a.
Initial objection
INTERNATIONAL COURT OF JUSTICE, CONTENTIOUS CASE: ANGLO NORWE-
GIAN FISHERIES CASE (UK VS NORWAY)
Year of Decision: 1951.
The Court was asked to decide, amongst others, the validity, under international law,
of the methods used to delimit Norway’s territorial sea/ fisheries zone. We will not dis-
cuss the technical aspects of the judgment relating to the delimitation, but focus on
the Court’s conclusions relating to customary international law.
Background to the case
The United Kingdom requested the court to decide if Norway had used a legally accept-
able method in drawing the baseline from which it measured its territorial sea. The
United Kingdom argued that customary international law did not allow the length of a
baseline drawn across a bay to be longer than ten miles. Norway argued that its delim-
itation method was consistent with general principles of international law.
Findings of the Court
1. The formation of customary law
The Court referred to (1) positive State practice and (2) lack of contrary State prac-
tice as a confirmation of an existing rule of customary international law (see p. 17 and
18). There was no mention of opinio juris in this early judgment.
In the following passage, the Court considered expressed dissent by States regarding
a particular practice to be detrimental to the existence of an alleged general rule. Yet,
the Court did not examine further whether these States adopted a contrary practice
because, for example, (1) they were claiming an exception to the rule (see the Nicara-
gua jurisprudence) or (2) because they believed that the said rule did not possess the
character of customary law.
“In these circumstances the Court deems it necessary to point out that although the
ten-mile rule has been adopted by certain States both in their national law and in their
treaties and conventions, and although certain arbitral decisions have applied it as be-
tween these States, other States have adopted a different limit. Consequently, the
ten-mile rule has not acquired the authority of a general rule of international law.”
1.1. The persistent objector
The Court in its judgment held that even if a customary law rule existed on the afore-
mentioned ten-mile rule,
“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as
she has always opposed any attempt to apply it to the Norwegian coast.”
In this case, the Court appears to support the idea that an existing customary law rule
would not apply to a State if (1) it objected to the application of the rule to itself (2) at
the initial stages and (3) in a consistent manner. The Anglo Norwegian Fisheries Case,
thus, supports the Asylum Case (Peru vs Colombia) in articulating what we now call
the persistent objector rule.
The Court pointed out that the Norwegian Minister of Foreign Affairs, in 1870, stated
that, “in spite of the adoption in some treaties of the quite arbitrary distance of 10 sea
miles, this distance would not appear to me to have acquired the force of international
law. Still less would it appear to have any foundation in reality…”
The Court held that “Language of this kind can only be construed as the considered ex-
pression of a legal conception regarded by the Norwegian Government as compatible
with international law”. Thus, the Court held that Norway had refused to accept the
rule as regards to it in 1870.
b. Sustained objection
The Court also went on to hold that Norway had followed the principles of delimitation
that it considered a part of its system in a consistent and uninterrupted manner from
1869 until the time of the dispute.
In establishing consistent practice, the Court held that “…too much importance need
not be attached to the few uncertainties or contradictions, real or apparent, which the
United Kingdom Government claims to have discovered in Norwegian practice.”
c. No objection by other States
The Court held that the 10-mile rule did not form a part of the general law and, in any
event, could not bind Norway because of the latter’s objections. Next, the Court in-
quired whether the Norwegian system of delimitation was nevertheless contrary to in-
ternational law. To do so, the Court relied on state practice once more.
“The general toleration of foreign States with regard to the Norwegian practice is an
unchallenged fact. For a period of more than sixty years the United Kingdom Govern-
ment itself in no way contested it… The Court notes that in respect of a situation which
could only be strengthened with the passage of time, the United Kingdom Government
refrained from formulating reservations.”
1.2. Contrary State practice of Norway?
In this case, Norway adopted a contrary practice – a practice that was the subject of
litigation.
However, interestingly, Norway was clear that it was not claiming an exception to the
rule (i.e. that its practice was not contrary to international law). It emphasized that its
practice – even if it was a deviation from the general practice – was in conformity with
international law (see page 21).
