Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States) 1986 I.C.J.

14 (June 27) The Sandinistas (Communists) took power in Nicaragua. They began providing safe haven to communist rebels trying overthrow the USallied government in El Salvador. The US began supplying the Contras, who were trying overthrow the Sandinistas from basis in Honduras and Costa Rica. In addition, they secretly mined some harbors in Nicaragua. Nicaragua brought a suit in the International Court of Justice, claiming that the US was illegally using force against them. The US claimed that the ICJ did not have jurisdiction. However, the ICJ found that they did. Under Article 36(2) of the ICJ Statute, Parties had to accept compulsory jurisdiction.

and the third-party country (the US) must report to the UN Security Council before taking actions. Neither of these things happened, so the US loses. The ICJ found that the US: Violated the non-intervention principle by arming, equipping, and supporting the Contras. Had violated Article 2(4) by mining Nicaraguan waters. Should cease and desist and make reparations. The ICJ did not specify what would constitute an armed attack that would justify a response under Article 51? How significant must an incursion be to count? Nicaragua was arming militants in Honduras, but it was very low level. The ICJ also didn't address: What a country could do when there was less than an armed attack,

The US refused to participate, but the ICJ heard the merits of the case anyway. The ICJ found for Nicaragua. ICJ found that use of force against another state violates Article 2(4) of the United Nations Charter, unless it can be justified as collective defense under Article 51. Collective defense only applies if the country has been the victim of an armed attack. The ICJ considered the US position that they were allied with El Salvador, and El Salvador had been subject to an armed attack because of the Nicaraguan harboring of the communist rebels. That doesn't rise to the level of an armed attack. However, the ICJ found that the US justification of collective defense could not be sustained because Nicargaura's actions in supporting the communist rebels did not amount to an armed attack on El Salvador. The ICJ found that even if there was an armed attack, in order to come to a country's defense, the target of the attack (El Salvador), must request assistance, Whether if a country supports one side in a civil war in a second country, can a third country enter and support the other side. Whether a country could use force in anticipation of an attack. The Republic of Nicaragua v. The United States of America was a 1984 case of the International Court of Justice (ICJ) in which the ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had violatedinternational law by supporting Contra guerrillas in their rebellion against the Nicaraguan government and by mining Nicaragua's harbors. The United States refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. later blocked enforcement of the judgment by the United Nations Security Council and thereby prevented Nicaragua from obtaining any [2] actual compensation. The Nicaraguan government finally withdrew the complaint from the court in September 1991, following a repeal of the law requiring the [3] country to seek compensation, thus settling the matter. 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
[1]

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." The Court had 16 final decisions upon which it voted. In Statement 9, the Court stated that the U.S. encouraged human rights violations by the Contras by the manual entitled Psychological Operations in Guerrilla Warfare. However, this did [4] not make such acts attributable to the U.S. FACTS Nottebohm was born a German national in 1881. He received citizenship through naturalization from Liechtenstein (plaintiff) in 1939. Prior to this date, in 1905, Nottebohm lived and performed substantial business dealings in Guatemala (defendant), and returned frequently to Germany to visit family. Once Nottebohm received his citizenship from Liechtenstein, he returned to Guatemala and Guatemalan authorities updated his nationality in the Register of Aliens. On July 17, 1941, the United States blacklisted Nottebohm and froze all his assets which were located in the United States. War broke out between the United States and Germany, and between Guatemala and Germany, on December 11, 1941. Nottebohm was arrested in Guatemala in 1943 and deported to the United States, where he was held until 1946 as an enemy alien. Once released, Nottebohm applied for readmission to Guatemala, but his application was refused. Nottebohm moved his residence to Liechtenstein (where he was a citizen), but Guatemala had already taken steps to confiscate Nottebohms property in Liechtenstein. Guatemala succeeded in 1949. Liechtenstein instituted legal proceedings against Guatemala in the International Court of Justice (ICJ), requesting the court declare Guatemala had violated international law in arresting, detaining, expelling and refusing to readmit Mr. Nottebohm and in seizing and retaining his property. Additionally, Liechtenstein requested the ICJ to order Guatemala to pay compensation as reparation. Guatemala defended by contesting Nottebohms Liechtenstein nationality. Judgment The very long judgment first listed 291 points. Among them that the United States had been involved in the "unlawful use of force." The alleged violations included attacks on Nicaraguan facilities and naval vessels, the mining of Nicaraguan ports, the invasion of Nicaraguan air space, and the training, arming, equipping, financing and supplying of forces (the "Contras") and seeking to overthrow Nicaragua's Sandinista government. This was followed by the statements that the judges voted on.[11] Findings

