violations of the treaties alone UN Charter principles such as non-use of force, non-intervention, respect for independence and territorial integrity were addressed

4. The preliminary objection shall set out the facts and the law on which the objection is based, the submissions and a list of the documents in support; it shall mention any evidence which the party may desire to produce. Copies of the supporting documents shall be attached. 5. Upon receipt by the Registry of a preliminary objection, the proceedings on the merits shall be suspended and the Court, or the President if the Court is not sitting, shall fix the time-limit within which the other party may present a written statement of its observations and submissions; documents in support shall be attached and evidence which it is proposed to produce shall be mentioned. 6. Unless otherwise decided by the Court, the further proceedings shall be oral. *** 7. The statements of facts and law in the pleadings referred to in paragraphs 4 and 5 of this Article, and the statements and evidence presented at the hearings contemplated by paragraph 6, shall be confined to those matters that are relevant to the objection. Regarding affected other States, the Court decided such arguments were not relevant to the case, and the Court found it had jurisdiction http://www.icj-cij.org/documents/index.php?p1=4&p2=3&p3=0

Article 79 (4-7) of the Rules of the ICJ

Was the application admissible?

The US presented 5 arguments claiming the application by Nicaragua was inadmissible In the application, Nicaragua asserted that: The USA was using military force against Nicaragua and intervening in internal affairs, in violation of Nicaragua s sovereignty, territorial integrity, and political independence by training, paying, supplying, and directing an army of more than 10,000 mercenaries, installed in more than 10 base camps in Honduras along the border to carry out attacks against human and economic targets inside of Nicaragua with the intent of harassing and destabilizing the government, so that it could be overthrown or at least change policies which displeased the USA

The inadmissibility argument

1. Nicaragua failed to bring all necessary parties before the court 2. Each of Nicaragua s allegations were no more than a reformulation/restatement of a single fundamental claim, and that claim should be handled by UN Organs 3. The subject matter of the claim was outside of the scope of the ICJ, and was better suite for the Security Council 4. The judicial function is unable to deal with ongoing conflict 5. Nicaragua failed to exhaust all established options to resolve the conflict

Wrong, wrong, wrong, wrong, wrong

1. Other States are free to institute separate proceedings or employ some intervention 2-3. The Security Council is easily blocked, as it was days prior when Nicaragua approached it; matters may be dealt with simultaneously in the Court & other organs; jurisdiction was established 4. The judicial may contribute, and parties are then bound to decisions under Art 94 of the Charter 5. Again, there is no obligation, and both the Security Council and Court can assist separately

11:5 that the Court has jurisdiction on Article 36 (2 & 5) of the Statute of the ICJ 14:2 that the Court has jurisdiction to entertain the application concerning interpretation of the Treaty of Friendship, Commerce and Navigation on the basis of Article XXIV of the Treaty 15:1 that ICJ has jurisdiction on the case Unanimously that the application is admissible

Nicaragua v USA
After the judgment

Part 2: The prospects for enforcing monetary judgments of the International Court of Justice , 30 Va. J. Int l. L. 891 (1990)

1986 Decisions
12:3 Rejected US justification of self-defence Violations of customary int l law via contras 12:3 Decided US intervened in Nicaragua affairs 12:3 Decided US used force against Nicaragua 12:3 Decided US Nicaragua sovereignty 6 other decisions against US for mines & violations 12:3 Decided US must cease and refrain actions and make reparations on customary breaches 14:1 Decided US obligated to make reparations under the bilateral treaty

US Refused to Comply
In 1985, the US announced it would not participate in further hearings In 1988, the US reiterated its refusal to take part in the case In 1988, Sandanistas asked for $12 billion In 1990, Sandanistas were voted out of office prior to court s ruling on the award settlement In 1991, Nicaragua announced it did not wish to continue with the case; case was removed

