PSDA: CASE ANALYSIS

INTERNATIONAL LAW

THE REPUBLIC OF NICARAGUA V. THE UNITED STATES OF AMERICA

Case Concerning the Military and Paramilitary Activities in and Against

Nicaragua (1986) ICJ 1

SUBMITTED TO : MS.AUNKANA BAL

SUBMITTED BY:

ENROLLMENT NO: 37110303815

 OVERVIEW

The case involves violation of customary international law. On April 9, 1984, the
Republic of Nicaragua submitted a complaint to the International Court of Justice
(ICJ), alleging that the United States was using military force against Nicaragua in
violation of International Law.

The ICJ ruled in favor of Nicaragua and against the United States and
awarded reparations to Nicaragua. The ICJ held that the U.S. had violated
international law by supporting the Contras in their rebellion against the Nicaraguan
government and by mining Nicaragua's harbors.

The Court found in its verdict that the United States was "in breach of its
obligations under customary international law not to use force against another
State", "not to intervene in its affairs", "not to violate its sovereignty", "not to interrupt
peaceful maritime commerce", and "in breach of its obligations under Article XIX of
the Treaty of Friendship, Commerce and Navigation between the Parties signed at
Managua on 21 January 1956."
 FACTS OF THE CASE:

 The dispute between Nicaragua and the United States concerns events in
Nicaragua subsequent to the fall of the Government of President Anastacio
Somoza Debayle in Nicaragua in July 1979, and activites of the US
Government in relation to Nicaragua since that time. Then, a Junta of
National Reconstruction and an 18-member government were installed by the
Frente Sandinista de Liberacion Nacional (FSLN). The latter had initially an
extensive share in the new government. Certain opponents of the new
government, primarily supporters of the former Somoza government, formed
themselves into irregular military forces.

 In July 1979 the Government of President Somoza collapsed following an

armed opposition led by the Frente Sandinista de Liberacibn Nacional (FSLN)
. The new government – installed by FSLN – began to encounter armed
opposition from supporters of the formerSomoza 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 guerrillas in El
Salvador. In April 1981 it 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 Nicaragüense (FDN), which operated along the border
with Honduras, and (2)Alianza Revolucionaria Democratica (ARDE), which
operated along the border with Costa Rica, (see map of the region). 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 United States
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 to intimidate the population.
 SUBMISSIONS OF THE NICARAGUA:
a. That the United States, in recruiting, training, arming, equipping, financing,
supplying and otherwise encouraging, supporting, aiding, and directing
military and paramilitary actions in and against Nicaragua, had violated its
treaty obligations to Nicaragua under:
 Article 2 (4) of the United Nations Charter;
 Articles 18 and 20 of the Charter of the Organization of American
States;
 Article 8 of the Convention on Rights and Duties of States;
 Article I, Third, of the Convention concerning the Duties and Rights of
States in the Event of Civil Strife.

b. That the United States had breached international law by:

 violating the sovereignty of Nicaragua by:
- armed attacks against Nicaragua by air, land and sea;
- incursions into Nicaraguan territorial waters;
- aerial trespass into Nicaraguan airspace;
 efforts by direct and indirect means to coerce and intimidate the
Government of Nicaragua.
 using force and the threat of force against Nicaragua.
 intervening in the internal affairs of Nicaragua.
 infringing upon the freedom of the high seas and interrupting peaceful
maritime commerce.
 killing, wounding and kidnapping citizens of Nicaragua.

c. Nicaragua demanded that all such actions cease and that the United
States had an obligation to pay reparations to the government for damage
to their people, property, and economy.
 SUBMISSIONS OF THE UNITED STATES:
 That its actions were "primarily for the benefit of El Salvador, and to help it
to respond to an alleged armed attack by Nicaragua, that the United
States claims to be exercising a right of collective self-defense, which it
regards as a justification of its own conduct towards Nicaragua. El
Salvador joined the U.S. in their Declaration of Intervention which it
submitted on 15 August 1984, where it alleged itself the victim of an
armed attack by Nicaragua, and that it had asked the United States to
exercise for its benefit the right of collective self-defence."

