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The Republic Of Nicaragua v/s The United States Of America (1986): Case Analysis

"Let the first act of every morning be to make the following resolve for the day:
I shall not fear anyone on Earth.
I shall fear only God.
I shall not bear ill will toward anyone.
I shall not submit to injustice from anyone.
- I shall conquer untruth by truth. And in resisting untruth, I shall put up with all suffering."
- Mahatma Gandhi

Statement Of Facts
Under President Taft 2, the United States launched its first armed intervention in Nicaragua. He ordered the assassination of Nicaraguan President Jos Santos Zelaya in 1909. A contingent of 2,300 US Marines landed at the port of Corinto in August and September 1912 and captured Le'n and the railway connection to Granada.

During the occupation, a pro-US government was formed. The Bryan Chamorro Treaty, signed ten days before the U.S.operated Panama Canal opened for use, granted the United States perpetual canal rights in Nicaragua, barring anybody from building a rival canal without U.S. Consent.

A significant peasant rebellion against both the US occupation and the Nicaraguan establishment began in 1927, led by Augusto C'sar Sandino. The Marines left Nicaragua in 1933, leaving the Nicaraguan National Guard to handle internal security and elections. The head of the National Guard, Anastasio Somoza Garca, ordered his forces to seize and assassinate Sandino in 1934. Somoza took over the presidency in 1937 while still in charge of the National Guard, and established a family run dictatorship that lasted until 1979.

The regime's demise is blamed on the misappropriation of millions of dollars in international aid given to the country in reaction to the terrible earthquake of 1972. In the face of mounting revolutionary fervour, many moderate supporters of the dictatorship began to abandon it. The Sandinista (FSLN) organisation coordinated relief, grew in power, and eventually took over the revolution's leadership. The FSLN came to power in 1979 after a popular revolt.

The US had long opposed the socialist FSLN, and following the revolution, the Carter administration moved rapidly to provide financial and material support to the Somocistas. When Ronald Reagan gained office, he increased direct backing for an antiSandinista group known as the Contras, which comprised former dictatorship loyalists. These insurgents established bases in the border areas of Honduras and Costa Rica.

The Contra army grew to about 15,000 soldiers by themid1980s.By December 1981, the US had begun supporting Contra activities against the Sandinista government, with the CIA at the forefront of operations. The CIA provided the finances and equipment, as well as coordinating training programmes, intelligence, and target lists. While the Contras had few military victories, they did show that they could carry out CIA guerrilla warfare strategies such as inciting mob violence, "neutralising" civilian leaders and government officials, and attacking "soft targets" such as schools, health clinics, and cooperatives, according to training manuals.

Because Congress refused to provide additional aid to the Contras, the Reagan administration sought finance and military equipment from foreign countries and private sources. This method was used to generate $34 million from third countries and $2.7 million from private sources between 1984 and 1986. The National Security Council oversaw the secret contra support, with officer Lt. Col. Oliver North in command. North used the thirdparty cash to establish The Enterprise, which operated as the NSC's covert arm and had its own planes, pilots, airport, ship, operatives, and secret Swiss bank accounts.

It also got help from other government agencies, particularly in Central America, from CIA officers. This operation, on the other hand, functioned without any of the accountability requirements that the US government imposes on its actions. The Enterprise's operations resulted in the IranContra Affair, which allowed contra finance through the revenues of military shipments to Iran from 1986 to 1987.

Analysis Of Court�s Jurisdiction
The International Court of Justice (ICJ) is the UN's "primary judicial organ." The ICJ Statute, which is an annex to and "integral part" of the United Nations Charter, governs the tribunal's operations. All United Nations membernations are also parties to the ICJ Statute under Article 93 of the Charter, which United States signed in 1945.

Despite being a component of the United Nations system, the International Court of Justice (ICJ) does not have jurisdiction over all disputes involving UN member states. The ICJ can only decide legal issues between nations that freely committed to its jurisdiction, with the exception of "advisory opinions," which are non-binding. Some nations have submitted declarations submitting to the ICJ's mandatory jurisdiction in a wide range of issues mentioned in Article 36(2) of the ICJ Statute.

