Military and Paramilitary Activities in and against Nicaragua, Nicaragua v United States of America, Merits, 27th June 1986 ( ICJ Rep 14), OXIO 88
International Court of Justice [ICJ]; Nicaragua [ni]; United States [us]
- Paramilitary groups — Violations of the laws or customs of war — Acts of international organizations — Attribution — Customary international law
1. Whether US actions were compatible with international law.
2. Whether acts of international organizations could contribute to the development of customary international law.
This headnote pertains to: Military and Paramilitary Activities in and against Nicaragua, Nicaragua v United States of America, Merits, a court decision relevant to the law of international organizations. Jump to full text
The Military and Paramilitary Activities in and against Nicaragua, Nicaragua v United States of America (‘Nicaragua’) case, being as it was one of the most complex filed in the International Court of Justice (ICJ), touches upon numerous questions with respect to the development of international law. These issues include the contribution of international organizations to the formation of international law. The latter is analyzed by the ICJ, having reference to resolutions of the United Nations (UN) General Assembly (GA), resolutions of the Organization of American States (OAS), and to the Final Act of the Conference on Security and Co-operation in Europe (‘CSCE Final Act’).
In 1979 the Sandinista movement (FSLN) rose to power in Nicaragua. Opposed to the FSLN’s socialist aspirations, the US increasingly provided support to rebels against the new regime. Nicaragua alleged that this support—claimed to include the organization of armed groups and the use of force by the US itself—was contrary to both the agreements in force between the two states and international law.
On 9 April 1984 Nicaragua brought the matter before the ICJ. Initially, the US argued that the ICJ had no jurisdiction over the case brought before it. However, in Nicaragua, Judgment on jurisdiction and admissibility (1984), the ICJ upheld the Nicaraguan claims and ruled that it had jurisdiction. At this stage, the US government refused to participate in the case and withdrew its acceptance of the ICJ’s optional clause. Nevertheless the ICJ went on to hear and decide on the merits of the application.
Despite Nicaragua’s importance within general international law, this document will primarily focus on its important contribution to the law of international organizations.
Nicaragua addressed numerous legal questions. Most broadly, the ICJ upheld Nicaragua’s claim and found the US to be in violation of international law. It first concluded that the aid provided by Nicaragua to rebel forces in El Salvador did not constitute an ‘armed attack’ in El Salvador. Therefore the US claim that it was acting in self-defense on behalf of El Salvador was considered ill founded.
By contrast the ICJ found that the US was responsible for assisting with the ‘planning, direction and support’ of contra actions. The ICJ went on to add that ‘there is no clear evidence of the United States having actually exercised such a degree of control in all fields so as to justify treating the contras as acting on its behalf’. It concluded ‘[f]or this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that the State had effective control of the’ operations in question. [paras 86, 109, 115]
From the perspective of the law of international organizations, the most important aspect concerned the contribution of international organizations to the formation of international law. The ICJ stressed various facets of this phenomenon. The ICJ found that particular provisions of a GA resolution ‘may be taken to reflect customary international law’—ie may be treated as evidence of customary international law—and emphasized in another passage of the judgment their impact on the creation of customary international law stating ‘effect of consent to the text of such resolutions … may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves’. (paras 188, 195)
The question of the legal nature and effects of the acts of international organizations needs to be examined in a wide context, including international law-making issues and sources of international law.
In Nicaragua the ICJ found that GA resolutions might be treated as evidence of customary law. With reference to Article 3 (g) of the Definition of Aggression annexed to UN GA Resolution 3314 (XXIX), the ICJ stated that it ‘may be taken to reflect customary international law’. [para 195] In addition the ICJ went a step further in somehow piercing the veil of the process of formation of customary norms. The ICJ indicated that ‘opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States towards certain General Assembly resolutions, and particularly United Nations General Assembly Resolution 2625 (XXV) entitled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”’. Furthermore, it said that ‘[t]he 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 themselves’. [para 188] Here, the ICJ evidently emphasized the impact of the GA resolutions on the creation of customary international law. They by themselves can shape the content of customary international law and can contribute to the formation of international law. Further, while referring to the principles of non-use of force and non-intervention as enshrined in Resolution 2625 (XXV), the ICJ found that ‘the adoption by [s]tates of this text affords an indication of their opinio juris as to customary international law on the question’. [para 191] The focus of attention of the ICJ is placed on one element of the custom—opinio juris—, not really touching upon the question of state practice.
