Nicaragua vs United States (Summary) on Self Defence and Use of Force _ Public International Law

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Nicaragua vs United States (summary) on self defence and use of force © Ruwanthika Gunaratne and Public International Law at hps://ruwanthikagunaratne.wordpress.com, 20088 – present 200 present.. Unauthor Unauthoriized use use and/or and/or dupl duplic icati ation on of this this materi aterial wi witho thout ut expres expresss and wri wrien permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

Case: Case Concerning the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua vs (Merits: focusing focusing on maers ma ers relating to the the use of o f force a nd self-defence) self-de fence) United States) (Merits: Year of Decision: 1986 Court: ICJ

NB: This blog post will discuss maers on the use of force and self-defence. If you would like to read about the mpact of the Nicaragua judgement on customary international law and the US multilateral reservation lease click here. (hps://ruwanthikagu (hps://ruwanthikagunarat naratne.wordpress.com/2014/03/19/nicara ne.wordpress.com/2014/03/19/nicaragua-case-sum gua-case-summar mary/) y/)

Overview: The The case involved involved military military and paramilitary paramilitary activit activities ies conduct conducted ed by the United United States States a gainst gainst Nicaragua from 1981 to to 1984. Nicaragua asked the the Court to to find that these these activ a ctivities ities violated violated international international law. la w. Facts of the Case:

In July 1979 the Government of President Somoza collapsed following an armed opposition led by the Frente Sandinist Sandinistaa de Liberacibn Liberacibn Nacional (FSLN) Nacional (FSLN) . The new governm government ent – instal installed led by FSLN – began began to meet armed armed opposi oppositi tion on from suppor supporters ters of the former former Somoza Somoza Governm Government ent and ex-m e x-memb embers ers of the National National Guard. Guard. The US – init initial ially ly suppor supporti tiv ve of the new gov government ernment – changed changed its its aitud aitudee when, according to the United States, it found that Nicaragua was providing logistical support and weapons to guerri guerrill llas as in El Salv S alvador. ador. In Apri A prill 1981 it term te rminated inated United States State s aid to Nicaragua Nicaragua and in September 1981, accordi ac cording ng to Nicarag N icaragua, ua, the United States State s “decid “dec ided ed to plan plan and undertake undertake activiti activities es directed directed against against Nicaragua”.

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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) lianza 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 aacks were carried out by United States military – with the aim to overthrow the Government of Nicaragua. Aacks against Nicaragua included the mining of Nicaraguan ports and aacks 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 urisdiction 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 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). Questions before the Court:

Did the United States breach its customary international law obligation – not to intervene in the affairs o another State – when it trained, armed, equipped a nd financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua? Did the United States breach its customary international law obligation – not to use force against another State – when it d irectly a acked Nicaragua in 1983 – 1984 a nd when its activities in bullet point 1 above resulted in the use of force? If so, can the military and paramilitary a ctivities that the United States undertook in and a gainst Nicaragua be justified as collective self-defence? Did the United States breach its customary international law obligation – not to violate the sovereignty o another State – when it directed or a uthorized its aircrafts to fly over Nicaraguan territory and by acts referred to in bullet point 2 above? Did the United States breach its customary international law obligations – not to violate the sovereignty o 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 the territorial sea of Nicaragua? ICJ decision: The United States violated customary international law in relation to bullet points 1, 2, 4 and 5 above. On bullet point 3, the Court found that the United States could not rely on collective self-defence to justify its use of force against Nicaragua. Relevant Findings of the Court:



force against another State: (1) when it directly aacked Nicaragua in 1983 – 1984; and (2) when its activities with the contra forces resulted in the threat or use of force (see paras 187 -201).

