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Nicaragua Vs US Digest Mau
Nicaragua Vs US Digest Mau
Ruling of ICJ
I
II
Yes. The court finds that it has jurisdiction to entertain the Application of
Nicaragua.
On the second and third ground of admissibility, the court is of the opinion that
the fact that a matter is before the Security Council should not prevent it from
being dealt with by the Court and that both proceedings could be pursued pari
passu. The Council has functions of a political nature assigned to it, whereas
the Court exercises purely judicial functions. Both organs therefore perform
with separate but complementary functions with respect to the same events. In
the pesent case, the complaint of Nicaragua is not about an ongoing war of
armed conflict between Nicaragua and US but about a situation demanding the
peaceful settlement of disputes, a matter which is covered by Chapter 7 of the
Charter. Hence, it is properly brought before the principal judicial organ of the
UN for peaceful settlement. This is not an exclusive case for the Security
Council.
On the fourth ground of inadmissibility, The Court is bound to observe that any
judgment on the merits in the present case will be limited to upholding such
submissions of the Parties as have been supported by sufficient proof of
relevant facts, and are regarded by the Court as sound in law. A situation of
armed conflict is not the only one in which evidence of fact may be difficult to
corne by, and the Court has in the past recognized and made allowance for this
(Corfu Channel, I. C.J. Reports 1949, p. 18 ; United States Diplomatic and
Consular Staffin Tehran, I. C. J. Reports 1980, p. 10, para. 13). Ultimately,
however, it is the litigant seeking to establish a fact who bears the burden of
proving it ; and in cases where evidence may not be forthcoming, a submission
may in the judgment be rejected as unproved, but is not to be ruled out as
inadmissible in line on the basis of an anticipated lack of proof. As to the
possibility of implementation of the judgment, the Court will have to assess this
question also on the basis of each specific submission, and in the light of the
facts as then established ; it cannot at this stage rule out apriori any judicial
contribution to the settlement of the dispute by declaring the Application
inadmissible. It should be observed however that the Court "neither can nor
should contemplate the contingency of the judgment not being complied with"
(Factory ut Chorzow, P. C. I. J., Series A, No. 17, p. 63).
On the fifth and final contention, the Court held that On this latter point, the
Court would recall that in the United States Diplomatie and Consular Staff in
Tehran case it stated :
"The Court, at the same time, pointed out that no provision of the Statute or
Rules contemplates that the Court should decline to take cognizance of one
aspect of a dispute merely because that dispute has other aspects, however
important." (I.C.J. Reports 1980, p. 19, para. 36.)
And, a little later, added :
"Yet never has the view been put forward before that, because a legal dispute
submitted to the Court is only one aspect of a political dispute, the Court should
decline to resolve for the parties the legal questions at issue between them. Nor
can any basis for such a view of the Court's functions or jurisdiction be found in
the Charter or the Statute of the Court ; if the Court were, contrary to its settled
jurisprudence, to adopt such a view, it would impose a far-reaching and
unwarranted restriction uDon the role of the Court in the peaceful
solution of international disputes." (I.C.J. Reports 1980, p. 50, para. 37.)
In the light of the foregoing, the Court is unable to accept either that there is any
requirement of prior exhaustion of regional negotiating processes as a
precondition to seising the Court ; or that the existence of the Contadora process
constitutes in this case an obstacle to the examination by the Court of the
Nicaraguan Application and judicial determination in due course of the
submissions of the Parties in the case. The Court is therefore unable to declare
the Application inadmissible, as requested by the United States, on any of the
grounds it has advanced as requiring such a finding.
Personal Opinion
“Article 36
xxxx
2. The states parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in relation to
any other state accepting the same obligation, the jurisdiction of the Court in all
legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
In the case of Nicaragua, it never deposited its Ratification of the Protocol with the
Secretary General. This action results to Nicaragua not being part of the protocol
that results to ICJ not having jurisdiction.
The Statute provides that there should be a clear manifestation of the country's
intention to accept.
Nicaragua if ever could have suddenly invoked its contrary position on the
protocol leaving US with no option to withdraw. This implied acceptance of
Nicaragua’s position is dangerous.
Likewise, since Nicaragua did not follow the prerequisite steps as provided in the
treaty, it has no position to take advantage of its jurisdiction.