In 1946, the United States made such a proclamation. However, it withdrew that pronouncement in 1985 after the International Court of Justice (ICJ) recognized jurisdiction over a dispute with Nicaragua that the Reagan Administration claimed was a "inherently political situation" that should not be resolved through the courts.

The US refused to take part in the proceedings, claiming that the International Court of Justice (ICJ) lacked authority to hear the case. It's worth noting that the United States, as the responding party, was the only one to challenge the court's ruling, claiming that it made a decision over which it "had neither the jurisdiction nor the competence to render." The United States contended that the Court lacked jurisdiction, dismissing the Court as a "semilegal, semijuridical, semipolitical organisation, which governments sometimes accept and sometimes reject," according to US Ambassador to the United Nations Jeanne Kirkpatrick.

In the present case, Nicaragua (P) brought a suit against the United States (D) on the ground that the United States was responsible for illegal military and paramilitary activities in and against Nicaragua. The United States contested the International Court of Justice's jurisdiction to hear the case, as well as the admissibility of Nicaragua's (P) application to the I.C.J.

When it was found guilty of illegal military and paramilitary actions in and against Nicaragua (P) in a matter brought by the plaintiff in 1984, the United States (D) contested the I.C.J's jurisdiction. Despite the fact that the United States (D) deposited a declaration accepting the Court's mandatory jurisdiction in 1946, it attempted to justify the declaration in a 1984 notification by referring to the 1946 declaration and stating in part that the declaration "shall not apply to disputes with any Central American State..."

In addition to claiming that the I.C.J. lacked jurisdiction, the States (D) claimed that Nicaragua (P) had neglected to file a similar declaration with the Court. When it filed charges in the I.C.J. against the United States, Nicaragua (P) based its argument on its reliance on the 1946 declaration made by the United States (D) because it was a "state accepting the same obligation" as the United States (D).

The plaintiff's willingness to submit to the I.C.J.'s compulsory jurisdiction was further demonstrated by a valid declaration it filed with the I.C.J.'s predecessor, the Permanent Court of International Justice, in 1929, despite Nicaragua's failure to deposit it with that court. The United States also questioned the admissibility of Nicaragua's (P) application to the International Court of Justice (D).

In The Present Case, The Following Issues Related To The Jurisdiction Of The ICJ Were Framed:

  1. Is it within the jurisdiction of the International Court of Justice to hear a dispute between two states if both governments recognise the Court's jurisdiction?
  2. Is it permissible for a state to apply to the International Court of Justice if there are no grounds to reject its application?

The following were held:
  • With regards to issue one, The answer is yes. The International Court of Justice has jurisdiction over a dispute between two states if each of the parties accepts the Court's jurisdiction. The Nicaragua (P) declaration of 1929 was legal despite the fact that it was not submitted with the Permanent Court because of the long-term effect it could have.

    Because the declaration was made unconditionally and was valid for an unlimited period, it retained its impact when Nicaragua became a party to the Statute of the International Court of Justice. The current Statute was written with the goal of preserving as much continuity as possible between it and the Permanent Court. As a result, when Nicaragua (P) approved the Statute, the plaintiff consented to the transmission of its declaration to the International Court of Justice.
     
  • With regards to issue two,The answer was also yes. When no grounds exist to exclude the application of a state, the application of such a state to the International Court of Justice is admissible. To shed light on the situation, The four grounds upon which the United States (D) challenged the admissibility of Nicaragua's (P) application were:
    1. That the plaintiff failed because there is no "indispensable parties" rule when it could not bring forth necessary parties
    2. Nicaragua's (P) request of the Court to consider the possibility of a threat to peace which is the exclusive province of the Security Council, failed due to the fact that I.C.J. can exercise jurisdiction which is concurrent with that of the Security Council
    3. That the I.C.J. is unable to deal with situations involving ongoing armed conflict
    4. That there is nothing compelling the I.C.J. to decline to consider one aspect of a dispute just because the dispute has other aspects due to the fact that the case is incompatible with the Contadora process to which Nicaragua (P) is a party. To explain, The Contadora Group was formed in the early 1980s by Colombia's, Mexico's, Panama's, and Venezuela's foreign ministers to address the Central American issue (military conflicts in El Salvador, Nicaragua, and Guatemala), which threatened to destabilise the entire region.
       
