Central America
The World Court Decision: An Historic Case
Augusto Zamora
Augusto Zamora, who served on Nicaragua's legal team in its case against the United States in the World Court until 1990, reviews the key stages of the judicial process leading up to a decision in Nicaragua's favor, a milestone decision for the peoples of the South. Zamora's article won second prize in envío's 1991 annual writers contest.
On April 9, 1984, Nicaragua presented its case against the United States to the International Court of Justice, the UN's judicial arm, in the Palace of Peace in The Hague. Thus began one of the most polemical cases heard by what is commonly known as the World Court, and perhaps one of the most path breaking for the future development of international law.
The importance of the Nicaraguan action was due not only to the essence of the case itself—an ongoing policy of intervention, with both threats and the actual use of force, without precedent in the World Court—but also to the players involved. A small state, Nicaragua, was facing off against a superpower, the United States, one of the permanent members of the UN Security Council, a founder of the United Nations and of the World Court itself.
After the FSLN's electoral defeat, the National Assembly approved Law 92—the Law of Protection of the Rights of Nicaragua in the International Court of Justice—by which it intended to preserve the historic judgment in Nicaragua's favor, and with it, Nicaragua's right to indemnification from the United States.
The International Court of JusticeAs World War II was drawing to a close, the Allied powers (the Soviet Union, the United States and Great Britain) along with representatives from China and the other governments of the anti-fascist alliance, met in Dumbarton Oaks, Washington, D.C., in August and September, 1944, to lay the foundations for a new international organization, the United Nations.
The Declaration of Dumbarton Oaks served as a basis for the San Francisco Conference of 1945 from which the United Nations formally sprang. The UN was created with the stated goals of preserving humanity from the scourge of war, maintaining international peace and security, ensuring the suppression of aggressive activities and overseeing peaceful solutions to conflicts between nations. The Declaration envisioned that a third branch of the UN, along with the Security Council and the General Assembly, would be the International Court of Justice, whose statutes would form an integral part of the UN Charter.
That charter was signed in San Francisco on June 26, 1945, and with it the International Court of Justice was established as the highest tribunal in the world, successor to the failed League of Nations' Permanent Court of International Justice. Its statutes establish that "in case of disputes as to whether or not the Court has jurisdiction, the Court will rule" (Article 36.6). The Court's decisions require obligatory compliance, without exception (Article 59). In addition, they are definitive and may not be appealed (Article 60).
Both the United States and Nicaragua signed the Charter in San Francisco. The US accepted the obligatory jurisdiction of the Court in 1946. Nicaragua had accepted the Permanent Court's obligatory jurisdiction in 1929 and reaffirmed that acceptance with reference to the World Court. It was thus included in the Courts' Yearbooks among those states that agreed to what is termed "compulsory jurisdiction."
The United States and the World CourtIn addition to being a founding member of the United Nations, the United States was one of the first countries in the world to accept the Court's obligatory jurisdiction. It was also one of the first to appeal to the Court, in a suit against France heard in 1950. Between 1950 and 1984, the United States appeared before the Court on 13 separate occasions. The last was in the case brought against the United States by Nicaragua on April 9, 1984, the fiftieth heard by the Court.
The US brought suits against Hungary and the Soviet Union in 1954, against Czechoslovakia and the Soviet Union in 1955, against Bulgaria in 1957, against the Soviet Union again in 1958 and 1959 and against Iran in 1979. The US has been the target of cases brought against it by France in 1950, Italy in 1953, Switzerland in 1957 and it went to trial with Canada by mutual accord in 1981. After refusing to recognize the Court's jurisdiction in the 1984 dispute with Nicaragua, the US sued Italy in 1987, which the Court ruled on in 1989.
Thus the United States is the country that has most frequently visited the Palace of Peace during the World Court's more than 40 years of existence. This demonstrates not only the importance the US has historically given the Court, but also the magnitude of the decision not to recognize its jurisdiction in the case brought by Nicaragua. The decision to withdraw midway through the hearings is unprecedented in the annals of the United Nations.
Nicaragua vs. the United StatesConvinced that the Reagan Administration's policy toward Nicaragua constituted a violation of the most fundamental principles of international law, which are key to international peace and security, Nicaragua filed its case against the US, stating the following causes:
"The United States of America is making use of military force against Nicaragua and intervening in its internal affairs in violation of its sovereignty, territorial integrity and political independence, as well as of the most fundamental and universally recognized principles of international law" [all quotes are translated from the Spanish].
