Case Concerning Military and Paramilitary Activities in and against Nicaragua

JUDEGMENT SUMMARY:

Case Concerning Military and Paramilitary Activities in and against Nicaragua

(Nicaragua v. United Stated of America)[1]

DATE OF JUDGEMENT: June 27, 1986

JUDGES:

• President: Nagendra Singh   Vice President: De Lacharriere
• Judges: Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Schwebel, Sir Robert Jennings, Mbaye, Bedjaoui, Ni, Evensen
• Judge ad hoc: Colliard

REFERENCE:

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgement, I.C.J. Reports 1986, p. 14

PARTIES:

• Republic of Nicaragua (Applicant)
• The United States of America(Respondent)

SUBJECT:

The following case before the ICJ was with respect to the military and paramilitary activities conducted against Nicaragua by the United States of America. This judgement is one of the strongest authorities with respect to identifying essential elements of customary international law and its relation to treaties.

The analysis of this judgement is focused on the contribution and clarity brought by it in the field of customary international law.

AN OVERVIEW/ BRIEF FACTS OF THE CASE:

1. In 1984, the Republic of Nicaragua filed an application against the United States of America, thereby instituting proceedings as well as requesting for the indication of provisional measures with respect to the dispute regarding the responsibility for military and paramilitary operations perpetrated against Nicaragua by the United States.
2. Subsequently, an order was passed requiring the US to ‘cease and refrain from any action restricting access to Nicaraguan ports, and laying of mines etc’.[2] Further in the same order it was highlighted by the Court that Nicaragua had to right to sovereignty  as well as political independence which is not to be put at stake by activities against the principles prohibiting the use of force or threat as well as the principle of non- intervention.
3. The ICJ expressed its intention to firstly deal with the issue of admissibility of application and the jurisdiction of the Court. From between 8 – 18 October, 1984 and a judgement for the same was passed, wherein the court accepted the application presented by Nicaragua.
4. The US. refused to accept the ICJ’s jurisdiction and failed to appear at the merit stages. Yet, the U.S had taken the defense of self- defense at the jurisdictional stage of the proceedings.
5. After the issue of jurisdiction was settled by the court, it heard the arguments of Nicaragua as well as the testimony of witnesses, the court had passed a judgement on merits, in the absence of the US, wherein the US was held liable for the military activities, thereby rejecting the argument of self defence. In an order in furtherance to the judgement required the U.S to refrain from such activities and pay reparations to Nicaragua.
6. In 1991, the case was removed from the Court’s List as Nicaragua intimated the ICJ of its wish to discontinue the proceedings which was welcomed by the Unites States of America.

IMPORTANT PROVISIONS:

Customary Principles:

• Principle of the sovereignty of States
• Rule of non- intervention in the internal – affairs of the state.
• Principle of non- use of force in international relations
• Rule of the freedom of high seas
• Rules pertaining to humanitarian law.

ISSUES:

The following are the major issues discussed by the ICJ included-

• Whether the Court was competent to determine the case based on customary international law, when a multilateral treaty reservation was in existence?
• What were the essential elements to form customary international law?
• What was the nature of relationship between customary international law and treaties?
• Whether there was a violation of the customary international law principles of non- use of force and non- intervention?

ANALYSIS OF THE JUDGEMENT:

Arguments of the Applicants:

Nicaragua argued that United States was in violation of not only provisions under the UN Charter[3], Convention on Rights and Duties of States[4], the 1956 bilateral Treaty on Friendship, Commerce and Navigation, Charter of the Organisation of American States.[5] Along with the above mentioned violations, in the written pleadings they argued that the armed attacks, infiltration into the airspace and territorial water, and constant persuasion to influence the state government was violation of the customary principle of sovereignty of states, non-use of force, freedom of high seas and International humanitarian laws.

Arguments of the Respondents:

It was argued by the United States that the customary law violation allegations raised by Nicaragua fell into the Ambit of Art. 2(4) of the UN Charter which lays down principles to be followed by the Organisation and its members. Further, the U.S had informed that they did not agree for ICJ to have jurisdiction over the said matter owing to multilateral agreements in existence, thus making the application of customary law rules corresponding with such treaty provisions was beyond the court’s jurisdiction.  Further, they also raised the argument of self- defence during the jurisdictional stage of the proceeding.

Application of Judicial Mind:

