Nicaragua vs United States: An Analysis of the

Jurisprudence Relating to Customary

International Law (2 of 2)
International Court of Justice Contentious Case: Case Concerning the Military and
Paramilitary Activities In and Against Nicaragua (Nicaragua vs United States).

Year of Decision: 1986.

Click here for a summary of the Courts deliberations on aspects relating to the use of force, non-
intervention, and issues relating to sovereignty.

Overview:

This case was about military and paramilitary activities conducted by, or with the assistance of, the
United States against Nicaragua from 1981 to 1984.

Due to a United States multilateral treaty reservation, (the Vandenberg reservation), the Court
could not rely on the United Nations Charter and was compelled to base its findings in relation to
the use of force customary and general principles of international law. As a result, the Nicaragua
case developed a significant jurisprudence on customary international law relating to (1) the use of
force and non-intervention, (2) elements necessary to form customary international law, and (3) the
relationship between customary and treaty law.

Controversial aspects of the decision included (1) the Courts methodology used to determine that
the principle of non-intervention had attained customary law status, (2) the Courts reliance on
resolutions of the General Assembly as a source of opinio juris and (3) the Courts reliance on
multilateral treaties to determine customary international law despite the Vandenberg reservation.

Click here for Facts relating to the Case.

Questions before the Court:

In Nicaragua vs United States, the Court discussed, amongst others:

(1) Was the Court competent to give its determination based on customary international law when
there was a multilateral treaty reservation?

(2) What is the relationship between treaty and customary international law?

(3) What are the elements necessary to form customary international law?

(4) What is the customary international law status of the principle of non-intervention?

Relevant findings of the Court:

(1) The Court held that multilateral treaty reservations cannot preclude the Court from
relying on customary international law, because customary law exists independently of treaty
law. (paras 172 178)

The Court held that the issues raised by Nicaragua relating the use of force and self defense
were regulated both by customary law and treaty law, in particular the Charter of the United
Nations. Yet, the United States had entered into a multilateral treaty reservation, which did not, for
example, allow the Court to rely on the Charter of the United Nations. The Court sought to rely,
instead, exclusively on customary law relating to the use of force. In doing so, it held that
multilateral treaty reservations cannot preclude the Court from relying on customary international
law because, even if treaty provisions and customary law deal with the same subject matter,
customary law exists independently of treaty law.

(2) Relationship between treaty and customary international law

The Court examined the relationship in two contexts to demonstrate that customary and treaty law
co-exist:

(a) where the customary law principles were identical to treaty provisions; and

(b) where there were different rights or obligations under customary and treaty law in respect of
the same subject matter.

(a) Situations where the customary law principles were identical to treaty provisions.

1. In situations where customary law principles were identical to treaty provisions, the Court held
that even if principles of customary international law were subsequently codified into treaties, they
continue to exist side by side. For parties to treaties, both customary and treaty law apply. If, for
some reason, the treaty ceases to apply between treaty parties, the identical customary law provision
continues to apply between them (para 178).

2. The argument that customary international law exists alongside treaty law was 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. The Court held that Article 6
did not reflect customary law at the time of the codification, and had not 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 its finding that principles of customary international law can exist side by
side with identical treaty law provisions and that treaties do not supervene in a manner where the
customary law ceases to exist (para 177).

3. 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 with respect to the same subject matter. For example,
the Court said that the term inherent in Article 51 recognised that customary law rights of self-
defense existed alongside treaty provisions.

4. Rules containing the same content could also 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 provisions that reflect existing customary law.
For example, a State that exercises the right of self-defence 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,
while 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).

(b) Situations where customary and treaty law rights and obligations differed in respect of the same subject matter.

1. The Court discussed situations where customary international law and treaty law provisions were
not identical. For example, the Court stated that concepts such as 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 Court held:

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 self-defence 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.

2. In case of a divergence between treaty law and customary international law, for the parties to
a treaty, amongst themselves, the treaty provisions apply as lex specialis. (see paras 180 and 181).

3. The Court explained the relationship between the Charter of the United Nations and customary
international law on the use of force and self defense 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 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).

4. The Court concluded that principles such as those of the non-use of force, non-intervention,
respect for the independence and territorial integrity of States, right of collective self defense 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. (paras 191-
193).

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Analysis: 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 separate 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. Then the two regimes may become 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.

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(3) The Court held that opinio juris and State practice remain necessary elements to
determine the existence of customary international law

1. In the Nicaragua case, as the North Sea Continental Shelf Case, considered both the subjective
element (opinio juris) and the objective element (State practice) as essential pre-requisites to the
formation and elucidation of a customary norm (para 207).

2. On State practice, the jurisprudence of the Nicaragua case contained several important
clarifications in respect of inconsistent State practice (para 186). The Court held that:

(a) For a customary rule to come into force, it is not necessary to have complete consistency in State
practice in respect of the rule.

(b) Inconsistent State practice does not affect the formation or existence of a customary principle so
long as the inconsistency is justified as a breach of the rule.

(c) This attempt at justifying a violation would only make the rules customary law nature stronger.
2. On opinio juris, the Nicaragua case jurisprudence elaborated on how to deduct opinio juris from
acts of State. The Court held that the following reflected opinio juris:

(a) the attitude of States towards certain General Assembly resolutions.

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

(b) Statements by State representatives.

(c) Obligations undertaken by States in international forums (the Court provided the example of the
Conference on Security and Co-operation in Europe, Helsinki)

(d) The International Law Commissions findings that a concept amounts to a customary law
principle.

(e) Multilateral conventions.

(4) The principle of non-intervention is customary international law.

1. 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 and secondly, is the practice sufficiently in conformity
with it for this to be a rule of customary international law? The first question was discussed in a
previous post and will not be discussed here.

3. On State practice, the Court noted that even if examples of trespass against this principle (of
non-intervention) are not infrequent (para 202), this did not affect the customary law nature of the
prohibition on non-intervention. The Court held:

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.

4. On opinio juris, Court went on to hold, as before, that for a new customary rule to be
formed, Sate practice must be accompanied by the opinio juris. The Court held:
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 It (the Court) 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 non-intervention. (paras 206, 207).

5. 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).

6. The Court held 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).

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Analysis: General Assembly and Opinio Juris

Some commentators criticized the Court for its reliance on General Assembly resolutions to deduct
opinio juris.They argued that voting patterns in the United Nations are often guided by policy and
not by legal considerations. 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.

Their 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). See also the Nuclear Weapons
Advisory Opinion where the Court, once again, reflected on how General Assembly resolutions
contribute towards the formation of customary law.

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Background Reading Material on the Nicaragua case

The judgment, including separate opinions of individual judges, and summaries of the judgment and
orders

Other reading material can be found in this page. It summarizes articles and other materials that
maybe relevant to understand this case further.
 Ruwanthika Gunaratne at https://ruwanthikagunaratne.wordpress.com, 2008 2017.
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