The Court held that: The prohibition on the use of force (hps://ruwanthikagunaratne.wordpress.com/2011/04/11/lesson5-1-prohibition-on-the-use-of-force-and-the-un-charter/)is found in Article 2(4) of the UN Charter (hps://ruwanthikagunaratne.wordpress.com/2011/04/11/lesson-5-2-article-24-of-the-un-charter/)and in customary international law. In a controversial finding the court sub-classified the use of force as: (1) the “most grave forms of the use of force” (i.e. those that constitute an armed aack) and (2) the “less grave form” (i.e. organizing, instigating, assisting or participating in acts of civil strife and terrorist acts in another State – when the acts referred to involve a threat or use of force not amounting to an armed aack). The United States violated the customary international law prohibition on the use of force when it laid mines in Nicaraguan ports. It violated this prohibition when it aacked Nicaraguan ports, oil installations and a naval base (see below). The United States could justify its action on collective self-defence, if certain criteria were met – this aspect is discussed below. The United States violated the customary international law prohibition on the use of force when it assisted the contras by “organizing or encouraging the organization of irregular forces and armed bands… for incursion into the territory of another state” and participated “in acts of civil strife…in another State” when these acts involved the threat or use of force. The supply of funds to the contras did not violate the prohibition on the use of force. Nicaragua argued that the timing of the offensives against it was determined by the United States: i.e. an offensive could not be launched until the requisite funds were available. The Court held that “…it does not follow that each provision of funds by the United States was made to set in motion a particular offensive, and that that offensive was planned by the United States.” The Court held further that while the arming and training of the contras involved the threat or use of force against Nicaragua, the supply of funds, in it self, only amounted to an act of intervention in the internal affairs of Nicaragua (para 227) – this aspect is discussed below. What is an armed aack? A controversial but interesting aspect of the Court’s judgement was its definition of an armed aack. The Court held that an armed aack included: (1) action by regular armed forces across an international border; and (2) “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of a rmed force a gainst another State of such gravity a s to amount to (inter a lia) a n actual a rmed a ack conducted by regular forces, or its (the State’s) substantial involvement therein” NB: The second point somewhat (hp://books.google.lk/books?id=mCLKAgAAQBAJ&pg=PA140& dq=the+sending+by+or+on+behalf+of+a+State+of+armed+bands,+groups,+irregulars+or+mercenaries,+which+carr y+out+acts+of+armed+force+against+another+State+of+such+gravity+as+to+amount+to+ (inter+alia)+an+actual+armed+aack+conducted+by+regular+forces,+or+its+substantial+involvement+therein%2 2&hl=en&sa=X&ei=PKskU64fyOWsB-zkgMAL&redir_esc=y#v=onepage&



%2C%20groups%2C%20irregulars%20or%20mercenaries %2C%20which%20carry%20out%20acts%20of%20armed%20force%20against%20another%20State%20of%20 such%20gravity%20as%20to%20amount%20to%20(inter%20alia)%20an%20actual%20armed%20aack%20c onducted%20by%20regular%20forces%2C%20or%20its%20substantial%20involvement%20therein%22& =false) resembles Article 3 (g) of the UNGA Resolution 3314 (XXIX) on the Definition of Aggression (hp://jurist.law.pi.edu/3314.htm). (hp://jurist.law.pi.edu/3314.htm) Mere frontier incidents are not considered as an armed aack – unless because of its scale and effects it would have been classified as an armed aack if it was carried out by regular forces. Assistance to rebels in the form of provision of weapons or logistical support did not constitute an armed aack – it can be regarded as a threat or use of force, or an intervention in the internal or external affairs of other States (see paras 195, 230). Under Article 51 of the UN Charter and under CIL – self-defence is only available against a use of force that amounts to an armed aack (para 211). NB: In in the Case Concerning Oil Platforms a nd the advisory opinion on the Legal Consequences of of the Construction of a Wall in the Occupied Palestinian Territory (hereinafter called the Palestine wall case) the ICJ upheld the definition of “armed a ack” proposed in the Nicaragua ca se. In the Palestinian wall case, the aa cks rom which Israel was claiming self defence originated from non-State actors. However, the Court held that Article 51’s inherent right of self defence was available to one State only a gainst another State (para 139). Judges Higgins, Buergenthal a nd Kooijmans opposed this narrow view. Articles on State Responsibility, prepared by the International Law Commission, provided significant guidance as to when acts of non-State actors may be aributed to States. These articles, together with recent State practice relating aacks on terrorists operating from other countries (see legal opinions surrounding the United States aack on Afghanistan), may have widened the scope of an armed a ack, a nd consequently, the right of self defence, envisaged by the ICJ. 2. The Court held that the United States could not justify its military and paramilitary activities on the basis of collective self-defence.

