Nicaragua vs.

US
Facts:
In July 1979 the Government of President Somoza collapsed following an
armed opposition led by the Frente Sandinista de Liberacion Nacional (FSLN).
The new government- installed by FSLN- began to encounter armed opposition
from supporters of the former Somoza Government and ex-members of the
National Guard. The US-initially supportive of the new government- changed its
attitude when, according to the US, it found that Nicaragua was providing
logistical support and weapons to guerillas in El Salvador. In April 1981it
terminated US aid to Nicaragua and in September 1981, according to Nicaragua,
the US decided to plan and undertake activities directed against Nicaragua.
The armed opposition to the new Government was conducted mainly by
1. Fuerza Democratica Nicaragense (FDN), which operated along the
border with Honduras, and
2. Alianza Revolucionaria Democratica (ARDE), which operated aloth the
border with Costa Rica.
Initial support to these groups fighting against the Nicaraguan Government
(called contras) was covert. Later, the US officially acknowledged its support.
(For example: In 1983 budgetary legislation enacted by the United States
Congress made specific provision for funds to be used by US intelligence
agencies for supporting directly or indirectly military or paramilitary operations in
Nicaragua.)
Nicaragua also alleged that the US is effectively in control of the contras,
the US devised their strategy and directed their tactics and that they were paid
for and directly controlled by US personal and some attacks were carried out by
US military- with the aim to overthrow the Government of Nicaragua. Attacks
against Nicaragua included the mining of Nicaraguan ports and attacks on ports,
oil installations and a naval base. Nicaragua alleged that US aircrafts flew over
Nicaraguan territory to gather intelligence, supply to the contras in the field and ti
intimidate the population.
Questions before the Court:
1. Did the US breach its customary international law obligation- not to
intervene in the affairs of another state- when it trained, armed, equipped,
and financed the contra forces or encouraged, supported and aided the
military and paramilitary activities against Nicaragua?
2. Did the US breach its customary international law obligation- not to use
force against another State- when it directly attacked Nicaragua in 19831984 and when its activities in number 1 above resulted in the use of
force?
3. Can the military and paramilitary activities that the US undertook in and
against Nicaragua be justified as collective self-defense?

4. Did the US breach its customary international law obligation- not to violate
the sovereignty of another State- when it directed or authorized its
aircrafts to fly over Nicaraguan territory and by acts referred to in number
2 above?
5. Did the US breach its customary international law obligations- not to
violate the sovereignty of another State, not to intervene in its affairs, not
to use force against another State and not to interrupt peaceful maritime
commerce when it laid mines in the internal waters and the territorial sea
of Nicaragua?
ICJ Decision
US violated CIL in relation to numbers 2, 3, 4 and 5 above. The court rejected the
US justification of collective self-defense and held that US violated the prohibition
on the use of force.
Relevant Findings:
The US breach its customary international law obligation- not to use force against
another State- when it directly attacked Nicaragua in 1983-1984 and when its
activities with the contra forces resulted in the threat or use of force.
The court held that:
1. The prohibition on the use of force is a principle that can be found in
Article 2 (4) of the UN Charter and in customary international law.
2. Use of force can be: (1) most grave forms of the use of force (i.e. those
that constitute and armed attack) and (2) less grave forms of use of force
(I,e, organizing, instigating, assisting, or participating in acts of civil strife
and terrorist acts in another State- when the acts referred to involve a
threat or use of force.)
3. The US violated the CIL prohibition on the use of force when it laid mines
in Nicaraguan ports and attacked its ports, oil installations and a naval
base. If however, the force was used in collective self defense, then the
US was justified in the use of force.
4. The US violated the CIL prohibition on the use of force when it assisted
the contras by organizing or encouraging the organization of irregular
forces and armed bandsfor incursion into the territory of another State
and participating in acts of civil strife in another State and when these
acts involved the threat or use of force.
5. The supply of funds to the contras does not violate the prohibition on the
use of force. while the arming and training of the contras can certainly
be said to involve the threat or use of force against Nicaragua the Court
considers that the mere supply of funds to the contras, while undoubtedly
an act of intervention in the internal affairs of Nicaragua does not itself
amount to a use of force.

What is an armed attack?

An armed attack includes (1) action by regular armed forces across an
international border; and (2) the sending by or on behalf of a State of
armed force against another State of such gravity as to amount to (inter
alia) an actual armed attack conducted by regular forces, or its substantial
involvement therein
Mere frontier incidents are not considered as an armed attack- unless
because of its scale and effects it would have been classified as an armed
attack if it was carried out by regular forces.
Assistance to rebels in the form of provision of weapons or logistical
support does not constitute an armed attack- it can be regarded as a
threat or use of force, or an intervention in the internal or external affairs of
other States.
Under Art 51 of the UN Charter and under CIL- self-defense is only
available against a use of force that amounts to an armed attack.
US cannot justify the military and paramilitary activities that it undertook in and
against Nicaragua as collective self- defense.
1. CIL allows for exceptions to the prohibitions on the use of force- including
the right of individual or collective self-defense. US asserted that the
Charter itself acknowledges the existence of this CIL wright when it talks
of the inherent right of the State.
2. When a State claims that it used force in collective self-defense, the Court
will look into two aspects: (1) whether the circumstances required for the
exercise of self-defense existed and (2) whether the steps taken by the
State, which was acting in self-defense, corresponds to the requirements
of international law (i.e. necessity and proportionality.)
3. Several criteria must be met for a State to exercise the right of the
individual or collective self-defense:
(1) A state must have been the victim of an armed attack;
2) this state must declare itself as a victim of an armed attack; [NB: the
assessment whether an armed attack took place nor not is done by the state who
was subjected to the attack. A third state cannot exercise a right of collective selfdefence based its (the third states) own assessment]; and
(3) in the case of collective self defence the victim state must request for
assistance (there is no rule permitting the exercise of collective self defence in
the absence of a request by the state which regards itself as the victim f an
armed attack};
(4) the state does not, under CIL, have the same obligation as under Article 51 of
the Un Charter to report to the security council that and armed attack happened
but the absence of report may be ne of the factors indicating whether the state
in question was itself convinced that it was acting in self defence (see below)
(1) Para 200: At this point , the court may consider whether in customary
international law there is any requirement corresponding to that found in
the treaty law of united nations charter, by which the state claiming to use

