INDIAN INSTITUTE OF LEGAL STUDIES,

SUBJECT TOPIC -" CASE ANALYSIS OF NICARAGUA VS. UNITED STATE."

UNDER SUPERVISION OF
MS. DICHEN BHUTIA
ASSISTANT PROFESSOR OF LAW

SUBJECT:PUBLIC INTERNATIONAL LAW

SUBMITTED BY: GOURAB HAZRA

SEMESTER: 6th SEMESTER

COURSE: 3 YEAR LLB (CBCS)
REG. NO. : 19-0404
ROLL.NO. 211025040467
CLASS ROLL NO. : 94
SESSION: 2024 – 2025
 Acknowledgement

I would like to express my special thanks to our respected Ma’am, Ms. Dichen Bhutia,
Assistant professor of Law. IILS, Siliguri. Who have given me special opportunity to do this
wonderful project on the topic: “CASE ANALYSIS OF NICARAGUA VS. UNITED
STATE.”
I have come to know many new things about this topic which helped me to gain knowledge
and wisdom from this topic.

Date: 17/05/2023. Signature of the Faculty:

Place: Siliguri
 Table of Contents

I. Table of Cases
1. Introduction
2. Review of Literature
3. Statement of Problem
4. Formulation of Objectives
5. Formulation of Hypothesis
6. Research Questions
7. Conceptual Context
8. Analysis
9. Conclusion
10. Limitations
11. Bibliography
 Table of Cases

