Nicaragua Vs The United States - Use of Force and Self-Defense (1 of 3) - Public International Law

2/13/2019 Nicaragua vs the United States: Use of Force and Self-Defense (1 of 3) | Public International law
ublic International law
n introduction to public international law for students
icaragua vs the United States: Use of Force and

elf-Defense (1 of 3)
International Court of Justice Contentious Case: Case

oncerning the Military and Paramilitary Activities In and
gainst Nicaragua (Nicaragua vs United States) (http://www.icj-
ij.org/docket/?p1=3&p2=3&case=70&code=nus&p3=4)
https://ruwanthikagunaratne.wordpress.com/2012/11/15/nicaragua-vs-us-case-summary/?fbclid=IwAR3eySsY_DChlwpDuEdK6Y_Ph_GpsfiHQkeY8A… 1/19
ear of Decision: 1986.
ote: This post will discuss the International Court of Justice’s (ICJ) discussions on the use of force and self-
efence. If you would like to read about the ICJ’s discussions on jurisdictional issues relating to the multilateral
reaty reservation of the United States and the ICJ’s reliance on customary law, please click here.
h ps://ruwanthikagunaratne.wordpress.com/2014/03/19/nicaragua-case-summary/)
or a diagram on some of the points discussed here, click here

h ps://ruwanthikagunaratne.files.wordpress.com/2012/11/us-vs-nucaragua-full-diagram-in-pdf.pdf). It
s recommended to use the diagram alongside this blog post.
verview:
he case involved military and paramilitary activities carried out by the United States against Nicaragua from
981 to 1984. Nicaragua asked the Court to find that these activities violated international law.
acts of the Case:
n July 1979, the Government of President Somoza was replaced by a government installed by Frente
andinista de Liberacion Nacional (FSLN). Supporters of the former Somoza Government and former
embers of the National Guard opposed the new government. The US – initially supportive of the new
overnment – changed its a itude when, according to the United States, it found that Nicaragua was
roviding logistical support and weapons to guerrillas in El Salvador. In April 1981 the United
tates stopped its aid to Nicaragua and in September 1981, according to Nicaragua, the United
tates “decided to plan and undertake activities directed against Nicaragua”.
he armed activities against the new Government was carried out mainly by (1)
uerza Democratica Nicaragüense (FDN), which operated along the border with Honduras, and (2)
lianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica. Initial US
upport to these groups fighting against the Nicaraguan Government (called “contras”) was covert.
ater, the United States officially acknowledged its support (for example: In 1983 budgetary legislation
nacted by the United States Congress made specific provision for funds to be used by United States
ntelligence agencies for supporting “directly or indirectly military or paramilitary operations in
icaragua”).
icaragua also alleged that the United States is effectively in control of the contras, the United
tates devised their strategy and directed their tactics, and that the contras were paid for and directly
ontrolled by the United States. Nicaragua also alleged that some a acks against Nicaragua were carried
ut, directly, by the United States military – with the aim to overthrow the Government of Nicaragua.
acks against Nicaragua included the mining of Nicaraguan ports, and other a acks on ports, oil
nstallations, and a naval base. Nicaragua alleged that aircrafts belonging to the United States flew over
icaraguan territory to gather intelligence, supply to the contras in the field, and to intimidate the
opulation.
he United States did not appear before the ICJ at the merit stages, after refusing to accept the ICJ’s
urisdiction to decide the case. The United States at the jurisdictional phase of the hearing, however,
tated that it relied on an inherent right of collective self-defence guaranteed in A. 51 of the UN Charter
hen it provided “upon request proportionate and appropriate assistance…” to Costa Rica, Honduras,
nd El Salvador in response to Nicaragua’s acts of aggression against those countries (paras 126, 128).
F1: Map of Nicaragua, Costa Rica, Honduras and El Salvador. Source: Google Earth
uestions before the Court:
1. Did the United States violate its customary international law obligation not to intervene in the affairs of
another State, when it trained, armed, equipped, and financed the contra forces or when it encouraged,
supported, and aided the military and paramilitary activities against Nicaragua?
2. Did the United States violate its customary international law obligation not to use force against another State,
when it directly a acked Nicaragua in 1983 and 1984 and when its activities in point (1) above resulted in the
use of force?
3. Can the military and paramilitary activities that the United States undertook in and against Nicaragua be
justified as collective self-defence?
4. Did the United States breach its customary international law obligation not to violate the sovereignty of
another State, when it directed or authorized its aircrafts to fly over the territory of Nicaragua and because
of acts referred to in (2) above?
5. Did the United States breach its customary international law obligations not to violate the sovereignty of
another State, not to intervene in its affairs, not to use force against another State and not to interrupt peaceful
maritime commerce, when it laid mines in the internal waters and in the territorial sea of Nicaragua?
he Court’s Decision:
he United States violated customary international law in relation to (1), (2), (4) and (5) above. On (3),
he Court found that the United States could not rely on collective self-defence to justify its use of force
gainst Nicaragua.
elevant Findings of the Court:
. The Court held that the United States violated its customary international law obligation not to use
orce against another State when its activities with the contras resulted in the threat or use of force
see paras 191-201).
he Court held that:
The prohibition on the use of force (h ps://ruwanthikagunaratne.wordpress.com/2011/04/11/lesson-