In Nicaragua, the ICJ—in its quest for finding evidence of opinio juris as to the principle of non-intervention—also referred to the CSCE Final Act. The ICJ referred to it as a means of establishing general acceptance by states—more especially the United States—of principles of international law such as the principles of the non-use of force and non-intervention. [paras 189, 204] In the same vein, as regards the principle of non-intervention, the ICJ referred to the resolutions of the General Assembly of the OAS, such as OAS General Assembly Resolution 78 and OAS General Assembly Resolution 128. [paras 192, 204]
The ICJ analysis of the impact of legal acts of international organizations on the formation of international law, shows that normative resolutions of international organizations contribute to the formation of international law.
Certainly, in order to assess the normative value of legal acts adopted by international organizations, each legal act has to be assessed in concreto in terms of its content as well as the procedure under which it was adopted. A series of similar resolutions may evidence a practice accepted by law, thereby demonstrating the opinio juris required for the emergence of a customary rule. Thus, such acts play a role in the formation of customary law, whether by confirming existing rules or crystallizing new ones.
Further Analysis and Relevant Materials
- G Abi-Saab ‘Cours général de droit international public’ (1987) 207 RdC VII
- J Castañeda Legal Effects of United Nations Resolutions (New York, Columbia University Press, 1969
- I Detter ‘The Effects of Resolutions of International Organizations’ in J Makarczyk (ed), Theory of International law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski (The Hague, Kluwer, 1996)
- K. Skubiszewski ‘The Elaboration of General Multilateral Conventions and of Non-Contractual Instruments Having a Normative Function or Objective’ in Yearbook of the Institute of International Law, Session of Helsinki 1985, Vol. 61 Part I (Paris, Pedone, 1985)
- B Sloan United Nations General Assembly Resolutions in our Changing World (New York, Transnational Publishers, 1991)
Commission on Security and Cooperation in Europe [CSCE]
- Final Act of the Conference on Security and Co-operation in Europe (1 August 1975) (1975) 14 ILM 1292
Organization of American States [OAS]
- Organization of American States General Assembly Resolution 128 (III-0/73) Principles governing relations among American States (15 April 1973) AG/RES.128 (III-0/73)
- Organization of American States General Assembly Resolution 78 (1972) Concerning non-intervention in interior matters of states (21 April 1972) AG/RES.78
United Nations General Assembly [UNGA]
- United Nations General Assembly Resolution 3314 (XXIX) Definition of Aggression (14 December 1974) A/RES/3314 (XXIX)
- United Nations General Assembly Resolution 2625 (XXV) Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (24 October 1970) A/RES/2625 (XXV)
International Court of Justice [ICJ]
- Border and Transborder Armed Actions, Nicaragua v Honduras, Judgment, jurisdiction and admissibility, 20 December 1988,  ICJ Rep 69
Present : President Nagendra Singh; Vice-President de Lacharrière; Judges Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Schwebel, Sir Robert Jennings, Mbaye, Bedjaoui, Ni, Evensen; Judge ad hoc Colliard; Registrar Torres Bernárdez.
In the case concerning military and paramilitary activities in and against Nicaragua,
the Republic of Nicaragua,
H.E. Mr. Carlos Argüello Gómez, Ambassador,
as Agent and Counsel,
Mr. Ian Brownlie, Q.C., F.B.A., Chichele Professor of Public International Law in the University of Oxford; Fellow of All Souls College, Oxford,
Hon. Abram Chayes, Felix Frankfurter Professor of Law, Harvard Law School; Fellow, American Academy of Arts and Sciences,
Mr. Alain Pellet, Professor at the University of Paris-Nord and the Institut d'études politiques de Paris,
Mr. Paul S. Reichler, Reichler and Appelbaum, Washington, D.C.; Member of the Bar of the United States Supreme Court; Member of the Bar of the District of Columbia,
as Counsel and Advocates,
Mr. Augusto Zamora Rodríguez, Legal Adviser to the Foreign Ministry of the Republic of Nicaragua,
Miss Judith C. Appelbaum, Reichler and Appelbaum, Washington, D.C.; Member of the Bars of the District of Columbia and the State of California,
Mr. David Wippman, Reichler and Appelbaum, Washington, D.C.,
the United States of America,
composed as above,
delivers the following Judgment :
1. On 9 April 1984 the Ambassador of the Republic of Nicaragua to the Netherlands filed in the Registry of the Court an Application instituting proceedings against the United States of America in respect of a dispute concerning responsibility for military and paramilitary activities in and against Nicaragua. In order to found the jurisdiction of the Court the Application relied on declarations made by the Parties accepting the compulsory jurisdiction of the Court under Article 36 of the Statute .
2. Pursuant to Article 40, paragraph 2, of the Statute , the Application was at once communicated to the Government of the United States of America. In accordance with paragraph 3 of that Article, all other States entitled to appear before the Court were notified of the Application.
