CASE CONCERNING MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA
(Nicaragua v. The United States of America,1986)
| Case Name | Case Concerning Military And Paramilitary Activities In And Against Nicaragua (Nicaragua v. The United States of America, 1986) |
| Equivalent Citation | Military and Paramilitary Activities in and against Nicaragua (The Republic of Nicaragua V. The United States of America), 1986 I.C.J. 14 |
| Court | The International Court of Justice |
| State Parties | The Republic of Nicaragua and The United States of America |
| Date of institution of case | 9th April, 1984 |
| Date of Judgement | 27th June, 1986 |
| Judge Bench | Nagendra Singh, Guy Ledreit de Lacharrière, Roberto Ago, Mohammed Bedjaoui, Taslim Olawale Elias, Manfred Lachs, Kéba Mbaye, Ni Zhengyu, Shigeru Oda, José María Ruda, Stephen Schwebel, José Sette-Camara, Robert Jennings, Claude-Albert Colliard (ad hoc) |
- INTRODUCTION-
The case of Nicaragua v. The United States of America[1] was decided by the International Court of Justice (hereinafter the ICJ) on 27th June 1986. The said case was instituted by the Ambassador of the Republic of Nicaragua to the Netherlands on 9th April 1984 against the United States of America pursuant to the declarations made by the parties accepting the compulsory jurisdiction of the Court under Article 36[2] of the Statute in light of the military and paramilitary activities in and against Nicaragua ever since President Taft II of the United States ordered the first military intervention in Nicaraguan and the subsequent assassination of President Jos Santos Zelaya in 1909. Further a pro-United States government was instated in Nicaragua that was responsible for the signing of innumerable treaties between the two states, including the Bryan Chamorro Treaty, inter alia giving the United States exclusive rights over trade, transport, commerce, and access of Nicaragua. This led to an upsurge among the Nicaraguan masses, transcending into a rebellion between 1927 to 1934. Thus, in order to uphold the sanctity of the International Law, to foster and protect the Sovereignty of the Nicaragua and to seek renumeration for the atrocities faced by the Nicaragua nationals, the said case was brought before the World Court for adjudication. The Republic of Nicaragua further requested for an award of a sum of 370,200,000 United States dollars as the minimum valuation of the direct damages, with the exception of damages for killing nationals of Nicaragua.
- BACKGROUND OF THE CASE:-
Anastasio Somoza Debayle, head of the Nicaraguan National Guard was appointed as the head of the Nicaragua by the United States, who subsequently became a dictator. However, in 1972 when Nicaragua was struck by an earthquake the Sandinista Movement or the Frente Sandinista de Liberacibn Nacional (FSLN) Movement came into being. Initially the purpose of the said movement was to aid those affected by the calamity irrespective of their stature in society however it later transcended into a rebellion against the Somoza governed dictatorship rule. The dispute at hand was primarily with respect to the events that transpired subsequent to the fall of the President Somoza’s Government in Nicaragua in July 1979, and activities of the Government of the United States thereof. The fall of President Somoza led to the instating of a Junta of National Reconstruction and an 18-member government by the Frente Sandinista de Liberacibn Nacional (FSLN). The FSNL members initially had a predominant share in the new government which was often described as a “democratic coalition” which later due to resignations and reshuffles, became almost its sole component. The United States government was initially supportive of the new government and provided economic aid programme Nicaragua. However, sensing a threat to its control over the Nicaragua it suspended this aid to Nicaragua in January 1981 and terminated it in April 1981. As per the United States, the reason for the change in their attitude was reports of involvement of the Government of Nicaragua in logistical support, including provisions of arms for guerrillas in El Salvador. The termination of the aid did not however interrupt the diplomatic relations between the parties. The Government of Nicaragua further claimed that in September 1981, the United States contrived and undertook armed activities directed against the country and its government by supporting Contras or rebel groups namely the Fuerza Democratica Nicaragüense (FDN ) and Alianza Revolucionaria Democratica (ARDE) that were formed in order to suppress the FSLN Movement in their endeavors of continuing the dictatorial regime. The FDN operated along the border of Honduras while ARDE operated along the border of Costa Rica. These rebel groups however lost to the Nicaragua powers. It was due to this involvement of the United States in supporting the organization that the government of Nicaraguan filed a claim before the International Court of Justice against the United States on account of breach of its sovereignty.
- ISSUES RAISED-
The issues raised before the court by the parties to the dispute are as follows,
- Whether the International Court of Justice have the Jurisdiction to try the matter at hand?
