Editing Nicaragua v. United States (section)

==Judgment==
The lengthy judgment first listed 291 points, among them that the United States had been involved in the "unlawful use of force". The 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.<ref name="icj">{broken link}{{cite web |title=International Court of Justice Year 1986, 27 June 1986, General list No. 70, paragraphs 251, 252, 157, 158, 233. |work=International Court of Justice |url=http://www.gwu.edu/~jaysmith/nicus3.html |access-date=2006-07-30 |archive-date=2006-07-17 |archive-url=https://web.archive.org/web/20060717164255/http://www.gwu.edu/~jaysmith/nicus3.html |url-status=dead }} [https://web.archive.org/web/20050530111816/http://www.icj-cij.org/icjwww/icases/inus/inus_ijudgment/inus_ijudgment_19860627.pdf Large PDF file from the ICJ website]</ref>

===Findings===
The court found evidence of an arms flow between Nicaragua and insurgents in El Salvador between 1979 and 1981. However, there was not enough evidence to show that the Nicaraguan government was imputable for this or that the US response was proportional. The court also found that certain transborder incursions into the territory of Guatemala and Costa Rica, in 1982, 1983 and 1984, were imputable to the Government of Nicaragua. However, neither Guatemala nor Costa Rica had made any request for US intervention; El Salvador did in 1984, well after the US had intervened unilaterally.[http://www.gwu.edu/~jaysmith/nicus3.html] {{Webarchive|url=https://web.archive.org/web/20060825081816/http://www.gwu.edu/~jaysmith/nicus3.html |date=2006-08-25 }}

"As regards El Salvador, the Court considers that in [[customary international law]] the provision of arms to the opposition in another State does not constitute an armed attack on that State. As regards Honduras and Costa Rica, the Court states that, in the absence of sufficient information as to the transborder incursions into the territory of those two States from Nicaragua, it is difficult to decide whether they amount, singly or collectively, to an armed attack by Nicaragua. The Court finds that neither these incursions nor the alleged supply of arms may be relied on as justifying the exercise of the [[Chapter VII of the United Nations Charter#Article 51|right of collective self-defence]]."<ref name="icj-cij.org">{{cite web|last=International Court of Justice|date=1986-06-27|title=Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)|url=https://www.icj-cij.org/public/files/case-related/70/070-19860627-JUD-01-00-EN.pdf|access-date=2020-11-13|work=icj-cij.org|archive-date=November 14, 2020|archive-url=https://web.archive.org/web/20201114073459/https://www.icj-cij.org/public/files/case-related/70/070-19860627-JUD-01-00-EN.pdf|url-status=live}}</ref>

Regarding human rights violations by the Contras, "The Court has to determine whether the relationship of the contras to the United States Government was such that it would be right to equate the Contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government. The Court considers that the evidence available to it is insufficient to demonstrate the total dependence of the Contras on United States aid. A partial dependency, the exact extent of which the Court cannot establish, may be inferred from the fact that the leaders were selected by the United States, and from other factors such as the organisation, training and equipping of the force, planning of operations, the choosing of targets and the operational support provided. There is no clear evidence that the United States actually exercised such a degree of control as to justify treating the contras as acting on its behalf... Having reached the above conclusion, the Court takes the view that the Contras remain responsible for their acts, in particular the alleged violations by them of humanitarian law. For the United States to be legally responsible, it would have to be proved that that State had effective control of the operations in the course of which the alleged violations were committed."<ref name="icj-cij.org"/>

