Commentary: The Nicaraguan option wishful thinking


CHINA, like US in old case, will comply with ruling — SC Justice” was the headline of an article Rappler published on July 7, 2015. This triumphalist article was mainly based on Justice Antonio Carpio’s analysis of the 1986 Nicaragua v. United States case at the International Court of Justice (ICJ).

On October 16, 2016, in his interview with Quartz, foreign policy pundit Richard Heydarian said that if Mar Roxas were president, the Philippines could have taken the “the Nicaraguan option.” Said Heydarian: “Nicaragua went every single year to the UN in different international fora, embarrassing the US, calling it a bully, and trying to mobilize the international community to force the US to comply with it. Eventually the US complied in an indirect, partial way.”

Carpio’s analysis of what happened in Nicaragua is wrong. And Heydarian’s analysis is factually incorrect.

The way law works in the international realm isn’t the same as it operates domestically. The crucial difference: the absence of a credible institution that would enforce the decisions of international courts. Negotiations between states are inevitable. If not negotiations, hard power options such as sanctions and use of force are needed to ensure the compliance of the losing party.

Article 94 of the UN Charter allows a party to an ICJ case to ask the UN Security Council (UNSC) to enforce the decision. However, the UNSC is not obliged to enforce it. And as Constanze Schulte noted in “Compliance with Decisions of the International Court of Justice,” ICJ cases referred to the UNSC are scant because “cases of defiance regularly involved a permanent member either on the applicant or the respondent side.”

One example of these cases is the 1986 ICJ case between Nicaragua and the US: the “Case Concerning the Military and Paramilitary Activities in and Against Nicaragua.” It was about how the US violated Nicaragua’s sovereignty, intervening in its internal affairs by supporting the Contras against the Sandinistas. The ICJ ruled in favor of Nicaragua.

The US didn’t participate in the merit phase of the case; withdrew from ICJ’s compulsory jurisdiction (until now the US, including three other members of the UNSC’s permanent members—China, Russia, and France—has not recognized the compulsory jurisdiction of the ICJ); vetoed all UNSC resolutions related to it; and ignored the UN General Assembly resolution urging the US to comply.

According to the Rappler article, the ICJ asked the US to pay $370.2 million in reparations. Carpio ingeniously skirted what really happened by arguing that the US eventually “complied” by providing Nicaragua “half a billion dollars in economic aid in the first two years of the presidency of Violeta Chamorro…there was compliance in a way that saved the face of the US. The US paid and Nicaragua was happy.” As a compromise, Carpio continued, “Chamorro asked Nicaragua’s parliament to repeal a law that required the US to pay damages.”

The ICJ didn’t award Nicaragua a specific amount of reparation. It decided 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.” That subsequent procedure didn’t happen because Nicaragua withdrew the case.

The candidacy of Violeta Chamorro, Daniel Ortega’s successor as president, was actually backed by the US. According to the CQ Almanac, the authoritative guide on US congressional legislation since 1945, “in October 1989, Congress passed legislation sought by Bush…authorizing $9 million in US aid for the Nicaraguan election. The funds included $1.8 million in direct aid to the major opposition group, the loosely knit National Opposition Union…headed by Chamorro…” (“Chamorro win ensures aid to Nicaragua,” 1990). In September 1990, the New York Times reported that the Bush administration pressured Chamorro to abandon Nicaragua’s claims (“US urges Nicaragua to forgive legal claim,” September 30, 1990).

In September 1991, Nicaragua wrote the ICJ to renounce “all further right of action based on the case;” and subsequently requested the court to discontinue the proceedings. Not because the US already agreed to pay reparations but because Nicaragua and the US “reached agreements aimed at enhancing Nicaragua’s economic, commercial and technical development…”

Reparations entail a recognition of wrongdoing; in this case, US acceptance of the ICJ judgment. That didn’t happen at all. In fact, in a letter it sent to the ICJ, the US, while welcoming the decision of Nicaragua to discontinue the proceedings, reiterated its position that the ICJ “is without jurisdiction to entertain the dispute and that the Nicaraguan application of April 9, 1984, is inadmissible.”

That the aid Nicaragua received isn’t reparation is further underlined by the declared intention of Nicaraguan President Daniel Ortega to revive its claim for reparations against the US in December 2008 and in July 2011.

Thus, contrary to Carpio and Heydarian’s fantastical version of what happened, the US didn’t bow down to international pressure; Nicaragua caved in to US pressure. Nicaragua’s legal victory was hollow. The US didn’t comply with the ICJ decision at all. Actually, it violated Nicaragua’s sovereignty, again, by meddling in its internal political affairs, when it financially supported Chamorro. What the US did was pressure Nicaragua to discontinue the proceedings in exchange for aid. The US maintained its position that the ICJ had no jurisdiction over the dispute and Nicaragua’s application was inadmissible. What made Carpio and Heydarian think it would be different in the case of China and the Philippines?

(Published in The Manila Times, 25 May 2017)

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