- Whether the United States of America violated the Customary International Law by encroaching upon the sovereignty of Nicaragua by training, arming, equipping, and financing the contras or the rebel groups or by encouraging, supporting, and aiding the military and paramilitary activities against Nicaragua?
- Whether the military and paramilitary activities undertaken in and against Nicaragua be justified as collective self-defense?
- Whether The United States of America Violated Article 2 of the United Nations Charter[3] and Article 18[4] and Article 20[5] of the Charter on Organization of the American States and Article 8[6] of the Convention on the Rights and Duties of the States with respect to non-intervention in the affairs of other State?
- JUDGEMENT:-
In the given case the International Court of Justice in all its sagacity reiterated that under Article 387 of the Statute of the ICJ, while also citing the North Sea Continental Shelf case [7] that the said court is entitled to apply customs wherein there is concrete proof of the existence of a general practice, only then can it be recognized by the law. In the matter at hand, the general practice of non-interference in the affairs of other nation-states and no use of force against other states persisted. Further, the questions with respect to admissibility and jurisdiction were primarily based on the rules of ICJ having power only to the extent agreed upon by the parties. The Declaration of Nicaragua of 1929 and the Declaration of the United States of 1946 pointed out the willingness of both parties to be subjected to ICJ’s jurisdiction. Thus, the ICJ had the jurisdiction to try the said matter. The court further held the United States of America liable for encroaching upon the sovereignty of Nicaragua by training, arming, equipping, and financing the contras or the rebel groups or by encouraging, supporting, and aiding the military and paramilitary activities against Nicaragua. As under Para 99[8] of the judgment the court established that in all events from 1981 until September 30, 1984, the United States Government had been providing monetary assistance to the contras or the rebel groups against the Nicaragua government for carrying out military and paramilitary activities. Under Para 122[9] of the judgment, the Court concluded that in 1983 United States Government agency had supplied to the FDN with a manual on psychological guerrilla warfare. These texts supplied by the United States agencies advised the use of professional criminals to perform unspecified “jobs”, and the use of provocation as a tool of mass demonstrations to produce violence on the part of the authorities so as to make “martyrs”. Finally, it was observed by the hon’ble court that in customary international law, a state is not permitted to use the right of collective self-defense until it is invoked. It is a sine qua non precondition that the state for whose profit this right is used must have mentioned itself to be a victim of an armed attack. Thus, the USA violated the sovereignty of Nicaragua and was made liable to pay reparations. The process of retrieving the reparations however came to an abrupt halt in 1991. Nicaragua revived the process of seeking reparations of $17 billion in 2017 for the damages so incurred.
- CONCLUSION
In the given case the International Court of Justice truly upheld the sanctity of law by holding the United States accountable for its actions despite being faced with incessant diplomatic pressure for the USA is undoubtedly a global dominator and was among the five permanent members of the UN Security Council. However, the outcome of the said judgment did not materialize into what it had set out to achieve further shedding light on the lacunas of International Law as the United States refused to pay the reparations to Nicaragua. It withdrew its declaration of compulsory jurisdiction, blocked Nicaragua’s appeal to the UN Security Council, and on 18th January 1985 declared that it had no intention whatsoever to participate any further in the proceedings relating to the case. Several jurists including Austin are of the view that International law cannot be called law in the true sense as it does not have adequate sanction behind it[10]. Thus, Formulating a concrete mechanism for strengthening the enforceability of ICJ’s judgments is the need of the hour. Moreover, to eradicate all biases and to facilitate fair and just decision-making the powers of the permanent members of the UN Security Council are to be reduced.
[1] Military and Paramilitary Activities in and against Nicaragua (The Republic of Nicaragua V. The United States of America), 1986 I.C.J. 14.
[2] Article 36, Statute of the International Court of Justice.
[3] Article 2, United Nations Charter.
[4] Article 18, Charter on Organization of America.
[5] Article 20, Charter on Organization of the American States.
[6] Article 8, Convention on the Rights and Duties.
[7] North Sea Continental Shelf, Germany v. Denmark ICJ Rep 3, ICGJ 150 (1969).
[8] Para 99, Military and Paramilitary Activities in and against Nicaragua (The Republic of Nicaragua V. The United States of America), 1986 I.C.J. 14, available at- https://www.icj-cij.org/public/files/case-related/70/070-19860627-JUD-01-00-EN.pdf
[9] Para 122, Military and Paramilitary Activities in and against Nicaragua (The Republic of Nicaragua V. The United States of America), 1986 I.C.J. 14, available at – https://www.icj-cij.org/public/files/case-related/70/070-19860627-JUD-01-00-EN.pdf.
[10] J. Austin.
written by Ananya Gosain, Law College Dehradun.
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