The Framing Of Issues
The following issues were framed:
  1. Whether the the International Court of Justice has jurisdiction to rule on the case?
  2. Whether the United States interfering with Nicaraguan sovereignty by recruiting, training, arming, equipping, financing, providing, and otherwise encouraging, supporting, helping, and directing military and paramilitary acts in and against Nicaragua through the contras?
  3. Whether the United States violated Article 2 of the United Nations Charter, Articles 18 and 20 of the Charter on the Organization of American States, and Article 8 of the Convention on States' Rights and Duties?
  4. Whether the the United States violated international law by engaging in a slew of unethical military operations against Nicaragua?

The Violated Articles In Question

A The following are the laws that were claimed to have been violated by the United States.
  • Article 2 of the UN Charter
    All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
     
  • Article 8 of the Convention on the Rights and Duties of the States
    No state has the right to intervene in the internal or external affairs of another.
     
  • Article 18 of the Charter on the Organization of the American States
    The American States bind themselves in their international relations not to have recourse to the use of force, except in the case of self-defense in accordance with existing treaties or in fulfillment thereof.
     
  • Article 20 of the Charter on the Organization of the American States
    All international disputes that may arise between the American States shall be submitted to the peaceful procedures set forth in this Charter, before being referred to the Security Council of the United Nations.

Contention Of The Parties

Nicaragua claimed 3:
  1. That the United States had violated its treaty obligations to Nicaragua by recruiting, training, arming, equipping, financing, supplying, and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Nicaragua in violation of: Article 2 (4) of the United Nations Charter; Articles 18 and 20 of the Organization of American States Charter; Article 8 of the Convention on the Rights and Duties of States; and Article I, Third, of the Convention concerning the Duties and Rights of States in the Event of Civil Strife.
     
  2. That the United States had violated customary international law by:
    1. Infringing on Nicaragua's sovereignty through armed attacks by air, land, and sea; incursions into Nicaraguan territorial waters; aerial trespass into Nicaraguan airspace; and efforts to coerce and intimidate the Nicaraguan government through direct and indirect means.
    2. Using and threatening to use force against Nicaragua.
    3. Interfering in Nicaragua's domestic affairs.
    4. Trespassing on the high seas' freedom and disrupting peaceful maritime commerce
    5. Murdering, injuring, and kidnapping Nicaraguans.
       
Nicaragua urged that all such activities be stopped, and that the US pay reparations to the government for the harm done to its people, property, and economy.

In contrast to Nicaragua's legitimate and well-structured charges, It's worth noting that the United States, as the responding party, was the only one to challenge the court's ruling, claiming that it made a decision over which it "had neither the jurisdiction nor the competence to render." Quite in character for an oppressive imperialist nation with no moral standing.