“In its (Norway’s) view, these rules of international law take into account the diversity
of facts and, therefore, concede that the drawing of base-lines must be adapted to the
special conditions obtaining in different regions. In its view, the system of delimitation
applied in 1935, a system characterized by the use of straight lines, does not therefore
infringe the general law; it is an adaptation rendered necessary by local conditions. ”
The Court held that the fact that this consistent and sufficiently long practice took
place without any objection to the practice from other States (until the time of dis-
pute) indicated that these States did not consider the Norwegian system to be “contra-
ry to international law”.
“The notoriety of the facts, the general toleration of the international community,
Great Britain’s position in the North Sea, her own interest in the question, and her pro-
longed abstention would in any case warrant Norway’s enforcement of her system
against the United Kingdom. The Court is thus led to conclude that the method of
straight lines, established in the Norwegian system, was imposed by the peculiar geog-
raphy of the Norwegian coast; that even before the dispute arose, this method had
been consolidated by a consistent and sufficiently long practice, in the face of which
the attitude of governments bears witness to the fact that they did not consider it to
be contrary to international law.”
2. Relationship between international and national law
The Court alluded to the relationship between national and international law in delimi-
tation of maritime boundaries. In delimitation cases, States “must be allowed the lati-
tude necessary in order to be able to adapt its delimitation to practical needs and local
requirements…” The Court would also consider “…certain economic interests peculiar to
a region, the reality and importance of which are clearly evidenced by a long us-
age.” However, while the act of delimitation can be undertaken by the State, its legal
validity depends on international law.
“The delimitation of sea areas has always an international aspect; it cannot be depend-
ent merely upon the will of the coastal State as expressed in its municipal law. Al-
though it is true that the act of delimitation is necessarily a unilateral act, because on-
ly the coastal State is competent to undertake it, the validity of the delimitation with
regard to other States depends upon international law. (p. 20)”
Further reading:
T. Stein, ‘The Approach of the Different Drummer: The Principle of the Persistent Ob-
jector in International Law’, 26 Harvard International Law Journal, 1985, p. 457,
J. Charney, ‘The Persistent Objector Rule and the Development of Customary Interna-
tional Law’, 56 BYIL, 1985, p. 1.
“In fact, the two international court of justice cases which appear to support the per-
sistent objector rule both arose in circumstances where the new rule itself was in sub-
stantial doubt. Thus, it was significantly easier for the objector to maintain its status.
No case is cited for a circumstance in which the objector effectively maintained its sta-
tus after the rule became well accepted in international law. In fact, it is unlikely that
such a status can be maintained din light of the realities of the international legal sys-
tem. This is certainly the plight that befell the US, The UK and Japan in the law of the
sea. Their objections to expanded coastal state jurisdiction were ultimately to no avail,
and they have been forced to accede to 12-mile territorial seas and the 200-mile ex-
clusive economic zone. “
Curtis A. Bradley & Mitu Gulati, ‘Withdrawing from International Custom‘, see also pp.
236 – 239.
“The Fisheries Case, decided a year later, pitted the United Kingdom against Norway.
At issue was whether Norway had used a legally acceptable method in drawing the
baseline from which it measured its territorial sea. The United Kingdom argued that
CIL did not allow the length of a baseline drawn across a bay to be longer than ten
miles. Again, as with the Asylum Case, the primary holding of the case was that the al-
leged CIL rule did not exist. In the alternative, the court briefly remarked that, had the
rule existed, it would not have applied against Norway because Norway had “always
opposed any attempt to apply it to the Norwegian coast.”This language is often cited
in support of the persistent objector doctrine, but it could just as easily be read to sup-
port the Default View of CIL, since there is nothing in this language that suggests that
Norway’s opposition must have occurred prior to the establishment of the alleged rule
of CIL. The arguments of the parties do not resolve this uncertainty: although the
United Kingdom appears to have supported something like the modern persistent ob-
jector doctrine, at least for rights historically exercised by a state (while asserting that
Norway had not met its requirements),Norway (which prevailed in the case) appears
to have supported something closer to the Default View.
The Asylum and Fisheries decisions provide no more than passing and ambiguous
support for the doctrine. State practice since those decisions is also relatively unhelp-
ful, since there have been essentially no instances in which states have invoked the
doctrine. As Professor Stein reported in a 1985 article, his research had “failed to turn
up any case where an author provided even one instance of a state claiming or grant-
ing an exemption from a rule on the basis of the persistent objector principle—except-
ing of course the Asylum and Fisheries cases themselves.”
