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principle of equidistance was neither a mandatory rule in

delimitation of the continental shelf nor a rule of customary


international law that was not binding on Germany. The court was
not asked to delimit the parties agreed to delimit the continental
shelf as between their countries, by agreement, after the
determination of the ICJ on the applicable principles.

NORTH SEA CONTINENTAL SHELF CASES (SUMMARY)


Name of the Case: The North Sea Continental Shelf Cases
(Germany/Denmark;
Germany/Netherlands); Year
of
Decision: 1969; and Court: ICJ.
NB: This post discussed only aspects of the case related to treaty
or customary international law.

Facts of the Case:

Overview: The jurisprudence of the North Sea Continental Shelf


Cases sets out the dual requirement for forming customary
international law State practice (objective element) and
opinio juris (subjective element). It elaborated the criteria
necessary to establish State practice widespread and
representative participation. The case highlighted that the State
practice of importance were of those States whose interests were
affected by the custom. It also identified the fact that uniform
and consistent practice was necessary to show opinio juris a
belief that the 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.

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 wished 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.

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 ICJ to decide the
principles and rules of international law that are applicable to the
above delimitation. 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 is 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

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


Is Germany under a legal obligation to accept the equidistancespecial circumstances principle, contained in Article 6 of the
Geneva Convention, either as a customary international law rule or
on the basis of the Geneva Convention?
The Courts Decision:
The use of the equidistance method had not crystallised into
customary law and was is not obligatory for the delimitation of the
areas in the North Sea related to the present proceedings.
Relevant Findings of the Court:

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Nature of the treaty obligation: Is the 1958 Geneva Convention,


and in particular Article 6, binding on Germany?

3. NB: The Vienna Convention on the Law of Treaties of 1969


(VCLT), which came into force in 1980, discusses more fully the
obligations of third States to treaties. It clearly stipulates that an
obligation arises for a third State from a provision of a treaty only if
(1) the parties to the treaty intend the provision to create this
obligation for the third States; and (2) the third State expressly
accepts that obligation in writing (A. 35 of the VCLT). The VCLT was
not in force when the ICJ deliberated on this case. However, as
seen above, the ICJs position was consistent the VCLT. (See the
relevant provisions of the Vienna Convention on the Law of
Treaties).

1. Article 6 of the Geneva Convention on the Continental Shelf


states that unless the parties have agreed on a method for
delimitation or unless special circumstances exist, the equidistance
method would apply (see Article 6). Germany has signed but not
ratified the Geneva Convention, while Netherlands and Denmark
are parties to the Convention. The latter two States argue that
while Germany is not a party to the Convention (not having ratified
it), she is still bound by Article 6 of the Convention because:

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 Germanys 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.

(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).

5. In conclusion, the court held that Germany had not acted in any
way 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.

2. The Court rejected the first argument. It stated that only a very
definite very consistent course of conduct on the part of a State
would allow the court to presume that a State had somehow
become bound by a treaty (by a means other than in a 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 (i.e.
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).

Nature of the customary international law obligation: Is Germany


bound by the provisions of Article 6 of the Geneva Convention by
way of 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 existed independently of the
Convention. Therefore, they argued, Germany is bound by it 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 (2) and after the latter came into force.

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What was the customary law status of Article 6 at the time of


drafting the Convention?

customary law status (compare the 1958 Geneva Convention with


the four Geneva Conventions on 1949 in the field of international
humanitarian law in terms of its authority as a pronouncement of
customary international law).

8. The court held 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 International Law Commission on the
inclusion of Article 6 (para. 62) and (2) the fact reservations to
Article 6 was permissible under the Convention (Article 12). The
court held:

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 (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.

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 courts careful differentiation)

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 (including of coastal States i.e. those
States whose rights are affected) or widespread.
Duration
12. The court held that duration taken for the customary law rule to
emerge is not as important as widespread and representative
participation, uniform usage and the existence of an opinio juris.

Did the provisions in Article 6 on the equidistance principle attain


the customary law status after the Convention came into force?

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 (text in brackets
added).

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 to fulfil the criteria
specified below), or because of subsequent State practice (i.e. even
if 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

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Opinio juris

held that the use of the equidistance method is not obligatory for
the delimitation of the areas concerned in the present proceedings.

