NORTH SEA CONTINENTAL SHELF

CASES (SUMMARY)
International Court of Justice Contentious Case: The North Sea Continental Shelf Cases
(Germany/Denmark; Germany/Netherlands).

Year of Decision: 1969.

Note: This post discusses only aspects of the case related to treaty and customary international
law.

Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual
requirement for the formation of customary international law: (1) State practice (the objective
element) and (2) opinio juris (the subjective element). In these cases, the Court explained the
criteria necessary to establish State practice – widespread and representative participation.
It highlighted that the practices of those States whose interests were specially affected by the
custom were especially relevant in the formation of customary law. It also held that uniform
and consistent practice was necessary to demonstrate opinio juris – opinio juris is the belief that
State practice amounts to a legal obligation. The North Sea Continental Self Cases also dispelled
the myth that duration of the practice (i.e. the number of years) was an essential factor in
forming customary international law.

The case involved the delimitation of the continental shelf areas in the North Sea between
Germany and Denmark and Germany and Netherlands beyond the partial boundaries previously
agreed upon by these States. The parties requested the Court to decide the principles and rules
of international law that are applicable to the above delimitation because the parties disagreed
on the applicable principles or rules of delimitation. Netherlands and Denmark relied on the
principle of equidistance (the method of determining the boundaries in such a way that every
point in the boundary is equidistant from the nearest points of the baselines from which the
breath of the territorial sea of each State is measured). Germany sought to get a decision
in favour of the notion that the delimitation of the relevant continental shelf was governed by the
principle that each coastal state is entitled to a just and equitable share (hereinafter called just
and equitable principle/method). Contrary to Denmark and Netherlands, Germany argued that
the principle of equidistance was neither a mandatory rule in delimitation of the continental shelf
nor a rule of customary international law that was binding on Germany. The Court was not asked
to delimit because the parties had already agreed to delimit the continental shelf as between their
countries, by agreement, after the determination of the Court on the applicable principles.
Facts of the Case:

Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle
(A-B and C-D). An agreement on further prolongation of the boundary proved difficult because
Denmark and Netherlands wanted this prolongation to take place based on the equidistance
principle (B-E and D-E) where as Germany was of the view that, together, these two boundaries
would produce an inequitable result for her. Germany stated that due to its concave coastline,
such a line would result in her loosing out on her share of the continental shelf based on
proportionality to the length of its North Sea coastline. The Court had to decide the principles
and rules of international law applicable to this delimitation. In doing so, the Court had to decide
if the principles espoused by the parties were binding on the parties either through treaty law or
customary international law.

North Sea Continental Shelf Cases (commons.wikimedia.org)

Questions before the Court (as relevant to this post):

Is Germany under a legal obligation to accept the equidistance-special circumstances principle,
contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958, either as a
customary international law rule or on the basis of the Geneva Convention?

The Court’s Decision:

The use of the equidistance method had not crystallised into customary law and the method was
not obligatory for the delimitation of the areas in the North Sea related to the present
proceedings.

Relevant Findings of the Court:

1. Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6,
binding on Germany?

1. Article 6 of the Geneva Convention stated that unless the parties had already agreed on a
method for delimitation or unless special circumstances exist, the equidistance method would
apply. Germany had signed, but not ratified, the Geneva Convention, while Netherlands and
Denmark were parties to the Convention. The latter two States argued that while Germany is not
a party to the Convention (not having ratified it), she was still bound by Article 6 of the Convention
because:

“…(1) by conduct, by public statements and proclamations, and in other ways, the Republic has
unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the
conventional regime; or has recognized it as being generally applicable to the delimitation of
continental shelf areas…

(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a
manner as to cause other States, and in particular Denmark and the Netherlands, to rely on the
attitude thus taken up” (the latter is called the principle of estoppel).

2. The Court rejected the first argument. It said that only a ‘very definite very consistent course
of conduct on the part of a State would allow the Court to presume that the State had somehow
become bound by a treaty (by a means other than in the formal manner: i.e. ratification) when
the State was ‘at all times fully able and entitled to…’ accept the treaty commitments in a formal
manner. The Court held that Germany had not unilaterally assumed obligations under the
Convention. The court also took notice of the fact that even if Germany ratified the treaty, she
had the option of entering into a reservation on Article 6, following which that particular article
would no longer be applicable to Germany (in other words, even if one were to assume that
Germany had intended to become a party to the Convention, it does not presuppose that it would
have also undertaken those obligations contained in Article 6).
3. Note: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in
1980, discusses in more detail treaty obligations of third States (those States who are not parties
to the treaty). It clearly stipulates that obligations arise for third States from a provision of a treaty
only if (1) the actual parties to the treaty intended the provision to create obligations for third
States; and (2) third State expressly accept those obligations in writing (Article 35 of the VCLT).
The VCLT was not in force when the Court deliberated on this case. However, as seen above, the
Court’s position is consistent the VCLT. (See the relevant provisions of the Vienna Convention on
the Law of Treaties).

