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Nicaragua vs United States

International Law (Victoria University of Wellington)

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Nicaragua vs United States

Facts:

US invaded Nicaragua with a variety of military operations and funded the rebels or contra
that set up as opposition to the legitimate government of the time. Nicaragua argued that
the US was in control of the Contras and they were trying to overthrow the government of
N. Heavy involvement of the CIA and ironically stopped aid to the legitimate govt as it was
believed by the US that they were helping the guerrilla opposition forces.

There were multiple layers to this case. There were several preliminary and jurisdictional
hearings/judgements and this judgement is the merits judgement which discusses the actual
outcomes. The US refused to appear for the merits hearings but as it was present at the
earlier hearings jurisdiction was determined to be established and once established can’t be
withdrawn.

US argued that it was coming to the ‘collective self-defence’ of El Salvador.

Part of a series of issues being dealt with as part of the” Contadora Process”

Held:

First Issue: Jurisdictional Issues: United states tries several arguments suggesting ICJ has no
jurisdiction. The first four arguments failed especially since it had been a fully present party
up to this point. Implicit conduct argument, US participated in the proceedings re
jurisdiction (previous hearing) so therefore gave their consent to this process. Can’t argue
the court has jurisdiction only to declare It lacked jurisdiction.

No judgement by default: the court is required to treat the parties equally so it is not
advantageous to not turn up. They are still bound by the judgement and must accept the
consequences of their non-appearance. Court is not solely dependent on the parties
arguments.

Secondly, the US argued that the issue was not justiciable because it was not a ‘legal
dispute”. This did not appear to be a matter in dispute and in previous hearings has not
shown any indication that even the United states truly believed it was outside the scope of
which article 36 pertained.

Thirdly, The US tried to argue that their justification was collective self-defence and the
court did not have the tools to determine this question as it would have required necessity
and political and military matters. Court unimpressed, it does not have to discuss necessity
of intervention or evaluate military considerations.
First step did any attack occur
Secondly were the measures taken in self-defence (allegedly) a legally
appropriate ie proportionate response?

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Fourthly, there was consideration of the fact that the American consent has since been
terminated and along with the treaty of Friendship etc so therefore the court now has no
consent. As there was consent with the proceedings started held to have jurisdiction as
once established can’t be taken away.

Finally, US argued that their optional clause had a reservation in their consent to the ICJ,
that ICJ would not have jurisdiction in disputes that arose under a multinational treaty
unless they specifically consented or all parties that were ‘affected’ by the by the decision
were also parties to the case before the court. Consent of states important!!

The ICJ then asks the question are any third parties to multilateral treaties such as the UN
and the charter of the organisation of the American States are ‘affected by the judgment
and not party to the proceedings? US argued that El Salvador, Honduras and Costa Rica
would be affected. El Salvador argued that they had been attacked by N and the USA came
to their aid which requires the question of the US’s justification of their actions to be
ascertained which is a dispute that will affect a party that is not party to the current
proceedings. Broad interp of ‘affected’ can be positive or negative, consideration of the
ramifications of deciding against the US as that would affect El Salvador as they received
indirect aid from US to help attack N. These considerations are made at the merit stage.

US found to not accept jurisdiction of the ICJ in regards to multilateral treaty because it
would affect a 3rd party state.

Second Issue:
Did the US devise, direct, control and or provide direct combat support for the Contra?

US never entered Nicaragua so N had to argue agency arguments. There were

considerations re the timing of large offensives just after funding came from states. This was
held to not be conclusive evidence of US interference.

Did the US have control?

Early years the contra were held to be dependent on US aid. Degree of control the US had
affects their liability. The US overtly supported the Contra and planned a number of
military/paramilitary operations, CIA gave tactical directives and intelligence, air support.

Held that US supported but did not have the element of control needed to be considered to
‘directly intervene” or for the contra to be acting on US’s behalf.

The US largely financed, trained, equipped, armed and organised the FDN and this
assistance was essential to the pursuit of their terrorist/guerrilla activities but is insufficient
to show agency or complete dependence.

Contra’s had no autonomy and were just puppets of the United States?? (indicators for
attributing blame to US) N thought these was a foreign invasion not a domestic civil war.

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Reluctance of the court to ascribe legal responsibility to the US unless it could be showed
that they had effective control over the military or paramilitary operations when the human
rights abuses occurred.

United States only liable for their own conduct in regards to N and not that of the Contra.

Court questions: what other unlawful acts the US is directly responsible for? And was the US
aware of the human rights offences/war crimes?

Two manuals on psychological warfare- one definetly written by CIA and one on speculated
to be written by CIA. These were given to the contra. CIA inquiry: They were prepared to
“moderate the rebel’s behaviour” which implies that they knew of the human rights abuses.
Condoned assassination and killing of judges and hiring mercenaries. Against US executive
orders. CIA negligent and disorganised but not actively trying to violate laws. WTH???