3. At the same time as the Application was filed, the Republic of Nicaragua also filed a request for the indication of provisional measures under Article 41 of the Statute . By an Order dated 10 May 1984, the Court rejected a request made by the United States for removal of the case from the list, indicated, pending its final decision in the proceedings, certain provisional measures, and decided that, until the Court delivers its final judgment in the case, it would keep the matters covered by the Order continuously under review.
4. By the said Order of 10 May 1984, the Court further decided that the written proceedings in the case should first be addressed to the questions of the jurisdiction of the Court to entertain the dispute and of the admissibility of the Application. By an Order dated 14 May 1984, the President of the Court fixed 30 June 1984 as time-limit for the filing of a Memorial by the Republic of Nicaragua and 17 August 1984 as time-limit for the filing of a Counter-Memorial by the United States of America on the questions of jurisdiction and admissibility and these pleadings were duly filed within the time-limits fixed.
5. In its Memorial on jurisdiction and admissibility, the Republic of Nicaragua contended that, in addition to the basis of jurisdiction relied on in the Application, a Treaty of Friendship, Commerce and Navigation signed by the Parties in 1956 provides an independent basis for jurisdiction under Article 36, paragraph 1, of the Statute of the Court .
6. Since the Court did not include upon the bench a judge of Nicaraguan nationality, Nicaragua, by a letter dated 3 August 1984, exercised its right under Article 31, paragraph 2, of the Statute of the Court to choose a judge ad hoc to sit in the case. The person so designated was Professor Claude-Albert Colliard.
7. On 15 August 1984, two days before the closure of the written proceedings on the questions of jurisdiction and admissibility, the Republic of El Salvador filed a Declaration of Intervention in the case under Article 63 of the Statute . Having been supplied with the written observations of the Parties on the Declaration pursuant to Article 83 of the Rules of Court , the Court, by an Order dated 4 October 1984, decided not to hold a hearing on the Declaration of Intervention, and decided that that Declaration was inadmissible inasmuch as it related to the phase of the proceedings then current.
8. On 8–10 October and 15–18 October 1984 the Court held public hearings at which it heard the argument of the Parties on the questions of the jurisdiction of the Court to entertain the dispute and the admissibility of the Application.
9. By a Judgment dated 26 November 1984, the Court found that it had jurisdiction to entertain the Application on the basis of Article 36, paragraphs 2 and 5, of the Statute of the Court ; that it had jurisdiction to entertain the Application in so far as it relates to a dispute concerning the interpretation or application of the Treaty of Friendship, Commerce and Navigation between the United States and Nicaragua of 21 January 1956, on the basis of Article XXIV of that Treaty ; that it had jurisdiction to entertain the case; and that the Application was admissible.
10. By a letter dated 18 January 1985 the Agent of the United States referred to the Court's Judgment of 26 November 1984 and informed the Court as follows :
“the United States is constrained to conclude that the judgment of the Court was clearly and manifestly erroneous as to both fact and law. The United States remains firmly of the view, for the reasons given in its written and oral pleadings that the Court is without jurisdiction to entertain the dispute, and that the Nicaraguan application of 9 April 1984 is inadmissible. Accordingly, it is my duty to inform you that the United States intends not to participate in any further proceedings in connection with this case, and reserves its rights in respect of any decision by the Court regarding Nicaragua's claims.”
11. By an Order dated 22 January 1985 the President of the Court, after referring to the letter from the United States Agent, fixed 30 April 1985 as time-limit for a Memorial of Nicaragua and 31 May 1985 as time-limit for a Counter-Memorial of the United States of America on the merits of the dispute. The Memorial of Nicaragua was filed within the time-limit so fixed; no pleading was filed by the United States of America, nor did it make any request for extension of the time-limit. In its Memorial, communicated to the United States pursuant to Article 43 of the Statute of the Court , Nicaragua invoked Article 53 of the Statute and called upon the Court to decide the case despite the failure of the Respondent to appear and defend.
12. On 10 September 1985, immediately prior to the opening of the oral proceedings, the Agent of Nicaragua submitted to the Court a number of documents referred to as “Supplemental Annexes” to the Memorial of Nicaragua. In application of Article 56 of the Rules of Court , these documents were treated as “new documents” and copies were transmitted to the United States of America, which did not lodge any objection to their production.
13. On 12–13 and 16–20 September 1985 the Court held public hearings at which it was addressed by the following representatives of Nicaragua : H.E. Mr. Carlos Argüello Gómez, Hon. Abram Chayes, Mr. Paul S. Reichler, Mr. Ian Brownlie, and Mr. Alain Pellet. The United States was not represented at the hearing. The following witnesses were called by Nicaragua and gave evidence : Commander Luis Carrión, Vice-Minister of the Interior of Nicaragua (examined by Mr. Brownlie); Dr. David MacMichael, a former officer of the United States Central Intelligence Agency (CIA) (examined by Mr. Chayes); Professor Michael John Glennon (examined by Mr. Reichler); Father Jean Loison (examined by Mr. Pellet); Mr. William Huper, Minister of Finance of Nicaragua (examined by Mr. Argüello Gómez). Questions were put by Members of the Court to the witnesses, as well as to the Agent and counsel of Nicaragua, and replies were given either orally at the hearing or subsequently in writing. On 14 October 1985 the Court requested Nicaragua to make available certain further information and documents, and one Member of the Court put a question to Nicaragua. The verbatim records of the hearings and the information and documents supplied in response to these requests were transmitted by the Registrar to the United States of America.
