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NICARAGUA VS UNITED STATES: AN

ANALYSIS OF JURISPRUDENCE ON
CUSTOMARY INTERNATIONAL LAW
Case: Case Concerning the Military and Paramilitary Activities In and Against
Nicaragua (Nicaragua vs United States)
Year of Decision: 1986. Court: ICJ.
Overview: The case involved military and paramilitary activities conducted by, or with
the assistance of, the United States against Nicaragua from 1981 to 1984. Due to a
multilateral

treaty

reservation

of

the

United

States

(hereinafter

called

the

Vandenberg reservation), the Court was compelled to base its findings only on customary
and general principles of international law. As a result, the Nicaragua case developed
significant jurisprudence on clarifying customary international law on the use of force and
non-intervention, elements necessary to form customary international law and the
relationship between the latter and treaty law. Controversial aspects of the decision
included the courts methodology used to determine that the principle of non-intervention
had attained customary law status, the courts reliance on UN resolutions as a source of
opinio juris and the courts reliance on multilateral treaties to determine customary
international law in face of the Vandenberg reservation.
Recommendation: The Nicaragua case contains in-depth discussions on the relationship
between treaty and customary international law. Students may wish to read this post on the
relationship before reading the synopsis of the case.

In the Nicaragua case, the ICJ discussed:

The competence of the ICJ to give its determination based on customary international
law in the face of the Vandenberg reservation of the United States.

The relationship between treaty law and customary international law.

Elements of customary international law.

The prohibition on the use of force as a jus cogens norm.

Customary international law status of the principle of non-intervention.

The competence of the ICJ to give its determination based on customary


international law
1. The United States when accepting the compulsory jurisdiction of the ICJ (under Article
36(2) of the ICJ Statute) entered into the Vandenberg reservation. This reservation
barred the ICJ from using certain multilateral treaties in the adjudication of the dispute.
2. The United States held that this reservation barred the Court from determining the case
even on the basis of customary and general principles of international law because
customary law provisions, on which Nicaragua relied on, were identical to provisions in
treaties sought to be excluded. Because of the identical content, the United States
argued, treaty provisions supervene and subsume the parallel customary law provision (see
below).
3. The Court disagreed. It held that multilateral treaty reservations could not preclude the
Court from determining cases relying customary international law because the latter exists
independently of treaty law.
NB: The United States disagreed with the Courts determination to proceed with the case
and refused to participate further, including at the merits stage (see the declaration made
by the United States in this regard). Although the Court was barred from resorting to
multilateral treaties, it referred to the latter, including the UN Charter, to identify the
existence, nature and scope of various customary law principles. Commentators criticised
the Court for circumventing the multilateral reservation in this manner.

Relationship between treaty law and customary international law


4. As we noted before, the United States argued that when customary international law and
treaty law contain the same content; the treaty law subsumes and supervenes customary
international law. In other words, the existence of principles in the United Nations Charter
precludes the possibility that similar rules might exist independently in customary
international law, either because existing customary rules had been incorporated into the
Charter, or because the Charter influenced the later adoption of customary rules with a
corresponding content (para 174).

5. In its response, the Court distinguished two situations:


(a)
(b)

Situations where the customary law principles were identical to treaty provisions; and
Situations where customary law and treaty law rights and obligations differed in

respect of the same subject matter.