PERMANENT COURT OF INTERNATIONAL JUSTICE, CONTENTIOUS CASE: THE
LOTUS CASE (FRANCE VS TURKEY);
Year of the decision: 1927.
Overview:
A collision occurred on the high seas between a French vessel and a Turkish vessel.
Victims were Turkish nationals and the alleged offender was French. Could Turkey ex-
ercise its jurisdiction over this French national under international law?
Facts of the Case:
A collision occurred on the high seas between a French vessel – Lotus – and a Turkish
vessel – Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the
Turkish vessel. The 10 survivors of the Boz-Kourt (including its captain) were taken to
Turkey on board the Lotus. In Turkey, the officer on watch of the Lotus (Demons), and
the captain of the Turkish ship were charged with manslaughter. Demons, a French na-
tional, was sentenced to 80 days of imprisonment and a fine. The French government
protested, demanding the release of Demons or the transfer of his case to the French
Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the Perma-
nent Court of International Justice (PCIJ).
Questions before the Court:
Did Turkey violate international law when Turkish courts exercised jurisdiction over a
crime committed by a French national, outside Turkey? If yes, should Turkey pay com-
pensation to France?
The Court’s Decision:
Turkey, by instituting criminal proceedings against Demons, did not violate internation-
al law.
Relevant Findings of the Court:
Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction using
an existing rule of international law or is the mere absence of a prohibition preventing
the exercise of jurisdiction enough?
The first principle of the Lotus Case: A State cannot exercise its jurisdiction outside
its territory unless an international treaty or customary law permits it to do so. This
is what we called the first principle of the Lotus Case. The Court held that:
“Now the first and foremost restriction imposed by international law upon a State is
that – failing the existence of a permissive rule to the contrary – it may not exercise
its power in any form in the territory of another State. In this sense jurisdiction is cer-
tainly territorial; it cannot be exercised by a State outside its territory except by virtue
of a permissive rule derived from international custom or from a convention.” (para
45)
The second principle of the Lotus Case: Within its territory, a State may exercise its
jurisdiction, in any matter, even if there is no specific rule of international law permit-
ting it to do so. In these instances, States have a wide measure of discretion, which is
only limited by the prohibitive rules of international law.The Court held that:
“It does not, however, follow that international law prohibits a State from exercising
jurisdiction in its own territory, in respect of any case which relates to acts which have
taken place abroad, and in which it cannot rely on some permissive rule of internation-
al law. Such a view would only be tenable if international law contained a general pro-
hibition to States to extend the application of their laws and the jurisdiction of their
courts to persons, property and acts outside their territory, and if, as an exception to
this general prohibition, it allowed States to do so in certain specific cases. But this is
certainly not the case under international law as it stands at present. Far from laying
down a general prohibition to the effect that States may not extend the application
of their laws and the jurisdiction of their courts to persons, property and acts outside
their territory, it leaves them in this respect a wide measure of discretion, which is on-
ly limited in certain cases by prohibitive rules; as regards other cases, every State re-
mains free to adopt the principles which it regards as best and most suitable. This dis-
cretion left to States by international law explains the great variety of rules which they
have been able to adopt without objections or complaints on the part of other States
…In these circumstances all that can be required of a State is that it should not over-
step the limits which international law places upon its jurisdiction; within these limits,
its title to exercise jurisdiction rests in its sovereignty.” (paras 46 and 47)
This applied to civil and criminal cases. If the existence of a specific rule was a pre-
requisite to exercise jurisdiction, the Court argued, then “it would…in many cases re-
sult in paralysing the action of the courts, owing to the impossibility of citing a univer-
sally accepted rule on which to support the exercise of their [States’] jurisdic-
tion” (para 48).
The Court based this finding on the sovereign will of States. It held that:
“International law governs relations between independent States. The rules of law
binding upon States therefor emanate from their own free will as expressed in conven-
tions or by usages generally accepted as expressing principles of law and established
in order to regulate the relations between these co-existing independent communities
or with a view to the achievement of common aims. Restrictions upon the independ-
ence of States cannot therefore be presumed”
[Note: This was one of the more debated aspects of the judgement. Some argued that
the Court placed too much emphasis on sovereignty and consent of States (i.e. took a
strong positivist view)].
