NICARAGUA CASEThe Parties: Republic of Nicaragua v. United State of AmericaINTERNATIONAL COURT OF JUSTICE (ICJ)
I. CASE POSITION
This case originated from the termination of U.S. economic aid to Nicaragua because of the actions of Nicaragua against El Salvador, which has good diplomatic relations with America. Upon the response of the action Nicaragua, the U.S. began placing military facilities and take some action that is claimed to Nicaragua as a violation of international law.
Some U.S. actions in Nicaragua were planting mines
in the territorial sea and inland Nicaragua, which then lead to the destruction of the ships owned by Nicaragua and foreign parties. In addition, the U.S. also attacked and destruction of several civilian and military facilities Nicaragua. U.S. troops also helped contras, the Nicaraguan rebel group that has the aim to overthrow the Sandinista government in power at that time.Nicaragua Case is a case that occurred in 1986 which was completed by the International Court of Justice (ICJ). Where the ICJ supports Nicaragua against the United States to provide indemnity against Nicaragua. International Court of Justice declared that the U.S. had violated international law by supporting rebels in their insurgency against the Nicaraguan government and the mines in Nicaraguan ports.United States refused to participate in the proceedings after the Court rejected the U.S. argument that the International Court has no jurisdiction to resolve this case.
Court found that the United States has violated its obligations under customary international law not to use violence against another country, do not meddle in the affairs of other countries, does not violate the sovereignty of other countries, does not disturb the peaceful maritime commerce, and violates its obligations under Article XIX of the Treaty of Amity, Trade and Navigation [1] between the two sides signed in Managua on January 21, 1956.
II. LEGAL FACTS1. Termination of U.S. economic aid to Nicaragua because of the actions of Nicaragua against El Salvador, which has good diplomatic relations with America. Upon the response of the action Nicaragua, the U.S. began placing military facilities and take some action that is claimed to Nicaragua as a violation of international law;2. Some U.S. actions in Nicaragua were planting mines in the territorial sea and inland Nicaragua, which then lead to the destruction of the ships owned by Nicaragua and foreign parties. In addition, the U.S. also attacked and destruction of several civilian and military facilities Nicaragua. U.S. troops also helped contras, the Nicaraguan rebel group that has the aim to overthrow the Sandinista government in power at that time;3. Nicaragua brought the dispute with the U.S. to the International Court on April 9, 1984.Nicaragua filed a lawsuit that, among others:a. The United States has violated its obligations under international law with military activity and paramiliternya in Nicaragua (the U.S. should withdraw all its military facilities and completeness of Nicaragua to meet its obligations under the prohibition of the use of violence (non-use of force)b. The U.S. should provide compensation to the Nicaragua based on violations that have occurred.Nicaragua is basing its lawsuit on the basis of customary international law, and besides Nicaragua also use the Treaty of Friendship, Commerce, and Navigation in 1956 which is an international bilateral agreements between the U.S. and Nicaragua.4. Nicaragua responded to the lawsuit, the U.S. stated that the ICJ has no jurisdiction to deal with this dispute. The U.S. argues that Nicaragua does not meet the requirements contained in Article 36 paragraph (2) Statute of the ICJ [2]. In addition, the U.S. also stated that the proposal is unacceptable Nicaragua (inadmissible). U.S. basing this statement on several grounds, among others:a. Nicaragua does not bring some of the parties that attendance and participation is necessary to protect the rights of the parties concerned;Court's opinion: Under Article 59 Statute of the ICJ, the Court has just issued a decision to the parties who filed the settlement of a dispute, and if there are others who feel aggrieved can submit it to the court in a different filing.b. Nicaragua filed this issue on the grounds of threats to peace (threat to peace), which actually is the authority of the UN Security Council;Court's opinion: As one UN organ, the Court retains the authority to handle this case, because closely related to the application of Article 51 of the Charter of the principle of self-defense (self-defense). Security Council should not preclude the submission of an issue to the ICJ, even the Court added, since the Security Council and the ICJ have their respective functions, as political bodies and judicial bodies of the United Nations.c. That the judicial organs such as the ICJ can not perform its functions to handle a situation related to the ongoing armed conflict;Court's opinion: What is needed in a judicial process in the ICJ is to support and set about a situation presented by the parties based on relevant evidence.d. The filing made by Nicaragua is a form of non-exhaustion, because basically Nicaragua is one of the Contadora process which includes countries in Central America in the process of dispute resolution.Court's opinion: "The Contadora process as, if not preclude the Court to execute its jurisdiction to resolve a dispute. Thus, the Court also concluded that the application / submission which has been given by Nicaragua to the court are acceptable (admissible) ".
