Thursday 24 June 2021

Nicaragua v. USA (1986)

NICARAGUA JOURNAL ( — The Republic of Nicaragua v. The United States of America (1986) is a public international law case decided by the International Court of Justice (ICJ). The ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua.

The ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua’s harbors. The U.S. refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. later blocked enforcement of the judgment by the U.N. Security Council and thereby prevented Nicaragua from obtaining any actual compensation.

Ronald Wilson Reagan, actorm politician and the 40th President of the United States.
Ronald Wilson Reagan, actorm politician and the 40th President of the United States.

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The Court found in its verdict that the United States was “in breach of its obligations under customary international law not to use force against another State”, “not to intervene in its affairs”, “not to violate its sovereignty”, “not to interrupt peaceful maritime commerce”, and “in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956.” The Court stated that while the U.S. encouraged human rights violations by the Contras by the handbook titled Psychological Operations in Guerrilla Warfare, this did not, however, make such acts attributable to the U.S.

Preface: The first armed intervention by the United States in Nicaragua occurred under President Taft. In 1909, Taft ordered the overthrow of Nicaraguan President José Santos Zelaya. During August-September 1912, a unit of 2300 U.S. Marines landed in Nicaragua. A pro-U.S. government was formed under the occupation. The 1914 Bryan-Chamorro Treaty granted perpetual canal rights to the U.S. in Nicaragua and was signed ten days before the U.S.-operated Panama Canal opened for use, thus preventing anyone from building a competing canal in Nicaragua without U.S. permission.

In 1927, under Augusto César Sandino, a major peasant uprising was launched against both the U.S. occupation and the Nicaraguan establishment. In 1933, the U.S. Marines withdrew and left the Nicaraguan National Guard in charge of internal security and elections. In 1934, Anastasio Somoza-García, the head of the National Guard, ordered his forces to capture and murder Sandino. In 1937, Somoza assumed the presidency, while still in control of the National Guard, and established a dictatorship that his family controlled until 1979.

The downfall of the Somoza regime is attributed to its embezzlement of millions of dollars in foreign aid that was given to the country in response to the devastating 1972 earthquake. Many lukewarm supporters of Somoza’s dictatorship began abandoning it in the face of growing revolutionary sentiment. The Sandinista (FSLN) movement organized relief, began to expand its influence and assumed the leadership of the revolution. A popular uprising brought the FSLN to power in 1979. The U.S. had long been opposed to the left-wing FSLN, and after the revolution the Carter administration moved quickly to support the Somoza loyalists with financial and material aid. When Ronald Reagan became president, he augmented the direct support to an anti-Sandinista group, called the Contras, which included factions loyal to the former Somoza dictatorship. When Congress prohibited further funding to the Contras, Reagan continued the funding through arms sales that were also prohibited by Congress (i.e. Iran-Contra affair).

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Epilogue: The U.S. argued that the ICJ did not have jurisdiction, with U.S. ambassador to the U.N. Jeane Kirkpatrick dismissing the Court as a “semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don’t.” The U.S. was the only member that put forward arguments against the validity of the judgment of the Court, arguing that it passed a decision that it “had neither the jurisdiction nor the competence to render”. Members that sided with the U.S. in opposing Nicaragua’s claims did not challenge the Court’s jurisdiction, its findings, nor the substantive merits of the case.

The judgment first listed 291 points, among them that the U.S. had been involved in the “unlawful use of force.” The alleged violations included attacks on Nicaraguan facilities and naval vessels, the mining of Nicaraguan ports, the invasion of Nicaraguan air space, and the training, arming, equipping, financing and supplying of forces (the Contras) and seeking to overthrow Nicaragua’s Sandinista government. This was followed by the statements that the judges voted on.

Although the Court called on the U.S. to “cease and to refrain” from the unlawful use of force against Nicaragua and stated that the U.S. was “in breach of its obligation under customary international law not to use force against another state” and ordered it to pay reparations, the U.S. refused to comply. As a permanent member of the Security Council, the U.S. has been able to block any enforcement mechanism attempted by Nicaragua. On November 3, 1986 the U.N. General Assembly passed, by a vote of 94-3 (El Salvador, Israel and the U.S. voted against), a non-binding resolution urging the U.S. to comply.

The ruling did in many ways clarify issues surrounding prohibition of the use of force and the right of self-defense. Arming and training the Contras was found to be in breach with principles of non-intervention and prohibition of use of force, as was laying mines in Nicaraguan territorial waters. Nicaragua’s dealings with the armed opposition in El Salvador did not constitute “an armed attack” which is the wording in article 51 justifying the right of self-defense. The Court considered also the U.S. claim to be acting in collective self-defense of El Salvador and found the conditions for this not reached as El Salvador never requested the assistance of the U.S. on the grounds of self-defense.

In regards to laying mines, “…the laying of mines in the waters of another State without any warning or notification is not only an unlawful act but also a breach of the principles of humanitarian law underlying the Hague Convention No. VIII of 1907.” Salman Rushdie wrote a non-fiction book about Nicaragua titled The Jaguar Smile (1987). This book has a political focus and is based on his first-hand experiences and research at the scene of Sandinista political experiments. Julio Cortázar was a supporter of the Sandinista revolution in Nicaragua.

Article by Today Nicaragua, reposted with permission

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