NICARAGUA
VS
. US - Calinisan c/o SC notes Tanquilit
FACTS:
In 1946, the US made a declaration containing
the following reservation: “this declaration shall
remain in force for a period of 5 years and
thereafter until the expiration of 6 months after
notice may be given to terminate
thisdeclaration. In 1984, the US deposited with
the UN Sec Gen a notification referring to the
1946 declaration, stating: “theaforesaid
declaration shall not apply to disputes with any
Central American State or arising out of or
related toevents in Central America, any of
which disputes shall be settled in such manner
as the parties to them may agree.” Nicaragua
filed a claim against the US for damages in
connection with military and paramilitary
activities allegedlysupported by the US in and
against Nicaragua. The US argues that pursuant
to the 1984 reservation that it made, theICJ has
no jurisdiction over the controversy, since it
involves a dispute with a Central American
State. Nicaraguaargues that the ICJ has
jurisdiction under the 1946 declaration, which
was not terminated by the subsequent
1984declaration, since the US never gave the 6-
months notice of termination, as required by
the reservation that it hadmade in
1946.According to Nicaragua, the US conceived,
created, and organized a mercenary army, the
contra force, in Nicaragua.The court found that
contra force was not created by the US, but that
a number of the operations were decided and
planned, if not actually by the US advisers, then
at least in close collaboration with them, and on
the basis of theintelligence and logistic support
which the US was able to offer. The US gave
assistance to the contra force in theform of
logistic support, the supply of information on
the location and movements of the Sandinista
troops, the useof sophisticated methods of
communication, etc. However, the evidence
does not warrant a finding that the US
gavedirect combat support.
ISSUE:
W/N the declaration is still binding on the US.
HELD:
The ICJ has jurisdiction. The 1946 declaration is
still binding on the US.The US cannot derogate
from the time-limit proviso included in its 1946
declaration. The notion of reciprocity
isconcerned with the scope and substance of
the commitments entered into, including
reservations, and not withformal conditions of
their creation, duration, or extinction.
Reciprocity cannot be invoked in order to
excusedeparture from the terms of a State’s
own declaration. Nicaragua can invoke the six
months’ notice against the US,not on the basis
of reciprocity, but because it is an undertaking
which is an integral part of the instrument
thatcontains it. The 1984 notification cannot
override the obligation of the US to submit to
the jurisdiction of the Courtvis-à-vis Nicaragua.
ISSUE:
Whether the contras can be considered as
organs of the US Government, or as acting on
its behalf.
HELD:
No, the contras are not agents of the US
government.The evidence is insufficient to
demonstrate the total dependence of the
contras on US aid. A partial dependencymay be
inferred from the fact that the leaders were
selected by the US, and from other factors such
as theorganization, training and equipping of
the force, planning of operations, the choosing
of targets, and the operationalsupport
provided. There is, however, no clear evidence
that the US actually exercised such a degree of
control as to justify treating the contras as
acting on its behalf. Therefore, the contras,
remain responsible for their own acts, in
particular for alleged violations by them of
humanitarian law.For the US to be legally
responsible, it would have to be proved that the
State had effective control of the operationsin
the course of which the alleged violations were
committed.
Summaries of the Decisions
Armed Activities on the Territory of the Congo

(Democratic Republic of the Congo v. Uganda)
Provisional Measures
Order of 1 July 2000
On 23 June 1999, the Democratic Republic of
the Congo instituted proceedings against
Uganda in respect of a dispute concerning what
the applicant referred to as acts of armed
aggression perpetrated by Uganda on the
territory of the Congo. In its application, the
Congo based the jurisdiction of the Court on the
declarations made by the two States under
Article 36, paragraph 2, of the Statute.
On 19 June 2000 the Congo then submitted to
the Court a request for the indication of
provisional measures by which it inter alia
asked the Court to request Uganda to order its
army to withdraw immediately and completely
from the disputed area; to order its army to
cease all fighting or military activity on the
territory of the Congo and to withdraw
immediately and completely from that territory;
and finally to also desist from providing any
support to any State, group, organization,
movement or individual engaged or preparing
to engage in military activities on the territory
of the Congo.
In its order, the Court noted that the two
Parties had each made a declaration recognizing
the jurisdiction of the Court in accordance with
Article 36, paragraph 2, of the Statute without
any reservation which therefore constituted a
prima facie basis upon which its jurisdiction in
the case could be founded.
Besides and notwithstanding the fact that the
very same situation had already been dealt with
by the Security Council in its resolution 1304
(2000), adopted under Chapter VII of the United
Nations Charter on 16 June 2000, the Court is
not precluded from acting in accordance with
its Statute and with the Rules of Court, since no
provision similar to Art. 12 of the United
Nations Charter is to be found anywhere in the
Charter with respect to the Security Council and
the Court.