Customary international law allows for exceptions to the prohibition on the use of force – including the right to individual or collective self-defence (for a difference between the two forms of self defence, click here (hps://ruwanthikagunaratne.wordpress.com/2011/04/12/article-51-un-charter/)). 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-defence, the Court would look into two aspects: (1) whether the circumstances required for the exercise of self-defence existed a nd (2) whether the steps taken by the State, which was acting in self-defence, 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-defence:



(1) A State must have been the victim of an armed aack; (2) This State must declare itself as a victim of an a rmed aack; [NB: the assessment whether an armed aack took place nor not is done by the state who was subjected to the a ack. A third State cannot exercise a right o collective self-defence based its (the third State’s) own assessment]; and (3) In the case of collective self-defence – the victim State must request for assistance (“there is no rule permiing the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed aack”). (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 aa ck 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-defence” (see below). “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-defence 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-defence 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 maers, it is clear that in customary international law it is not a condition of the lawfulness of the use of force in self-defence 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-defence is advanced as a justification for mea sures which would otherwise be in breach both of the principle of customary international law a nd o 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 a cting in self-defence (See pa ras 200, 232 -236)”. The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and Honduras in determining whether an armed aack was undertaken by Nicaragua against the three countries – which in turn would necessitate self-defence (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 aack by Nicaragua (1) declared themselves as a victim of an armed aack or request assistance from the United States in self-defence – at the time when the United States was allegedly acting in collective self-defence; 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-defence. The criteria with regard to necessity and proportionality, that is necessary when using force in self-defence – was also not fulfilled (para 237). 3. The Court held that the United States breached its CIL obligation – not to intervene in the affairs of another State – when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua.



The principle of non- intervention means that every State has a right to conduct its affairs without outside interference – i.e it “…forbids States or groups of States to intervene directly or indirectly in internal or external affairs of other States.” . This is a corollary of the principle of sovereign equality of States. A prohibited intervention must accordingly be one bearing on ma ers in which each State is permied , by the principle of State sovereignty to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods o coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State (para 205). Nicaragua stated that the activities of the United States were aimed to overthrow the government of Nicaragua and to substantially damage the economy and weaken the political system to coerce the Government of Nicaragua to accept various political demands of the United States. The Court held: “…first, that the United States intended, by its support of the contras, to coerce the Government of Nicaragua in respect of maers in which each State is permied, by the principle of State sovereignty, to decide freely (see para graph 205 above) ; a nd secondly that the intention of the contras themselves was to overthrow the present Government of Nicaragua… The Court considers that in international law, if one State, with a view to the coercion of another State, supports and assists armed bands in that State whose purpose is to overthrow the government of that State, that a mounts to a n intervention by the one State in the internal affairs of the other, whether or not the political objective of the State giving such support and assistance is equally far reaching.” The financial support, training, supply of weapons, intelligence and logistic support given by the United States to the contras was a breach of the principle of non-interference. “…no such general right of intervention, in support of an opposition within another State, exists in contemporary international law”, even if such a request for assistance is made by an opposition group of that State (see para 246 for more). However, in a controversial finding, the Court held that the United States did not devise the strategy, direct the tactics of the contras or exercise control on them in manner so as to make their acts commied in violation of international law imputable to the United States (see in this respect “Determining US responsibility for contra operations under international law” 81 AMJIL 86 (hps://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1& doctype=cite&docid=81+A.J.I.L.+86&srctype=smi&srcid=3B15& key=e68533dae10c80191ff34d59bc5ab351)).T he Court concluded that “a number of military and paramilitary operations of the contras were decided and planned, if not actually by United States advisers, then at least in close collaboration with them, and on the basis of the intelligence and logistic support which the United States was able to offer, particularly the supply aircraft provided to the contras by the United States” but not all contra operations reflected strategy and tactics wholly devised by the United States.



