[During the Cold War the United States repeatedly intervened in Latin America, not to mention many other places, directly and by proxy (i.e., arming and training local actors, including paramilitary insurgents). In 1984, Nicaragua asked the ICJ to rule America’s assistance to the so-called contras illegal under international law, as a violation of Art. 2(4) of the United Nations Charter. The United States claimed its intervention was legal as an act of collective self-defense of neighboring countries. Eventually the United States withdrew from the case after losing in an early phase of the case; and, because of the nature of its own jurisdiction, the court could no longer rule directly on whether the United States had violated the Charter use of force rules. The court nonetheless resolved to rule on whether the United States had violated customary principles of the use of force, observing that the UN Charter rules “correspond, in essentials to those found in customary international law.” We are interested in the court’s analysis of Arts. 2(4) and 51, as mirroring the customary principles it was still empowered to interpret.]
[In 1837, Canadian insurgents against the British empire took flight, and American confederates armed them, using the S.S. Caroline. Men loyal to the British crown seized the ship and destroyed it. Some of the insurgents and their confederates struck back, destroying a British ship while it was docked. In both instances state borders were crossed. In 1842, U.S. Secretary of State Daniel Webster made peace with the British, and in the course of negotiating agreed to what is now a famous norm of customary law norm concerning when self-defense allows anticipatory action against prospective armed attack.]
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