Military and paramilitary activities in and against Nicaragua 19861 PDF

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Military and paramilitary activities in and against Nicaragua 19861The International Court of Justice ruled today that the Reagan Administration had broken international law and violated Nicaraguan sovereignty by aiding the anti-Government rebels. The Court, the judicial arm of the United Nations, ordered Washington to halt the ''arming and training'' of the insurgents and to pay Nicaragua for damages caused by military attacks, some of which it said had been carried out by the United States itself. The judgment, which was widely expected, came after 26 months of litigation on Nicaragua's complaint. U.S. Rejects the Verdict In Washington, a State Department spokesman said the United States rejected the Court's verdict, and said the body was ''not equipped'' to judge complex international military issues. The American spokesman added that ''we consider our policy in Central America to be entirely consistent with international law.'' [ Page 4. ] In January 1985 the Administration said it would defy the Court and ignore further proceedings in the case because of its view that the World Court, as it is commonly called, has no jurisdiction to decide cases involving ongoing armed conflicts. The Court rejected this position last November. Throughout the case, the argument that the United States was giving military aid to the contras was never in serious dispute. However, before Washington formally withdrew from the case, it argued that United States actions against Nicaragua were ''collective self-defense'' against Nicaraguan support of leftist guerrillas in El Salvador and elsewhere. The Court's findings were announced two days after the House of Representatives endorsed President Reagan's plan to provide $100 million in new aid to the rebels, with $70 million earmarked for military assistance. Three Dissenters The World Court consists of 15 judges: one, the chief judge, from India; two from France, and one each from Poland,

Argentina, Nigeria, Italy, Brazil, Senegal, Algeria, China, Norway, Japan, the United States and Britain. The American, British and Japanese judges dissented on the most important issues in the case. The Court deferred a ruling on Nicaragua's petition for $370 million in damages from the United States, saying it wished to give the two countries a chance to negotiate a settlement themselves. However, the Court said it would step in if no accord materialized. Abram Chayes, a counsel for the Managua Government, said in Washington today that as a result of the ruling, Nicaragua intends to sue the United States for more than $1 billion in damages in United States courts. In New York, Nora Astorga, Nicaragua's chief envoy to the United Nations, said her Government had asked for a Security Council meeting to discuss how to make the United States comply with the ruling. The Court has no enforcement powers. It depends on voluntary compliance with its rulings by nations coming before it. #15 Counts Against U.S. The Court ruled against the United States on 15 counts. The Court found the United States violated customary international law and Nicaragua's sovereignty by ''training, arming, equipping, financing and supplying the contra forces.'' It also found the United States guilty of direct attacks on Nicaraguan oil installations, ports and shipping in 1983 and 1984. It held that the United States broke international law by authorizing overflights of Nicaraguan territory and by mining Nicaraguan ports and harbors in 1984. The Court also ruled that the United States trade embargo against Nicaragua, decreed in May 1985, violates a 1956 treaty of friendship between the two countries. The Court also condemned the United States for allowing distribution of a Central Intelligence Agency manual on guerrilla warfare techniques to the contras, saying it encourages ''acts contrary to the general principles of humanitarian law.''

A majority of judges rejected the American claim that it was acting in the ''collective self-defense'' of El Salvador, Costa Rica and Honduras because Nicaragua was supporting rebel movements in these countries. The Court said Nicaraguan aid to rebels in El Salvador was mainly in 1980 and 1981, before the United States stepped up its assistance to the contras, and did not constitute an ''armed attack'' on these countries under international law. As a result, the United States' response was judged disproportionate and unnecessary. The Court said the United States was responsible in a general way for damage caused by the contras but not for specific acts by the rebels since it does not control them. It also said the United States has no right to seek the overthrow of the Nicaraguan Government because of its political ideology. But to the surprise of some lawyers, it then added that this doctrine does not apply to ''the process of decolonization,'' suggesting that wars of national liberation may be justified in international law. Nicaraguan Leader Comments The Nicaraguan Foreign Minister, the Rev. Miguel d'Escoto Brockmann, said he hoped the United States Congress would now agree to stop new aid going to the contras. ''We want the U.S. to comply with the ruling so that there will be no more killing of our people,'' he told a news conference here. If the United States fails to respect the judgment, Father D'Escoto said, its ''reputation as a member of the international community will be tarnished, perhaps irreparably.'' The Foreign Minister said he would discuss the verdict with the United Nations Secretary General, Javier Perez de Cuellar, in New York next week before returning to Nicaragua for talks with the other leaders of the Government on their next move in the dispute. Although the World Court lacks the means to enforce its judgments, diplomats here say Nicaragua can still use today's ruling to cause the United States some diplomatic

