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.”
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.
The Paquete Habana, 175 U.S. 677, 20 S. Ct. 290, 44 L. Ed. 320, 1900 U.S. LEXIS 1714 (U.S. Jan. 8, 1900)

Brief Fact Summary. The argument of the fishermen whose vessels was seized by the U.S (P) officials was that
international law exempted coastal fishermen from capture as prizes of war.

Synopsis of Rule of Law. The argument of the fishermen whose vessels was seized by the U.S (P) officials was
that international law exempted coastal fishermen from capture as prizes of war.

Facts. This appeal of a district court decree, which condemned two fishing vessels and their cargoes as prizes of
war, was brought by the owners (D) of two separate fishing vessels. Each of the vessel running in and out of
Havana and sailing under the Spanish flag was a fishing smack which regularly engaged in fishing on the coast
of Cuba. Inside the vessels were fresh fish which the crew had caught.
The owners of the vessels were not aware of the existence of a war until they were stopped by U.S. (P) squadron.
No incriminating material like arms were found on the fishermen and they did not make any attempt to run the
blockade after learning of its existence not did they resist their arrest. When the owners (D) appealed, they argued
that both customary international law and writings of leading international scholars recognized an exemption from
seizure at wartime of coastal fishing vessels.

Issue. Are coastal fishing vessels with their cargoes and crews excluded from prizes of war?

Held. (Gray, J.). Yes. Coastal fishing vessels with their cargoes and crews are excluded from prizes of war. The
doctrine that exempts coastal fishermen with their vessels and crews from capture as prizes of war has been known
by the U.S. (P) from the time of the War of Independence and has been recognized explicitly by the French and
British governments. It is an established rule of international law that coastal fishing vessels with their equipment
and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing
in fish are exempt from capture as prizes of war. Reversed.

Discussion. Chief Justice Fuller who had a dissenting opinion which was not published in this casebook argued
that the captured vessels were of such a size and range as to not fall within the exemption. He further argued that
the exemption in any case had not become a customary rule of international law, but was only an act of grace that
had not been authorized by the President.
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.