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Nicaragua Vs USA

The United States claimed that the ICJ did not have jurisdiction over Nicaragua's claims due to its reservation excluding disputes arising under multilateral treaties. However, the ICJ ruled that it could rely on customary international law to rule on Nicaragua's claims, even if identical to treaty law. Specifically, the ICJ found that: 1) customary international law exists independently and is not subsumed by treaty law; 2) the UN Charter refers to preexisting customary law on self-defense; and 3) multilateral treaty reservations do not preclude application of identical customary norms. Therefore, the ICJ had jurisdiction to hear Nicaragua's claims based on customary international law.

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36 views7 pages

Nicaragua Vs USA

The United States claimed that the ICJ did not have jurisdiction over Nicaragua's claims due to its reservation excluding disputes arising under multilateral treaties. However, the ICJ ruled that it could rely on customary international law to rule on Nicaragua's claims, even if identical to treaty law. Specifically, the ICJ found that: 1) customary international law exists independently and is not subsumed by treaty law; 2) the UN Charter refers to preexisting customary law on self-defense; and 3) multilateral treaty reservations do not preclude application of identical customary norms. Therefore, the ICJ had jurisdiction to hear Nicaragua's claims based on customary international law.

Uploaded by

Calma, Anwar, G.
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PPTX, PDF, TXT or read online on Scribd
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Case concerning military and

paramilitary activies in and


against Nicaragua
Nicaragua vs United states of America
June 27, 1986
Facts
In 1979 after the fall of President Anastacio Samosa Debayle of Nicaragua, Frente Sandanista de Liberacion Nacional took
over the Nicaraguan government. There was a good economic and political relationship between the new government of
Nicaragua and the USA at first. It turns sour after the involvement of the new government the guerrillas in El Salvador.
he opposition against the Sandanista’s were organized into two main groups
1. Fuerza Democratica Nucaraguense
2. Alianza Revolucionaria Democratica
According to Nicaraguan government the United states government had been giving support to these groups and these
groups have caused considerable damages and wide spread loss of life by way killing, torturing, raping and kidnapping
civilians and prisoners.
• They further alleged that US overflight, mined and attacks port, oil installations, naval base etc.

US breach its obligation under general and customary International law and Art.2 Par.4 of UN Charter
- Using force and the threat of force
- Intervening in the internal affairs
- Infringing the freedom of the high seas and interrupting peaceful maritime commerce
- Killing and kidnapping Nicaraguan Citizens
• US has obligation to pay
United states of America

Jurisdiction

United States Multilateral treaty reservation

US acceptance of jurisdiction deposited on 26 August 1946 contains a proviso excluding from its application

• ..disputes arising under a multilateral treaty , unless

1. All the parties to the treaty affected by the decision are also parties to the case before the court
2. The united states of America specially agrees to jurisdiction

Subsume and supervene related principles of customary and general international law.
Issue:

• Whether the UN charter subsume and


supervene principles of customary ang
general international law.
• Nicaragua had not confined its claims to breaches of multilateral treaties but had invoked a number of
principles of General and customary international law amongst others.

The state which has chosen not to appear remains a party to the case , and is bound by the eventual judgement
in accordance with the Article 59 of the statute. The case cannot, in any circumstances, affect the validity of its
judgement. Nor does the validity depend upon the acceptance of that judgement by one party.

Nuclear test ICJ reports 1974

It is incumbent upon the court to satisfy itself that it is in possession of all the available facts.
• The ICJ has jurisdiction because the issues raised by Nicaragua relating to the use of force and self-defense are
both regulated by treaty law and customary law. The effect of the reservation is confined to barring the
applicability of the UN charter and organization of American states charter as multilateral treaty law, and has
no further impact on the sources of international law which article 38 of the statute requires the court to
apply. Thus the court may rely exclusively on customary law relating to the use of force.

• The court does not consider that, in the areas of law relevant to the present dispute, it can be claimed that all
customary rules which may be invoked have a content exactly identical to that of the rules contained in the
treaties which cannot be applied by the virtue of United states reservation. On a number of points, the areas
governed by the two sources of law who not exactly overlap, and the substantive rules which they are framed
are not identical in content.
• Furthermore, even if the areas covered by the UN charter and the customary law are identical,
the UN charter and the customary law are identical, the UN charter itself refers to pre-existing
customary international law, specifically in Art.51 of the charter and in recognizing the existence
of such right, it does not go on to regulate directly all aspects of its content. Thus, it cannot be
held that Art. 51 is a provision which “subsumes and supervenes” customary law.

Article 51
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed
attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary
to maintain international peace and security.
• The court further held that multilateral treaty reservations cannot preclude the application of customary law,
because even if the customary norm and the treaty norm were to have the exactly the same content, this
would not be a reason to hold the treaty law “supervenes” the former, so that the customary international
has no further existence of its own. The existence of identical rules in international treaty law and customary
law has been clearly recognized by the court

North sea continental shelf

There is no grounds for holding that when customary law is comprised of rules identical to those of treaty law,
the latter supervenes the former, so that customary international law has no further existence of its own.

Thus, customary international law will continue exist and to apply, separately from international law, even
where the two categories of law have an identical content.

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