U.
S allegedly made massive violations of its obligations under the UN Charter and the Organization of American States
and under the general principles of International Law.
Violations:
1. Using force against Nicaragua
2. By organizing, training, supporting and directing an army against Nicaragua in Honduras
3. By mining Nicaraguan ports, invading its airspace and attacking major economic installations ALL in violation of
Nicaragua’s sovereignty and
4. Seeking to overthrow the Govt. of Nicaragua, thus intervening internal affairs.
US argument:
1. Another forum had exclusive competence over the dispute, thus precluding the Court from hearing
Nicaragua’s claim. This alternate forum was said to be the CONTADORA PROCESS.
2. Because the dispute between Nicaragua and US has major political dimensions it is unsuitable for adjudication
by this Court.
“This court under the international system of which it is but a part, is not institutionally designed under the
circumstances of this case to remedy the regional conflict that is tragically engulfing Central America”
The application of Nicaragua is admissible.
1. Nicaragua’s legal claims are more of GENERAL POLITICAL CONTROVERSY, which does not bar adjudication of
those claims.
2. The consideration of the political aspects of the situation in Central America by the political organs of the UN
and the Organization of American States and by the Contadora group does not bar the Court from adjudicating
the legal claims asserted in the Application.
3. All of the Parties necessary for adjudication are before the Court
GENERAL POLITICAL CONTROVERSY:
Legal disputes between sovereign states by their very nature are likely to occur in political contexts, and often form
only one element in a wider and long standing political dispute between States concerned. The role of the Court is a
peaceful solution of international disputes.
There is no political question doctrine in the jurisprudence of the International Court of Justice, in the sense of a
principle requiring the Court to decline to adjudicate a legal dispute otherwise properly before it, because the dispute
is enmeshed in a larger political controversy.
Indeed, it may be argued that the advisory opinions are even more compelling, since unlike in the contentious
jurisdiction, the Court has certain discretion under Article 65 of the Statute to decline to respond to a request for an
advisory opinion. That the question involved grave political implications, might very plausibly be advanced as a ground
for exercising the discretion and declining to respond. Nevertheless, the Court refused to accept those suggestions.
A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons. The
definition echoes to a certain extent the categories of legal disputes listed in Art 36(2) of the Statute of the Court. The
dispute that is the basis of Nicaragua’s claim qualifies under all four of those categories.
Nicaragua’s contention that US is organizing, supplying and directing a mercenary army in attacks on Nicaragua, is in
violation of the prohibitions on the use of force in the Charters of the UN and the Organization of American States.
US argued that it has the inherent right of States to individual and collective self-defense under Article 51 of the UN
Charter.
But Nicaragua did not start any attack for a State to exercise the inherent right of self-defense.
Nicaragua has demanded reparations from the US for the loss of life and property, exceeding 200million dollars,
caused by illegal use of armed force against it by US. Thus there is a dispute between the Paties as to “the nature or
extent of the reparation to be made for the breach of an international obligation” under Article 36(2)(d) of the Statute.
Article 36
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2 The states parties to the present Statute may at any time declare that they recognize as compulsory ipso
facto and without special agreement, in relation to any other state accepting the same obligation, the
jurisdiction of the Court in all legal disputes concerning:
d. the nature or extent of the reparation to be made for the breach of an international obligation.
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The consideration of the situation in Central America in international political bodies does not preclude the Court from Adjudicating
the legal dispute between Nicaragua and the US.
Nicaragua is seeking a legal resolution of a legal dispute. It asserts that the action of the US violates its legal obligation to refrain in its
international relations from the use of armed force, from violating the sovereignty of Nicaragua and from interfering in Nicaragua’s
internal affairs. Those legal obligations are established as a matter of positive law by the UN and OAS Charters and are also imposed
by general principles of international law. Nicaragua is seeking an authoritative pronouncement on the lawfulness of the US activity
and on the legal rights and duties stemming from it. That is something neither the Security Council nor the General Assembly nor the
OAS, but only this Court can give.
CONTADORA PROCESS:
The Contadora documents contain no such clear statement of intention to oust the Court of jurisdiction. They contain absolutely no
indication of an intention to exclude other methods of peaceful settlement, or of an intention whatsoever with respect to such
methods.
Contadora was established “as an organ or instrument for mediation, conciliation, or negotiation to provide a means of easing the
situation of crisis…”. Contadora, “cannot therefore be considered in itself as in any way incompatible with the continuance of parallel
proceedings before the Court”.
Nicaragua is not asking the Court to develop a solution for the situation in Central America. The Court is being asked to pronounce on
a legal question: the lawfulness of the use of military and paramilitary force by the US in and against Nicaragua.
In assuming jurisdiction to adjudicate authoritatively on these activities, in the context of the concrete legal dispute between
Nicaragua and the US that is now before it, the Court will be making its intended contribution to the peaceful settlement of
international disputes.
ALL THE NECESSARY PARTIES FOR ADJUDICATION ARE BEFORE THE COURT:
Nicaragua has made claims only against US. The latter without responding in any way to the factual allegations of the Application,
has indicated that it may believe that its conduct could be justified by Nicaragua’s alleged “armed attacks” against other States. Since
there is no third State, the lawfulness of whose conduct would be at issue in these proceedings.