Nicaragua pleaded with the Court to rule that:
"a) The United States, by recruiting, training, arming, equipping, financing, supplying and in any other way encouraging, assisting, aiding and directing military and paramilitary actions in and against Nicaragua has violated and is violating its obligations expressed by way of charters and treaties concerning Nicaragua.
"b) The United States, in violation of its obligations derived from international law... has violated and is violating the sovereignty of Nicaragua by virtue of armed attacks against Nicaragua by air, land and sea; incursions into the territorial waters of Nicaragua; the violation of Nicaraguan airspace; its efforts through both direct and indirect means to intimidate the government of Nicaragua.
"c) The United States, in violation of its obligations derived from international law... has used and is using force and the threat of force against Nicaragua.
"d) The United States, in violation of its obligations derived from international law... intervened and is intervening in the internal affairs of Nicaragua.
"e) The United States, in violation of its obligations derived from international law... has infringed and is infringing on the freedom of the seas and is interrupting peaceful maritime commerce.
"f) The United States, in violation of its obligations derived from international law... has killed, wounded and kidnapped and is killing, wounding, and kidnapping Nicaraguan citizens.
"g) Taking into account these violations of the above-mentioned legal obligations, the United States has the express duty to immediately cease and desist from:
"all use of direct or indirect force, whether overt or covert, as well as from the threat of use of force against Nicaragua; all violations of Nicaraguan sovereignty, territorial integrity or political independence, including any and all direct or indirect intervention in its internal affairs;
"all assistance of any kind, including training and supply of arms, weapons, financing, food, aid, command or any other form of support to any nation or group, organization, movement or individual participating or willing to participate in military or paramilitary actions in or against Nicaragua;
"any attempt that has as its aim to restrict, block or put in danger the entry to or exit from Nicaraguan ports;
"all deaths, wounding and kidnapping of Nicaraguan citizens.
h) The United States has the obligation to pay Nicaragua on its own behalf and as parens patriae of the citizens of Nicaragua, reparations for all damages suffered by individuals, property or the economy of Nicaragua as a result of the aforementioned violations of international law, in an amount to be determined by the Court. Nicaragua reserves the right to present to the Court a precise assessment of damages."
After the US government learned of Nicaragua's decision to initiate proceedings before the Court, Secretary of State George Shultz wrote to the UN Secretary General—three days before the formal presentation of Nicaragua's case. In the letter, the US modified its acceptance of the Court's obligatory jurisdiction: "The stated [acceptance] should not apply to controversies with any Central American state or those that originate from or are related to events underway in Central America; these controversies will be resolved in a form satisfactory to the different parties to the conflict."
Translated into plain English, the United States was attempting to make a mockery of the Court's obligatory jurisdiction and thus free itself from the Nicaraguan claim.
Nicaragua requests provisional protection measuresIn its petition to the Secretariat on March 9, 1984, Nicaragua urged the Court to specify provisional protection measures, given that US paramilitary and military activities against Nicaragua were continuing to provoke irreparable damages to the country and its population. Nicaragua requested that:
"The United States immediately cease and desist from lending, directly or indirectly, all support, including training, arms, munitions, food, financial assistance and resources, or other forms of support to any nation or group, organization, movement or individual participating or willing to participate in military and/or paramilitary activities in or against Nicaragua. "
"The United States immediately cease and desist from all paramilitary or military activity of its representatives, agents or armed forces in Nicaragua or against Nicaragua and from any use or threat of use of force in its relations with Nicaragua."
The United States responded by claiming the following:
"The United States considers that the Court is on the threshold of incompetence and sees in this default of competence a rejection of the basic complaint...
"The United States concludes that the Court should not attend to Nicaragua's case... and should also not declare provisional measures.
"The United States thus reiterates respectfully to the Court its demand to close once and for all the procedure regarding Nicaragua's request and its demand for provisional measures."
The US SpeaksIn the public hearing called by the Court on April 25 and 27, 1984, in order to learn the observations of the United States and Nicaragua regarding the request for provisional protection measures, the US broadened its allegation regarding the Court's incompetence, accusing Nicaragua of involvement in a "revolution without borders" and in attacks against Honduras and Costa Rica. Both those countries had gone to the United States requesting security assistance as well as to reach an agreement on collective measures for their legitimate defense.
