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Litigation Implications of the U.S. Withdrawal from the Nicaragua Case

Published online by Cambridge University Press:  27 February 2017

Keith Highet
Keith Highet*
Affiliation:
Of the New York and District of Columbia Bars
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American Journal of International Law , Volume 79 , Issue 4 , October 1985 , pp. 992 - 1005
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Copyright © American Society of International Law 1985

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References

1 Reprinted in 24 ILM 246 (1985), and in large part in 79 AJIL 439 (1985) [referred to variously herein as the statement or the departmental statement].

2 24 ILM at 249, 79 AJIL at 423.

3 See the Editorial Comments by Herbert, W. Briggs and Thomas, M. Franck, respectively entitled Nicaragua v. United States: Jurisdiction and Admissibility and Icy Day at the ICJ, at 79 AJIL 373 and 379 (1985)Google Scholar; note on the U.S. withdrawal under Contemporary Practice of the United States Relating to International Law by Marian Nash Leich, id. at 438–41; note under Judicial Decisions by Monroe Leigh, id. at 442–46; and Editorial Comment on Modifying U.S. Acceptance of the Compulsory Jurisdiction of the World Court by Anthony D’Amato, id. at 385.

4 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392 (Judgment of Nov. 26), reprinted in 24 ILM at 59 (including separate and dissenting opinions).

5 The Court’s Communiqué No. 85/14 of June 26, 1985 announced that “[o]n Thursday 12 September 1985, at 10 a.m. at the Peace Palace in The Hague, the Court will begin oral proceedings on the merits of the case concerning Military and Paramilitary Activities in and against Nicaragua, between Nicaragua and the United States of America.”

6 Rules of the International Court of Justice [Rules], Art. 53, reprinted in 73 AJIL 748, 765 (1979). See 2 Rosenne, S. the Law and Practice of the International Court 566–67, sec. 233(1965)Google Scholar:

The documents of the written proceedings are regarded as confidential until after judgment is rendered; and in principle are not available to the general public or to other States. However, Article 44 of the Rules enables the Court, or the President if the Court is not sitting, after obtaining the views of the parties, to decide that the Registrar shall in a particular case make the pleadings and annexed documents available to the Government of any member of the United Nations or of any State which is entitled to appear before the Court.

Id. at 566.

7 See note 5 supra.

8 Indeed, the Court’s January communiqué stated that Nicaragua had already exercised its rights under Article 53, paragraph 1:

On 22 January 1985 the President received the Agent of Nicaragua, who informed him that his Government maintained its application and availed itself of the rights provided for in Article 53 of the Statute whenever one of the parties does not appear before the Court or fails to defend its case.

ICJ Communiqué No. 85/1, Jan. 23, 1985. The President of the Court then fixed the respective time limits for the Memorial of Nicaragua and the Counter-Memorial of the United States as being, respectively, Apr. 30 and May 31, 1985. Id.

9 Corfu Channel (UK v. Alb.), Assessment of Amount of Compensation, 1949 ICJ Rep. 244 (Judgment of Dec. 15); Anglo-Iranian Oil Co. (UK v. Iran), Interim Protection, 1951 ICJ Rep. 89 (Order of July 5), and Preliminary Objections, 1952 ICJ Rep. 93 (Judgment of July 22); Nottebohm (Liechtenstein v. Guat.), Preliminary Objection, 1953 ICJ Rep. 111 (Judgment of Nov. 18); Fisheries Jurisdiction (UK v. Ice.; FRG v. Ice.), Jurisdiction of the Court, 1973 ICJ Rep. 3, 49 (Judgments of Feb. 2), and Merits, 1974 ICJ Rep. 3, 175 (Judgments of July 24); Trial of Pakistani Prisoners of War (Pak. v. India), Interim Protection, 1973 ICJ Rep. 328 (Order of July 13), and removal from list, id. at 347 (Order of Dec. 15); Nuclear Tests (Austl. v. Fr.; NZ v. Fr.), 1974 ICJ Rep. 253, 457 (Judgments of Dec. 20); Aegean Sea Continental Shelf (Greece v. Turk.), Interim Protection, 1976 ICJ Rep. 3 (Order of Sept. 11), and 1978 ICJ Rep. 3 (Judgment of Dec. 19); and United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (Judgment of May 24) [referred to variously as the Hostages case or the Iranian Hostages case]. (The seven cases summarily removed from the Court’s list between 1954 and 1959 for want of jurisdiction need not concern us here: the Treatment in. Hungary of Aircraft and Crew of the United Slates of America cases, the Antarctica cases and the Aerial Incident cases.)

