Nicaragua Case (Merits)

Military and Paramilitary Activities

in and Against Nicaragua
(Nicaragua v. the United States)
 Factual background
Sandinistas in power as from 1979
Contras
ARDE
FDN
US support
Support to paramilitary groups (UCLA)
Support to contras
Nicaraguan support
Evidence of shipments of arms from N to El Salvadoran rebels
Claims that armed forces of N are engaged in armed activities and
assists rebels in El Salvador, Honduras and Costa Rica
Nicaragua files application on 9 April 1984
 Nicaraguan submissions #1
Requests the Court to adjudge and declare that
the USG violated obligations owed to N by:

Laying of mines in Nicaraguan harbours and territorial

waters

Attacks on Nicaraguan ports and oil installations

Aerial trespass into Nicaraguan airspace

Military manoeuvres near the Nicaraguan border

 Nicaraguan submissions #2
Requests the Court to adjudge and
declare that the USG violated obligations
owed to N by:

Recruiting, training, arming, equipping,

financing, supplying and otherwise
encouraging, supporting, aiding and directing
military and paramilitary action in and against
N
 Nicaraguan submissions #3
Requests the Court to adjudge and
declare that the USG violated obligations
owed to N by:

Withdrawing aid, reducing the quota for

imports of sugar, and imposing a complete
trade embargo
 Nicaraguan submissions #4
Requests the Court to adjudge and
declare that the USG violated obligations
owed to N by:

Killing, wounding and kidnapping civilian citizens

Publishing and disseminating among contras a

manual on psychological warfare
 US defence jurisdiction
According to N, jurisdiction is founded on
The US and Nicaraguan declarations of 1946 and
1929, respectively
The TFCN of 1956
US defence
On 7 October 1985, the USG terminated its
declaration
The US multilateral treaty reservation
Rules of intl custom have been subsumed and
supervened by treaty law
 US defence merits
(A) Right of collective self-defence
N subjected El Salvador nd others to an armed
attack
(B) Right to take countermeasures in the
capacity of a third party
N violated the principle of non-intervention
(C) Right to take countermeasures in the
capacity of an injured state
Reports indicate that N violates human rights
The prohibition of the use of
force
Customary law largely identical with UNCh
Frequently referred to as a rule having the
character of jus cogens
The prohibition can be established using the
FRD (1970)
 The right of self-defence
Customary law largely identical with UNCh
Armed attack
Includes the sending by a state A of armed bands and
irregulars, which carry out acts of armed force against
another state of such gravity as to amount to an actual armed
attack [Def. Of Aggression, art. 3(g)]
Does not include assistance to an armed opposition in the
form of the provision of weapons or logistical and other
(similar) support
The right of collective self-defence presupposes
That the allegedly attacked state has declared iteself subject
to an armed attack; and
Has requested assistance
The principle of non-intervention
External interference prohibited when having
a bearing on matters, in which sovereign
states have the right to decide freely
States have
Right to respect for their territorial integrity and
political independence
Right to decide freely the choice of political,
economic, social and cultural system, and the
formation of foreign policy
 IHL
The action of contras to be assessed based
on the law governing conflicts not of
international character
The action of the US to be assessed based
on the law govering international armed
conflicts
The rules of GC-49, common Article 3,
constitute a minimum yardstick
States have the duty to respect, and to ensure
respect, for IHL
 Issues of attributability
Responsibility for UCLA operations
Comp ARSIWA, Art. 8
Responsibility for conduct of contras
Comp ARSIWA , Art. 8
Contras economic dependence on the US
The effective control test
 ICJ settles the dispute #1
Laying of mines in Nicaraguan harbours
and territorial waters
Attacks on Nicaraguan ports and oil
installations
Aerial trespass into Nicaraguan airspace
Military manoeuvres near the Nicaraguan
border
 ICJ settles the dispute #2
The USG has trained, armed and
equipped the contras, and supplied them
with information, logistic and financial
support
The USG intended to coerce the Government of N in respect of
matters which a state is permitted to decide freely
It was the purpose of the contras to overthrow the Government
of N
Support in the form of humanitarian assistance was
discriminatory
 ICJ settles the dispute #3
Withdrawing aid, reducing the quota for
imports of sugar, and imposing a complete
trade embargo
 ICJ settles the dispute #4
Killing, wounding and kidnapping civilian
citizens
Publishing and disseminating among
contras a manual on psychological warfare
The USG encouraged the commission of acts
contrary to IHL in circumstances where the
commission of such acts was likely or
foreseeable
 ICJ settles the dispute (A)
Right of collective self-defence?
The declaration and request for assistance by
El Salvador were to late
No report to the UNSC (UNCh Art. 51)
An additional ground of wrongfulness
Necessity and proportionality
 ICJ settles the dispute (B)
Right to take countermeasures?
N violated the principle of non-intervention
 ICJ settles the dispute (C)
Right to take countermeasures?
Reports indicate that N violated human rights
Measures are to be taken primarily by resort to
existing institutional mechanisms
In any event, ... the use of force could not be the
appropriate method to monitor or ensure such
respect ( 268)
With regard to the steps actually taken, the
protection of human rights cannot be compatible
with the mining of ports, the destruction of oil
installations, or again with the training, arming and
equipping of the contras ( 268)
The wider significance of
Nicaragua