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,
2008 present. Unauthorized use and/or duplication of this material without express and wri en
permission from this blogs 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 specic direction to the original content.
Case: Case Concerning the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua vs
United States) (Merits: focusing on ma ers relating to the use of force and self-defence)
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
impact of the Nicaragua judgement on customary international law and the US multilateral reservation
please click here. (h ps://ruwanthikagunaratne.wordpress.com/2014/03/19/nicaragua-case-summary/)
Overview: The case involved military and paramilitary activities conducted by the United States against
Nicaragua from 1981 to 1984. Nicaragua asked the Court to nd that these activities violated international law.
Facts of the Case:
In July 1979 the Government of President Somoza collapsed following an armed opposition led by the
Frente Sandinista de Liberacibn Nacional (FSLN) . The new government installed by FSLN began to
meet armed opposition from supporters of the former Somoza Government and ex-members of the
National Guard. The US initially supportive of the new government changed its a itude when,
according to the United States, it found that Nicaragua was providing logistical support and weapons to
guerrillas in El Salvador. In April 1981 it terminated United States aid to Nicaragua and in September
1981, according to Nicaragua, the United States decided to plan and undertake activities directed against
Nicaragua.
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The armed opposition to the new Government was conducted mainly by (1)
Fuerza Democratica Nicaragense (FDN), which operated along the border with Honduras, and (2)
Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica, (see map of
the region). Initial US support to these groups ghting against the Nicaraguan Government (called
contras) was covert. Later, the United States ocially acknowledged its support (for example: In 1983
budgetary legislation enacted by the United States Congress made specic 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 eectively 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 ew over Nicaraguan territory to gather intelligence,
supply to the contras in the eld and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after refusing to accept the ICJs
jurisdiction 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 Nicaraguas 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 aairs of
another State when it trained, armed, equipped and nanced 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 directly a acked Nicaragua in 1983 1984 and when its activities in bullet point 1 above resulted
in the use of force?
If so, can the military and paramilitary activities that the United States undertook in and against Nicaragua
be justied as collective self-defence?
Did the United States breach its customary international law obligation not to violate the sovereignty of
another State when it directed or authorized its aircrafts to y 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 of
another State, not to intervene in its aairs, 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:
1. The court held that the United States breached its customary international law obligation not to use
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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 nding the court sub-classied 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 strifein
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 oensives against it was determined by the United States: i.e. an oensive 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 oensive, and that
that oensive 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 aairs of Nicaragua (para 227) this aspect
is discussed below.
What is an armed a ack?
A controversial but interesting aspect of the Courts judgement was its denition 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 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 (the States) 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&
q=the%20sending%20by%20or%20on%20behalf%20of%20a%20State%20of%20armed%20bands
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%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&
f=false) resembles Article 3 (g) of the UNGA Resolution 3314 (XXIX) on the Denition 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 eects it
would have been classied 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 aairs 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 and 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 denition of armed a ack proposed in the Nicaragua case. In the Palestinian wall case, the a acks
from which Israel was claiming self defence originated from non-State actors. However, the Court held that Article
51s inherent right of self defence was available to one State only against another State (para 139). Judges
Higgins, Buergenthal and Kooijmans opposed this narrow view. Articles on State Responsibility, prepared by the
International Law Commission, provided signicant 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, and 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 dierence 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 and
(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:
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(1) A State must have been the victim of an armed a ack;