5-1-prohibition-on-the-use-of-force-and-the-un-charter/)is found both in Article 2(4) of the Charter of
the United Nations (UN Charter) (h ps://ruwanthikagunaratne.wordpress.com/2011/04/11/lesson-5-
2-article-24-of-the-un-charter/)and in customary international law.
In a controversial finding the Court sub-classified the use of force as:
1) “most grave forms of the use of force” (i.e. those that constitute an armed a ack); and
2) “other less grave forms” of the use of force (i.e. organizing, instigating, assisting, or participating in
cts of civil strife and terrorist acts in another State – when the acts referred to involve a threat or use of
orce, but not amounting to an armed a ack). (Para 191),
The United States violated the customary international law prohibition on the use of force when it
laid mines in Nicaraguan ports. It also violated this prohibition when it a acked Nicaraguan ports,
oil installations, and a naval base (see below). The United States could only justify its action on the
basis of collective self-defence, if certain criteria were met (these criteria are discussed below).
The United States violated the customary international law prohibition on the use of force when it
assisted the contras by “organizing or encouraging the organization of irregular forces and armed
bands… for incursion into the territory of another state” and participated “in acts of civil strife…in
another State” and when these acts involved the threat or use of force.
The supply of funds to the contras did not violate the prohibition on the use of force. On the contrary,
Nicaragua had previously argued before the Court that the United States determined the timing of
offensives against Nicaragua when it provided funds to the contras. The Court held that “…it does
not follow that each provision of funds by the United States was made to set in motion a particular
offensive, and that that offensive was planned by the United States.” The Court held further that the
arming and training of the contras and the supply of funds, in itself, only amounted to acts of
intervention in the internal affairs of Nicaragua and did not violate the prohibition on the use of
force (para 227) (again, this aspect will be discussed in detail below).
. The Court held that the United States violated its customary international law obligation not to use
orce against another State when it directly a acked Nicaragua in 1983 and 1984 (see paras 187 – 201).
ote: A controversial but interesting aspect of the Court’s judgement was its definition of an armed
ack. The Court held that an armed a ack included:
1) action by regular armed forces across an international border; and
2) “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which
arry out acts of (sic) armed force against another State of such gravity as to amount to (inter alia) an
ctual armed a ack conducted by regular forces, or its (the State’s) substantial involvement therein”.
ote also that that he second point somewhat resembles Article 3(g) (h p://books.google.lk/books?
d=mCLKAgAAQBAJ&pg=PA140&dq=the+sending+by+or+on+behalf+of+a+State+of+armed+bands,+groups,+irre
ulars+or+mercenaries,+which+carry+out+acts+of+armed+force+against+another+State+of+such+gravity+as+to+a
ount+to+
inter+alia)+an+actual+armed+a ack+conducted+by+regular+forces,+or+its+substantial+involvement+therein%22
hl=en&sa=X&ei=PKskU64fyOWsB-
kgMAL&redir_esc=y#v=onepage&q=the%20sending%20by%20or%20on%20behalf%20of%20a%20State%20of
20armed%20bands%2C%20groups%2C%20irregulars%20or%20mercenaries%2C%20which%20carry%20out
20acts%20of%20armed%20force%20against%20another%20State%20of%20such%20gravity%20as%20to%2
amount%20to%20(inter%20alia)%20an%20actual%20armed%20a ack%20conducted%20by%20regular%20fo
ces%2C%20or%20its%20substantial%20involvement%20therein%22&f=false) of the UNGA Resolution 3314
XXIX) on the Definition of Aggression (h p://jurist.law.pi .edu/3314.htm). (h p://jurist.law.pi .edu/3314.htm)
he Court further held that:
Mere frontier incidents will not considered as armed a acks, unless, because of its scale and effects, it
would have been classified as an armed a ack had it been carried out by regular forces.
Assistance to rebels by providing weapons or logistical support did not constitute an armed a ack.
Instead, it can be regarded as a threat or use of force or an intervention in the internal or external
affairs of other States (see paras 195, 230).
Under Article 51 of the UN Charter and under CIL – self-defence is only available against a use of
force that amounts to an armed a ack (para 211).
ote: In in the ICJ’s Case Concerning Oil Platforms (h p://www.icj-cij.org/docket/files/90/9715.pdf) and the
CJ’s Advisory Opinion on the Legal Consequences of of the Construction of a Wall in the Occupied Palestinian
erritory (h p://www.icj-cij.org/docket/index.php?/docket/index.php?
r=71&p1=3&p2=4&case=131&code=mwp&p3=5) (hereinafter called the Palestine wall case) the ICJ confirmed the
efinition of an “armed a ack” as proposed in the Nicaragua case. Draft Articles on State Responsibility,
h p://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf) prepared by the International Law

