Nicaragua
World Court Sides with Justice
Envío team
On June 27, 1986, the International Court of Justice at The Hague delivered its judgment on the merits in the case concerning "Military and Paramilitary Activities in and against Nicaragua," brought by Nicaragua against the United States on April 9, 1984.
Of the 16 decisions contained in the judgment, only the last one received the unanimous vote of all 15 members sitting on the case, including Judge Schwebel, from the United States. In it, the Court, "Recalls to both Parties their obligation to seek a solution to their disputes by peaceful means in accordance with international law."
These lines, although brief, are rich in content. In them, the Court realistically, yet with the hope that gives rise to dialogue between nations, recognized:
The existence of real and recognized "disputes" between both countries; The path that "peaceful means" open for solving those disputes; 3) International law as the criterion that guides the search for a solution; 4) The obligation that both the US and Nicaragua have to assume this path before any other non-peaceful means; 5) The recognition that Nicaragua has proceeded in accordance with its obligation and right to go to the International Court of Justice to settle "its disputes"; 6) The need for "both parties" and the rest of the world to "recall" that the US failed to comply both implicitly and explicitly with its obligation by withdrawing from this case, closing off all dialogue, financing the war against Nicaragua as a means of solving "its disputes," and ignoring the jurisdiction of the World Court.
To commemorate this process that resulted in a victory for law and for Nicaragua and the condemnation of the US government, we offer on this seventh anniversary of the Sandinista Popular Revolution a documented chronology of the facts and a brief analysis of the significance of this international case. We begin by a review of the International Court of Justice and its function.
The Hague tribunalThe International Court of Justice, located in The Hague, Netherlands, is the principal juridical body of the United Nations, which also comprises five other principal bodies: the General Assembly, the Security Council, the Secretary General, the Council of Fiduciary Administration and the Economic and Social Council.
The International Court of Justice, more commonly known as the World Court, was created in 1945 by the UN Conference in San Francisco. The statue by which it is governed—signed June 26, 1945—is an integral part of the UN Charter. All UN members are ipso facto members of the World Court. Even states that are not UN members can be part of the World Court Statute, by previous recommendation of the Security Council in accord with conditions determined by the General Assembly in each case.
The World Court has two functions. The first is "to decide in accordance with international law the disputes that are submitted to it" (art. 38 of the Statute). This jurisdiction is extended to:
a) the interpretation of a treaty;
b) any issue of international law;
c) the existence of any deed that, if it were established, would constitute a violation of an international obligation;
d) the nature or extent of reparations that must be made for failure to comply with an international obligation (art. 36 para. 2).
The second function is "to produce consultative opinions in reference to any juridical question, at the request of any organization authorized for this by the UN Charter or in agreement with the dispositions of the same" (art. 65, para. 1).
The World Court is made up of 15 magistrates voted on separately by the General Assembly and the UN Security Council from a list presented by the UN Secretary General after receiving candidates from the different member countries. No two magistrates may be of the same nationality, and one from each of the four "great powers" must be included (China is not included in this concept). The rest are chosen in accordance with the following division: three from Africa, three from Asia, two from Latin America, two from Western Europe and one from Eastern Europe. The members of the Court are chosen for nine-year terms and can be reelected; at the end of their term they continue on the cases they have begun. They are presided over by a president and vice president, chosen by the same court, for a period of three years.
To carry out its work on the disputes submitted to it, the World Court must use the following criteria:
a) international conventions, whether particular or general, that are recognized by the litigant states;
b) international custom as a proof of a practice generally accepted as law;
c) general principles of law recognized by civilized nations;
d) judicial decisions and doctrines of the most competent publicists of the different nations, as an auxiliary means for determining the rules of law (art. 38, paragraph 1).
The judges take note of the fact that the term "civilized nations" is antiquated and does not respond to today's law, which has a marked universal character.
