Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua

v. US, ICJ Reports, June 27,1986)

Facts:

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 meet armed opposition from supporters of the former Somoza Government and ex-members
of the National Guard. The US – initially supportive of the new government – changed its attitude when,
according to the United States, it found that Nicaragua was providing logistical support and weapons
to guerrillas in El Salvador. In April 1981 it terminated United States aid to Nicaragua and in September
1981, according to Nicaragua, the United States “decided to plan and undertake activities directed
against Nicaragua”.

The armed opposition to the new Government was conducted mainly by

(1) Fuerza Democratica Nicaragüense (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 US support to these groups fighting against the Nicaraguan Government
(called “contras”) was covert. Later, the United States 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 United States is effectively in control of the contras, the United
States devised their strategy and directed their tactics and that they were paid for and directly controlled
by United States personal. Nicaragua also alleged that some attacks were carried out by United
States 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 aircrafts belonging to the United States flew over Nicaraguan territory to gather
intelligence, supply to the contras in the field and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after refusing to accept the ICJ’s
jurisdiction to decide the case. The United States at the jurisdictional phase of the hearing, however,
stated that it relied on an inherent right of collective self-defense guaranteed in A. 51 of the UN Charter
by “providing, upon request, proportionate and appropriate assistance…” to Costa Rica, Honduras and
El Salvador in response to Nicaragua’s alleged acts aggression against those countries (paras. 126,
128).

Issue:

1. W/N the United States 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?

Held:

The International Court of Justice held that the United States violated the above-mentioned customary
international laws.
The Court held that the United States could not justify its military and paramilitary activities on
the basis of collective self-defense.
PUBLIC INTERNATIONAL LAW A.Y. 2016-2017
Atty. Ryan Mercader 2K
61
  Customary international law allows for exceptions to the prohibition on the use of force –
including the right to individual or collective self-defense. The United States, at an earlier stage
of the proceedings, had asserted that the Charter itself acknowledges the existence of this
customary international law right when it talks of the “inherent” right of a State under Article 51
of the Charter (para.193).

 When a State claims that it used force in collective self-defense, the Court would look into two
aspects:

(1) whether the circumstances required for the exercise of self-defense existed and

(2) whether the steps taken by the State, which was acting in self-defense, corresponds to the
requirements of international law (i.e. did it comply with the principles of necessity and
proportionality).

 Several criteria must be met for a State to exercise the right of individual or collective self-
defense:

(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-defense based its (the third State’s) own assessment]; and

(3) In the case of collective self-defense – the victim State must request for assistance (“there is no rule
permitting the exercise of collective self-defense 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 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 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-defense”

“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-defense 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-defense
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-defense 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-defense is advanced as a justification

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017

Atty. Ryan Mercader 2K
62
 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-defense.”

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-defense (paras 230 – 236). The Court referred to statements made by
El Salvador, Costa Rica, Honduras and the United States 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 United States in self-defense – at the time
when the United States was allegedly acting in collective self-defense; and (2) the United States 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. The Court concluded that the United States cannot justify its use of force as
collective self-defense.

The criteria with regard to necessity and proportionality, that is necessary when using force in self-
defense – was also not fulfilled.

PUBLIC INTERNATIONAL LAW A.Y. 2016-2017

Atty. Ryan Mercader 2K
63