To support this position, the United States turned over to the Court copies of telegrams sent to the Secretary of the Court by the governments of Costa Rica and El Salvador as well as a telex from Honduras to the UN Secretary General. All these messages were to demonstrate that conceding the provisional measures requested by Nicaragua would jeopardize the rights of these three countries. Finally, the United States asked the Court, for "imperative reasons," to reject the request for provisional measures and immediately close the case.
An anecdote from that first public hearing: the lawyers from the Nicaraguan team did not even fill the first row of seats assigned to Nicaragua, while the US lawyers took up four rows. It should also be pointed out that Nicaragua gave up its right to designate an ad hoc judge for this first stage of proceedings. The US has a permanent judge.
The Court Determines Provisional Protection MeasuresStarting from the principle that the declaration of provisional measures of protection did not prejudge the legal process itself in any fashion, the Court did not heed the US request. On May 10, 1984, in a public hearing, it made known its ruling on Nicaragua's request:
"The Court: Recommends, in a provisional manner, and pending the final judgment on the proceedings underway... by the Republic of Nicaragua against the United States of America, the following provisional measures:
"That the United States should immediately cease and desist from any action that has the effect of restricting, blocking or putting in danger the entry to or exit from Nicaraguan ports, particularly by the placement of mines.
"That the right to sovereignty and political independence held by the Republic of Nicaragua, like any other state in the region or the world, should be fully respected and not compromised in any manner by military and paramilitary activities that are prohibited by the principles of international law, particularly by the principle that states should abstain, in their international relations, from recurring to the threat or use of force against the territorial integrity or political independence of any state, and by the principle relating to the nonintervention in affairs that depend on the national competence of a state, consecrated by the United Nations Charter and the Charter of the Organization of American States."
This World Court ruling was a tremendously important victory for Nicaragua. It came at a moment in which the US was dramatically increasing its actions and pressures against Nicaragua. The mining of the harbors at the beginning of the year and the attacks on the oil storage tanks at Corinto in October 1983 were the most graphic expressions of the relentless hounding of Nicaragua by the United States. The ruling further discredited US foreign policy, already adversely affected by the mining of the harbors, an act that even Margaret Thatcher's unconditionally supportive government had criticized.
Court Jurisdiction and Admissibility of the SuitWith the question of provisional measures resolved, the question was now whether or not the Court had, as Nicaragua argued, full jurisdiction to hear the Nicaraguan case and whether the case itself fell within the realm of the Court or, as the US maintained, the Court could not hear the Nicaraguan case because it was outside of the Court's competence as defined in the UN Charter.
On May 14, 1984, the President of the Court fixed the deadlines within which the United States and Nicaragua were to present their written allegations and counter-allegations regarding these issues. Nicaragua was to present its brief by June 30, and the US had until August 17 to respond.
El Salvador asks to interveneOn August 15, 1984, El Salvador, considering itself an affected party, filed a "declaration of intervention" in the case against the United States. In its declaration, it stated, among other things, that:
"El Salvador considers itself under threat of an armed attack on the part of Nicaragua and feels its territorial integrity, sovereignty and independence, together with that of the other Central American countries, to be threatened. In the opinion of El Salvador, it is not possible for the Court to rule on the demands of Nicaragua against the United States in this fashion without determining the rights of El Salvador and the United States to commit themselves to collective actions in their legitimate defense. The charges by Nicaragua against the United States are directly interrelated to the charges of El Salvador against Nicaragua."
The Salvadoran request—immediately supported by the United States—was not only out of place, it was legally unsustainable, as it was based on accusations with no possibility of being successfully proven. Conscious of this situation, Nicaragua did not object to the request, even though it would have been able to strongly oppose it. It would have been almost enough to argue the principle of reciprocity, since El Salvador had excluded from its acceptance of the Court's obligatory jurisdiction all that referred to "situations of hostility, armed conflict, individual or collective acts of legitimate defense, (and) resistance to aggression," and thus, could not invoke obligatory jurisdiction concerning Nicaragua.
On October 4, 1984, as Nicaragua had predicted, the Court rejected El Salvador's request, ruling that the declaration of intervention was inadmissible in that phase. Thus this incidental chapter was concluded, and the US and Nicaragua were once again left alone, face to face, to await the proceedings.
