20 Jul Nicaragua May Seek Reparations from U.S. Based on 1986 ICJ Decision
Nicaragua may vote on a referendum on whether to seek damages from the U.S. arising out of the 1980s civil war. I have grave doubts about Nicaragua’s ability to win such a claim (as well as its method of calculating damages), but it might be an interesting case.
Nicaragua’s President Daniel Ortega has proposed a referendum on whether to demand $17bn (£10bn) from the US for its role in his country’s civil war.
Mr Ortega was addressing supporters on the 32nd anniversary of the Sandinista revolution.
In 1986, the world court ruled the US violated international law by backing the Contras against Mr Ortega’s Sandinista government.
Apparently, a previous Nicaraguan government waived this claim. So in addition to the difficulty of establishing liability and calculating damages, Nicaragua will have an estoppel problem. And then there is the problem of finding a place to enforce their claim. But worth at least thinking about. It is possible, just not highly likely.
I wouldn’t even describe it as possible. The ICJ didn’t have jurisdiction back when the case was brought (Although they conveniently hand-waived this by saying the court was the final arbiter of jurisdiction, despite clear text of the treaty) and they certainly don’t have it now.
I’d have to agree with M. Gross here (if only in the result). I certainly fail to see any title of jurisdiction extant now. However, I fail to follow M. Gross’s point about the 1984 judgment (which I assume he is referring to). The Court’s role as final arbiter of its own jurisdiction is expressly laid down in the Statute (Article 36, para. 6). Even if any other treaty could take away that power (on which point Arts. 92, 103 of the Charter and Tadic may have some relevance), I’m not sure what that treaty is. The Connally reservation? The purported withdrawal of the declaration under Article 36, para. 2? On the merits, the estoppel point may well be a good one. The order discontinuing the earlier case recorded a Nicaraguan declaration to the effect that Nicaragua ‘had decided to renounce all further right of action based on the case and did not wish to go on with the proceedings’ (emphasis mine). The italicized statement is clearly not necessary for the purposes of discontinuing a case and seems to relate to the right of action on the merits. The U.S. might rely on that – if the matter ever… Read more »
Nicaragua will have presidential elections in November 2011. Daniel Ortega is simply trying to feed Nicaraguan’s antiamericanism before the elections… That is all. In fact, Ortega is saying that the U.S. owes Nicaragua US$17,000 billion (which is not true because the Court never reached a decision on damages) and that with that money all the country’s economic problems are going to be solved.
From the legal point of view, it is important to remember that Nicaragua withdrew from the compensation proceedings because it reached a settlement/cooperation agreement with the U.S.
Gross’ comment with Thienel’s on jurisdiction reminds me of the debate between civilists and common law types in international commercial arbitration about the arbitrator’s authority to decide on his/her own jurisdiction. Common lawyers from England and the US tended to think it was for courts to determine the arbitrator’s jurisdiction (except if parties stipulate blah blah won’t bore everyone with all that stuff). Civil lawyers saw it as obvious that arbitrators had to have the power to decide on their own jurisdiction.
I see the ICJ in the case asserting the power to decide on their own jurisdiction deriving it from the instrument and the statute. Does not surprise me.
My question is that while waiver would likely be recognized would estoppel be seen as a rule of international law? That might be an interesting point along with the effect of the settlement/cooperation agreement.
Thanks again for bringing forward the distinction civilists in France use to emphasize between renouncing to the action and renouncing to the claim. I loved the way it sounds in French.
Best,
Ben
Best,
Ben