SILLIMAN UNIVERSITY COLLEGE OF LAW

PUBLIC INTERNATIONAL LAW (JD 211)

TABLE OF CUSTOMARY INTERNATIONAL LAW UNDER NICARAGUA V. USA (1986)

This documents is prepared by the following: E.G. Padayao; A.A. Famor; J. Perez; R. Inoferio; A. Bellingan; M. Renacia; M. Woodside; M.N. Paquibot; M. Pajantoy Jr.; R.
Manuel III; P. Altubar; J.A. Onia

CASE CONCERNING MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA

SUMMATION OF FACTS:

A revolutionary Government of National Reconstruction known as the Frente Sandinista de Liberacion National (FLSN) overthrew the regime of President General
Somoza Debayle. Upon learning about this change of control, the United States foreign policymakers were tremendously concerned as they suspected that there was a strong
Soviet involvement in the new Sandinista government. Despite this, the US under the administration of Carter continued its support for Nicaragua. However, under President
Reagan’s regime, the relationship between them became hostile. The US claims that they have evidence that the petitioner supported and aided leftist guerillas in El Salvador. The
defendant insisted that the plaintiff stop its aid. At the same time, the defendant provided covert assistance to anti-Sandinista guerillas. Moreover, the defendant was involved in the
mining of Nicaraguan harbors. Several ships were hit in February and March, and the actual maneuvers were carried out by Nicaraguan guerillas with the supervision of the CIA.
The petitioner, Nicaragua, filed a lawsuit against the defendant, United States, before the United Nations International Court of Justice on the ground that the defendant was
responsible for illegal military and paramilitary activities in and against Nicaragua. As for their part, the defendant assailed the jurisdiction of the International Court contending
that the Republic of Nicaragua never officially acceded to the compulsory jurisdiction of the World Court.

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TABLE OF CUSTOMARY INTERNATIONAL LAWS SOUGHT TO BE ESTABLISHED BY NICARAGUA, THE REPONSES OF THE UNITED STATES, AND
THE RESOLUTION OF THE COURT:

TOPIC Nicaragua’s Argument Response by US Resolution

Re Armed Nicaragua claimed that the United States Nicaragua was engaged in supplying arms to On “armed attack”: An armed attack included the following
attack had breached international law by (1) by guerrillas in El Salvador, which provoked the elements:
executing armed attacks against Nicaragua United States to support the Contras to force
by air, land, and sea; incursions into Nicaragua to change its policy. The United (1) action by regular armed forces across an international border;
Nicaraguan territorial waters; aerial States argued on this basis that its support for and
trespass into Nicaraguan airspace; efforts armed activities in and against Nicaragua was
by direct and indirect means to coerce and thus a justified means of “collective defense” (2) “the sending by or on behalf of a State of armed bands,
intimidate the Government of Nicaragua; of El Salvador. groups, irregulars or mercenaries, which carry out acts of (armed
(2) using force and the threat of force force against another State of such gravity as to amount to (inter
against Nicaragua; and (3) killing, alia) an actual armed attack conducted by regular forces, or its
wounding, and kidnapping citizens of (the State’s) substantial involvement therein”.
Nicaragua.
The Court found that even if it had been proven -- quod non -- that
Nicaraguas were supplying arms to El Salvadoran guerrillas, this
would not in itself constitute an “armed attack” under general
rules of international law sufficient to justify the use of force
against Nicaragua in alleged “collective defense”. Mere frontier
incidents will not be 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. Under Article 51 of the UN Charter
and under CIL – self-defense is only available against the use of
force that amounts to an armed attack. Therefore, the United States
is not justified in their use of force against Nicaraguas in the guise
of “collective defence” because acts of Nicaraguas did not amount
to an armed attack.

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Control Test The United States Government was The US claimed to be acting in reliance on “States can only act by and through their agents and
effectively in control of the contras, that it the inherent right of self-defense guaranteed representatives.” It has been a central element in the law of state
devised their strategy and directed their by Article 51 of the Charter of the United responsibility that, where organs of the state (such as government
tactics, and that the purpose of that Nations, that is the right of collective self- departments, or its courts), or individuals or groups in the
Government was, from the beginning, to defense. employment of the state (police, army, customs officers, etc.) act
overthrow the Government of Nicaragua. in a way that violates international law, their conduct is attributed
Its actions amount to intervention in the to the state, and the state is internationally responsible for such
internal affairs of Nicaragua, in breach of conduct.
the Charter of the Organization of
American States and of rules of customary Thus, the International Court of Justice (ICJ) has set forward the
international law forbidding intervention. control test in order to determine whether the acts of groups of
individuals within the territory of a state can be attributed to
Effective Control Test was enunciated in another state.
the case concerning military and
paramilitary activities in and against The ICJ analyses the elements of control the state has and that
Nicaragua. control requirement has to be proved at two levels: the potential
for control and the actual exercise of control. Moreover, that actual
What is this test? exercise of control must extend to “all fields” of the group’s
activity.
It is the determination whether there is a
“real link” between the private persons or The Court enquired “whether or not the relationship of the contras
groups and the State; it becomes necessary to the United States Government was so much one of dependence
to consider the degree of control exercised on the one side and control on the other that it would be right to
equate the contras, for legal purposes, with an organ of the United
by the latter over the former.
States Government, or as acting on behalf of that Government.”
There are two tests for this purpose: For the conduct to give rise to legal responsibility of the United
States, it would, in part, have to be proved that the state had
1. Effective Control Test effective control of the military or paramilitary operations in the
course of which the alleged violations were committed.
Control must have been exercised in The Court concluded, “there is no clear evidence of the United
respect to each individual act or omission States having actually exercised such a degree of control in all