Criminal Jurisdiction: Territorial Jurisdiction
France alleged that the flag State of a vessel has exclusive jurisdiction over offences
committed on board the ship in high seas. The Court disagreed. It held that France, as
the flag State, did not enjoy exclusive territorial jurisdiction in the high seas in respect
of a collision with a vessel carrying the flag of another State (paras 71 – 84). The
Court held that Turkey and France both have jurisdiction in respect of the whole inci-
dent: in other words, there was concurrent jurisdiction.
The Court held that a ship in the high seas is assimilated to the territory of the flag
State. This State may exercise its jurisdiction over the ship, in the same way as it ex-
ercises its jurisdiction over its land, to the exclusion of all other States. In this case,
the Court equated the Turkish vessel to Turkish territory. The Court held that the “… of-
fence produced its effects on the Turkish vessel and consequently in a place assimilat-
ed to Turkish territory in which the application of Turkish criminal law cannot be chal-
lenged, even in regard to offences committed there by foreigners.” The Court conclud-
ed that Turkey had jurisdiction over this case. It further said:
“If, therefore, a guilty act committed on the high seas produces its effects on a vessel
flying another flag or in foreign territory, the same principles must be applied as if the
territories of two different States were concerned, and the conclusion must therefore
be drawn that there is no rule of international law prohibiting the State to which the
ship on which the effects of the offence have taken place belongs, from regarding the
offence as having been committed in its territory and prosecuting, accordingly, the de-
linquent.”
The Lotus Case is also significant in that the Court said that a State would have territo-
rial jurisdiction, even if the crime was committed outside its territory, so long as a con-
stitutive element of the crime was committed in that State. Today, we call this subjec-
tive territorial jurisdiction. In order for subjective territorial jurisdiction to be establish-
ed, one must prove that the element of the crime and the actual crime are entirely in-
separable: in other words, if the constituent element was absent – the crime would not
have happened. The Court said:
“The offence for which Lieutenant Demons appears to have been prosecuted was an
act – of negligence or imprudence – having its origin on board the Lotus, whilst its ef-
fects made themselves felt on board the Boz-Kourt. These two elements are, legally,
entirely inseparable, so much so that their separation renders the offence non-exis-
tent… It is only natural that each should be able to exercise jurisdiction and to do so in
respect of the incident as a whole. It is therefore a case of concurrent jurisdiction.”
Customary International Law
The Lotus case gave an important dictum on creating customary international law.
France had alleged that jurisdictional questions on collision cases are rarely heard
in criminal cases, because States tend to prosecute only before the flag State. France
argued that this absence of prosecutions points to a positive rule in customary law on
collisions.The Court disagreed and held that, this:
“…would merely show that States had often, in practice, abstained from instituting
criminal proceedings, and not that they recognized themselves as being obliged to do
so; for only if such abstention were based on their being conscious of having a duty to
abstain would it be possible to speak of an international custom. The alleged fact does
not allow one to infer that States have been conscious of having such a duty; on the
other hand, as will presently be seen, there are other circumstances calculated to
show that the contrary is true.”
In other words, opinio juris is reflected not only in acts of States (Nicaragua Case), but
also in omissions when those omissions are made following a belief that the said State
is obligated by law to refrain from acting in a particular way. (For more on opinio ju-
ris click here)
Subsequent ICJ Decisions and Separate Opinions That Referred to Principles
of the Lotus Case
Advisory Opinion on the Unilateral Declaration of Kosovo (2010)
In the Kosovo Advisory Opinion the Court had to decide if the unilateral declaration of
Kosovo of February 2008 was ‘in accordance with’ international law. The Court inquired
and concluded that the applicable international law did not prohibit an unilateral decla-
ration of independence. Based on this finding, the Court decided that ‘the adoption of
the declaration of independence did not… violate any applicable rule of international
law’.
