Author: Manvi Tokas, The Northcap University
INTRODUCTION AND FACTS OF THE CASE
In 1909, through military force, the United States of America established their rule in Nicaragua by overthrowing the government of that time. With time many anti USA regime and governments were formed which eventually led to the USA leaving the country and many treaties between them. Anastasio “Tachito” Somoza Debayle was established as the president of the Nicaraguan government by USA.
At around 1971, there was a downfall of the Nicaragua’s president Anastasio “Tachito” Somoza Debayle, and a new government by the name of The Junta of National Reconstruction led by Sandinista movement was formed. As this happens the former Somoza government forms an armed opposition by the name of ‘contras’ which were a right-wing militia. Initially the United States of America (USA) supported the new formed Junta government, but with time changed its attitude and started to support the contras. Seeing such a follow up, the Junta government approaches the ICJ(International Court of Justice) contending the fact that the opposition that is contras, is an armed opposition causing human rights violation even causing death of many citizens in the country. As well as the fact that USA is supporting the contras regime is invalid and a way of possibly overthrowing their (junta) government imposing their own policy in their land.
CONTENTION BY THE PARTIES
NICARAGUA- It was an active contention by the Nicaraguan government that the involvement if USA in influencing and supporting the contras armed opposition was a direct intervention in the internal politics in the country and highly invalid. This was a clear sign according to them a violation of the rights and duties of a state, which imposes duty on a state not to intervene in the internal matters of any other state; which in this case USA was clearly and reflectively doing. This act of the US government was also seen as a way threatening the country’s sovereignty trying to overthrow the current government of the country with its influences and tricks. Nicaragua government also contended the fact that the US being a massive superpower has also recruited and trained the armed opposition which were present in the contras government, highly violating the human rights and values as well, as these armed opposition members were responsible for killing many citizens. Other than that US government was also blamed for the long suppression it has caused Nicaragua through military and navy causing them great issues in their land and violative of the international law of land and seas.
UNITED STATES OF AMERICA- The US government remained off sided and made no major statements regarding their active or passive relationship with the contras government or providing them any armed aids. Their main contention centred around claiming how the ICJ had no requisite jurisdiction to entertain this instant matter, by saying how the ‘UN charter and the charter on organisation of states is a multi-lateral treaty and the jurisdiction is maintainable only if the parties to the treaty affected by the decision are also parties to the case before the treaty’. ‘The US claimed how the provisions invoked by Nicaragua have been reserved by them and thus the ICJ has no jurisdiction to entertain this matter’2. USA also contended the fact of causing any direct/indirect aggression towards the Nicaraguan Junta government, it held the stand that it had absolutely no involvement whatsoever in the armed attacks by the opposition as well holding ‘the plea self-defence to surpass the accusation’3 in violation of article 18.
ISSUES RAISED-
Whether the USA had relations with the armed contras government amounting to intervention with the sovereignty of Nicaragua, violating the principles of international law?
Whether the ICJ has the requisite jurisdiction to entertain this instant case?
JUDGMENT-
Issue 1- The fact that whether or not the US had active and sustaining relation with the contras was a major issue in the case. The evidence of the same were presented in the court and the judges with analysing 16 findings held that USA did have direct relations with the contras government of Nicaragua. It had indeed been responsible for supplying armed aids, training military men to hold an agenda against the current government of the country. The judges all of them holding the same opinion agreed to the fact, that the act of US government to support the contras was itself an act of intervention which is against the ‘principles of international law’. ‘Justice Robert Ago’ said that the military actions and the ‘mining of the Nicaraguan waters’ were all part of the same breach. He made a speech as to how a country in respect of
the principles of the international law should always respect the boundaries of the other state; while also maintain its distance from the internal politics, activities and affairs of the country as well, as it has no right nor the domain of intervening forcibly into another country infringing upon the structure, working, administration and the sovereignty of the state. In the case, the judges made the statement that this act by the USA undoubtedly acts a violation to the “territorial integrity, political independence and the most fundamentally accepted principle of international law”. The evidence was full found that the US had created the army of more than 10,000 mercenaries6. This proof was more than enough to establish how the USA had indeed in a way created the contras government. The Nicaragua had this main statement before the court concerning the fact that how the US is simply trying to remove and do away the policies and the government that displeases them; while forcing their own agenda and policies into the foreign land. . Though US had no involvement in actually giving birth to the contras formed opposition, but it did give birth to violence the Nicaragua had to face only and only because of the US government. Thus, accusing the USA of creating, managing, influencing and provoking the contras government should by all means stand. The same was also held by the judges in this instant case, where all the judges together were in favour of holding the USA of creating the contras.