10 Corfu Channel (UK v. Alb.), Merits, 1949 ICJ Rep. 4 (Judgment of Apr. 9). Albania contested the jurisdiction of the Court to consider and assess the amount of damages owing to the United Kingdom, and did not appear in the later phase of the case. Thus, Albania’s actual nonappearance was limited only to the phase of the proceedings concerning the Court’s evaluation of damages. See also S. Rosenne, supra note 6, at 590–91; G. Guyomar, Le Défaut Des Parties à Un Différend devant les juridictions internationales 30, 201 – 03 (1960).

11 1949 ICJ Rep. at 248:

The position adopted by the Albanian Government brings into operation Article 53 of the Statute, which applies to procedure in default of appearance. This Article entitles the United Kingdom Government to call upon the Court to decide in favour of its claim, and, on the other hand, obliges the Court to satisfy itself that the claim is well founded in fact and law. While Article 53 thus obliges the Court to consider the submissions of the Party which appears, it does not compel the Court to examine their accuracy in all their details; for this might in certain unopposed cases prove impossible in practice. It is sufficient for the Court to convince itself by such methods as it considers suitable that the submissions are well founded.

12 As Guyomar stated in her discussion of the Corfu Channel case:

L’article 53, déclare la Cour, n’a pas pour effet de lui imposer une vérification minutieuse des conclusions présentées par la partie comparante. Par les voies qu’elle estime appropriées, elle se doit simplement d’acquérir la conviction que ces conclusions sont justes. Elle examine done avec impartialité les allégations du demandeur et pour ce faire, elle s’entoure, si besoin est, de toutes les garanties nécessaires. C’est ainsi qu’en l’espèce elle sollicita l’avis d’experts choisis parmi les nationaux d’une puissance neutre par rapport au litige.

G. Guyomar, supra note 10, at 203. (This is, of course, precisely what the Court did in the Corfu Channel compensation proceedings when it appointed experts to assess the amount of the damages. See S. Rosenne, supra note 6, at 579.)

13 1980 ICJ Rep. at 20, para. 37 (emphasis added).

14 In paragraph 33 of its Judgment in the Hostages case, the Court said the following:

It is to be regretted that the Iranian Government has not appeared before the Court in order to put forward its arguments on the questions of law and of fact which arise in the present case; and that, in consequence, the Court has not had the assistance it might have derived from such arguments or from any evidence adduced in support of them. Nevertheless, in accordance with its settled jurisprudence, the Court, in applying Article 53 of its Statute, must first take up, proprio motu, any preliminary question, whether of admissibility or of jurisdiction, that appears from the information before it to arise in the case and the decision of which might constitute a bar to any further examination of the merits of the Applicant’s case.

Id. at 18.

15 Note that the Court in the Hostages case relied extensively on its ability to take judicial notice or cognizance of matters of public record (id. at 9, 10, paras. 12, 13); query how this may be applied in the context of the Nicaragua case—specifically in the context of public governmental disclosures and congressional statements and proceedings.

16 Thus Guyomar:

Le défaut d’une des parties devrait en principe produire un autre effet. II serait en effet équitable de décider que le comparant, à partir du moment où le défaut se produit, ne peut plus modifier ses conclusions. Cette solution est admise par la plupart des législations internes; le défaillant doit savoir avec précision quelles questions vont être jugées et quelles sont exactement les prétentions de son adversaire (si elles avaient été autres, peut-être se serait-il décidé à comparattre ou à se défendre). II importe également qu’il ait connaissance de ces points à une époque où il lui sera possible, s’il le désire, de présenter une argumentation compléte et détaillée. Ces questions importantes ne sont tranchées ni par le statut ni par le réglement. II semble bien cependant que I’article 53, en stipulant que le comparant peut ‘demander à la Cour de lui adjuger ses conclusions’ exclut toutes modi fications de celles-ci par la suite. II est assez vraisembable que la Cour se prononcerait en ce sens.