The statute, which has been approved and accepted by all its members, is clear on the value of its decisions: "art. 60. The sentence will be definitive and unappealable. In the case of disagreement over the meaning or extent of the judgment, the Court will interpret it at the request of any of the parties."
We believe it useful to transcribe some of the articles of the World Court Statue, in order to understand the procedure followed and why the Court legitimately defined its jurisdiction in the case, why Nicaragua requested "provisional measures" of protection, why El Salvador requested to intervene in the process and why the World Court rejected this petition, and finally why the Nicaraguan petition went forward despite the US government's withdrawal first from that debate, and later from the World Court itself.
Art. 36, para. 6: "In the case that the Court's jurisdiction is disputed, the Court will decide."
Art. 40, para. 1: "Businesses will be inchoate before the Court, according to the case, through written petition directed to the Secretary; in both cases the object of controversy and the parties will be indicated. 2. The Secretary will immediately communicate the petition to all interested parties. 3. The Secretary will also notify the UN members through the Secretary General, as well as the other States with the right to appear before the court.
Art. 41, para. 1: "The Court will have the faculty to indicate, if it considers that the circumstances require it, the provisional measures that should be taken to protect the rights of each one of the parties." Para. 2: "While the judgment is being pronounced, the parties and the Security Council will be immediately notified concerning the indicated measures."
Art. 42, para. 1: "The parties will be represented by agents." para. 2: "They can have advisers or lawyers before the Court." para. 3: "The agents, the advisors and lawyers of the parties before the Court will enjoy the privileges and necessary immunities for free performance of their functions."
Art. 43, para. 1: "The procedure will have two phases: one written and one oral." Para. 2: "The written procedure will be composed of the communication to the Court and the portions, statements, counterstatements and, if necessary, replicas, as well as all supporting exhibits or documents." Para. 3: "Communication will be made through the Secretary, under the terms fixed by the Court." Para. 4: "Every document presented by one of the parties will be communicated to the other by means of a certified copy." Para. 5: "The oral proceeding will consist of the hearing that the Court grants to witnesses, experts, agents, advisers and lawyers."
Art. 46: "The views of the Court will be public, except in such cases as the Court stipulates otherwise, or in which the parties request that they not be made public."
Art. 48: "The Court will dictate the necessary measures for the course of the process, will decide the form and terms to which each party must adjust its allegation and will adopt the necessary measures for the purposes of proof."
Art. 53, para. 1: "When one of the parties does not appear before the Court, or abstains from defending its case, the other party will be able to request that the Court decide in its favor." Para. 2: "Before giving its decision, the Court will have to make sure not only that it has competence in accordance with the dispositions of articles 36 and 37, but also that the demand is well founded regarding the facts and the law."
Art. 55, para. 1: "All decisions of the Court will be made by a majority of votes of the magistrates present." Para. 2: "In case of a tie, the vote of the President or the judge replacing him will decide."
Art. 56, para. 1: "The judgment will be explained." Para. 2: "The judgment will mention the names of the judges that have taken part in it."
Art. 57: "If the judgment does not express in its entirety or in part the unanimous opinion of the magistrates, any of these will have the right to add his dissenting opinion to the judgment."
Art. 58: "The judgment will be signed by the President and the Secretary, and will be read in public session after duly notifying the agents."
Art. 62, para. 1: "If a state considers that it has a legal interest that could be affected by the decision of the litigation, it will be able to ask the Court to permit it to participate." Para. 2: "The Court will decide with respect to said petition."
Chronology of the Process1984
April 9: The Nicaraguan Ambassador to Holland, Carlos Argüello, delivered to the Secretary of the World Court, Santiago Torres Bernárdez, the petition with which Nicaragua opened the judicial process against the United States for activities violating international law against the Nicaraguan people. In this petition, the Nicaraguan government also requested that the World Court urgently dictate "provisional measures" for its protection.