Issue 2- The major and the most debatable issue of this case was the question as to whether the ICJ actually had the jurisdiction to entertain to this particular case or not. The USA, never agreed to the fact that the court had the jurisdiction, it did and still believes that ICJ did not have any jurisdiction to this decide on this case. Being a major and a complicated issue in the case, it brought out various ways and methods an international law could be interpreted. As the USA, firstly, strongly contended the fact that all the allegations Nicaragua had put forward against the USA are from the ‘United nations charter’, ’Organization of American states’ and two other multi-lateral treaties known as the ‘Charter of the organization of the American states’ and ‘Convention on the rights and duties of the state’. As the ICJ does not actually have an automatic jurisdiction over a matter, it is primarily based on the consent of the states. The states need to give consent or declaration to the ICJ to take jurisdiction over a matter. Article
36 of the ICJ statute gives a more detailed insight into the same. The USA therefore, argued
that when it had signed up to the court it had made reservations, that if the court was ever applying a multi-lateral treaty that could happen if all the affected states were included and gave declaration. The USA, obviously did not give declaration for this case, as well as contended how El Salvador had also not given a declaration for the same, thereby, making ICJ’s jurisdiction ineffective and invalid. The court absolutely did not deny this claim by the US government, as it was legal and correct, and denying the same would have meant going against the treaty which would be against the established principles of a body like ICJ itself. But the court, took a different view and perspective towards the US claim as well, firstly, the court claimed how Nicaragua had a compulsory declaration in this case, as Nicaragua itself had made no expressed declaration, it was inherited according to the court by the ‘1929 declaration’ made by the Nicaragua. The US heavily criticised this, contending how the relation between the countries during the course of 30 plus years estops Nicaragua from the compulsory jurisdiction under ICJ. This contention however was not maintained by the court, as the evidence of estoppel claim were not strong whereas there were sufficient evidence to support the Nicaragua’s compulsory jurisdiction since 1946. A reference was made to the case ‘North Continental Shelf case’, whereas to actually form an estoppel on a state the proof needs to be strong as well as be real, meaning one party needs to show oneself unfairly causing or changing the course of actions or decisions for the another state as well.
Another claim of the USA, was how Nicaragua is basing off claims, that how US is causing the formulation of armed forced, all of the allegations, mainly based of the US conventions, which is ‘committed by the charter and by the practice to the competence of other organs, specially the United nations security council’. Basically, the US contended how the case was actually leaning towards political arena and outside the purview of a court. Article 24 was quoted which confers upon the security council the main or the primary responsibility for ‘maintaining peace and security’. This claim was instantaneously contended by the Nicaragua claiming how “the security council responsibility is primary and not absolute”. The court also responded to this claim by referring to “united states diplomatic and consular staff in Tehran case” where the court said how even if a matter/case falls in the purview of the security council to decide, it cannot and should not stop the jurisdiction of the court to decide upon and give its
review. Another reference was to that of the “Corfu channel case”, where it was said ‘the court never shied away from a case merely because it had political implications’12.
Overall, the court just did not refer to the compulsory jurisdiction of Nicaragua by 1929 declaration, but majorly tilted its case towards giving importance and essence to the customary international law. In this case, it is referred as to hold a stand, that not only treaties and conventions between states govern the behaviour and intercourse with each other. The customary international law goes beyond the treaties and established rules, focusing on the aspect of how even before treaties, conventions and other legal documents, there did exist norms and implicit rules of conduct of behaviour between states which had to be complied by, though as no punishment under a statute existed for a defiance of the same, the principles and essence of those rules still existed. The main aspect that the court tried to discover was whether a treaty law could actually be extinguish by a customary law in some cases. The court in this cases, took its jurisdiction by this claim only, as if the treaty law would have prevailed, the court could in no sense take jurisdiction of the case. The court also reflected on a common principles which is usually followed in common law countries, that the treaties formed never actually do away with the underlying principles and ideals of the customary law, they simply amend or change it, making the law formed being over or on top of the old practice, thus the customary law would still be ever present in the law even if its amended/repealed. The court made a statement saying how for the present case it is not important that the customary law which is being invoked has a ‘content identical to that of the rules contained in the treaties’. The court further said ‘even if a treaty law and customary law are identical to the current issue or dispute, this would not be a reason to automatically disapprove the customary law over the treaty law in its independent applicability’, ‘the same is with the multilateral treaties in this case which by no means extinguish the independent status of the customary law’. It is only when the court uplifted the customary law over the treaty one in this case and made its own jurisdiction to entertain this instant matter. The USA has never accepted the claim of ICJ having a real jurisdiction in this case, as was reflected by when the ICJ for its human rights violations and intervention into foreign land amounting to the violation of Article 18, article 8 and article 215, held USA accountable and put fine on them as compensation to pay to Nicaragua;
USA backed off and never did the payment of compensation as it never believed the fact that the ICJ had any sort of jurisdiction in this case.