embarrassment. This could first occur in a demand that the Security Council authorize sanctions against the United States if it fails to comply. The United States would then be forced to exercise its Security Council veto to block the Nicaraguan resolution. Charges of Bias in Court The United States walked out of the Court proceedings last year, saying they were biased in favor of Nicaragua. In announcing that it did not recognize the Court's jurisdiction in January 1985, the Reagan Administration noted that the Soviet Union and most other nations had never assented to the World Court's jurisdiction, as the United States did in 1946. But the World Court proceeded with the Nicaragua case, in accordance with its rules, as it did when Iran refused to recognize its jurisdiction in the United States' suit over the seizure in 1979 of American diplomats in Teheran as hostages. The Court ruled for the United States in that case. The Nicaraguan case is widely seen by legal scholars as the most politically sensitive the World Court has ever adjudicated as well as representing its first involvement in an international conflict that is still under way. The Court's verdict on most key issues was challenged by Judge Stephen M. Schwebel of the United States, Sir Robert Jennings, the British judge, and Judge Shigeru Oda of Japan. A Jurisdictional Challenge The dissenting judges first challenged the Court's competence to hear the case. The issue was whether the Court could hear the case since the United States specifically refused it authority in 1946 over cases brought under international treaties. Nicaragua claims the United States violated its international obligations under the United Nations and Organization of American States charters. A majority of judges said this restriction applies but argued that the principles of noninterference in other countries' affairs and respect for national sovereignty, which are enshrined in the United Nations charter, have now become part of the wider body of customary international law.

The Court, the majority ruled, is therefore competent to judge. Judge Oda argued that the dispute was not ''legal'' but ''political'' and is ''more suitable for resolution by other organs and procedures.'' Lawyers said this suggested that Judge Oda believed the dispute should be judged by the Security Council. Judge Schwebel's dissent emphasized that the Court had underestimated the gravity of the Nicaraguan Government's involvement in El Salvador. ''Nicaragua has not come to court with clean hands,'' Judge Schwebel said. ''On the contrary, as an aggressor, indirectly responsible - but ultimately responsible - for large numbers of deaths and widespread destruction in El Salvador, apparently much exceeding that which Nicaragua has sustained, Nicaragua's hands are odiously unclean. Nicaragua has compounded its sins by misrepresenting them in court.'' What terminology does the Court use or emphasise when describing the rights of self-defence and the non-use of force, as codified in Articles 51 and 2(4) of the UN Charter respectively? 176. As regards the suggestion that the areas cover'ed by the two sources of law are identical, the Court observes that the United Nations Charter, the convention to which most of the United States argument is directed, by no rneans covers the whole area of the regulation of the use of force in international relations. On one essential point, this treaty itself refers to preexisting custornary international law ; this reference to custornary law is contained in the actual text of Article 5 1, which mentions the "inherent right" (in the French text the "droit naturel") of individual or collective self-defence, which "nothing in the present Charter shall impair" and which applies in the event of an arrned attack. The Court therefore finds that Article 51 of the Charter is only on the basis that there is "natural" or "inherent" right of self-defence, and it is hard to see how this can be other than of a custornary nature, even if its present content has been confirmed and influenced by the Charter. Moreover the Charter, having itself recognized the existence of this right, does not go on to regulate directly

al1aspects of its content. For exarnple, it does not contain any specific rule whereby self-defence would warrant only rneasures which are proportional to the arrned attack and necessary to respond to it, a rule well established in custornary international law. Moreover, a definition of the "armed attack" which, if found to exist, authorizes the exercise of the "inherent right" of selfdefence, is not provided in the Charter, and is not part of treaty law. It cannot therefore be held that Article 51 is a provision which "subsumes and supervenes" custornary international law. It rather dernonstrates that in the field in question, the importance of which for the present dispute need hardly be stressed. custornary international law con- tinues to exist alongside treaty law. The areas governed by the two sources of law thus do not overlap exactly, and the rules do not have the sarne content. This could also be dernonstrated for other subjects, in particular for the principle of non-intervention. What is the difference between a regular norm of customary international law and a jus cogens norm? All jus cogens are customary international law through their adoption by states, but not all customary international laws rise to the level of peremptory norms. States can deviate from customary international law by enacting treaties and conflicting laws, but jus cogens are non-derogable. The distinction necessarily ensures state accountability and promotes the ability of States to accept specific responsibilities. Customary international law allows for the creation of non-derogable jus cogens norms. Jus cogens rules are necessary to hold States accountable for violations of fundamental rights A treaty which, at the time of its conclusion, conflicts with a peremptory norm of general international law (jus cogens) is void in whole, and no separation of the provisions of the treaty is permitted. relationship between treaty law and custom? A treaty prevails over customary law as between the parties to the treaty but a treaty will not affect the rights of States not party to that treaty. There is, therefore, no strict sense of hierarchy between treaty and customary law, contrary to what is sometimes alleged.