The Court further stated that it is not precluded
from indicating provisional measures in a case
merely because a State which has
simultaneously brought a number of similar
cases before the Court seeks such measures in
only one of them.
Given the situation on the ground, the Court
then found that there existed a serious risk of
events occurring which might aggravate or
extend the dispute or make it more difficult to
resolve. Accordingly it requested both Parties to
prevent and refrain from any action, and in
particular any armed action, which might
prejudice the rights of the other Party in respect
of whatever judgment the Court may render in
the case, or which might aggravate or extend
the dispute before the Court or make it more
difficult to resolve; that both Parties must take
all measures necessary to comply with all of
their obligations under international law, in
particular those under the United Nations
Charter and the Charter of the Organization of
African Unity, and with United Nations Security
Council resolution 1304 (2000) of 16 June 2000;
and that they must take all measures necessary
to ensure full respect within the zone of conflict
for fundamental human rights and for the
applicable provisions of humanitarian law.
Judges Oda and Koroma appended declarations
to the order.
Banco Nacional de Cuba v. Sabbatino
376 U.S. 398 (1964)
A US sugar distributor, Farr Whitlock and Co.
contracted with a US-owned sugar producer in
Cuba, Compania Azucarera Vertientes-
Camaguay de Cuba (CAV), to import sugar into
the US.
As part of a trade dispute, the government of
Cuba nationalized their sugar industry and
seized the assets of several US-owned sugar
producers, including CAV.
CAV still made the delivery, but Farr didn't send
the payment to the Cuban government, instead
they paid CAV's legal representative in the US,
Sabbatino.
Banco National de Cuba (BNC) sued Sabbatino
in US Court to get them to hand over the money
for the sugar.
BNC argued that the Cuban nationalization was
an official Act of State and should be honored
by the US.
The Act of State Doctrine says that the propriety
of decisions of other countries relating to their
internal affairs would not be questioned in US
courts.
Sabbatino argued that the Act of State Doctrine
was inappropriate because:
The act in question was a violation of
international law;
The doctrine should not be applied unless the
Executive branch asks the court to do so;
Cuba had brought the suit as a plaintiff and had
given up its sovereign immunity.
The Trial Court found for Sabbatino. BNC
appealed.
The Appellate Court affirmed. BNC appealed.
The US Supreme Court reversed.
The US Supreme Court found that the policy of
US Federal courts would be to honor the Act of
State Doctrine.
The Court found that the Cuban seizure did not
violate international law, because there was no
clear international opinion that a seizure of land
or property in a country by the government of
that country was illegal.
The Court found that there was no need for the
Executive branch to ask the courts to apply the
Act of State Doctrine.
The Court found that it should be assumed to
apply because if even a single court made a
mistake and failed to apply it, it could mess up
US relations with other countries.
The Court found that the Act of State Doctrine
still applied, even thought the State was a
plaintiff.
Similar to the idea of sovereign immunity where
States can sue, but cannot be sued.
In response to this decision, Congress passed
the Second Hickenlooper Amendment (aka the
Sabbatino Amendment) that revoked the
presumption in favor of the validity of the Act of
State Doctrine.
The Act of State DoctrineCase: Underhill v.
Hernandez (1897)168 U.S. 250Facts: In an 1892
revolution, General Hernandez deposed the
existing Venezuelangovernment and took
control of Ciudad Bolivar, where Pl Underhill, an
Americancitizen, lived and ran a waterworks
system for the city. Underhill applied
toHernandez, requesting a passport to leave the
city. Hernandez initially refused,but ultimately
granted it. When Underhill finally got back to
the U.S. he broughtan action to recover
damages caused by his detention in Venezuela,
for allegedconfinement to his own house, and
for certain alleged assaults and affronts
bysoldiers of Hernandez's
army.Holding/Reasoning: Court determined
that Hernandez had acted in his officialcapacity
as a military commander so his actions were
those of the Venezuelangovernment. The Court
therefore refused to hear the claim against
based on the Actof State Doctrine. The Court
reasoned, "Every sovereign state is bound to
respectthe independence of every other
sovereign state, and the courts of one
countrywill not sit in judgment on the acts of
the government of another, done within itsown
territory." Also, it didn’t matter that it was a
revolution, and that thecommander may not
have had recognition at the time as the leader
from outside theterritory. What matters is that
he succeeded and is now recognized as
such.Notes• Court will not let case proceed in
U.S. why?Use the int'l reasoning - we should
judge another country's actions if
○
they have justification for it within their own
laws.Govt actor, and it occurred in Venezuela.
Therefore we should apply their
○
law. Why apply U.S. law?• U.S. can make a
jurisdictional claim b/c victim is American, but
b/c of act ofstate doctrine, we should leave it
up to Venezuela to deal with