4. The Court held that the existence of a situation of estoppel would have allowed Article 6 to
become binding on Germany – but held that Germany’s action did not support an argument for
estoppel. The Court also held that the mere fact that Germany may not have specifically objected
to the equidistance principle as contained in Article 6, is not sufficient to state that the principle
is now binding upon it.

5. In conclusion, the Court held that Germany had not acted in any manner so as to incur
obligations contained in Article 6 of the Geneva Convention. The equidistance–special
circumstances rule was not binding on Germany by way of treaty law.

2. Nature of the customary international law obligation: Is Germany bound by the provisions of
Article 6 of the Geneva Convention in so far as they reflect customary international law?

6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of general
international law on the subject of continental shelf delimitation’ and that it existed
independently of the Convention. Therefore, they argued, Germany is bound by the subject
matter of Article 6 by way of customary international law.

7. To decide if the equidistance principle bound Germany by way of customary international law,
the Court examined (1) the status of the principle contained in Article 6 as it stood when the
Convention was being drawn up; and (2) its status after the Convention came into force.

(a) What was the customary law status of Article 6 at the time of drafting the Convention?

8. The Court held that the principle of equidistance, as contained in Article 6 did not form a part
of existing or emerging customary international law at the time of drafting the Convention. The
Court supported this finding based on (1) the hesitation expressed by the drafters of the
Convention, the International Law Commission, on the inclusion of Article 6 into the Convention
and (2) the fact that reservations to Article 6 was permissible under the Convention. The Court
held:

“… Article 6 is one of those in respect of which, under the reservations article of the Convention
(Article 12) reservations may be made by any State on signing, ratifying or acceding, – for
speaking generally, it is a characteristic of purely conventional rules and obligations that, in
regard to them, some faculty of making unilateral reservations may, within certain limits, be
admitted; whereas this cannot be so in the case of general or customary law rules and
obligations which, by their very nature, must have equal force for all members of the
international community, and cannot therefore be the subject of any right of unilateral
exclusion exercisable at will by any one of them in its own favor…. The normal inference would
therefore be that any articles that do not figure among those excluded from the faculty of
reservation under Article 12, were not regarded as declaratory of previously existing or
emergent rules of law …” (see para 65 for a counter argument and the Court’s careful
differentiation)

(b) Did the provisions in Article 6 on the equidistance principle attain the customary law status
after the Convention came into force?

9. The Court then examined whether the rule contained in Article 6 had become customary
international law after the Convention entered into force – either due the Convention itself (i.e.,
if enough States had ratified the Convention in a manner so as to fulfil the criteria specified
below), or because of subsequent State practice (i.e. even if an adequate number of States had
not ratified the Convention, one could find sufficient State practice to meet the criteria below).
The Court held that Article 6 of the Convention had not attained a customary law status. (Compare
the 1958 Geneva Convention with the four Geneva Conventions on 1949 relating to international
humanitarian law in terms of the latter’s authority as a pronouncement of customary international
law).

10. For a customary rule to emerge the Court held that it needed: (1) very widespread and
representative participation in the Convention, including States whose interests were specially
affected (in this case, they were coastal States) (i.e. generality); and (2) virtually uniform practice
(i.e. consistent and uniform usage) undertaken in a manner that demonstrates (3) a general
recognition of the rule of law or legal obligation (i.e. opinio juries). In the North Sea Continental
Shelf cases the court held that the passage of a considerable period of time was unnecessary (i.e.
duration) for the formation of a customary law.

Widespread and representative participation

11. The Court held that the first criteria was not met. The number of ratifications and accessions
to the Convention (39 States) were not adequately representative or widespread.

Duration

12. The Court held that the duration taken for a customary law rule to emerge is not as important
as widespread and representative participation, uniform usage, and the existence of an opinio
juris. It held that:
“Although the passage of only a short period of time (in this case, 3 – 5 years) is not
necessarily, or of itself, a bar to the formation of a new rule of customary international law on
the basis of what was originally a purely conventional rule, an indispensable requirement would
be that within the period in question, short though it might be, State practice, including that of
States whose interests are specially affected, should have been both extensive and virtually
uniform in the sense of the provision invoked and should moreover have occurred in such a way
as to show a general recognition that a rule of law or legal obligation is involved.”

