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Did the United States breach its customary international law obligation not to
intervene in the affairs of another State when it trained, armed, equipped and
financed the contra forces or encouraged, supported and aided the military and
paramilitary activities against Nicaragua?
Did the United States breach its customary international law obligation not to use
force against another State when it directly attacked Nicaragua in 1983 1984 and
when its activities in bullet point 1 above resulted in the use of force?
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If so, can the military and paramilitary activities that the United States undertook in
and against Nicaragua be justified as collective self-defence?
Did the United States breach its customary international law obligation not to
violate the sovereignty of another State when it directed or authorized its aircrafts
to fly over Nicaraguan territory and by acts referred to in bullet point 2 above?
Did the United States breach its customary international law obligations not to
violate the sovereignty of another State, not to intervene in its affairs, not to use
force against another State and not to interrupt peaceful maritime commerce when
it laid mines in the internal waters and the territorial sea of Nicaragua?
ICJ decision: The United States violated customary international law in relation to bullet
points 1, 2, 4 and 5 above. On bullet point 3, the Court found that the United States could
not rely on collective self-defence to justify its use of force against Nicaragua.
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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.
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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)
Situations where the customary law principles were identical to treaty provisions; and
(b)
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 continues to exist side by side with the latter. 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 recognised 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.
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the Charter, having itself recognized the existence of this right (inherent customary law
right of self-defense 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 s elfdefense 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, authorizes the exercise of the
inherent right of self-defense, 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. (Lex
specialis is a Latin phrase which means law governing a specific subject matter. It comes from
the legal maxim lex specialis derogat legi generali The doctrine states that a law governing a specific
subject matter overrides a law that only governs general matters.) 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-defense) 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).
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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)
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).
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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).
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We have then a double irony. The Court uses the United States position accepting the treaty
norm against the threat or use of force also as a customary norm possibly having jus cogens
quality, in part, to justify taking jurisdiction as a matter quite independent of the norm that
otherwise falls under the multilateral treaty reservation. Since there are two separate
sources of the law, the choice of the one source rather than the other means that the norm
relied upon survives the jurisdictional bar to the use of the other. Yet the two norms are not
different enough to undermine completely the content of the Charter norm. This formalism
simply masks the more interesting question of the Courts institutional claim, given the
ineffectiveness of the UN Security system, to develop an international public order case by
case, by breaking away form the strictures of the Charter and treaty norms. The Court untied
the treaty norms from their constraints within the United Nations or regional collective
security systems, a potentially destabilizing decision, one whose consequences are
unforeseen. The decision based on the validity of an autonomous norm of customary
international law free from the Charter is a constitutive one of potential great significance
(81 AMJIL 100, 1987).
Trashing customary international law, Antony DAmato, 81 AMJIL 102 (1987) (full text):
(DAmato discusses the paucity of State practice examined by the international court of
justice before concluding that the principle non-intervention formed part of customary
international law. He argues that the acceptance of General Assembly resolutions do not
manifest opinio juris. He states that the Court failed to consider that Article 2(4) continued to
evolve through the years.)
The World Courts Achievement, Richard Falk, 81 AMJIL 106 (Falk takes a generally positive
approach to the judgment, gives a good overview of the case and Judge Shwebels dissent)
Drawing the right line, Tom J. Farer, 81 AMJIL 112 (Farer takes a cold-war contextual
approach to the judgment and supports the Courts narrow view of an armed attack and self
defence).
Some observations on the ICJs procedural and substantive innovations, Thomas M. Franck,
81 AMJIL 116 (criticizes the determination of relevant State practice in relation to nonintervention and the reliance on UN resolutions to illicit opinio juris (it alleges that the Court
sought to harden soft law prematurely). Frank points out that the interventions falling short
of armed attacks would not allow States to target rebel groups in another States territory
even if the insurgency is planned, trained, armed and directed from that territory).
Protecting the Courts institutional interests: Why not the Marbury approach? Michael J.
Glennon, 81 AMJIL 121 (discusses reservations before the ICJ and the Courts prerogative to
determine its own jurisdiction)
Discretion to decline to exercise jurisdiction, Edward Gorden, 81 AMJIL 129 (discusses the
discretionary power of the court to decline to exercise its jurisdiction at the merit stages).