Judgment Of The ICJ

The following was adjudged by the 13 judges1 of the ICJ on June 27, 1986:
  1. The Court decides that in deciding the dispute brought before it by the Republic of Nicaragua's Application dated 9 April 1984, the Court must apply the "multilateral treaty reservation" contained in proviso (c) to the declaration of acceptance of jurisdiction made by the Government of the United States of America on 26 August 1946 under Article 36, paragraph 2 of the Statute of the Court;
  2. Rejects the United States of America's rationale of collective self-defense in connection with military and paramilitary activity in and against Nicaragua, the subject of this case;
  3. Decides that the United States of America has acted against the Republic of Nicaragua in violation of its obligation under customary international law not to intervene in the affairs of another State by training, arming, equipping, financing, and supplying the contra forces, or by otherwise encouraging, supporting, and aiding military and paramilitary activities in and against Nicaragua;
  4. Decides that the United States of America, by certain attacks on Nicaraguan territory in 1983-1984, namely attacks on Puerto Sandino on 13 September and 14 October 1983, an attack on Corinto on 10 October 1983; an attack on Potosi Naval Base on 4/5 January 1984, an attack on San Juan del Sur on 7 March 1984; attacks on patrol boats at Puerto Sandino on 28 and 30 March 1984; and an attack on San Juan del Norte on 9 April 1984; and further by those acts of intervention referred to in subparagraph (3) hereof which involve the use of force, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to use force against another State;
  5. Decides that the United States of America has acted against the Republic of Nicaragua in violation of its obligation under customary international law not to violate the sovereignty of another State by directing or authorising overflights over Nicaraguan territory, and by the acts imputable to the United States referred to in subparagraph (4) hereof;
  6. Decides that the United States of America acted against the Republic of Nicaragua by planting mines in its internal or territorial waters during the first months of 1984, in violation of its obligations under customary international law not to use force against another State, not to intervene in its affairs, not to violate its sovereignty, and not to disrupt peaceful maritime commerce;
  7. Decides that the United States of America has acted in violation of its obligations under Article XIX of the Treaty of Friendship, Commerce, and Navigation between the United States of America and the Republic of Nicaragua, signed at Managua on January 21, 1956, by the acts referred to in subparagraph (6) hereof;
  8. Decides that the United States of America has breached its responsibilities under customary international law in this regard by neglecting to disclose the presence and position of the mines placed by it, as referred to in subparagraph (6) hereof;
  9. Finding that the United States of America encouraged the commission of acts contrary to general principles of humanitarian law by producing and disseminating a manual entitled 'Operaciones sicol gicas en guerra de guerrillas' in 1983, but finds no basis for concluding that any such acts committed are imputable to the United States of America as acts of the United States of America;
  10. Decides that the United States of America has committed acts calculated to deprive the Treaty of Friendship, Commerce, and Navigation between the Parties, signed at Managua on 21 January 1956, of its object and purpose, by the attacks on Nicaraguan territory referred to in subparagraph (4) hereof and by declaring a general embargo on trade with Nicaragua on 1 May 1985;
  11. Decides that the United States of America has breached its obligations under Article XIX of the Treaty of Friendship, Commerce, and Navigation between the Parties, signed at Managua on 21 January 1956, by attacking Nicaraguan territory and declaring a general embargo on trade with Nicaragua on 1 May 1985;
  12. Decides that the United States of America has an urgent legal need to halt and desist from all conduct that might be construed as breaches of the preceding legal requirements;
  13. Decides that the United States of America is obligated to compensate the Republic of Nicaragua for whatever harm caused to Nicaragua as a result of the above-mentioned violations of customary international law commitments;
  14. Decides that the United States of America is obligated to make reparations to the Republic of Nicaragua for all damage caused to Nicaragua by breaches of the Treaty of Friendship, Commerce, and Navigation between the Parties, signed at Managua on January 21, 1956;
  15. Decides that, absent agreement between the Parties, the form and amount of such reparation will be determined by the Court, and reserves the subsequent procedure in the case for this purpose; Decides that the form and amount of such reparation will be determined by the Court,
  16. Reminds all parties of their commitment to seek a peaceful resolution to their differences in conformity with international law.
     

Effect Of The Decision On Development Of Pil

  1. In terms of the use of aggressive military action against a sovereign country, this case can be regarded a seismic shift in public international law.
     
  2. In many ways, the decision clarifies concerns regarding the use of force ban and the right to self-defense. The United States' equipping and training of the Contras, as well as the planting of mines in Nicaraguan territorial waters, were held to be in violation of the principles of non-intervention and non-use of force.
     
  3. Although Nicaragua's interactions with the armed opposition in El Salvador may be regarded a violation of the principle of non-intervention and the prohibition of the use of force, they did not amount to "an armed attack," as the phrasing in article 51 supporting the right to self-defense suggests.
     
  4. The Court also looked at the US argument that it was acting in collective self-defense of El Salvador and decided that the prerequisites for this had not been met since El Salvador had never requested US aid on the basis of self-defense.
     
  5. With regards to placing mines, the court said :"...the placing of mines in the seas of another State without any notice or notification is not only an unlawful conduct, but also a breach of the humanitarian law principles underpinning the Hague Convention No. VIII of 1907.

Before we continue further, some definitions are necessary for the sake of clarity.