G. Guyomar, supra note 10, at 194.

It is the view of this writer that while the Court would probably not explicitly restrict the appearing applicant state from making any amendments to its submissions as such, it would nevertheless discourage any substantial change in the “claim” that has been made and would effectively disregard any major amendment to the submissions implementing it, in order to avoid any imputation of surprise or procedural unfairness in the case. In this context, note the small verbal difference between the English and the French versions of Article 53 of the Statute; the French version says that “2. La Cour, avant d’y faire droit, doit s’assurer non seulement qu’elle a competence aux termes des articles 36 et 37, mais que les conclusions sont fondées en fait et en droit” and the English version requires that the Court must “satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law” (emphasis added).

17 Cf the provision for the reading of the “final submissions” (“conclusions finales”) by each party in Article 60, paragraph 2 of the Rules, which naturally implies that there may be differences between the submissions as originally made and the final submissions of a party. See also discussion in S. Rosenne, supra note 6, at 358–59, referring to the Société Commerciale de Belgique case, 1939 PCIJ, ser. A/B, No. 78, at 173, and stating:

Here, in the case of the written and oral proceedings the character of the case was “profoundly transformed” by the applicant government, and the Court found it necessary to consider whether the Statute of the Court authorize[d] the parties to do this. The Court distinguished between the right of the parties to amend their submissions, and the transformation of the dispute, by amendments to the submissions, into another dispute which is different in character.

18 See, e.g., the comments by the Court in paragraphs 12 and 13 of the respective Judgments in the Fisheries Jurisdiction cases:

It is to be regretted that the Government of Iceland has failed to appear in order to plead the objections to the Court’s jurisdiction which it is understood to entertain. Nevertheless the Court, in accordance with its Statute and its settled jurisprudence, must examine propria motu the question of its own jurisdiction. . . . Furthermore, in the present case the duty of the Court to make this examination on its own initiative is reinforced by the terms of Article 53 of the Statute of the Court.

1973 ICJ Rep. at 7 and 54. To the same effect are paragraphs 15 of the two Judgments in the Nuclear Tests cases:

It is to be regretted that the French Government has failed to appear in order to put forward its arguments on the issues arising in the present phase of the proceedings, and the Court has thus not had the assistance it might have derived from such arguments or from any evidence adduced in support of them. The Court nevertheless has to proceed and reach a conclusion, and in doing so must have regard not only to the evidence brought before it and the arguments addressed to it by the Applicant, but also to any documentary or other evidence which may be relevant. It must on this basis satisfy itself, first that there exists no bar to the exercise of its judicial function, and secondly, if no such bar exists, that the Application is well founded in fact and in law.

1974 ICJ Rep. at 257 and 461.

19 S. Rosenne, supra note 6, at 344–63, and especially at 360, citing Anglo-Iranian Oil Co., 1952 ICJ Rep. at 114:

The principle of forum prorogatum, if it could be applied to the present case, would have to be based on some conduct or statement of the Government of Iran which involves an element of consent regarding the jurisdiction of the Court. But that Government has consistently denied the jurisdiction of the Court. Having filed a Preliminary Objection for the purpose of disputing the jurisdiction, it has throughout the proceedings maintained that Objection. It is true that it has submitted other Objections which have no direct bearing on the question of jurisdiction. But they are clearly designed as measures of defence which it would be necessary to examine only if Iran’s Objection to the jurisdiction were rejected. No element of consent can be deduced from such conduct on the part of the Government of Iran.

20 A party cannot, of course, determine the jurisdiction of the Court; this power is reserved for the Court itself: Article 36, paragraph 6 of the Statute provides that “[i]n the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.” It makes no difference what the expressed view of one of the parties to a dispute may be, once the Court has established that it has jurisdiction to consider the case. Moreover, such a decision in the form of a judgment possesses “binding force” under Article 59 of the Statute, and Article 60 is unequivocal: “The judgment is final and without appeal.” ICJ Statute, Art. 59; see also S. Rosenne, supra note 6, at 438 and 440; also sec. 192, id. at 461–63. It is, however, not practicable to contemplate “compliance” by a party to a judgment of the Court on the matter of admissibility or jurisdiction, since the respondent state is free to appear or not, subject to the rule of Article 53 that the Court may proceed with full authority upon the request of the applicant.