Treaty- Strictly speaking a treaty is not a source of law so much as a source of obligation under law. Treaties are binding only on States which become parties to them and the choice of whether or not to become party to a treaty is entirely one for the State – there is no requirement to sign up to a treaty. Customary lawcustomary law is both the oldest source and the one which generates rules binding on all States. Customary law is not a written source. A rule of customary law, e.g., requiring States to grant immunity to a visiting Head of State, is said to have two elements. First, there must be widespread and consistent State practice – ie States must, in general, have a practice of according immunity to a visiting Head of State. Secondly, there has to be what is called “opinio juris”, usually translated as “a belief in legal obligation; ie States must accord immunity because they believe they have a legal duty to do so How does a treaty become customary international law? For, under the customary international law system, the widespread adoption of a treaty can be taken as evidence that the rules agreed to in that treaty are opinio juris – and therefore binding on all states regardless of whether they adopted the treaty itself (North Sea Continental Shelf) How does a treaty become customary international law? It cant. All jus cogens are customary international law through their adoption by states, but not all customary international laws rise to the level of peremptory norms. States can deviate from customary international law by enacting treaties and conflicting laws, but jus cogens are non-derogable. What happens if a state breaches a treaty to which it is party, but that same norm exists in customary international law, according to the Court? 175. The Court does not consider that, in the areas of law relevant to the present dispute, it can be claimed that al1the customary rules which may be invoked have a content exactly identical to that of the rules contained in the treaties which cannot be applied by virtue of the United States reser- vation.

On a nurnber of points, the areas governed by the two sources of law do not exactly overlap, and the substantive rules in which they are frarned are not identical in content. But in addition, even if a treaty norrn and a custornary norrn relevant to the present dispute were to have exactly the same content, this would not be a reason for the Court to take the view that the operation of the treaty process rnust necessarily deprive the cus- tornary norm of its separate applicability. Nor can the multilateral treaty reservation be interpreted as rneaning that, once applicable to a given dispute, it would exclude the application of any rule of custornary inter- national law the content of which was the sarne as, or analogous to, that of the treaty-law rule which had caused the reservation to become effec- tive. How does the Court define state practice, ‘opinio juris’ and the relationship between them? In international law, opinio juris is the subjective element used to judge whether the practice of a state is due to a belief that it is legally obliged to do a particular act. When opinio juris exists and is consistent with nearly all state practice, customary international law emerges. Opinio juris is the subjective element of custom as a source of law, both domestic and international, as it refers to beliefs. The other element is state practice, which is more objective as it is readily discernible. To qualify as state practice, the acts must be consistent and general international practice so far as state practice is concerned, this includes not just the practice of the government of a State but also of its courts and parliament. It includes what States say as well as what they do. Also practice needs to be carefully examined for what it actually says about law. The fact that some (perhaps many) States practise torture does not mean that there is not a sufficient practice outlawing it. To quote from the ICJ’s decision in the Nicaragua case: ‘In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should in general be consistent with such a rule; and that instances of State conduct inconsistent with a given rule should generally have

been treated as breaches of that rule, not as indications of the recognition of a new rule.’ (ICJ in Nicaragua ICJ Reps, 1986, p. 3 at 98.) Once there is sufficient practice together with opinio juris, a new rule of custom will emerge. Subject only to what is known as the “persistent objector” principle the new rule binds all States. The persistent objector principle allows a State which has persistently rejected a new rule even before it emerged as such In other words How much state practice does there need to be in order for it to be established that a new norm of customary international law has developed? How long does it need to go on for? Has this changed since 1986? Columbian asylum case states – according to the court here, the practise needs to be constant and uniform North Sea Continental Shelf Cases (FRG v Denmark & the Netherlands), ICJ Rep. 1969, p. 3, para. 77. ‘Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the by the existence of a rule of law requiring it. The need for such a belief, i.e. the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitas. The states concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts…which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.’ In this case the court gives a bit of a different reading of how much practise is necessary. the one hand the court suggesting that it is possible for a convention to crystallise an emerging rule of customary international law. so it's saying that treaties can sometimes crystallise or consolidate an emerging norm of customary international law or they can give rise to a new norm of customary international law.

You can see here that the court is is giving a bit of a different reading of how much practise needs to be evident for a new norm of content of customary international law to emerge from what was originally a treaty and it's saying that that practise needs to be extensive and virtually uniform so it's a slightly lower bar then the court was articulating the asylum case in relation to a regional custom where it said it said needed to be constant and uniform state practise. So here we are talking about extensive and virtually uniform state practise in the sense of the provision vote but in both cases there need to be opino nuris. as you can see from this there's no it's not perfectly clear even now how much state practise pact sunt servanda – It means agreements must be kept and is one of the oldest principles of international law. Without such a rule no international agreement would be binding or enforceable. Explicit reference to ‘pacta sunt servanda’ in an international legal instrument was made when drafting the Vienna convention on the law of treaties of 1969. as the ICJ termed the process in the North Sea Continental Shelf cases (1969). A treaty is based on the consent of the parties to it, is binding, and must be executed in good faith. The concept known by the Latin formula pacta sunt servanda (“agreements must be kept”) is arguably the oldest principle of international law. Without such a rule, no international agreement would be binding or enforceable. Pacta sunt servanda is directly referred to in many international agreements governing treaties, including the Vienna Convention on the Law of Treaties (1969), which concerns treat...