 The CIA claimed that the purpose of the Psychological Operations in

Guerrilla Warfare manual was to "moderate" the existing Contra activities.

 The United States argued that the Court did not have jurisdiction, with
U.S. ambassador to the United NationsJeane Kirkpatrick dismissing the
Court as a "semi-legal, semi-juridical, semi-political body, which nations
sometimes accept and sometimes don't."

It is noteworthy that the United States, the defaulting party, was the only
member that put forward arguments against the validity of the judgment of
the court, arguing that it passed a decision that it 'had neither the
jurisdiction nor the competence to render'. Members that sided with the
United States in opposing Nicaragua's claims did not challenge the court's
jurisdiction, its findings, nor the substantive merits of the case.
 ISSUES AND QUESTIONS
 Whether the prohibition of the use of force and collective self-defence are issues
regulated both by customary international law and by treaties, in particular the United
Nations Charter.
 What are the rules of customary international law applicable to the case?
 Whether the recognition of the States of certain rules is sufficient to consider as being
part of customary international law, and as applicable as such to States.
 Whether the practice of State must be in “absolute conformity” with the purported
customary rule. What makes State practice an international rule?

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 1983 – 1984 and
when its activities in bullet point 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-defence?
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 bullet point 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 bullet points 2, 3, 4 and 5

above. The Court rejected the US justification of collective self-defence
and held that US violated the prohibition on the use of force.

THE RULING OF THE COURT:

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 (CIL).
2. Use of force can be: (1) “most grave forms of the use of force” (i.e. those that constitute an
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- defence, then the US was justified in the use of force (see below on
self-defence).
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 bands… for
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 in itself amount to a use of force.” (para 227)

US cannot justify the military and paramilitary activities that it undertook in and against
Nicaragua as collective self-defence.
1. CIL allows for exceptions to the prohibition on the use of force – including the right of
individual or collective self-defence. US asserted that the Charter itself acknowledges the
existence of this CIL right when it talks of the “inherent” right of a State (para.193).
2. When a State claims that it used force in collective self-defence, the Court will look into
two aspects : (1) whether the circumstances required for the exercise of self-defence
existed and (2) whether the steps taken by the State, which was acting in self-defence,
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 individual or collective self-
defence:
(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 self-defence based its (the third State’s) 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 of 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 an armed attack happened – but “the absence of a
report may be one of the factors indicating whether the State in question was itself convinced
that it was acting in self-defence”(see below).
4. The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and
Honduras in determining whether an armed attack was undertaken by Nicaragua against the
three countries – which in turn would necessitate self-defence (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 a victim of an armed attack or request assistance from the
US in self-defence – at the time when the US was allegedly acting in collective self-defence; 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 force as collective self-
defence.

5. The criteria with regard to necessity and proportionality, that is necessary when using force
in self-defence – was also not fulfilled (para 237).

The US breached its CIL 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.
1. The principle of non- intervention means that every State has a right to conduct its affairs
without outside interference – I.e it “…forbids States or groups of States to intervene
directly or indirectly in internal or external affairs of other States.” . This is a corollary of the
principle of sovereign equality of States.
2. Nicaragua stated that the activities of the US was aimed at (1) overthrowing 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 intended, by its support of the contras, to coerce the Government
of Nicaragua in respect of matters in which each State is permitted, by the principle of 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 of 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 of weapons, intelligence and logistic support given
by the US to the contras was a breach of the principle of 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 that 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” (para 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).

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 waters of Nicaragua and its territorial sea.
 ISSUE BASED ANALYSIS

First Issue

 The Court then considered the rules of customary law applicable to the present
dispute. For this purpose it considered whether a customary rule exists in the opinio
juris of States,and satisfy itself that it is confirmed by practice.