DISSENTING OPNIONS-
As a big 15 judge bench sat in this case, many had dissenting opinions, some of them are-
Justice Oda- He argued that the case was outside the purview of ICJ to handle and entertain due to its very political nature and history that it contained between Nicaragua and USA.
Justice Schwebel- He also argued that the court in reality had no jurisdiction to decide the case also not agreeing to the compulsory jurisdiction held by Nicaragua in this case. As per him, the case was simply to be seen from the perspective of the original legal claimed it had, which was from the treaty aspect not from the customary law. He also claimed how the case and the facts particularly were of very domestic nature relating to insight politics, therefore should be better dealt with the security council instead.
Justice Jennings- He supported the long and detailed dissent of Justice Schwebel, contending how ICJ had no jurisdiction.
ANALYSIS-
The Nicaragua case of 1986, covers the aspect of the United states of America and Nicaragua being involved in a legal case brought by Nicaragua to stop USA from carrying out armed attacks in their territory and maintain their distance from the internal affairs of the country. The US had a long history of attacking and forcefully taking over the Nicaragua, it was later around 1930’s that with more and more pro-US government being formed, US was forced to leave.
During 1972 the then current government of Samoza fell apart and a new government of Sandinista movement came into force. The US government observing this and not liking this government due to its socialist ideologies in the central American mainland, started training mercenaries and supplying arms to the contras government which was an armed rebellion or opposition in Nicaragua. The effect was expected, which was large scale deaths and human rights violation. Extremely unhappy with the acts of the USA, Nicaragua approached the ICJ. Their contention was clear, that the USA is violating the principles of international law and intervening the sovereignty of their state. They claimed violation of UN charter, organization of American states etc. USA, on the other hand held the claim that ICJ had no jurisdiction of this instant matter as US had reserved its declaration as well as other affected parties to the case like El Salvador. The court however, did not stand the contention of America by forming a new interpretation of holding customary more important than treaty law. Based on this, the court had compulsory jurisdiction in this matter and decided the case, holding America absolutely liable for the destruction caused in Nicaragua, also fining them. Though America never held ICJ competent enough to hold jurisdiction in this case, the case itself teaches the importance, value and significance of customary law, which also hold the power to govern behaviour and relationship between states.
CRITICISM
The case, although being unique for its applicability of customary law over the treaty law, still stands a little ambiguous as to how the relationship between the two can be effectively drawn. The case does give its reason for the independent status and applicability of the customary law which cannot automatically be extinguished by a treaty law, but does concretely explain how well these customs and treaties will be interpreted for a balanced and harmonious decision. In the present matter, many of the judges simply dissented on the fact that the court actually did not have any jurisdiction and that how the customary law cannot prevail if a working treaty already exists between the countries. USA itself, never accepted the fact that the ICJ was competent enough to decide on this particular case. Thus the major drawback of this case is not to give clear answer as to which of the two law will prevail if there is inconsistency and what will be major deciding factors. Also, there is this thought that the treaty law could also in a way generate new customs which can become the new customary law, making treaties a mother of customs. Later judgments of the ICJ has also shown how the treaties usually prevail over the customary law between the countries it exists.
CONCLUSION
An important case to understand the international law and its principles, Nicaragua case stands as a landmark judgment, which redefines our understanding of how relations and behaviour between states can be governed effectively. It holds the view and essence of customary law, as practices and norms has always pre-existed before treaties which very well regulated intercourse of states with one another, to avoid its relevance completely, would be neglecting the principles and value of law itself and both(treaty and customary law) are meant for effective governance and overall welfare and protection of states. Whereby, a situation comes, where protection of one state is at risk, a harmonious construction by the courts should be done, rather than extinguishing customary law over treaty law.
FAQS
When was the case brought before ICJ and who approached?
Nicaragua v. U.S. (Military and Paramilitary Activities in and against Nicaragua) was brought before the International Court of Justice (ICJ) on April 9, 1984.
When did the U.S. acquire Nicaragua?
Although the policy was designed to replace explicitly coercive “gunboat” diplomacy, the U.S. invaded Nicaragua in 1912 to further protect its economic interests
What happened in the final decision by ICJ?
The Court had 15 final decisions upon which it voted. The Court found in its verdict that the United States was “in breach 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”, “not to interrupt peaceful maritime commerce”, and “in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956.”.
