NICARAGUA VS UNITED STATES OF AMERICA

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BRIEF FACTS OF THE CASE –

The case is primarily concerned with the military and paramilitary activities conducted by the U.S. in and against Nicaragua.

The issue between the two countries began in 1979 when the government of President Samoza was replaced by a new government in Nicaragua. The supporters of the previous government opposed this new government and among these supporters, two major groups were responsible for carrying out armed activities against this new government of Nicaragua. These groups were known as contras

The U.S. initially was supportive of this new government, but later on, when it got to know that this new government was supporting and supplying weapons to the insurgents in El Salvador, the U.S. turned against this government of Nicaragua and also stopped its aid to Nicaragua.

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Later on, in 1981, Nicaragua publicly stated that the U.S. was planning to conduct some armed activities against it and also alleged that the two groups named as ‘contras’ were under the direct control of the U.S. and the U.S. was directly planning and directing their armed activities in and against Nicaragua. However, the U.S. also later on publicly acknowledged its support to contras which was initially a covert act.

Then, finally in 1984 Nicaragua applied ICJ whereby it accused the U.S. of conducting military and paramilitary activities against it and alleged the U.S. of violating the following treaty obligations:

(i) Article 2 (4) of the UN Charter

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(ii) Articles 18, Article 20 of OAS Charter

(iii) Article 8 of Convention on Rights and Duties of States

 

In addition to that, Nicaragua also alleged that the U.S. has violated the following obligations of Customary International Laws:

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(i) State should not use force against another state

(ii) State should not interfere in internal matters of another state

(iii) State should not harm citizens of another state

On receiving this application, ICJ restricted the U.S. from taking any further actions and stated that the sovereignty of Nicaragua must be respected.

However, U.S. rejected ICJ’s jurisdiction over the matter and stated that its use of force was justified as it falls within its inherent right of collective self-defense. So, now three main issues were to be addressed by the ICJ.

 

ISSUES –

  1. i) Whether ICJ had jurisdiction over the matter or not?
  2. ii) Whether the U.S. had violated the obligation of customary international laws by using force and interfering in the internal matters of Nicaragua?

iii) Whether the force used by the U.S. falls under the ambit of self-defense or not?

 

U.S.A’s RESPONSE –

Issue I –

The U.S. rejected ICJ’s jurisdiction over the matter by relying upon a reservation clause which it deposited on 6 April 1984. Referring to its 1946 Declaration, and providing that the declaration “shall not apply to disputes with any Central American State or arising out of or related to events in Central America”, U.S argued that the present matter doesn’t fall within the jurisdiction of the court. The reservation clause also restricts ICJ to apply treaty laws until all the states which will be affected by the decision of the court are parties to the case.

 

Issue II –

U.S opted out from the proceedings and refused to engage itself in the debate concerning the facts alleged by Nicaragua due to the absence of jurisdiction of ICJ over the matter and requested ICJ to remove the matter from the list.

Issue III –

The U.S. submitted that its use of force is justified because it used force to exercise its inherent right of collective self-defense. The U.S. stated that it exercised this right of collective self-defense for the benefit of El Salvador.

 

ICJ’s JUDGMENT –

1984 Judgment- 

It was predominantly about the jurisdiction of ICJ over the matter. ICJ held that it had jurisdiction over the matter.

However, it was outside the ambit of ICJ to apply treaty laws on this matter, because the USA had a multilateral reservation clause in their declaration which restricted ICJ to apply treaty laws until all the states which will be affected by the decision were parties to the case and in this case, El Salvador would also be affected by the judgment which was not a party to the case. So, therefore because of this reservation clause, ICJ can’t apply treaty laws. Treaty laws for that matter are laws like the UN Charter, Charter of ICJ. 

But the ICJ came up to say that this clause does not restrict it from applying other sources of international law to this case, such as customary international laws, and thus, ICJ relied on customary laws for deciding the matter.

1986 Judgment– 

The court rejected U.S. submission of exercising collective self-defense under Article 51 of the UN Charter which provides the inherent right to countries to engage in self-defense, including collective self-defense, against an armed attack. ICJ rejected this submission because as per art. 51 of the UN charter, to exercise collective self-defense by a state, there should be a request by another state which regards itself as a victim of an armed attack. In this case, the U.S. stated that it exercised its right of collective self-defense for the benefit of El Salvador. but El Salvador never requested assistance from the US and the US on its own continued to carry out military activities to best serve its interest & therefore the US could not justify its use of force to fall under the ambit of collective self-defense.

The U.S. was held guilty of violating the following obligations of customary international law-

(i) Not to intervene in the affairs of another State. Activities of the United States were aimed to overthrow the government established by law in Nicaragua, to substantially damage the economy of Nicaragua. The United States of America influenced contra forces to overthrow the present Government of Nicaragua and they were held guilty for it.  

(ii) Not to use force against another State. The U.S., by training, arming, equipping, financing, and supplying the contra forces or otherwise encouraging, supporting, and aiding military and paramilitary activities in and against Nicaragua, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law) US attack on Nicaragua ports, oil installations, and a Naval base

(iii) Not to violate the sovereignty of other states. The US laid mines close to ports in the territorial sea and internal waters of Nicaragua in 1984. The US carried out high altitude and low altitude aerial trespasses causing sonic booms which violated the sovereignty of Nicaragua as Sovereignty extends to internal waters, territorial sea, and airspace above its territory 

 

CONCLUSION –

This case is considered to be a landmark case because it contributed to developing the jurisprudence on Customary International Laws and also helps in understanding the relationship between the treaty laws and customary laws. ICJ while delivering the judgment stated that both treaty laws and customary laws exist independently and operate side by side. Even if a particular rule/principle of customary law is codified in a treaty, it will continue to operate independently and a party to that treaty will not only be bound by that treaty law but would also be bound by the obligations of the customary law and that’s exactly what happened in this particular case. In this case, ICJ could not apply the treaty laws because of the reservation of the U.S. but ICJ still applied the customary laws and held that the U.S. was liable for the violation of the Customary International Laws.


 

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