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Analysis of Public International Law Case Concerning Military and Paramilitary Activities
in and Against Nicaragua (Nicaragua V. United States of America, International

Author;

 Samuel Asiimwe1*

ABSTRACT

This paper is devoted to highlight analysis on the public international law case concerning
military and paramilitary activities in, and against Republic of NICARAGUA by the United
States of America. (Nicaragua V. United States of America, International Court of Justice,
1986) particularly on being adherent to international law obligations at the state’s disposal.

1
LL. B, DLP Candidate

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I. PARTIES

 Plaintiff: NICARAGUA
 Defendant: UNITED STATES OF AMERICA

II. JUDGMENT

 1986 I.C.J. 14, June 27, 1986

III. COURT RENDERED JUDGMENT

 INTERNATIONAL COURT OF JUSTICE (ICJ)

IV. SUMMARY OF FACTS

In July 1979 the new revolutionary Government of National Reconstruction the Republic of
Nicaragua installed by Frente Sandinista de Liberacion Nacional (The Sandinistas) overthrew
the former elected government of President General Anastasio Somoza Debayle. The United
States of America has economic and diplomatic relations with the Republic of Nicaragua.
However, United States government changed its attitude regarding to their political and
economic relationship with Nicaragua. This was due to Nicaraguan support to El Salvador
guerillas relating logistical support and weapons.2

Further to that, United States in April 1981stopped its aid to Nicaragua and September 1981
United States undertook activities against Nicaragua government. Thus, US government gave
support to two armed groups called contras that were fighting against new government of
Nicaragua. The two groups were; Fuerza democratic Nicaraguense (FDN), which was operated
along the border with Honduras, and Alianza Revolucionaria Democratica (ARDE), which
operated along the border with Costa Rica. In addition to that, The United States in 1983
officially acknowledged its support against Nicaragua in their budgetary legislation that was
enacted by the United States congress. This budgetary act contained some provisions that were

2
Noreen M. Tama, Penn state international law review, Nicaragua v. United States: The Power of the
International Court of Justice to Indicate Interim Measures in Political Disputes, Vol. 4, No 1, 1985, P. 1,2

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specifying funds for central intelligence agencies to support directly and indirectly military and
paramilitary operations in Nicaragua.3

Thus, on 9 April 1984 the ambassador of the Republic of Nicaragua to the Netherlands filed an
application in the registry of International court of justice, initiating proceedings against United
States in regard to its acts for military and paramilitary activities in and against Republic
Nicaragua.4 The allegations of Nicaragua against United States were about US effective control
of the contras that were threatening Nicaragua’s security. Nicaragua alleged United States to
pay contras, and controlling those two armed groups. It also alleged Us to directly carry out
military attacks with the aim of overthrowing existing Nicaraguan government. The United
States attacks against Nicaragua were the mining of Nicaraguan ports, oil installations, and
naval base. The other allegations were flying of United States aircrafts over Nicaraguan
territory to gather intelligence, intimidating the population, supply to the contras in the field. 5

V. THESIS (ARGUEMENTS OF EACH PARTY)

In respect of dispute concerning military and paramilitary activities of United States against
Nicaragua, after filling a case in the international court of justice, Us was notified. However,
after filling a case the issue of jurisdiction the court arose. Because, three days before such
court application the United States deposited a controversial declaration that was purporting to
modify United States acceptance on compulsory jurisdiction of the court. The jurisdiction of
the court relied on the party’s declaration of accepting compulsory jurisdiction under article 36
of the statute.6

 NICARAGUA’S ARGUMENT TOWARDS JURISDICTION OF THE COURT

(ICJ)
 Nicaragua’s arguement on the jurisdiction of the court was found in its Memorial that
was requested by the court so as to rule on the matter regarding jurisdiction of the court.
Thus, the Republic of Nicaragua contended that basis on the jurisdiction relied on, it
concerns the application of a Treaty of Friendship, Commerce and Navigation signed

