Saturday, May 17, 2014

Nicaragua v US case brief summary

Nicaragua v US
-          US supplies financial, political, and military support to the contras (in the US, Congress is not fully on board w/ this)
-          US claims
o   Collective self defense, had to help out neighbors of Nicaragua .
-          ICJ Case
o   Law used=customary international law
§ Why does this apply? b/c the UN Charter can’t apply. ?? US Reserved.
o   Is the law in the UN Charter the same as customary int’l law?
§ Yes: so many countries support it
§ No: it’s certainly not identical! The court makes it seem like it is.
o   Exceptions to 2(4)=individual and collective self defense
o   Nicaragua’s claim: US violated customary int’l law
o   Jurisdiction/suit
§ There are 2 different bases for a suit: 1) 36(1) and 36(2)
§ 36(2): general declarations subjecting to the ICJ, mutual thing, US took a reservation here (see below)
§ 35(1): more specialized jurisdiction, the problem here is that the US took a reservation.
§ The US in the years after WWII was attempting to support the int’l regime, as a symbolic gesture it accepted jurisdiction but made a reservation and said that in any case that implicates more than one state, they will only subject themselves to the ICJ if every state that’s party to that treaty is party to the case. (reservation to 36(1).
o   Issue:
§ Are the acts in question of the US justified by the exercise of its right of collective self-defense against an armed attack?
·         No, no armed attack
·         No, didn’t meet proportionate or necessity requirements
o   *Use of force on behalf of a 3rd party is lawful, by way of exception, only when the wrongful act provoking the response was an armed attack. And they requested.
o   What is an armed attack? (self defense can never be done w/o an armed attack)
§ Sending by or on behalf of a State of armed bands, groups, irregulars, which carry out acts of armed force against another State of such gravity as to amount to an actual armed attacked conducted by regular forces. Conventional paradigm. 
§ It is not supplying weapons or $. (i.e. Nicaragua did not attack contras)
§ “armed attack” does NOT equal supplying arms to contra’s enemies (what Nicaragua did to its supporters).
o   What’s the court concerned with?
§ Any loosening of this armed attack definition will cause many more states to “help out” others via self defense and this in general will lead to a lot more violence in the world.
o   What could El Salvador have done?
§ They can’t invade Nicaragua
§ They can ask for help to control the border
§ They can take greater police measures within El Salvador
§ They can’t fight against Nicaragua though
o   Thus, US breached prohibition of use of force
§ It laid mines, attacked Nicaraguan ports, oil installations
§ It also threatened used of force by giving contras training and arming them
o   Next issue: whether the activities of the US towards Nicaragua are justified as a response to an intervention by that State in the internal affairs of another State in Central America.
§ The court cannot contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system.
§ It didn’t get request by El Salvador until way after it arrived
§ It sought to coerce the gov’t to over throw the existing gov’t and not to do so directly by itself.
o   Final things US is charged with
§ Self-defense is not sustained; that by arming, equipping, and supporting the contras, US violated the non-intervention principle; by its attacks on Nicaraguan facilities and laying mines, violated the prohibition on the use of force; that the US was under an obligation to desist immediately from further violations; and that it was under a duty to make reparation to Nicaragua for the injuries caused by its unlawful acts.

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