13. Opinio juris is reflected in acts of States (Nicaragua Case) or in


omissions (Lotus case) in so far as those acts or omissions are
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, 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 following explains the concept of opinio
jurisand 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.
15. The court concluded that the equidistance principle was not
binding on Germany by way of treaty or customary international
law because, 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

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Recommendation: The
Nicaragua case contains in-depth
discussions on the relationship between treaty and customary
international law. Students may wish to read this post on the
relationship before reading the synopsis of the case.

NICARAGUA VS UNITED
STATES: AN ANALYSIS OF
JURISPRUDENCE ON
CUSTOMARY
INTERNATIONAL LAW

In the Nicaragua case, the ICJ discussed:

The competence of the ICJ to give its determination based


on customary international law in the face of the
Vandenberg reservation of the United States.

Case: Case Concerning the Military and Paramilitary


Activities In and Against Nicaragua (Nicaragua vs United
States)

The relationship
international law.

Year of Decision: 1986. Court: ICJ.

Elements of customary international law.

NB: This blog post will discuss only the courts deliberations
on customary international law.For a brief summary of the
facts and matters on the definition of an armed attack, use of
force, self-defense and intervention, the reader is referred to a
previous post.

The prohibition on the use of force as a jus cogens norm.

Customary international law status of the principle of nonintervention.

between

treaty

law

and

customary

The competence of the ICJ to give its determination


based on customary international law

Overview: The case involved military and paramilitary activities


conducted by, or with the assistance of, the United States against
Nicaragua from 1981 to 1984. Due to a multilateral treaty
reservation of the United States (hereinafter called the
Vandenberg reservation), the Court was compelled to base its
findings only on customary and general principles of international
law. As a result, the Nicaragua case developed significant
jurisprudence on clarifying customary international law on the use
of force and non-intervention, elements necessary to form
customary international law and the relationship between the latter
and treaty law. Controversial aspects of the decision included the
courts methodology used to determine that the principle of nonintervention had attained customary law status, the courts
reliance on UN resolutions as a source of opinio juris and the
courts reliance on multilateral treaties to determine customary
international law in face of the Vandenberg reservation.

1. The United States when accepting the compulsory jurisdiction of


the ICJ (under Article 36(2) of the ICJ Statute) entered into the
Vandenberg reservation. This reservation barred the ICJ from using
certain multilateral treaties in the adjudication of the dispute.
2. The United States held that this reservation barred the Court
from determining the case even on the basis of customary and
general principles of international law because customary law
provisions, on which Nicaragua relied on, were identical to
provisions in treaties sought to be excluded. Because of the
identical content, the United States argued, treaty provisions
supervene and subsume the parallel customary law provision (see
below).

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3. The Court disagreed. It held that multilateral treaty reservations


could not preclude the Court from determining cases relying
customary
international
law
because
the
latter
exists
independently of treaty law.

provision continues to apply between them unaffected (see more


on para 178).
7. The fact that customary international law exists alongside treaty
law was an argument brought by Norway and Denmark in the North
Sea Continental Shelf Cases. In these cases, the two countries
having failed to attribute an obligation under Article 6 of the
Geneva Conventions of 1958 to Germany, sought to bind Germany
via customary international law. In this case the Court determined
that Article 6 neither reflected customary law at the time of the
codification, nor had it attained that status at the time of the
determination. In the Nicaragua case, the Court relied on the North
Sea Continental Shelf Cases to support the assertion that principles
of customary international law can exist side by side with identical
treaty law provisions and the latter does not supervene the former
in a manner where the former ceases to exist (para 177).

NB: The United States disagreed with the Courts determination to


proceed with the case and refused to participate further, including
at the merits stage (see the declaration made by the United
States in this regard). Although the Court was barred from
resorting to multilateral treaties, it referred to the latter, including
the UN Charter, to identify the existence, nature and scope of
various customary law principles. Commentators criticised the
Court for circumventing the multilateral reservation in this manner.

Relationship between treaty law and customary


international law

8. 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 on the same subject matter. The term inherent
in Article 51 recognised that customary law rights of self-defense
existed alongside treaty provisions.

4. As we noted before, the United States argued that when


customary international law and treaty law contain the same
content; the treaty law subsumes and supervenes customary
international law. In other words, the existence of principles in the
United Nations Charter precludes the possibility that similar rules
might exist independently in customary international law, either
because existing customary rules had been incorporated into the
Charter, or because the Charter influenced the later adoption of
customary rules with a corresponding content (para 174).