the right of individual or collective self defenccre must report to an

international body, empowered to determine the conformity with
international law of measures which the state is seeking to justify on that
basis. Thus Article 51 of the United nations charter requires that measures
taken by states in exercise of this right of self defence must be
immediately reported to the security council. As the court has observed
above (paragraphs 1788 and 188), a principle enshrined in the treaty , if
reflected in customary international law, may well be so unencumbered
with the conditions and modalities surrounding it in the treaty. Whatever
influence the charter may have had on customary international law in
these matters, it is clear that in customary international law it is not a
condition of the lawfulness of the use of force in self defense that a
procedure so closely dependent on the content of a treaty commitment
and of the institutions established by it, should have been followed. On the
other hand, if self defence is advances as a justification for measures
which would otherwise be in breach both of the principle of customary
international law and of that contained in the charter, it is to be expected
that the conditions of the charter should be respected. Thus for the
purpose of enquiry into the customary law position , the absence of the
report may be one of the factors indicating whether the state in question
was itself convinced that it was acting in self- defence
The court looked extensively into the conduct of Nicaragua, El Salvador, Costa
Rica and Honduras in determining whether n armed attack was undertaken by
Nicaragua against the three countries which in turn would necessitate self
defense {paras 230-236}. The Court referred to statements made by el Salvador,
Costa Rica, Honduras and the US before the Security Council. None of the
countries who were allegedly subject to an armed attack by Nicaragua (1)
declared themselves as victim of an armed attack or request assistance from the
US self defense at the time when the US was allegedly acting in collective self
defense ; and (2) the US did not claim that it was acting under Article 51 of the
UN charter and it did not report that it was so acting to the security council US
cannot justify its use of the forces as a collective self defense.
The criteria with regard to necessity and proportionality, that is necessary when
using force in seldf defense was not fulfilled (para 237)
The US breached it CIL obligation not to intervene in the afffairs of another
State- when it trained, armed, equipped and financed thee contra forces or
encouraged, supported and aided the military and paramilitary activities against
Nicaragua
1.
The principle of non intervention means that every state has aright to
conduct its affairs with outside interference I.e it forbid states or groups of
states to intervene directly or indirectly in internal or external affairs of other
States . This is corollary of the principle of sovereign equality of States.
A prohibited intervention must accordingly be one bearing on matters in which

each state is permitted, by the principle of state sovereignty to decide freely. One
of these is the choice of a political, economic, social and cultural system, and the
formulation of foreign policy. Intervention is wrongful when it uses methods of
coercion in regard to such choices, which must remain free ones. The element of
coercion , which defines , and indeed forms the very essence of, prohibited
intervention in particularly obvious in the case of an intervention which uses
force, either in direct form of military action, or in the indirect form of support for
subversive or terrorist armed activities within another State (para 205)
2.
Nicaragua stated that the activities if the US was aimed at (1) over
throwing of the government of Nicaragua and (2) substantially damaging the
economy and weakening the political system so as to coerce the government of
Nicaragua to accept US political demands. The court held:
.first, that the united states intend by tis support of the contras, to coerce the
government of Nicaragua in respect of matters in which each state is permitted,
by the principle of the state sovereignty, to decide freely ( see paragraph 205
above) ; and secondly that the intention of the contras themselves was to
overthrow the present government of Nicaragua.. The court considers that in
international law, if one state, with a view to the coercion of another state,
supports and assists armed bands in that state whose purpose is to overthrow
the government of that state, that amounts to an intervention by the one state in
the internal affairs to the other, whether or not the political objective of the state
giving such support and assistance is equally far reaching
3.
The financial support, training, supply weapons, intelligence and logistic
support given by the US to the contras was a breach of the principle on non
interference no such general right of intervention, in support of an opposition
within another state, exists in contemporary international law , even if such a
request for assistance is made by an opposition group of that state {see para 246
for more)
4.
Interesting however, the court also held providing humanitarian aid to
persons or forces in another country, whatever their political affiliations or
objectives, cannot be regarded as unlawful intervention, or as in any other way
contrary to international law (paras 242)
5.
In the event one state intervenes in the affairs of another state , the
second state has a right to intervene in a manner that is short of an armed attack
(210)
while an armed attack would give rise to entitlement to collective self defense, a
use of force of a lesser degree of gravity cannot as the court has already
observed (paragraph 21 q above). [reduce any entitlement to take collective
counter measures involving the use of force. The acts of which Nicaragua
accused ,even assuming them to have been established and imputable to that
state, could only have justified proportionate counter measures on the part of
the state which had been the victim of these acts namely El Salvador, Honduras
or Costa Rica. They could not justify counter measures taken b a third state, the

united states, and particularly could not justify intervention involving the use of
force
The US breached its customary international law obligation not to violate the
sovereignty of another state- when it directed or authorized its aircrafts to fly over
Nicaraguan territory and when it laid mines in the internal water s of Nicaraguan
and its territorial sea.
(1)The basic concept of state sovereignty in CIL is found in Article 2(1) of the
UN Charter. State sovereignty extends to its internal waters of Nicaragua
and when it carried out unauthorized over flights over Nicaraguanx
airspace by aircrafts belong to or under the control of the US.