III. INTERNATIONAL COURT RULINGJurisdiction and admissibility --- ---1. Based on 11 to 5 vote, the ICJ ruled that the filing of Nicaragua under section 36 (2) & (5) Statute of the ICJ accepted.2. Based on 14 to 2 vote, the ICJ Nicaragua accepting submissions based on the Treaty of Friendship, Commerce, and Navigation 1956.3. Based on the 15-to-1 vote, the ICJ states have jurisdiction to handle this case4. Based on the affirmative vote, the ICJ stated submission (application) Nicagarua acceptable (admissible)
Regarding the Main Problem --- ---1. Court rejected the U.S. justification of his actions in Nicaragua as a means of self-defense (self-defense);2. Court stated that the U.S. has intervened in the interests of the country by providing assistance to the Nicaraguan Contras forces;3. Court stated that the U.S. had violated the principle of non-use of force (ban on the use of violence) which is a customary international law since the attacks in some areas such as Puerto Sandino, Corinto, San Juan del Sur, and so on.4. Court argued that the U.S. actions that make military flights across the territory of Nicaragua is in violation of the principle of sovereign equality, which is also the customary international law;5. Court stated that the U.S. action to plant mines in Nicaragua and surrounding waters in violation of its obligations to the principle of non-use of force, non-intervention, and equal Sovereignty;6. Court stated that the actions contained in number 5 above decision violated article XIX of the Treaty of Friendship, Commerce, and Navigation 1956.
Decision Considerations1. To find court jurisdiction in this case, Nicaragua basing his argument on several provisions contained in the Statute of the ICJ and Friendship Treaty of 1956. Under section 36 (2) Satuta ICJ: "Every country has the right states are bound to the jurisdiction of the court (compulsory jurisdiction) without any special agreement (special agreement) with any other party, provided that such other party also expressed the same attachment";2. Nicaragua does not explicitly make an immediate declaration of the binding jurisdiction of the ICJ, but the country is ever declared bound by the jurisdiction of the International Permanent Court (PCIJ) on 24 September 1929 pursuant to section 36 Statute of the PCIJ. Article 36 (5) Statute of the ICJ states that "Any declaration made under Article 36 of the PCIJ Statute may apply to run the binding jurisdiction of the ICJ";3. However, the U.S. contended that the declaration made by Nicaragua was no longer applicable based on the interpretation of Article 36 (5) the ICJ Statute. Because according to the U.S., Nicaragua has not ratified the Statute of the PCIJ, and thus Nicaragua is not a party rather than the Statute of the PCIJ. Responding to the U.S. statement, the Court stated that: "Status Nicagarua binding declaration in 1929 that was never disputed by any party. Court continued that with the ratification of the Statute of the ICJ by Nicaragua, indirectly, Nicaragua has ensured an effective transition from PCIJ function to the ICJ. With so ICJ Nicaragua also has jurisdiction ";4. Beyond that, when seeing the actions of the parties in addressing the status of the declaration of Nicaragua since the PCIJ to ICJ, Nicaragua also benefited position.Nicaragua has been running the compulsory jurisdiction of the International Court of Justice for 38 years, with no protest from any country, including the U.S.. Court also added that the principle of estoppel in this case occurred in the U.S. also helped strengthen the position of Nicaragua in the determination of jurisdiction;5. Seen from the discussion of the jurisdiction of the U.S. position on this case can be viewed based on declarations made by the U.S. on August 14, 1946, in which the U.S. states are bound to the jurisdiction of the tribunal under section 36 (2) Statute of the ICJ.But the declaration was followed by a reservation / reservation from the U.S. stating that the ICJ has no jurisdiction to handle disputes on a multilateral treaty, unless (1) if the party affected by the decision of the tribunal is also disputing parties in Court, and (2) if the U.S. himself makes a special approval from the jurisdiction of the tribunal. But in the end the court was still stating that "this Declaration does not eliminate the jurisdiction of the tribunal to deal with this case, because basically no authority to hear even though the ICJ on the basis of international treaties, the ICJ can prosecute under customary international law".
[1] Treaty of Friendship, Commerce, and Navigation 1956[2] Article 36 paragraph (2) Statute of the ICJ: "states that both parties must both accept the jurisdiction of this court".
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