NICARAGUA VS THE UNITED STATES:
USE
OF FORCE AND SELF-DEFENSE
INTRODUCTION :
Before starting the discussion about the
facts , background , and nature of the disputes let us take a short glimpse of
both parties;
Firstly lets talk about NICARAGUA ,
republic of Nicaragua is a central American country with an estimated
population of about 6.466 million (2018) and official language is Spanish .
And the second concerning party is the
united states of America , it is mostly located in central north America
comprises of 50 states and population of
about 328 million (2019).
Lets move towards our main topic,
This Case Concerning the Military and Paramilitary Activities
In and Against Nicaragua
(Nicaragua vs United States) 1986.
This case has been regarded as a landmark case in the history of
international law that opens the gate for debates in a new direction.
OVER VIEW :
This case involved military and
paramilitary activities carried out by the United States against
Nicaragua from 1981 to 1984. Nicaragua asked International court of
justice to find that these activities violated international law.
CASE FACTS :
There
was a change of government took place in Nicaragua in 1979 , new government was
formed by FSLN (Frente Sandinista de Liberacion Nacional) ,and the new
government fased rigorous opposition
from the supporters of the former president SOMOZA and former members of the
national guards.
Initially the US supports the newly
formed government but in 1981 USA changed its attitude and according to USA the
reason behind this is that Nicaragua was providing logistical support and
weapons to guerrillas in El Salvador .the United States stopped its aid to
Nicaragua and according to nicargua’s alligation “decided to plan and undertake
activities directed against Nicaragua”.
Initial US support to these groups
fighting against the Nicaraguan Government (called “contras”) was covert.
Later, the United States officially acknowledged its support.
Nicaragua also alleged that contras were paid for and directly
controlled by the United States and that some attacks against Nicaragua were
carried out, directly, by the United States military – with the aim to
overthrow the Government of Nicaragua. Attacks against Nicaragua included ;
+ the mining of Nicaraguan ports
+ attacks on ports
+attacks on oil installations
+attack naval base.
+ killing citizens of nicaragua
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 refused to accept 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-defence
guaranteed in A. 51 of the UN Charter when it provided “upon request proportionate
and appropriate assistance” to Costa Rica, Honduras, and El Salvador in
response to Nicaragua’s acts of aggression against those countries s.
To solve this conflicts International court of justice start
finding the answers to the following questions ;
1-Did the United States violate its customary international law
obligation not to intervene in the affairs of another state by supporting the
contra forces in and against Nicaragua?
2-Did the United States violate its customary international law
obligation not to use force against another State by allegedly attack
Nicaragua?
3-Can the military and paramilitary activities that the United
States undertook in and against Nicaragua be justified as collective
self-defence?
4-Did the United States breach its customary international law
obligation not to violate the sovereignty of another State?
5-Did the United States breach its customary international law
obligations not to violate the sovereignty of another State, not to intervene
in its affairs, not to use force against another State and not to interrupt
peaceful maritime commerce, when it laid mines in the internal waters and in
the territorial sea of Nicaragua?
Decision of
the court :
The judgment first listed 291 points, among them that the
United States had been involved in the "unlawful use of force". The
alleged violations included attacks on Nicaraguan facilities and naval vessels,
the mining of Nicaraguan ports, the invasion of Nicaraguan air space, and the
training, arming, equipping, financing and supplying of forces (the
"Contras") and seeking to overthrow Nicaragua's Sandinista
government. This was followed by the statements that the judges voted on.
On June 27, 1986, the Court made the following
ruling:
The Court
1.
Decides that in adjudicating the dispute
brought before it by the Application filed by the Republic of Nicaragua on 9
April 1984, the Court is required to apply the "multilateral treaty
reservation" contained in proviso (c) to the declaration of acceptance of
jurisdiction made under Article 36, paragraph 2, of the Statute of the Court by
the Government of the United States of America deposited on 26 August 1946;
2.
Rejects the justification of collective
self-defense maintained
by the United States of America in connection with the military and
paramilitary activities in and against Nicaragua the subject of this case;
3.
Decides that the United States of America, 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 not to
intervene in the affairs of another State;
4.
Decides that the United States of America, by
certain attacks on Nicaraguan territory in 1983–1984, namely attacks on Puerto
Sandino on 13 September and 14 October 1983, an attack on Corinto on 10 October
1983; an attack on Potosi Naval Base on 4/5 January 1984, an attack on San Juan
del Sur on 7 March 1984; attacks on patrol boats at Puerto Sandino on 28 and 30
March 1984; and an attack on San Juan del Norte on 9 April 1984; and further by
those acts of intervention referred to in subparagraph (3) hereof which involve
the use of force, has acted, against the Republic of Nicaragua, in breach of
its obligation under customary international law not to use force
against another State;
5.