Case OverviewType of case: Inter-StateState Parties: Nicaragua, United States of

AmericaInstitution Name- ICJ (International Court of Justice)Citation: Military and
Paramilitary Activities in and against Nicaragua (The Republic of Nicaragua V. The United
States of America), 1986 I.C.J. 14Date of introduction: 9 April 1984Date of judgment
(jurisdiction): 26 November 1984Date of judgment (merits): 27 June 1986Judges: Nagendra
Singh, Guy Ledreit de Lacharrière, Roberto Ago, Mohammed Bedjaoui, Taslim Olawale
Elias, Manfred Lachs, Kéba Mbaye, Ni Zhengyu, Shigeru Oda, José María Ruda, Stephen
Schwebel, José Sette-Camara, Robert Jennings, Claude-Albert Colliard (ad hoc)Status of
case: ConcludedBackground and brief facts This case was about the military activities which
were conducted directly, or with the help of the United States.
In 1909, the United States of Americas’ military and marine rule deposed the President of
Nicaragua and established their rule by occupying the territory of Nicaragua.
A Pro-US government was constituted which led to the formation of several treaties between
the two States. These treaties gave exclusive rights and privileges of trade, transport,
commerce, and access of Nicaragua to the United States. This led to a rebellion in Nicaragua
between 1927 to 1934 which resulted in forcing the United States to leave Nicaragua while
withdrawing the marines.
Somoza, who was the head of the Nicaraguan National Guard was instated as the head of the
State by the United States. He later ended up becoming the dictator of Nicaragua.
In 1972, an earthquake occurred in Nicaragua, which led to large-scale destruction in the
country. After the earthquake of 1972, the Sandinista (FSLN) Movement was seen rising. The
purpose of this movement was to provide support to the affected people, regardless of their
position in society. This Movement later ended up transcending to a rebellion against the
Somoza governed dictatorship rule of the Country.
This threatened the control of the United States over Nicaragua. As a consequence, the United
States stopped its aid to Nicaragua around April 1981, and later in September 1981,
Nicaragua claimed that the United States decides to plan and undertake activities directed
against the country. This was followed by armed activities being conducted against the
government which was formed in Nicaragua. These activities were mainly carried on by FDN
(Fuerza Democratica Nicaragüense) and ARDE (Alianza Revolucionaria Democratica). The
former operated along the border of Honduras and the latter along the border of Costa Rica.
Later they resorted to the formation of Contras. Contras was a rebel group formed for the
purpose of suppressing the Sandinista (FSLN) Movement and continuing with the
dictatorship rule. This was still covert support.
Alas, Contras lost and the involvement of the United States by way of supporting the
organization led to the violation of the sovereignty of Nicaraguan, the government of
Nicaraguan filed a claim before the International Court of Justice against the United States.
Issues raised and arguments presentedWhether the International Court of Justice had the
jurisdiction to try and adjudge the matter?
The US claimed that the International Court of Justice had no jurisdiction to try and adjourn
the matter as the UN Charter and the Charter on the Organization of the American States are
multi-lateral treaties and an essential element to try a case as such is that all members of the
treaty are parties to the case. Given the absence of other members, the United States claimed
that the International Court of Justice doesn’t have jurisdiction in the present matter.
The United States also claimed that the provisions invoked by Nicaragua have been reserved
by them and so the International Court of Justice is not competent to pass any judgment based
on them.
Whether the support by the United States to the Contras amount to interference with the
sovereignty of Nicaragua?
Nicaragua argued that the role that the United States played by giving rise to Contras and
assisting them directly to suppress the Sandinista (FSLN) Movement was a clear intervention
in the internal affairs of the country and hence in violation of the Convention on the Rights
and Duties of the States.
Apart from this, Nicaragua also claimed that the attacks done by the United States by way of
land, air, and sea where a violation of the International Laws of Land and Seas. It was an act
of aerial trespass which violated several international laws and treaties
Whether the United States has violated Article 2 of the UN Charter, Articles 18 and 20 of the
Charter on the Organization of the American States, and Article 8 of the Convention on the
rights and duties of the States?
The argument raised by Nicaragua was that the United States had recruited, trained, and
equipped the recruits with arms to cause disruptions and stir up violence in Nicaragua. This
was a clear violation of Article 2(4) of the U.N. Charter as the members were refrained to use
force against the political independence and territorial integrity of any State. The United
States government had taken unauthorized military actions against Nicaragua and since this
was not an act of self-defense, it was a clear violation of Article 18 and 20 of the Charter on
the Organization of the American States.
The United States also pled self-defense to surpass the accusation of violating Article 18 of
the Charter on the Organization of the American States.
Rule of Law