Arguments about Jurisdiction and AdmissibilityNicaragua turned in its brief on June 30, 1984 and the US filed its counter-brief the following August 17. The Court scheduled a public hearing for October. In its brief, Nicaragua presented five essential conclusions to the Court:
a) The Court's jurisdiction in this controversy is based on Nicaragua's September 24, 1929, declaration and the August 14, 1946 declaration by the United States.
b) Nicaragua's 1929 declaration is in effect and a valid instrument of acceptance of the Court's obligatory jurisdiction.
c) The United States' intent to modify its 1946 declaration through Secretary of State Shultz's April 6, 1984, letter to the Secretary General of the UN is null and void.
d) In conformance with the Treaty of Friendship, Commerce and Navigation between the United States and Nicaragua, the Court has jurisdiction to hear the demands presented in the current case in aspects relating to that Treaty.
e) There is no obstacle impeding the Court from recognizing Nicaragua's suit. The suit is admissible.
The US brought forth the following points in its counter-argument:
1) Nicaragua never accepted the Court's obligatory jurisdiction and it therefore has no right to invoke that jurisdiction against the United States.
2) The Treaty of Friendship, Commerce and Navigation constitutes no foundation for the Court's jurisdiction in the present case.
3) The suit brought by Nicaragua is outside of the Court's jurisdiction and therefore is inadmissible.
4) The inadmissibility of Nicaragua's suit is based on the following:
a) Nicaragua has participated in armed attacks against its neighbors.
b) The problems of Central America are regional and originate principally in interrelated economic, social, political and security factors.
c) The United States, Nicaragua and other Central American states are in agreement with resolving the conflict through the Contadora group.
d) Nicaragua's declarations are not within the sphere of US consent regarding the Court's jurisdiction.
The Ruling on Jurisdiction and AdmissibilityOn November 26, 1984, the International Court of Justice made public its decision on the issues of jurisdiction and admissibility. The decision stated that:
"The Court 1) a) Rules... that it has jurisdiction to hear the suit presented by the Republic of Nicaragua on April 9, 1984...; b) Rules... that it is competent to hear the suit presented by... Nicaragua... insofar as it brings forth a controversy relating to the interpretation or application of the Treaty of Friendship, Commerce and Navigation between the United States of America and the Republic of Nicaragua, signed in Managua on January 21, 1956, based on article XXIV of that treaty. 2) Rules... that the suit in question is admissible."
With this finding, this first stage of the proceedings was decided in Nicaragua's favor, and the door was left open to get to the essence of Nicaragua's claims: the accusations against the United States for its "military and paramilitary actions in and against Nicaragua." Thus the definitive stage began, in which it would be decided which country had reason and justice on its side.
Another anecdote: The US legal team arrived at the Palace of Peace in a caravan of limousines and Mercedes. The Nicaraguan team came to the Palace in a small tour bus rented for the occasion.
The US Rejects the World CourtAfter the US attempt to block the Court's jurisdiction failed, that country assumed an unprecedented attitude, and undertook an all-out campaign to discredit the World Court. On January 18, 1985, the US sent a letter to the Court stating that:
"The United States is forced to conclude that the decision of the Court is clearly erroneous, both with respect to events and to the law. The United States continues to be firmly convinced that the Court does not have jurisdiction to hear the conflict and that the Nicaraguan suit filed on April 9, 1984, is inadmissible. Consequently it falls to me to inform the Court that the United States has no intention of taking part in any other proceeding relating to this case "
In the 41 years of the Court's existence, only a few countries had refused, from the outset, to participate in suits another country was bringing against them. But it had never happened that a country, after having agreed to take part in a proceeding in the World Court, retired from it after receiving an unfavorable ruling. The US action was another grave violation of the United Nations Charter.
Nicaragua Presents Its EvidenceIn conformance with the World Court Statutes, the withdrawal of one party does not paralyze legal proceedings. On January 22, 1985, the President of the Court set deadlines for the presentation of Nicaragua's brief as well as the US counter-brief. The dates set, respectively, were April 30 and May 31, 1985. Nicaragua filed its brief on deadline, with supporting documentation for its accusations against the US contained in twelve appendices. The US did not turn in its counter-brief.
In this April 30, 1985, document, Nicaragua presented exhaustive evidence backing its accusations against the United States, in terms of both the material section (the actual facts) and the more formal part (the norms and principles of international law violated by the United States). Nicaragua stated:
"First: [Nicaragua] begs the Court to judge and declare that the US has violated the obligations to international law indicated in this brief, and that... the United States is constantly violating these obligations.
"Second: [Nicaragua] begs the Court to declare... the obligation that the United States has to put an end to its... violations of international law.
