Summaries of the Decisions
Military and Paramilitary Activities in and against Nicaragua
Nicaragua v. USA
Judgment of the Court of June 27,1986
On April 9,1984, Nicaragua had initiated proceedings against the United
States of America in the International Court of Justice. The action was based on
the allegation that the United States had supported by its policy and actions a
mercenary army, the contras, in launching attacks on the territory of Nicaragua,
with the purpose of overthrowing the (Sandinista) Government of Nicaragua. By
funding and assisting, covertly and overtly, the "contra" movement,
the United States was using - according to Nicaragua - armed force against
Nicaragua in violation of the international obligations of the United States
under general international law as well as under the United Nations Charter, the
OAS Charter and the bilateral United States-Nicaragua Treaty of Friendship and
Commerce. In particular, it was submitted by Nicaragua that the United States
was violating the prohibition of the use of force in international relations and
the parallel rule on prohibition of intervention.
As a first step, the Court had decided on the interim measures requested by
Nicaragua. By Order of 10 May 1984, the Court had indicated some provisional
measures. By Order of 15 August 1984, the Court had then rejected the
declaration to intervene under Article 63 of the Statute made by El Salvador. At
the end of the first phase, the Court finally had decided in its judgment on
jurisdiction and admissibility of 26 November 1984 that it had jurisdiction
under Article 26 para. 2 of the Statute.
Having lost in the jurisdiction and admissibility phase, however, the United
States did not cease to continue in contesting the Court's jurisdiction and
decided not to appear before the Court in the proceedings on the merits. That
decision made the dispute even more complicated to resolve for the Court, but
the Court came to the conclusion that the United States' non-appearance did not
prevent it from giving a decision in the case. A requirement to be respected in
such a situation was only established by Article 53 of the Statute, according to
which the Court has to satisfy itself that the claim of the party appearing is
well founded in fact and law. There exists no possibility of a judgment
automatically in favor of the applicant State, but the Court also has to ensure
that the party which declines to appear should not be permitted to profit from
its absence. This leads to a result in which a particular emphasis is placed on
the active role of the Court in establishing the facts and the law relevant for
deciding the case. As to determination of the facts and the production of
evidence, the Court further stressed that it had freedom in estimating the value
of the various elements of evidence. Although the Court found it necessary to
treat these sources with caution, some types of alleged evidence like certain
documentary material, evidence of witnesses presented by the applicant and
certain governmental publications can contribute to corroborate the existence of
a fact and can be taken into account to show whether facts are matters of public
knowledge, even when they do not constitute evidence capable of proving facts.
Concerning the United States' preliminary objection that the questions of
the use of force and collective self-defence raised in the case were not
justiciable, the Court argued that as a "legal dispute" the case did
not necessarily involve it in evaluation of political or military matters, but
that the issues raised of collective self-defence were legal questions which it
had competence to determine. The multilateral treaty reservation invoked by the
United States, however, was confirmed by the Court to be a relevant obstacle to
further exercise of its jurisdiction, at least in part. In the first
(procedural) phase the Court had declared that the objection to jurisdiction
based on the reservation did "not possess, in the circumstances of the
case, an exclusively preliminary character" since it contained both
preliminary aspects and other aspects relating to the merits and that,
accordingly, it had to be dealt with at the stage of the merits. The reservation
had excluded from the jurisdiction of the Court all "disputes arising under
a multilateral treaty" which could affect third States which are parties to
the treaty but which are not participating in the proceedings before the Court.
Now, after a careful examination of the reservation, the Court concluded that it
would be impossible to say that a ruling on the alleged breaches of the Charter
of the United Nations as well as of the OAS Charter would not "affect"
third parties, in particular El Salvador as the supposed beneficiary of the
claimed actions of collective self-defence. Therefore, the jurisdiction
conferred on the Court by the United States declaration under Article 36 para. 2
of the Statute did not permit the Court to entertain the claims based on
violations of multilateral treaties such as the United Nations Charter and the
OAS Charter. But the effect of the reservation was confined to barring the
applicability of these two multilateral treaties as multilateral treaty law; as
far as the application was based on principles of international customary law
enshrined also in treaty law provisions, the multilateral treaty reservation did
not exclude the Court's jurisdiction under the United States optional clause.