The Latin term opinio juris sive necessitatis means "an opinion of law or necessity." Opinio juris is a short version of that expression.The second ingredient required to establish a legally enforceable custom in customary international law is opinio juris. Opinio juris signifies a subjective duty on the part of a state, a sense that the law in issue binds it. This criteria is reflected in the International Court of Justice's Statute, Article 38(1)(b), which states that the custom to be adopted must be "recognised as law."

In the context of international law, state practise refers to the actions taken by a state in order to fulfil its legal obligations. "The Court's rulings reveal that a State relying on an alleged international custom observed by States must, in general, prove to the Court's satisfaction that this custom has become so established as to be legally obligatory on the other party," according to the International Court of Justice.

International obligations emerging from established international practises, as opposed to duties arising from formal written conventions and treaties, are referred to as customary international law. Customary international law is the product of nations' common and consistent practise, which they follow out of a perception of legal responsibility.

In the present case, The court opted to utilise customary law in its ruling. The court had the responsibility of ensuring that the principles of customary law were applicable in this situation. Opinio juris and state practise had to be established in order to infer that it was indeed a customary law.

The court stated that opinio Juris could be easily determined by looking at the resolutions issued by the General Assembly. What the ruling lacked, however, was the presence of state practise. Many scholars held the opinion that establishing state practise was more important than opinio juris. Opinio Juris would only be considered when State Practice had been substantiated beyond a shadow of a doubt.

While justifying its judgement, the Court emphasised that states' action should be consistent with established rules, and that any contradictory activity should be viewed as a violation of that rule rather than the creation of a new rule. As a result, establishing opinio juris requires just the universal approval of member states.This ruling made this a historic decision since it contradicted established practise and opinions.

My Personal Analysis And Recommendations

It is pertinent to express my personal opinions, which are based on facts, towards the USA before we proceed further.

Throughout its short history, the United States has invaded or fought in 84 of the 193 countries recognized by the United Nations and has been militarily involved with 191 of 193 � a staggering 98 percent. The United States has been involved in numerous foreign interventions throughout its history.

.All of this can easily be explained by the shocking phenomenon known as American imperialism. It refers to measures aiming at spreading the United States' political, economic, and cultural power beyond its borders. Military conquest, gunboat diplomacy, unfair treaties, subsidization of chosen groups, economic infiltration through private corporations followed by diplomatic or violent intervention when those interests are challenged, or regime change are all possibilities, depending on the external observer.

The US has also been condemned for neocolonialism, which is often characterised as a modern kind of hegemony that leverages economic rather than military dominance in an informal empire and is frequently used interchangeably with contemporary imperialism.

Although American imperialism was forceful and militarised, truthfully, it was essentially a masterplan of economic penetration, substituting money in commerce and investment for troops and weapons in wars and occupations. American military forces did frequently intervene abroad as part of the imperialist quest of areas in which to invest, manufacture cheaply, find consumers, or trade, but they usually pulled out after those lands were made secure for American political and economic objectives, often leaving proxy armies and puppet governments in their place.

Seeing American history, and being aware of its struggle of independence from the Oppressive British empire, which us Indians were too a colony of, It seems almost ironic, considering America's famously advertised principles of sovereignty, democracy, liberty, and independence.

In the present case, simply by having a glance of the imperial history of the USA in general, and with regards to Nicaragua particular, we can see that America are the aggressors. In this case, it was a success for the Nicaraguan government and people, as well as a setback for the US administration. Because the United States is a worldwide political powerhouse, the court overcame all limits and diplomatic pressure imposed on it in reaching this decision. This can be seen as a huge accomplishment for the court since it was able to defy American pressure and render an unbiased ruling, inflicting a legal blow to imperialist countries throughout the world by establishing a valuable anti-political interference precedent.

In fact, I'd like to point out that the US declined to participate in the proceedings, claiming that the ICJ had jurisdiction to hear the case, underscoring how morally misguided they were. Sadly, we live in a world where American tyranny is tolerated and unpunished. The United States obstructed the UN Security Council's execution of the ruling, preventing Nicaragua from receiving any compensation. Nicaragua, under Violeta Chamorro's post-FSLN administration, dropped the lawsuit from the court in September 1992, after the provision requiring the country to seek compensation was repealed.

