There are major cases that cannot be decided within a state or country as they involve an international dispute. Increasingly, major disputes are taking place within the international arena and have to be decided as such. The need for the international disputes to be resolved amicably is the basis for the creation of the international law and the international court of justice. Interventions by a foreign state are among the disputes that fall under the international jurisdiction (Reichler, 2001). One of the cases that have had to be decided by the ICJ is the dispute between the United States and Nicaragua, emanating from the plans by the former to intervene in the national affairs of the latter. The Republic of Nicaragua v. The United States of America (1986) is the case where the court ruled in favor of Nicaragua as shall be discussed.
Facts/Background of the Dispute
The United States was convinced that there was a need for a military intervention against Nicaragua based on the aspect that the country supported the communist regime. The United States had historically shown concern about the spread of communism citing security reasons. The President Somoza administration in 1979 came in place of the Frente Sandinista de Liberacion Nacional (FSLN)-installed administration (D’Amato, 2011). The movement arranged relief by expanding its influence, which allowed it to be the main leader of the revolt that led to the assumption of power of the FSLN (Reichler, 2001). The new government was opposed by those who supported the former administration as well as the National Guard members. The government of the United States, at first, backed the change until there was a realization that the administration had some ties to communism (Paust et al., 2000). The change of attitude within the US government emanated from the realization of the logistical aid by guerrillas in El Salvador by Nicaragua. The US government was not prepared to continue supporting the new regime.
Following the uprising, the then United States Government, Carter regime, immediately decided to back the Somocistas. The government provided material and financial support, but when the government of Ronald Reagan took over office, there was an increase in the aid to the anti-Sandinista faction. The group, also known as the Contras included some loyalists to the former authoritarian regime. The US government, in 1981 made the decision to stop further aid to Nicaragua (D’Amato, 2011). Nicaragua made the claims that, in September 1981, the US government was planning an intervention against the country. The two groups perpetrated the actions against the new regime. The first group, operating along the Honduras border, was Fuerza Democratica Nicaragüense (FDN). The second group that was operating along the Rica Rican border was Alianza Revolucionaria Democratica (ARDE). At the beginning, the United States government offered assistance to the two factions, but secretly (Case, 1986). However, with time, the government made an official admission over its support.
The United States appears to have committed itself to supporting the anti-Sandinista. For instance, the budgetary legislation was passed in 1983, with the objective of allocating finances for use by the intelligence agencies in support of direct or indirect paramilitary or military actions in the country. The United States was believed to have control over the operations of the anti-Sandinista (D’Amato, 2011). The country had devised strategies and tactics that would further the operations of the group opposed to the communist regime. The payment and the direct control of the group emanated from the US. The United States military directly or indirectly performed or planned actions that were against Nicaragua. It was possible that the United States was committed to overthrowing the Nicaraguan government. Some of the attacks that the United States performed against the country included the mines within the ports as well as attacks on oil facilities, ports, and the naval base (Case, 1986). Sometime towards the end of 1983 or the beginning of 1984, the government of the United States had laid mines in the ports of the country as part of the action against the government of Nicaragua.
The Issue or Question of the Dispute
One of the most famous cases before the ICJ was filed by Nicaragua on 9 April 1984 (Leigh, 1987). The case was filed against the United States (defendant) by Nicaragua (Plaintiff) in which the former was accused of committing illegal interventions against the latter. The dispute was founded on the military actions within and against Nicaragua, committed by the United States. The case on unlawful military and paramilitary actions was brought before the international court to be decided on the basis of the international law regulating foreign military interventions. The United States was required to immediately stop any further interventions in Nicaragua or access to the country’s ports where it has laid mines (Paust et al., 2000). Nicaragua had argued for its sovereignty, which meant that the United States was illegally intervening in it. However, the United States was of the contrary opinion and provided justifications for its actions against the country and the communist regime.
The US challenged the ICJ’s jurisdiction to take up the application and its admissibility. When the US was held to have illegally engaged in the military and paramilitary actions against Nicaragua, it challenged the lawsuit. The US deposited a declaration, and the decision was made that accepted the mandatory jurisdiction of the ICJ. However, there were efforts by the US to rationalize the declaration in a notification made in 1984 (Leigh, 1987). The defendant made reference to a declaration made in 1946 stating that the “declaration “shall not apply to disputes with any Central American State….” (Reichler, 2001, p. 15). The United States argued against the jurisdiction by further suggesting that the plaintiff did not issue a similar declaration. The plaintiff, on the other hand, argued based on the declaration the US had made in 1946. There was a statement of acceptance of a similar obligation like the US.