The court found evidence of an arms flow between Nicaragua and insurgents in El Salvador between 1979-81. However, there was not enough evidence to show that the Nicaraguan government was imputable for this or that the US response was proportional. The court also found that certain transborder incursions into the territory of Guatemala and Costa Rica, in 1982, 1983 and 1984, were imputable to the Government of Nicaragua. However, neither Guatemala nor Costa Rica had made any request for US intervention; El Salvador did in 1984, well after the US had intervened unilaterally.[2] "As regards El Salvador, the Court considers that in customary international law the provision of arms to the opposition in another State does not constitute an armed attack on that State. As regards Honduras and Costa Rica, the Court states that, in the absence of sufficient information as to the transborder incursions into the territory of those two States from Nicaragua, it is difficult to decide whether they amount, singly or collectively, to an armed attack by Nicaragua. The Court finds that neither these incursions nor the alleged supply of arms may be relied on as justifying the exercise of the right of collective self-defence."[12] Regarding human rights violations by the Contras, "The Court has to determine whether the relationship of the contras to the United States Government was such that it would be right to equate the Contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government. The Court considers that the evidence available to it is insufficient to demonstrate the total dependence of the contras on United States aid. A partial dependency, the exact extent of which the Court cannot establish, may be inferred from the fact that the leaders were selected by the United States, and from other factors such as the organisation, training and equipping of the force, planning of operations, the choosing of targets and the operational support provided. There is no clear evidence that the United States actually exercised such a degree of control as to justify treating the contras as acting on its behalf... Having reached the above conclusion, the Court takes the view that the Contras remain responsible for their acts, in particular the alleged violations by them of humanitarian law. For the United States to be legally responsible, it would have to be proved that that State had effective control of the operations in the course of which the alleged violations were committed."[12] The Court concluded that the United States, despite its objections, was subject to the Court's jurisdiction. The Court had ruled on 26 November by 11 votes to one that it had jurisdiction in the case on the basis of either Article 36 (i.e. compulsory jurisdiction) or the 1956 Treaty of Friendship, Commerce and Navigation between the United States and Nicaragua. The Charter provides that, in case of doubt, it is for the Court itself to decide whether it has jurisdiction, and that each member of the United Nations undertakes to comply with the decision of the Court. The Court also ruled by unanimity that the present case was admissible.[10] The United States