The following are the laws that were claimed to have been violated by the United States.
Article 2 of the UN Charter
All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.
Article 18 of the Charter on the Organization of the American States
The American States bind themselves in their international relations not to have recourse to
the use of force, except in the case of self-defense in accordance with existing treaties or in
fulfillment thereof.
Article 20 of the Charter on the Organization of the American States
All international disputes that may arise between the American States shall be submitted to
the peaceful procedures set forth in this Charter, before being referred to the Security Council
of the United Nations.
Article 8 of the Convention on the Rights and Duties of the States
No state has the right to intervene in the internal or external affairs of another.
Judgment
This was a 142-page judgment, containing 291 points of the verdict. The arguments put forth
by the United States regarding multilateral treaty reservations were valid. This made it
difficult for the Court to depend upon the UN Charter. So, the court ended up developing a
significant jurisprudence on customary international law.
The Court in passing this judgment observed that:
There did exist a direct relationship between members of Contras and the United States
government.The United States government was in fact directly involved in recruiting and
supplying arms to members of Contras which lead to violence being provoked in
NicaraguaThe United States government did commit illegal trespass by way of marines and
armed forces resulting in violation of the laws of Sea and AirSufficient evidence has been
found to conclude that the sovereignty of Nicaragua was hampered directly by the acts done
by the United States government.The claim of self-defense was rejected as it lacked merit.
The International Court of Justice held that the United States is liable for the violation of
several international treaties and customary international laws. It was ordered to withdraw
support from Contras and put an end to the attacks on Nicaragua. The court also ordered
reparations against the United States.
It was also observed that the independent nature of treaty law in comparison to the existence
of customary laws.
A controversial aspect of this judgment was the definition given of armed attack.
The court held that an armed attack includes action taken by an armed force beyond the
international border and sending any groups of people to carry out acts of armed force against
another state.
This part of the judgment closely resembles Article 3(g) of the UNGA Resolution 3314
(XXIX) on the Definition of Aggression
This judgment is set based on the customary international laws on matters relating to the
elements which are necessary to establish customary international laws, the relationship
between customary law and treaty law, and lastly, using force and non-intervention.
In spite of the multilateral treaty reservations, the court ended up relying on the multilateral
treaties which helped determine the customary international laws. The court goes into great
detail to establish the relationship between the treaty and international laws.
Conclusion
When the court decided to apply customary law in its decision, the burden fell upon the court
itself to make sure that the rules of customary law were relevant to the present case. To
conclude that it was in fact a customary law, opinio juris and state practice had to be
established.
The court observed that opinio Juris was easily established by looking at the General
Assembly resolutions passed. But what lacked in the judgment was the presence of state
practice. It was a common belief by many scholars that establishing state practice was more
essential than opinio juris. It is only after State Practice was established beyond reasonable
doubt that Opinio Juris would even be considered.
The Court while justifying their decision stated that the conduct of the States should be
consistent with the established rules and any inconsistent behavior should be treated as a
breach of that rule and not the formation of a new rule. So, a general consent of member
states is enough to establish opinio juris.
This opinion made this judgment a landmark judgment as it went against common practice
and belief.
This was a blow on the United States government. The court in passing this judgment crossed
all the restrictions that were placed against it and surpassed all the diplomatic pressure that
was being put upon it because the United States is a global dominator. This is considered to
be a major achievement for the court because it was able to surpass the pressure to deliver an
unbiased decision.
A notable fact that I’d like to highlight is that the dissenting opinion given by Judge Schwebel
was twice as long as the actual judgment.
Where the judgment was celebrated by many, it was barely an achievement. This case also
highlights the weakness of international law as after the judgment was passed by the United
States refused to pay the reparations to Nicaragua and withdrew its declaration of compulsory
jurisdiction. The United States also blocked Nicaragua’s appeal to the UN Security
Council.On 18 January 1985, the United States even announced that it had no intention to
participate in any further proceedings relating to this case.
So, regardless of the landmark nature of the judgment, there was a lack in the implementation
of the order and there isn’t really anything that can be done about it.

