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Sunday, February 12th, 2006

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2:00a
Appraisals of the ICJ's Decision. Nicaragua vs United States
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81 A.J.I.L. 116

Appraisals of the ICJ's Decision. Nicaragua vs United State (Merits)

Franck, Thomas M. (1987). Appraisals of the ICJ's Decision. Nicaragua vs United State (Merits). American Journal of International Law 81 (1): 116-121. "Some Observations on the ICJ's Procedural and Substantive Innovations"


[*116] SOME OBSERVATIONS ON THE ICJ'S PROCEDURAL AND SUBSTANTIVE INNOVATIONS

The decision of the International Court of Justice in the case between Nicaragua and the United States brims with important procedural and substantive implications for the future of law and adjudication in disputes between states.

This was a case that, essentially, turned on the facts, and the Court made important decisions bearing on the procedures of fact determination. Some of these seem inadequately reasoned. In only one sentence the Court explained its refusal to invoke powers under Article 51 of the ICJ Statute that allow it to form an independent investigative body to explore crucial, contested data. The judges justified that important choice with no more explanation than that it would not have been practical or desirable, particularly since such a body, if it was properly to perform its task, might have found it necessary to go not only to the applicant State, but also to several other neighbouring countries, and even to the respondent State, which had refused to appear before the Court. 1
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2:58a
Excerpts of 11 Ariz. J. Int'l & Comp. Law 45, SPRING, 1994 War, Law & Liberal Thought: The Use Of Force In The Reagan Years David P. Fidler In regards to Nicaragua vs. US.

...state practice changes rules of international law. The liberal realist position is that both the conventional and customary strands of the prohibition on the use of force have been altered by state practice. 174 The liberal progressive tradition, however, tries to maintain exactly the opposite position, as evidenced by the ICJ's legal interpretations in Nicaragua v. U.S. In relation to the conventional strand of the prohibition on the use of force, article 2(4) of the U.N. Charter, the liberal realist position is that the failure of the U.N. Charter collective security system diminishes the significance of article 2(4). Ambassador Kirkpatrick argued that article 2(4):
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3:02a
Except from: 87 Geo. L.J. 1023, April, 1999 Combating Terrorism and Weapons of Mass Destruction: Reviving the Doctrine of a State of Necessity John-Alex Romano on ''Nicaragua v. U.S.''

The ICJ's narrow construction of "armed attack" in Nicaragua v. U.S. has spawned much criticism and praise. 100 Whatever the merits of these different positions, however, the Court's reluctance to extend the definition of armed attack to instances of a state's supply of weapons and logistical support to rebels and its assumption that only states can perpetrate armed attacks bear directly on the measures that a state may take in responding to terrorist threats. Although the use of force at issue in Nicaragua v. U.S. occurred in the context of interstate hostilities, the ICJ's construction of Article 51 applies equally to counterterrorist measures. Notably, arguments rejecting the applicability of the opinion to the context of terrorism turn more on its allegedly unsound legal basis, rather than a distinction between interstate hostilities and terrorism. 101 Further, given the paucity of the Court's opinions on the use of force, its [*1038] construction of Article 51 must be accorded broad interpretation absent any indication that its opinion has a more narrow effect. Finally, although involving interstate hostilities, Nicaragua v. U.S. is still centered on the legality of responding to threats and attacks by nonstate actors; that terrorist groups have arguably replaced such armed rebel groups as nonstate actors posing the greatest threat to international peace and security 102 underscores the applicability of the Court's opinion to counterterrorist measures. Thus, the larger context of interstate hostilities in which the use of force considered by the Nicaragua Court occurred, without more, provides an insufficient basis for denying the opinion legal effect in the context of terrorism. 103
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3:13a
Trashing Customary International Law
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"Appraisals of the ICJ's Decision. Nicaragua vs United State (Merits)"

81 The American Society of International Law 101 January, 1987

ANTHONY D'AMATO *

* Professor of Law, Northwestern University; Board of Editors.


[*101] TRASHING CUSTOMARY INTERNATIONAL LAW

Central to the World Court's mission is the determination of international custom "as evidence of a general practice accepted as law." 1 Students of the Court's jurisprudence have long been aware that the Court has been better at applying customary law than defining it. Yet until Nicaragua v. United States, 2 little harm was done. For in the sharply contested cases prior to Nicaragua, the Court managed to elicit commonalities in argumentative structure that gravitated its rulings toward the customary norms implicit in state practice. The Court's lack of theoretical explicitness simply meant that a career opportunity arose for some observers like me to attempt to supply the missing theory of custom. 3

But the Nicaragua case was not forged out of the heat of adversarial confrontation. Instead, it reveals the judges of the World Court deciding the [*102] content of customary international law on a tabula rasa. Sadly, the Judgment reveals that the judges have little idea about what they are doing.
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3:32a
Legal Issues in The Nicaragua Opinion
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Morrison, Fred L. (January, 1987). Legal Issues in The Nicaragua Opinion. American Journal of International Law 81: 160-166. "Appraisals of the ICJ's Decision. Nicaragua vs United State (Merits)"