9. Rules containing the same content could be treated differently in


customary international law and in treaty law. For example, treaty
law may contain institutions or mechanisms to ensure the effective
implementation of its provisions, including those that reflect
customary law. One could take the Courts reading of Article 51 as
an example. 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 was a treaty requirement and one that did not exist under
customary law. Interestingly, although 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 defence (see paras 200,
235).

5. In its response, the Court distinguished two situations:


(a)
Situations where the customary law principles were identical
to treaty provisions; and
(b)
Situations where customary law and treaty law rights and
obligations differed in respect of the same subject matter.
6. In situations where customary law principles were identical to
treaty provisions (reflected as (a) above), the Court, quite correctly,
disagreed with the view of the United States. It held that even if
principles of customary international law are codified into treaties,
the former continues to exist side by side with the latter. For treaty
parties, both customary and treaty law apply and if, for some
reason, the treaty ceases to apply the identical customary law

10. The Court discussed situations where customary international


law and treaty law provisions were not identical (see point (b)
above). For example, the Court referred to the fact that concepts
such and necessity and proportionality, or the definition of what
constitutes an armed attack, are not found under Article 51, or the

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UN Charter, but in customary law. The Court concluded that (1) this
proves that customary international law continues to exist
alongside treaty law and that (2) areas governed by the two
sources of law do not (always) overlap and the rules do not
(always)
have
the
same
content.

The relationship between customary international


law and jus cogens
13. The court cited material presented by Nicaragua, the United
States and the International Law Commission to argue that the
prohibition on the use of force contained in Article 2(4) of the UN
Charter has attained the status of a jus cogens norm. The Court
found this to be A further confirmation of the validity as customary
international law of the principle of the prohibition of the use of
force expressed in Article 2, paragraph 4, of the Charter of the
United Nations (para 190).

the Charter, having itself recognized the existence of this right


(inherent customary law right of self-defence under A. 51 of the UN
Charter), does not go on to regulate directly all aspects of its
content. For example, it does not contain any specific rule whereby
self-defence would warrant only measures which are proportional to
the armed attack and necessary to respond to it, a rule well
established in customary international law. Moreover, a definition of
the armed attack which, if found to exist, authorises the exercise
of the inherent right of self-defence, is not provided in the
Charter, and is not part of treaty law. It cannot therefore be held
that Article 51 is a provision which subsumes and supervenes
customary international law.

The necessary elements to determine the existence


of customary international law
14. The Court, similar to the North Sea Continental Shelf Case,
considered both the subjective element (opinio juris) and the
objective element (State practice) as essential pre-requisites to the
formation and elucidation of a customary international law norm
(para 207). The jurisprudence of the Nicaragua case contained an
important clarification inconsistent State practice does not affect
the formation or continued existence of a customary principle so
long as the inconsistency is justified as a breach of the rule.

11. In case of a divergence between treaty law and customary


international law, for the parties to the treaty, amongst themselves,
the treaty provisions apply as lex specialis. The courts support for
this principle can be found in paras 180 and 181. The Court, in
conclusion, explained the relationship between the UN Charter and
customary international law in the following manner:

It is not to be expected that in the practice of States the


application of the rules in question should have been perfect, in the
sense that States should have refrained, with complete
consistency, from the use of force or from intervention in each
others internal affairs.

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 (on the use of force and self
defence) 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 specific
content of each are not, in the Courts 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) (text in brackets added)(para 181).

The Court does not consider that, for a rule to be established as


customary, the corresponding practice must be in absolutely
rigorous conformity with the rule. In order to deduce the existence
of customary rules, 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 of that rule, not as
indications of the recognition of a new rule.
If a State acts in a way prima facie incompatible with a recognized
rule, but defends its conduct by appealing to exceptions or

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justifications contained within the rule itself, then whether or not


the States conduct is in fact justifiable on that basis, the
significance of that attitude is to confirm rather than to weaken the
rule. (para 186)

often guided by policy considerations over legal merits. The


General Assemblys subject matter is more policy oriented than
legal (for which we have the 6th Committee). For example, when
the United States voted for the Friendly Relations Declaration it
stated on record its belief that the Declaration was only a
statement of political intention and not an expression of the law.
This is not to say that provisions on General Assembly Resolutions
that guide the international community to act in a certain way may
not eventually become binding international law (either by
attaining customary law status or becoming codified into treaty
law). It can, if there is adequate State practice and opinio juris. The
argument is that opinio juris cannot be said to exist based merely
on a vote in favour of a non-binding resolution in the absence of
an examination of subsequent consistent and general State
practice (which, in turn, reflects or confirms opinio juris).

