Nicaragua v.
United States determine customary international law despite the
General Principles of Law: | Nov. 26, 1984 | ICJ
Nature of Case:
Digest maker: Claudine Dungo
SUMMARY: The case involves violation of customary
international law. On April 9, 1984, the Republic of Nicaragua
submitted a complaint to the International Court of Justice (ICJ),
alleging that the United States was using military force against
Nicaragua in violation of International Law.
The ICJ ruled in favor of Nicaragua and against the
United States and awarded reparations to Nicaragua. The ICJ held
that the U.S. had violated international law by supporting the
Contras in their rebellion against the Nicaraguan government and
by mining Nicaragua's harbors.
The Court found in its verdict that the United States was
"in breach of its obligations under customary international law not
to use force against another State", "not to intervene in its affairs",
"not to violate its sovereignty", "not to interrupt peaceful maritime
commerce", and "in breach of its obligations under Article XIX of
the Treaty of Friendship, Commerce and Navigation between the
Parties signed at Managua on 21 January 1956."
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
Court’s methodology used to determine that the principle of non-
intervention had attained customary law status, (2) the Court’s
reliance on resolutions of the General Assembly as a source of
opinio juris and (3) the Court’s reliance on multilateral treaties to
Vandenberg reservation.
FACTS:
 July 1979 - the Government of President Somoza was replaced
by a government installed by Frente Sandinista de
Liberacion Nacional (FSLN). Supporters of the former Somoza
Government and former members of the National Guard
opposed the new government. The US – initially supportive
of the new government – changed its attitude when,
according to the United States, it found that Nicaragua was
providing logistical support and weapons to guerrillas in El
Salvador. In April 1981 the United States stopped its aid to
Nicaragua and in September 1981, according to Nicaragua,
the United States “decided to plan and undertake activities
directed against Nicaragua”.
 The armed activities against the new Government was carried
out mainly by (1) Fuerza Democratica Nicaragüense (FDN),
which operated along the border with Honduras, and
(2) Alianza Revolucionaria Democratica (ARDE), which
operated along the border with Costa Rica. Initial US support
to these groups fighting against the Nicaraguan Government
(called “contras”) was covert. Later, the United
States officially acknowledged its support (for example: In
1983 budgetary legislation enacted by the United States
Congress made specific provision for funds to be used by
United States intelligence agencies for supporting “directly or
indirectly military or paramilitary operations in Nicaragua”).
 Nicaragua also alleged that the United States is effectively in
control of the contras, the United States devised their strategy
and directed their tactics, and that the contras were paid for
and directly controlled by the United States. Nicaragua also
alleged that some attacks against Nicaragua were carried out,
directly, by the United States military – with the aim to
overthrow the Government of Nicaragua. Attacks against
 Nicaragua included the mining of Nicaraguan ports, and
other attacks on ports, oil installations, and a naval base.
Nicaragua alleged that aircrafts belonging to the United b. That the United States had breached international law
States flew over Nicaraguan territory to gather intelligence, by:
supply to the contras in the field, and to intimidate the
population.  violating the sovereignty of Nicaragua by:
 The United States did not appear before the ICJ at the merit
stages, after refusing to accept the ICJ’s jurisdiction to decide - armed attacks against Nicaragua by air, land and sea;
the case. The United States at the jurisdictional phase of the
hearing, however, stated that it relied on an inherent right of - incursions into Nicaraguan territorial waters;
collective self-defence guaranteed in A. 51 of the UN Charter
when it provided “upon request proportionate and - aerial trespass into Nicaraguan airspace;
appropriate assistance…” to Costa Rica, Honduras, and El
Salvador in response to Nicaragua’s acts of aggression against  efforts by direct and indirect means to coerce and
those countries agencies for supporting directly or indirectly intimidate the Government of Nicaragua.
military or paramilitary operations in Nicaragua.
 using force and the threat of force against
Submissions of the Nicaragua: Nicaragua.

a. That the United States, in recruiting, training, arming,
equipping, financing, supplying and otherwise
encouraging, supporting, aiding, and directing military
and paramilitary actions in and against Nicaragua, had
violated its treaty obligations to Nicaragua under:
 Article 2 (4) of the United Nations Charter;
 intervening in the internal affairs of Nicaragua.
 infringing upon the freedom of the high seas and
interrupting peaceful maritime commerce.
 killing, wounding and kidnapping citizens of
Nicaragua.

 Articles 18 and 20 of the Charter of the Organization
of American States;
 Article 8 of the Convention on Rights and Duties of
States;
c. Nicaragua demanded that all such actions cease and that
the United States had an obligation to pay reparations to
the government for damage to their people, property,
and economy.

