THE REPUBLIC OF NICARAGUA V. THE UNITED STATES OF AMERICA OVERVIEW:
The case involves violation of customary international law. On April 9, 1984, the Republic of Nicaragua submitted a complaint to the International Court of Justice (ICJ), alleging that the United States was using military force against Nicaragua in violation of International Law. The ICJ ruled in favor of Nicaragua Nicaragua and against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had violated international violated international law by supporting the Contras the Contras in their rebellion against the Nicaraguan government and by mining by mining Nicaragua's harbors. The Court found in its verdict that the United States was "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", sovereignty" , "not to interrupt peaceful maritime commerce", and "in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua at Managua on 21 January 1956." FACTS OF THE CASE:
The dispute between Nicaragua and the United States concerns events in Nicaragua subsequent to the fall of the Government of President Anastacio Somoza Debayle in Nicaragua in July 1979, and activites of the US Government in relation to Nicaragua since that time. Then, a Junta of National Reconstruction and an 18-member government were installed by the Frente Sandinista de Liberacion Nacional (FSLN). The latter had initially an extensive share in the new government. Certain opponents of the new government, primarily supporters of the former Somoza government, formed themselves into irregular military forces. The United States was initially supportive of the new government; however, this had changed due to the involvement of the Government of Nicaragua in logistical support for guerrillas in El Salvador. The armed opposition to the new government was conducted mainly by Fuerza Democratica Nicaraguense Nicaraguense (FDN) and Alianza Revolucionaria Democratica Democratica (ARDE), these groups, called ”, were fighting against the new government. The US had had been giving support to these “contras”, Groups and that the US Congress made specific provision for funds to be used by the US intelligence agencies for supporting directly or indirectly military or paramilitary operations in Nicaragua. S u b m i s s i o n s o f t h e N i c a r ag ag u a :
a.
That the United States, in recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and and paramilitary actions in and against Nicaragua, had violated its treaty obligations to Nicaragua under: Article 2 (4) of the United the United Nations Charter; Articles 18 and 20 of the Charter the Charter of the Organization of American States; Article 8 of the Convention the Convention on Rights and Duties of States; Article I, Third, of the Convention Convention concerning the Duties and Rights of States in the Event of Civil Strife.
b.
That the United States had breached international breached international law by: violating the sovereignty the sovereignty of Nicaragua by: - armed attacks against Nicaragua by air, land and sea; - incursions into Nicaraguan territorial waters;
c.
- aerial trespass into Nicaraguan airspace; efforts by direct and indirect means to coerce and intimidate the Government of Nicaragua. using force and the threat of force against Nicaragua. intervening in the internal affairs of Nicaragua. infringing upon the freedom of the high seas and interrupting peaceful maritime commerce. killing, wounding and kidnapping citizens of Nicaragua.
Nicaragua demanded that all such actions cease and that the United States had an obligation to pay reparations to the government for damage to their people, property, and economy.
S u b m i s s i o n s o f t h e U n i t e d S t at e :
that its actions were "primarily for the benefit of El Salvador, and to help it to respond to an alleged armed attack by Nicaragua, that the United States claims to be exercising a right of collective self-defense, which it regards as a justification of its own conduct towards Nicaragua. El Salvador joined the U.S. in their Declaration of Intervention which it submitted on 15 August 1984, where it alleged itself the victim of an armed attack by Nicaragua, and that it had asked the United States to exercise for its benefit the right of collective self-defence."
The CIA claimed that the purpose of the Psychological Operations in Guerrilla Warfare manual was to "moderate" the existing Contra activities.
The United States argued that the Court did not have jurisdiction, with U.S. ambassador to the United NationsJeane Kirkpatrick dismissing the Court as a "semi-legal, semi juridical, semi-political body, which nations sometimes accept and sometim es don't." It is noteworthy that the United States, the defaulting party, was the only member that put forward arguments against the validity of the judgment of the court, arguing that it passed a decision that it 'had neither the jurisdiction nor the competence to render'. Members that sided with the United States in opposing Nicaragua's claims did not challenge the court's jurisdiction, its findings, nor the substantive merits of the case.
ISSUES:
Whether the prohibition of the use of force and collective self-defence are issues regulated both by customary international law and by treaties, in particular the United Nations Charter. What are the rules of customary international law applicable to the case? Whether the recognition of the States of certain rules is sufficient to consider as being part of customary international law, and as applicable as such to States. Whether the practice of State must be in “absolute conformity” with the purported customary rule. What makes State practice an international rule?
THE RULING OF THE COURT: First Issue
The Court then considered the rules of customary law applicable to the present dispute. For this purpose it considered whether a customary rule exists in the opinio juris of States,and satisfy itself that it is confirmed by practice.
The Court ruled that there can be no doubt that the issues of the use of force and collective self-defence are regulated both by customary international law and by treaties, in particular the United Nations Charter.
The Court concluded that both Parties accept a treaty-law obligation to 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. The Court has however to be satisfied that there exists in customary law an opinio juris as to the binding character of such abstention. It considers that this opinio juris may be deduced from, inter alia, the attitude of the Parties and of States towards certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled "Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations". Consent to such resolutions is one of the forms of expression of an opinio juris with regard to the principle of non-use of force, regarded as a principle of customary international law, independently of the provisions, especially those of an institutional kind, to which it is subject on the treaty-law plane of the Charter.
Second Issue
The court, for this case, directed its attention to the practice and opinio juris of States: as the Court observed, “It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States, even though multilateral conventions may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them”.
In the separate opinion of Judge Nagendra Singh. - The Charter provisions as well as the Latin American Treaty System have not only developed the concept but strengthened it to the extent that it would stand on its own, even if the Charter and the Treaty basis were held inapplicable in this case. The obvious explanation is that the original customary aspect which has evolved with the treaty law development has come now to stay and survive as the existing modern concept of international law, whether customary, because of its origins, or "a general principle of international law recognized by civilized nations". The contribution of the Court has been to emphasize the principle of non-use of force as one belonging to the realm of jus cogens and hence as the very cornerstone of the human effort to promote peace in a world torn by strife.
Third Issue
The Court ruled that the mere fact that States declare their recognition of certain rules in not sufficient for the Court to consider these as being part of customary international law, and as applicable to those States. Bound as it is by Article 38 of its Stature to apply, inter alia, international custom “as evidence of general practice accepted as law”, the Court may not disregard the essential role played by general practice. Where two States agree to incorporate a particular rule in a treaty, their agreement suffices to make that rule a legal one, binding upon them; but in the field of customary international law, the shared view of the Parties as to the content of what they regard as the rule is not enough. The Court must satisfy itself that the existence of the rule in the opinio juris of State is confirmed by practice.
In the present disputes, the Court, while exercising its jurisdiction only in respect of the application of the customary rules of non-use of force and non-intervention, cannot disregard the fact that the Parties are bound by these rules as a matter of treaty law and
of customary international law. Furthermore, in the present case, apart from the treaty commitments binding the Parties to the rules in question, there are various instances of their having expressed recognition of the validity thereof as customary international law in other ways. It is therefore in the light of this “subject element” - expression used by the Court in its 1969 Judgment in the North Sea Continental Shelf cases) – that the Court has to appraise the relevant practice. Fourth Issue
The court said that in order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of the States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with the given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. The Court emphasized, as was observed in the North Sea Continental Shelf case, for a new customary rule to be formed, not only must the acts concerned “ amount to a settled practice”, but they must accompanied by the opinio juris sive necessitates. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is “evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belef, i.e., the existence of a subjective elements, is implicit in the very notion of the opinio juris sive necessitates.”