"Third: [Nicaragua] begs the Court to judge and declare that, as a consequence of the violations of international law indicated in this brief, indemnification is owed to Nicaragua, both on its own behalf and with respect to the damages caused to its nationals; and also begs the Court to receive the evidence and determine, in a subsequent phase of this proceeding, that part of the damages that should be assessed as indemnification owed to Nicaragua.
"Fourth: Without prejudice to the previous request, [Nicaragua] begs the Court to award to the Republic of Nicaragua the sum of US$370,200,000, which constitutes the minimum value of direct damages, with the exception of the damages caused by the killing of Nicaraguan nationals, as a consequence of the violations of international law indicated in this brief.
"In relation to the fourth request, the Republic of Nicaragua reserves the right to present evidence and arguments, with the aim of arriving at a minimal (and provisional) assessment of the direct damages, in accord with the principles of international law, with respect to the violations of that same law in general, in a subsequent phase of the current proceedings of the Republic of Nicaragua."
In one part of its brief, Nicaragua makes the following statement:
"It is significant that only in the forum of International Justice can Nicaragua confront the United States as an equal, without having the results of the conflict be affected by the overwhelming military and economic power of its adversary. Nicaragua asks the Court not only that it assert [our] legal rights, but also that it defend the administration of international justice against its perversion in the hands of the powerful."
Continuing the proceedings, a public hearing was called by the Court for September 1985. Nicaragua presented five witnesses to support its claim of US responsibility for the damages.
The 1986 RulingOn June 27, 1986, as the sun rose in Nicaragua and was high in the afternoon sky of Holland, the Court in full and public session read its definitive ruling on the case. More than 50 decisions had been read out at the Palace of Peace since the Court was founded, but none had caused as much comment as the one that June day.
The Court's verdict sided with Nicaragua and condemned, unhesitatingly, the actions of the United States. The Court's decision, argued in 291 points and summed up in 16 resolutions, scrutinized, one by one, the arguments presented by the two parties. A clarification is necessary here: although the US withdrew from the case after the November 1984 ruling, it advanced every possible argument during its participation in the initial stages of the legal proceedings that it would have used later. In this way, the Court was able to contrast Nicaragua's arguments with those of the United States and come to its own conclusions. The Court obtained its own evidence with the help of Judge Schwebel, the United States' permanent judge on the Court. After rejecting the US arguments of legitimate defense, the Court:
"rules that the United States of America, by training, arming, equipping, financing and supplying the counterrevolutionary forces and by instigating, supporting and aiding in any other manner the military and paramilitary activities in and against Nicaragua, has violated... the obligation imposed on it by international law...to not intervene in the affairs of another state;
"...rules that the United States of America, by virtue of certain attacks carried out in Nicaraguan territory in 1983 and 1984; against Puerto Sandino on September 13 and October 14, 1983; against Corinto on October 10, 1983; against the naval base at Potosí on January 4 and 5, 1984; against San Juan del Sur on March 7, 1984; against patrol boats at Puerto Sandino on March 28 and 30, 1984; and against San Juan del Norte on April 9, 1984; as well as by virtue of acts of intervention that imply the use of force indicated above in Clause 3, has violated, with respect to the Republic of Nicaragua, the obligation imposed on it by the customs of international law to not recur to force against another state;
"...rules that the United States of America, by ordering or authorizing over-flights of Nicaraguan territory, as well as by acts that are imputable to it... has violated, with respect to Nicaragua, the obligation imposed on it by international law... not to commit an assault on the sovereignty of another state;
"...rules that by planting mines in the interior or territorial waters of the Republic of Nicaragua in the course of the first months of 1984, the United States of America has violated, with respect to... Nicaragua, the obligations corresponding to it by international law... not to recur to force against another state, not to intervene in its affairs, not to commit an assault against its sovereignty and not to interrupt its peaceful maritime commerce.
"...rules that, by the acts indicated earlier... the United States of America has violated, with respect to Nicaragua, its obligations derived from Article XIX of the Treaty of Friendship, Commerce and Navigation... signed in Managua on January 21, 1956;
"...rules that the United States of America, by not indicating the existence or placement of mines it planted... has violated the obligations imposed on it by international law;
"...indicates that the United States of America, by producing in 1983 a manual titled "Psychological Operations in Guerrilla Warfare" and by distributing said manual among the counterrevolutionary forces, has instigated these forces to commit acts contrary to the general principles of humanitarian law; but does not find elements that allow it to conclude that such acts are imputable to the United States... as their own activities;
"...rules that the United States of America, through its attacks against Nicaraguan territory indicated earlier... and through the general commercial embargo against Nicaragua imposed on May 1, 1985, has committed acts undermining the Treaty of Friendship, Commerce and Navigation between the parties, signed in Managua on January 21, 1956;
"...rules that the United States of America is obliged to immediately end and renounce any act that constitutes a violation of its aforementioned legal obligations;
"...rules that the United States of America has the obligation, with regard to the Republic of Nicaragua, to make good any damage caused to that country by the violation of the Treaty of Friendship, Commerce and Navigation;
"...rules that the kind and amount of these reparations will be established by this Tribunal, in the case that the involved parties do not arrive at an accord in this respect, and reserves the right to continue the procedure..."