15. The Nicaragua jurisprudence explained how one could


deduct opinio juris from acts of State. The Court held that opinio
juris could be deduced from:

the attitude of States towards certain General Assembly


resolutions. For example, the Declaration on Principles of
International Law concerning Friendly Relations (hereafter called
the Declaration on Friendly Relations). The Court held that:
The effect of consent to the text of such resolutions cannot be
understood as merely that of a reiteration or elucidation of the
treaty commitment undertaken in the Charter. On the contrary, it
may be understood as an acceptance of the validity of the rule or
set of rules declared by the resolution by themselvesIt would
therefore seem apparent that the attitude referred to expresses an
opinio juris respecting such rule (or set of rules), to be thenceforth
treated separately from the provisions, especially those of an
institutional kind, to which it is subject on the treaty-law plane of
the Charter

Customary international law relating to principles of


non-intervention
16. The Court held that Principles such as those of the non-use of
force (para 191), non-intervention (para 192), respect for the
independence and territorial integrity of States, right of collective
self defence (para 193) 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 (text in brackets added).

Statements by State representatives.


Obligations undertaken by participating States in international
forums (the Court provided the example of the Conference on
Security and Co-operation in Europe, Helsinki)

17. The Courts finding that principle of non-intervention formed a


part of customary international law invited criticism from
commentators, partly because they disagreed that the principle
formed customary international law and partly because of the
Courts own contradictions in coming to its conclusions and
inadequacy of analysis (see below). The Courts contradiction
stems from this statement: The principle of non-intervention
involves the right of every sovereign State to conduct its affairs
without outside interference; though examples of trespass
against this principle are not infrequent, the Court considers
that it is part and parcel of customary international
law(emphasis added. Para 202).

The International Law Commissions findings that a concept


amounts to a customary law principle.
Multilateral conventions.
NB: The fact that the Court relied on resolutions of the United
Nations to deduct opinio juris was subject to criticism. As you know,
opinio juris is the subjective element necessary to form customary
law. Opinio juris is reflected in instances where the
State undertakes a particular practice because it believes that it is
legally bound to do so. Voting patterns in the United Nations are

18.
The Court began its analysis with two questions:
Notwithstanding the multiplicity of declarations by States

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accepting the principle of non-intervention, there remain two


questions: first, what is the exact content of the principle so
accepted, and secondly, is the practice sufficiently in conformity
with it for this to be a rule of customary international law? The first
question was discussed in a previous post and will not be discussed
here.

armaments, or the direction of its foreign policy. But these were


statements of international policy, and not an assertion of rules of
existing international law.
20. The Court also noted that the United States has not sought to
justify its intervention in Nicaragua on legal grounds, but had only
justified it at a political level. The United States had not asserted
for itself legal right of intervention in these circumstances. The
Court, without further analysis into State practice, almost
immediately proceeded to find that no such general right of
intervention, in support of an opposition within another State,
exists in contemporary international law. The Court concludes that
acts constituting a breach of the customary principle of nonintervention will also, if they directly or indirectly involve the use of
force, constitute a breach of the principle of non-use of force in
international relations (para 209).

18. Although the question seemed to direct the Court towards


identifying an existing custom, in its response the Court seemed to
have already determined that the customary law prohibition of nonintervention existed. In the following passage the Court deliberates
if, in contrast, a customary law right to intervention had evolved.
There have been in recent years a number of instances of foreign
intervention for the benefit of forces opposed to the government of
another State. The Court is not here concerned with the process of
decolonisation It has to consider whether there might be
indications of a practice illustrative of belief in a kind of general
right for States to intervene, directly or indirectly, with or without
armed force, in support of an internal opposition in another State,
whose cause appeared particularly worthy by reason of the political
and moral values with which it was identified. For such a general
right to come into existence would involve a fundamental
modification
of
the
customary
law
principle
of
nonintervention. (paras 206, 207).