Judge Simma disagreed, inter alia, with Court’s methodology in arriving at this conclu-
sion. He imputed the method to the principle established in the Lotus case: that which
is not prohibited is permitted under international law. He criticised the Lotus dic-
tum as an out dated, 19th century positivist approach that is excessively differential
towards State consent. He said that the Court should have considered the possibility
that international law can be deliberately neutral or silent on the international lawful-
ness of certain acts. Instead of concluding that an the absence of prohibition ipso fac-
to meant that a unilateral declaration of independence is permitted under international
law, the Court should have inquired whether under certain conditions international law
permits or tolerates unilateral declarations of independence.
INTERNATIONAL COURT OF JUSTICE CONTENTIOUS CASE: CASE CONCERN-
ING THE MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NI-
CARAGUA (NICARAGUA VS UNITED STATES)
Year of Decision: 1986.
Note: This post will discuss the International Court of Justice’s (ICJ) discussions on the
use of force and self-defence. If you would like to read about the ICJ’s discussions on
jurisdictional issues relating to the multilateral treaty reservation of the United States
and the ICJ’s reliance on customary law, please click here.
For a diagram on some of the points discussed here, click here. It is recommended to
use the diagram alongside this blog post.
Overview:
The case involved military and paramilitary activities carried out by the United States
against Nicaragua from 1981 to 1984. Nicaragua asked the Court to find that these
activities violated international law.
Facts of the Case:
In July 1979, the Government of President Somoza was replaced by a government in-
stalled 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 atti-
tude when, according to the United States, it found that Nicaragua was providing logis-
tical 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 Nicara-
gua”.
The armed activities against the new Government was carried out mainly by (1) Fuer-
za 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 acknowl-
edged 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 intelli-
gence 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 con-
tras 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 Ni-
caragua included the mining of Nicaraguan ports, and other attacks on ports, oil instal-
lations, and a naval base. Nicaragua alleged that aircrafts belonging to the United
States flew over Nicaraguan territory to gather intelligence, supply to the contras in
the field, and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after refusing to
accept the ICJ’s jurisdiction to decide the case. The United States at the jurisdictional
phase of the hearing, however, stated that it relied on an inherent right of collective
self-defence guaranteed in A. 51 of the UN Charter when it provided “upon request
proportionate and appropriate assistance…” to Costa Rica, Honduras, and El Salvador
in response to Nicaragua’s acts of aggression against those countries (paras 126,
128).
F1: Map of Nicaragua, Costa Rica, Honduras and El Salvador. Source: Google Earth
Questions before the Court:
1st Did the United States violate its customary international law obligation not to inter-
vene in the affairs of another State, when it trained, armed, equipped, and fi-
nanced the contra forces or when it encouraged, supported, and aided the military
and paramilitary activities against Nicaragua?
2ndDid the United States violate its customary international law obligation not to use
force against another State, when it directly attacked Nicaragua in 1983 and 1984
and when its activities in point (1) above resulted in the use of force?
3rd Can the military and paramilitary activities that the United States undertook in
and against Nicaragua be justified as collective self-defence?
4th Did the United States breach its customary international law obligation not to vio-
late the sovereignty of another State, when it directed or authorized its aircrafts to
fly over the territory of Nicaragua and because of acts referred to in (2) above?
5th Did the United States breach its customary international law obligations not to vio-
late 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 in the territorial sea of Nicaragua?
The Court’s Decision:
The United States violated customary international law in relation to (1), (2), (4) and
(5) above. On (3), the Court found that the United States could not rely on collective
self-defence to justify its use of force against Nicaragua.
Relevant Findings of the Court:
1. The Court held that the United States violated its customary international
law obligation not to use force against another State when its activities with
the contras resulted in the threat or use of force (see paras 191-201).
The Court held that:
The prohibition on the use of force is found both in Article 2(4) of the Charter of
the United Nations (UN Charter) and in customary international law.
In a controversial finding the Court sub-classified the use of force as:
(1) “most grave forms of the use of force” (i.e. those that constitute an armed attack);
and
(2) “other less grave forms” of the use of force (i.e. organizing, instigating, assisting,
or participating in acts of civil strife and terrorist acts in another State – when the acts
referred to involve a threat or use of force, but not amounting to an armed attack).
(Para 191),
The United States violated the customary international law prohibition on the use
of force when it laid mines in Nicaraguan ports. It also violated this prohibition
when it attacked Nicaraguan ports, oil installations, and a naval base (see below).