ommission, provides significant guidance as to when acts of non-State actors may be a ributed to States. These
rticles, together with recent State practice relating a acks on terrorists operating from other countries may have
idened the scope of an armed a ack, and consequently, the right of self defence, envisaged by the ICJ. (for
xample, see discussion surrounding the United States’ a acks in Afghanistan and Iraq
h p://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1518&context=cilj)) See also a paper by Max
h ps://papers.ssrn.com/sol3/papers.cfm?abstract_id=2941640)Plank Institute on this topic
h ps://papers.ssrn.com/sol3/papers.cfm?abstract_id=2941640) (2017).
F 2. The most serious use of force and its consequences. Full diagram is here.
(h ps://atlas.mindmup.com/2017/04/8af296801ae011e7b43f890eff0add1a/nicaragua_case/index.html)
. The Court held that the United States could not justify its military and
aramilitary activities on the basis of collective self-defence.
ote that Article 51 of the UN Charter sets out the treaty based requirements on the exercise of the right
f self-defense. It states:
“Nothing in the present Charter shall impair the inherent right of individual or collectiveself-defence if an
rmed a ack occurs against a Member of the United Nations, until the Security Council has taken
easures necessary to maintain international peace and security. Measures taken by Members in the exercise of
his right of self-defence shall be immediately reported to the Security Council.”
he Court held that:
Customary international law allows for exceptions to the prohibition on the use of force, which
includes the right to individual or collective self-defence (see here for a difference between individual
and collective self defense (h ps://ruwanthikagunaratne.wordpress.com/2011/04/12/article-51-un-
charter/)). The United States, at an earlier stage of the proceedings, had also agreed that the UN
Charter acknowledges the existence of this customary international law right when it talks of the
“inherent” right under Article 51 of the Charter

