Author Topic: When the US ignored an International Courts of Justice (ICJ) ruling against it  (Read 1183 times)

adroth

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Administrator's note: See related discussion here: https://www.facebook.com/groups/rpdefense/permalink/3042081239211036/

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Of Course China, Like All Great Powers, Will Ignore an International Legal Verdict
In ignoring an upcoming verdict on the South China Sea, Beijing is following well-established precedent by great powers.

By Graham Allison
July 11, 2016

https://thediplomat.com/2016/07/of-course-china-like-all-great-powers-will-ignore-an-international-legal-verdict/

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The United States has never been sued under the Law of the Sea because – unlike China – Washington has not ratified the international agreement and is thus not bound by its rules. Expect Chinese commentators to emphasize this point in the mutual recriminations that will follow the Court’s announcement.

The closest analogue to the Philippines case involving the United States arose in the 1980s when Nicaragua sued Washington for mining its harbors. Like China, the United States argued that the International Court of Justice did not have the authority to hear Nicaragua’s case. When the court rejected that claim, the United States not only refused to participate in subsequent proceedings, but also denied the Court’s jurisdiction on any future case involving the United States, unless Washington explicitly made an exception and asked the Court to hear a case. If China followed that precedent, it could withdraw from the Law of the Sea Treaty altogether – joining the United States as one of the world’s only nations not party to the agreement.

In the Nicaragua case, when the Court found in favor of Nicaragua and ordered the United States to pay reparations, the U.S. refused, and vetoed six UN Security Council resolutions ordering it to comply with the court’s ruling. U.S. Ambassador to the UN Jeane Kirkpatrick aptly summed up Washington’s view of the matter when she dismissed the court as a “semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don’t.”

Observing what permanent members of the Security Council do, as opposed to what they say, it is hard to disagree with realist’s claim that the PCA and its siblings in The Hague – the International Courts of Justice and the International Criminal Court – are only for small powers. Great powers do not recognize the jurisdiction of these courts – except in particular cases where they believe it is in their interest to do so. Thucydides’ summary of the Melian mantra – “the strong do as they will; the weak suffer as they must” – may exaggerate. But this week, when the Court finds against China, expect Beijing to do as great powers have traditionally done.

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« Last Edit: June 27, 2020, 03:50:32 PM by adroth »

adroth

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Nicaragua v. United States: The Power of the International Court of Justice to Indicate Interim Measures in Political Disputes
Noreen M. Tama

https://elibrary.law.psu.edu/cgi/viewcontent.cgi?article=1036&context=psilr

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Nicaragua v. United States - Procedural Development

On April 9, 1984 the Republic of Nicaragua filed an Application with the International Court of Justice to institute legal proceedings against the United States of America. According to the pleadings, Nicaragua sought damages allegedly caused by United States covert military activities in the Central American region as well as permanent injunctive relief.

In requesting adjudication of the dispute, Nicaragua invoked Declarations of Acceptance to the jurisdiction of the Court which
both the United States and Nicaragua had deposited with the Secretary General of the United Nations" as per Article 36 of the Statute
of the International Court of Justice.3 7 As factual basis for its suit, Nicaragua claimed to have suffered grievous injury as a direct result
of illegal military activities that had been carried out since 1981 under American direction and supervision."

In order to invoke subject matter jurisdiction of the Court, Nicaragua alleged United States violations of: customary international law,' 0 Article 2(4) of the United Nations Charter,"' Articles 18 and-20 of the Charter of the Organization of American States, and various other treaties and agreements between the parties.' At the same time that Nicaragua filed its application to initiate proceedings, it also requested the indication of interim measures of protection.

Immediately upon filing of the Nicaraguan Application with the ICJ, question as to the jurisdiction of the International Court arose.
As of April 6, 1984, a mere three days before Nicaragua's Application was filed, the United States had already deposited a controversial declaration with the Secretary General of the United Nations purporting to modify the conditions under which the United States would accept the compulsory jurisdiction of the International Court. In the declaration the United States asserted that it would no longer accept the jurisdiction of the Court regarding "disputes with any Central American State or arising out of or related to events in Central America, any of which disputes shall be settled in such manner as the parties to them agree." The United States claimed its purpose in submitting the modification was "to foster the continuing regional dispute settlement process which seeks a negotiated solution to the interrelated political, economic and security problems of Central American.'

Although the original United States acceptance of World Court jurisdiction provided for a six-month notice period prior to termination,
" the United States justified its non-compliance with this notice period on several grounds which it claimed were unique to this case.
First, the United States invoked the international law principle of "reprocity," i.e., because the Nicaraguan Declaration of Acceptance
is immediately terminable, the United States is also entitled to introduce a temporal qualification into its declaration with immediate
effect.