The United States could only justify its action on the basis of collective self-de-
fence, if certain criteria were met (these criteria are discussed below).
The United States violated the customary international law prohibition on the use
of force when it assisted the contras by “organizing or encouraging the organization
of irregular forces and armed bands… for incursion into the territory of another
state” and participated “in acts of civil strife…in another State” and when these
acts involved the threat or use of force.
The supply of funds to the contras did not violate the prohibition on the use of
force. On the contrary, Nicaragua had previously argued before the Court that the
United States determined the timing of offensives against Nicaragua when it pro-
vided funds to the contras. The Court held that “…it does not follow that each pro-
vision of funds by the United States was made to set in motion a particular offen-
sive, and that that offensive was planned by the United States.” The Court held fur-
ther that the arming and training of the contras and the supply of funds, in itself,
only amounted to acts of intervention in the internal affairs of Nicaragua and did
not violate the prohibition on the use of force (para 227) (again, this aspect will be
discussed in detail below).
2. The Court held that the United States violated its customary international
law obligation not to use force against another State when it directly at-
tacked Nicaragua in 1983 and 1984 (see paras 187 – 201).
Note: A controversial but interesting aspect of the Court’s judgement was its definition
of an armed attack. The Court held that an armed attack included:
(1) action by regular armed forces across an international border; and
(2) “the sending by or on behalf of a State of armed bands, groups, irregulars or mer-
cenaries, which carry out acts of (sic) armed force against another State of such gravi-
ty as to amount to (inter alia) an actual armed attack conducted by regular forces, or
its (the State’s) substantial involvement therein”.
Note also that that he second point somewhat resembles Article 3(g) of the UNGA Res-
olution 3314 (XXIX) on the Definition of Aggression.
The Court further held that:
Mere frontier incidents will not considered as armed attacks, unless, because of its
scale and effects, it would have been classified as an armed attack had it been car-
ried out by regular forces.
Assistance to rebels by providing weapons or logistical support did not consti-
tute an armed attack. Instead, it can be regarded as a threat or use of force or an
intervention in the internal or external affairs of other States (see paras 195, 230).
Under Article 51 of the UN Charter and under CIL – self-defence is only available
against a use of force that amounts to an armed attack (para 211).
Note: In in the ICJ’s Case Concerning Oil Platforms and the ICJ’s Advisory Opinion on
the Legal Consequences of of the Construction of a Wall in the Occupied Palestinian
Territory (hereinafter called the Palestine wall case) the ICJ confirmed the definition of
an “armed attack” as proposed in the Nicaragua case. Draft Articles on State Respon-
sibility, prepared by the International Law Commission, provides significant guidance
as to when acts of non-State actors may be attributed to States. These articles, to-
gether with recent State practice relating attacks on terrorists operating from other
countries may have widened the scope of an armed attack, and consequently, the
right of self defence, envisaged by the ICJ. (for example, see discussion surrounding
the United States’ attacks in Afghanistan and Iraq) See also a paper by Max Plank In-
stitute on this topic (2017).
F 2. The most serious use of force and its consequences. Full diagram is here.
3. The Court held that the United States could not justify its military and par-
amilitary activities on the basis of collective self-defence.
Note that Article 51 of the UN Charter sets out the treaty based requirements on the
exercise of the right of self-defense. It states:
“Nothing in the present Charter shall impair the inherent right of individual or col-
lectiveself-defence if an armed attack occurs against a Member of the United Na-
tions, until the Security Council has taken measures necessary to maintain inter-
national peace and security. Measures taken by Members in the exercise of this right
of self-defence shall be immediately reported to the Security Council.”
The Court held that:
Customary international law allows for exceptions to the prohibition on the use of
force, which includes the right to individual or collective self-defence (see here for
a difference between individual and collective self defense). The United States, at
an earlier stage of the proceedings, had also agreed that the UN Charter acknowl-
edges the existence of this customary international law right when it talks of
the “inherent” right under Article 51 of the Charter (para.193).
When a State claims that it used force in collective self-defence, the Court would
examine the following:
(1) Whether the circumstances required for the exercise of self-defence existed; and
(2) Whether the steps taken by the State, which was acting in self-defence, corre-
sponds to the requirements of international law.