Development of a parallel customary international


law?
In addition to the comments made above in italics, another
interesting aspect of the judgment is that it sought to divorce
customary international law obligation from the identical treaty
obligation because of the jurisdictional bar to consider multilateral
treaties. In its consideration of customary international law it
developed certain principles independently of the treaty. For
example, Article 2(4) of the UN Charter prohibits the threat or use
of force against another State. The Court held that the same
prohibition on the use of force could be found under customary
international law and as a jus cogens norm. The Court then went on
to categorize the use of force under customary law as either a
grave use of force (i.e. use of force amounting to an armed
attack) or a less grave use of force (i.e. use of force that falls
short of an armed attack for example, the threat to use force).
The Court, then, restricted the right of self-defense to a situation
where there had been a grave use of force (or an armed attack, as
defined by the Court). If one were to hold that the relevant Charter
principles were clear, precise and unambiguous, one could say this
divorced interpretation could result in customary law developing in
a manner that is not in line with the Charter and thereby creating
separate rights/ regimes of law that govern the same subject
matter. This is because, then, the two regimes would be

19. The Court went on to hold, as before, that for a new customary
rule to be formed, not only must the acts concerned amount to a
settled practice, but they must be accompanied by the opinio juris
sive necessitates.
The significance for the Court of cases of State conduct prima
facie inconsistent with the principle of non-intervention lies in the
nature of the ground offered as justification. Reliance by a State on
a novel right or an unprecedented exception to the principle
might, if shared in principle by other States, tend towards a
modification of customary international law. In fact however the
Court finds that States have not justified their conduct by reference
to a new right of intervention or a new exception to the principle of
its prohibition. The United States authorities have on some
occasions clearly stated their grounds for intervening in the affairs
of a foreign State for reasons connected with, for example, the
domestic policies of that country, its ideology, the level of its

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irreconcilable. However, the fact remains that the Charter does


leave room for interpretation for example, on the definition of an
armed attack or on the use of force. In cases of ambiguity, Article
31 of the Vienna Convention on the Law of Treaties directs us to
look at, inter alia, subsequent practice and any relevant rules of
international law that maybe applicable. In other words, a treaty
can be interpreted with the assistance of customary and general
principles of international law. In this case, the development of
customary law would also mean a potential development of
ambiguous treaty law and a reconciliation of treaty and
customary law provisions.

destabilizing decision, one whose consequences are unforeseen.


The decision based on the validity of an autonomous norm of
customary international law free from the Charter is a constitutive
one of potential great significance (81 AMJIL 100, 1987).

Material on the Nicaragua case

Trashing customary international law, Antony DAmato, 81 AMJIL


102 (1987) (full text): (DAmato discusses the paucity of State
practice examined by the international court of justice before
concluding that the principle non-intervention formed part of
customary international law. He argues that the acceptance of
General Assembly resolutions do not manifest opinio juris. He
states that the Court failed to consider that Article 2(4) continued
to evolve through the years.)

The following contains a list of scholarly articles and other material


that discuss the Nicaragua case. If you would like to add to the list,
please note your suggestions in the comment box.

The World Courts Achievement, Richard Falk, 81 AMJIL 106 (Falk


takes a generally positive approach to the judgment, gives a good
overview of the case and Judge Shwebels dissent)

The judgment
including
separate
opinions
judges and summaries of the judgment and orders

Drawing the right line, Tom J. Farer, 81 AMJIL 112 (Farer takes a
cold-war contextual approach to the judgment and supports the
Courts narrow view of an armed attack and self defence).

of

individual

The World Court and Jus Cogens, 81 AMJIL 93, Gorden A.


Christenson. Christenson argues that an independent development
of the customary law right divorced from the treaty can have wider
consequences:

Some observations on the ICJs procedural and substantive


innovations, Thomas M. Franck, 81 AMJIL 116 (criticizes the
determination of relevant State practice in relation to nonintervention and the reliance on UN resolutions to illicit opinio
juris (it alleges that the Court sought to harden soft law
prematurely). Frank points out that the interventions falling short of
armed attacks would not allow States to target rebel groups in
another States territory even if the insurgency is planned, trained,
armed and directed from that territory).

We have then a double irony. The Court uses the United States
position accepting the treaty norm against the threat or use of
force also as a customary norm possibly having jus cogens quality,
in part, to justify taking jurisdiction as a matter quite independent
of the norm that otherwise falls under the multilateral treaty
reservation. Since there are two separate sources of the law, the
choice of the one source rather than the other means that the norm
relied upon survives the jurisdictional bar to the use of the other.
Yet the two norms are not different enough to undermine
completely the content of the Charter norm. This formalism simply
masks the more interesting question of the Courts institutional
claim, given the ineffectiveness of the UN Security system, to
develop an international public order case by case, by breaking
away form the strictures of the Charter and treaty norms. The Court
untied the treaty norms from their constraints within the United
Nations or regional collective security systems, a potentially

Protecting the Courts institutional interests: Why not the Marbury


approach? Michael J. Glennon, 81 AMJIL 121 (discusses reservations
before the ICJ and the Courts prerogative to determine its own
jurisdiction)
Discretion to decline to exercise jurisdiction, Edward Gorden, 81
AMJIL 129 (discusses the discretionary power of the court to decline
to exercise its jurisdiction at the merit stages).