“In sum, the evidence available to the Court indicates that the various forms of assistance provided to the contras by the United States have been crucial to the pursuit of their activities, but is insufficient to demonstrate their complete dependence on United States aid. On the other hand, it indicates that in the initial years of United States assistance the contra force was so dependent. However, whether the United States Government at any stage devised the strategy and directed the tactics of the contras depends on the extent to which the United States made use of the potential for control inherent in that dependence. The Court already indicated that it has insufficient evidence to reach a finding on this point. It is a fortiori unable to determine that the contra force may be equated for legal purposes with the forces of the United States…The Court has taken the view (paragraph 110 a bove) that United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or para military targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis o the evidence in the possession of the Court, for the purpose of aributing to the United States the acts commied by the contras in the course of their military or paramilitary opera tions in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the a cts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be commied by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle ha ve to be proved that that State ha d effective control of the military or para military.” Interesting, however, the Court also held that providing “…humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law” (para 242). In the event one State intervenes in the affairs of another State, the victim State has a right tointervene in a manner that is short of an armed aack (210). “While a n armed a ack would give rise to an entitlement to collective self-defence, a use of force of a lesser degree of gravity cannot as the Court has alrea dy observed (paragraph 21 1 above). produce any entitlement to take collective countermeasures involving the use of force. The acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could only have justified proportionate counter-measures on the part of the State which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third State, the United States, and particularly could not justify intervention involving the use of force.” 4. The United States breached its customary international law obligation – not to violate the sovereignty of another State – when it directed or authorized its aircrafts to fly over Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its territorial sea.

The ICJ examined evidence and found that in early 1984 mines were laid in or close to ports of the territorial sea or internal waters of Nicaragua “by persons in the pay or acting ion the instructions” of the United States and acting under its supervision with its logistical support. The United States did not issue any warning on the location or existence of mines and this resulted in injuries and increases in maritime insurance rates. The court found that the United States also carried out high-altitude reconnaissance flights over Nicaraguan territory and certain low-altitude flights, complained of as causing sonic booms. The basic concept of State sovereignty in customary international law is found in Article 2(1) of the UN Charter. State sovereignty extends to a State’s internal waters, its territorial sea and the air space above



its territory. The United States violated customary international law when it laid mines in the territorial sea and internal waters of Nicaragua and when it carried out unauthorised overflights over Nicaraguan airspace by aircrafts that belong to or was under the control of the United States.

Material on the Nicaragua case The following contains a list of scholarly articles and other material that discuss the Nicaragua ca se. If you would like to add to the list, please note your suggestions in the comment box. The judgment including separate opinions of individual judges (hp://www.icj-cij.org/docket /index.php?p1=3&p2=3&case=70&code=nus&p3=4)and summaries of the judgment and orders (hp://www.icj-cij.org/docket/index.php?sum=367&p1=3&p2=3&case=70&p3=5) The World Court and Jus Cogens, 81 AMJIL 93, Gorden A. Christenson. Christenson argues that an independent development of the customary law right divorced from the treaty can have wider consequences: We have then a double irony. The Court uses the United States position accepting the treaty norm against the threat or use of force also as a customary norm possibly having jus cogens quality, in part, to justify taking jurisdiction as a maer quite independent of the norm that otherwise falls under the multilateral treaty reservation. Since there are two separate sources of the law, the choice of the one source rather than the other means that the norm relied upon survives the jurisdictional bar to the use of the other. Yet the two norms are not different enough to undermine completely the content of the Charter norm. This formalism simply masks the more interesting question of the Court’s institutional claim, given the ineffectiveness of the UN Security system, to develop an international public order case by case, by breaking away form the strictures of the Charter and treaty norms. The Court untied the treaty norms from their constraints within the United Nations or regional collective security systems, a potentially destabilizing decision, one whose consequences are unforeseen. The decision based on the validity of a n autonomous norm of customary international law free from the Charter is a constitutive one of potential great significance (81 AMJIL 100, 1987). Trashing customary international law, Antony D’Amato, 81 AMJIL 102 (1987) (full text) (hp://anthonydamato.law.northwestern.edu/adobefiles/a87a-trashing.pdf): (D’Amato discusses the paucity of State practice examined by the international court of justice before concluding that the principle non-intervention formed part of customary international law. He argues that the acceptance of General Assembly resolutions do not manifest opinio juris. He states that the Court failed to consider that Article 2(4) continued to evolve through the years.) The World Court’s Achievement, Richard Falk, 81 AMJIL 106 (Falk takes a generally positive approach to the judgment, gives a good overview of the case and Judge Shwebel’s dissent) Drawing the right line, Tom J. Farer, 81 AMJIL 112 (Farer takes a cold-war contextual approach to the udgment and supports the Court’s narrow view of an armed aack and self defence). Some observations on the ICJ’s procedural and substantive innovations, Thomas M. Franck, 81 AMJIL 116 ( the determination of relevant State practice in relation to non-intervention and the reliance on UN resolutions to illicit opinio juris (it alleges that the Court sought to harden soft law prematurely). Frank points out that the interventions falling short of armed aacks would not allow States to target rebel



