NICARAGUA v UNITED STATES international which Article 38 of the Statute 1 requires the Court to
Sources of International Law| June 27, 1986 | ICJ apply. Thus, the Court may rely exclusively on customary law
FACTS:
 Petitioner Nigaragua brought a suit against the United States on
the ground that the United States conducted, or assisted,
military and paramilitary activities in and against Nicaragua.
 Nicaragua charged the United States for (A) violating treaty
obligations to Nicaragua under (1) Article 2 (4) of the United
Nations Charter, (2) Articles 18 and 20 of the Charter of the
Organization of American States, (3) Article 8 of the
Convention on Rights and Duties of States, and (4) Article I,
Third, of the Convention concerning the Duties and Rights of
States in the Event of Civil Strife as well as for (B) breaching
its obligation under general and customary law for having
used and using force and the threat of force against Nicaragua,
among others.
 Nicaragua alleged that the United States was effectively in
control of the (1) Fuerza Democratica Nicaraguense (FDN) and
(2) Alianza Revolucionaria Democratica (ARDE) - also known
as contras which carried out armed activities against the newly
installed government Frente Sandinista de Liberacion Nacional
(FSLN). Support to the it was officially acknowledged by the
US especially when in the 1983 budget legislation enacted by
the US Congress, a specific provision for funds to be used by
the US intelligence agencies for supporting “directly or
indirectly military or paramilitary operations in Nicaragua” was
included.
 In the beginning, the United States challenged the jurisdiction
of the ICJ and justify its involvement that it had relied on the
inherent right of collective self-defense guaranteed in Art. 51 of
the UN Charter when it provided “upon the request
proportionate and appropriate assistance…” to Costa Rica,
Honduras, and El Salvador in response to Nicaragua’s acts of
aggression against those countries. However, after the decision
of the ICJ that the said Court had jurisdiction over the case, the
United States refused to participate in the merits phase of the
trial.
ISSUE/S & RATIO:
WON customary law applies – YES
United States contends that “the provisions of the UN Charter the Court has observed,
relevant to the case subsume and supervene related principles of
customary and general international law” and that “since the
multilateral treaty reservation bars adjudication based on those
treaties, it bars all of Nicaragua’s claims,” the Court is prevented
from applying the multilateral treaties in question as well as from
applying any rule on customary international law the content of
which is also the subject of a provision in those multilateral
treaties.
The Court held that despite the multilateral treaty reservation
advanced by the US in objecting to the jurisdiction of the ICJ, the
ICJ has jurisdiction over the case because the issues raised by
Nicaragua relating to the use of force and self-defense are both
regulated by treaty law and customary law. The effect of the
reservation is confined to barring the applicability of the UN
Charter and Organization of American States Charter as
multilateral treaty law, and has no further impact on the sources of
relating to the use of force.
The Court does not consider that, in the areas of law relevant to
the present dispute, it can be claimed that all the customary rules
which may be invoked have a content exactly identical to that of
the rules contained in the treatise which cannot be applied by
virtue of the United States reservation. On a number of points, the
areas governed by the two sources of law do not exactly overlap,
and the substantive rules which they are framed are not identical
in content.
Furthermore, even if the areas covered by the UN Charter and the
customary law are identical, the UN Charter itself refers to pre-
existing customary international law, specifically in Art. 51 of the
Charter2 and in recognizing the existence of such right, it does not
go on to regulate directly all aspects of its content. Thus, it cannot
be held that Art. 51 is a provision which “subsumes and
supervenes” customary international law.
The Court further held that multilateral treaty reservations cannot
preclude the application of customary law, because even if the
customary norm and the treaty norm were to have the exactly the
same content, this would not be a reason to hold that the treaty
law “supervenes” the former, so that the customary international
has no further existence of its own. The existence of identical
rules in international treaty law and customary law has been
clearly recognized by the Court in the North Sea Continental Shelf
cases, whereby the Court ruled that there are no grounds for
holding that when customary law is comprised of rules identical
to those of treaty law, the latter “supervenes” the former, so that
the customary international law has no further existence of its
own.
Thus, customary international law will continue to exist and to
apply, separately from international treaty law, even where the
two categories of law have an identical content.
In determining the existence of customary law, the Court must
direct its attention to the practice and opinion juris of States, as
“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
1
(1) The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b. international custom, as evidence of general practice accepted as law
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2
Art. 51. Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs against a Member
of the United Nations, until the Security Council has taken measures necessary to
maintain international peace and security. Measures taken by Members in the
exercise of this right of self-defence shall be immediately reported to the Security
Council and shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time such action as it
deems necessary in order to maintain or restore international peace and security.
PIL De Venecia | AY 2017-2018 | Group 1
 developing them.” (Continental Shelf (Libyan Arab
Jamahiriya/Malta), ICJ Reports 1985

The Court further states that it is not expected that in the practice
of States the application of the rules in question should have been
perfect and that it does not consider that, for a rule to be
established as customary, the corresponding practice must be in
absolute rigorous conformity with the rule. 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 to that rule, not as indications of the recognition of a
new rule.

In determining opinio juris, the Court must look into the acts of
the State. The Court held that the following reflected opinio juris:
(a) The attitude of the States towards certain General
Assembly resolutions
(b) Statements by State representatives
(c) Obligations undertaken by States in international forums
(d) The International Law Commission’s findings that a
concept amounts to a customary law principle
(e) Multilateral conventions

DISPOSITIVE PORTION:
The Court
(1) By eleven votes to four,
Decides that in adjudicating the dispute brought before it by the
Application filed by the Republic of Nicaragua on 9 April 1984,
the Court is required to apply the “multilateral treaty
reservation” contained in proviso (c) to the declaration of
acceptance of jurisdiction made under Article 36, par. 2 of the
Statute of the Court by the Government of the United States of
America deposited on 26 August 1946;
(2) By twelve votes to three,
Rejects the justification of collective self-defense maintained by
the United States of America in connection with the military and
paramilitary activities in and against Nicaragua the subject of
this case;
(3) By twelve votes to three,
Decides that the United States of America, by training, arming,
equipping, financing and supplying the contra forces or otherwise
encouraging, supporting and aiding military and paramilitary
activities in and against Nicaragua, has acted, against the
Republic of Nicaragua, in breach of its obligation under
customary international law not to intervene in the affairs of
another State.
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PIL De Venecia | AY 2017-2018 | Group 1