21 The “dispositif” or operative language of the Judgment in the Nicaragua case runs only to the jurisdiction and ability of the Court itself to hear the merits of the case, and of course contains no operative language subject to “compliance” or “non-compliance” by either party, in terms of Article 94 of the Charter. See S. Rosenne, supra note 6, at 127:

Side by side with the undertaking to comply with the decision of the Court contained in Article 94(1) of the Charter, there exists a general principle of international law according to which, when States agree to submit their dispute to an international tribunal, they assume the obligation to comply with the decision of that tribunal. In this respect the Charter merely casts in the form of a conventional rule that which already exists as a general principle of customary international law. . . .

See also Thirlway, H. Non-appearance before the International Court of Justice 64–82 (1985)Google Scholar. In theory at least, it could be argued that to “comply” with a jurisdictional determination by the Court may be the same as to recognize that it possesses binding force: i.e., that the United States is under an obligation to accept the Judgment of the Court as to its jurisdiction in the Nicaragua case for all intents and purposes, and therefore to recognize and respect such a determination unless and until it chooses to exercise any of its rights under the provisions of the Statute relating to construction of the Judgment under Article 60 of the Statute (or to its possible revision under Article 61). Such a view is hardly consistent with a plain reading of the opinions and attitudes expressed in the departmental statement, supra note 1.

22 South West Africa (Eth. v. S. Afr.; Liberia v. S. Afr.), Preliminary Objections, 1962 ICJ Rep. 319 (Judgment of Dec. 21).

23 South West Africa (Eth. v. S. Afr.; Liberia v. S. Afr.), Second Phase, 1966 ICJ Rep. 6 (Judgment of July 18).

24 At the time, it was said that Prime Minister Verwoerd had convened a special meeting of his cabinet to determine this issue and that the decision to appear in Court had only been reached by a majority of one vote—ironically, the same one-vote majority by which the Court itself ultimately rejected the case of the applicants some 6 years later (in that instance the one vote being the double “casting vote” of President Sir Percy Spender, exercised pursuant to Article 55, paragraph 2 of the Statute).

25 By which, without regard to Article 36, South Africa was obviously bound as a signatory of the UN Charter, of which the Statute formed an “integral part” under Article 92.

26 For example, had South Africa been able to prevail on any single one of its following points, the jurisdictional chain would have been broken and the Court would have been obliged to decline jurisdiction in the case: that the mandate was not a “treaty or convention”; that even if it was, it was no longer “in force”; that neither Ethiopia nor Liberia could be considered as “other members of the League of Nations” within the meaning of the mandate’s compromissory clause, since there could be no “members” of a dissolved organization or because the organization itself no longer existed; that even if there was such a dispute, recourse to the Court had not been preceded by any negotiations so as to satisfy the precondition of the clause that such dispute be one that “could not be settled by negotiation”; and, finally—and most tellingly in view of the final outcome of the Second Phase in 1966—that there was no “dispute” susceptible of being brought before the Court within the meaning of the compromissory clause or admissible in the context of the mandate and the Court.

27 Departmental statement, supra note 1, 24 ILM at 247, 79 AJIL at 440.

28 See and compare: 1CJ Pleadings (1 South West Africa) 212 (Preliminary Objections of the Republic of South Africa); 2 id. at 1 (Counter-Memorial of the Republic of South Africa).

29 Judge Badawi died during the oral proceedings, in August 1965; Judge Bustamante y Rivero was unable to participate because of ill health; and Judge Sir Muhammad Zafrulla Khan had agreed not to sit in view of his earlier acceptance of designation as judge ad hoc for Ethiopia and Liberia (even though he had never actually served in that capacity: see S. Rosenne, supra note 6, at 197).

30 For example, consider the inadequacy of its assertion that “[allowing Nicaragua to sue where it could not be sued was a violation of the Court’s basic principle of reciprocity, which necessarily underlies our own consent to the Court’s compulsory jurisdiction” (departmental statement, supra note 1, 24 ILM at 247, 79 AJIL at 440), which appears to have been made either without recognizing, or without heeding, the statement made in the Nicaragua Judgment to virtually the opposite effect:

Besides, the Court would remark that if proceedings had been instituted against Nicaragua at any time in these recent years, and it had sought to deny that, by the operation of Article 36, paragraph 5, it had recognized the compulsory jurisdiction of the Court, the Court would probably have rejected that argument.