groups in another State’s territory even if the insurgency is planned, trained, armed and directed from that territory). Protecting the Court’s institutional interests: Why not the Marbury approach? Michael J. Glennon, 81 AMJIL 121 (discusses reservations before the ICJ and the Court’s prerogative to determine its own urisdiction) Discretion to decline to exercise jurisdiction, Edward Gorden, 81 AMJIL 129 (discusses the discretionary power of the court to decline to exercise its jurisdiction at the merit stages). The Nicaragua judgment and the future of the law of force and self-defense, John Lawrence Hargrove 81AMJIL 135 (Hargrove criticizes the ICJ’s construction of the notion of collective self defense, armed aack and forcible countermeasures). Somber reflections on the compulsory jurisdiction of the international court, Mark Weston Janis, 81 AMJIL 144 Custom on a sliding scale, Frederic L. Kirgis 81 AMJIL 146 (Kirgis discusses the relationship between State practice and opinio juris, criticizes the methods (or lack thereof) of the Court in determining the customary law nature of Article 2(4) of the Charter. Points out that actual State practice on intervention did not support the Court’s findings). The International Court lives unto its name, Herbert W. Briggs, 81 AMJIL 78. Determining US responsibility for contra operations under international law, Francis V. Boyle(hps://litigati essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite& docid=81+A.J.I.L.+86&srctype=smi&srcid=3B15&key=e68533dae10c80191ff34d59bc5ab351) Le peuple, c’est moi!The world court and human rights, 81 AMJIL 173 (hp://journals.cambridge.org /action/displayAbstract?fromPage=online&aid=5087544) LJIL Symposium: Discussion of the ICJ Nicaragua Judgment (hp://opiniojuris.org/2012/03/20/ljilsymposium-discussion-nicaragua/) The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In Between?, Lori Fisler Damrosch (hp://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=8484009& fulltextType=RA&fileId=S0922156511000628) (Abstract: At the time the United States withdrew from participation in the Nicaragua case at the International Court of Justice, the US government expressed concern that ‘the course on which the Court may now be embarked could do enormous harm to it as an institution and to the cause of international law’. This essay examines whether or to what extent the anticipated negative effects came to pass. It concludes that dire predictions of harm to the Court were overstated. Twenty-five years later, the rate at which states accept the Court’s jurisdiction has held steady. Only a few states have added jurisdictional reservations concerning military activities. The mix of cases being brought to the Court has shifted towards a more representative distribution. States are generally complying with the Court’s decisions, though some compliance problems remain. The most serious negative impact has been on the willingness of the United States (still the Court’s most active litigant) to participate fully in international dispute selement.) LJIL Symposium: The Nicaragua Case: Its Impact, John Dugard (hp://opiniojuris.org/2012/03/20/ljilnicaragua-case-impact/)



LJIL Symposium: Response of Lori F. Damrosch to Comments by John Dugard, Lori F. Damrosch(hp://op /2012/03/20/ljil-response-lori-damrosch/) The Principle of Non-Intervention 25 Years after the Nicaragua Judgment (hp://journals.cambridge.org /action/displayAbstract?fromPage=online&aid=8484015&fulltextType=RA&fileId=S0922156511000641), by Marcelo Kohen(Abstract: This article focuses on the analysis by the International Court of Justice of the principle of non-intervention in domestic affairs in its judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua and contrasts it with the evolution of international law and practice in this field. It is proposed that the Court’s 1986 analysis not only remains of actuality today, but also constitutes a precursor to legal developments that have since taken place. This is particularly the case with regard to the relationship between the protection of human rights on the one hand and the safeguard of state sovereignty and the collective security regime on the other. The 1986 udgment helped to clarify the content of humanitarian assistance. It constituted the starting point for the development of this concept in a series of GA resolutions that were subsequently adopted. The controversial doctrine of ‘humanitarian intervention’, as well as state practice in violation of this principle, in no way led to modifying existing international law. Similarly, the new concept of ‘responsibility to protect’, which places emphasis on collective security and discounts unilateral action, has not led to the disappearance of the principle of non-intervention either.) LJIL Symposium: From Nicaragua to R2P: Continuity and Change, André Nollkaemper(hp://opiniojuris.o /2012/03/20/ljil-nicaragua-to-r2p/)