1. With respect to the issue of jurisdiction, it was identified by the courts that neither the applicant nor the respondents have addressed this issue to be a political one or a legal one[6], thus making the matter determinable by the Court. the Court did agree that the applicant as well as the respondent was bound by multilateral treaties whose administration could not be pursued by the ICJ due to the Vandenberg Clause, which was United States’ multilateral treaty reservation. Meanwhile it was also decided by the court that these states were also bound by rules of customary international law/ rules and the same fell under the preview of the ICJ as, customary rules could be founded in a number of treaties, and its existence in the instant case can be identified through opino juris and State Practice, while referring to the participation of these countries in  the previous mentioned conventions. Essentially, the court in this case held that customary law prevails independent of treaty law and thus, decided the issues raised by Nicaragua based on violation of customary law principles.
2. With respect to the issue of elements necessary to constitute customary international law, the ICJ referred the elements of opino juris and state practice as laid down in the North Sea Continental Shelf Case, wherein the first is the subjective element and the latter the objective element. In the instant matter, the Court with regard to state practice held that complete consistency in state practice is not required for a rule to take force, as long as the incidents of lack of consistency can be justified as a violation of the customary rule.
3. Furthermore, with respect to the element of opino juris, the ICJ furnished a way to identify opino juris from attitudes of the State during conventions and GA Resolutions, there by showing their intent to the extent of their commitment to each treaty and thereby their acknowledgement of customary practices. The same can be identified from Statements and obligations undertaken by the State through their respective spokespersons.
4. While addressing the relationship between Customary Laws and Treaties, the Court emphasized ICJ’s stand in the North Sea Continental Shelf Cases[7] that, even if the treaties were essentially codified customary principles, they will still exist alongside the legislation. Furthermore, if the principle and the provision are identical, in most cases the treaty, for example Art. 51 of the UN Charter, recognizes the existence of Customary international law with respect to the same matter.
5. The Court further held that, in cases where the customary principle and the provisions in the treaty are not the same. That is, when the treaty does not address certain aspects, it is customary international law that is referred to. This was mentioned with regard to the argument of self- defense. The Court explained that with respect to self defence, under Art.51, it doesn’t mention what constitutes an armed attack, what is proportional or necessary. Whereas, these can be determined through customary international law, thus most of such provisions like Art. 51 cannot be considered to “subsume and supervene” customary international law. Even while mentioning simultaneous application of a treaty and customary provision, the Court does not refute the lexspecialis application of treaty provisions on the presence of divergence. 
6. With respect to the violation of the Customary Principles of use of non -use of threat and non- intervention, the Court after analyzing the facts of the case, It was observed by the court that both the parties, are bound by a treaty 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 Nation’, this is further strengthened by customary principle, which can be identified through the opino juris deduced from the attitude of both states at the General Assembly Resolution 2625 (XXV). The Court also explained the existence of Self- Defence as an exemption to non-use of force in customary international law. The Court while refuting the contention of Self- defence by the US, expressed that armed attack which is required for the use of the defence, does not include assistance to rebels by providing ammunition, logistics and other kinds of support.
7. Moreover, while dealing with the issue of non-intervention the Court highlighter the right of Sovereignty of States to conduct its internal affairs peacefully without external intervention. The same can be considered to be a customary principle as if finds presence in the opino juris of most countries, conventions and treaties present in the international realm to which both the United States of America and Nicaragua are parties too. It further states that, “Intervention is wrongful when it uses, in regard to such choices, methods of coercion, particularly force, either in the direct form of military action or indirect form of support for subversive activities in another state.
8. With respect to the violation of humanitarian law, the Court held that the action of laying water mines in the territory of another State without prior notification or intimation by the United States, is violative of humanitarian laws as under the Hague Convention, 1907. In the current instance, even though such a ground per se was not directly raised by Nicaragua, but through the mention of the killings and kidnapping of its citizens it was considered by the court.

Decision

The Court rejected the contention of Self- defence raised by the United States of America. Further, the court decided that the actions of United States of America in training, financing, equipping etc. of military and paramilitary activities is violative of the obligation of not to intervene in internal affairs of the state, there by violating the customary law principle of State Sovereignty and Non- intervention. Further, repeated attacks in betwwen1983 and 1984 perpetrated by the US is in breach of the principle of not to use force against another State. The act of introducing mines in the waters of Nicaragua not only violates humanitarian laws but also, is a breach of freedom to use the sea. The ICJ relying on all the above-mentioned contentions decided that the United States was to pay restoration to Nicaragua for the injuries caused

CONCLUSION:

This judgement by the ICJ constitutes an important step in the Court’s interpretation and development of International Law.  One of the most important aspects of this case is the manner in which the ICJ identified its jurisdiction over the matter. Further, this judgement also gives clarity on the concept of customary international law, specifically with regard to the principle of no – use of force in international relations, the principle of state sovereignty and the rule of non- intervention. Another, important contribution made through this judgement is the way in which the Court interprets opino juris and State Practice. In a way, the approach taken by the court in determining the existence of a customary practice was rather liberal.  Moreover, this judgement did face some level of criticism for being liberal in approach to attach the status of customary law to non- intervention as well as in deducing opinio juris from State attitude in conventions and the GA.  Apart from this, it is a must read case for understanding the reaction of customary laws and treaties and the jurisdiction of the ICJ in Public International Law

• [1]Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgement, I.C.J. Reports 1986, p. 14
• [2] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional Measures, Order of IO May 1984, 1, C.J. Reports 1984, p. 169.
• [3] Article 2(4) of the United Nations Charter
• [4] Article 8 of the Convention of Rights and Duties of States
• [5] Article 18 and Article 20 of the Charter of the Organization of American States
• [6] Article 36 of the ICJ Statue
• [7]North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands) , I.C.J. Reports 1969, p.3