As to the facts, the Court found it established that some incidents were
directly imputable to the United States. For example it was clear, after
examining the facts, that, on a date in late 1983 or early 1984, the President
of the United States had authorized a U.S. Government agency to lay mines in
Nicaraguan ports. Accordingly, in early 1984 mines had been laid in or close to
several ports of Nicaragua, either in Nicaraguan internal waters or in its
territorial sea or both, and they had been laid by persons in the pay and acting
on the instructions of the U.S. agency, under the supervision and with the
logistic support of United States agents. Directly to be attributed to the
United States were also several operations against Nicaraguan oil installations,
a naval base and other facilities of the State of Nicaragua, carried out as
direct actions of United States personnel, or of persons in its pay. Although it
could not be proved that any United States military personnel took a direct part
in the operations, United States agents undoubtedly participated in the
planning, direction and support of these operations.
Quite to the contrary, the question of imputability of operations created
numerous difficulties in the case of the field activities of the `contra' force.
In contrast to the Nicaraguan allegation that the `contra' forces were a
mercenary army created and controlled by the United States, the Court, on the
basis of the available information, was notable to satisfy itself beyond doubt
that the United States had "created" the 'contra' force; the Court
only held it established that the United States largely financed, trained,
equipped, armed and organized the FDN, one main element of the force. In the
light of the evidence and material available to it, the Court was not satisfied
that all the operations launched by the `contra' force, at every stage of the
conflict, reflected strategy and tactics solely devised by the United States.
Despite all the evidence of logistic support, the supply of intelligence
information, the use of United States military advisers etc., the evidence did
not warrant a finding that the United States gave direct combat support (in the
sense of a direct intervention by United States combat forces) nor did it
warrant a finding that the `contras' could be equated, for legal purposes, with
an organ of the United States Government, or as acting on behalf of that
Government. Such a direct attribution of `contra' forces to the United States
Government as an organ acting on behalf of that Government would have required
an extreme degree of control over the rebel forces, a degree of control that
could have been inferred only from the fact of total dependence of the `contras'
on United States aid; that the United States exercised such a degree of control,
however, could not be deduced from the evidence collected by the Court. In
conclusion, the Court took the view that the `contras' remained responsible for
their acts, and in particular for the alleged violations by them of humanitarian
law. United States participation, even if preponderant or decisive, in the
financing, 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, in the view of the Court was still insufficient in itself for
the purpose of attributing to the United States the acts committed by the
`contras' in the course of their military or paramilitary operations in
Nicaragua.
Concerning the measures of an economic nature complained of by Nicaragua as
an indirect form of intervention in its internal affairs, the Court centred its
attention on the suspension (and subsequent termination) of economic aid in the
spring of 1981, the American actions to block loans to Nicaragua from
international financial bodies, the reduction of the sugar import quota in
September 1983 and the total trade embargo declared by executive order in May
1985.
As to the reverse factual allegations brought up by the United States in
order to justify its actions as an exercise of collective self-defence, the
Court had to cope with the difficulties created by the non-participation of the
applicant side. There was no evidential material presented by the United States
in the proceedings on the merits, and it was not easy to substantiate the
alleged assistance of Nicaragua to armed rebel forces operating in neighbouring
countries, particularly in El Salvador. Confined to rudimentary investigations
of the facts by the Court itself, the factual basis of the allegations could not
really be clarified. Evidence of military aid from or through Nicaragua to rebel
forces in El Salvador remained weak, although the Court could not conclude that
no transport of or traffic in arms had taken place. Thus, the Court could only
take note "that the allegations of arms-trafficking are not solidly
established" and that it "has not, in any event, been able to satisfy
itself that any continuing flow on a significant scale took place after the
early months of 1981", the date until which support for the armed
opposition in El Salvador could be established as a fact by the Court.