INTRODUCTION

The Nicaragua case is widely regarded as a landmark decision of the International Court of
Justice, featuring innovative reasoning on the genesis and observance of customary
international law rules, seminal conclusions on the application of Article 51 of the ICJ on the
use of force, as well as on a nation's fundamental right to self-defence. A plethora of scholarly
articles on the Nicaragua v. United States (Merits) case, replete with cerebral expositions on
the consequences of the judgment for public international law and the principles that govern
international treaties, have been produced. For this essay, the focus will be on the State's
actions and compliance with the principles of customary international law, evaluating these
principles while noting the implications of the ICJ's
 ANALYSIS

ANALYSIS OF THE NICARAGUA CASE AND ITS RAMIFICATIONS FOR

CUSTOMARY INTERNATIONAL LAW
The Nicaragua case marks a pivotal starting point for any discussion on the emergence of the
modern customary rule. The ICJ ruling in the Nicaragua case rested upon the bedrock of
customary international law standards. Specifically, the case concerned the United States'
military and paramilitary actions against Nicaragua between 1981 and 1984, following which
the Nicaraguan government appealed to the ICJ to declare the US's actions in violation of
international law.
The crux of the matter was that President Somoza's government was ousted in July 1979,
paving the way for an administration established by the Frente Sandinista de Liberacion
Nacional (FSLN). However, supporters of the former government and National Guard
members opposed the new government. The US initially backed the new administration but
shifted its stance upon learning that the Nicaraguan government was providing logistical
support and weaponry to the El Salvadoran insurgents. Nicaragua contended that the US had
organized and implemented measures against it, and that two groups had carried out armed
actions against the new government. The first group, Fuerza Democratica Nicaragüense
(FDN), operated along the border with Honduras, while the second group, Alianza
Revolucionaria Democratica (ARDE), operated along the Costa Rican frontier. Early US
funding for these anti-government groups (dubbed "contras") was clandestine. Nicaragua
further maintained that the United States had effective control over the contras and had both
developed and tactically directed their strategy and finances. Additionally, Nicaragua claimed
that the United States military had carried out direct strikes against it with the intent of
toppling its government. Strikes against Nicaragua included bombing its oil infrastructure,
ports, and naval station, while US planes flew over the country gathering intelligence,
delivering supplies to the contras on the ground, and intimidating the populace.
The US refused to recognize the ICJ's jurisdiction to decide the issue, and as a result, did not
appear before the ICJ during the merit stages. Throughout the jurisdictional proceedings, the
US claimed that it had acted in response to Nicaragua's aggression against Costa Rica,
Honduras, and El Salvador based on an inherent right of collective self-defense established
by Article 51 of the UN Charter. (Nicaragua v. United States (Merits), paras 126, 128).
However, in its final judgment on the merits, the ICJ held that the US had violated its
customary international law obligation not to intervene in the affairs of another state (paras
191-201) when it financed, armed, and trained the contra forces (para 227), aided, supported,
and encouraged the paramilitary and military activities against Nicaragua (paras 195, 230),
and attacked Nicaragua directly in 1983 and 1984 (see paras. 187 – 201 of the Judgment).
The Court also found that when the US ordered or permitted its aircraft to fly over
Nicaragua's territory and placed mines in its interior and territorial waterways, the US
violated its customary international law obligation not to infringe on another state's
sovereignty.
The ICJ decision validated the application of the traditional bi-partite doctrine to determine
the existence of an international customary rule or obligation, as stated in para. 183: "The
Court has to next consider what are the rules of customary international law applicable to the
present dispute. For this purpose, it has to direct its attention to the practice and opinio juris
of States."
Charlesworth (1984-87) posited that the Court's judgment lacked application of the bi-partite
doctrine and empirical enquiry into state practice. He contended that the Court's
determination of the US's breach of customary international law did not necessarily negate
the existence of an international customary norm, especially if the inconsistent state practices
were treated as violations of the rule. Kirgis (1987), despite the lack of state practice
supporting the alleged normative standards, emphasized that the Court's reliance on these
prescriptive standards established customary international law principles barring the use of
force.
In paragraph 186 of its decision, the ICJ acknowledged that the application of the rules in
question might not have been perfect, but it did not believe that the practice must be in
rigorous conformity with the rule for a customary norm to be established. Rather, the Court
deemed it sufficient that state conduct should generally be consistent with such rules, and
instances of inconsistent conduct should generally have been treated as breaches rather than
indications of the recognition of a new rule. The Court confirmed that a State's conduct prima
facie incompatible with a recognized rule but defended by appealing to exceptions or
justifications within the rule itself confirmed rather than weakened the rule's significance.
Although some jurists disputed the logic of the Nicaragua case, arguing that it contained no
verifiable evidence of the Court's theory on customary law rules and obligations, modern
international law jurists agree that a customary international law rule accepted by a
substantial number of nations is binding on all other states (Guggenheim, 1950; Kelsen,
2004; Arajarvi, 2016). Cassese (2016) emphasized that customary international law does not
emerge through a purposeful legislative procedure like municipal laws but rather as a
byproduct of states' behavior in international relations. Thirlway (2019) posited that the rules
of customary international law can be considered as a "tacit agreement" by which States, by
behaving in specific ways toward one another, agree to be guided by them in the future and to
be legally bound by them.
It is worth noting that many international law principles and standards entail state pledges to
refrain from specific activities in their relations with other nations. The respect of sovereignty
concept requires states to desist from any action that violates another state's sovereignty. The
principle of non-interference in the internal affairs of another country binds every state,
thereby requiring them to refrain from meddling with another State's internal affairs.
On the other hand, Professor Verdross (1966) held a different view on this issue. He posited
that international customary law could only be interpreted by the consent of States if a
practice proving the existence of a rule of international law comprised the acts of every state
bound by the Rule of Customary Law or if a State's rule of customary law is only binding
when that State has participated in it. Verdross further noted that since customary
international law rules are binding on any State, it must be shown by their actual behavior to
demonstrate that all States have accepted these customary international law rules. Essentially,
Verdross emphasized that international law must represent the reality of generally recognized
State behavior, not just a narrow rule applying to a few nations.
 CONCLUSION

In contemporary times, the legal notion of custom in international law has evolved to its most
widely accepted definition, as found in Article 38(1) of the ICJ Statute (b). It is now
commonly acknowledged that international customary law is a legally binding source of
international law, recognized by governments worldwide. The binding nature of customary
law is evident through its consistent application by both international and national courts and
tribunals. The Permanent Court of International Justice (PCIJ) and the International Court of
Justice (ICJ) have both affirmed the two fundamental components of custom: state practice or
the objective element, and opinio juris or the subjective element. While the idea that a
conventional norm of international law binds states juridically, irrespective of their
recognition or approval of such a norm, has been challenged, particularly in the Nicaragua
case, proponents and opponents of opinio juris have advanced similar arguments.
In conclusion, it is critical to highlight that the notion that customary international law rules
recognized by a significant number of states are universally enforceable is not only
misguided but also problematic in modern international law. Such a concept may be
employed to justify the imposition of certain rules by a handful of states upon others. It is
pertinent to note that customary international rules created by democratic western societies
may not necessarily be acceptable to all Asian and African states. It is customary to establish
the presence of universally acknowledged international law rules by examining universal
practice and recognizing it as a rule of law. The number of states that have accepted such a
rule of law is also considered. While it may be assumed that recognition by several state
governments provides a basis for widespread acceptance, this is merely an assumption and
not a conclusive verdict.