1984

ICJ

Case concerning military and paramilitary activities in and against Nicaragua Nicaragua v. US Jurisdiction and admissibility

Nicaragua instituted proceedings on 9 April 1984, the same date she asked provisional measures: US desist support contras, and any military activity, request granted. Nicaragua made a unilateral application to the ICJ claiming that US had acted in breach of its international obligations by the use of force against Nicaragua. Nicaragua argued that the court had jurisdiction under the optional clause 36.2 Statute, and under the 1956 US-Nicaragua Treaty of Friendship. Nicaragua argued as well violation to 4 multilateral treaties: UN, OAS, Montevideo Convention on Rights and Duties of States 1933, Havana convention on R&D of S in the Event of civil Strife 1928 & CIL. With regard the optional clause Nicaragua had declared in 1929 and the US in 1946. The 1946 US declaration on optional clause stated that compulsory jurisdiction of the ICJ shall not extend to disputes under multilateral treaties (Vandenberg amendment) ‘unless 1. all the parties to the treaty affected by the decision are parties to the case or 2. the US specially agrees’ (Proviso invoked by the US) The 1946 US declaration stated as well the self-judging reservation, (Connolly Amendment). It reserved from the jurisdiction of the ICJ ‘disputes within domestic jurisdiction as determined by the USA’ This proviso was not invoked by the US (difficulty to invoke?) The US declaration 1946 contained no right to vary it, and stated that it would be valid for five years and that it can only be terminated after six months notice. On 6 may 1984 US gave notice that the declaration was not to apply to ‘disputes with any CA States and notwithstanding the terms of 1946, this provision shall take effect immediately’ On the other hand, Nicaragua never completed the process of ratification to the PCIJ, so the 1929 Declaration made under PCIJ was never in force for Nicaragua. 36.5 ICJ ‘Declaration under PCIJ still in force’ were transferred to the ICJ After dealing with the fore mention matter the court considered whether it had jurisdiction in respect of claims by Nicaragua based in GIL that paralleled rules in the UN Charter, even though US had made a reservation to its acceptance of jurisdiction under (optional clause) excluding ‘disputes arising under a multilateral treaty’

If the US had not limited its right to alter his declaration by stating in its declaration that such change was to take place only on six months’ notice it could have modified or terminated its declaration. ‘a power which is inherent to any unilateral act of a state’. The US could only withdraw its declaration within the terms of its declaration The courts notes that Nicaragua having failed the ratification to PCIJ was not a party to that treaty and consequently the Nicaragua declaration 1929 had not acquired binding force. However, while the declaration had not acquired binding force it is not disputed that it could have done so, at any time between the making of Nicaragua’s declaration and the day on which the new court came into existence, if not later. Nicaragua’s declaration was valid at the moment when Nicaragua became a party to the ICJ The multilateral treaty reservation could not bar adjudication by the Court of all Nicaragua’s Claims, because Nicaragua does not confine her claims only to violations of the four multilateral conventions referred, on the contrary Nicaragua invokes a number of principles of customary and general international law that, is contended, have been violated by US The fact that the above-mentioned principles have been codified or embodied in multilateral conventions does not mean that they cease to exist and to apply as principles of CIL, even as regards countries that are parties to such conventions. The principles continue to be binding as part of CIL despite the operation of provisions of conventional law in which they have been incorporated. Principle of non-intervention involves the right of every sovereign state to conduct its affairs without outside interference. ‘Between independent states, respect for territorial sovereignty is an essential foundation of International relations’ ICJ 1949 The principle forbids all states to intervene directly or indirectly in internal or external affairs of other states. A prohibited intervention must accordingly be one bearing on matters in which each state is permitted, by the principle of state sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system and the formulation of foreign policy [compulsory democracy?]. Intervention is wrongful when it uses methods of coercion in regard such choices. The prohibition of use of force is a norm of Jus Cogens, that rule has certain exceptions, such as self defence, that exception is based in two criteria: necessity and proportionality. Measures taken in 1981 by US did not correspond to necessity, this measures were taken several months after the offensive against El Salvador, and were not proportional either. Principle of non-intervention involves the right of the state to conduct its affairs without outside interference, and it is a corollary of the principle of sovereign equality of States. The principles of state sovereignty, freedom of commerce and navigation and international humanitarian law are infringed by a State that mines another state’s ports. The mere supply of funds to the contras, while an act of intervention in internal affairs, does not in itself amount to a use of force, US do not create the contras, neither gave direct and critical combat support, at least in a way to support it was tantamount to a direct intervention by US combat forces For one state to use force against another, on the ground that the state has committed a wrongful act of force against a third state, is regarded as lawful, by way of exception, only when the wrongful act provoking the response was an armed attack (106) The existence of active negotiations in which both parties might be involved should not prevent both the SC and the ICJ from exercising their separate functions under the charter and the Statute (108) The court is unable to accept either that there is any requirement of prior exhaustion of regional negotiating processes as a precondition to seizing the court; or that the existence of the Contadora process constitutes in this case an obstacle to the examination by the ICJ of the Nicaragua application and judicial determination