But the Court went even further by raising the question of imputability of
deliveries to the Government of Nicaragua: it noted that, having regard to the
circumstances characterizing this part of Central America, it is scarcely
possible for Nicaragua's responsibility for an arms traffic taking place on its
territory to be automatically assumed. On the contrary, the Court considered it
more realistic, and consistent with the probabilities, to recognize that an
activity like arms-trafficking, if on a limited scale, may very well be pursued
unbeknown to the territorial government". Accordingly, the Court came to
the result that the evidence was insufficient to satisfy it that the Government
of Nicaragua was responsible for any flow of arms at either period. The fact
that certain trans-border military incursions into Honduras and Costa Rica were
imputable to Nicaragua, however, was considered by the Court to be established.
As to the law applicable to the dispute, the Court confined its reasoning in
principle to the body of customary international law. Given its approach to the
United States multilateral treaty reservation, the Court had to analyze the
scope and content of the customary law rules parallel to the multilateral treaty
norms excluded by the American reservation. Even in cases where a treaty norm
and a customary norm were to have exactly the same content, the Court did not
see that as a reason to judge the customary norm as being necessarily deprived
of its separate applicability. Consequently, the Court felt in no way bound to
uphold customary rules only in so far as they differ from the treaty rules which
it was prevented by the United States reservation from applying. The Court held
that in the field in question customary law continues to exist alongside treaty
law. The areas governed by the two sources of law often do not overlap exactly,
and in many cases the rules also do not have the same content.
In its analysis of the concrete rules of customary law to be applied in the
dispute, however, the Court decisively relied on the treaty law of the UN
Charter in establishing the content of the applicable law, despite its
theoretical emphasis on `opinio juris' and actual practice.
Concerning the substance of the customary rules relating to the use of force
in international relations, the Court stated that the principles as to the use
of force incorporated in the United Nations Charter correspond, in essentials,
to those found in customary international law. In order to be satisfied that
there exists in customary law an 'opinio juris' as to the binding character of
the obligation to refrain from the threat or use of force, the Court mainly
dealt with the practice in the United Nations. The Court argued that an 'opinio
juris' may, though with all due caution, be deduced from the attitude of the
Parties and the attitude of other States towards certain General Assembly
resolutions, in this case particularly the "Friendly Relations Declaration"
of 1970. Consent to such resolutions is, as the Court stressed, not to be
understood as merely a "reiteration or elucidation" of the treaty
commitment undertaken in the Charter, but has to be qualified as an acceptance
of the validity of the rule declared by the resolution, here: as one of the
forms of expression of `opinio juris' with regard to the principle of non-use of
force.
Even more reliance on the set of rules created by the system of the United
Nations Charter characterized the considerations of the Court relating to the
right of self-defence. That the general rule of customary law prohibiting force
allows for certain exceptions was viewed as undisputed by the Court. Already the
terms of Article 51 of the United Nations Charter demonstrate that the State
community starts from the assumption that there exists an "inherent right"
of self-defence based in customary law which, in principle, covers both
collective and individual self-defence. In defining, however, the specific
conditions which may have to be met for its exercise, in addition to the
conditions of necessity and proportionality, the Court distinguished "the
most grave forms of the use of force" (those constituting an armed attack)
from "other less grave forms". Without further attempting to base this
distinction in an analysis of State practice, the Court erected its subsequent
argumentation on the crucial concept of "armed attack" established by
Article 51 of the UN Charter. Whether self-defence be individual or collective,
its exercise is, according to the Court, subject to the State concerned having
been the victim of an armed attack. To the Court there appeared to be general
agreement on the nature of the acts which can be treated as constituting armed
attacks. An armed attack in the construction of the Court must be understood as
including not merely action by regular armed forces across an international
border, but also the sending by a State of armed bands or groups on to the
territory of another State, if such an operation, because of its scale and
effects, would have been classified as an armed attack had it been carried out
by regular armed forces. In this respect the Court quoted the definition of
aggression annexed to General Assembly resolution 3314 (XXIX), which in the view
of the Court may be taken to reflect customary law. Not to be included in the
concept of "armed attack", however, are acts of mere assistance to
rebels in the form of the provision of weapons or logistical or other support.