According to the communiqué of the Public Relations Executive Office of the Governing Junta of National Reconstruction, signed on the same date, Nicaragua's fundamental petition was that the World Court declare illegal all US-sponsored undercover activities to overthrow the present Nicaraguan government. Outstanding among these activities at the time were the attacks carried out in Nicaraguan territory in March 1984 by 6,000 counterrevolutionaries with US assistance; the mining of Nicaragua's principal ports in an attempt to economically isolate the country, resulting in damage to vessels from Holland, Panama, USSR, Japan and Britain; the open effort of the Reagan administration to obtain $21 million to support the activities of the contras. Without making an exact calculation of the material damages caused to agricultural output, bridges, pipelines, fuel storage tanks, electric plants, airports, sea ports, highways and factories caused by these undercover activities, a single sum was given "in excess of $200 million" and it was noted that in addition 3,000 Nicaraguans had by that time been wounded or lost their lives (the figure has by today reached more than 31,000).
All of these US activities were in violation of international law and the UN and OAS Charters, the communiqué alleged, particularly in three principles: to not resort to force or the threat of force in relations with other states; to not violate the sovereignty, territorial integrity or political independence of any other State and to not violate the freedom of the seas or impede peaceful maritime commerce.
As a "provisional measure," Nicaragua requested that the World Court order the immediate cessation of all US support for the counterrevolution while the case was pending.
April 17: The World Court members met in a private session for a first deliberation on Nicaragua's petition. In the communiqué announcing this private session, the President of the Court, Negendra Singh, called on both parties to act in a manner that respects the Court's judgment.
Despite the fact that on April 6 US Secretary of State Shultz announced in a letter to the UN Secretary General that his government would ignore the Court’s jurisdiction in "disputes with any Central American state or that originate or are related to events that develop in Central America," State Department adviser David R. Robinson attended this first private session as an official representative of the Reagan Administration.
April 25 and 27: Public hearings of the World Court for the oral observations of the parties concerning the request for provisional measures. The US rejected Nicaragua's request and declared that the Court was not competent to hear it. It also accused Nicaragua of converting the Court into a political forum and of inciting insurrections in the countries of the area, with attacks beyond its borders with Honduras and Costa Rica. And finally, it delivered to the Secretary of the Court telegrams from the governments of Costa Rica and El Salvador and a telex from Honduras directed to the UN Secretary General expressing that the provisional measures requested by Nicaragua injure the rights of these countries. They ask, in essence, that the World Court eliminate from the General Register the request for provisional measures (e.g., a cessation of US support for the contras while the case is being heard). The growing number of civilians killed by the attacks subsidized by the Reagan Administration is what, in Nicaragua's opinion, requires immediate provisional protective measures.
May 1: The World Court announced its first judgment in a public hearing: by a unanimous vote it rejected the US request that provisional measures be eliminated from the General Register; it also unanimously called on Nicaragua and the US to "assure that actions not be taken that could aggravate or extend" the dispute. Again by unanimous decision, the Court decreed that the "US must immediately cease and abstain from any action that will restrict, block or place in danger the entrance to or exit from Nicaraguan ports, in particular by the placement of mines."
By a vote of 14 to 1—with the sole dissenting vote coming from US Judge Schwebel—the Court declared that "the right to sovereignty and political independence that the Republic of Nicaragua possesses, as does any other state in the region and the world, should be respected and not compromised in any manner by military or paramilitary activities that are prohibited by the principles of international law, particularly by the principle that States abstain in their international relations from resorting to the threat or use of force against the territorial integrity or the political independence of any State, and by the principle relating to the duty not to intervene in affairs that fall under the national jurisdiction of a State, consecrated by the UN and OAS Charters."
May 14: The President of the World Court issued an ordinance calling on Nicaragua to present its statement concerning the competence of the Court to judge its demand against the US government before June 30, 1984. The US was called on to present its counterstatement before August 17, 1984.
June 30: Nicaragua delivered to the World Court its statement concerning the competence of the Court to hear and judge its demand against the US.