6. In situations where customary law principles were identical to treaty provisions (reflected
as (a) above), the Court, quite correctly, disagreed with the view of the United States. It held
that even if principles of customary international law are codified into treaties, the former
(customary international law principles) continues to exist side by side with the latter
(treaties). For treaty parties, both customary and treaty law apply and if, for some reason,
the treaty ceases to apply the identical customary law provision continues to apply between
them unaffected (see more on para 178).
7. The fact that customary international law exists alongside treaty law was an argument
brought by Norway and Denmark in the North Sea Continental Shelf Cases. In these cases,
the two countries having failed to attribute an obligation under Article 6 of the Geneva
Conventions of 1958 to Germany, sought to bind Germany via customary international law.
In this case the Court determined that Article 6 neither reflected customary law at the time
of the codification, nor had it attained that status at the time of the determination. In
the Nicaragua case, the Court relied on the North Sea Continental Shelf Cases to support the
assertion that principles of customary international law can exist side by side with identical
treaty law provisions and the latter does not supervene the former in a manner where the
former ceases to exist (para 177).
8. The Court also relied on Article 51 of the UN Charter to show that a treaty itself can
recognise the existence of customary international law on the same subject matter. The
term inherent in Article 51 recognized that customary law rights of self-defense existed
alongside treaty provisions.
9. Rules containing the same content could be treated differently in customary international
law and in treaty law. For example, treaty law may contain institutions or mechanisms to
ensure the effective implementation of its provisions, including those that reflect customary
law. One could take the Courts reading of Article 51 as an example. A State that exercises
the right of self-defense under Article 51, according to the UN Charter, has an obligation
to report the use of force immediately to the Security Council. The Court held that this was a
treaty requirement and one that did not exist under customary law. Interestingly, although

the failure to report did not result in a breach of customary international law, the Court
indicated that the United States failure to observe this requirement contradicted her claim
to be acting in self-defense (see paras 200, 235).
10. The Court discussed situations where customary international law and treaty law
provisions were not identical (see point (b) above). For example, the Court referred to the
fact that concepts such and necessity and proportionality, or the definition of what
constitutes an armed attack, are not found under Article 51, or the UN Charter, but in
customary law. The Court concluded that (1) this proves that customary international law
continues to exist alongside treaty law and that (2) areas governed by the two sources of
law do not (always) overlap and the rules do not (always) have the same content.

the Charter, having itself recognized the existence of this right (inherent customary law
right of self-defence under A. 51 of the UN Charter), does not go on to regulate directly all
aspects of its content. For example, it does not contain any specific rule whereby selfdefence would warrant only measures which are proportional to the armed attack and
necessary to respond to it, a rule well established in customary international law. Moreover,
a definition of the armed attack which, if found to exist, authorises the exercise of the
inherent right of self-defence, is not provided in the Charter, and is not part of treaty law. It
cannot therefore be held that Article 51 is a provision which subsumes and supervenes
customary international law.
11. In case of a divergence between treaty law and customary international law , for the
parties to the treaty, amongst themselves, the treaty provisions apply as lex specialis. The
courts support for this principle can be found in paras 180 and 181. The Court, in
conclusion, explained the relationship between the UN Charter and customary international
law in the following manner:
However, so far from having constituted a marked departure from a customary
international law which still exists unmodified, the Charter gave expression in this field (on
the use of force and self defence) to principles already present in customary international
law, and that law has in the subsequent four decades developed under the influence of the
Charter, to such an extent that a number of rules contained in the Charter have acquired a
status independent of it. The essential consideration is that both the Charter and the
customary international law flow from a common fundamental principle outlawing the use of
force in international relations. The differences which may exist between the specific content
of each are not, in the Courts view, such as to cause a judgment confined to the field of

customary international law to be ineffective or inappropriate (to the parties of the Charter
who are bound by the Charter) (text in brackets added)(para 181).

The relationship between customary international law and jus cogens


13. The court cited material presented by Nicaragua, the United States and the International
Law Commission to argue that the prohibition on the use of force contained in Article 2(4) of
the UN Charter has attained the status of a jus cogens norm. The Court found this to be A
further confirmation of the validity as customary international law of the principle of the
prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter of the
United Nations (para 190).