Such assistance may, the Court believed, be regarded as a threat or use of
force, or may amount to intervention in the internal or external affairs of
other States, but it may not justify an action of self-defence.
Furthermore, the Court found it to be clear that it is the State which is
the victim of an armed attack which must form and declare the view that it has
been so attacked. The Court stated that there is no rule in customary
international law permitting another State to exercise the right of collective
self-defence on the basis of its own assessment of the situation; what is always
required is a formal request by the State which is a victim of the alleged
attack, a requirement mainly deduced by the Court from Article 3 of the OAS
Charter.
Also the principle of non-intervention, which involves the right of every
sovereign State to conduct its affairs without outside interference, was
construed by the Court with particular reference to the numerous declarations
and resolutions on that subject-matter adopted by international organizations
and conferences. As regards the content of the principle, the Court noted that a
prohibited intervention must be one bearing on matters in which each State is
permitted, by the principle of State sovereignty, to decide freely (for example
the choice of a political, economic, social and cultural system). Intervention
is regarded to be wrongful when it uses, in regard to such choices, methods of
coercion. The element of coercion, which in the view of the Court 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. With regard to the second question raised by the Court,
namely the question whether the practice is sufficiently in conformity with the
principle of non-intervention for this to be a rule of customary international
law, the Court concluded, notwithstanding the fact that there had been in recent
years a number of instances of foreign intervention for the benefit of
opposition groups, that the practice of States does not justify the view that
any general right of intervention in support of an opposition within another
State exists in contemporary international law.
As a consequence of its ruling that collective self-defence requires the
existence of an armed attack, the Court then had to deal with the question
whether there exists a right to take counter-measures (individually as well as
collectively) in response to conduct not amounting to armed attack but in breach
of the principle of non-intervention. Such a right to take collective
counter-measures would be analogous to the right of self-defence in the case of
armed attack, but the act giving rise to the reaction, as well as the reaction
itself, would be less grave, not amounting to armed attack. In the view of the
Court, however, under international law in force today, States do not have a
right of "collective" armed response to acts which do not constitute
an "armed attack"; at the same time the Court left open the question
what direct reactions are lawfully available to a State which considers itself
the victim of another State's acts of intervention, possibly involving the use
of force.
In dealing with the principle of respect for State sovereignty, which
extends, as the Court recalled, to the internal waters and territorial sea of
every State and to the airspace above its territory, the Court noted that the
laying of mines within the ports as well as in the territorial sea necessarily
affects the sovereignty of the coastal State. Besides, the customary right of
innocent passage and the right of free access to ports, which both follow from
the freedom of communications and of maritime commerce, are also infringed by
such mining operations. Accordingly, the Court found it certain that
interference with navigation by the laying of mines prejudices both the
sovereignty of the coastal State over its internal waters, and the right of free
access enjoyed by foreign ships. It was further observed by the Court that the
absence of any warning or notification with regard to the mining was not only an
unlawful act but also a breach of the principles of humanitarian law underlying
the Hague Convention No. VIII of 1907.
