Nicaragua (P) brought a suit against the United States (D) on the ground that the United States (D) was responsible for illegal military and paramilitary activities in and against Nicaragua.
The jurisdiction of the International Court of Justice to entertain the case as well as the admissibility of Nicaragua’s (P) application to the I.C.J. was challenged by the United States (D).
The United States (D) challenged the jurisdiction of the I.C.J when it was held responsible for illegal military and paramilitary activities in and against Nicaragua (P) in the suit that the plaintiff brought against the defendant in 1984.
Though a declaration accepting the mandatory jurisdiction of the Court was deposited by the United States (D) in a 1946, it tried to justify the declaration in a 1984 notification by referring to the 1946 declaration and stating in part that the declaration “shall not apply to disputes with any Central American State….”
Apart from maintaining the ground that the I.C.J lacked jurisdiction, the United States (D) also argued that Nicaragua (P) failed to deposit a similar declaration to the Court.
On the other hand, Nicaragua (P) based its argument on its reliance on the 1946 declaration made by the United states (D)
Due to the fact that it was a “state accepting the same obligation” as the United States (D) when it filed charges in the I.C.J. against the United States (D).
Also, the plaintiff’s intent to submit to the compulsory jurisdiction of the I.C.J. was pointed out by the valid declaration it made in 1929 with the I.C.J’s predecessor, which was the Permanent Court of International Justice, even though Nicaragua had failed to deposit it with that court.
The admissibility of Nicaragua’s (P) application to the I.C.J. was also challenged by the United States (D).
Issues–
Did the US violate its customary international law obligation not to intervene in the affairs of another State, when it trained, armed, equipped, and financed the contra forces or when it encouraged, supported, and aided the military and paramilitary activities against Nicaragua?
Did the US violate its customary international law obligation not to use force against another State, when it directly attacked Nicaragua in 1983 and 1984 and when its activities in point (1) above resulted in the use of force?
Can the military and paramilitary activities that the US undertook in and against Nicaragua be justified as collective self-defence?
Did the US breach its customary international law obligation not to violate the sovereignty of another State, when it directed or authorized its aircrafts to fly over the territory of Nicaragua and because of acts referred to in (2) above?
Did the USs 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?
Judgement –
The Court held that the United States violated its customary international law obligation not to use force against another State when its activities with the contras resulted in the threat or use of force.
In a controversial finding the Court sub-classified the use of force as:
(1) “most grave forms of the use of force” (i.e. those that constitute an armed attack); and
(2) “other less grave forms” of the use of force (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, but not amounting to an armed attack). (Para 191),
The United States violated the customary international law prohibition on the use of force when it laid mines in Nicaraguan ports. It also violated this prohibition when it attacked Nicaraguan ports, oil installations, and a naval base (see below). The United States could only justify its action on the basis of collective self-defence, if certain criteria were met (these criteria are 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” and 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. On the contrary, Nicaragua had previously argued before the Court that the United States determined the timing of offensives against Nicaragua when it provided funds to the contras. 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 the arming and training of the contras and the supply of funds, in itself, only amounted to acts of intervention in the internal affairs of Nicaragua and did not violate the prohibition on the use of force (para 227) (again, this aspect will be discussed in detail below).
The Court held that the United States violated its customary international law obligation not to use force against another State when it directly attacked Nicaragua in 1983 and 1984
(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 (sic) armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its (the State’s) substantial involvement therein
The Court further held that:
Mere frontier incidents will not considered as armed attacks, unless, because of its scale and effects, it would have been classified as an armed attack had it been carried out by regular forces.
Assistance to rebels by providing weapons or logistical support did not constitute an armed attack. Instead, 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 attack
United States could not justify its military and paramilitary activities on the basis of collective self-defence
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.