Third Issue Customary Law.

Multilateral treaties are out so can’t use the UN Charter, big discussion about customary law
principles, are superseded by treaties or if they exist independently of each other, If they
are identical to principles in treaties does N even have a claim?

US tried to get the case thrown out at this point saying without the Charter etc they had no
law to work with. However, Principles are still binding even though they made be codified
and not identical to those codified so the Treaty process does not erode the customary law.

Different methods of interpretation and application, treaty versus custom thus should be
treated separately. They exist alongside each other. Treaty rule does not exclude all
customary rules relevant to that rule.

Charter not a complete code, does not define everything needed and thus can’t subsume
customary international law. UN Charter recognises customary law.

Customary law is valid but are both parties bound by the customary law? Need evidence of
both practice and psychological acceptance/belief. Can’t expect perfection but can allow
implicit acceptance by conduct.

Non use of threat or force

Long list of treaties/resolutions that both parties have ratified showing their acceptance of
wrongness of threat or use of force, sovergnity… declaration of friendly relations is popular
2625. ( this resolution also distinguished the severity of the use of force from armed attack
to less serious)

Jus cogens- fundamental overriding principle of international law.

Once the rule is respected or accepted/validated then it becomes a principle that is separate
from the Charter. Non intervention and non use of threats or forces are fundamental
principles of such law.

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If such principles are established, are there any exceptions to use of force?

Self Defence

Resolution 2526 above used again to validate right of self defence.

Elements: right of self defence only applicable if the victim of an ARMED attack
Response needs to be proportional to the threat.

Definition of an armed attack: regular armed forces across an international border, sending
by a state of mercenaries/armed groups who carry out acts of armed force to such an extent
as to amount to an actual armed attack conducted by regular forces.

Funding of rebels etc is not enough to be considered an armed attack. Provision of arms also
not enough.

If invoking collective self defence the state that would benefit from the protection would
need to have declared itself a victim and asked for help, ie El Salvador.

No reporting requirement of the state claiming collective self defence to an international

body unlike in the Charter. However, implication that no report can indicate lack of belief in
self defence justification by the state claiming it.

N not found to have committed an armed attack on El Salvador. Provision of arms not
sufficient. No evidence at the time of attacks by N that El Salvador or Honduras or Costa
Rica requested assistance of the states as a victim. (consider the conduct of the victim
states)

US justification’s failed and US guilty of violating the international law not to use
force/threats against another state.

Non Intervention
Court spends time looking for other justifications for American behaviour in context of
principle of non intervention.

Validation by the states: resolution 2625, and final act of the conference on security and co-
operation in Europe.

Coercion very essence of prohibited intervention into direct or indirect affairs of other
states.

US tried to argue that the right to request self defence came from the rebels themselves but
this would be absurd if the opposition to a legitimate government was able to request such
assistance internationally. Defeat the purpose of principle of non-intervention.

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US then suggested that its intervention into N was in response to N’s intervention into other
countries. This is not proportionate, needs to be an armed attack and you can’t include a
third state. No justification.

No general principle of intervention- would require a dramatic change to customary law

principle of non-intervention. America has never justified their behaviour by arguing they
had a new right of intervention. Again need practise and opinion juris.

US guilty of violating prohibition against non intervention of another state. Breached

sovereignty.

Assisting the contra wrong both under principle of non use of force and non intervention.

Territorial Sovereignty

Mines placed in N’s ports. Problematic for freedom of communication and maritime
commerce.

Interference with navigation prejudices both the sovereignty of the coastal state over its
internal waters and right of free access enjoyed by foreign ships.

Mines and US assistance of condra are breaches of principle of non use of force but also
N’s sovereignty over maritime expanses, and non intervention and interruption of
peaceful maritime commerce.

No justification for collective self defence here as there is no right for counter measures
under applicable international law.

Treaty of Friendship, Commerce and Navigation between N and US.

N wanted to argue that US had broken the treaty by their behaviour being contrary to the
purposes of the treaty and made it worthless.

duty to not act in a way to impede the performance of the treaty not in the treaty itself so
no jurisdiction. Court normally wouldn’t have jurisdiction but as it is part of larger case can
give judgement. N tried to argue it was a customary law principle.

There were two clauses that may have allowed the US’S behaviour: necessary for essential
security interests and regulating the production of arms/ammunition…

Couldn’t use customary law principles until the treaty interpretation has been resolved as
can’t use customary law if the issue was provided for in the treaty terms. Lex specialis.

Neither exception bars examination of N’s claims.

Court is unable to uphold N’s argument but makes a similar argument in that the US’s
actions have undermined the whole spirit of the bilateral directed to sponsoring friendship
between two states.

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Thus US breached its obligations under the above treaty Article XIX.

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