August 15: The President of El Salvador, José Napoleón Duarte, announced that he would present the World Court with a demand against Nicaragua for introducing arms by air, sea and land into El Salvador for the Salvadoran guerrillas.
August 17: The government of El Salvador presented the Court with a "Declaration of intervention" by which it alleged its right to participate in this process because the opinion of the Court could affect its interests. It also maintained that the World Court has no jurisdiction in this dispute.
The US presented the Court with its counter-statement, alleging the incompetence of this Court to hear and judge the Nicaraguan demand.
October 5: By a 9 to 6 vote, the World Court decided not to hold hearings on El Salvador's petition. By 14 votes to 1—Schwebel's—it decided that El Salvador's request to intervene in a process initiated by Nicaragua was inadmissible.
October 8-10: In a public hearing, Nicaragua claimed that the Court has the jurisdiction to hear and judge its case against the United States.
October 15-17: Public hearings were held for the US to defend its allegation against the Court's jurisdiction to hear the case presented by Nicaragua.
November 26: The World Court released its decision on its own jurisdiction and competence to hear the Nicaraguan demand: By 11 votes to 5 (Oda, Mosle, Ago, Schwebel, Jennings), it decided that it had jurisdiction to hear the case in question (Art. 36, paras. 2 and 5 of its Statue).
Doubt arose over whether Nicaragua had filled all the legal requirements necessary to consider itself a signatory of the Court. The US certainly was, since August 26, 1946. Nicaragua was a signatory of the Permanent Court of Justice—the World Court's predecessor—since September 24, 1929, although it did not send the protocol for the Statute of that Court in 1930. Since it is a signatory of the UN Charter and had legitimately appeared before the World Court in previous cases, it followed—in the opinion of the 11 judges that vote in favor—that Nicaragua had fulfilled all the necessary requirements and was under the jurisdiction of the Court.
By a vote of 14 to 2 (Ruda, Schwebel), it decided that it was competent to hear and judge this demand, "to the extent that it concerns a dispute over the interpretation or application of the Treaty of Friendship, Commerce and Navigation, signed by the United States of America and the Republic of Nicaragua in Managua, January 21, 1956, on the basis of article XXIV of this Treaty."
By a 15 to 1 (Schwebel) vote, the Court decided that it had competence to hear the case. Schwebel alleged that the Court did not have competence to hear this case because, according to the UN Charter, the Security Council has to handle military conflicts. The opinion of the other 15 judges prevailed as Nicaragua's request was not related to a war between that country and the US, but to a situation in which a practical solution to the disputes is demanded.
The Court unanimously decided that the demand presented by Nicaragua on April 9, 1984 was admissible.
1985January 18: The US government, in a letter to the Secretary of the World Court, restated its opinion that the Court did not have jurisdiction to hear the Nicaraguan demand and as a result the US "does not have the intention of participating in any other proceedings in reference to this case."
January 22: The President of the World Court signed an ordinance requesting Nicaragua to present its statement with the arguments of proof and its accusations against the United States by April 30, 1984. It also called on the US to present its counterstatement before May 31, 1984.
April 30: Nicaragua presented a statement of 258 pages describing the acts of which it accused the US and the legal arguments with which it maintained that the US government had violated international law. If the US were found guilty, Nicaragua would claim US$370.2 million in compensation.
May 3: President Reagan announced the economic boycott against Nicaragua in Bonn.
July 15: Costa Rican Foreign Minister, Carlos José Gutiérrez, announced that his country would appear before the World Court against Nicaragua over border conflicts.
September 12-19: Public hearings at the World Court:
Ambassador Carlos Argüello presented Nicaragua's allegation.
Comandante Luis Carrión gave his oral testimony on US military and logistical support to the counterrevolutionary groups and answered questions from Judge Schwebel about the US accusations against Nicaragua concerning arms traffic and support for insurgent movements in Central America.