(2) This State must declare itself as a victim of an armed 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 of
collective self-defence based its (the third States) 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 ack 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 reected in customary
international law, may well be so unencumbered with the conditions and modalities surrounding it in the
treaty. Whatever inuence 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 justication
for measures which would otherwise be in breach both of the principle of customary international law and of
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 acting in self-defence (See paras 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 fullled (para 237).
3. The Court held that the United States breached its CIL obligation not to intervene in the aairs of
another State when it trained, armed, equipped and nanced the contra forces or encouraged,
supported and aided the military and paramilitary activities against Nicaragua.
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The principle of non- intervention means that every State has a right to conduct its aairs without
outside interference i.e it forbids States or groups of States to intervene directly or indirectly in
internal or external aairs 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 of
coercion in regard to such choices, which must remain free ones. The element of coercion, which denes, 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:
rst, 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
paragraph 205 above) ; and 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 amounts to an intervention by the one State in the internal aairs of the other,
whether or not the political objective of the State giving such support and assistance is equally far reaching.
The nancial 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 nding, 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=e68533dae10c8019134d59bc5ab351)).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 oer, particularly the supply aircraft provided to the
contras by the United States but not all contra operations reected strategy and tactics wholly devised
by the United States.
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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 insucient 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 insucient evidence to reach a nding 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 StatesThe Court has
taken the view (paragraph 110 above) that United States participation, even if preponderant or decisive, in the
nancing, organizing, training, supplying and equipping of the contras, the selection of its military or
paramilitary targets, and the planning of the whole of its operation, is still insucient in itself, on the basis of
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 operations 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 acts 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 have to be proved that that State had eective control of the military or paramilitary.
Interesting, however, the Court also held that providing humanitarian aid to persons or forces in
another country, whatever their political aliations 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 aairs of another State, the victim State has a right tointervene
in a manner that is short of an armed a ack (210).
While an 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 already 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 justied 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 y 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 ights over
Nicaraguan territory and certain low-altitude ights, 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 States internal waters, its territorial sea and the air space above
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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 overights 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 case. 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 dierent enough to undermine completely the content of the Charter norm. This formalism simply masks
the more interesting question of the Courts institutional claim, given the ineectiveness 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 an autonomous norm of customary international law free
from the Charter is a constitutive one of potential great signicance (81 AMJIL 100, 1987).
Trashing customary international law, Antony DAmato, 81 AMJIL 102 (1987) (full text)
(h p://anthonydamato.law.northwestern.edu/adobeles/a87a-trashing.pdf): (DAmato 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 Courts Achievement, Richard Falk, 81 AMJIL 106 (Falk takes a generally positive approach to
the judgment, gives a good overview of the case and Judge Shwebels dissent)
Drawing the right line, Tom J. Farer, 81 AMJIL 112 (Farer takes a cold-war contextual approach to the
judgment and supports the Courts narrow view of an armed a ack and self defence).
Some observations on the ICJs procedural and substantive innovations, Thomas M. Franck, 81 AMJIL116 (criticiz
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
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groups in another States territory even if the insurgency is planned, trained, armed and directed from that
territory).
Protecting the Courts institutional interests: Why not the Marbury approach? Michael J. Glennon, 81
AMJIL 121 (discusses reservations before the ICJ and the Courts prerogative to determine its own
jurisdiction)
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 ICJs construction of the notion of collective self defense, armed
a ack and forcible countermeasures).
Somber reections 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 Courts ndings).
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://litigationessentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&
docid=81+A.J.I.L.+86&srctype=smi&srcid=3B15&key=e68533dae10c8019134d59bc5ab351)
Le peuple, cest 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&leId=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 eects came to pass. It concludes that dire predictions of harm to the Court were
overstated. Twenty-ve years later, the rate at which states accept the Courts 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 Courts decisions, though some compliance problems remain. The most serious
negative impact has been on the willingness of the United States (still the Courts 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/)
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LJIL Symposium: Response of Lori F. Damrosch to Comments by John Dugard, Lori F. Damrosch(h p://opinioju
/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&leId=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 aairs 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 eld. It is proposed that the Courts 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
judgment 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, Andr Nollkaemper(h p://opiniojuris.org
/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 blogs 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
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Posted in Cases, Use of force on November 15, 2012 by Ruwanthika Gunaratne. 23 Comments
23 comments
10 of 14
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.
Hope this helps,
8/24/2016 7:52 AM
11 of 14
Ruwanthika
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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
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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 Ive got so far is here:
h p://ma hewmainen.blogspot.com/
REPLY
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=e68533dae10c8019134d59bc5ab351). 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 Courts ndings 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 dene 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
8/24/2016 7:52 AM
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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 denition.
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 nd
this article quite good: h p://bybil.oxfordjournals.org/content/56/1/189.full.pdf+html.
On the aspect of eective control over a person, although not directly relevant, I nd 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 nd 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.
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March 16, 2014 at 5:01 AM
Thanks! I believe I will be able to get the full journal through Tel Aviv Universitys databases,
though I will gladly take you up on the oer 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 its
applicability to the Israeli-Palestinian conict. The Courts line of reasoning without question
would rule out the possibility of Gaza being occupied territory (If Uganda wasnt 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? Ive 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 nd convincing
Schwebels 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 its
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.
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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.
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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 Courts
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 nd this interesting h ps://ruwanthikagunaratne.wordpress.com/2014/03
/19/nicaragua-case-summary/
8/24/2016 7:52 AM
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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
August 15, 2014 at 5:30 PM
You can nd 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 oor of general assembly sources of international law?
REPLY
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 specic example?
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December 20, 2014 at 7:18 PM
thankuuu
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December 20, 2014 at 7:19 PM
thankss
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9. mohammed bayu says:
November 25, 2014 at 12:58 PM
i found it more precise and understndable as cases of international issues are diucult to get the point
this article however did it
thank you
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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
11. Ruwanthika Gunaratne says:
13 of 14
8/24/2016 7:52 AM
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 states 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/
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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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(1) A State must have been the victim of an armed a ack;

Material on the Nicaragua case

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1. bushra banniya says:

April 12, 2015 at 12:16 AM

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