3
See Dr. Ruwanthika Gunaratne, Nicaragua Vs The United States: Use Of Force and Self-Defence available at
< https://ruwanthikagunaratne.wordpress.com/2012/11/15/nicaragua-vs-us-case-summary/>, accessed on
14/01/2020
4
International Court of Justice, Reports of Judgments. Advisory Opinions and Orders, Case Concerning Military and Paramilitary Activities
in and Against Nicaragua (Nicaragua V. United States of America), Judgment of 27 June 1986, P.6

5
Ibid
6
Id. P. 8

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by Nicaragua and United States (parties to the case) in 1956 which was containing the
clause that was stating that “Any dispute between the Parties as to the interpretation or
application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted
to the International Court of Justice, unless the Parties agree to settlement by some other
pacific means”. Thus, the rationale of that clause was an independent basis for
jurisdiction under article 36, paragraph 1, of the Statute of the Court. 7
 UNITED STATES ARGUEMENTS AGAINST JURISDICTION OF THE
COURT NICARAGUA REFERRED A CASE (ICJ)

The United states’ opinion to modify its acceptance towards jurisdiction of international court
of justice. In its declaration it asserted that it would no longer accept the jurisdiction of the
court in regard to disputes with any Central American state, may arise in related events of
central America and any dispute shall be settled in such as long as is a party to the case. The
United States reasons for submitting modification was to continue regional dispute settlement
process in political and economic problems of Central America. United States put out several
grounds which it claimed were unique to this case and further modifying such jurisdiction;8

 The first United States arguement was about invoking the international law principle of
reprocity, where, according to this principle; the Court's jurisdiction exists only to the
extent that both countries that are parties to a dispute have accepted the same
obligations regarding the use of the Court to resolve that type of dispute. Us argued that
as long as the Nicaraguan Declaration of acceptance was immediately terminable. Thus,
the United States was also claiming its entitlement towards introducing a temporal
qualification into its declaration with immediate effect.
 As a second argument against the Court's jurisdiction, the United States asserted that
the Republic of Nicaragua never officially acceded to the compulsory jurisdiction of
the World Court. The United States noted that Nicaragua never deposited an instrument
of ratification of acceptance.9
 THE UNITED STATES ARGUMENTS FOR IGNORING THE
JUDGMENT ON THE MERITS

The United States attacked court judgment of November 26, 1984 regarding to its jurisdiction,
it asserted that the decision is contrary to law and fact. Because, the court’s decision is

7
Id. P. 6, 7
8
Id. P. 8
9
Id. P. 8

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erroneous as a matter of law, it based on misreading and distortion of the evidence. The
statement suggested that the Court had acted on the basis of political and not legal
considerations and the court acted beyond its limits.

 NICARAGUA’S ARGUMENT REGARDING TO NEED FOR PROVISIONAL

MEASURES (Interim measures)

Nicaragua requested the court to initiate provisional measures, argued that such interim
protection was required in order to preserve the rights of its citizens to life, liberty and security.
Citizens deserve right to be free at all times from the use or threat of force against it by a foreign
state. Same applies to its right of sovereignty to conduct its affairs and to determine matters
within its domestic jurisdiction without interference or intervention by any foreign state.

 THE UNITED STATES ARGUMENT AGAINST NICARAGUA’S REQUEST

OF PROVISIONAL MEASURES

After the Us arguments against jurisdiction of the court, Following Nicaraguan government
requesting the court to put provisional measures. United States also suggested the court that, it
should deny request of indicating such provisional due to the following compelling reasons;

 The United States argued that the rights and interests of other Central American States
would be directly affected by such indication, thus it shall cause serious irreparably
harm to interests of several states.
 Furthermore, the United States informed the Court that the Central American States and
other states in the region States in the region, the organization of American States,
United Nations had initiated a region-wide negotiation process known as the Contadora.
Process which could be adversely affected by formal legal proceedings between
participating States.10
 NICARAGUA’S ARGUMENT IN RESPECT OF IT’S ACCUSSATIONS TO
THE UNITED STATES

In regard to Nicaragua’s arguments against United states; are claims that were presented in
written pleadings on behalf of Nicaragua as follows;

 Violation treaty obligations (supplying military and paramilitary actions)