(h ps://ruwanthikagunaratne.wordpress.com/2011/04/12/article-51-un-charter/)(para.193).
When a State claims that it used force in collective self-defence, the Court would examine the
following:
1) Whether the circumstances required for the exercise of self-defence existed; and
2) Whether the steps taken by the State, which was acting in self-defence, corresponds to the
equirements of international law.
Under international law, several requirements must be met for a State to exercise the right of
individual or collective self-defence (h ps://ruwanthikagunaratne.wordpress.com/2011/04/12/article-
51-un-charter/):
1) A State must have been the victim of an armed a ack;
2) That State must declare itself as a victim of an armed a ack. The assessment on whether an armed
ack had taken place or not, is done by the State who was subjected to the a ack. A third State cannot
xercise a right of collective self-defence based that third State’s own assessment;
3) In the case of collective self-defence, the victim State must request for assistance. The Court held that
“there is no rule permi ing the exercise of collective self-defence in the absence of a request by the State
hich regards itself as the victim of an armed a ack”;
4) A State that is a acked, does not, under customary international law, have the same obligation as
nder Article 51 of the UN Charter to report to the Security Council that an armed a ack happened – but
he Court held that “the absence of a report may be one of the factors indicating whether the State in
uestion was itself convinced that it was acting in self-defence” (see paras 200, 232 -236).
“…Whatever influence the Charter may have had on customary international law in these ma ers, it is clear
that in customary international law it is not a condition of the lawfulness of the use of force in self-defence that
a procedure so closely dependent on the content of a treaty commitment and of the institutions established by it,
should have been followed. On the other hand, if self-defence is advanced as a justification for measures which
would otherwise be in breach both of the principle of customary international law and of that contained in the
Charter, it is to be expected that the conditions of the Charter should be respected. Thus for the purpose of
enquiry into the customary law position, the absence of a report may be one of the factors indicating whether
the State in question was itself convinced that it was acting in self-defence (See paras 200, 232 -236)”.
The Court, then, looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica, and
Honduras to determine if (1) an armed a ack was undertaken by Nicaragua against the three
countries, which in turn would (2) necessitate those countries to act in self-defence against Nicaragua
(paras 230 – 236). The Court noted that (1) none of the countries who were allegedly subject to an
armed a ack by Nicaragua declared themselves as victims of an armed a ack; (2) they did not
request assistance from the United States to exercise its right of self-defence; (3) the United States did
not claim that when it used force, it was acting under Article 51 of the UN Charter; and (4) the United
States did not report that it was acting in self-defense to the Security Council. The Court concluded
that, based on the above, the United States cannot justify its use of force as collective self-defence.
In any event, the Court held that the criteria relating to necessity and proportionality, that is
required to be met when using force in self-defence – were also not fulfilled (para 237).
4. The Court held that the United States breached its CIL obligation not
o intervene in the affairs of another State, when it trained, armed,
quipped and financed the contra forces or encouraged, supported and
ided the military and paramilitary activities against Nicaragua.
he Court held that:
The principle of non-intervention requires that every State has a right to conduct its affairs without
outside interference. In other words, the principle “…forbids States or groups of States to intervene
directly or indirectly in internal or external affairs of other States.” This is a corollary of the principle
of sovereign equality of States. The Court held that:
“A prohibited intervention must accordingly be one bearing on ma ers in which each State is permi ed, by the
principle of State sovereignty to decide freely. One of these is the choice of a political, economic, social and
cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of
coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and
indeed 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 (para 205).”
Nicaragua stated that the activities of the United States were aimed to overthrow the government
of Nicaragua, to substantially damage the economy and to weaken the political system with the aim
to coerce the Government of Nicaragua to accept various political demands of the United States. The
Court concluded that:
“…first, that the United States intended, by its support of the contras, to coerce the Government of Nicaragua
in respect of ma ers in which each State is permi ed, by the principle of State sovereignty, to decide freely (see
paragraph 205 above) ; and secondly that the intention of the contras themselves was to overthrow the present
Government of Nicaragua… The Court considers that in international law, 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 the
government of that State, that amounts to an intervention by the one State in the internal affairs of the other,
whether or not the political objective of the State giving such support and assistance is equally far reaching.”
The financial support, training, supply of weapons, intelligence and logistic support given by the
United States to the contras violated the principle of non-interference. “…(N)o such general right of
intervention, in support of an opposition within another State, exists in contemporary international
law”, even if such a request for assistance is made by an opposition group of that State (see para 246
for more).
F 3. The prohibition on non intervention. For full diagram, click here.