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The Nicaragua judgment and the future of the law of force and selfdefense, John Lawrence Hargrove 81AMJIL 135 (Hargrove criticizes
the ICJs construction of the notion of collective self defense, armed
attack and forcible countermeasures).

Le peuple, cest moi!The world court and human rights, 81 AMJIL


173

Somber reflections on the compulsory jurisdiction


international court, Mark Weston Janis, 81 AMJIL 144

The Impact of the Nicaragua Case on the Court and Its Role:
Harmful, Helpful, or In Between?, Lori Fisler Damrosch (Abstract: At
the time the United States withdrew from participation in the
Nicaragua case at the International Court of Justice, the US
government expressed concern that the course on which the Court
may now be embarked could do enormous harm to it as an
institution and to the cause of international law. This essay
examines whether or to what extent the anticipated negative
effects came to pass. It concludes that dire predictions of harm to
the Court were overstated. Twenty-five years later, the rate at
which states accept the Courts jurisdiction has held steady. Only a
few states have added jurisdictional reservations concerning
military activities. The mix of cases being brought to the Court has
shifted towards a more representative distribution. States are
generally complying with the Courts decisions, though some
compliance problems remain. The most serious negative impact
has been on the willingness of the United States (still the Courts
most active litigant) to participate fully in international dispute
settlement.)

of

LJIL Symposium: Discussion of the ICJ Nicaragua Judgment

the

Custom on a sliding scale, Frederic L. Kirgis 81 AMJIL 146 (Kirgis


discusses the relationship between State practice and opinio juris,
criticizes the methods (or lack thereof) of the Court in determining
the customary law nature of Article 2(4) of the Charter. Points out
that actual State practice on intervention did not support the
Courts findings).
The International Court lives unto its name, Herbert W. Briggs, 81
AMJIL 78.
Determining US responsibility for
international law, Francis V. Boyle

contra

operations

under

Customary
international
law
in
the
Nicaragua
Case, Rijpkema. (Abstract: On 27 June 1986 the International Court
of Justice passed judgment in the case concerning military and
paramilitary activities in and against Nicaragua. Because of a
reservation that the United States had made when it accepted the
jurisdiction of the Court, the Court could not pronounce a decision
regarding the dispute insofar as it concerned multilateral
convertions. As a resuld of this, the Court was compelled to base its
judgment largely on rules of customary international law and
general principles of law. The rules of customary law which were
relevant for the judgment corresponded to a significant extent, as
regards their content, to the rules of treaty law which the Court
was unable to apply, such as the prohibition on the use of force of
Article 2, paragraph 4 of the Charter of the United Nations. This led
the Court to indicate in precise terms how rules of treaty law and
rules of customary law which have a corressponding content can
co-exist and how the existence of rules of customary international
law can be established in general. In addition, the Court examined
in some detail the existence and content of certain specific rules of
customary international law.)

LJIL Symposium: The Nicaragua Case: Its Impact, John Dugard


LJIL Symposium: Response of Lori F. Damrosch to Comments by
John Dugard, Lori F. Damrosch
The Principle of Non-Intervention 25 Years after the Nicaragua
Judgment, by Marcelo Kohen(Abstract: This article focuses on the
analysis by the International Court of Justice of the principle of nonintervention in domestic affairs in its judgment of 27 June 1986 in
the case concerning Military and Paramilitary Activities in and
against Nicaragua and contrasts it with the evolution of
international law and practice in this field. It is proposed that the
Courts 1986 analysis not only remains of actuality today, but also
constitutes a precursor to legal developments that have since
taken place. This is particularly the case with regard to the
relationship between the protection of human rights on the one
hand and the safeguard of state sovereignty and the collective
security regime on the other. The 1986 judgment helped to clarify

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the content of humanitarian assistance. It constituted the starting


point for the development of this concept in a series of GA
resolutions that were subsequently adopted. The controversial
doctrine of humanitarian intervention, as well as state practice in
violation of this principle, in no way led to modifying existing
international law. Similarly, the new concept of responsibility to

protect, which places emphasis on collective security and


discounts unilateral action, has not led to the disappearance of the
principle of non-intervention either.)

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