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Case: Nicaragua vs United States

Case: Case Concerning the Military and Paramilitary Activities In and Against
Nicaragua (Nicaragua vs United States) (Merits:focusing on matters relating to the use of
force and self-defense)
Year of Decision: 1986
Court: ICJ
Overview: The case involved military and paramilitary activities conducted by the US against
Nicaragua from 1981 to 1984. Nicaragua asked the Court to find that these activities
violated international law.
Facts of the Case:
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 exmembers 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 Nicaragense (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.
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.
Relevant Findings of the Court:
The US breached its customary international law obligation not to use force
against another State: (1) when it directly attacked Nicaragua in 1983 1984; and
(2) when its activities with the contra forces resulted in the threat or use of force. See
paras 187 -201.
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 selfdefence).

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 strifein
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)
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 bands, groups,
irregulars or mercenaries, which carry out acts 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 [the second
point is taken from Article 3 (g) of the UNGA Resolution 3314 (XXIX) on the Definition of
Aggression].

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 interna1 or external affairs of other States (see
para 195, 230).

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 (para 211).

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 selfdefence:

(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 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 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).
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 the United Nations Charter, by which
the State claiming to use the right of individual or collective self-defence must report to an
international body, empowered to determine the conformity with international law of the 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 178 and
188), a principle enshrined in a 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-defence 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 advanced 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 a
report may be one of the factors indicating whether the State in question was itself convinced that it
was acting in self-defence (emphasis added)(See also paras 232 -236).
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.

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, is particularly obvious in the case of an intervention which uses force, either in the
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 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).


While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a
lesser degree of gravity cannot as the Court has already observed (paragraph 21 1 above). produce
any entitlement to take collective countermeasures involving the use of force. The acts of which
Nicaragua is 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 countermeasures taken by 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 waters of Nicaragua and its
territorial sea.
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, territorial sea and the air space above its territory. The US
violated CIL when it laid mines in the territorial sea and internal waters of Nicaragua and when it
carried out unauthorized overflights over Nicaraguan airspace by aircrafts belong to or under the
control of the US.