Nicaragua Case (Merits)

1. Nicaragua Case (Merits) Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. the United States)

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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 • “this declaration shall not apply to disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction" • ”Rules of int’l custom have been subsumed and supervened by treaty law”

9. US defence – merits • (A) Right of collective self-defence • N subjected El Salvador and 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

10. 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) • “Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands including mercenaries, for incursion into the territory of another State. • Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.”

11. 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. May be regarded as a threat or use of force, or amount to intervention in the internal or external affairs of other states. • The right of collective self-defence presupposes … • That the allegedly attacked state has declared iteself subject to an armed attack; and • Has requested assistance

12. 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

13. 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

14. 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

15. 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

16. ICJ settles the dispute #2 • The USG 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 purposeof the contras to overthrow the Governmentof N • Support in the form ofhumanitarianassistancewasdiscriminatory

17. ICJ settles the dispute #3 • Withdrawing aid, reducing the quota for imports of sugar, and imposing a complete trade embargo

18. 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

19. 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

20. Necessity and proportionality • “Whether or not the assistance to the contras might meet the criterion of proportionality, the Court cannot regard the United States activities summarized in paragraphs 80, 81 and 86, i.e., those relating to the mining of the Nicaraguan ports and the attacks on ports, oil installations, etc., as satisfying that criterion. Whatever uncertainty may exist as to the exact scale of the aid received by the Salvadorian armed opposition from Nicaragua, it is clear that these latter United States activities in question could not have been proportionate to that aid. Finally on this point, the Court must also observe that the reaction of the United States in the context of what it regarded as self-defence was continued long after the period in which any presumed armed attack by Nicaragua could reasonably be contemplated.” (para. 237)

21. ICJ settles the dispute (B) • Right to take countermeasures? • N violated the principle of non-intervention

22. 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)

23. The wider significance of Nicaragua • Issues of sources • Fundamental concepts, such as use of force, armed attack, and unlawful interference • War by proxy – issues of attribution • Humanitarian intervention – armed reprisals • Conditions for exercise of collective self-defence