However, in a controversial finding, the Court held that the United States did not devise the strategy,
direct the tactics of the contras or exercise control on them in manner so as to make their acts
commi ed in violation of international law imputable to the United States (see in this respect
“Determining US responsibility for contra operations under international law” 81 AMJIL 86
(h ps://litigation-essentials.lexisnexis.com/webcd/app?
action=DocumentDisplay&crawlid=1&doctype=cite&docid=81+A.J.I.L.+86&srctype=smi&srcid=3B15
&key=e68533dae10c80191ff34d59bc5ab351)). The Court concluded that “a number of military and
paramilitary operations of the contras were decided and planned, if not actually by United States
advisers, then at least in close collaboration with them, and on the basis of the intelligence and
logistic support which the United States was able to offer, particularly the supply aircraft provided to
the contras by the United States” but not all contra operations reflected strategy and tactics wholly
devised by the United States.
“…the various forms of assistance provided to the contras by the United States have been crucial to the pursuit
of their activities, but is insufficient to demonstrate their complete dependence on United States aid. On the
other hand, it indicates that in the initial years of United States assistance the contra force was so dependent.
However, whether the United States Government at any stage devised the strategy and directed the tactics of
the contras depends on the extent to which the United States made use of the potential for control inherent in
that dependence. The Court already indicated that it has insufficient evidence to reach a finding on this point. It
is a fortiori unable to determine that the contra force may be equated for legal purposes with the forces of the
United States…The Court has taken the view (paragraph 110 above) that 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, is still
insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of a ributing to
the United States the acts commi ed by the contras in the course of their military or paramilitary operations in
Nicaragua. All the forms of United States participation mentioned above, and even the general control by the
respondent State over a force with a high degree of dependency on it, would not in themselves mean, without
further evidence, that the United States directed or enforced the perpetration of the acts contrary to human
rights and humanitarian law alleged by the applicant State. Such acts could well be commi ed by members of
the contras without the control of the United States. For this conduct to give rise to legal responsibility of the
United States, it would in principle have to be proved that that State had effective control of the military or
paramilitary.”
Interesting, however, the Court also held that providing “…humanitarian aid to persons or forces in
another country, whatever their political affiliations or objectives, cannot be regarded as unlawful
intervention, or as in any other way contrary to international law” (para 242).
In the event one State intervenes in the affairs of another State, the victim State has a right to
intervene in a manner that is short of an armed a ack (210).
“While an armed a ack would give rise to an entitlement to collective self-defence, a use of force of a lesser
degree of gravity cannot as the Court has already observed (paragraph 211 above) produce any entitlement to
take collective countermeasures involving the use of force. The acts of which Nicaragua is accused, even
assuming them to have been established and imputable to that State, could only have justified proportionate
counter-measures on the part of the State which had been the victim of these acts, namely El Salvador,
Honduras or Costa Rica. They could not justify counter-measures taken by a third State, the United States, and
particularly could not justify intervention involving the use of force.”
F 4. The less grave forms of use of force and its consequences. Full diagram is here.
. The United States violated its customary international law obligation

ot to violate the sovereignty of another State, when it directed or
uthorized its aircrafts to fly over Nicaraguan territory and when it laid
ines in the internal waters of Nicaragua and its territorial sea.
The Court examined evidence and found that in early 1984 mines were laid in or close to ports of the
territorial sea or internal waters of Nicaragua “by persons in the pay or acting ion the instructions” of
the United States and acting under its supervision with its logistical support. The United States did
https://ruwanthikagunaratne.wordpress.com/2012/11/15/nicaragua-vs-us-case-summary/?fbclid=IwAR3eySsY_DChlwpDuEdK6Y_Ph_GpsfiHQkeY8… 10/19
not issue any warning on the location or existence of mines and this resulted in injuries and increases
in maritime insurance rates.
The Court found that the United States also carried out high-altitude reconnaissance flights over
Nicaraguan territory and certain low-altitude flights, complained of as causing sonic booms. It held
that a State’s sovereignty extends to its internal waters, its territorial sea, and the airspace above its
territory. The United States violated customary international law when it laid mines in the territorial
sea and internal waters of Nicaragua and when it carried out unauthorised overflights over
Nicaraguan airspace by aircrafts that belong to or was under the control of the United States..
aterial on the Nicaragua case
icaragua vs United States: Summary Diagram for Use of Force (Full diagram in PDF)
h ps://ruwanthikagunaratne.files.wordpress.com/2012/11/us-vs-nucaragua-full-diagram-in-pdf.pdf)
he judgment including separate opinions of individual judges (h p://www.icj-

