The Republic of Nicaragua v. The United States of America ICJ REPORTS 1986, P. 14 Anshu Pratap Singh 08IP6009
The Facts • July 1979 Sandinista government in Nicaragua • 1981 Nicaragua supported armed groups in El Salvador • 1983 USA fund for the Contras • 1984 USA laid mines in Nicaraguan ports; infringement of Nicaraguan air space; economic measures against Nicaragua • 9 April 1984 Nicaragua’s claim at the ICJ
• October 1984 the Court held public hearings on the questions of the jurisdiction and the admissibility of the Application. • 26 November 1984 the Court found that it had jurisdiction to entertain the case; and that the Application was admissible. • 18 January 1985 United States decided not to participate in any further proceedings
Arguments - Nicaragua : • Violations of treaty obligations (supplying military paramilitary actions) • Violations of international law (sovereignty, use of force, intervention) • Reparations
Arguments - USA: • Nicaragua supported armed groups particularly El Salvador • Cross border military attacks on Honduras and Costa Rica • Collective self defence
• USA has accepted the compulsory jurisdiction of ICJ under Article 36 of the Statute of ICJ with a reservation which excludes the “disputes arising under a multilateral treaty, unless - all parties to the treaty affected by the decision are also parties to the case before the Court, or - the United States of America specially agrees to jurisdiction.”
• Reservation applicable in this case because - U.S. did NOT specially agree to the jurisdiction in this case, and - Parties to the treaty affected by the decision were NOT all parties before the court. Parties to the dispute included United States and Nicaragua. However, U.S. claimed it was acting in collective self- defense on behalf of El Salvador. El Salvador was not a party before the Court. The Court determined El Salvador would be affected by its judgment.
• reservation barred Court from applying the multilateral treaties to this case. • However, - The Court viewed the reservation as a limitation on the type of law that the court could apply (multilateral treaties), not as a limitation on its overall jurisdiction to hear the case. - Thus other sources of law under Art. 38 of the Statute of the ICJ were still applicable , including customary international law. • U.S. argued that customary rules whose content is identical to that of the treaties cannot be applied due to the U.S. reservation.
• The Court rejected this and held that just because a treaty incorporates customary international law, it does not deprive the customary law of its applicability distinctly from the treaty. • Thus according to the Court, treaties and customary law have independent existence and apply separately , even when both deal with the same subject matter.
• Example: BILATERAL TREATY A and B are subject to it State A breaches, State B no longer obligated to comply CUSTOMARY LAW applicable two States still have to abide by it, independently of the treaty.
Opinio Juris and State Practice What are the rules of customary law applicable in present the case??? • For this Purpose the Court considered whether a customary rule exists in the opinio juris of States, and satisfy itself that it is confirmed by practice . “ opinio juris sive necessitatis” means "opinion that an act is necessary by rule of law” conduct or a practice a rule of customary international law, If nations believe that international law mandates the conduct or practice.
Opinio Juris and State Practice • The material of customary international law must be checked in the actual practice and opinio juris of States. • Declaration of the recognition of certain rules is not sufficient to consider these as part of customary international law and as applicable as such to those States. • The Court must satisfy itself that the existences of the rule in the opinio juris of States is confirm by practice.
Opinio Juris and State Practice • Thus, the Court held that the attitude of the parties and States towards certains General Assembly Resolutions could be indicative of opinio juris . Expression of opinio juris can be • support of the resolution of International Conference of American States condemning aggression and • ratification of the Montevideo Convention on Rights and Duties of States
• If enough evidence of state practice, opinio juris not necessary, • If little evidence of state practice greater evidence of opinio juris • In this case the ICJ demanded very little evidence of actual state practice, where it saw clear evidence of opinio juris. It found evidence of opinio juris by looking to the General Assembly resolutions. (Int. Law Association - London Conference 2000)
The Content of Applicable Customary International Law • Principle of Non intervention • Prohibition of use of force against another State • Right to self-defence. • State sovereignty. • Collective counter-measures in response to conduct not amounting to armed attack.
How the ICJ Address State Practice and Opinio Juris 1. Use of Force • Party Agreement • General Assembly Resolution 2625 (XXV) • Resolution of The Sixth International Conference of American States Concerning Aggression 18 Feb 1928 • Montevideo Convention on the Rights and Duties of States 26 December 1933
2. Self Defence - Party Agreement - UN Charter Article 51 - General Assembly Resolution 2625 (XXV) - General Assembly Resolution 3314 (XXIX) - Charter of Organisations of American States - International Treaty of Reciprocal Assistance 1947 3. Non-intervention right of every sovereign State to conduct its affairs without outside interference . - Numerous declarations and resolutions - Corfu Channel (Merits) United Kingdom v Albania 1949 ICJ Reports 4
4. Collective counter-measures in response to conduct not amounting to armed attack • Counter-measures is an exemption of non-intervention principle; • Counter-measures is analogous to the right of self- defence in the case of armed attack; • States do not have a right of "collective”armed response to acts which do not constitute an “armed attack”.
5. State sovereignty The concept of sovereignty extends to the internal waters and territorial sea of every State and to the airspace above its territory: - Art. 2(1) of the UN Charter; - Art. 1 of the Chicago Convention on International Civil Aviation (1944); - Geneva Convention on the Territorial Sea (1958); - UN Convention on the Law of the Sea (1982). - Laying of mines by another State is infringement of the freedom of communications and of maritime commerce.
6. Humanitarian law • A breach of the principles of humanitarian law underlying the specific provisions of Hague Convention (Art. 3 and 4); • United States commited violation of Art. 3 of the fourth Geneva Convention; • The conflict between Contras forces and those of the Government of Nicaragua is an armed conflict which is "not of an international character"; • Obligation on the United States Government, in the terms of Art.1of the Geneva Convention is to "respect" the Conventions and even "to ensure respect" for them "in all circumstances"(general principle of humanitarian law)
Judgment Customary Violations by USA International Law Non-intervention training, arming, equipping, financing and supplying the contra forces No Use of Force Attacks on Nicaraguan territory in 1983, 84 State Sovereignty Attacks on Nicaraguan territory in 1983, 84 laying mines in the internal waters Humanitarian distribution of manual to contra forces regarding guerrilla warfare.
• Rejected the justification of collective self-defence maintained by the United States • Decided - United States of America is under a duty immediately to cease and to refrain from all such acts as may constitute breaches of the foregoing legal obligations; - make reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of obligations under customary international law