Opinio juris

13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case), in so
far as those acts or omissions were done following a belief that the said State is obligated by law
to act or refrain from acting in a particular way. (For more on opinio juris click here).

14. The Court examined 15 cases where States had delimited their boundaries using the
equidistance method, after the Convention came into force (paras. 75 -77). The Court concluded
that even if there were some State practice in favour of the equidistance principle, the Court could
not deduct the necessary opinio juris from this State practice. The North Sea Continental Shelf
Cases confirmed that both State practice (the objective element) and opinio juris (the subjective
element) are essential pre-requisites for the formation of a customary law rule. This is consistent
with Article 38 (1) (b) of the Statute of the ICJ. The Court explained the concept of opinio juris and
the difference between customs (i.e. habits) and customary law:

“Not only must the acts concerned amount to a settled practice, but they must also be such, or
be carried out in such a way, as to be 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 belief, i.e,
the existence of a subjective element, is implicit in the very notion of the opinio juris sive
necessitatis. The States concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or even habitual character of the acts is not in
itself enough. There are many international acts, e.g., in the field of ceremonial and protocol,
which are performed almost invariably, but which are motivated only by considerations of
courtesy, convenience or tradition, and not by any sense of legal duty.” (Para 77).

15. The Court concluded that the equidistance principle was not binding on Germany by way of
treaty or customary international law. In the case of the latter, the principle had not attained a
customary international law status at the time of the entry into force of the Geneva Convention
or thereafter. As such, the Court held that the use of the equidistance method is not obligatory
for the delimitation of the areas concerned in the present proceedings.
ASYLUM CASE (SUMMARY)
Name of the Case: Asylum Case (Colombia/Peru); Year of the decision: 1950; and Court: ICJ.

Overview:

Colombia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru. Was
Colombia entitled to make a unilateral and definitive qualification of the offence (as a political
offence) in a manner binding on Peru and was Peru was under a legal obligation to provide safe
passage for the Peruvian to leave Peru?

Facts of the Case:

Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the crime of
military rebellion” which took place on October 3, 1949, in Peru. 3 months after the rebellion,
Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed that
Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana Convention
on Asylum of 1928 and requested safe passage for Torre to leave Peru. Subsequently, the
Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with
Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the
same as the Refugee Convention of 1951). Peru refused to accept the unilateral qualification and
refused to grant safe passage.

Questions before the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence
for the purpose of asylum under treaty law and international law?

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?

(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter
called the Havana Convention) when it granted asylum and is the continued maintenance of
asylum a violation of the treaty?

The Court’s Decision:

Relevant Findings of the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence
for the purpose of asylum under treaty law and international law?
1. The court stated that in the normal course of granting diplomatic asylum a diplomatic
representative has the competence to make a provisional qualification of the offence (for
example, as a political offence) and the territorial State has the right to give consent to this
qualification. In the Torre’s case, Colombia has asserted, as the State granting asylum, that it is
competent to qualify the nature of the offence in a unilateral and definitive manner that is binding
on Peru. The court had to decide if such a decision was binding on Peru either because of treaty
law (in particular the Havana Convention of 1928 and the Montevideo Convention of 1933), other
principles of international law or by way of regional or local custom.

2. The court held that there was no expressed or implied right of unilateral and definitive
qualification of the State that grants asylum under the Havana Convention or relevant principles
of international law (p. 12, 13). The Montevideo Convention of 1933, which accepts the right of
unilateral qualification, and on which Colombia relied to justify its unilateral qualification, was
not ratified by Peru. The Convention, per say, was not binding on Peru and considering the low
numbers of ratifications the provisions of the latter Convention cannot be said to reflect
customary international law (p. 15).

3. Colombia also argued that regional or local customs support the qualification. The court held
that the burden of proof on the existence of an alleged customary law rests with the party making
the allegation:

“The Party which relies on a custom of this kind must prove that this custom is established in
such a manner that it has become binding on the other Party… (that) it is in accordance with a
(1) constant and uniform usage (2) practiced by the States in question, and that this usage is (3)
the expression of a right appertaining to the State granting asylum (Colombia) and (4) a duty
incumbent on the territorial State (in this case, Peru). This follows from Article 38 of the Statute
of the Court, which refers to international custom “as evidence of a general practice accepted as
law(text in brackets added).”