The Court concluded that the United States, despite its objections, was subject to the Court's jurisdiction. The Court had ruled on November 26, 1984 by 11 votes to one that it had jurisdiction in the case on the basis of either Article 36 of the Statute of the International Court of Justice (i.e. compulsory jurisdiction) or the 1956 Treaty of Friendship, Commerce and Navigation between the United States and Nicaragua. The Charter provides that, in case of doubt, it is for the Court itself to decide whether it has jurisdiction, and that each member of the United Nations undertakes to comply with the decision of the Court. The Court also ruled by unanimity that the present case was admissible.<ref>{{cite journal | title=United States Decides Not to Participate in World Court Case Initiated by Nicaragua| journal=UN Chronicle | date=1984–1985 | volume=22 and 9 | issue=January}}</ref> The United States then announced that it had "decided not to participate in further proceedings in this case." About a year after the Court's jurisdictional decision, the United States took the further, radical step of withdrawing its consent to the Court's compulsory jurisdiction, ending its previous 40 year legal commitment to binding international adjudication. The Declaration of acceptance of the general compulsory jurisdiction of the International Court of Justice terminated after a 6-month notice of termination delivered by the Secretary of State to the United Nations on October 7, 1985.
<ref name="Harvard Journal of Law & Public Policy">{{cite journal | author= Robert J. Delahunty, John Yoo | title=Executive Power V. International Law| journal=Harvard Journal of Law & Public Policy| year= 2006 | volume=30}}</ref>

Although the Court called on the United States to "cease and to refrain" from the unlawful use of force against Nicaragua and stated that the US was "in breach of its obligation under customary international law not to use force against another state" and ordered it to pay reparations, the United States refused to comply.<ref>{{cite web |url=http://www.redress.org/publications/TerrorismReport.pdf |title=Archived copy |access-date=2007-07-29 |url-status=dead |archive-url=https://web.archive.org/web/20070810033633/http://www.redress.org/publications/TerrorismReport.pdf |archive-date=2007-08-10 }}</ref>  As a permanent member of the Security Council, the U.S. has been able to block any enforcement mechanism attempted by Nicaragua.<ref name="COMPLIANCE WITH DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE">{{cite book | author= Constanze Schulte | title=COMPLIANCE WITH DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE| location= New York| publisher= Oxford University Press |date=January 2004 | volume=81 | pages= 282–285|isbn= 0-19-927672-2}}</ref> On November 3, 1986 the [[United Nations General Assembly]] passed, by a vote of 94-3 (El Salvador, Israel and the US voted against), a non-binding<ref>{{cite web| url = https://www.un.org/documents/ga/res/41/a41r031.htm| title = resolution| access-date = June 29, 2017| archive-date = August 2, 2009| archive-url = https://web.archive.org/web/20090802021602/https://www.un.org/documents/ga/res/41/a41r031.htm| url-status = live}}</ref> resolution urging the US to comply.<ref>{{cite web |url=http://www.ejil.org/journal/Vol6/No4/art2-01.html |title=Problems of Enforcement of Decisions of the International Court of Justice and the Law of the United Nations |access-date=2007-07-29 |url-status=dead |archive-url=https://web.archive.org/web/20070930181559/http://www.ejil.org/journal/Vol6/No4/art2-01.html |archive-date=2007-09-30 }}</ref>

=== The ruling ===
On June 27, 1986, the Court made the following ruling:

The Court
# Decides that in adjudicating the dispute brought before it by the Application filed by the Republic of Nicaragua on 9 April 1984, the Court is required to apply the "multilateral treaty reservation" contained in proviso (c) to the declaration of acceptance of jurisdiction made under Article 36, paragraph 2, of the Statute of the Court by the Government of the United States of America deposited on 26 August 1946;
# Rejects the justification of [[Chapter VII of the United Nations Charter#Article 51|collective self-defense]] maintained by the United States of America in connection with the military and paramilitary activities in and against Nicaragua the subject of this case;
# Decides that the United States of America, by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted, against the Republic of Nicaragua, in breach of its obligation under '''[[customary international law]] not to intervene in the affairs of another State''';
# Decides that the United States of America, by certain attacks on Nicaraguan territory in 1983–1984, namely attacks on [[Puerto Sandino]] on 13 September and 14 October 1983, an attack on [[Corinto, Nicaragua|Corinto]] on 10 October 1983; an attack on Potosi Naval Base on 4/5 January 1984, an attack on [[San Juan del Sur]] on 7 March 1984; attacks on patrol boats at Puerto Sandino on 28 and 30 March 1984; and an attack on [[San Juan de Nicaragua|San Juan del Norte]] on 9 April 1984; and further by those acts of intervention referred to in subparagraph (3) hereof which involve the use of force, has acted, against the Republic of Nicaragua, in breach of its obligation under '''customary international law not to use force against another State''';
# Decides that the United States of America, by directing or authorizing overflights of Nicaraguan territory, and by the acts imputable to the United States referred to in subparagraph (4) hereof, has acted, against the Republic of Nicaragua, in breach of its obligation under '''customary international law not to violate the sovereignty of another State''';
# Decides that, by laying mines in the internal or territorial waters of the Republic of Nicaragua during the first months of 1984, the United States of America has acted, against the Republic of Nicaragua, 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 and not to interrupt peaceful maritime commerce''';
# Decides that, by the acts referred to in subparagraph (6) hereof the United States of America has acted, against the Republic of Nicaragua, in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the United States of America and the Republic of Nicaragua signed at Managua on 21 January 1956;
# Decides that the United States of America, by failing to make known the existence and location of the mines laid by it, referred to in subparagraph (6) hereof, has acted in breach of its obligations under customary international law in this respect;
# Finds that the United States of America, by producing in 1983 a manual entitled '[[Psychological Operations in Guerrilla Warfare|Operaciones sicológicas en guerra de guerrillas]]', and disseminating it to Contra forces, has encouraged the commission by them of acts contrary to general principles of [[international humanitarian law|humanitarian law]]; but does not find a basis for concluding that any such acts which may have been committed are imputable to the United States of America as acts of the United States of America;
# Decides that the United States of America, by the attacks on Nicaraguan territory referred to in subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May 1985, has committed acts calculated to deprive of its object and purpose the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956;
# Decides that the United States of America, by the attacks on Nicaraguan territory referred to in subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May 1985, has acted 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;
# Decides that the United States of America is under a duty immediately to cease and to refrain from all such acts as may constitute breaches of the foregoing legal obligations;
# Decides that the United States of America is under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of obligations under customary international law enumerated above;
# Decides that the United States of America is under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956;
# Decides that the form and amount of such reparation, failing agreement between the Parties, will be settled by the Court, and reserves for this purpose the subsequent procedure in the case;
# Recalls to both Parties their obligation to seek a solution to their disputes by peaceful means in accordance with international law.<ref name="icj-cij.org"/>

=== Legal clarification and importance ===
The ruling did in many ways clarify issues surrounding prohibition of the use of force and the right of self-defence.<ref name="UNcharter">[[United Nations Charter|UN Charter]] art.2(4) and art. 51, both considered to be [[customary international law]]</ref> Arming and training the Contra 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, although it might be considered a breach with the principle of non-intervention and the prohibition of use of force, did not constitute "an armed attack", which is the wording in article 51 justifying the right of self-defence.

The Court considered also the United States claim to be acting in collective self-defence of El Salvador and found the conditions for this not reached as El Salvador never requested the assistance of the United States on the grounds of self-defence.

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 of 1907|Hague Convention No. VIII of 1907]]."

===How the judges voted===

'''Votes of Judges – Nicaragua v. United States'''
{| class="wikitable" style="font-size: smaller; width: 100%; text-align: center"
|-
!
! colspan="17" align="left"|[https://web.archive.org/web/20060818212237/http://www.icj-cij.org/icjwww/icases/inus/inus_isummaries/inus_isummary_19860627.htm Operative Paragraph]
|-
!Judge
!1
!2
!3
!4
!5
!6
!7
!8
!9
!10
!11
!12
!13
!14
!15
!16
|-
!President [[Nagendra Singh]] (India)
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
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!Vice-President [[Guy Ledreit de Lacharrière|de Lacharrière]] (France)
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
|-
!Judge [[Roberto Ago|Ago]] (Italy)
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
|-