ij.org/docket/index.php?p1=3&p2=3&case=70&code=nus&p3=4)and summaries of the judgment and
rders (h p://www.icj-cij.org/docket/index.php?sum=367&p1=3&p2=3&case=70&p3=5)
ther reading material, including summaries of articles and other materials that maybe relevant to
nderstand this case further, can be found at this page
h ps://ruwanthikagunaratne.wordpress.com/2017/04/09/nicaragua-vs-united-states-an-analysis-of-
urisprudence-on-customary-international-law-2-of-2-reading-material/).
Ruwanthika Gunaratne at h ps://ruwanthikagunaratne.wordpress.com, 2008 – 2017. Unauthorized

se and/or duplication of this material without express and wri en permission from this blog’s author
nd/or owner, and without a ribution to the author, is strictly prohibited. Excerpts and links may be
sed, without authorization, provided that full and clear credit is given to Ruwanthika Gunaratne with
ppropriate and specific direction to the original content.
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osted in Cases, Use of force on November 15, 2012 by Dakshinie Ruwanthika Gunaratne. 37 Comments
7 comments
1. bushra banniya says:

April 28, 2013 at 6:59 PM
critical review of icj judges opinion in nuclear weapon case 1996?
REPLY
2. Dr. Ruwanthika Gunaratne says:
April 28, 2013 at 10:09 PM
Hi Bushra,
I have not done an analysis on the web site, as of yet. My recommendation is that you look for articles
published in 1997 in international law journals – which may give you what you are looking for.
In addition, there is a review of the judgement in International and Comparative Law Quarterly 46,
(1997), pp 681-688. 91 AJIL has a series of articles that maybe useful for you.
Hope this helps,
Ruwanthika
REPLY
3. Pingback: Is this the Nicaragua moment of the ICC? Plus a note on jurisdiction | Public International
law
4. Asad says:
September 28, 2013 at 11:03 AM
When a state breach international law, what effect do international law? Are reduce the important of
IL?
REPLY
5. Nakabugo Margret says:
March 11, 2014 at 3:39 PM
HI, AM HOPING EXCELLENCE HVING CONNECTED WITH YOU
REPLY
6. Ma hew Mainen says:
March 12, 2014 at 9:20 AM
Dr. Gunaratne –
This is an excellent summary of the most investigated/cited elements of Nicaragua vs. United States.
I am in the process of investing how the Court deals with the ma er of determining that a rebel
movement is an organ or acting on behalf of a third party state. This is part of broader research on
breakaway governments and their heavily dependent relationships with other states.
I would appreciate any general comments you have on this ma er. The way I see it, the Court utilizes
an incredibly strict standard approaching total control on the part of the state and total dependence
on the part of the rebel organization.
Do you know of some journal articles that have focused on this particular aspect of Nicaragua vs.
United States?
What I’ve got so far is here:
h p://ma hewmainen.blogspot.com/
REPLY
March 14, 2014 at 9:02 PM
Hi Ma hew, Thank you for your comments. Congratulations on your blog. On you question
regarding material on the Nicaragua case in relation to the contras see 81AMJIL 86
(h ps://litigation-essentials.lexisnexis.com/webcd/app?
action=DocumentDisplay&crawlid=1&doctype=cite&docid=81+A.J.I.L.+86&srctype=smi&srcid=3B
15&key=e68533dae10c80191ff34d59bc5ab351). That entire volume of the AMJIL is on the
Nicaragua case. If you cannot download it, send me an e-mail and I could forward a copy to you.
You may also wish to browse other international law journals around 1986-87.
One argument given for this strict approach is appeasement – see the above article of Boyle. He
disagrees with the Court’s findings and argues that the Court took this stance to appease the US
since the Court went ahead with the case amidst US opposition.
It is also possible that the court took such a strict approach because it was looking at the
relationship from the view point of self defence. One of the main conclusions of the Court was
that self defence against a State (in this case, the US) is available, if an armed a ack occurred.
The court went on to define an armed a ack in respect of a acks carried out by a non-State actors
(see above). It then held that assistance to rebels in the form of provision of weapons or logistical