The opinion of the International Court of Justice in the Nicaragua 1 case will be of interest primarily because of its general pronouncements on questions of international law. Its impact on the immediate controversy appears slight; the United States Government has strongly indicated its view that the Court lacked jurisdiction over the controversy, 2 has vetoed subsequent proposed Security Council resolutions on the subject, 3 and is appropriating additional funds for the contested activities, without apparent reference to the Court's decision. This Comment is limited to the general theoretical and legal issues and will not treat the underlying factual issues, the Court's disposition of the immediate case or the implications of the opinion for the evolution of the dispute.
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4:53a
Naom Chomsky: "unlawful use of force"--which is the judicial way of saying "international terrorism"

...U.S. attack against Nicaragua in the 1980s. I recall that was called the war against terrorism, but, in fact, it was a massive terrorist war. The U.S. set off a mercenary army to attack Nicaragua from foreign bases, gave it massive supply, had total control of the air, and ordered the army to attack undefended civilian targets that were called “soft targets.” And that was a serious atrocity. It ended up killing tens of thousands of people and practically destroying the country. That’s even worse than September 11. How did Nicaragua respond? They went to the International Court of Justice—World Court-- presented a case, which in this case wasn’t very difficult because it was obvious who the perpetrators were and what was happening. The World Court considered their case, accepted it, and presented a long judgment, several hundred pages of careful legal and factual analysis that condemned the United States for what it called “unlawful use of force”--which is the judicial way of saying “international terrorism”--ordered the United States to terminate the crime and to pay substantial reparations, many billions of dollars, to the victim. The United States dismissed the court judgment with complete contempt. Nicaragua then went to the Security Council. Security Council debated a resolution which called upon all states to observe international law—didn’t mention anyone but it was understood it meant the United States. United States vetoed the resolution. Nicaragua then went to the General Assembly which passed similar resolutions several years in a row. Only the United States and one or two client states voted against. At that point there was nothing more that Nicaragua could do. But if the United State would have pursued a legal course nobody would stop it. Everyone would applaud.

Terrorism:
General Definition, The American Heritage Dictionary of the English Language, Fourth Edition:

The unlawful use or threatened use of force or violence by a person or an organized group against people or property with the intention of intimidating or coercing societies or governments, often for ideological or political reasons.

General defintion, WordNet, Princeton University:

The calculated use of violence (or threat of violence) against civilians in order to attain goals that are political or religious or ideological in nature; this is done through intimindation or coercion or instilling fear

Legal Defintion, Merriam-Webster's Dictionary of Law, 1996 Merriam-Webster:

The unlawful use or threat of violence esp. against the state or the public as a politically motivated means of attack or coercion

Legal Defintion, Black's Law Dictionary, Eighth Edition:

The use or threat of violence to intimidate or cause panic, especially as a means of affecting political conduct.
10:30a
Mr. Cheney's Imperial Presidency
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Published on Friday, December 23, 2005 by the New York Times
Editorial


George W. Bush has quipped several times during his political career that it would be so much easier to govern in a dictatorship. Apparently he never told his vice president that this was a joke.

Virtually from the time he chose himself to be Mr. Bush's running mate in 2000, Dick Cheney has spearheaded an extraordinary expansion of the powers of the presidency - from writing energy policy behind closed doors with oil executives to abrogating longstanding treaties and using the 9/11 attacks as a pretext to invade Iraq, scrap the Geneva Conventions and spy on American citizens.
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10:34a
King George
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Published on Tuesday, January 31, 2006 by The Progressive
Editorial


“Some legal questions are hard. This one is not. The President’s authorizing of NSA to spy on Americans is blatantly unlawful.”—Geoffrey Stone, University of Chicago law professor

There comes a time when the nakedness of the emperor can no longer be denied. Such a time is now.

George Bush’s policy of eavesdropping on U.S. citizens without a warrant proves he has placed himself above the law. Add this to the long list of other impeachable offenses—lying the country into war, torturing prisoners, exporting detainees for torture, paying columnists to propagandize the American public—that George W. Bush has committed, and put it at the top.
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10:30p
The World Court's Achievement
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Falk, Richard(1987). The World Court's Achievement. American Journal of International Law 81 (1): 106. "Appraisals of the ICJ's Decision. Nicaragua vs United States (Merits)" 81 A.J.I.L. 106


Even if conceived of only as a legal text, the array of judicial opinions contained in Nicaragua v. United States constitutes an extraordinary document. It represents a fascinating attempt through judicial inquiry to assess convincingly the relevance of law to an ongoing armed conflict. As such, despite procedural objection to entry upon this terrain by the three dissenting judges, it leads the Court to pronounce specifically upon the core issue of when force can permissibly be used in international relations, as well as the contours of a claimed right of collective self-defense in the setting of interventions and civil strife.
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