© Ruwanthika Gunaratne and Public International Law at hps://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and wrien permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content. Posted in Cases, Use of force on November 15, 2012 by Ruwanthika Gunaratne. 23 Comments

23 comments 1. bushra banniya says: April 28, 2013 at 6:59 PM critical review of icj judges opinion in nuclear weapon case 1996? REPLY 2. Dr. Ruwanthika Gunaratne says: April 28, 2013 at 10:09 PM Hi Bushra, I have not done an analysis on the web site, as of yet. My recommendation is that you look for articles published in 1997 in international law journals – which may give you what you are looking for. In addition, there is a review of the judgement in International and Comparative Law Quarterly 46, (1997), pp 681-688. 91 AJIL has a series of articles that maybe useful for you.



Ruwanthika REPLY 3. Pingback: Is this the Nicaragua moment of the ICC? Plus a note on jurisdiction | Public International law 4. Nakabugo Margret says: March 11, 2014 at 3:39 PM HI, AM HOPING EXCELLENCE HVING CONNECTED WITH YOU REPLY 5. Mahew Mainen says: March 12, 2014 at 9:20 AM Dr. Gunaratne – This is an excellent summary of the most investigated/cited elements of Nicaragua vs. United States. I am in the process of investing how the Court deals with the maer of determining that a rebel movement is an organ or acting on behalf of a third party state. This is part of broader research on breakaway governments and their heavily dependent relationships with other states. I would appreciate any general comments you have on this maer. The way I see it, the Court utilizes an incredibly strict standard approaching total control on the part of the state and total dependence on the part of the rebel organization. Do you know of some journal articles that have focused on this particular aspect of Nicaragua vs. United States? What I’ve got so far is here: hp://mahewmainen.blogspot.com/ REPLY 1. Dr. Ruwanthika Gunaratne says: March 14, 2014 at 9:02 PM Hi Mahew, Thank you for your comments. Congratulations on your blog. On you question regarding material on the Nicaragua case in relation to the contras see 81AMJIL 86 (hps://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1& doctype=cite&docid=81+A.J.I.L.+86&srctype=smi&srcid=3B15& key=e68533dae10c80191ff34d59bc5ab351). That entire volume of the AMJIL is on the Nicaragua case. If you cannot download it, send me an e-mail and I could forward a copy to you. You may also wish to browse other international law journals around 1986-87. One argument given for this strict approach is appeasement – see the above article of Boyle. He disagrees with the Court’s findings and argues that the Court took this stance to appease the US since the Court went ahead with the case amidst US opposition. It is also possible that the court took such a strict approach because it was looking at the relationship from the view point of self defence. One of the main conclusions of the Court was that self defence against a State (in this case, the US) is available, if an armed aack occurred. The court went on to define an armed aack in respect of aacks carried out by a non-State actors (see above). It then held that assistance to rebels in the form of provision of weapons or logistical support did not constitute an armed aack. I.e. what is not an armed aack cannot give the victim



