Case Concerning Military and Paramilitary Activities In and Against Nicaragua

(Nicaragua v. United States of America)

Facts:

Nicaragua had initiated proceedings against the United States of America in the
International Court of Justice alleging that USA supported a mercenary army
‘Contras’ in attacking Nicaragua. Nicaragua stated that USA by using armed
forces violated their international obligations under the United Nations Charter,  it
was submitted by Nicaragua that the United States was violating the prohibition
of the use of force in international relations and the parallel rule on prohibition of
intervention. USA then opposed and contested the Court's jurisdiction and
decided not to appear before the Court in the proceedings on the merits. The
Court came to the conclusion that the United States' non-appearance did not
prevent it from giving a decision in the case.

The defense of the USA then was on the questions of the use of force and
collective self-defence raised in the case were not justifiable, the Court argued
that as a "legal dispute" the case did not necessarily involve it in evaluation of
political or military matters, but that the issues raised of collective self-defence
were legal questions which it had competence to determine. In the course of their
examination, the Court found it established that some incidents were directly
imputable to the United States such as in late 1983 or early 1984, the President
of the United States had authorized a U.S. Government agency to lay mines in
Nicaraguan ports; In early 1984 mines had been laid in or close to several ports
of Nicaragua, either in Nicaraguan internal waters or in its territorial sea or both,
and they had been laid by persons in the pay and acting on the instructions of the
U.S. agency.

As to the reverse factual allegations brought up by the United States in order to

justify its actions as an exercise of collective self-defence, the Court had to cope
with the difficulties created by the non-participation of the applicant side. There
was no evidential material presented by the United States in the proceedings on
the merits, and it was not easy to substantiate the alleged assistance of
Nicaragua to armed rebel forces operating in neighbouring countries.

Beginning with the question of the lawfulness of the use of force and the alleged
justification of the American actions under the right of self-defence, the Court
appraised the facts as proved by the available evidence to constitute
infringements of the principle of non-use of force, unless justified by
circumstances which exclude their uniawfulness. The laying of mines in the
internal waters and territorial sea of Nicaragua, the attacks on Nicaraguan ports,
oil installations and naval bases directly imputable to the United States, but also
the arming and training of the `contras' were judged by the Court to be a prima
facie violation of the prohibition of the use of force, unless these actions could be
justified as an exercise of the right of self-defence.

Furthermore, the Court found it to be clear that it is the State which is the victim
of an armed attack which must form and declare the view that it has been so
attacked. The Court stated that there is no rule in customary international law
permitting another State to exercise the right of collective self-defence on the
basis of its own assessment of the situation; what is always required is a formal
request by the State which is a victim of the alleged attack, a requirement mainly
deduced by the Court from Article 3 of the OAS Charter.

Issue:

Whether or not USA violated the rights of Nicaragua’s territory and its people and
the UN Charter upon using armed forces in intervening with a mercenary group
Ruling:

Yes, USA violated both UN Charter and Nicaragua’s right. The Principle of a
customary law then applies even in cases where a treaty norm and a customary
norm were to have exactly the same content, the Court did not see that as a
reason to judge the customary norm as being necessarily deprived of its
separate applicability.

The general rule of customary law prohibiting force allows for certain exceptions
was viewed as undisputed by the Court. Already the terms of Article 51 of the
United Nations Charter demonstrate that the State community starts from the
assumption that there exists an "inherent right" of self-defence based in
customary law which covers both collective and individual self-defence. In
defining, however, the specific conditions which may have to be met for its
exercise.

The Court decided that the United States is under an obligation to make
reparation for all injury caused to Nicaragua by the breaches of obligations under
customary law and the 1956 Treaty on Friendship, Commerce and Navigation,
and that the form and amount of such reparation, failing agreement between the
parties, will be settled by the Court, which reserved for this purpose the
subsequent procedure in the case.