!Judge [[Taslim Olawale Elias|Elias]] ([[Nigeria]])
| {{no}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
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!Judge [[Manfred Lachs|Lachs]] (Poland)
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
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| {{yes}}
| {{yes}}
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!Judge [[Kéba Mbaye|Mbaye]] ([[Senegal]])
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
|-
!Judge [[Ni Zhengyu|Ni]] ([[People's Republic of China]])
| {{no}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{Yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
|-
!Judge [[Shigeru Oda|Oda]] (Japan)
| {{yes}}
| {{no}}
| {{no}}
| {{no}}
| {{no}}
| {{no}}
| {{yes}}
| {{no}}
| {{no}}
| {{no}}
| {{no}}
| {{no}}
| {{no}}
| {{yes}}
| {{yes}}
| {{yes}}
|-
!Judge [[José María Ruda|Ruda]] ([[Argentina]])
| {{no}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
|-
!Judge [[Stephen M. Schwebel|Schwebel]] (United States)
| {{yes}}
| {{no}}
| {{no}}
| {{no}}
| {{no}}
| {{no}}
| {{no}}
| {{yes}}
| {{yes}}
| {{no}}
| {{no}}
| {{no}}
| {{no}}
| {{no}}
| {{no}}
| {{yes}}
|-
!Judge [[José Sette-Camara|Sette-Camara]] (Brazil)
| {{no}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
|-
!Judge Sir [[Robert Yewdall Jennings|Robert Jennings]] (United Kingdom)
| {{yes}}
| {{no}}
| {{no}}
| {{no}}
| {{no}}
| {{no}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{no}}
| {{no}}
| {{no}}
| {{no}}
| {{yes}}
| {{yes}}
| {{yes}}
|-
!Judge ad hoc [[Claude-Albert Colliard|Colliard]] (Nicaragua)
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
| {{yes}}
|}

===Dissent===
Judge Schwebel argued that the Sandinista government came to power with support of foreign intervention similar to what it was now complaining about. He argued that the Sandinista government achieved international recognition and received large amounts of foreign aid in exchange for commitments they subsequently violated. He cited evidence that the Sandinista government had supported the rebels in El Salvador and wrote that Nicaragua's own CIA witness contradicted their assertions that they had never at any point supported the rebels in El Salvador. The CIA witness said that there was no evidence of weapon shipments since early 1981, but Schwebel argued that he could not credibly explain why opponents of Contra aid such as [[Boland Amendment|Congressman Boland]], who also saw the evidence, believed that weapon shipments were ongoing. He further wrote that [[Daniel Ortega]] publicly admitted such shipments in statements in 1985 and 1986. He said there was no dispute that the leadership of the rebels operated in Nicaragua from time to time.

He stated that in August 1981 the U.S. offered to resume aid to Nicaragua and to not support regime change in exchange for Nicaraguan commitments to not support the rebels in El Salvador. These proposals were rejected by the Sandinistas, and Schwebel argued that the U.S. was entitled to take action in collective self-defense with El Salvador by authorizing Contra aid in December 1981. He stated that further U.S. proposals to resolve the issue made in early 1982 were also ignored by the Sandinistas. The Sandinista government in 1983 began advancing proposals in which it would undertake not to support the rebels. Schwebel said that these were coupled with demands that the U.S. cease supporting the lawful government of El Salvador.
He wrote that since early 1985 the U.S. had increasingly made regime change a primary objective but that this was not inconsistent with self-defense because it was reasonable to believe that Nicaragua would not maintain any commitments unless Sandinista power was diluted.

The judge said that both sides of the wars in Nicaragua and El Salvador had committed atrocities. He said the U.S. mining of Nicaraguan harbors was unlawful in regard to third parties, but not Nicaragua.<ref>[http://www.icj-cij.org/docket/files/70/6523.pdf Dissent of Judge Schwebel] {{webarchive|url=https://web.archive.org/web/20140102194122/http://www.icj-cij.org/docket/files/70/6523.pdf |date=2014-01-02 }} International Court of Justice</ref>