support did not constitute an armed a ack. I.e. what is not an armed a ack cannot give the victim
State the right to use force in self defence (it can trigger other proportionate countermeasures).
The Court was possibly looking to restrict opportunities for States to trigger the use of force in self
defence by adopting a strict definition.
Other cases that you can look at include DRC vs Uganda where the two countries accused each
other of supporting rebels of the other State and the Bosina vs Serbia (Genocide case).
On the legal status of multiple governments in the same State in relation to an intervention I find
this article quite good: h p://bybil.oxfordjournals.org/content/56/1/189.full.pdf+html.
On the aspect of effective control over a person, although not directly relevant, I find this recent
article by Novak interesting: h p://justsecurity.org/2014/03/11/le er-editor-manfred-nowak-
extraterritorial-application-human-rights-treaties-practice/.
In respect of State responsibility for acts of non-State actors, I find A. 4 -11 of the Articles on State
Responsibility drafted by Crawford
(h p://legal.un.org/ilc/texts/instruments/english/draft%20articles/9_6_2001.pdf) and the GA
Declarations on Friendly Relations and Aggression quoted in the Nicaragua case helpful.
REPLY
March 16, 2014 at 5:01 AM
Thanks! I believe I will be able to get the full journal through Tel Aviv University’s databases,
though I will gladly take you up on the offer of receiving an e-mailed copy if it proves
impossible.
Thank you so much for the other links. Congo vs. Uganda is fascinating to me because of it’s
applicability to the Israeli-Palestinian conflict. The Court’s line of reasoning without question
would rule out the possibility of Gaza being occupied territory (If Uganda wasn’t an
occupying power despite having a *friendly* local force on the ground, then a fortiori one
must say the same about an unfriendly force on the ground.) I will be covering that case on my
blog shortly.
What is your opinion on the issue of the admissibility of law existing as both custom and
treaty as applied to Nicaragua vs. USA? I’ve found the debate fascinating as it cuts to the core
of the philosophy of law. It is clearly an ontological question. Personally, I did not find
convincing Schwebel’s dissent (holding that customary law also existing in treaty was
rendered inadmissible due to the U.S. reservation). There was clearly no evidence that the U.S.
considered it’s reservation as applicable in such a ma er. Obviously, we should be able to see
some internal documents from the U.S. indicating such intent.
REPLY
March 16, 2014 at 10:55 PM
Just to clarify – I mean there was no evidence ***at the time the US made the reservation***,
clearly the U.S. argued during the trial that its reservation applied to custom.
REPLY
March 19, 2014 at 6:47 PM

Hi Ma ew, Yes, I agree. The argument by the US was that treaty law subsumes and
supervenes identical customary law. There were a lot of articles criticising the Court’s
decision to go into the merit stage at the time, but I believe it was correct. Had the US
intended to oust customary law, it could have said so at the time of its reservation. You
may find this interesting –
h ps://ruwanthikagunaratne.wordpress.com/2014/03/19/nicaragua-case-summary/
REPLY
March 19, 2014 at 7:05 PM
Thanks! I look forward to reading your new review.
7. Pingback: Nicaragua vs United States (summary) | Public International law

August 15, 2014 at 5:30 PM
You can find some resource material on the Nicaragua case here:
h p://www.haguejusticeportal.net/index.php?id=6245
REPLY
1. Anonymous says:
July 1, 2018 at 6:07 AM
Thank you
REPLY
9. Aleena Malik says:
October 19, 2014 at 6:10 PM
can anyone help me regarding below question?
are statements recorded on the floor of general assembly sources of international law?
REPLY
October 20, 2014 at 12:41 AM
Statements may, at most, be indicative of opinio juris in establishing customary international law.
Isolated from other and more substantial evidence of opinio juris, such statements amount to
li le.
Do you have a specific example?
REPLY
December 20, 2014 at 7:18 PM
thankuuu
REPLY
December 20, 2014 at 7:19 PM
thankss
REPLY
0. mohammed bayu says:

November 25, 2014 at 12:58 PM
i found it more precise and understndable as cases of international issues are diffucult to get the
point this article however did it
thank you
REPLY
1. Qinisani says:
March 4, 2015 at 6:31 PM
Guys i need help i have an essay entitled: with the use of examples analyse the ICJs impartiality/
partiality in undertaking its mandate.
REPLY
2. Ruwanthika Gunaratne says:
April 12, 2015 at 12:16 AM
‘According to the framework set forth by the International Court of Justice in Nicaragua v. United
States (1986), airstrikes can constitute an “armed a ack” triggering the target state’s right to self-
defense; but the arming and training of rebels does not on its own amount to an armed a ack. [As an
aside: the long-standing United States’ position on these ma ers, in contrast, is that any use of force
(below the threshold of an armed a ack) can also trigger the right of self-defense.]’. See ‘Having
Crossed the Rubicon: Arming and Training Syrian Rebels’ at h p://justsecurity.org/15660/crossed-
rubicon-arming-training-syrian-rebels/
REPLY
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5. Noman Shabir Ch says:
December 13, 2015 at 12:26 AM
This is a great summary of the case. I have an assignmet on that case nd this summary helped me alot
in my research..
REPLY
1. Aleena malik says:
April 9, 2016 at 3:59 PM
Quite helpful
REPLY
6. Shay says:
October 28, 2016 at 9:11 PM
Was a li le bit confused when I read the case extracts in my textbook. But this was clear and very
easy to understand. Thanks so much!
REPLY
7. Anonymous says:
January 11, 2017 at 12:19 PM
thank you for your advance!!!, i used this summarized case for my work, it is a ractive and
interesting. keep it up bro!!!!!
REPLY
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CUSTOMARY INTERNATIONAL LAW (2 OF 2): Reading Material | Public International law
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Public International law
1. Honey Joy B says:
February 1, 2018 at 12:50 AM
this is comprehensive. Wow. Thank you for this! I also had a hard time understanding the case… but
this one is a very helpful digest. ^_^ More power to you!
REPLY
2. Anonymous says:
February 4, 2018 at 5:42 AM
perfect!
REPLY
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4. Essau kudely says:
June 17, 2018 at 4:13 AM
Well established notes
REPLY
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6. Sabrina M. says:
October 3, 2018 at 12:47 AM
Thank you. Informative read.
REPLY
7. Patricio says:
November 10, 2018 at 6:51 PM
Hello! Great article. Could you resume US arguments and it’s legal basis? I have a debate on my
school and representing US. Because of that I’m trying to achieve a general knowledge on the subject
before going into a deeper investigation.
REPLY
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ublic International law

n introduction to public international law for students

icaragua vs the United States: Use of Force and

International Court of Justice Contentious Case: Case

ear of Decision: 1986.

or a diagram on some of the points discussed here, click here

acts of the Case:

uestions before the Court:

elevant Findings of the Court:

he Court held that:

The prohibition on the use of force (h ps://ruwanthikagunaratne.wordpress.com/2011/04/11/lesson-

In a controversial ﬁnding the Court sub-classiﬁed the use of force as:

1) action by regular armed forces across an international border; and

he Court further held that:

h p://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf) prepared by the International Law

he Court held that:

“inherent” right under Article 51 of the Charter

1) A State must have been the victim of an armed a ack;

he Court held that:

F 3. The prohibition on non intervention. For full diagram, click here.

. The United States violated its customary international law obligation

aterial on the Nicaragua case

he judgment including separate opinions of individual judges (h p://www.icj-

Ruwanthika Gunaratne at h ps://ruwanthikagunaratne.wordpress.com, 2008 – 2017. Unauthorized

1. bushra banniya says:

What I’ve got so far is here:

March 19, 2014 at 6:47 PM

7. Pingback: Nicaragua vs United States (summary) | Public International law

Do you have a speciﬁc example?

0. mohammed bayu says:

8. Pingback: Nicaragua vs United States: An Analysis of Jurisprudence on Customary International

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