10
Id. P.8

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Nicaragua condemned United States to have committed acts of recruiting, training, arming,
equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing
military and paramilitary actions in and against Nicaragua. It has violated treaty obligations to
Nicaragua in regard to obligations stipulated under article 2 (4) of the United Nations Charter
that prohibits a member state to use force or threat to another state and so forth.11

 Violation of customary international law (violating Nicaragua’s sovereignty,

use of force and intervening in Nicaragua’s affair)

Nicaragua was alleged Us to have violated its obligations under customary international law
through its acts against ; aerial trespass into Nicaraguan airspace by Us aircrafts, efforts by
direct and indirect means to coerce and intimidate the Government of Nicaragua, using force
and threat against Nicaragua, intervening in the internal affairs of Nicaragua, infringing the
freedom of the high seas and interrupting peaceful maritime commerce, killing, wounding and
kidnapping Nicaragua citizens and blocking access to Nicaraguan ports.12

 Reparations

Nicaragua requested the court to be precisely and evaluate any kind of reparations arose due to
United States violation of international law. Furthermore, the economic reparations requested
by Nicaragua said to based on Us withdraw of its own aid to Nicaragua which has reduced
quota for imports of sugar. In the economic field, Nicaragua claims that the United States has
withdrawn its. It also claims that Us has blocked provision of loans through Inter-American
Development Bank and the International Bank for Reconstruction and Development.13

 THE UNITED STATES ARGUMENT AS A RESPONSE TO NICARAGUA’S

ACCUSATIONS.

The United States was not presented and, not even filled pleadings of merits of the case.
However, its counter-memorial that was questioning legality of jurisdiction of the court was
indicating some sorts proportionate and assistance to third parties and,14 In so doing exercising

11
Id. P. 6
12
Id. P.7
13
Id. P. 8,9
14
Nicaragua v. United States, International Court of Justice, Case Concerning Military and Paramilitary
Activities in and Against Nicaragua of America June 27, 1986 General List No. 70, P. 10, Para 10

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right of collective self-defence guaranteed by article 51 of the Charter' of the United Nations.
Secondly, United States contended that Nicaragua was support armed groups that were
operating in neighbouring states especially El- Salvador and supplying arms. Finally, the
United States also accused Nicaragua being responsible for cross-border military attack on
Honduras and Costa Rica. Thus, it intended to find a defense to these two countries.15

VI. LEGAL ISSUES PERTAINED IN THE CASE

The questions of law before the international court of justice in this case were as follows;

 To know whether United States has violated its obligations under customary
international law, not to intervene in the affairs of another state, as long as it trained,
armed, equipped and financed the contra forces, encouraged, supported and aided the
military and paramilitary activities against Nicaragua.
 To know whether United States violated its obligations under customary international
law, not to use force against another state, since it directly attacked Nicaragua in 1983
and 1984, and its activities resulted in the use of force.
 To know whether United States its activities of military and paramilitary activities
against Nicaragua can be justified as collective self-defence.
 To know whether the United States has violated its customary international law
regarding not violate the sovereignty of another state, as long as it authorized its
aircrafts to fly over the territory of Nicaragua due to use of force.
 To know whether United States violated its customary international law concerning not
to interrupt peaceful maritime commerce, as long as it laid mines in the internal waters
and in the territorial sea of Nicaragua.16

VII. COURT DECISION

 The Court On November 26, 1984, issued a judgment and held that it had jurisdiction,
to decide the merits of Nicaragua's claims, and that there were no grounds of

15
Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice, Case Concerning
the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua V. United States of America)
(Merits), P. 5
16
Ibid

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inadmissibility barring its adjudication of the case thus, it overruled United States
objections towards admissibility of Nicaragua’s case.
 On the Nicaragua’s request of interim measures the court heard its arguments proving
claimed rights and, on may 10, 1984 the court has indicated provisional measures in
four forms; First, the United States of America should immediately cease and refrain
from any action restricting, blocking or endangering access to or from Nicaraguan
ports, and, in particular, the laying of mines. The court also held that both governments
should ensure that no action taken might prejudice other’s rights in respect of executing
court rulings. Thirdly, the governments of both of the United States and Nicaragua must
ensure that no action of any kind is taken which may aggravate or extend the dispute
submitted to the court. Lastly, the court held that Nicaragua’s right to sovereignty and
political independence should be respected not jeopardized by the United States’ acts
prohibited by principles international law.