The verdict sided with Nicaragua in all the basic points presented to the Court. But it took up more issues than those covered in the resolutions. The United States cited the most surprising points to justify its illegal activities, such as the type of government in place as well as Nicaragua's political and military alliances, in addition to the government's supposed assistance to the Salvadoran insurgents. The Court addressed these points as well. In relation to the US Congress' charge of Nicaragua's "intention to establish a totalitarian communist dictatorship," the Court stated,
"Whatever definition is assigned to the government in Nicaragua, the adherence of a state to a particular doctrine does not constitute a violation of international law. Any other conclusion would mean depriving the principle of sovereignty of nations, on which international law rests, of its fundamental sense, as well as the freedom that each state has to choose its political, social, economic and cultural system."
Referring to Nicaragua's foreign policy and political alliances, the Court said,
"It is sufficient to verify that the sovereignty of a state extends... to the arena of foreign policy and that there is no provision in international law impeding a state from choosing and carrying out a foreign policy in coordination with other states."
Taking up the situation of human rights, the Court declared,
"While the United States may certainly have its own appraisal of the human rights situation in Nicaragua, the use of force cannot be the proper method to verify and ensure the respect of such rights."
Referring to the issue of Nicaragua's arms buildup, "judged by the United States to be excessive and evidence of Nicaragua's aggressive intentions," an accusation reiterated repeatedly by the United States, the Court states,
"It is useless and not pertinent, in the opinion of the Tribunal, to take a position on this allegation of the United States, given that in international law there are no rules other than those that the affected state itself accepts... that impose a limitation on the level of arms that a sovereign state may maintain, this principle being valid for all states without exception."
The verdict was unique. For the first time, specific aspects of the principles of non-intervention, non-use of force and respect for sovereignty were dealt with in a case like this. Elements that tend to be used as pretexts to promote and carry out imperialistic policies, to the detriment of weaker nations, were challenged.
Brief on IndemnificationThe US moved quickly to challenge the legitimacy of the Court's historic decision. Given that the US government refused to recognize that decision, it was necessary to go through a series of formalities so that initiatives to assure compliance would not be futile. On July 17, 1986, Nicaragua sent an official note to the United States, inviting it to arrive at a bilateral agreement on the case, in conformance with the World Court decision. Nicaragua contacted the United States again on May 12 of the following year. The United States officially rejected any bilateral arrangement on August 1, 1987, and Nicaragua thus communicated its decision to continue the proceedings to the Court on September 7, 1987, so that the Court would resolve the issue of economic reparations. The Court set a March 29, 1988, deadline for submitting the brief on indemnification. Nicaragua turned its report on that day. In its conclusions, it demanded from the United States:
1. For people killed and wounded: US$900 million.
2. For direct material damages: US$275.4 million.
3. For production losses: US$1.28 billion.
4. For damages caused by direct attacks carried out by the United States, including the mining of the harbors: US$22.9 million.
5. For security and defense costs: US$1.35 billion.
6. For damages related to the trade embargo: US$325.4 million.
7. For damages caused to development potential: US$2.55 billion.
8. For damages caused to social development: US$2 billion.
9. For reparations due to attacks against the nation's sovereignty: US$1.07 billion.
10. For reparations for moral damages: US$2.44 billion.
The sum that Nicaragua demanded of the United States as reparations totaled over $12.2 billion, which covered the damages suffered by Nicaragua between December 1, 1981, and the date the brief was filed. Nicaragua based this sum on arguments and cases sustained previously by the United States before the Court and other tribunals. It was also based on previous cases by other countries in the World Court and other tribunals, including the Court's predecessor. Nicaragua's brief—thousands of pages in six thick volumes—is the most systematic, minute and documented work drawn up about the impact of US aggression on the Nicaraguan economy. It began with this statement:
"No pecuniary reparation, whatever the amount, will truly be able to make amends to Nicaragua for the devastation caused to its territory by the illicit conduct of the United States. Such reparation will not be able to revive the dead, or heal the physical and psychological damages suffered by a population that has withstood a merciless campaign of armed attacks and economic strangulation for more than seven years The overall consequences of such a policy on a small country are simply incalculable."
