Authored By: Favour Amaechi
University of Nigeria Nsukka
Introduction
The case of Nicaragua v USA was decided by the International Court of Justice in 1986 and is one of the most fundamental cases in Public International Law and a cornerstone for international legal order . This landmark case was based on the principles of the use of force in relation to Article 2(4) and Article 51 of the UN Charter, customary international law, state responsibility and non-intervention. The case of Nicaragua v USA which was hinged on military and paramilitary actions in and against Nicaragua by the United States is a vital case that strengthened customary international, defined the scope of use of force in international law and reinforced state sovereignty.
Facts of the Case
Following the overthrow of the President Anastasio Somoza Debayle’s government in 1979 the Frente Sandinista de Liberacion Nacional (FSLN) government came into power. However, immediately the US recognized that the FSLN failed to comply with civil and human rights obligations under the Organization of American States (OAS) agreement, the US stopped its initial economic support to Sadinista government and alleged that the Nicaraguan government supported marxist guerrillas in El Salvador. In 1981, a rebel group known as ‘Contras’ who were opponents of the new Nicaraguan (Sandinista) government, started a guerrilla insurgency movement against the Nicaraguan government and carried out their operations from a base in the neighbouring territories of Hounduras and Costa Rica. This Contras group had received training, funding and assistance from the United States. In 1983 and 1984, the US through its CIA personnel, conducted mining activities in several Nicaraguan ports and it carried out attacks on oil installations, naval bases, its oil storage facilities. El Salvador, Costa Rica and Houndras claimed that Nicaragua’s military participated in military activities that aided rebels on their territories.
Nicaragua claimed that the US actions was an unlawful use of force on the Nicaraguan territory and an unlawful intervention in the internal affairs of the state. On 9th April 1984, Nicaragua through its Ambassador to the Netherlands filed an application at the Registry of the International Court of Justice, instituting proceeding against the United States in respect the military and para military activities carried out in and against the state. An application was also filed by the Republic of Nicaragua requesting for provisional measures.
Legal Issues
Issue 1: Whether the International Court of Justice had the jurisdiction to hear and decide the matter?
Issue 2: Whether the United States actions violated the prohibition of the use of force under Article 2(4) of UN Charter, Articles 18 and 20 of the Organization of American States, Article 8 of the Convention of Rights and Duties of States?
Issue 3:Whether the prohibition of the use of force under Article 2(4) and Article 51 of UN Charter, as well the principle of non-intervention exist as customary international law independently?
Issue 4: Whether the acts of the’ Contras’ group could be legally attributed the United States?
Issue 5: Whether the acts of the United States against Nicaragua amounted to collective self defense?
Arguments Presented
Nicaragua’s Argument
Nicaragua argued that the United States had violated the provision of the use of force and a customary international law provided for in Article 2(4) of the UN Charter which provides that all member states must refrain in their international relations from the threat of or the use of force against the territorial integrity or the political independence of another state.
It was argued that the United States violated the country’s sovereignty, the principle of non-intervention and that the conduct of the United States undermined the object and purpose of the 1956 Treaty of Friendship, Commerce and Navigation made between both parties and such amounted to a breach of that treaty. That the US had also violated Articles 18 and 20 of the Organization of American States, Article 8 of the Convention of Rights and Duties of States and Article I Third of the Convention concerning the Duties and Rights of Sates in the Event of Civil Strife.
Nicaragua further argued that the United States had withdrawn its economic aid to the country and used its influence in the Inter-American Development Bank and the International Bank for Reconstruction to the provision of loans to the country.
It was also argued by the Nicaraguan government through its first witness that Commander Carrion, Nicaragua’s first vice Minister of the Interior who was responsible for the state’s security that the Contras had been able to carry out those military operations against Nicaragua because the United States funded, trained and assisted the group by supplying them weapons, uniforms, communication equipment and training. It contended that the United States was in effective control of the contras and its aim was to overthrow the Nicaraguan government. It claimed that the Contras had carried out a wide range of attacks including torture, killing of civilians, killing of prisoners, rape and kidnapping.
United States Argument
The United States argued that the International Court of Justice lacked jurisdiction to try and hear the matter because the United Nations Charter as well as the Charter on the Organization of the American States were multilateral treaties and thus, not all parties to those treaties were present before the court.
The United States argued that it provided proportionate assistance to the third states when requested to do so and thus, relied on Article 51 of the UN Charter which provides for the right to inherent self defense by member states
It was argued by the United States that the Contras were not controlled by them nor agents of the US governments but where independents actors .