1984 ICJ Rep. at 410, para. 39.

31 Supra note 2.

32 Departmental statement, supra note 1, 24 ILM at 247, 79 AJIL at 440.

33 Indeed, if the United States had been as certain as it later was to contend in the departmental statement that there had been no acceptance of the jurisdiction of the Court by Nicaragua, or that the dispute in question was inadmissible or inappropriate for the Court to determine, why then any need for the precipitate and ill-considered hastiness of the so-called 1984 notification deposited with the Secretary-General of the United Nations on Apr. 6, 1984? (See 1984 ICJ Rep. at 415–21, paras. 52–66.) In the light of this inconsistency, it is all the more curious that the decision to withdraw from the merits phase was taken.

34 “The appropriate standard for such review is the same as might be fashioned by any appellate tribunal: Are the findings of the ICJ so patently unreasonable . . . as to permit no other conclusion than that they reflect the willful anti-American bias of the judges?” Franck, supra note 3, at 382.

35 This, of course, had been a proceeding brought by application under treaty compromissory clauses, and not by special agreement as suggested in the departmental statement, supra note 1, 24 ILM at 249, 79 AJIL at 441.

36 In this event, how comfortable will the Department of State then find its statement (id.): how can the position of the United States then be rehabilitated so as to “benefit” from such a judgment by the Court? Indeed, it would present a classic paradox:

  • (1) The United States has stated that the Court lacks jurisdiction and competence to consider the case, and that the case is a misuse of the Court for political purposes.

  • (2) If a judgment is rendered favorable to the United States, it cannot be a good judgment, and must then be bad.

  • (3) The United States can therefore no longer even rely on a favorable judgment.

The United States has therefore apparently succeeded in repudiating in advance any conceivable benefit that might—on an outside chance—accrue to it by a favorable Court decision on the merits (for whatever reason). This is a true “no win” position, where part of the guaranteed loss has been deliberately, although possibly without much foresight, created by the loser itself.

37 Article 94, paragraph 2 provides:

If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

This raises the specter of an interesting but awkward precedent: a permanent member of the Security Council would be seeking to record its negative vote on an issue where the violation of the Charter obligation is unequivocal and the member is in effect voting as a judge in its own case. See Elkind, J. Non-Appearance Before The International Court of Justice 187, 206 (1984)Google Scholar; see also Fitzmaurice, The Problem of the ‘Non-Appearing’ Defendant Government, 51 Brit. Y.B. Int’l L. 89, 100 (1980)Google Scholar:

What then lies behind an attitude that in effect maintains a priori that it is by the ipse dixit of [the defendant or respondent] State, and not by the decision of the Court, that the latter’s competence to hear and determine the case is to be settled; and in consequence that any assumption of jurisdiction by the Court, and subsequent judgment on the merits (envisaged as adverse), will not be recognized as binding?

38 One may, of course, anticipate assertions that noncompliance with a judgment of the Court in the Nicaragua case is somehow permitted by application of Article 51; nevertheless, the inconsistency of a refusal by the United States to comply with a judgment of the Court, and its Charter obligations, would be dramatically unprecedented.

39 Franck, supra note 3, at 380: “In walking away from the Court, the United States thus expresses despair with its politicized, anti-Western bias, as revealed by its preliminary decisions in the Nicaraguan case, and with multilateral institutions and the neutral reciprocal principles by which they were intended to operate.” It is ironic that this expression of despair—in particular, the departmental statement’s mention of “two judges from Warsaw Pact countries”—should have already been overtaken by events in much the same way as the South West Africa proceedings were in 1965: Judge Morozov of the USSR having just resigned from the Court (and, it would appear, withdrawn from the Nicaragua case) for reasons of ill health. N.Y. Times, Sept. 12, 1985, at A7, col. 3.

40 Id. at 380–81.

41 I. Berlin, The Hedgehog and the Fox 1 (1953).