Nicaragua v. the United States of America

Military and Paramilitary Activities in and against Nicaragua

International Court of Justice, 1984-1986

Notes by James McCall Smith

Background

During the Reagan administration in the 1980s the United States actively supported the insurgency of Contra rebels against the leftist Sandinista regime in Nicaragua. Nicaragua capitalized on U.S. acceptance of the optional clause to file suit against the United States before the International Court of Justice (ICJ), which claimed compulsory jurisdiction. In direct response to the suit, the Reagan administration revoked U.S. acceptance of the optional clause, first with regard to lawsuits on Central America and later for any and all disputes. The United States also refused to appear before the court during the final hearings on the merits and never recognized the ICJ rulings as binding.

A number of interesting legal issues arose during the case, both with regard to ICJ jurisdiction and on the substantive Nicaraguan claims. In vain, U.S. lawyers advanced several reasons why the ICJ should not exercise jurisdiction (security issues are nonjusticiable; Nicaragua never properly accepted the optional clause; plus others). The U.S. delegation also filed an affirmative defense for its activities in Nicaragua under the theory of collective self-defense. The ICJ, however, rejected this argument and refused to review counter-complaints filed by both the United States and El Salvador regarding Nicaraguan violations of international law in the form of active Sandinista support for Salvadoran rebels. It awarded Nicaragua an unspecified but potentially tremendous level of damages, estimated to be as large as $17 billion.

The fallout from this case was tremendous. The United States viewed the ICJ with active hostility and distrust for years afterwards and has never reinstated its acceptance of the optional clause.

In the end, after the civil war in Nicaragua came to a close and 1990 elections brought President Violeta Barrios de Chamorro to power, Nicaragua formally withdrew its ICJ case in 1991, thereby abandoning all claims to the judgment. It did so only under intense pressure from the Bush administration, which made future U.S. aid to Nicaragua contingent on renunciation of the case.

Assigned Readings

For background information and a sense of the rancorous debate surrounding this case, I have posted a small but important
set of articles on Prometheus. They detail the main arguments on both sides and begin to assess the political and legal consequences of the controversy.

In this single case the ICJ handed down three pertinent rulings, all of which are rather (OK, I admit, very) lengthy. You are responsible for all three, but not in any detail. Be sure to gain a sense of the principal arguments of the parties and central holdings of the court in each ruling. Some paragraphs are far more important than others, and the descriptions I give below offer meaningful tips on the brief segments you should be sure to read carefully:

First was a preliminary ruling on provisional measures (May 10, 1984) calling on the United States to cease all interventions and refusing to dismiss the case. In this document, pay special attention to Paragraphs 1, 2, and 41. Also note the dissent of U.S. Judge Stephen Schwebel, who voted against the United States only in part.
Next came the all-important jurisdiction ruling (November 26, 1984) that caught the U.S. team by surprise and prompted the Reagan administration to boycott all further proceedings. Important issues are defined in Paragraphs 12-13, 17, 48, and 67-69 (where the U.S. again forgoes the Connally Amendment). For the U.S. arguments, see Paragraphs 84, 86, 89, 99, and 102. The court's central holdings are summarized in Paragraphs 109-113.
Also of interest is the ten-page U.S. statement of withdrawal (January 1985) from the proceedings, in which the U.S. legal team -- which included Professor Louis Sohn, who later joined the GW Law Faculty -- forcefully presented its many criticisms of the first two ICJ rulings.
Finally, there is the absolutely mammoth ruling on the merits (June 27, 1986). It is much, much too long to assign, but at a minimum be sure to read the evaluation of the U.S. claims of collective self-defense in Paragraphs 193-195 and the final holdings in Paragraph 292. As an alternative, you might find very useful this nine-page summary of the ruling provided by the Max Planck Society in its World Court Digest series.

Basic Legal Materials for Reference

Statute of the International Court of Justice

Questions to Ponder

In ruling against the United States in this case, did the ICJ enhance or diminish its reputation for the impartial administration of justice? Other things being equal, would you expect its caseload to have increased or diminished in size during the years immediately after this case?

Did the U.S. revocation of its 1946 acceptance of the optional clause do profound injury to the ICJ or garner for it broader international support?

Should the U.S. now reinstate its acceptance? Should it attach any reservations? If so, of what sort?

As a matter of law, should the ICJ have exercised jurisdiction over Nicaragua's claims?

As a matter of politics, should security issues be subject to third-party judicial review?

Had they been able to anticipate the ultimate outcome of both the civil war and this case, would the Sandinistas still have pressed their claims before the ICJ? What if any advantages does the ICJ offer to smaller, relatively less powerful states?