State the right to use force in self defence (it can trigger other proportionate countermeasures). The Court was possibly looking to restrict opportunities for States to trigger the use of force in self defence by adopting a strict definition. Other cases that you can look at include DRC vs Uganda where the two countries accused each other of supporting rebels of the other State and the Bosina vs Serbia (Genocide case). On the legal status of multiple governments in the same State in relation to an intervention I find this article quite good: hp://bybil.oxfordjournals.org/content/56/1/189.full.pdf+html. On the aspect of effective control over a person, although not directly relevant, I find this recent article by Novak interesting: hp://justsecurity.org/2014/03/11/leer-editor-manfred-nowakextraterritorial-application-human-rights-treaties-practice/. In respect of State responsibility for acts of non-State actors, I find A. 4 -11 of the Articles on State Responsibility drafted by Crawford (hp://legal.un.org/ilc/texts/instruments/english /draft%20articles/9_6_2001.pdf) and the GA Declarations on Friendly Relations and Aggression quoted in the Nicaragua case helpful. REPLY 1. Mahew Mainen says: March 16, 2014 at 5:01 AM Thanks! I believe I will be able to get the full journal through Tel Aviv University’s databases, though I will gladly take you up on the offer of receiving an e-mailed copy if it proves impossible. Thank you so much for the other links. Congo vs. Uganda is fascinating to me because of it’s applicability to the Israeli-Palestinian conflict. The Court’s line of reasoning without question would rule out the possibility of Gaza being occupied territory (If Uganda wasn’t an occupying power despite having a *friendly* local force on the ground, then a fortiori one must say the same about an unfriendly force on the ground.) I will be covering that case on my blog shortly. What is your opinion on the issue of the admissibility of law existing as both custom and treaty as applied to Nicaragua vs. USA? I’ve found the debate fascinating as it cuts to the core of the philosophy of law. It is clearly an ontological question. Personally, I did not find convincing Schwebel’s dissent (holding that customary law also existing in treaty was rendered inadmissible due to the U.S. reservation). There was clearly no evidence that the U.S. considered it’s reservation as applicable in such a maer. Obviously, we should be able to see some internal documents from the U.S. indicating such intent. REPLY 1. Mahew Mainen says: March 16, 2014 at 10:55 PM Just to clarify – I mean there was no evidence ***at the time the US made the reservation***, clearly the U.S. argued during the trial that its reservation applied to custom. REPLY 1. Dr. Ruwanthika Gunaratne says: March 19, 2014 at 6:47 PM Hi Maew, Yes, I agree. The argument by the US was that treaty law subsumes and supervenes identical customary law. There were a lot of articles criticising the Court’s decision to go into the merit stage at the time, but I believe it was correct. Had the US intended to oust customary law, it could have said so at the time of its reservation. You may find this interesting – hps://ruwanthikagunaratne.wordpress.com/2014/03



REPLY 1. Mahew Mainen says: March 19, 2014 at 7:05 PM Thanks! I look forward to reading your new review. 6. Pingback: Nicaragua vs United States (summary) | Public International law 7. Dr. Ruwanthika Gunaratne says: August 15, 2014 at 5:30 PM You can find some resource material on the Nicaragua case here: hp://www.haguejusticeportal.net /index.php?id=6245 REPLY 8. Aleena Malik says: October 19, 2014 at 6:10 PM can anyone help me regarding below question? are statements recorded on the floor of general assembly sources of international law? REPLY 1. Mahew Mainen says: October 20, 2014 at 12:41 AM Statements may, at most, be indicative of opinio juris in establishing customary international law. Isolated from other and more substantial evidence of opinio juris, such statements amount to lile. Do you have a specific example? REPLY 1. Aleena Malik says: December 20, 2014 at 7:18 PM thankuuu REPLY 2. Aleena Malik says: December 20, 2014 at 7:19 PM thankss REPLY 9. mohammed bayu says: November 25, 2014 at 12:58 PM i found it more precise and understndable as cases of international issues are diffucult to get the point this article however did it thank you REPLY 10. Qinisani says: March 4, 2015 at 6:31 PM Guys i need help i have an essay entitled: with the use of examples analyse the ICJs impartiality/ partiality in undertaking its mandate. REPLY



April 12, 2015 at 12:16 AM ‘According to the framework set forth by the International Court of Justice in Nicaragua v. United States (1986), airstrikes can constitute an “armed aack” triggering the target state’s right to self-defense; but the arming and training of rebels does not on its own amount to an armed aack. [As an aside: the long-standing United States’ position on these maers, in contrast, is that any use of force (below the threshold of an armed aack) can also trigger the right of self-defense.]’. See ‘Having Crossed the Rubicon: Arming and Training Syrian Rebels’ at hp://justsecurity.org/15660/crossedrubicon-arming-training-syrian-rebels/ REPLY 12. Pingback: ความรับผดของรัฐ : หลักการ , การปรับใช และปัญหา | THAMAAYA : Criminal Law Discourse 13. Pingback: Talleres de Derecho Internacional: Derecho Internacional Básico | Pangea UPR 14. Noman Shabir Ch says: December 13, 2015 at 12:26 AM This is a great summary of the case. I have an assignmet on that case nd this summary helped me alot in my research.. REPLY 1. Aleena malik says: April 9, 2016 at 3:59 PM Quite helpful REPLY

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Nicaragua vs United States (Summary) on Self Defence and Use of Force _ Public International Law

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