When it became clear that the case would proceed and that the ICJ had the jurisdiction, the United States argued about the criticality of intervening in the country to deliver it from the communist influence (Matheson, 2012). Regardless of the challenges on the authority of the ICJ to take up the case, it proceeded with listening to the submissions made by the plaintiff and the defendant (Köchler, 2006). Although Nicaragua did not deposit a declaration with the court, it became evident that the case would proceed based on the ICJ’s compulsory jurisdiction. There were various issues and questions that had to be addressed for the case to be heard and decision to be made by the court (International Court of Justice, 2000). One of the issues was whether the United States was in order to intervene in Nicaragua in the name of collective self-defense. The United States would normally intervene in another country in the event of a violation to the global security. Hence, the court would be assessing the justification of the intervention.
In a sovereign state, there is an obligation for its internal affairs not to be interfered with. Hence, the court would decide on whether or not the United States violated the law regulating non-intervention in the affairs of an independent state. Given that the United States used military and paramilitary interventions against Nicaragua, it was critical that the question be answered. Nicaragua accused the United States of violating its sovereignty. Hence, it was necessary for the court to decide on whether the United States violated the customary international law obligations of upholding and respecting another state’s sovereignty (D’Amato, 2011). One of the cited actions of the United States was the accusation of flying unauthorized aircraft over Nicaragua’s territory. The United States was also accused of using force against a sovereign state, which was another case of violation of the international law (Trapp, 2007). The actions of the United States were blamed for disrupting the peace of the country as it was going about its own business.
The United States had the burden of proving that its actions did not amount to a violation of the international law, which were critical for collective defense and global security. Any state that posed a danger to internal security had to be stopped and at times it was necessary to use force to pressurize the state to cease the actions that amounted to the threat (Arend & Beck, 2014). Evidently, the United States maintained the commitment to intervene in whatever way necessary, including the use of force, to stop the Nicaraguan government to go the communist way. Communist was being viewed by the US as a major threat to security and had to be neutralized. The United States was in a position of power, and hence better placed to stop the Nicaraguan administration (De Feyter, 2011). Hence, the United States would strive to show the justification of the actions against a sovereign state.
Resolution or Decision
The 16-point ruling was instrumental in the resolution of the dispute between the United States and Nicaragua. In the ruling, the judges found the United States culpable of violating the international law. Also, the claims of collective defense as presented by the United States were rejected in the ruling. The international law was not the only one that the United States violated by intervening in Nicaragua. The state also violated the treaty of friendship which was signed between the two countries in 1956 (Arend & Beck, 2014). Nonconforming opinions were presented by three judges in the case. The court established that the US was in violation of the conventional international law that obligated it not to apply force in any other state (Trapp, 2007). The actions of the country in conjunction with contras were a clear use of force, hence, a violation of the international law. According to the ruling, the use of force was prohibited in the international law under which the court was operating.
In the finding that became one of the most controversial, the application of force was sub-classified into two. The first sub-class comprised the grave kinds of force, that is, the use of armed attacks against another state. The second sub-class comprised the less grave kinds of force, that is, organization, instigation, assistance, or participation in civil strife acts and acts of terrorism against a country. It is any other form of force against another state, but one that does not amount to an armed attack. According to the ruling, the United States had violated the law by perpetrating both of the forms of use of force against Nicaragua (Arend & Beck, 2014). By laying the mines in the ports of Nicaragua, the United States acted in contravention of the customary international law. Also, by attacking the ports, naval base, and the oil installations, the United States acted in violation of the law banning the use of force (Kaczorowska-Ireland, 2015). In the process, the United States failed to offer a justification for its use of force based on collective self-defense.
The actions by the United States were found to fall under the second category of the use of force. The ruling maintained that the state had violated the international law by aiding the actions against the Nicaragua government by the contras (D’Amato, 2011). The United States had violated the law by “by encouraging or organizing the organization of armed bands and irregular forces and … for incursion into the territory of another state” and participated “in acts of civil strife…in another State” (International Court of Justice, 2000, p. 4). Evidently, the actions entailed use of force against Nicaragua. Providing financial and material support to the contras did not amount to an infringement of the international law against application of force. However, it was already argued by Nicaragua that the timing of the offensive was calculated by the US in providing the backing to the group (Kaczorowska-Ireland, 2015). However, the court maintained that the support of the group was not a violation of the law against use of force but amounted to an intervention in a state’s internal affairs.
In 1983 and 1984, the United States was found to have violated the international law by mounting attacks on Nicaragua. The court defined an armed attack, in another controversial statement. Two definitions were given:
(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 carry out acts of (sic) armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its (the State’s) substantial involvement therein ((International Court of Justice, 2000, p. 4).