 Article I, Third, of the Convention concerning the

Duties and Rights of States in the Event of Civil
Strife.
Submissions of the United State:
 that its actions were "primarily for the benefit of El
Salvador, and to help it to respond to an alleged armed
attack by Nicaragua, that the United States claims to be
exercising a right of collective self-defense, which it
regards as a justification of its own conduct towards
Nicaragua. El Salvador joined the U.S. in their
Declaration of Intervention which it submitted on 15
August 1984, where it alleged itself the victim of an
armed attack by Nicaragua, and that it had asked the
United States to exercise for its benefit the right of
collective self-defence."
 The CIA claimed that the purpose of the Psychological
Operations in Guerrilla Warfare manual was to
"moderate" the existing Contra activities.
 The United States argued that the Court did not have
jurisdiction, with U.S. ambassador to the United
NationsJeane Kirkpatrick dismissing the Court as a
"semi-legal, semi-juridical, semi-political body, which
nations sometimes accept and sometimes don't."
It is noteworthy that the United States, the defaulting party,
was the only member that put forward arguments against the
validity of the judgment of the court, arguing that it passed a
decision that it 'had neither the jurisdiction nor the competence to
render'. Members that sided with the United States in opposing
Nicaragua's claims did not challenge the court's jurisdiction, its
findings, nor the substantive merits of the case.
ISSUES/RATIO:
 First Issue: Whether the prohibition of the use of force and
collective self-defence are issues regulated both by
customary international law and by treaties, in particular the
United Nations Charter.
 The Court then considered the rules of customary law
applicable to the present dispute. For this purpose it
considered whether a customary rule exists in the opinio
juris of States,and satisfy itself that it is confirmed by
practice.
 The Court ruled that there can be no doubt that the
issues of the use of force and collective self-defence are
regulated both by customary international law and by
treaties, in particular the United Nations Charter.
 The Court concluded that both Parties accept a treaty-
law obligation to refrain in their international relations
from the threat or use of force against the territorial
integrity or political independence of any State, or in any
other manner inconsistent with the purposes of the
United Nations. The Court has however to be satisfied
that there exists in customary law an opinio juris as to the
binding character of such abstention. It considers that
this opinio juris may be deduced from, inter alia, the
attitude of the Parties and of States towards certain
General Assembly resolutions, and particularly
resolution 2625 (XXV) entitled "Declaration on Principles
of International Law concerning Friendly Relations and
Co-operation among States in Accordance with the
Charter of the United Nations". Consent to such
resolutions is one of the forms of expression of an opinio
juris with regard to the principle of non-use of force,
regarded as a principle of customary international law,
independently of the provisions, especially those of an
 institutional kind, to which it is subject on the treaty-law
plane of the Charter.
Second Issue: What are the rules of customary international
law applicable to the case?
 The court, for this case, directed its attention to the
practice and opinio juris of States: as the Court observed,
“It is of course axiomatic that the material of customary
international law is to be looked for primarily in the
actual practice and opinio juris of States, even though
multilateral conventions may have an important role to
play in recording and defining rules deriving from
custom, or indeed in developing them”.
 In the separate opinion of Judge Nagendra Singh. - The
Charter provisions as well as the Latin American Treaty
System have not only developed the concept but
strengthened it to the extent that it would stand on its
own, even if the Charter and the Treaty basis were held
inapplicable in this case. The obvious explanation is that
the original customary aspect which has evolved with
the treaty law development has come now to stay and
survive as the existing modern concept of international
law, whether customary, because of its origins, or "a
general principle of international law recognized by
civilized nations". The contribution of the Court has
been to emphasize the principle of non-use of force as
one belonging to the realm of jus cogens and hence as the
very cornerstone of the human effort to promote peace
in a world torn by strife.
 Fourth Issue: Whether the practice of State must be in
 Third Issue: Whether the recognition of the States of certain
rules is sufficient to consider as being part of customary
international law, and as applicable as such to States.
 The Court ruled that the mere fact that States declare
their recognition of certain rules in not sufficient for the
Court to consider these as being part of customary
international law, and as applicable to those States.
Bound as it is by Article 38 of its Stature to apply, inter
alia, international custom “as evidence of general
practice accepted as law”, the Court may not disregard
the essential role played by general practice. Where two
States agree to incorporate a particular rule in a treaty,
their agreement suffices to make that rule a legal one,
binding upon them; but in the field of customary
international law, the shared view of the Parties as to the
content of what they regard as the rule is not enough.
The Court must satisfy itself that the existence of the rule
in the opinio juris of State is confirmed by practice.
 In the present disputes, the Court, while exercising its
jurisdiction only in respect of the application of the
customary rules of non-use of force and non-
intervention, cannot disregard the fact that the Parties
are bound by these rules as a matter of treaty law and of
customary international law. Furthermore, in the present
case, apart from the treaty commitments binding the
Parties to the rules in question, there are various
instances of their having expressed recognition of the
validity thereof as customary international law in other
ways. It is therefore in the light of this “subject element”
- expression used by the Court in its 1969 Judgment in
the North Sea Continental Shelf cases) – that the Court has
to appraise the relevant practice.
“absolute conformity” with the purported customary rule.
What makes State practice an international rule?
 The court said that in order to deduce the existence
of customary rules, the Court deems it sufficient that
 the conduct of the States should, in general, be
consistent with such rules, and that instances of
State conduct inconsistent with the given rule
should generally have been treated as breaches of
that rule, not as indications of the recognition of a
new rule.

 The Court emphasized, as was observed in the North

Sea Continental Shelf case, for a new customary rule
to be formed, not only must the acts concerned “
amount to a settled practice”, but they must
accompanied by the opinio juris sive necessitates.
Either the States taking such action or other States in
a position to react to it, must have behaved so that
their conduct is “evidence of a belief that this
practice is rendered obligatory by the existence of a
rule of law requiring it. The need for such a belef,
i.e., the existence of a subjective elements, is implicit
in the very notion of the opinio juris sive necessitates.”

NOTE: