Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v.

United States)

Procedural History:
Proceeding in the International Court of Justice.

Overview:
Nicaragua (P) filed suit in !984 against the Uuited States (D) claiming it was responsible for illegal military and
paramilitary activities in and against Nicaragua. The United States (D) challenged the jurisdiction of the
International Court of Justice to hear the case, as well as the admissibility of Nicaragua’s (P) application to the
I.C.J. Nicaragua (P) filed suit in 1984 against the United States (D), claiming it was responsible for illegal
military and paramilitary activities in and against Nicaragua (P). The United States (D) challenged the
jurisdiction of the International Court of Justice to hear the case. Though the United States (D) deposited a
declaration accepting the compulsory jurisdiction of the Court in 1946, it attempted to qualify that declaration in
a 1984 notification referring to the declaration of 1946 and stating in part that the declaration “shall not apply to
disputes with any Central American State …. “The United States (D) also argued that Nicaragua (P) had failed
to deposit a similar declaration to the l.C.J., and that the I.C.J. lacked jurisdiction on that ground as well.
Nicaragua (P) argued that it could rely on the 1946 declaration made by the United States (D) because it was a
“state accepting the same obligation” as the United States (D) when it filed charges in the l.C.J. against the
United States(D). Nicaragua (P) also pointed to its intent to submit to the compulsory jurisdiction of the I.C.J.
through a valid declaration it made in 1929 with I.C.).’s predecessor, the Permanent Court of International
Justice, even though Nicaragua (D) failed to formally deposit it with that court. Finally, the United States (D)
also challenged the admissibility of Nicaragua’s (P) application to the I.C.).

Issue:
(I) Does the International Court of Justice have jurisdiction to hear a dispute between two states if each
accepted the Court’s jurisdiction? (2) Is the application by a state to the International Court of Justice
admissible where no grounds exist to exclude it?

Rule:
(1) the ICJ has jurisdiction to hear a dispute between two states if each accepted court’s jurisdiction; (2)the
application by a state to the ICJ is admissible where no grounds exist to exclude it

Analysis:
The questions of jurisdiction and admissibility are very complicated, but are based primarily on the principle
that the I.C.J. has ono/ as much power as that agreed to by the parties. A primary focus of the case was on the
declarations-the 1946 declaration of the United States, and the 1929 declaration of Nicaragua-and what each
declaration indicated about the respective parties’ intent as it relates to the I.C.J.’s jurisdiction .

Outcome:
(I) Yes. The International Court of Justice has jurisdiction to hear a dispute between two states if each
accepted the Court’s jurisdiction. Nicaragua’s (P) declaration of 1929 is valid even though it was not
deposited with the Permanent Court, because it had potential effect that would last for many years. Because
it was made unconditionally and was valid for an unlimited period, it retained its potential effect when
Nicaragua (P) became a party to the Statute of the I. C.). The drafters of the current Statute wanted to
maintain the greatest possible continuity between it and the Permanent Court. Nicaragua (P) may be
deemed to have given its consent to the transfer of its declaration to the l.C.].when it accepted the Statute. In
addition, the conduct of Nicaragua (P) and the United States (D) suggest that both intended to be bound
by the compulsory jurisdiction of the I. C.)., and the conduct ofthe United States (D) constitutes
recognition of the validity of the declaration of Nicaragua (P) of 1929. Because the Nicaraguan
declaration of 1929 is valid, Nicaragua (P) was a “state accepting the same obligation” as the United
States (D) at the date of filing of the charges with the I.C.J., and therefore could rely on the United States’
(D) declaration of 1946. The 1984 notification by the Untied States (D) does not prohibit jurisdiction in this
case, because the United States (D) appended by its own choice a six months’ notice clause to its declaration,
and it was not free to disregard it with respect to Nicaragua (P). The obligation of the United States (D) to
submit to the jurisdiction of the I. C.J. in this case cannot be overridden by the I 984 notification. The
“multilateral treaty reservation” that was appended to the United States’ (D) declaration of 1946, which
limited the I.C.J.’s compulsory jurisdiction, also does not prohibit jurisdiction in this case. Through the
declaration, the United States (D) accepted jurisdiction except with respect to “disputes arising under a
multilateral treaty, unless (I) all parties to the treaty affected by the decision are also parties to the case
before the Court, or (2) the United States of America specially agrees to jurisdiction.” Nicaragua’s (P)
application in this case relies on four multilateral treaties, and the United States (D) argued that the I.C.J. could
exercise jurisdiction only if all treaty parties affected by a decision were also parties to the case. But the effect
on other states is not a jurisdictional problem, and the United States’ (D) objection to jurisdiction on the basis of
the multilateral treaty reservation is unfounded. (2) Yes. The application by a state to the International Court of
Justice is admissible where no grounds exist to exclude it. The United States (D) challenged the admissibility of
Nicaragua’s (P) application on five separate grounds. The first-that Nicaragua (P) failed to bring forth necessary
parties-fails because there is no “indispensable parties” rule. The second and thirdthat Nicaragua (P) is asking
the Court to consider the existence of a threat to peace, which is the eXclusive province of the Security Council-
fails because the l.C.J. can exercise jurisdiction concurrent with that of the Security Council. Both proceedings
can be pursued pari passu. The fourth-that the I.C.J. is unable to deal with situations involving ongoing armed
conflict-is not a show-stopper because any judgment on the merits is limited to the evidence submitted and
proven by the litigants. The fifth-that the case is incompatible with the Contadora process, to which Nicaragua
(P) is a party-fails because there is nothing compelling the I.C.J. to decline to consider one aspect of a dispute
just because the dispute has other aspects. The fact that negotiations are being conducted subject to the
Contadora process does not pose any legal obstacle to the exercise by the Court of its judicial function.