The Nicaragua judgment and the future of the law of force and self-defense, John Lawrence
Hargrove 81AMJIL 135 (Hargrove criticizes the ICJs construction of the notion of collective
self defense, armed attack and forcible countermeasures).
Somber reflections on the compulsory jurisdiction of the international court, Mark Weston
Janis, 81 AMJIL 144
Custom on a sliding scale, Frederic L. Kirgis 81 AMJIL 146 (Kirgis discusses the relationship
between State practice and opinio juris, criticizes the methods (or lack thereof) of the Court
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in determining the customary law nature of Article 2(4) of the Charter. Points out that actual
State practice on intervention did not support the Courts findings).
The International Court lives unto its name, Herbert W. Briggs, 81 AMJIL 78.
Determining US responsibility for contra operations under international law, Francis V. Boyle
Customary international law in the Nicaragua Case, Rijpkema. (Abstract: On 27 June 1986
the International Court of Justice passed judgment in the case concerning military and
paramilitary activities in and against Nicaragua. Because of a reservation that the United
States had made when it accepted the jurisdiction of the Court, the Court could not
pronounce a decision regarding the dispute insofar as it concerned multilateral convertions.
As a resuld of this, the Court was compelled to base its judgment largely on rules of
customary international law and general principles of law. The rules of customary law which
were relevant for the judgment corresponded to a significant extent, as regards their
content, to the rules of treaty law which the Court was unable to apply, such as the
prohibition on the use of force of Article 2, paragraph 4 of the Charter of the United Nations.
This led the Court to indicate in precise terms how rules of treaty law and rules of customary
law which have a corressponding content can co-exist and how the existence of rules of
customary international law can be established in general. In addition, the Court examined
in some detail the existence and content of certain specific rules of customary international
law.)
Le peuple, cest moi!The world court and human rights, 81 AMJIL 173
LJIL Symposium: Discussion of the ICJ Nicaragua Judgment
The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In
Between?, Lori Fisler Damrosch (Abstract: At the time the United States withdrew from
participation in the Nicaragua case at the International Court of Justice, the US government
expressed concern that the course on which the Court may now be embarked could do
enormous harm to it as an institution and to the cause of international law. This essay
examines whether or to what extent the anticipated negative effects came to pass. It
concludes that dire predictions of harm to the Court were overstated. Twenty-five years
later, the rate at which states accept the Courts jurisdiction has held steady. Only a few
states have added jurisdictional reservations concerning military activities. The mix of cases
being brought to the Court has shifted towards a more representative distribution. States are
generally complying with the Courts decisions, though some compliance problems remain.
The most serious negative impact has been on the willingness of the United States (still the
Courts most active litigant) to participate fully in international dispute settlement.)
LJIL Symposium: The Nicaragua Case: Its Impact, John Dugard
LJIL Symposium: Response of Lori F. Damrosch to Comments by John Dugard, Lori F.
Damrosch
The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, by Marcelo
Kohen(Abstract: This article focuses on the analysis by the International Court of Justice of
the principle of non-intervention in domestic affairs in its judgment of 27 June 1986 in the
case concerning Military and Paramilitary Activities in and against Nicaragua and contrasts it
with the evolution of international law and practice in this field. It is proposed that the
Courts 1986 analysis not only remains of actuality today, but also constitutes a precursor to
legal developments that have since taken place. This is particularly the case with regard to
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the relationship between the protection of human rights on the one hand and the safeguard
of state sovereignty and the collective security regime on the other. The 1986 judgment
helped to clarify the content of humanitarian assistance. It constituted the starting point for
the development of this concept in a series of GA resolutions that were subsequently
adopted. The controversial doctrine of humanitarian intervention, as well as state practice
in violation of this principle, in no way led to modifying existing international law. Similarly,
the new concept of responsibility to protect, which places emphasis on collective security
and discounts unilateral action, has not led to the disappearance of the principle of nonintervention either.)
LJIL Symposium: From Nicaragua to R2P: Continuity and Change, Andr Nollkaemper
Ruwanthika
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