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« Last Edit: June 23, 2020, 08:25:25 AM by adroth »

adroth

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The closest analogue to the Philippines case involving the United States arose in the 1980s when Nicaragua sued Washington for mining its harbors. Like China, the United States argued that the International Court of Justice did not have the authority to hear Nicaragua’s case. When the court rejected that claim, the United States not only refused to participate in subsequent proceedings, but also denied the Court’s jurisdiction on any future case involving the United States, unless Washington explicitly made an exception and asked the Court to hear a case. If China followed that precedent, it could withdraw from the Law of the Sea Treaty altogether – joining the United States as one of the world’s only nations not party to the agreement.

CIA Helped To Mine Ports In Nicaragua
By Fred Hiatt ,
Joanne Omang ,
Washington Post Staff Writers; Staff writers Michael Getler and
Don Oberdorfer contributed to this report.April 7, 1984

https://www.washingtonpost.com/archive/politics/1984/04/07/cia-helped-to-mine-ports-in-nicaragua/762f775f-6733-4dd4-b692-8f03c8a0aef8/

The CIA has played a direct role in the laying of underwater mines in Nicaraguan ports that have damaged at least eight ships from various nations during the past two months, according to congressional and administration sources.

A combination of U.S.-financed guerrillas fighting the leftist Sandinista government of Nicaragua and more highly trained Latin American employes of the CIA operating from CIA-owned speedboats have laid the crude bottom-lying mines in Corinto and other ports, according to the sources.

They said that the mining operation is part of a CIA effort that began late last year to redirect the "contras," as the anti-Sandinista guerrillas are known, away from futile attempts to seize territory and toward hit-and-run economic sabotage.

The handmade acoustic mines, which explode noisily but are unlikely to sink a ship, reportedly are intended to harass and discourage shipping rather than blockade the harbors. Officials said that they are having the intended effect, with Nicaraguan coffee and other exports beginning to pile up on piers and imported oil running short.

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adroth

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After the arbitration: Does non-compliance matter?
BY LAN NGUYEN AND TRUONG MINH VU | JULY 22, 2016

https://amti.csis.org/arbitration-non-compliance-matter/

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Nicaragua v United States
In the Nicaragua v United States case, after the ICJ found that it had jurisdiction to entertain Nicaragua’s claims, the United States decided not to participate in the merits phase of the case. The United States further showed its disapproval by terminating the 1955 Treaty on Friendship, Commerce, and Navigation between Nicaragua and the United States and withdrawing its declaration under Article 36(2) of the UN Charter, which together provided the basis for the court’s jurisdiction in the case. In its 1986 judgment on the merits, the ICJ held that the United States had violated both treaty law and customary international law by supporting the Contra rebels, and ordered the United States to refrain from all such acts and make reparation to Nicaragua.

Instead the United States ignored Nicaragua’s request for negotiations on compensation and refused to stop its support for the Contras. Faced with the United States’ outright defiance of the decision, Nicaragua tried to enforce the judgment through various platforms. Article 94(2) of the UN Charter says, “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.” Nicaragua accordingly turned to the UN Security Council, but several draft resolutions were never adopted due to the United States’ veto as a permanent member of the council.

Nicaragua then turned to the UN General Assembly, where its endeavors proved to be more successful. The General Assembly adopted four resolutions calling for “full and immediate compliance with the Judgment of the International Court of Justice.” The United States, however, continued to say that the ICJ did not have jurisdiction in the case. Even as it began to bring claims before the ICJ again for damages, Nicaragua elected a new president who was backed by the United States and subsequently discontinued the proceedings in 1992.

The Nicaragua v United States case was perhaps the most prominent example of a state that did not appear before an international court and then openly defied its final decisions. In some ways, Nicaragua did not succeed in securing full U.S. compliance with the judgment. However, the litigation was not at all useless.

Its strategy to resort to the Security Council and General Assembly had the effect of securing publicity for the issue, which helped convince the U.S. Congress to cut-off aid to the Contras in 1988. The United States subsequently lifted its trade embargo against Nicaragua in 1990 and provided the new government of Violeta Chamorro with a significant aid package. So, U.S. non-compliance notwithstanding, Nicaragua’s initiation of the case and its subsequent strategy eventually helped secure its intended outcome.

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The Nicaragua v United States and Arctic Sunrise cases show that non-appearance does not necessarily lead to permanent non-compliance, whatever the rhetoric used. It may be tempting, therefore, to draw an analogy between these and the Philippines v China case by envisioning a scenario in which Beijing, despite its rejection of the arbitration, will come to terms and comply, at least in large part, with the arbitral award. Nevertheless, one should be cautious about jumping to such conclusions. The main reason being that the subject-matter of the cases differs fundamentally.

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« Last Edit: June 29, 2020, 01:31:55 AM by adroth »