Under international law, several requirements must be met for a State to exercise
the right of individual or collective self-defence:
(1) A State must have been the victim of an armed attack;
(2) That State must declare itself as a victim of an armed attack. The assessment on
whether an armed attack had taken place or not, is done by the State who was sub-
jected to the attack. A third State cannot exercise a right of collective self-defence
based that third State’s own assessment;
(3) In the case of collective self-defence, the victim State must request for assistance.
The Court held that “there is no rule permitting the exercise of collective self-defence
in the absence of a request by the State which regards itself as the victim of an armed
attack”;
(4) A State that is attacked, does not, under customary international law, have the
same obligation as under Article 51 of the UN Charter to report to the Security Council
that an armed attack happened – but the Court held that “the absence of a report may
be one of the factors indicating whether the State in question was itself convinced that
it was acting in self-defence” (see paras 200, 232 -236).
“…Whatever influence the Charter may have had on customary international law in
these matters, it is clear that in customary international law it is not a condition of the
lawfulness of the use of force in self-defence that a procedure so closely dependent on
the content of a treaty commitment and of the institutions established by it, should
have been followed. On the other hand, if self-defence is advanced as a justification
for measures which would otherwise be in breach both of the principle of customary in-
ternational law and of that contained in the Charter, it is to be expected that the con-
ditions of the Charter should be respected. Thus for the purpose of enquiry into the
customary law position, the absence of a report may be one of the factors indicating
whether the State in question was itself convinced that it was acting in self-defence
(See paras 200, 232 -236)”.
The Court, then, looked extensively into the conduct of Nicaragua, El Salvador, Cos-
ta Rica, and Honduras to determine if (1) an armed attack was undertaken by Ni-
caragua against the three countries, which in turn would (2) necessitate those
countries to act in self-defence against Nicaragua (paras 230 – 236). The
Court noted that (1) none of the countries who were allegedly subject to an armed
attack by Nicaragua declared themselves as victims of an armed attack; (2) they
did not request assistance from the United States to exercise its right of self-de-
fence; (3) the United States did not claim that when it used force, it was acting un-
der Article 51 of the UN Charter; and (4) the United States did not report that it
was acting in self-defense to the Security Council. The Court concluded that, based
on the above, the United States cannot justify its use of force as collective self-de-
fence.
In any event, the Court held that the criteria relating to necessity and proportional-
ity, that is required to be met when using force in self-defence – were also not ful-
filled (para 237).
4. The Court held that the United States breached its CIL obligation not to in-
tervene 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.
The Court held that:
The principle of non-intervention requires that every State has a right to conduct
its affairs without outside interference. In other words, the principle “…forbids
States or groups of States to intervene directly or indirectly in internal or external
affairs of other States.” This is a corollary of the principle of sovereign equality of
States. The Court held that:
“A prohibited intervention must accordingly be one bearing on matters in which each
State is permitted, by the principle of State sovereignty to decide freely. One of these
is the choice of a political, economic, social and cultural system, and the formulation
of foreign policy. Intervention is wrongful when it uses methods of coercion in regard
to such choices, which must remain free ones. The element of coercion, which defines,
and indeed forms the very essence of, prohibited intervention, is particularly obvious
in the case of an intervention which uses force, either in the direct form of military ac-
tion, or in the indirect form of support for subversive or terrorist armed activities with-
in another State (para 205).”
Nicaragua stated that the activities of the United States were aimed to overthrow
the government of Nicaragua, to substantially damage the economy and to weaken
the political system with the aim to coerce the Government of Nicaragua to accept
various political demands of the United States. The Court concluded that:
“…first, that the United States intended, by its support of the contras, to coerce the
Government of Nicaragua in respect of matters in which each State is permitted, by
the principle of State sovereignty, to decide freely (see paragraph 205 above) ; and
secondly that the intention of the contras themselves was to overthrow the present
Government of Nicaragua… The Court considers that in international law, if one State,
with a view to the coercion of another State, supports and assists armed bands in that
State whose purpose is to overthrow the government of that State, that amounts to an
intervention by the one State in the internal affairs of the other, whether or not the
political objective of the State giving such support and assistance is equally far reach-
ing.”
The financial support, training, supply of weapons, intelligence and logistic support
given by the United States to the contras violated the principle of non-interference.