4. The court held that Colombia did not establish the existence of a regional custom because it
failed to prove consistent and uniform usage of the alleged custom by relevant States. The
fluctuations and contradictions in State practice did not allow for the uniform usage (see also
Mendelson, 1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations of State
practice). The court also reiterated that the fact that a particular State practice was followed
because of political expediency and not because of a belief that the said practice is binding on
the State by way of a legal obligation (opinio juris) is detrimental to the formation of a customary
law (see North Sea Continental Shelf Cases and Lotus Case for more on opinio juris):

“[T]he Colombian Government has referred to a large number of particular cases in which
diplomatic asylum was in fact granted and respected. But it has not shown that the alleged rule
of unilateral and definitive qualification was invoked or … that it was, apart from conventional
stipulations, exercised by the States granting asylum as a right appertaining to them and
respected by the territorial States as a duty incumbent on them and not merely for reasons of
political expediency. The facts brought to the knowledge of the Court disclose so much
uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic
asylum and in the official views expressed on various occasions, there has been so much
inconsistency in the rapid succession of conventions on asylum, ratified by some States and
rejected by others, and the practice has been so much influenced by considerations of political
expediency in the various cases, that it is not possible to discern in all this any constant and
uniform usage, mutually accepted as law, with regard to the alleged rule of unilateral and
definitive qualification of the offence.”

5. The court held that even if Colombia could prove that such a regional custom existed, it would
not be binding on Peru, because Peru “far from having by its attitude adhered to it, has, on the
contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and
1939, which were the first to include a rule concerning the qualification of the offence [as
“political” in nature] in matters of diplomatic asylum.” (See in this regard, the lesson on persistent
objectors. Similarly in the North Sea Continental Shelf Cases the court held ‘in any event the . . .
rule would appear to be inapplicable as against Norway in as much as she had always opposed
any attempt to apply it to the Norwegian coast’.)

6. The court concluded that Colombia, as the State granting asylum, is not competent to qualify
the offence by a unilateral and definitive decision, binding on Peru.

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?

7. The court held that there was no legal obligation on Peru to grant safe passage either because
of the Havana Convention or customary law. In the case of the Havana Convention, a plain reading
of Article 2 results in an obligation on the territorial state (Peru) to grant safe passage only after
it requests the asylum granting State (Colombia) to send the person granted asylum outside its
national territory (Peru). In this case the Peruvian government had not asked that Torre leave
Peru. On the contrary, it contested the legality of asylum granted to him and refused to grant safe
conduct.

8. The court looked at the possibility of a customary law emerging from State practice where
diplomatic agents have requested and been granted safe passage for asylum seekers, before the
territorial State could request for his departure. Once more, the court held that these practices
were a result of a need for expediency and other practice considerations over an existence of a
belief that the act amounts to a legal obligation (see paragraph 4 above).

“There exists undoubtedly a practice whereby the diplomatic representative who grants asylum
immediately requests a safe conduct without awaiting a request from the territorial state for the
departure of the refugee…but this practice does not and cannot mean that the State, to whom
such a request for safe-conduct has been addressed, is legally bound to accede to it.”

(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum and
is the continued maintenance of asylum a violation of the treaty?

9. Article 1 of the Havana Convention states that “It is not permissible for States to grant asylum…
to persons accused or condemned for common crimes… (such persons) shall be surrendered
upon request of the local government.”

10. In other words, the person-seeking asylum must not be accused of a common crime (for
example, murder would constitute a common crime, while a political offence would not).The
accusations that are relevant are those made before the granting of asylum. Torre’s accusation
related to a military rebellion, which the court concluded was not a common crime and as such
the granting of asylum complied with Article 1 of the Convention.

11. Article 2 (2) of the Havana Convention states that “Asylum granted to political offenders in
legations, warships, military camps or military aircraft, shall be respected to the extent in which
allowed, as a right or through humanitarian toleration, by the usages, the conventions or the
laws of the country in which granted and in accordance with the following provisions: First:
Asylum may not be granted except in urgent cases and for the period of time strictly
indispensable for the person who has sought asylum to ensure in some other way his safety.”

12. An essential pre-requisite for the granting of asylum is the urgency or, in other words, the
presence of “an imminent or persistence of a danger for the person of the refugee”. The court
held that the facts of the case, including the 3 months that passed between the rebellion and the
time when asylum was sought, did not establish the urgency criteria in this case (pp. 20 -23).
The court held:

“In principle, it is inconceivable that the Havana Convention could have intended the term “urgent
cases” to include the danger of regular prosecution to which the citizens of any country lay
themselves open by attacking the institutions of that country… In principle, asylum cannot be
opposed to the operation of justice.”

13. In other words, Torre was accused of a crime but he could not be tried in a court because
Colombia granted him asylum. The court held that “protection from the operation of regular legal
proceedings” was not justified under diplomatic asylum.