then announced that it had "decided not to participate in further proceedings in this case." About a year after the Court's jurisdictional decision, the United States took the further, radical step of withdrawing its consent to the Court's compulsory jurisdiction, ending its previous 40 year legal commitment to binding international adjudication. The Declaration of acceptance of the general compulsory jurisdiction of the International Court of Justice terminated after a 6-month notice of termination delivered by the Secretary of State to the United Nations on October 7, 1985. [13] Although the Court called on the United States to "cease and to refrain" from the unlawful use of force against Nicaragua and stated that the US was in "in breach of its obligation under customary international law not to use force against another state" and ordered it to pay reparations, the United States refused to comply. [3] As a permanent member of the Security Council, the U.S. has been able to block any enforcement mechanism attempted by Nicaragua.[14] On November 3, 1986 the United Nations General Assembly passed, by a vote of 94-3 (El Salvador, Israel and the US voted against), a non-binding resolution urging the US to comply.[4] The ruling On June 27, 1986, the Court made the following ruling: The Court Decides that in adjudicating the dispute brought before it by the Application filed by the Republic of Nicaragua on 9 April 1984, the Court is required to apply the "multilateral treaty reservation"contained in proviso (c) to the declaration of acceptance of jurisdiction made under Article 36, paragraph 2, of the Statute of the Court by the Government of the United States of America deposited on 26 August 1946; Rejects the justification of collective self-defence maintained by the United States of America in connection with the military and paramilitary activities in and against Nicaragua the subject of this case; Decides that the United States of America, by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to intervene in the affairs of another State; 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; Decides that the United States of America, by directing or authorizing over Rights of Nicaraguan territory, and by the acts imputable to the United States referred to in subparagraph (4) hereof, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to violate the sovereignty of another State; Decides that, by laying mines in the internal or territorial waters of the Republic of Nicaragua during the first months of 1984, the United States of America has acted, against the Republic of Nicaragua, 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 and not to interrupt peaceful maritime commerce; Decides that, by the acts referred to in subparagraph (6) hereof the United States of America has acted, against the Republic of Nicaragua, in breach 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 21 January 1956; Decides that the United States of America, by failing to make known the existence and location of the mines laid by it, referred to in subparagraph (6) hereof, has acted in breach of its obligations under customary international law in this respect; Finds that the United States of America, by producing in 1983 a manual entitled 'Operaciones sicolgicas en guerra de guerrillas', and disseminating it to contra forces, has encouraged the commission by them of acts contrary to general principles of humanitarian law; but does not find a basis for concluding that any such acts which may have been committed are imputable to the United States of America as acts of the United States of America; Decides that the United States of America, 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, has committed acts calculated to deprive of its object and purpose the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956; Decides that the United States of America, 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, has acted 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; Decides that the United States of America is under a duty immediately to cease and to refrain from all such acts as may constitute breaches of the foregoing legal obligations; Decides that the United States of America is under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of obligations under customary international law enumerated above; Decides that the United States of America is under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956; Decides that the form and amount of such reparation, failing agreement between the Parties, will be settled by the Court, and reserves for this purpose the subsequent procedure in the case; Recalls to both Parties their obligation to seek a solution to their disputes by peaceful means in accordance with international law. Iran case ICJ, 1980, (US vs. Iran) Principle: The ICJ upheld in this case the principle of inviolability of the premises of a diplomatic mission also of the documents archives of the mission as well as the receiving state obligations to protect this inviolability. Fact of the case: On Nov 4, 1979 a strong group of militant ironies and other demonstrators over ran the compound of the embassy of the US at Tehran. Seized the building took charge and hostage 52 people there .50 were diplomat and consular staff and 2 were private citizen. Issue: 1. Whether Iran can make liable for the acts of the militants. 2. Whether Iran violated the provision of Vienna convention, general principle of Int. law. Decision: ICJ held that the Iran has violated the obligations under the Vienna conventions 13 votes to 2. Reasoning: 1. It was contractual obligations as part of Iran.

2. The action of Iranian govt. violated the art 22, 24, 25, 27, 29 of the 1961 Vienna convention and also art 5 and 36 the Vienna convention. 3. Iran fails to give protection and perform its duty.