________________________________________________________________________________________

North Sea Continental Shelf Cases

(Federal Republic of Germany/Denmark, Federal Republic of Germany/Netherlands) I.C.J. Reports 1969

Facts a. The International Court of Justice delivered judgment, by 11 votes to 6.

b. Both Denmark and the Netherlands submitted an individual dispute with Germany to the ICJ involving
claims to the North Sea Continental Shelf. These two separate claims were joined by the ICJ, and decided as
one case. The parties sought a method by which the Continental Shelf could be fairly delimited. All parties
agreed the Court was not to physically apportion claims, but merely prescribe a method of delimitation for the
parties to follow.

c. Denmark and the Netherlands argued that the method of equidistance should be implemented. This is that
each State claimed all areas that are closer to itself than any other state. They claimed that the Geneva
Convention supported this method. Moreover, it was alleged to have been an a priori rule of law, a rule of
customary international law, and a general rule of conventional practicality.

d. Germany, who had not ratified the Geneva Convention, claimed that the rule of equidistance was unfair.
The State also argued for an apportionment of the shelf that was proportional to the size of each state’s
adjacent land.

Questions a. Is the Geneva Convention binding on a State that has not ratified it?

b. Is the equidistance rule international law?

Decisions a. The Court found that the Geneva Convention is not binding on German, as it did not ratify it.

b. While the Geneva Convention does call for the rule of equidistance, the Court found that the Geneva
Convention was not binding upon Germany. Moreover, the stipulations outlined in the Geneva Convention
would have allowed Germany to opt out in this area, so its membership in the treaty is a moot point. Upon
inspection of the language of both the Geneva Convention and the Truman Proclamation, equidistance was
found to be a last resort rather than an a priori rule. Also looking to these sources, the Court rejected claims
which included equidistance in customary international law. Theses texts which originally included the rule of
equidistance only did so for secondary purposes, and the utilization of it was insufficient to prove it to be
either customary international law, or a general law of practicality. The Court also pointed out mathematical
problems of contradiction under the rule. The Court rejected Germany’s claim of proportional apportionment
because doing so would intrude upon the natural claims due to States based on natural prolongations of land.
Also, the Court’s role was to outline a mechanism of delimitation only. The Court found, therefore, that the
two parties must draw up an agreement taking both the maximization of area and proportionality into
account. These were to be based upon “equitable principles.” The holding here is somewhat inconclusive, but
the opinion is significant to international law, regardless.

Principles a. The international law elements of the case are the power of treaties, customary international
law, and the principle of equidistance in claims to sea territory.

b. The rule of law upheld in this case is the Geneva Convention.

c. There are several principles in this case manifested in the Geneva Convention. The court rejected the
principle of equidistance. It upheld, rather, the idea of “equitable principles,” which is only defined as those
which maximizes land claims based on several cooperative factors. The Court also upholds the principle of
customary international law by using the text of the Geneva Convention and its purpose to exclude the
mechanism of equidistance. Conclusions The Court’s ruling has a terminal impact on the principle of
equidistance and its utilization through the Geneva Convention. The Court does not proscribe its use, but
eliminates its legal credibility. This, of course, has no impact on the rest of the Geneva Convention. As the
holding does not prescribe any specific remedy, this case does not significantly aid in any future decisions,
other than for the purpose of denying the equidistance principle legal weight. If this case were used as
precedent otherwise, it would merely direct the disputing states to look to customary international law and
cooperative action.
Case Concerning The Barcelona Traction, Light And Power Company, Limited (Belgium v. Spain) I.C.J. 1964