The Nicaragua Finance Minister, William Hüpper, testified and cited proofs on the economic damages inflicted with US aid.
David McMichel, ex-CIA agent in Honduras, gave testimony on the lack of proof supporting the US accusation of arms trafficking to El Salvador.
French priest Jean Loisson, who worked in La Trinidad, Estelí, gave testimony about the crimes committed against the civilian population by the contras with US aid.
US professor Michael Glennon, former legal adviser of the US Senate Foreign Relations Committee, delivered written testimony, signed by a US notary, given by Edgard Chamorro, ex-leader of the FDN, denouncing the CIA’s participation in the aggression against Nicaragua.
Allegations of the lawyers chosen to represent Nicaragua in this process: Abraham Chayes, Professor of Law at Harvard; Ian Browlie, Professor of International Law at Oxford; Alain Pellet, Professor of Law in Paris. Paul Reichler, US expert in International Law acts as General Counsel for the Nicaraguan government.
September 14: The State Department published a 100-page document, titled "Revolution Beyond Our Borders: The Sandinista Intervention in Central America," without appearing before the Court.
The public hearings came to a close. The Verdict of the World Court was expected within 60 days (the end of November 1985).
October 7: President Reagan signed a document produced by the National Security Council affirming US refusal to recognize any jurisdiction of the International Court of Justice.
Secretary of State, George Shultz, informed the United Nations Secretary General that the US renounced its declaration of August 26, 1946 accepting the compulsory jurisdiction of the World Court. This renunciation is to take effect six months after this notification (April 7, 1986).
1986June 13: The World Court announced officially that on June 27 it would give its judgment on the process initiated by Nicaragua against the United States on April 9, 1984.
June 27: At a public hearing, the International Court of Justice pronounced its judgment, as follows:
1) By eleven votes to four, decides that in adjudicating the dispute brought before it by the Application filed by the Republic of Nicaragua on April 9, 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 August 26, 1946;
IN FAVOR: President Nagendra Singh; Vice President de Lacharriere; Judges Lachs, Oda, Ago, Schwebel, Jennings, Mbaye, Bedjaoui and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Ruda, Elias, Sette-Camara and Ni.
2) By twelve votes to three, rejects the justification of collective self-defense maintained by the United States of America in connection with the military and paramilitary activities in and against Nicaragua, the subject of this case;
IN FAVOR : President Nagendra Singh; Vice President de Lacharriere; Judges Lachs, Ago, Mbaye, Bedjaoui, Evensen, Ruda, Elias, Sette-Camara and Ni; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Jennings.
3) By twelve votes to three, 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;
IN FAVOR: President Nagendra Singh; Vice President de Lacharriere; Judges Lachs, Ago, Mbaye, Bedjaoui, Evensen,
Ruda, Elias, Sette-Camara and Ni; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Jennings.
4) By twelve votes to three, decides that the United States of America, by certain attacks on Nicaraguan territory in 1983-84, 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;
IN FAVOR : President Nagendra Singh; Vice President de Lacharriere; Judges Lachs, Ago, Mbaye, Bedjaoui, Evensen, Ruda, Elias, Sette-Camara and Ni; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Jennings.
5) By twelve votes to three, decides that the United States of America, by directing or authorizing overflights of Nicaragua 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;
IN FAVOR: President Nagendra Singh; Vice President de Lacharriere; Judges Lachs, Ago, Mbaye, Bedjaoui, Evensen, Ruda, Elias, Sette-Camara and Ni; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Jennings.
6) By twelve votes to three, 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 obligation 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;
IN FAVOR: President Nagendra Singh; Vice President de Lacharriere; Judges Lachs, Ago, Mbaye, Bedjaoui, Evensen, Ruda, Elias, Sette-Camara and Ni; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Jennings.