Since the evidence available was insufficient for the purpose of attributing
to the United States the acts committed by the `contras', the Court could not
judge the alleged violations by the `contra' forces of the principles of
international humanitarian law. What remained as a question, however, according
to the construction of the Court, was the law applicable to the acts of the
United States in relation to the activities of the `contras'. The Court analyzed
that question not from the perspective of the treaty law laid down in the four
Geneva Conventions of 12 August 1949, but as a question of the "fundamental
general principles of humanitarian law" stated in Article 3 common to the
four Geneva Conventions; in the Court's view, the Geneva Conventions are in some
respects a development, and in other respects no more than the expression, of
such principles. For the Court there was no doubt that these rules constitute a
minimum yardstick, reflecting what the Court already in 1949 had called "elementary
considerations of humanity". The Court therefore found them applicable to
the dispute, with the effect that the United States was seen to be under an
obligation to "respect" the Conventions and even to "ensure
respect" for them, and thus not to encourage persons or groups engaged in
the conflict in Nicaragua to act in violation of these "fundamental general
principles".
The Court ultimately used as a legal yardstick the bilateral Treaty of
Friendship, Commerce and Navigation signed at Managua on 21 January 1956. In its
Judgment on jurisdiction and admissibility of 26 November 1984, the Court had
concluded that it had jurisdiction also on the basis of the 1956 Treaty of
Friendship, Commerce and Navigation, concerning disputes as to the
interpretation or application of the treaty. The Court now found that it had to
determine the meaning of the various relevant provisions, in particular the
derogation clause of Article XXI para. 1 (c) and 1 (d) of the treaty.
In the final part of the Judgment, the Court then related its abstract
statements on the applicable law to the factual findings it had made earlier.
Beginning with the question of the lawfulness of the use of force and the
alleged justification of the American actions under the right of self-defence,
the Court appraised the facts as proved by the available evidence to constitute
infringements of the principle of non-use of force, unless justified by
circumstances which exclude their uniawfulness. The laying of mines in the
internal waters and territorial sea of Nicaragua, the attacks on Nicaraguan
ports, oil installations and naval bases directly imputable to the United
States, but also the arming and training of the `contras' were judged by the
Court to be a prima facie violation of the prohibition of the use of
force, unless these actions could be justified as an exercise of the right of
self-defence. To fulfil the requirements of a lawful action of collective
self-defence, the Court would have had to find that Nicaragua engaged in an
armed attack against El Salvador, Honduras or Costa Rica, since only such an
attack could have justified reliance on the right of self-defence according to
the Court's construction of the relevant principles of customary international
law. With regard to El Salvador, however, the Court considered that the
provision of arms to the opposition in another State did not constitute an armed
attack on that State; concerning Honduras and Costa Rica, the Court stated that,
in the absence of sufficient information as to the transborder incursions into
the territory of those two States from Nicaragua, it was difficult to decide
whether they amounted to an armed attack by Nicaragua. The Court found that
neither these incursions nor the alleged supply of arms might be relied on as
justifying the exercise of the right of self-defence. The Court also came to the
conclusion that the procedural requirements put up for the exercise of this
right, namely that the States allegedly attacked believed themselves that they
were the victim of an armed attack, and expressly requested the assistance of
the State claiming to act in collective self-defence, were not present. In
addition, the Court regarded the United States activities as not satisfying the
criteria of necessity and proportionality. The Court thus decided, by 12 votes
to 3, that it had to reject the justification of collective self-defence
maintained by the United States in connection with the military and paramilitary
activities in and against Nicaragua, and that accordingly the United States had
acted in breach of its customary law obligation not to use force against another
State.
As regards the principle of non-intervention, the Court found it clearly
established that the United States intended, by its support of the `contras', to
coerce Nicaragua in respect of matters in which each State is permitted to
decide freely. It considered that 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 its government, that amounts to an intervention in its internal
affairs, whatever the political objective of the State giving support. Basing
its further reasoning on the conclusion that intervention in the internal
affairs of another State does not produce an entitlement to take collective
counter-measures involving the use of force, and that the acts of intervention
of which Nicaragua was accused could only have justified proportionate
counter-measures on the part of the State which had been the victim of these
acts, the Court stated that there was no justification for counter-measures
taken by a third State, the United States. The Court therefore found, by 12
votes to 3, that the support given by the United States to the military and
paramilitary activities of the `contras' in Nicaragua, by financial support,
training, supply of weapons, intelligence and logistic support, constituted a
clear breach of the obligation under customary law not to intervene in the
affairs of another State. With regard to the form of "indirect"
intervention which Nicaragua saw in the taking of certain economic sanctions,
however, the Court felt unable to regard such action as a breach of the
customary law principle of non-intervention.