The necessary elements to determine the existence of customary


international law
14. The Court, similar to the North Sea Continental Shelf Case, considered both the
subjective element (opinio juris) and the objective element (State practice) as essential prerequisites to the formation and elucidation of a customary international law norm (para 207).
The

jurisprudence

of

the

Nicaragua

case

contained

an

important

clarification

INCONSISTENT STATE PRACTICE does not affect the formation or continued existence of
a customary principle so long as the inconsistency is justified as a breach of the rule.
It is not to be expected that in the practice of States the application of the rules in question
should have been perfect, in the sense that States should have refrained, with complete
consistency, from the use of force or from intervention in each others internal affairs.
The Court does not consider that, for a rule to be established as customary, the
corresponding practice must be in absolutely rigorous conformity with the rule. In order to
deduce the existence of customary rules, the Court deems it sufficient that the conduct of
States should, in general, be consistent with such rules, and that instances of State conduct
inconsistent with a given rule should generally have been treated as breaches of that rule,
not as indications of the recognition of a new rule.
If a State acts in a way prima facie incompatible with a recognized rule, but defends its
conduct by appealing to exceptions or justifications contained within the rule itself, then
whether or not the States conduct is in fact justifiable on that basis, the significance of that
attitude is to confirm rather than to weaken the rule. (para 186)
EVIDENCE OF OPINIO JURIS:

15. The Nicaragua jurisprudence explained how one could deduct opinio juris from acts of
State. The Court held that opinio juris could be deduced from:
-

the attitude of States towards certain General Assembly resolutions. For example, the

Declaration on Principles of International Law concerning Friendly Relations (hereafter


called the Declaration on Friendly Relations). The Court held that:
The effect of consent to the text of such resolutions cannot be understood as merely that of
a reiteration or elucidation of the treaty commitment undertaken in the Charter. On the
contrary, it may be understood as an acceptance of the validity of the rule or set of rules
declared by the resolution by themselvesIt would therefore seem apparent that the
attitude referred to expresses an opinio juris respecting such rule (or set of rules), to be
thenceforth treated separately from the provisions, especially those of an institutional kind,
to which it is subject on the treaty-law plane of the Charter
- Statements by State representatives.
- Obligations undertaken by participating States in international forums (the Court provided
the example of the Conference on Security and Co-operation in Europe, Helsinki)
-

The International Law Commissions findings that a concept amounts to a customary law

principle.
- Multilateral conventions.
NB: The fact that the Court relied on resolutions of the United Nations to deduct opinio juris
was subject to criticism. As you know, opinio juris is the subjective element necessary to
form customary law. Opinio juris is reflected in instances where the State undertakes a
particular practice because it believes that it is legally bound to do so. Voting patterns in the
United Nations are often guided by policy considerations over legal merits. The General
Assemblys subject matter is more policy oriented than legal (for which we have the 6th
Committee). For example, when the United States voted for the Friendly Relations
Declaration it stated on record its belief that the Declaration was only a statement of
political intention and not an expression of the law. This is not to say that provisions on
General Assembly Resolutions that guide the international community to act in a certain
way may not eventually become binding international law (either by attaining customary
law status or becoming codified into treaty law). It can, if there is adequate State practice
and opinio juris. The argument is that opinio juris cannot be said to exist based merely on a

vote in favour of a non-binding resolution in the absence of an examination of subsequent


consistent and general State practice (which, in turn, reflects or confirms opinio juris).

Customary international law relating to principles of non-intervention


16. The Court held that Principles such as those of the non-use of force (para 191), nonintervention (para 192), respect for the independence and territorial integrity of States, right
of collective self defence (para 193) and the freedom of navigation, continue to be binding
as part of customary international law, despite the operation of provisions of conventional
law in which they have been incorporated (text in brackets added).
17. The Courts finding that principle of non-intervention formed a part of customary
international law invited criticism from commentators, partly because they disagreed that
the principle formed customary international law and partly because of the Courts own
contradictions in coming to its conclusions and inadequacy of analysis (see below). The
Courts contradiction stems from this statement: The principle of non-intervention involves
the right of every sovereign State to conduct its affairs without outside interference;
though examples
Court considers

of trespass
that

it is

against
part

this

and

principle

parcel

of

are

not

infrequent,

customary

the

international

law(emphasis added. Para 202).


