Reopening Proceedings for Reparations and Abuse of Process at the International Court of Justice

On 28 July 2017, Nicaragua made the rather surprising announcement that it would revive its claim for US$17 billion in compensation against the United States. To recall, in its 1986 Merits Judgment in Nicaragua v. United States, the International Court of Justice declared that the United States was “under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua” arising from “breaches of obligations under customary international law” [Dispositif, para. 292(13)] and for “breaches of the Treaty of Friendship, Commerce and Navigation between the parties…on 21 January 1956” [Dispositif, para. 292 (14)]. The Court further decided that “the form and amount of reparation, failing agreement between the Parties, will be settled by the Court, and reserves for this purpose the subsequent procedure in the case”. [Dispositif, para. 292(15)]. After the Court issued an Order fixing time limits for the filing of pleadings on the matter and form of reparation, Nicaragua thereafter informed the Court in 1991 that it did not wish to continue the proceedings. One would have thought that Nicaragua’s discontinuance of the proceedings somehow ensured the finality of the Court’s Judgment on the Merits and left the matter of reparations to political negotiations between the parties. However, as Nicaragua’s recently stated position appears to suggest, there is no time limit for reviving a judicial determination of the form and amount of reparations claims, even if it does not appear that Nicaragua took any steps to pursue its compensation claim against the United States for over thirty years.  The Court’s recent practice likewise appears to lend support to the view that reparations claims can feasibly reopen ICJ proceedings at any point in time, if the Court does not itself fix a time limit to determine when parties’ negotiations on reparations have failed. In its Order of 1 July 2015, the Court in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), the Court observed that since the parties therein had been unable to reach a political settlement since its Judgment of 19 December 2005, it would reopen proceedings as requested by the Democratic Republic of Congo.

In his Declaration appended to the Court’s Order, Judge Cancado-Trindade noted that both the DRC and Uganda had regularly reported to the Court regarding “persistent difficulties in negotiations” (para. 2), but also chided the Court for not fixing time-limits on the matter of reparations:

“Looking back in time, the Court, almost a decade ago, in its aforementioned Judgment of 19 December 2005, set forth the duty of the contending Parties to make reparation…The absence in resolutory points Nos. 5 and 13 of time-limits to that effect, in my view, did not imply that negotiations (to reach an agreement on reparations) could continue indefinitely, as they have done. On the contrary, having extended for almost a decade, they have already exceeded a reasonable time, bearing in mind the situation of the victims, still waiting for justice. The acknowledgment of the great suffering of the local population in the conflicts in the Great Lakes region should have been accompanied by the determination of a reasonable time for the provision of reparations for damages inflicted upon the victims…

…The lesson to be drawn from this decade of waiting for reparations is clear to me: in a case like the present one, involving grave violations (as established by the Court) of the international law of human rights and of international humanitarian law, the Court should not have left the question of reparations, as it did in the Judgment of 19 December 2005, open to negotiations between the parties without a time-limit, without a reasonable time…” (Declaration of Judge Cancado-Trindade, paras. 3 and 4).

Only the DRC v. Uganda and the Nicaragua v. United States judgments on the merits contain near-identical language that do not bind the Court’s subsequent procedures on the question of reparation to any time limit: “the form and amount of reparation, failing agreement between the Parties, will be settled by the Court, and reserves for this purpose the subsequent procedure in the case.” However, unlike DRC v. Uganda, the material difference in Nicaragua v. United States is that Nicaragua expressly sought the discontinuance of the proceedings at the Court. As the Court’s 26 September 1991 Order of Discontinuance therein states:

“Whereas, on 15 June 1990 a letter was addressed to each of the Parties by the Registrar enquiring as to their views on the date to be fixed for the opening of the oral proceedings on the question of reparation; whereas no reply was received from the United States, and the Agent of Nicaragua, in his reply, indicated the special circumstances that would make it extremely inconvenient for the Government of Nicaragua to take a decision on what procedure to follow in this case during the ensuing months; and whereas therefore it was decided not to fix any date for the oral proceedings;

Whereas, by a letter dated 12 September 1991 the Agent of Nicaragua informed the Court that his Government had decided to renounce all further right of action based on the case and did not wish to go on with the proceedings, and requested that an Order be made officially recording discontinuance of the proceedings and directing the removal of the case from the list;…” (Order of 26 September 1991, fifth and sixth paragraphs. Emphasis added.)

Clearly, by the language of Nicaragua’s communication to the Court, Nicaragua had purposely “renounced all further right of action based on the case”, including the very same “question of reparation” which the Court’s Registrar had put to the parties following the Judgment on the Merits in Nicaragua v. United States. It is thus difficult to imagine how, twenty-eight years from the Judgment on the Merits and twenty-seven years from the Order of Discontinuance issued at Nicaragua’s request, that Nicaragua could assert in 2017 that it would “revive” its claim for compensation against the United States at the ICJ.

Even assuming that there is no such waiver by Nicaragua resulting from its own request for discontinuance of the proceedings, the lapse of nearly thirty years should certainly provoke similar concerns of reasonableness as that invoked by Judge Cancado-Trindade over the delay in instituting reparations procedures at the Court. Where in this case, Nicaragua itself operatively waived the right of action on behalf of any Nicaraguan nationals supposedly injured by the United States’ activities in supporting the contras, it would be an equally abusive use of the Court’s procedures were the reparations claim – which Nicaragua had long since expressly abandoned in 1991 – to be suddenly revived, twenty-seven years later.