Court’s Reasoning and Analysis
The court relied heavily on customary international law relating to the prohibition of the use of force and non-intervention to base their jurisdictional power where its jurisdiction based on treaty was contested and limited in some way. Thus, the court stated that even if it could not rely on treaty jurisdiction, the prohibition on the use of force and the principle of non intervention exists independently as customary international law and so they could still rely on customary international law.
The court noted that the acts of the United States involving military actions, mining its harbour, attacking its ports, oil installations and oil storage facilities, violated the provision of the UN Charter on the use force.
The court found that activities of the contras were not generally attributable to the United States. That for the actions of the contras to be generally attributable to the United States, the State must exercise “effective control” over the specific operations of the contras and not just financing or general support. However, because the United States government actively participated in the supply of weapons to the contras and the recruitment of members of the contras, the violent actions of the contras against Nicaragua were attributed to the United States
The court also found that the United States had failed to establish a legal basis for its collective self defense claim because there was insufficient evidence to prove that Nicaragua was involved in an armed attack against the neighbouring states. The court also noted that the acts of the United States can not be called collective self defense because its actions defeated the criteria of necessity and proportionality. The court noted that even though Nicaragua had some form of involvement with the rebels in El Savaldor, its activities did not amount to an armed attack to the state or any neighbouring state. The United States also failed to report its actions to the UN Security Council as provided for Article 51 of the UN Charter and thus fails as self defense.
Judgement and Ratio Decidendi
On the use of force, the International Court of Justice held that the United States violated the provisions of the UN charter on the use of force, violated the principle of non-intervention and interfered with Nicaragua’s internal affairs thereby violating the country’s sovereignty.
On the issue of collective self defense, It held that the United States could not rely on collective self defense and was not applicable as US actions were not meet the criteria for necessity or proportion. It did not find any evidence that Nicaragua was involved in armed attack against El Salvador and thus, the actions of the United States
The court affirmed that the prohibition on the use of force and the principle of non-intervention exist independently as rules of customary international law. It also determined that the US were involved in the activities of the Contras and its actions were attributable to it.
The ratio decidendi is that the prohibition use of force under Article 2(4) of UN Charter and the principle of non intervention are rules of customary international law and are binding regardless of whether treaty obligations are applicable or not. The court established a high standard for the justification of the use of force It was also established that for the act of a non state actor to be attributable to another state that state must exercise “effective control” over the specific operations of that non state actor and not just mere financing or equipping.
The Court ordered the United States to immediately stop the attacks on Nicaragua and ordered reparations against the United States in favour of Nicaragua for the damage caused to the country.
Critical Analysis
The case of Nicaragua v United States is a foundational case that established several significant legal principles in international law.
It clarified the extent of the use of force and collective self defense which helps to checkmate the actions states against another state. It set strict conditions for a lawful self defense and emphasizes that a lawful self defense to exist, there must be a armed attack and the state affected must declare itself a victim of the attack. The self defense must be necessary to either stop further attacks or prevent more damage and it must be proportionate to the act previously done.
The court by rejecting Nicaragua’s argument where it claimed that all acts of the contras should be attributable to the United States, established a requirement of effective control and rejected a broader theory of attribution based only on financing, equipping, training or general influence.
The court by giving this judgement, surpassed the diplomatic pressure placed upon it to deliver an unbiased judgement. This case demonstrated that powerful states can also be held legally responsible for their wrongdoings under international law. It established that states who violate the rules of customary international law especially on the use of force and the principle of non intervention will be liable under international law.
The case however exposed the weakness of International Law with respect to judgement enforcement. After judgement was passed, the United States refused to pay the reparations due to Nicaragua and as well, blocked Nicaragua’s appeal to the UN Security Council and declared that it would not participate in any further proceedings relating to the case.
Conclusion
Nicaragua v United States remains a cornerstone of international law today. It clarified the scope on self defense used by states against another state and clarified the extent of the use of force. It serves as a solid foundation for international legal order and greatly emphasized state sovereignty.
The non compliance by the United States raises the issue of enforceability of court judgments under international law. How can we get the other party to effectively comply with the decisions of the court especially where it involves a powerful state with so much influence? This remains an unresolved issue under international law and the law must continue to evolve in order to find lasting solutions for this.
However, the decisions given in this landmark case established profound legal principles guiding international law today and remains a powerful reminder that sovereignty and non interference are necessary for maintaining international peace and security.