 The Court ruled that there can be no doubt that the issues of the use of force and
collective self-defence are regulated both by customary international law and by
treaties, in particular the United Nations Charter.

 The Court concluded that both Parties accept a treaty-law obligation to refrain in their
international relations from the threat or use of force against the territorial integrity or
political independence of any State, or in any other manner inconsistent with the
purposes of the United Nations. The Court has however to be satisfied that there
exists in customary law an opinio juris as to the binding character of such abstention.
It considers that this opinio juris may be deduced from, inter alia, the attitude of the
Parties and of States towards certain General Assembly resolutions, and particularly
resolution 2625 (XXV) entitled "Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in Accordance with
the Charter of the United Nations". Consent to such resolutions is one of the forms of
expression of an opinio juris with regard to the principle of non-use of force, regarded
as a principle of customary international law, independently of the provisions,
especially those of an institutional kind, to which it is subject on the treaty-law plane
of the Charter.

Second Issue

 The court, for this case, directed its attention to the practice and opinio juris of
States: as the Court observed, “It is of course axiomatic that the material of
customary international law is to be looked for primarily in the actual practice and
opinio juris of States, even though multilateral conventions may have an important
role to play in recording and defining rules deriving from custom, or indeed in
developing them”.

 In the separate opinion of Judge Nagendra Singh. - The Charter provisions as well
as the Latin American Treaty System have not only developed the concept but
strengthened it to the extent that it would stand on its own, even if the Charter and
the Treaty basis were held inapplicable in this case. The obvious explanation is that
the original customary aspect which has evolved with the treaty law development has
come now to stay and survive as the existing modern concept of international law,
whether customary, because of its origins, or "a general principle of international law
recognized by civilized nations". The contribution of the Court has been to emphasize
the principle of non-use of force as one belonging to the realm of jus cogens and
 hence as the very cornerstone of the human effort to promote peace in a world torn
by strife.

Third Issue

 The Court ruled that the mere fact that States declare their recognition of certain
rules in not sufficient for the Court to consider these as being part of customary
international law, and as applicable to those States. Bound as it is by Article 38 of its
Stature to apply, inter alia, international custom “as evidence of general practice
accepted as law”, the Court may not disregard the essential role played by general
practice. Where two States agree to incorporate a particular rule in a treaty, their
agreement suffices to make that rule a legal one, binding upon them; but in the field
of customary international law, the shared view of the Parties as to the content of
what they regard as the rule is not enough. The Court must satisfy itself that the
existence of the rule in the opinio juris of State is confirmed by practice.

 In the present disputes, the Court, while exercising its jurisdiction only in respect of
the application of the customary rules of non-use of force and non-intervention,
cannot disregard the fact that the Parties are bound by these rules as a matter of
treaty law and of customary international law. Furthermore, in the present case, apart
from the treaty commitments binding the Parties to the rules in question, there are
various instances of their having expressed recognition of the validity thereof as
customary international law in other ways. It is therefore in the light of this “subject
element” - expression used by the Court in its 1969 Judgment in the North Sea
Continental Shelf cases) – that the Court has to appraise the relevant practice.

Fourth Issue

 The court said that in order to deduce the existence of customary rules, the Court
deems it sufficient that the conduct of the States should, in general, be consistent
with such rules, and that instances of State conduct inconsistent with the given rule
should generally have been treated as breaches of that rule, not as indications of the
recognition of a new rule.
 The Court emphasized, as was observed in the North Sea Continental Shelf case, for
a new customary rule to be formed, not only must the acts concerned “ amount to a
settled practice”, but they must accompanied by the opinio juris sive necessitates.
Either the States taking such action or other States in a position to react to it, must
have behaved so that their conduct is “evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it. The need for such a
belef, i.e., the existence of a subjective elements, is implicit in the very notion of the
opinio juris sive necessitates.”