Also by 12 votes to 3, the Court decided that the direct attacks on
Nicaraguan ports, oil installations etc., the unauthorized overflights of
Nicaraguan territory and the mining operations in Nicaraguan ports infringed the
principle of respect for territorial sovereignty. The laying of mines in or near
Nicaraguan ports additionally was qualified as constituting an infringement, to
Nicaragua's detriment, of the freedom of communications and of maritime
commerce. Concerning the mining operations, the Court further decided, by 14
votes to 1, that the United States, by failing to give notice of the existence
and location of the mines laid by it, was responsible for a breach of customary
principles of international humanitarian law. Also constituting a breach of its
obligations under the general principles of humanitarian law was the publication
and dissemination in 1983 of a manual entitled "Operaciones sicológicas
en guerra de guerrillas", since by virtue of the general principles of
humanitarian law the United States was bound to refrain from encouragement of
groups engaged in conflict to commit violations of the humanitarian minimum
standard laid down in Article 3 common to the four Geneva Conventions.
As to the other grounds mentioned by the United States in justification of
its acts, the Court reaffirmed that there does not exist a new rule opening up a
right of intervention by one State against another on the ground that the latter
has opted for some particular ideology or political system; that alleged
violations of human rights could not be taken as a justification for the use of
force, since the use of force could not be the appropriate method to monitor or
ensure respect for human rights; and that the alleged militarization of
Nicaragua may not be accepted as justifying the use of force, since in
international law there are, according to the Court, no rules, other than such
rules as may be accepted by the State concerned, whereby the level of armaments
of a sovereign State can be limited.
Finally, the Court turned to the claims of Nicaragua based on the Treaty of
Friendship, Commerce and Navigation. Nicaragua had accused the United States of
depriving the Treaty of its object and purpose and of emptying it of real
content. Although the Court felt unable to regard all the acts complained of in
that light, it considered that there were certain activities of the United
States which were such as to undermine the whole spirit of the agreement. These
were, according to the Court, the mining of Nicaraguan ports, the direct attacks
on ports, oil installations etc., and the general trade embargo. By 12 votes to
3, the Court thus decided that these were acts calculated to deprive of its
object and purpose the Treaty of Friendship, Commerce and Navigation of 21
January 1956. Also by 12 votes to 3, the Court decided that by the attacks on
Nicaraguan ports and oil installations as well as by the declaration of a
general trade embargo, the United States had acted in breach of the clause on
freedom of commerce and navigation contained in Article XIX of the Treaty. The
contention that by the mining of Nicaraguan ports the United States had acted in
manifest contradiction with the freedom of navigation and commerce guaranteed by
Article XIX of the Treaty, was upheld by the Court with 14 votes to 1.
The remaining task of the Court was to adjudge on the Nicaraguan claim
concerning reparation. Alter satisfying itself that it had jurisdiction to order
reparation, the Court declared as appropriate the request of Nicaragua for the
nature and amount of the reparation to be determined in a subsequent phase of
the proceedings, and considered only the fundamental question whether Nicaragua
had a legal claim to demand compensation at all. The Court decided that the
United States is under an obligation to make reparation for all injury caused to
Nicaragua by the breaches of obligations under customary law and the 1956 Treaty
on Friendship, Commerce and Navigation, and that the form and amount of such
reparation, failing agreement between the parties, will be settled by the Court,
which reserved for this purpose the subsequent procedure in the case. Finally,
the Court unanimously recalled to both parties to the case the need to
co-operate with the Contadora efforts in seeking a definitive and lasting peace
in Central America, in accordance with the customary law principle of peaceful
settlement of international disputes.