In its first chapter, Nicaragua laid out the legal basis for its claim. All violations of international law imply the obligation of reparations for damage done. This principle has been accepted by all countries of the world and particularly by the United States. To demonstrate this, two cases were cited.
In 1937, the Paney and other US ships were bombed and sunk by Japanese airplanes as they navigated the Yantze River in China. The United States demanded of Japan "complete and total indemnification" for the damages in lives lost and goods destroyed. In 1955, an Israeli passenger plane was downed over Bulgaria and all its occupants, including some US citizens, were killed. The US demanded of Bulgaria "a rapid and appropriate indemnification to the United States to benefit the families of the US citizens killed in the attack." The Nicaraguan brief to the Court also recalled the US Diplomatic and Consular Personnel in the Teheran case, brought to the World Court. The US document of 1980 says the following:
"In particular, the United States holds that it has the right to full reparation for the damages suffered by the United States as a state, and by its citizens as victims of the illicit actions of Iran."
Nicaragua started with the same premises used by the United States in earlier cases. It used the same method to determine the monetary value for lives lost and people wounded. In this chapter, as in others, Nicaragua acted in representation of Nicaraguan citizens whose lives and goods were affected by illegal US activities, without consideration of their political affiliation. To support its demand, Nicaragua used formulas also employed previously by the United States. After the Israeli plane was shot down, the United States took Bulgaria to the World Court. In its July 27, 1955, brief, the United States requested that Court demand Bulgaria pay indemnification for the victims, arguing:
"The sum of $257,875 demanded in the petition in the name of the US victims only has indemnification value. As part of the supplementary pecuniary reparation that the United States has mentioned... the government of the United States respectfully begs the Court to rule in its favor and accord an amount of $100,000 in damages and interest for other reprehensible acts committed without motive by the government of Bulgaria."
To strengthen its case, Nicaragua mentioned three other cases. In 1977, an armed commando attacked Benin. To determine the damages suffered, Benin requested assistance from the United Nations, whose Secretary General formed a team of experts to investigate the case. The team concluded that the attack had caused 7 deaths and 51 wounded and valued the human damages at $40 million. In 1985, Botswana was the victim of an attack by South African special forces. Botswana appealed to the Security Council, and a UN special mission put the damages at $118,000 per person killed, and $69,971 for each person wounded.
One last case: the two US citizens executed by the Nicaraguan government in 1909, for involvement in activities against the Zelaya government. The US reacted with the Knox Note, and a mixed reparations commission set up by the United States demanded, in 1918, that Nicaragua pay $20,000. The current value would be $50,000 per person.
As Nicaragua indicated, assigning a value to a human life is not an agreeable task:
"It is impossible to estimate human life in monetary terms. It is particularly disagreeable for a state to propose an amount for a pecuniary indemnification for the life of its citizens. And it will not be easy for the Court to make a calculation of this nature."
To fix costs that Nicaragua was forced to spend on defense and security, the following system was used: the average amount of the combined budget of the Ministries of Defense and Interior for 1980-1982 was determined in US dollars. Then the budget costs for these two ministries from 1983-1987 were compared to the "normal" cost of the first period. The difference represents "supplementary" costs on which the claims for reparation are made.
These examples serve simply as illustrations of the rigor and formality with which Nicaragua drew up its brief, basing it in international practice, jurisprudence and doctrine, particularly as applied by the United States itself.
The final chapter?Its February 1990 electoral defeat shocked the FSLN and left many things pending, including the World Court case. Various factors had made the Court postpone the final phase of the proceedings. Influencing the Court's attitude were vacillations in foreign policy that had characterized the Sandinistas' last two years in government. Nicaragua's unexpected withdrawal of its case against Costa Rica and the postponement of its case against Honduras had a negative effect on its credibility. The accusations of the United States, Honduras and other countries that Nicaragua was "using" the Court seemed to be confirmed.