“…(N)o such general right of intervention, in support of an opposition within anoth-
er State, exists in contemporary international law”, even if such a request for assis-
tance is made by an opposition group of that State (see para 246 for more).
F 3. The prohibition on non intervention. For full diagram, click here.
However, in a controversial finding, the Court held that the United States did
not devise the strategy, direct the tactics of the contras or exercise control on them
in manner so as to make their acts committed in violation of international law im-
putable to the United States (see in this respect “Determining US responsibility for
contra operations under international law” 81 AMJIL 86). The Court concluded that
“a number of military and paramilitary operations of the contras were decided and
planned, if not actually by United States advisers, then at least in close collabora-
tion with them, and on the basis of the intelligence and logistic support which the
United States was able to offer, particularly the supply aircraft provided to the con-
tras by the United States” but not all contra operations reflected strategy and tac-
tics wholly devised by the United States.
“…the various forms of assistance provided to the contras by the United States have
been crucial to the pursuit of their activities, but is insufficient to demonstrate their
complete dependence on United States aid. On the other hand, it indicates that in the
initial years of United States assistance the contra force was so dependent. However,
whether the United States Government at any stage devised the strategy and directed
the tactics of the contras depends on the extent to which the United States made use
of the potential for control inherent in that dependence. The Court already indicated
that it has insufficient evidence to reach a finding on this point. It is a fortiori unable to
determine that the contra force may be equated for legal purposes with the forces of
the United States…The Court has taken the view (paragraph 110 above) that United
States participation, even if preponderant or decisive, in the financing, organizing,
training, supplying and equipping of the contras, the selection of its military or parami-
litary targets, and the planning of the whole of its operation, is still insufficient in itself,
on the basis of the evidence in the possession of the Court, for the purpose of attribut-
ing to the United States the acts committed by the contras in the course of their mili-
tary or paramilitary operations in Nicaragua. All the forms of United States participa-
tion mentioned above, and even the general control by the respondent State over a
force with a high degree of dependency on it, would not in themselves mean, without
further evidence, that the United States directed or enforced the perpetration of the
acts contrary to human rights and humanitarian law alleged by the applicant State.
Such acts could well be committed by members of the contras without the control of
the United States. For this conduct to give rise to legal responsibility of the United
States, it would in principle have to be proved that that State had effective control of
the military or paramilitary.”
Interesting, however, the Court also held that providing “…humanitarian aid to per-
sons or forces in another country, whatever their political affiliations or objectives,
cannot be regarded as unlawful intervention, or as in any other way contrary to in-
ternational law” (para 242).
In the event one State intervenes in the affairs of another State, the victim State
has a right to intervene in a manner that is short of an armed attack (210).
“While an armed attack would give rise to an entitlement to collective self-defence, a
use of force of a lesser degree of gravity cannot as the Court has already observed
(paragraph 211 above) produce any entitlement to take collective countermeasures in-
volving the use of force. The acts of which Nicaragua is accused, even assuming them
to have been established and imputable to that State, could only have justified propor-
tionate counter-measures on the part of the State which had been the victim of these
acts, namely El Salvador, Honduras or Costa Rica. They could not justify counter-
measures taken by a third State, the United States, and particularly could not justify
intervention involving the use of force.”
F 4. The less grave forms of use of force and its consequences. Full diagram is here.
5. The United States violated 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 when it laid mines in the inter-
nal waters of Nicaragua and its territorial sea.
The Court examined evidence and found that in early 1984 mines were laid in or
close to ports of the territorial sea or internal waters of Nicaragua “by persons in
the pay or acting ion the instructions” of the United States and acting under its su-
pervision with its logistical support. The United States did not issue any warning
on the location or existence of mines and this resulted in injuries and increases in
maritime insurance rates.
The Court found that the United States also carried out high-altitude reconnais-
sance flights over Nicaraguan territory and certain low-altitude flights, complained
of as causing sonic booms. It held that a State’s sovereignty extends to its internal
waters, its territorial sea, and the airspace above its territory. The United States
violated customary international law when it laid mines in the territorial sea and in-
ternal waters of Nicaragua and when it carried out unauthorised overflights over Ni-
caraguan airspace by aircrafts that belong to or was under the control of the United
States.