 The court ruled in favor of Nicaragua and, held that the United States violated its
international law obligations relating not use force against another state, when it
activities with the contra forces resulted in the threat or use of force.
 The court held that the United States violated its customary law obligation, regarding
not to use force against another state when it directly attacked Nicaragua in 1983 and
1984.
 The court ruled against United States and held that it could not justify its military and
paramilitary activities as a basis of collective self-defence. The court refused to rely on
incursions of cross-border attacks on Honduras and Costa Rica was imputable to
Nicaragua.
 The court ruled against United States to have breached its customary international law,
regarding not to intervene in the affairs of another state, when it trained equipped and
financed contras or encouraged, supported and aided the military and paramilitary
activities against Nicaragua.
 The international court of justice ruled in favor of Nicaragua and held that the United
States has violated its customary international, not to violate the sovereignty of another
state. Since it directed and authorized its aircrafts to fly over Nicaraguan territory and
when it laid mines in the internal waters of Nicaragua and territorial sea.17

17
Ibid

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 The Court also held that the United States owed reparations to Nicaragua for breaches
of its customary international law obligations toward that state, and that determination
of the amount of damages would be reserved for a subsequent stage of the
proceedings.18
 The Court held that shipment of such military aid was imputable to Nicaragua had no
sufficient evidence, establish that the government of Nicaragua was itself directly
responsible for the flow of arms to El Salvador, either before or after early 1981.
 The international court of justice also held that the United States has violated its duty
under customary international law not to defeat the object and purpose of 1956
Friendship, commerce and navigation treaty with Nicaragua. The direct attacks on ports
and oil installations, mining operations, and the economic embargo were held to have
violated this duty.

VIII. Court’s holding on use of force and right of self-defence invoked by the United
States to justify its activities against Nicaragua.

 USE OF FORCE

On the issue regarding to use of force, the court brought a controversial finding. Where, it
divided Us acts against Nicaragua as a violation of the prohibition on the use of force
provided under Article 2 (4) of the United Nations Charter.

Most grave forms of the use of force, those that constitutes an armed attack committed by Us
against Nicaragua.

Other less grave forms relating to use of force are organising, instigating, assisting,
participating, that involved threat which were considered as use of force.

However, on the issue of supplying funds to contras was not found as a ground of violating
the prohibition of use of force. The court suggested that any kind of support is not offered a
purposely for particular offensive acts. 19

 COURT’S MOTIVATION ON RIGHT OF COLLECTIVE SELF- DEFENCE

INVOKED BY THE UNITED STATES

18
James P. Rowles, Nicaragua versus the United States: Issues of Law and Policy, Vol. 20, No. 4, P. 34
19
Ibid

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Despite, the United States invoked a legal justification of exercising collective self-defence in
proceedings, to defend its acts against Nicaragua. However, the court proceeded with
conditions under customary law in order to justify such right recognized by article 51 of the
United Nations Charter; first, armed attack a prerequisite for any exercise of the right of self-
defense. Second, with respect to collective self-defense, the state must declare itself as a victim
of an armed attack. The state must also formulate a request for assistance from another state in
responding to that attack. It must also meet a requirement of necessity and proportionality. In
regard to application of that right the court held that there was no armed attack, neither Costa
Rica nor Honduras requested US any assistance in exercise of collective self-defence. So, there
was no grounds of invoking such right rather violation of pre-existing customary international
law obligations.20

Analysis

To sum, this piece of paper has been a thesis of case analysis concerning United States’ military
and paramilitary activities against Nicaragua. This work highlighted summary of facts,
arguments of parties (United States of America and Republic of Nicaragua), court decision,
court motivation on defences regarding rights invoked by the United States to defend its
activities against Nicaragua. In the stand point of view, court rulings that based on United States
activities that abide obligations under peremptory norms of general international law. It was
bound to respect Nicaragua’s sovereignty, not use of force or threat against Nicaragua.

20
Id. P. 34

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