While the Court has yet to make a categorical determination that an abuse of process has indeed occurred before it, the attempt to reinstitute the Nicaraguan claim for reparation against the United States under these circumstances may furnish the first opportunity for the Court to elaborate on what, particularly, constitutes an abuse of ICJ process. To recall, parties’ claims of abuse of process at the Court thus far have all been unsuccessful in Legality of the Use of Force (Yugoslavia v. Portugal), para. 14; Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), paras. 26-27; Certain Phosphate Lands in Nauru (Nauru v. Australia), para. 38; Armed Activities in the Territory of the Congo (Democratic Republic of Congo v. Rwanda, Order of Provisional Measures, 10 July 2002), para. 45. Scholars have ventured to describe an abuse of process as “consist(ing) of the use of procedural instruments by one or more parties for purposes that are alien to those for which procedural rights were established.” [Robert Kolb, “General Principles of Procedural Law”, in Andreas Zimmermann et al. (eds.), The Statute of the International Court of Justice: A Commentary (Oxford University Press, 2006), p. 831, para. 65]. In the context of Article 294 of the UN Convention on the Law of the Sea, the Arbitral Tribunal in South China Sea Arbitration (Philippines v. China) did not find an abuse of process from the Philippines’ mere exercise of unilateral rights to institute arbitration, observing that a finding of abuse of process “is appropriate in only the most blatant cases of abuse or harassment.” (Award on Jurisdiction and Admissibility, 29 October 2015, para. 128). In this particular case where Nicaragua expressly renounced its rights of action in regard to the question of compensation over twenty-seven years ago, it cannot be feasibly said that Nicaragua is exercising a unilateral right anymore to claim compensation against the United States.

My own survey of the Court’s entire jurisprudence in contentious cases reveals a discernibly thin trend where the Court leaves the matter of reparations initially to negotiations by the parties. If negotiations fail, then the Court, in a few specific instances, expressly provides for subsequent procedures, under definite time limits, to determine the form and amount of reparation. Thus, in the Corfu Channel case, the Court in its Judgment on the Merits found Albania responsible for damage caused by minelaying explosions in Albanian waters, and then reserved “for further consideration the assessment of the amount of compensation and regulates the procedure on this subject by an Order dated this day” (Dispositif, p. 36, second paragraph). Around six to seven months thereafter, the Court issued its Judgment on Compensation. Years later in the Tehran Hostages case, while the Court declared that Iran was under obligations to make reparations to be determined in a subsequent proceeding [Judgment on the Merits, para. 95(5) and (6)], the United States moved to discontinue proceedings after it reached agreement with Iran to establish the Iran-US Claims Tribunal. On the other hand, in the Diallo case, the Court set an explicit timeline for the parties to reach agreement on the question of compensation: “[the Court decides that] failing agreement between the Parties on this matter within six months from the date of this Judgment, the question of compensation due to the Republic of Guinea shall be settled by the Court, and reserves for this purpose the subsequent procedure in the case.” [Dispositif, para. 165(8)] This subsequent procedure was had at the Court when the parties’ negotiations failed, resulting in a Judgment on Compensation around a year and a half later. In Certain Activities and Construction of a Road, the Court again set an explicit timeline for parties to negotiate an agreement on the question of compensation owed by Nicaragua for its unlawful activities in Costa Rican territory: “[the Court decides that] failing agreement between the Parties on this matter within 12 months from the date of Judgment, the question of compensation due to Costa Rica will, at the request of one of the Parties, be settled by the Court, and reserves for this purpose the subsequent procedure in [this case]…” [Dispositif, para. 229(5)(b)]. The rest of the Court’s jurisprudence appears more specific in the form and amount of reparations granted to injured Parties – whether in the form of declaration as a mode of satisfaction [see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Judgment of 26 February 2007, para. 471(9)], restitution [see Temple of Preah Vihear, Judgment on the Merits, p. 37], cessation of internationally wrongful conduct [see Whaling in the Antarctic, Judgment of 31 March 2014, para. 247(7)], among others.

Thus far, no other judgments of the Court contain blanket language that would enable reopening of proceedings for reparations questions without a reasonable time limit. Armed Activities (DRC v. Uganda) is a rare exception of a reparations procedure reopening proceedings at the Court, ten years after political negotiations have failed. Nicaragua v. US might have had potential, if Nicaragua did not waive its right to further procedures on reparations, and if nearly thirty years had not intervened that Nicaragua could be deemed to have slept on any right it may have had to a reparations procedure. Both these case, however, invite needed scrutiny into how the Court continues communications with States when the Court refers parties to negotiations to determine reparations. It does not appear – at least from the above quoted critique of Judge Cancado-Trindade – that the Court has designed a satisfactory process for determining when reparations negotiations have failed to the point that it would be necessary to resume the Court’s proceedings. This gap in the Court’s own practice could conceivably open the door for the ‘abuse of process’ that Nicaragua appears to attempt in reviving its reparations claim before the Court nearly thirty years after this matter was supposed to have been settled.