Nicaragua Case (Merits)

Military and Paramilitary Activities

in and Against Nicaragua
(Nicaragua v. the United States)
 Factual background
– Sandinistas in power as from 1979
– Contras
• ARDE
• FDN
– US support
• Support to paramilitary groups (UCLA)
• Support to contras
– Nicaraguan support
• Evidence of shipments of arms from N to El Salvadoran rebels
• Claims that armed forces of N are engaged in armed activities and
assists rebels in El Salvador, Honduras and Costa Rica
– Nicaragua files application on 9 April 1984
 Nicaraguan submissions #1
• Requests the Court to adjudge and declare that
the USG violated obligations owed to N by:

– Laying of mines in Nicaraguan harbours and territorial

waters

– Attacks on Nicaraguan ports and oil installations

– Aerial trespass into Nicaraguan airspace

– Military manoeuvres near the Nicaraguan border

 Nicaraguan submissions #2
• Requests the Court to adjudge and
declare that the USG violated obligations
owed to N by:

– Recruiting, training, arming, equipping,

financing, supplying and otherwise
encouraging, supporting, aiding and directing
military and paramilitary action in and against
N
 Nicaraguan submissions #3
• Requests the Court to adjudge and
declare that the USG violated obligations
owed to N by:

– Withdrawing aid, reducing the quota for

imports of sugar, and imposing a complete
trade embargo
 Nicaraguan submissions #4
• Requests the Court to adjudge and
declare that the USG violated obligations
owed to N by:

– Killing, wounding and kidnapping civilian citizens

– Publishing and disseminating among contras a

manual on psychological warfare
 US defence – jurisdiction
• According to N, jurisdiction is founded on …
– The US and Nicaraguan declarations of 1946 and
1929, respectively
– The TFCN of 1956
• US defence
– On 7 October 1985, the USG terminated its
declaration
– The US multilateral treaty reservation
• “this declaration shall not apply to disputes arising under a
multilateral treaty, unless (1) all parties to the treaty affected by
the decision are also parties to the case before the Court, or (2)
the United States of America specially agrees to jurisdiction"
– ”Rules of int’l custom have been subsumed and
supervened by treaty law”
 US defence – merits
– (A) Right of collective self-defence
• N subjected El Salvador and others to an armed
attack
– (B) Right to take countermeasures in the
capacity of a third party
• N violated the principle of non-intervention
– (C) Right to take countermeasures in the
capacity of an injured state
• Reports indicate that N violates human rights
The prohibition of the use of
force
– Customary law largely identical with UNCh
– ”Frequently referred to as a rule having the character
of jus cogens”
– The prohibition can be established using the FRD
(1970)
• “Every State has the duty to refrain from organizing or encouraging
the organization of irregular forces or armed bands including
mercenaries, for incursion into the territory of another State.
• Every State has the duty to refrain from organizing, instigating,
assisting or participating in acts of civil strife or terrorist acts in
another State or acquiescing in organized activities within its
territory directed towards the commission of such acts, when the
acts referred to in the present paragraph involve a threat or use of
force.”
 The right of self-defence
– Customary law largely identical with UNCh
– ”Armed attack” …
• Includes the sending by a state A of armed bands and
irregulars, which carry out acts of armed force against
another state of such gravity as to amount to an actual armed
attack [Def. Of Aggression, art. 3(g)]
• Does not include assistance to an armed opposition in the
form of the provision of weapons or logistical and other
(similar) support
– The right of collective self-defence presupposes …
• That the allegedly attacked state has declared iteself subject
to an armed attack; and
• Has requested assistance
The principle of non-intervention
– External interference prohibited when having
a bearing on matters, in which sovereign
states have the right to decide freely
– States have …
• Right to respect for their territorial integrity and
political independence
• Right to decide freely the choice of political,
economic, social and cultural system, and the
formation of foreign policy
 IHL
– The action of contras to be assessed based
on the law governing conflicts not of
international character
– The action of the US to be assessed based
on the law govering international armed
conflicts
– The rules of GC-49, common Article 3,
constitute ”a minimum yardstick”
– States have the duty to respect, and to ensure
respect, for IHL
 Issues of attributability
• Responsibility for UCLA operations
– Comp ARSIWA, Art. 8
• Responsibility for conduct of contras
– Comp ARSIWA , Art. 8
– Contras’ economic dependence on the US
– The effective control test
 ICJ settles the dispute #1
• Laying of mines in Nicaraguan harbours
and territorial waters
• Attacks on Nicaraguan ports and oil
installations
• Aerial trespass into Nicaraguan airspace
• Military manoeuvres near the Nicaraguan
border
 ICJ settles the dispute #2
• The USG has trained, armed and
equipped the contras, and supplied them
with information, logistic and financial
support
• The USG intended to coerce the Government of N in respect of
matters which a state is permitted to decide freely
• It was the purpose of the contras to overthrow the Government
of N
• Support in the form of humanitarian assistance was
discriminatory
 ICJ settles the dispute #3
• Withdrawing aid, reducing the quota for
imports of sugar, and imposing a complete
trade embargo
 ICJ settles the dispute #4
• Killing, wounding and kidnapping civilian
citizens
• Publishing and disseminating among
contras a manual on psychological warfare
– The USG encouraged the commission of acts
contrary to IHL in circumstances where the
commission of such acts was likely or
foreseeable
 ICJ settles the dispute (A)
• Right of collective self-defence?
– The declaration and request for assistance by
El Salvador were to late
– No report to the UNSC (UNCh Art. 51)
– ”An additional ground of wrongfulness”
• Necessity and proportionality
 Necessity and proportionality
• “Whether or not the assistance to the contras might meet the
criterion of proportionality, the Court cannot regard the United States
activities summarized in paragraphs 80, 81 and 86, i.e., those
relating to the mining of the Nicaraguan ports and the attacks on
ports, oil installations, etc., as satisfying that criterion. Whatever
uncertainty may exist as to the exact scale of the aid received by the
Salvadorian armed opposition from Nicaragua, it is clear that these
latter United States activities in question could not have been
proportionate to that aid. Finally on this point, the Court must also
observe that the reaction of the United States in the context of what
it regarded as self-defence was continued long after the period in
which any presumed armed attack by Nicaragua could reasonably
be contemplated.” (para. 237)
 ICJ settles the dispute (B)
• Right to take countermeasures?
– N violated the principle of non-intervention
 ICJ settles the dispute (C)
• Right to take countermeasures?
– Reports indicate that N violated human rights
• Measures are to be taken primarily by resort to
existing institutional mechanisms
• ”In any event, ... the use of force could not be the
appropriate method to monitor or ensure such
respect” (§ 268)
• ”With regard to the steps actually taken, the
protection of human rights … cannot be compatible
with the mining of ports, the destruction of oil
installations, or again with the training, arming and
equipping of the contras” (§ 268)
 The wider significance of
Nicaragua
• Issues of sources
• Fundamental concepts, such as use of force,
armed attack, and unlawful interference
• War by proxy – issues of attribution
• Humanitarian intervention – armed reprisals
• Collective self-defence