The decision made by the judges in the case rejected the rationale of collective self-defense that the United States was advancing. Generally, the United States violated the international law under two levels, the direct use or threat of use of force against a sovereign state and indirectly through support of a faction within the country that was established with the purpose of acting against the Nicaraguan government. Additionally, the United States had signed a bilateral Treaty of Friendship, Commerce, and Navigation, which was also violated in the actions of the United States taken against the country (Glennon, 2001). The judges also concluded that the United States needed to make reparations for the injuries that emanated as a result of its actions against Nicaragua. The reparations were not decided immediately following the ruling as the two parties were given the chance to decide on the matter failure to which the court would intervene at a later date. However, until 1988, the US was holding its stand that it was not a party to the case (Kaczorowska-Ireland, 2015). The case was later removed from the list of pending cases in the court following the declaration by Nicaragua to discontinue the proceedings.
Legal (International Law Rules) Justification of the Resolution
The international law was clear about the United States’ operations being a violation and in finding the US guilty. The use of force was prohibited in the law under the customary international law. It was also a violation based on the prohibition of the use of force under Article 2(4) of the Charter of the United Nations (UN Charter). Although the United States had challenged the jurisdiction of the court in the matter, legal experts have maintained that the ruling on the matter was binding (International Court of Justice, 2000). After all, the United States has always been the strongest advocate of the international law and recognized the legitimacy of the international criminal court. The United States had the duty to respect the law, its obligations, and the treaty of friendship that was signed between the two states (Kaczorowska-Ireland, 2015). In fact, whatever was happening within Nicaragua did not amount to any direct threat to the United States or the global community.
The United States could not justify the collective defense argument as the basis for its intervention, the use of force, and armed attacks against Nicaragua. Article 51 of the UN Charter suggests that self-defense applies when there is an armed attack or the use of force. The argument by the United States that the government of Nicaragua was being used to expand communist ideals was not convincing or enough reason for the intervention and the use of force against a sovereign state. The US Congress and the government were revealed to have initiated interventions in a sovereign state without convincing evidence to back up the collective defense claims that Nicaragua was in support of the communist regimes. In fact, Nicaragua decision was not a violation of the international law and hence, did not warrant a military intervention (Matheson, 2012). As a sovereign state, Nicaragua had the right to design its foreign policy and conduct its internal affairs as it deemed right and without being interjected by another state.
Justifiably, the United States was guilty of many offenses against Nicaragua. The country, as a party to the international law, had failed to uphold the requirements of the law. The law against the use of force towards any other country is the first one that the US violated. The actions of the United States, hence amounted to an infringement of the international law. Nicaragua was a sovereign state at the time the United States attacked it and backed anti-Sandinista against it (Glennon, 2001). If the anti-Sandinista were operating in the state, it would be a national problem necessitating resolution from within. However, the intervention of the United States was a violation against the country’s sovereignty. Also, as a sovereign state, it should not matter what ideology the government supported since that was an internal affair as long as it did not pose a threat to any other state.
Nicaragua had the right to go on with its business without being interrupted. Hence, interruption of its business, including the peaceful maritime commerce was another level of violation of law against the state. For instance, by attacking the ports, the United States violated the peaceful business of Nicaragua (Kaczorowska-Ireland, 2015). The United States did not have any justification to violate the peace and internal affairs of the state. Finally, the United States had a commitment and an obligation to the state following the Treaty of Friendship, Commerce and Navigation’s Article XIX. Entering such an agreement creates a binding commitment between the two countries, which the United States broke by intervening in the Nicaragua’s internal affairs. The US government supported violations of human rights by backing the Contras (Glennon, 2001). The case is a clear indication of an international dispute occurring between two states and the application of the international law, as enacted by the ICJ in addressing such disputes. The ICJ rose to the occasion applying interpretation of the law to decide the case favoring Nicaragua.
The United States was entangled in one of the most famous disputes involving the international criminal court and the international law. The dispute was between the U.S. and Nicaragua, following the conviction by the US government that the government of Nicaragua was backing communist ideals. The accusations became the basis for the US to intervene directly and indirectly in the affairs of the state. The international law binds the United States in its relationships with other states. Hence, it is always expected to operate within the law in its foreign policies. However, the case of Nicaragua is one of the situations where the country violated the international law as well as its obligations not to intervene in the internal affairs of another state. The ICJ ruled in favor of Nicaragua submitting that the United States’ actions were both a violation of the international law, as well as of the obligation by the country not to intervene in a sovereign state’s affairs.
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www.interventionism.info. (2017). Interventionism.info. Retrieved 10 April 2017, from http://www.interventionism.info/en/International-Court-of-Justice-ruling-in-USA-v.-Nicaragua