By Otto Spijkers
In 1986, the International Court of Justice issued its judgment on the merits in a dispute between Nicaragua and the United States of America. It was one of the most notorious and influential judgments the Court has ever issued. Twenty-five years later, on a very sunny and hot day in The Hague, members of the legal teams of both Nicaragua and the United States faced each other once again in the Peace Palace, to celebrate the 25th anniversary of this landmark decision, and to assess its lasting impact on international law.
The conference was co-sponsored by the Grotius Centre of the Leiden Law School, the Centre on International Courts and Tribunals at University College London, the Netherlands Society of International Law, and the Law Firm of Foley Hoag LLP.
Professor Nico Schrijver, Chair of Public International Law at Leiden University, welcomed all participants. He then introduced the first panel, whose task was to discuss the impact of the Nicaragua Case on general international law. The focus of this panel was on jurisdictional issues, as well as questions of state responsibility, especially attribution and circumstances precluding wrongfulness. Professor James Crawford (University of Cambridge) criticized the Court’s decision of 1984 in which it declared it had jurisdiction to hear the case. Judge Bruno Simma of the International Court of Justice then spoke about the way the Court applied the concept of attribution in its judgment on the merits, and how its interpretation of the concept had had a lasting impact, especially on the work of the International Law Commission. He compared the ICJ’s ‘effective control’ approach with the ‘overall control’ approach of the ICTY in the Tadic case, criticizing the latter (see also this article by Cassese). At the end of his talk, Simma hinted that there might be a need to reconsider the ICJ’s approach in certain special circumstances, such as the situation in Darfur, Sudan. Prof. Pierre-Marie Dupuy (Graduate Institute of International Development Studies, Geneva) devoted his reflections to self-defense as a circumstance precluding wrongfulness. And finally, Prof. Phillipe Sands (University College London) spoke about formalism and anti-formalism in the ICJ’s approach, and about the impact of the Court’s decision on life outside the community of international lawyers.
The second panel addressed issues relating to the use of force, intervention and matters of evidence. Judge Abdulqawi Ahmed Yusef of the International Court of Justice compared the definition of ‘armed attack’ as used in the Nicaragua-case with the use of that term by the Eritrea-Ethiopia Boundary Commission. Professor John Norton Moore (University of Virginia School of Law) strongly criticized the Court’s judgment, and then Mr. Paul Reichler (Partner, Foley Hoag LLP) defended it. What was fascinating about these talks was that both had been involved as counsel in the case – Moore for the USA, Reichler for Nicaragua – and their talks sounded much like their pleadings might have sounded twenty-five years ago. The reflections of Marcelo Kohen (Graduate Institute of International Development Studies, Geneva) were read by Dr. Larissa van den Herik (Leiden University), because Kohen was unable to come to The Hague. The session was moderated by Prof. Brigitte Stern (University of Paris I, Panthéon-Sorbonne).
After an impressive luncheon, which was enjoyed in the foyer of the Academy Building but also in the beautiful gardens of the Peace Palace, the third panel discussed the impact of the Nicaragua Case on the Court and its role in the international legal order. This issue was discussed by Prof. Alain Pellet (University Paris Ouest, Nanterre-La Défense), Professor Alan Boyle (University of Edinburgh), Professor Lori Damrosch (Columbia Law School), and Professor Joe Verhoeven (Université Paris II). The session was moderated by Prof. Payam Akhavan (McGill University).
The final session had a different character. The traditional set-up – a table where the speakers awaited their turn to go to the rostrum and deliver their speech – was replaced by two comfortable leather couches, giving the impression that we were witnessing an Oprah Winfrey episode. On the couch sat Ambassador Carlos Argüello Gómez, currently Ambassador from the Republic of Nicaragua to the Netherlands but Agent of Nicaragua before the ICJ in the 1980’s; Professor Alain Pellet and Mr. Paul Reichler, both counsel for Nicaragua; Professor John Norton Moore, who was counsel for the U.S.; and Prof. Michael Glennon (Fletcher School, Tufts University) who was then called by Nicaragua to serve as witness on human rights issues. All these gentlemen were interviewed by Professor Philippe Sands. He asked them to reflect on their personal experiences as participants in the case.
Many anecdotes were shared with the audience. For example, when asked how he became involved as witness, Glennon described how he was washing his dog one morning when he received a phone call. Reichler asked him if he wanted to be witness before the World Court, and Glennon said: ‘yes, sure.’
The main theme of the final debate was the discovery of the facts, the ICJ’s efforts to figure out what really happened. Moore criticized the Court for not engaging in serious fact-finding, and suggested that the Court was perhaps fooled by one of the parties. To stress the importance of facts and its correct interpretation, he told the following anecdote: a woman with a rabbit lived next-door to a man with a big dog. One day, the dog came home with a dead rabbit between its jaws. The man suspected that his dog killed the rabbit, but he did not want to confess it to his neighbor. So he cleaned the rabbit, and put it back in the neighbor’s yard. When the neighbor came home, the man heard a loud scream. He went to her and asked what the matter was. The woman said: ‘my rabbit had died a few days ago and I buried it, but now it is back in my yard!’ In response, the many representatives of Nicaragua on the couch pointed out that the US had refused to come to the Court to present its side of the story, and that this made it difficult for the Court to uncover the truth.
Interestingly, the debate soon started to sound, once again, like oral pleadings, with the US side underrepresented in the discussion, since Moore was the sole defender of the US approach on the leather couches. The audience went home believing the case was never decided and that the two parties had continued to discuss the true nature of the US involvement in the affairs of its South-American neighbors, and would never stop doing so….
A shorter version of this post was published on the website of the Peace Palace Library.