14. The court held:

“In the case of diplomatic asylum the refugee is within the territory of the State. A decision to
grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws
the offender from the jurisdiction of the territorial State and constitutes an intervention in matters
which are exclusively within the competence of that State. Such a derogation from territorial
sovereignty cannot be recognised unless its legal basis is established in each particular case.”

15. As a result, exceptions to this rule are strictly regulated under international law.

An exception to this rule (asylum should not be granted to those facing regular prosecutions) can
occur only if, in the guise of justice, arbitrary action is substituted for the rule of law. Such would
be the case if the administration of justice were corrupted by measures clearly prompted by
political aims. Asylum protects the political offender against any measures of a manifestly extra-
legal character which a Government might take or attempt to take against its political
opponents… On the other hand, the safety which arises out of asylum cannot be construed as a
protection against the regular application of the laws and against the jurisdiction of legally
constituted tribunals. Protection thus understood would authorize the diplomatic agent to
obstruct the application of the laws of the country whereas it is his duty to respect them… Such
a conception, moreover, would come into conflict with one of the most firmly established
traditions of Latin-America, namely, non-intervention [for example, by Colombia into the internal
affairs of another State like Peru]….

16. Asylum may be granted on “humanitarian grounds to protect political prisoners against the
violent and disorderly action of irresponsible sections of the population.” (for example during a
mob attack where the territorial State is unable to protect the offender). Torre was not in such a
situation at the time when he sought refuge in the Colombian Embassy at Lima.

17. The court concluded that the grant of asylum and reasons for its prolongation were not in
conformity with Article 2(2) of the Havana Convention (p. 25).

“The grant of asylum is not an instantaneous act which terminates with the admission, at a
given moment of a refugee to an embassy or a legation. Any grant of asylum results in, and in
consequence, logically implies, a state of protection, the asylum is granted as long as the
continued presence of the refugee in the embassy prolongs this protection.”

NB: The court also discussed the difference between extradition and granting of asylum – you
can read more on this in pp. 12 – 13 of the judgment. The discussions on the admissibility of the
counter claim of Peru are set out in pp. 18 – 19.

Additional reading (on diplomatic asylum/ also called extra territorial asylum):

 Extraterritorial asylum under international law, pp. 115 – 129.

 F. Morgenstern, ‘‘Extra-Territorial’ Asylum’, 25 BYIL (1948)
 F. Morgenstern, ‘Diplomatic Asylum’, 67 The Law Quarterly Review (1951)
NICARAGUA VS THE UNITED STATES:
USE OF FORCE AND SELF-DEFENSE (1
OF 3)

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.

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 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 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:

1. Did the United States violate 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 when it encouraged, supported, and aided the military and paramilitary
activities against Nicaragua?
2. Did 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?
3. Can the military and paramilitary activities that the United States undertook in and
against Nicaragua be justified as collective self-defence?
4. 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
the territory of Nicaragua and because of acts referred to in (2) above?
5. 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 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-defence, 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 provided funds to
the contras. The Court held that “…it does not follow that each provision of funds by the
United States was made to set in motion a particular offensive, and that that offensive was
planned by the United States.” The Court held further 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 attacked 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 mercenaries,
which carry out acts of (sic) armed force against another State of such gravity 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 Resolution
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 carried out by
regular forces.

 Assistance to rebels by providing weapons or logistical support did not constitute 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 Responsibility, prepared by the International Law
Commission, provides significant guidance as to when acts of non-State actors may be attributed
to States. These articles, together 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
Institute 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 paramilitary 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 collectiveself-
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.”

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 acknowledges 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, corresponds 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 subjected 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 international law and of that contained in the Charter,
it is to be expected that the conditions 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, Costa Rica,
and Honduras to determine if (1) an armed attack was undertaken by Nicaragua 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-defence; (3) the United States did not claim that
when it used force, it was acting under 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-defence.

 In any event, the Court held that the criteria relating to necessity and proportionality, that
is required to be met when using force in self-defence – were also not fulfilled (para 237).

4. The Court held that the United States breached its CIL 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.

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 action, or in the indirect form of support for
subversive or terrorist armed activities within 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 reaching.”

 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 another State, exists in
contemporary international law”, even if such a request for assistance 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 imputable 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 collaboration 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 contras by the United States” but not all contra operations
reflected strategy and tactics 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 paramilitary 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 attributing to the United States the acts
committed by the contras in the course of their military or paramilitary operations in Nicaragua.
All the forms of United States participation 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 persons
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 international 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 involving 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 proportionate 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 internal 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 supervision 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 reconnaissance
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 internal waters of Nicaragua
and when it carried out unauthorised overflights over Nicaraguan airspace by aircrafts
that belong to or was under the control of the United States..


Material on the Nicaragua case