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 which constitutes the breach. The private fields as to justify treating the contras as acting on its behalf.” The
persons or groups must have been mere ICJ considered the assistance of the United States to the contras
agents of the state who were told what had had been crucial, “but it is insufficient to demonstrate their
complete dependence on the United States aid.” The US did not
to be done at all stages. This presents a
devise the strategy, direct the tactics of the contras, or exercise
higher threshold for attribution. A general control on them. Despite the high degree of the US’s involvement
situation of dependence of support would in training, equipping, and supporting the contras, the absence of
thus be insufficient to justify attribution. the requisite degree of direction and control over the specific
operations in which such events occurred, the actions of the
2. Overall Control Test contras could not as a whole be treated as imputable to the US.
Control must have gone “beyond the mere
financing and equipping of such forces”
and must have involved “participation in
the planning and supervision of military
operations.” This presents a lower
threshold for attribution. There need be no
showing of actual or direct control. This
test was enunciated in the case of
Prosecutor v. Tadic, supra, and was applied
in the Case Concerning Application of the
Convention on the Prevention and
Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and
Montenegro), infra.

Doctrine of Nicaragua alleged that the references made In their defense, US alleged that Nicaragua The court rejected the justification of collective self-defence
Collective by the United States to the justification of has been responsible for cross-border military maintained by the United States of America in connection with the
Self-defense; collective self-defense, such as Nicaragua’s attacks on Honduras and Costa Rica in military and paramilitary activities in and against Nicaragua the
When aid to the armed opposition in El Salvador, violation of certain alleged assurances given subject of this case.
Invoked are merely "pretexts" for the activities of by its immediate predecessor, the
the United States and that the real Government of National Reconstruction, in Although the right of collective self-defense existed under
objectives of United States policy are to 1979. It flagrantly violated the provisions in customary law, there are conditions necessary for the lawful
impose its will upon Nicaragua and force it exercise of that right. First, the state exercising the right must be a

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 to comply with United States demands. that it: victim of an “armed attack” and declare the view that it has been
so attacked, or will be responding to a request for assistance in
 Has taken significant steps towards exercise of the right of collective self-defense extended by the
establishing a totalitarian Communist state which is a victim of an armed attack. Second, the lawful
dictatorship, including the formation of exercise of the right must be both necessary and proportionate.
FSLN neighborhood watch committees And finally, the state must report to the Security Council. This
and the enactment of laws that violate third requisite is not found in the customary law but in the United
human rights and grant undue executive Nations Charter. However, the Court held that if self-defense is
power. advanced as a justification for measures which would otherwise be
 Is not a government freely elected under in breach both of the principle of customary international law and
conditions of freedom of the press, of that contained in the Charter, it is to be expected that the
assembly, and organization, and is not conditions of the Charter should be respected. Thus, absence of a
recognized as freely elected by its report may be one of the factors indicating whether the State in
neighbors. Costa Rica, Honduras, and El question was itself convinced that it was acting in self-defense.
Salvador;
 No longer includes the democratic In this case, there was no armed attack by Nicaragua against El
members of the Government of National Salvador. The allegations of the United States concerning conduct
Reconstruction in the political process by Nicaragua which may provide a sufficient basis for self-defence
 Has committed atrocities against its are not sufficiently proven. Although in the early months of 1981,
citizens as documented in reports by the an intermittent flow of arms was routed via the territory of
Inter-American Commission on Human Nicaragua to the armed opposition in El Salvador, there is
Rights of the Organization of American insufficient evidence to prove that since the early months of 1981,
States; assistance has continued to reach the Salvadorian armed
 Has aligned itself with the Soviet Union opposition from the territory of Nicaragua on any significant scale,
and Soviet allies, including the German or that the Government of Nicaragua was responsible for any flow
Democratic Republic, Bulgaria, Libya, of arms at either period. Further, neither Costa Rica nor Honduras
and the Palestine Liberation Organization; had requested U.S. assistance in exercise of the right of collective
 Has committed and refuses to cease self-defense and El Salvador did not make any request from the
aggression in the form of armed US.
subversion against its neighbors in As to the second requirement necessary before exercising the right
violation of the Charter of the United of self-defense, the necessity for the use of force appeared to exist
Nations, the Charter of the Organization when U.S. support of the contras began, although the mining of
of American States. the Inter-American Nicaraguan harbors and "direct" U.S. attacks on oil installations
Treaty of Reciprocal Assistance, and the and ports violated the proportionality requirement. Whatever
1965 United Nations General Assembly uncertainty may exist as to the exact scale of the aid received by
Declaration on Intervention; and
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  Has built up an army beyond the needs of the Salvadorian armed opposition from Nicaragua, it is clear that
immediate self-defense at the expense of these United States activities in question could not have been
the needs of the Nicaraguan people and proportionate to that aid. Finally, the United States did not report
about which the nations of the region have that it was acting in self-defense to the Security Council. Thus,
expressed deepest concern. based on the above, the United States cannot justify its use of force
as collective self-defense.