Decides that the United States of America, by
directing or authorizing over Rights of Nicaraguan territory, and by the acts
imputable to the United States referred to in subparagraph (4) hereof, has
acted, against the Republic of Nicaragua, in breach of its obligation
under customary international law not to violate the sovereignty of
another State;
6.
Decides that, by laying mines in the internal
or territorial waters of the Republic of Nicaragua during the first months of
1984, the United States of America has acted, against the Republic of
Nicaragua, in breach of its obligations under customary international
law not to use force against another State, not to intervene in its affairs,
not to violate its sovereignty and not to interrupt peaceful maritime commerce;
7.
Decides that, by the acts referred to in
subparagraph (6) hereof the United States of America has acted, against the
Republic of Nicaragua, in breach of its obligations under Article XIX of the
Treaty of Friendship, Commerce and Navigation between the United States of
America and the Republic of Nicaragua signed at Managua on 21 January 1956;
8.
Decides that the United States of America, by
failing to make known the existence and location of the mines laid by it,
referred to in subparagraph (6) hereof, has acted in breach of its obligations
under customary international law in this respect;
9.
Finds that the United States of America, by
producing in 1983 a manual entitled 'Operaciones sicológicas en guerra de guerrillas', and
disseminating it to Contra forces, has encouraged the commission by them of
acts contrary to general principles of humanitarian law; but does not
find a basis for concluding that any such acts which may have been committed
are imputable to the United States of America as acts of the United States of
America;
10. Decides that the
United States of America, by the attacks on Nicaraguan territory referred to in
subparagraph (4) hereof, and by declaring a general embargo on trade with
Nicaragua on 1 May 1985, has committed acts calculated to deprive of its object
and purpose the Treaty of Friendship, Commerce and Navigation between the
Parties signed at Managua on 21 January 1956;
11. Decides that the
United States of America, by the attacks on Nicaraguan territory referred to in
subparagraph (4) hereof, and by declaring a general embargo on trade with
Nicaragua on 1 May 1985, has acted in breach of its obligations under Article
XIX of the Treaty of Friendship, Commerce and Navigation between the Parties
signed at Managua on 21 January 1956;
12. Decides that the
United States of America is under a duty immediately to cease and to refrain
from all such acts as may constitute breaches of the foregoing legal
obligations;
13. Decides that the
United States of America is under an obligation to make reparation to the Republic
of Nicaragua for all injury caused to Nicaragua by the breaches of obligations
under customary international law enumerated above;
14. Decides that the
United States of America is under an obligation to make reparation to the
Republic of Nicaragua for all injury caused to Nicaragua by the breaches of the
Treaty of Friendship, Commerce and Navigation between the Parties signed at
Managua on 21 January 1956;
15. Decides that the form
and amount of such reparation, failing agreement between the Parties, will be
settled by the Court, and reserves for this purpose the subsequent procedure in
the case;
16. Recalls to both
Parties their obligation to seek a solution to their disputes by peaceful means
in accordance with international law.
Response
Of United States :
The United States
refused to participate in the merits phase of the proceedings, but the Court
found that the US refusal did not prevent it from deciding the case. The Court
also rejected the United States defense that its action constituted collective
self-defense. The United States argued that the Court did not have
jurisdiction, with U.S. ambassador to the United Nations Jeane Kirkpatrick
dismissing the Court as a "semi-legal, semi-juridical, semi-political
body, which nations sometimes accept and sometimes don't."
The United States had
signed the treaty accepting the Court's decision as binding, but with the
exception that the court would not have the power to hear cases based on
multilateral treaty obligations unless it involved all parties to the treaty
affected by that decision or the United States specially agreed to
jurisdiction. The court found that it was obliged to apply this exception and
refused to take on claims by Nicaragua based on the United Nations Charter and
Organization of American States charter, but concluded that it could still
decide the case based on customary international law obligations with 11-4
majority.
After five vetoes in
the Security Council between 1982 and 1985 of resolutions concerning the
situation in Nicaragua , the United States made one final veto on 28 October
1986 (France, Thailand, and United Kingdom abstaining) of a resolution calling
for full and immediate compliance with the Judgement.
When a similar but
crucially non-binding resolution was brought before the United Nations General
Assembly on 3 November it was passed. Only El Salvador and Israel voted with
the U.S. against it. El Salvador's ruling junta was at that time receiving
substantial funding and military advisement from the U.S., which was aiming to
crush a Sandinista-like revolutionary movement by the FMLN. In spite of this
resolution, the U.S. still chose not to pay the fine.
Conclusion :
The court
concluded that USA was subject of
ICJ’S jurisdiction , the United States
refused to comply and denied to pay any thing ,
the above stated article is a brief summary of the case.
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