Nicaragua V Us

NICARAGUA V.
US
FACTS:
On July 1979, the government of President Samoza was replaced by a government

installed by the Frente Sandinista de Liberacion Nacional (FSLN). The US was initially
supportive of the FSLN, but the US changed its attitude when it found out that FSLN
was providing logistical support and weapons to guerillas in El Salvador.
In 1981, the US stopped it support to Nicaragua and allegedly decided to undertake

activities directed against Nicaragua. Also, two new groups of rebels against FSLN
emerged namely, Fuerza Democratica Nicaraguense (FDN) who operated in the border
of Honduras and Alianza Revolucionaria Democratica (ARDE) who operated in the
border of Costa Rica. These rebels were collectively known as Contras. The US,
allegedly, aided the Contras in its fight against the FSLN. Thus, Nicaragua filed a case
against the US before the International Criminal Court of Justice (ICJ).
ALLEGATIONS OF NICARAGUA:
1. That US effectively controlled the Contras and that these rebels are paid for by the
US to fight the FSLN
2. That US military carried out attacks to overthrow the Nicaraguan Government when it
mined the Nicaraguan ports and committed other attacks on the ports, oil installation,
and naval base of Nicaragua.
3. That US aircrafts flew over Nicaraguan territory to gather intelligence, to provide

supplies to the Contras, and to intimidate the population.
ALLEGATIONS OF US:
1. That ICJ has no jurisdiction over the case filed because of the Multilateral Treaty
Reservation that US signed.
2. That the US acted under the inherent right of collective self-defense guaranteed by
Art. 51 of the UN Charter when it provided, upon request, the appropriate assistance to
Costa Rica, Honduras and El Salvador in response to the acts of aggression committed
by Nicaragua against these countries.
ISSUES:
1. Whether the ICJ has jurisdiction over the case.
2. Whether the US violated the customary international law of non-use of force.
2. Whether the US can validly invoke collective self-defense.
RESOLUTION:
1. The ICJ has jurisdiction over the case based on the principle of jus cogens.
A. What is the Multilateral Treaty Reservation or Vandenberg Reservation?

 It is a reservation which states that the US will not be affected by the
decision of the ICJ:
i. Unless and until all parties to the case are also members of the
UN, or
ii. Unless US especially agrees to it
On the basis of the Vandenberg reservation made by the US, the ICJ ruled that it
has no jurisdiction over the case because the decision of the ICJ would not affect
El Salvador, Honduras, and Costa Rica. However, the allegation that the US
violated the principle of the non-use of force which is a jus cogens vested
jurisdiction to the ICJ.
The ICJ provided that a treaty norm and an international customary law
(peremptory norm) should peacefully co-exist. The following shows the
relationship between treaty and international customary law:
a. Situations where customary law principles are identical to treaty

provisions
 apply the treaty and customary law side by side
b. Situations where treaty and customary law rights and obligations

differed in respect with the same subject matter
 If there is no conflict, then apply the treaty and customary law
harmoniously with the case
 If there is conflict, then the customary law or jus cogens must
govern because it occupies the highest position in the hierarchy
of laws. Apply Art. 53 of the Vienna Convention on the Law of
Treaties.
NOTE: Article 53. TREATIES CONFLICTING WITH A PEREMPTORY
NORM OF GENERAL INTERNATIONAL LAW ("JUS COGENS") A treaty is
void if, at the time of its conclusion, it conflicts with a peremptory norm of
general international law. For the purposes of the present Convention, a
peremptory norm of general international law is a norm accepted and
recognized by the international community of States as a whole as a norm
from which no deroga tion is permitted and which can be modified only by a
subsequent norm of general international law having the same character.
In this case, the jus cogens of non-use of force should prevail over the
multilateral treaty reservation made by the US because of the conflict between
the two.
2. The ICJ held that US violated its customary international obligation NOT to
use force against another State when it directly attacked Nicaragua in 1983
and 1984.
A. What is an armed attack?

 Armed attack refers to:
i. actions of regular armed forces crossing international borders, or
ii. 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 actual armed attack conducted by regular
forces of its State’s substantial involvement therein
In this case, the US committed acts amounting to armed attacks when:

i. US laid mines in Nicaraguan ports
ii. US attacked the Nicaraguan ports, oil stations, and naval base
iii. US assisted the Contras by “organizing or encouraging the organization
of irregular forces and armed bands for incursion into the territory of
another State” (constitute threat or use of force)
iv. US participated in acts of civil strife in another State (constitute threat
or use of force)
3. The ICJ held that US could NOT justify its military and paramilitary
activities on the basis of collective self-defense
A. What are the requisites for the proper exercise of collective self-defense?
 The following are the requisites for the proper exercise of collective self-
defense:
1. A State must have been the VICTIM of an armed attack
2. That State must DECLARE itself a victim of armed attack
o Who determines if there is an armed attack?
 The VICTIM STATE
 Third party State cannot exercise the right of collective self-
defense based on the third party State’s assessment
3. The victim State must REQUEST for assistance

4. The victim State must REPORT to the UN Security Council based on
Art. 51 of the UN Charter.
o But under customary international law, the report is not a

requirement. Nevertheless, the ICJ held that “the absence of report
may be one of the factors indicating whether the State in question
was itself convinced that it was acting in self-defense
NOTE: Article 51. Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measures necessary to maintain
international peace and security. Measures taken by Members in the exercise of this right
of self-defence shall be immediately reported to the Security Council and shall not in any
way affect the authority and responsibility of the Security Council under the present
Charter to take at any time such action as it deems necessary in order to maintain or
restore international peace and security.
In this case, the ICJ noted that:
1. None of the countries (El Salvador, Costa Rica, and Honduras) declared
themselves as victims of an armed attack
2. They did NOT request assistance from the US to exercise its right to self-
defense
3. US did not claim that when it used force, it was acting under Art. 51 of the UN
Charter
4. US did not report that it was acting in self-defense to the UN Security Council.

Nicaragua V Us

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Nicaragua V Us

Uploaded by

Copyright:

Available Formats

NICARAGUA V.

On July 1979, the government of President Samoza was replaced by a government

In 1981, the US stopped it support to Nicaragua and allegedly decided to undertake

3. That US aircrafts flew over Nicaraguan territory to gather intelligence, to provide

1. Whether the ICJ has jurisdiction over the case.

2. Whether the US violated the customary international law of non-use of force.

2. Whether the US can validly invoke collective self-defense.

A. What is the Multilateral Treaty Reservation or Vandenberg Reservation?

a. Situations where customary law principles are identical to treaty

b. Situations where treaty and customary law rights and obligations

A. What is an armed attack?

In this case, the US committed acts amounting to armed attacks when:

3. The victim State must REQUEST for assistance

o But under customary international law, the report is not a

In this case, the ICJ noted that:

You might also like