18. The Court began its analysis with two questions: Notwithstanding the multiplicity of
declarations by States accepting the principle of non-intervention, there remain two
questions: first, what is the exact content of the principle so accepted, and secondly, is the
practice

sufficiently

in

conformity

with

it

for

this

to

be

rule

of

customary

international law? The first question was discussed in a previous post and will not be
discussed here.
18. Although the question seemed to direct the Court towards identifying an existing
custom, in its response the Court seemed to have already determined that the customary
law prohibition of non-intervention existed. In the following passage the Court deliberates if,
in contrast, a customary law right to intervention had evolved.
There have been in recent years a number of instances of foreign intervention for the
benefit of forces opposed to the government of another State. The Court is not here
concerned with the process of decolonisation It has to consider whether there might be
indications of a practice illustrative of belief in a kind of general right for States to intervene,
directly or indirectly, with or without armed force, in support of an internal opposition in

another State, whose cause appeared particularly worthy by reason of the political and
moral values with which it was identified. For such a general right to come into existence
would involve a fundamental modification of the customary law principle of nonintervention. (paras 206, 207).
19. The Court went on to hold, as before, that for a new customary rule to be formed, not
only must the acts concerned amount to a settled practice, but they must be accompanied
by the opinio juris sive necessitates.
The significance for the Court of cases of State conduct prima facie inconsistent with the
principle of non-intervention lies in the nature of the ground offered as justification. Reliance
by a State on a novel right or an unprecedented exception to the principle might, if shared in
principle by other States, tend towards a modification of customary international law. In fact
however the Court finds that States have not justified their conduct by reference to a new
right of intervention or a new exception to the principle of its prohibition. The United States
authorities have on some occasions clearly stated their grounds for intervening in the affairs
of a foreign State for reasons connected with, for example, the domestic policies of that
country, its ideology, the level of its armaments, or the direction of its foreign policy. But
these were statements of international policy, and not an assertion of rules of existing
international law.
20. The Court also noted that the United States has not sought to justify its intervention in
Nicaragua on legal grounds, but had only justified it at a political level. The United States
had not asserted for itself legal right of intervention in these circumstances. The Court,
without further analysis into State practice, almost immediately proceeded to find that no
such general right of intervention, in support of an opposition within another State, exists in
contemporary international law. The Court concludes that acts constituting a breach of the
customary principle of non-intervention will also, if they directly or indirectly involve the use
of force, constitute a breach of the principle of non-use of force in international relations
(para 209).

Development of a parallel customary international law?


In addition to the comments made above in italics, another interesting aspect of the
judgment is that it sought to divorce customary international law obligation from the
identical treaty obligation because of the jurisdictional bar to consider multilateral treaties.
In its consideration of customary international law it developed certain principles
independently of the treaty. For example, Article 2(4) of the UN Charter prohibits the threat

or use of force against another State. The Court held that the same prohibition on the use of
force could be found under customary international law and as a jus cogens norm. The Court
then went on to categorize the use of force under customary law as either a grave use of
force (i.e. use of force amounting to an armed attack) or a less grave use of force (i.e. use
of force that falls short of an armed attack for example, the threat to use force). The Court,
then, restricted the right of self-defense to a situation where there had been a grave use of
force (or an armed attack, as defined by the Court). If one were to hold that the relevant
Charter principles were clear, precise and unambiguous, one could say this divorced
interpretation could result in customary law developing in a manner that is not in line with
the Charter and thereby creating separate rights/ regimes of law that govern the same
subject matter. This is because, then, the two regimes would be irreconcilable. However, the
fact remains that the Charter does leave room for interpretation for example, on the
definition of an armed attack or on the use of force. In cases of ambiguity, Article 31 of the
Vienna Convention on the Law of Treaties directs us to look at, inter alia, subsequent
practice and any relevant rules of international law that maybe applicable. In other words, a
treaty can be interpreted with the assistance of customary and general principles of
international law. In this case, the development of customary law would also mean a
potential development of ambiguous treaty law and a reconciliation of treaty and
customary law provisions.