Overview:
-Belgium (P) brought an action for damages against Spain (D) on the ground that its nationals as
shareholders of the Barcelona Traction Co., incorporated and registered in Canada, had been
seriously harmed by actions of Spain (D) resulting in expropriation.
-The Barcelona Traction, Light, and Power Co. was incorporated and registered in Canada for the
purpose of developing and operating electrical power in Spain (D).
-After the Spanish Civil War, the company was declared bankrupt by a Spanish court and its assets
were seized.
-After the Canadian interposition ceased, Belgium (P) brought an action for damages against Spain
(D) for what it termed expropriation of the assets of the Traction Co. on the ground that a large
majority of the stock of the company was owned by Belgian (P) nationals.
-Spain (D) raised the preliminary objection that Belgium (P) lacked standing to bring suit for
damages to a Canadian company.

Issue:
Does the state of the shareholders of a company have a right of diplomatic protection if the state
whose responsibility is invoked is not the national state of the company?

Outcome:
No. In order for a state to bring a claim in respect of the breach of an obligation owed to it, it must
first establish its right to do so. This right is predicated on a showing that the defendant state has
broken an obligation toward the national state in respect of its nationals. In the present case it is
therefore essential to establish whether the losses allegedly suffered by Belgian (P) shareholders in
Barcelona Traction were the consequence of the violation of obligations of which they are
beneficiaries.
-In the present state of the law, the protection of shareholders requires that recourse be had to
treaty stipulations or special agreements directly concluded between the private investor and the
state in which the investment is placed. Barring such agreements, the obligation owed is to the
corporation, and only the state of incorporation has standing to bring an action for violations of
such an obligation. Nonetheless, for reasons of equity a theory has been developed to the effect
that the state of the shareholders has a right of diplomatic protection when the state whose
responsibility is invoked is the national state of the company. This theory, however, is not
applicable to the present case, since Spain (D) is not the national state of Barcelona Traction.
Barcelona Traction could have approached its national state, Canada, to ask for its diplomatic
protection.
-For the above reasons, the Court is of the opinion that Belgium (P) lacks standing to bring this
action.

Rule:
the state of a shareholders corporation has a right of diplomatic protection only when the state
whose responsibility is invoked is the national state of the company.
G.R. No. L-2662 March 26, 1949

SHIGENORI KURODA, petitioner,

vs.

Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel

MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major
FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents.

Facts:

- A Military commission was empaneled under the authority of Executive Order 68 of the President
of the Philippines, which was issued on July 29, 1947. This is an
acte s t a b l i s h i n g a n a t i o n a l w a r c r i m e s o f f i c e a n d p r e s c r i b i n g r u l e s a n d r e g u l a t i o
n governing the trial of accused war criminals.- Shigenori Kuroda, formerly a Lieutenant-
General of the Japanese Imperial Armyand Commanding General of the Japanese Imperial
Forces in The Philippines from1943-1944, is charged before a military commission convened by the
Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and
failed" t o d i s c h a r g e h i s d u t i e s a s s u c h c o m m a n d , p e r m i t t i n g t h e m t o c o m m i t b r u t a
l atrocities and other high crimes against noncombatant civilians and prisoners of theImperial
Japanese Forces in violation of the laws and customs of war".- Melville Hussey and Robert Port,
American lawyers, were appointed prosecutors inbehalf of USA.- Kuroda challenges the legality of
the EO No. 68 and the personality as prosecutorsof Hussey and Port.- Kuroda’s arguments were:
(1)EO No. is illegal on the gound that ut wiolates notonly the provisions of our
constitutional law but also our local laws; (2) MilitaryCommission has no Jurisdiction to
try him for acts committed in violation of theHague Convention and the Geneva
Convention because the Philippines is not as i g n a t o r y t o t h e f i r s t a n d s i g n e d t h e
s e c o n d o n l y i n 1 9 4 7 a n d , t h e r e f o r e , h e i s charged with “crime” not based on law,
national or international; and (3) Husseya n d
Port have no personality as prosecutors in this case because they are
n o t qualified to practice law in Philippines in accordance with our Rules of court and
thea p p o i n t m e n t o f s a i d a t t o r n e y s a s p r o s e c u t o r s i s v i o l a t i v e o f o u
r n a t i o n a l sovereignty.

Issues/Held:

( 1 ) W O N E O N o . 6 8 i s v a l i d a n d c o n s t i t u t i o n a l ? [ Y e s i t i s a v a l i d because it is based
on the generally accepted principles of international law whichform part of our laws.](2) WON rules and
regulations of the Hague and Geneva Conventions form part of the law of the nation even if
Philippines was not a signatory to the conventionsembodying them? [Yes, they form part
of our laws.](3) WON the American lawyers could participate in the prosecution of this
case?[Yes, they can.]