Duty of a The decision of the court leaned towards NIcaragua’s claims that
State when The activities of the United States were The United States remains firmly of the view, the US is under immediate obligation to make reparation and
Found in aimed to overthrow the government of for the reasons given in its written and oral to cease and desist for the breaches of obligations under
Breach Nicaragua, to substantially damage the pleadings that the Court is without customary international laws, which the court stipulated.
economy and to weaken the political jurisdiction to entertain the dispute, and Among which, the court’s stipulation of obligations under CIL are
system with the aim to coerce the that the Nicaraguan application is as follows:
Government of Nicaragua to accept various inadmissible. Moreso, the United States
political demands of the United States. In intends not to participate in any further ● Every State has the duty to refrain from the threat or use of
view of its breaches of the legal proceedings in connection with this case, and force to violate the existing international boundaries of
obligations, the US is in a particular duty reserves its rights in respect of any decision another State or as a means of solving international
to: by the Court regarding Nicaragua's claims. disputes, including territorial disputes and problems
concerning frontiers of States.
● Cease and Desist ● States have a duty to refrain from acts of reprisal involving
● Make reparations the use of force.
● Every State has the duty to refrain from any forcible action
which deprives peoples referred to in the elaboration of the
principle of equal rights and self-determination of that right
to self-determination and freedom and independence.
● Every State has the duty to refrain from organizing or
encouraging the organization of irregular forces or armed
bands, including mercenaries, for incursion into the
territory of another State.

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 ● Every State has the duty to refrain from organizing,
instigating, assisting or participating in acts of civil strife
or terrorist acts in another State or acquiescing in organized
activities within its territory directed towards the
commission of such acts, when the acts referred to in the
present paragraph involve a threat or use of force.

Applicability The United States had breached the basic It (ICJ) should refrain from applying the rules When the customary law principles were identical to treaty
of Norm / provisions of the United Nations Charter of customary international law because they provisions
Treaty and of the Charter of the Organization of have been "subsumed" and "supervened" by
American States prohibiting the threat or those of international treaty law, and 1. If the principles of customary international law were
use of force or intervention in the internal especially those of the United Nations subsequently codified into treaties, they continue to exist side by
affairs of another state, as well as the Charter. side. For parties to treaties, both customary and treaty law apply,
corresponding provisions of customary and that treaties do not supervene in a manner where the
international law. customary law ceases to exist. If, for some reason, the treaty
ceases to apply between treaty parties, the identical customary law
provision continues to apply between them.
2. The Court also relied on Article 51 of the UN Charter to show
that a treaty itself can recognise the existence of customary
international law with respect to the same subject matter. For
example, the Court said that the term “inherent” in Article 51
recognised that customary law rights of self-defense existed
alongside treaty provisions.
When rules containing the same content could be treated
differently in customary international law and in treaty law.
A State that exercises the right of self-defence under Article 51,
according to the UN Charter, has an obligation to report the use of
force immediately to the Security Council. The Court held that this

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 was a treaty requirement and one that did not exist under
customary law. Interestingly, while the failure to report did not
result in a breach of customary international law, the Court
indicated that the United States’ failure to observe this requirement
contradicted her claim to be acting in self defense.
When customary and treaty law rights and obligations
differed in respect of the same subject matter.
1. The concepts such as necessity and proportionality, or the
definition of what constitutes an armed attack, are not found under
Article 51, or the UN Charter, but in customary law. The Court
concluded that (a) this proves that customary international law
continues to exist alongside treaty law and thaeat (b) areas
governed by the two sources of law do not (always) overlap and
the rules do not (always) have the same content.
2. In case of a divergence between treaty law and customary
international law, for the parties to a treaty, amongst themselves,
the treaty provisions apply as lex specialis.
The Court explained the relationship between the Charter of the
United Nations and customary international law on the use of
force and self defense in the following manner:
“However, so far from having constituted a marked
departure from a customary international law which still
exists unmodified, the Charter gave expression in this field
to principles already present in customary international
law, and that law has in the subsequent four decades
developed under the influence of the Charter, to such an
extent that a number of rules contained in the Charter have
acquired a status independent of it. The essential
consideration is that both the Charter and the customary
international law flow from a common fundamental
principle outlawing the use of force in international
relations. The differences which may exist between the

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 specific content of each are not, in the Court’s view, such
as to cause a judgment confined to the field of customary
international law to be ineffective or inappropriate (to the
parties of the Charter who are bound by the Charter)”
3. The Court concluded that principles such as those of the non-
use of force, non-intervention, respect for the independence and
territorial integrity of States, right of collective self defense and
the freedom of navigation, continue to be binding as part of
customary international law, “despite the operation of provisions
of conventional law in which they have been incorporated.”

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