About a year following the Court's jurisdictional judgement, the US took the even more drastic step of withdrawing its consent to the Court's mandatory jurisdiction, thereby terminating a 40-year legal commitment to binding international adjudication. After a 6-month notice of termination was provided to the United Nations by the Secretary of State on October 7, 1985, the Declaration of Acceptance of the General Compulsory Jurisdiction of the International Court of Justice came to an end.

Despite the fact that the Court ordered the US to "stop and desist" from using unlawful force against Nicaragua and noted that it was "in breach of its commitment under customary international law not to use force against another state" and ordered it to pay reparations, the US refused. As a permanent member of the Security Council, the United States has been able to prevent Nicaragua from using any enforcement procedure.

On November 3, 1986, the United Nations General Assembly passed a non-binding resolution encouraging the United States States to comply by a vote of 94-3 (El Salvador, Israel (what a surprise), and the United States voted against).

To conclude, taking into account all the aforementioned details of the situation pre, during, and post the trial, I say that although the ICJ took a stern stance towards the US's imperialist policies, It wasn't able to enforce any punishments against them.

While not carved in stone4, it is expected that five justices from Western nations, three from Africa, two from Eastern Europe, three from Asia, and two from Latin America and the Caribbean will sit on the International Court of Justice. On the World Court, each of the five permanent members of the UN Security Council has one judge. This implies that the US, Russia, China, the UK, and France are always represented on the court by a judge (except when China did not submit a candidate from 1967 to 1985).

Thus America is always guaranteed to have a strong influence in the ICJ, as is seen in this case. A pertinent fact that I'd like to highlight is that the dissenting opinion given by American Judge Schwebel was twice as long as the actual judgment, and reeked of imperialist bias and hypocrisy.

The fact of the matter is that the International Court of Justice (ICJ) can hear adversarial proceedings between nations (known as "contentious matters") in order to resolve active conflicts (and the court can render certain, non-binding advisory opinions). Even when it comes to states, the ICJ has only consent-based jurisdiction, not mandatory jurisdiction. The ICJ cannot consider a case if there is a disagreement between two governments and one of them has not accepted to World Court jurisdiction by treaty, special agreement after the conflict has arisen, or other proclamation.

Because not all states have given their approval, the Court's most serious flaw is its consent jurisdiction. States can withdraw their consent at any time, and their reservations to Article 36(2) frequently render their consent worthless. Second, when the Court endeavours to exercise its mandatory jurisdiction, there is a possibility that parties will fail to present.

During the 1970s and 1980s, there were several instances of nonappearance, the most prominent of which being the American absenteeism in the Nicaragua case. The absence of parties raises worries about a lack of fairness, perhaps compromising the ultimate judgement. The legal procedure, on the other hand, may be stalled.

States have also been known to ignore the Court's decisions in the past. Despite the fact that the Court's decisions can be enforced by a Security Council resolution, there is no international police force to ensure compliance. Instead, peer pressure from other states is used to enforce the law.

In the present case, The United States refused to recognise the court's ruling and rescinded its prior acknowledgment of the court's jurisdiction in this matter. The US also refused to pay the amount that the Court had set. The case is frequently cited as an example of the International Court of Justice's incapacity to implement its judgements, since it is frequently emasculated by the very countries who formed it.

My recommendations are:
  • To make the ICJ's judgement more enforceable in law.
  • To remove imperialist bias and level the playing field by lessening the authority of each of the five permanent members of the UN Security Council.
  • To counter its lack of pro-activity on the international stage by assigning more cases to the ICJ. Since its creation in 1946, 181 cases have been entered onto the General List for consideration before the court. This number is far too low for the amount of international friction that has occurred during this period.
  • To quicken the process of providing judgements, as many cases drag on for several years only to end with an unsatisfactory judgement.
  • To ensure more justice by giving standing for non-state entities.

Bibliography:
  1. https://www.icj-cij.org/en/case/70/judgments
  2. https://en.wikipedia.org/wiki/Nicaragua_v._United_States
  3. https://ruwanthikagunaratne.wordpress.com/2012/11/15/nicaragua-vs-us-case-summary/
  4. https://www.icj-cij.org/en/court

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