7) By fourteen votes to one, decides that, by 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;
IN FAVOR: President Nagendra Singh; Vice President de Lacharriere; Judges Lachs, Schwebel, Jennings, Ago, Mbaye, Bedjaoui, Evensen, Ruda, Elias, Sette-Camara and Ni; Judge ad hoc Colliard;
AGAINST: Judge Oda.
8) By fourteen votes to one, 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;
IN FAVOR: President Nagendra Singh; Vice President de Lacharriere; Judges Lachs, Schwebel, Jennings, Ago, Mbaye, Bedjaoui, Evensen, Ruda, Elias, Sette-Camara and Ni; Judge ad hoc Colliard;
AGAINST: Judge Oda.
9) By fourteen votes to one, finds that the United States of America, by producing in 1983 a manual titled "Operaciones sicológicas in 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 that may have been committed are imputable to the United States of America as acts of the United States of America;
IN FAVOR: President Nagendra Singh; Vice President de Lacharriere; Judges Lachs, Schwebel, Jennings, Ago, Mbaye, Bedjaoui, Evensen, Ruda, Elias, Sette-Camara and Ni; Judge ad hoc Colliard;
AGAINST: Judge Oda.
10) By twelve votes to three, 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;
IN FAVOR: President Nagendra Singh; Vice President de Lacharriere; Judges Lachs, Ago, Mbaye, Bedjaoui, Evensen, Ruda, Elias, Sette-Camara and Ni; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Jennings.
11) By twelve votes to three, 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;
IN FAVOR: President Nagendra Singh; Vice President de Lacharriere; Judges Lachs, Ago, Mbaye, Bedjaoui, Evensen, Ruda, Elias, Sette-Camara and Ni; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Jennings.
12) By twelve votes to three, 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;
IN FAVOR: President Nagendra Singh; Vice President de Lacharriere; Judges Lachs, Ago, Mbaye, Bedjaoui, Evensen, Ruda, Elias, Sette-Camara and Ni; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Jennings.
13) By twelve votes to three, decides that the United States of America is under 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;
IN FAVOR: President Nagendra Singh; Vice President de Lacharriere; Judges Lachs, Ago, Mbaye, Bedjaoui, Evensen, Ruda, Elias, Sette©Camara and Ni; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Jennings.
14) By fourteen votes to one, decides that the United States of America is under obligation to make reparation to the Republic of Nicaragua for 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;
IN FAVOR: President Nagendra Singh; Vice President de Lacharriere; Judges Lachs, Schwebel, Oda, Jennings, Ago, Mbaye, Bedjaoui, Evensen, Ruda, Elias, Sette-Camara and Ni; Judge ad hoc Colliard;
AGAINST: Judge Schwebel.
15) By fourteen votes to one, 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;
IN FAVOR: President Nagendra Singh;
Vice President de Lacharriere; Judges Lachs, Schwebel, Oda, Jennings, Ago, Mbaye, Bedjaoui, Evensen, Ruda, Elias, Sette-Camara and Ni; Judge ad hoc Colliard;
AGAINST: Judge Schwebel.
16) Unanimously, reminds both Parties of their obligation to seek a solution to their disputes by peaceful means in accordance with international law.
In the name of the Leviathan
Is it possible for conflicts between nations to be solved by peaceful means? All the signers of the UN Charter, after the shame and crimes of the Second World War, affirmed this possibility. The International Court of Justice was formed for this reason, as a legal recourse that, by means of law, solves disputes.
The process initiated by Nicaragua against the US and its development lead to the following conclusions:
1. The World Court affirmed the principle of settlement by peaceful means—not only verbally in point 16 of its judgment of June 27, but also in its action, by completing its function and the mandate received from the General Assembly and the Security Council, despite the fact that what is supposedly the most powerful nation on earth boycotted the process, withdrew and finally refused all jurisdiction of the Court.