After the elections, given the incoming UNO government's close ties with the US, the Nicaraguan Foreign Ministry proposed drawing up laws to maintain the cases against the United States and Honduras, to ensure the ongoing protection of Nicaragua's national interests. Thus, Law 92—the Law of Protection of the Rights of Nicaragua in the International Court of Justice—was drafted and passed by the National Assembly on April 5, 1990. The law established the obligation of the Nicaraguan government to continue the case through the decision on indemnification, including a point that reads:
"The indemnification that the United States owes Nicaragua constitutes an inalienable patrimony of all Nicaraguans, which should be used to repair the damages caused by the war; to indemnify the victims and their families, materially develop the country and overcome inherited backwardness and dependency; increase standards of living and work towards an ever more just distribution of wealth."
The law also contemplated the possibility of Nicaragua withdrawing its case, "in the event that the United States voluntarily accepts indemnifying Nicaragua in a sum no less than that demanded by Nicaragua in its brief of March 29, 1988."
The dream lasted 14 months. On June 5, 1991, the National Assembly repealed Law 92. One of the arguments used was that the law blocked the President from friendly negotiations with the United States. A quick glance at the law, however, suggests otherwise. The law did not prohibit the President from friendly negotiations, only from renouncing Nicaragua's rights or accepting a disadvantageous accord with the US. Another argument was that Nicaragua had no means with which to oblige the US to pay reparations. That is not a valid argument, since the UN Charter does contain mechanisms by which to ensure that states comply with their international obligations.
Repealing Law 92 was an act of submission to US interests. This action on the part of the UNO bench in the National Assembly will go down in history with two other sad precedents: the approval of the Chamorro-Bryan treaty in 1914 and the approval, under pressure, of the badly named Barcenas Meneses-Esguerra "treaty" in 1928, under which the so-called Congress handed over the islands of San Andrés and Providencia to Colombia.
Nevertheless, it would be an error to think that the case against the United States is closed with the repeal of Law 92. The process can only be finalized by direct communication on the part of the Nicaraguan government to the World Court, something that has not happened to date. The repeal of Law 92 only means that the government of Nicaragua has no direct and immediate legal obstacle to doing so. In place now are only moral and patriotic limits, and those imposed by Nicaragua's Constitution since the constitutionality of the repeal law is still pending in Nicaragua's Supreme Court.
The repeal of Law 92 was followed by one of the most dramatic events of recent years: the Persian Gulf War. On March 2, 1991, the UN Security Council approved Resolution 686, demanding of Iraq, among other things, the "acceptance of responsibility for war damages in Kuwait and third countries, the return of all Kuwaiti property taken from that country, and assistance in the reconstruction of Kuwait."
By invading and annexing Kuwait, Iraq violated Kuwait's right to sovereignty and political independence, causing it grave damage. Iraq is legally obliged to pay Kuwait reparations for that damage. The Security Council resolution demands that Iraq assume this obligation, including reparation for damages caused to "third countries," such as Saudi Arabia and Israel. Legally, the Council's demand is correct. International law works erga omnes: all are equal before the law.
The situation between Kuwait and Iraq is, to some extent, similar to the rise of US military and paramilitary activities against Nicaragua condemned by the World Court. In both cases, a militarily powerful country tried to resolve a conflict with another state by force. In both cases, that power trampled on the right of a state to sovereignty and political independence, and violated its territorial integrity. The difference is that the transgressor was the United States in one case, while in the other it was Iraq.
If there is to be any hope of creating a legal order guaranteeing world peace, international law cannot be applied arbitrarily. Under international law, all states are equal, independent of their economic or military might. The United Nations served to expel Iraq and reestablish Kuwait's sovereignty, independence and territorial integrity. It was dealing with the very principles violated by the US in its war against Nicaragua.
One last comment. It is said that the indemnification owed Nicaragua by the United States is a political issue, not Nicaragua's right. Such folly is easy to refute. A state, for example, may decide to acquire a territory as when the US acquired Alaska from the Soviet Union—and such a decision is political in the sense that the territory may or may not be acquired and there is no violation of the sovereignty of a state in that. Once a territory has been acquired, however, its destiny is no longer a political question. The acquired territory becomes part of the national territory and its destiny affects the entire country, not just the government. It is the same with the acquisition or recognition of rights in benefit of a state, as in the case under discussion. The decision to bring the case against the United States was political. But the right of Nicaragua to reparations is a national issue, not merely a political one, since it is a right recognized for an entire country. The unconstitutionality of the decision of a government that wants to deprive Nicaragua of a recognized right belonging to the nation as a whole lies in considerations of this nature.
|
a monthly magazine of analysis on Central America