Enforcement of ICJ Judgments

After an unspecified reasonable amount of time has passed, the debtor has defaulted Enforcement Options UN Organs SC, GA, IMF, WB, WHO, ICAO Between parties in domestic courts Via 3rd party assistance* Self-help
* At the time of the article, O Connell expressed that this was the best option for Nicaragua

ICJ judgments are final Parties are bound to comply via the Statute and UN Charter 1970s-date of O Connell article, ICJ did not deal with noncompliance Statute left non-judicial functions (enforcement) up to Security Council Drafters of the Statute patterned ICJ after PCIJ from League of Nations, which was successful

Problems with the ICJ

Participation ex: Iceland refused to participate in Fisheries case, later to negotiate with UK; US participation in Nicaragua Consistent ignorance of & refusal to comply with interim and provisional orders Enforcement ex: Albania in Corfu Channel case 1954

Security Council
May make recommendations on enforcement Patterned after League of Nations Council, which had authority ex: Bulgaria & Greece in Rhodopia Forest case, Art 13(4) compelled Bulgaria to comply PCIJ-LoA Council mandatory enforcement denied in Optant s case Art 94 of UN Charter gave SC discretion US argued for SC enforcement only where peace keeping is needed, though subject matter restriction not included in Art 94, and peacekeeping covered in Ch VI-VII

Security Council Veto

Veto used frequently for political reasons Some commentators say the veto is not available for Art 94 Art 27(3) requires parties to a case to abstain from voting, but in practice this is not so Permanent members are not required to recuse themselves from votes

Uncertainty of SC Role
1954 request from UK for interim measures against Iran showed no conclusion by SC on the question of its capacity SC specializes in peace-keeping, so it s not the best body for monetary matters IMF, for example, could refuse a SC order

General Assembly
No explicit power to enforce ICJ decisions Indirect authority is given Makes recommendations to organs under the Charter Former USSR disputed GA s rights to authorize force (1956, 58) May recommend economic sanctions, denial of benefits and services, order peace keepers to patrol borders Mostly an unused avenue for enforcement

Domestic Courts
Primary enforcers of int l law To the date of the article, no part to an ICJ or PCIJ case had asked a domestic court to enforce a judgment May consider ICJ as a foreign court May find sovereign immunity a problem ex: Greece & Belgium in Socobelge v Greece (1951), lack of a domestic statute or guideline to enforce an int l judgment Chorzow Factory case showed no municipal court may invalidate directly or indirectly the decision of an int l court Monist theory int l courts are superior

Enforcement under Arbitral Award Agreements

US CoA Cir9, Ministry of Defence for Iran v Gould, decision of Iran-US Tribunal enforceable in US via New York Convention Prior to NYCon, arbitral awards were treated as foreign court decisions Experts argued that States can be legal person Some say NYCon may not exclude judgments

Problems with enforcement under New York Convention

Some States only enforce commercial decisions under NYCon, though some ICJ judgments would then be covered ex: AngloIranian Oil Co. (1951), Interhandel (1957), Barcelona Traction (1970) There are clear and obvious differences between the ICJ judgments and int l arbitral awards, but some commentators contend that the NY Convention could aid enforcement in ICJ rulings

rd 3

Party Assistance

Art 59 of the Statute binds only parties to the judgment 3rd party assistance has occurred ex: Monetary Gold case where gold awarded to Albania after WWII seizures was transferred to UK as part of payment for Corfu Channel case Consistently it is found that 3rd party nations have the right, not obligation, to assist

Creditors are free to try the friendliest means to enforce, including breaking some laws Previously States waged war to enforce Options include: suspend/terminate treaties, freeze/confiscate assets, implement economic sanctions, suspend arms sales, suspend technological/food shipments, limit economic assistance, limit fishing or landing or docking or flight rights Seizure of diplomatic, military property, expropriation of private assets* is likely to exacerbate a problem
* At the time of the O Connell article, expropriation was viewed slightly differently

Review of the enforcement process, sequence

Negotiate Return to ICJ, which is often unwilling to help Ask a UN organ Seek domestic judicial enforcement Seek 3rd party assistance Self-help (last resort)