Individuals as objects of Int'l Law Case: The Nottebohm Case (1955; ICJ) Facts: Nottebohm was born in Germany, and was a German citizen, although he lived in Guatemala since 1903, and conducted a prosperous business there, but never became a citizen of Guatemala. In 1939, he applied to become a citizen of Liechtenstein. The application was approved even though a requirement was that he be in residence there for at least 3 years, but there was an exception and he became a citizen of Liechtenstein. When he tried to re-enter Guatemala in 1943, he was refused entry (probably because of his original German citizenship and because of WWII). Liechtenstein offered Nottebohm protection against the government of Guatemala and sued Guatemala in the International Court of Justice. However, the government of Guatemala argued that Nottebohm did not gain Liechtenstein citizenship for the purposes of international law. Issue: Whether the conferment of the Lichtenstein citizenship is not contrary to int'l law, and if Lichtenstein's claim on behalf of Nottebohm is admissible in court. - No. Holding: The court agreed with Guatemala and held that claims by Lichtenstein were inadmissible . Reasoning: Although the Court stated that it is the sovereign right of all states to determine its own citizens and criteria for becoming one in municipal law, such a process would have to be scrutinized on the international plain in questions of diplomatic protection. The Court upheld the principle of effective nationality, where the national must prove a meaningful connection to the state in question. This principle was previously applied only in cases of dual nationality to determine which nationality should be used in a given case. However, Nottebohm had forfeited his German nationality and thus only had the nationality of Liechtenstein. Notes Here the individual cannot bring the claim himself (objective view) Lichtenstein trying to get damages on behalf of Nottebohm Guatemala doesnt recognize his citizenship

 Nottebohm was under Lichtenstein laws, a citizen. ICJ says ok it might be fine under Lichtenstein's laws, but not ok under int'l law ICJ looking for real links in Lichtenstein. Must show there is a real connection before Lichtenstein can act on your behalf. Pg. 343 - first full paragraph Reasoning: What sources of law were looked at? Arbitration and judicial decisions Opinions of writers Nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties (pg. 345) Problem: Which state will represent him? Guatemala won't. So now that's why individuals are given the right for individuals to bring rights on their own. VINUYA VS. EXECUTIVE SECRETARY FACTS Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the SEC for the purpose of providing aid to the victims of rape by Japanese military forces in the Philippines during the WWII. They claim that they were comfort women at that time and have greatly suffered because of that. In 1998, they have approached the Executive Department through the DOJ, DFA, and OSG and requested assistance in filing a claim against the Japanese officials and military officers who ordered the establishment of the comfort women stations in the Philippines. However, the officials declined on that ground that the individual claims had already been satisfied by Japans compliance with the San Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956 between Japan and the Philippines. The petitioners argue that the general waiver of claims made by the Philippine government in the Treaty of Peace with Japan is void because the comfort women system constituted a crime against humanity, sexual slavery, and torture. The same was prohibited under the jus cogens norms from which no derogation is possible. Thus, such waiver was a breach against the governments obligation not to afford impunity for crimes against humanity. In addition, they claim that the Philippine governments acceptance of the apologies made by Japan as well as funds for the AWF were contrary to international law. ISSUES Was the refusal of the Executive Department to espouse petitioners claims against Japan valid?

RULING Yes, it was valid. It has the exclusive prerogative for such determination. So much so, the Philippines is not under any international obligation to espouse petitioners claim. Given the extraordinary length of time that has lapsed between the treatys conclusion, the Executive Department had the ample time to assess the foreign policy considerations of espousing a claim against Japan, from the standpoint of both the interests of the petitioners and those of the Republic, and decide on that basis if apologies are sufficient, and whether further steps are appropriate or necessary. Under international law, the only means available for individuals to bring a claim within the international legal system has been when the individual is able to persuade a government to bring a claim on the individuals behalf. When this happens, in the eye of the international tribunal, the State is the sole claimant. Therefore, the State is the sole judge to decide whether its protection in favor of those petitioners will be granted, to what extent it is granted, and when will it cease. It is a discretionary power and the exercise of which may be determined by consideration of a political or other nature. Moreover, in the invocation of jus cogens norms and erga omnes obligation of the Philippines, the petitioners failed to show that the crimes committed by the Japanese army violated jis cogens prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute perpetrators of international crimes in an erga omnes obligation or has attained the status of jus cogens. DISPOSITION Petition is dismissed.