Nicaragua v - Summary Public International Law 1 PDF

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military and paramilitary activities judgement...

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Nicaragua v. United States Of America, Military and Paramilitary Activities

The Republic of Nicaragua v. The United States of America (1986) ICJ 1 is a public international law case decided by the International Court of Justice (ICJ). The ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua. The case involved military and paramilitary activities carried out by the United States against Nicaragua from 1981 to 1984. Nicaragua asked the Court to find that these activities violated international law. 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 United States refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. also blocked enforcement of the judgment by the United Nations Security Council and thereby prevented Nicaragua from obtaining any compensation. Nicaragua, under the later, post- FSLN government of Violeta Chamorro, withdrew the complaint from the court in September 1992 following a repeal of the law which had required the country to seek compensation. In the Nicaragua submission, they charged 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 and Article I, Third, of the Convention concerning the Duties and Rights of States in the Event of Civil Strife. Hence, the United States had breached international law by violating the sovereignty of Nicaragua which is by armed attacks against Nicaragua by air, land and sea, incursions into Nicaraguan territorial waters, aerial trespass into Nicaraguan airspace and efforts by direct and indirect means to coerce and intimidate the Government of Nicaragua. Moreover, they 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 and killing, wounding and kidnapping citizens of Nicaragua. So, 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. 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.

Therefore, it concluded there were 5 questions before the court to be discuss. Firstly, whether the United States violate 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 when it encouraged, supported, and aided the military and paramilitary activities against Nicaragua? The Court held that the prohibition on the use of force is found both in Article 2(4) of the Charter of the United Nations (UN Charter) and in customary international law. The United States violated the customary international law prohibition on the use of force when it laid mines in Nicaraguan ports. It also violated this prohibition when it attacked Nicaraguan ports, oil installations, and a naval base. The United States could only justify its action on the basis of collective self-defence, if certain criteria were met. Moreover, the United States violated the customary international law prohibition on the use of force when it assisted the contras by “organizing or encouraging the organization of irregular forces and armed band for incursion into the territory of another state” and participated “in acts of civil strife in another State” and when these acts involved the threat or use of force. Secondly, whether the United States violate its customary international law obligation not to use force against another State, when it directly attacked Nicaragua in 1983 and 1984 and when its activities in issue above resulted in the use of force? The Court further held that mere frontier incidents will not considered as armed attacks, unless, because of its scale and effects, it would have been classified as an armed attack had it been carried out by regular forces. Furthermore, assistance to rebels by providing weapons or logistical support did not constitute an armed attack. Instead, it can be regarded as a threat or use of force or an intervention in the internal or external affairs of other States In addition, under Article 51 of the UN Charter and under CIL self-defence is only available against a use of force that amounts to an armed attack . Therefore, the United states argument regarding self-defence will not accepted. Thirdly, whether the military and paramilitary activities that the United States undertook in and against Nicaragua can be justified as collective self-defence and presumed the activities on the basis of collective self-defence. Based on the issue above, the court had noted that Article 51 of the UN Charter sets out the treaty based requirements on the exercise of the right of self-defense. It stated that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council.” The Court held that Customary international law allows for exceptions to the prohibition on the use of force, which includes the right to individual or collective self-defence. The United States, at an earlier stage of the proceedings, had also agreed that the UN Charter acknowledges the existence of this customary international law right when it talks of the inherent right under Article 51 of the UN Charter. When a State claims that it used force in collective self-defence, the Court would examine the following issues which is whether the circumstances required for the exercise of self-defence existed and whether the steps taken by the State, which was acting in selfdefence, corresponds to the requirements of international law. Under international law, several requirements 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) That State must declare itself as a victim of an armed attack. The assessment on whether an armed attack had taken place or not, is done by the State who was subjected to the attack. A third State cannot exercise a right of collective self-defence based that third State’s own assessment; (3) In the case of collective self-defence, the victim State must request for assistance. The Court held that “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) A State that is attacked, does not, under customary international law, 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 Court held that “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”

The Court, then, looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica, and Honduras to determine if an armed attack was undertaken by Nicaragua against the three countries, which in turn would necessitate those countries to act in selfdefence against Nicaragua The Court noted that none of the countries who were allegedly subject to an armed attack by Nicaragua declared themselves as victims of an armed attack and they did not request assistance from the United States to exercise its right of self-defence.

Moreover, the United States did not claim that when it used force, it was acting under Article 51 of the UN Charter; and the United States did not report that it was acting in self-defence to the Security Council. The Court concluded that, based on the above, the United States cannot justify its use of force as collective self-defence. In any event, the Court held that the criteria relating to necessity and proportionality, that is required to be met when using force in self-defence were also not fulfilled. Thus, the United States had violates the custom international law. Fourth, whether the United States breach its customary international law obligation not to violate the sovereignty of another State, when it directed or authorized its aircrafts to fly over the territory of Nicaragua and because of acts referred to in second issue above? The Court found that the United States also carried out high-altitude reconnaissance flights over Nicaraguan territory and certain low-altitude flights, complained of as causing sonic booms. It held that a State’s sovereignty extends to its internal waters, its territorial sea, and the airspace above its territory. The United States violated customary international law when it laid mines in the territorial sea and internal waters of Nicaragua and when it carried out unauthorised overflights over Nicaraguan airspace by aircrafts that belong to or was under the control of the United States. Last but not least, whether the United States 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 in the territorial sea of Nicaragua? The Court examined evidence and found that in early 1984 mines were laid in or close to ports of the territorial sea or internal waters of Nicaragua “by persons in the pay or acting ion the instructions” of the United States and acting under its supervision with its logistical support. The United States did not issue any warning on the location or existence of mines and this resulted in injuries and increases in maritime insurance rates....