2. The process was carried out in accordance with the details established by the World Court Statute and Regulations, step by step, without confusing the stages, open to all testimony between civilized nations. It did not fail to cause wonderment that between the public hearings of September 12-19, 1985 and the final sentence on June 27, 1986, so much time—more than expected—would have elapsed. Nor did it fail to surprise that the resolution of the Court at The Hague would be given only after the US Congress approved the $100 million that the President had fought for. All of this gave rise to speculation about pressure on the Court and even attempts at corruption. If the Court suffered any of this, its judgment, so clearly condemning of the United States, is all the more valiant and free, although it is lamentable that it came so late. Could the House vote on aid to the contras have been different had the Court's judgment come out on the eve of the vote?
3. Nicaragua—its government, and especially its Foreign Ministry—showed once again that the boldness of denouncing the most powerful is not temerity when law and international opinion are on your side and when, despite all the obstacles, you prove the truth of your demands with the facts.
4. Like actors born into the profession, the governments of El Salvador, Honduras and Costa Rica revealed a lack of consistency and a clear coincidence with the US positions throughout the litigation process. There was no legal proof for their accusation of arms traffic from Nicaragua to the Salvadoran insurrection, a theme that Judge Schwebel explicitly presented in the interrogation.
5. The conduct of the US government throughout the proceedings was arbitrary, contradictory and threatening: Displaying a senile or infantile arbitrariness, the US government insisted that it did not want to play the game by peaceful or legal rules; it said time and again that the World Court did not have jurisdiction, although the proof of the Court's competence was expressly studied and resolved. When it realized that it was going to lose, it left the game and pouted silently like a spoiled child.
There is a fundamental contradiction in that the US actions refute what it had previously affirmed in writing: its acceptance of the Court as the means for resolving conflicts, preventing war and recovering peace between nations. This contradiction became so evident to the international community—without even taking into account the chronological coincidence of the obstacles placed before Contadora, the increase in economic and military aid to the counterrevolution, the headlong militarization of Honduras—that the only way the US could get rid of the contradiction was to erase its name from the list of those who recognize the World Court as the path of law and of legal reason.
For this reason the US behavior is dangerously threatening. For the present US government, there is no Court that can even raise questions about the legality and justice of its plans, much less condemn or disqualify some of its actions. The threat is even greater. This total rejection of the World Court makes history alongside the US withdrawal from UNESCO. The argument is the same: these organizations, part of the UN, do not follow the US political line; as such they are damaging to US and international interests and must as a result disappear from the framework of obligations contracted by the US government. The next step is easy to see: these organizations must disappear and with them, (why not?) the UN itself, which created them and together with them is the basis of their international justification.
Such a stance recalls the old dream of English philosopher Thomas Hobbes (1588-1679), which he described so logically and frankly in his book Leviathan. Everything is war, between men and between societies; experience taught Hobbes this, as it had done with Heraclitus. There is only one way to escape the situation: that each person, all people, renounce all their rights and cede them to one single ruler, who will have complete power and right to assure that we do not kill each other anymore.
This ruler—a person, or a small group of persons—will form the State. The ruler alone will dictate the laws, interpret them, pass judgment, appoint the courts or ignore them. The ruler alone will create law, because he will say what is just and what is not: because without it, all is war, and in war nothing is bad, nothing unjust, since there is no law to distinguish. Whoever protests such a situation must die, because to protest is itself a declaration of war. Whoever tries to interpret, argue or dispute something said or done by the ruler must die because he is subversive. Whoever tries to suggest a new way to do things must die, because he is a traitor who challenges the status quo. Nothing stipulated by the ruler is arbitrary, nothing contradictory, nothing threatening. On the contrary, everything is reasonable, coherent, good, because by doing away with the liberty of the rest the ruler assures peace. The Leviathan—figure of apocalypse, synonymous with the devil—has the first, the last and the only word. Whoever tries to judge him much less condemn him must disappear. This is Hobbes' worldview and the Reagan Administration, now joined by Congress has embraced it, by refusing to recognize the World Court.
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