14. Pursuant to Article 53, paragraph 2, of the Rules of Court , the pleadings and annexed documents were made accessible to the public by the Court as from the date of opening of the oral proceedings.
15. In the course of the written proceedings, the following submissions were presented on behalf of the Government of Nicaragua :
in the Application :
“Nicaragua, reserving the right to supplement or to amend this Application and subject to the presentation to the Court of the relevant evidence and legal argument, requests the Court to adjudge and declare as follows :
(a) That the United States, in recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Nicaragua, has violated and is violating its express charter and treaty obligations to Nicaragua, and in particular, its charter and treaty obligations under :
— Article 2 (4) of the United Nations Charter ;
— Articles 18 and 20 of the Charter of the Organization of American States ;
— Article 8 of the Convention on Rights and Duties of States ;
— Article I, Third, of the Convention concerning the Duties and Rights of States in the Event of Civil Strife .
(b) That the United States, in breach of its obligation under general and customary international law, has violated and is violating the sovereignty of Nicaragua by :
— armed attacks against Nicaragua by air, land and sea;
— incursions into Nicaraguan territorial waters;
— aerial trespass into Nicaraguan airspace;
— efforts by direct and indirect means to coerce and intimidate the Government of Nicaragua.
(c) That the United States, in breach of its obligation under general and customary international law, has used and is using force and the threat of force against Nicaragua.
(d) That the United States, in breach of its obligation under general and customary international law, has intervened and is intervening in the internal affairs of Nicaragua.
(e) That the United States, in breach of its obligation under general and customary international law, has infringed and is infringing the freedom of the high seas and interrupting peaceful maritime commerce.
(f) That the United States, in breach of its obligation under general and customary international law, has killed, wounded and kidnapped and is killing, wounding and kidnapping citizens of Nicaragua.
(g) That, in view of its breaches of the foregoing legal obligations, the United States is under a particular duty to cease and desist immediately :
from all use of force — whether direct or indirect, overt or covert — against Nicaragua, and from all threats of force against Nicaragua;
from all violations of the sovereignty, territorial integrity or political independence of Nicaragua, including all intervention, direct or indirect, in the internal affairs of Nicaragua;
from all support of any kind — including the provision of training, arms, ammunition, finances, supplies, assistance, direction or any other form of support — to any nation, group, organization, movement or individual engaged or planning to engage in military or paramilitary actions in or against Nicaragua;
from all efforts to restrict, block or endanger access to or from Nicaraguan ports;
and from all killings, woundings and kidnappings of Nicaraguan citizens.
(h) That the United States has an obligation to pay Nicaragua, in its own right and as parens patriae for the citizens of Nicaragua, reparations for damages to person, property and the Nicaraguan economy caused by the foregoing violations of international law in a sum to be determined by the Court. Nicaragua reserves the right to introduce to the Court a precise evaluation of the damages caused by the United States”;
in the Memorial on the merits :
“The Republic of Nicaragua respectfully requests the Court to grant the following relief :
First : the Court is requested to adjudge and declare that the United States has violated: the obligations of international law indicated in this Memorial, and that in particular respects the United States is in continuing violation of those obligations.
Second : the Court is requested to state in clear terms the obligation which the United States bears to bring to an end the aforesaid breaches of international law.
Third : the Court is requested to adjudge and declare that, in consequence of the violations of international law indicated in this Memorial, compensation is due to Nicaragua, both on its own behalf and in respect of wrongs inflicted upon its nationals; and the Court is requested further to receive evidence and to determine, in a subsequent phase of the present proceedings, the quantum of damages to be assessed as the compensation due to the Republic of Nicaragua.
Fourth : without prejudice to the foregoing request, the Court is requested to award to the Republic of Nicaragua the sum of 370,200,000 United States dollars, which sum constitutes the minimum valuation of the direct damages, with the exception of damages for killing nationals of Nicaragua, resulting from the violations of international law indicated in the substance of this Memorial.
With reference to the fourth request, the Republic of Nicaragua reserves the right to present evidence and argument, with the purpose of elaborating the minimum (and in that sense provisional) valuation of direct damages and, further, with the purpose of claiming compensation for the killing of nationals of Nicaragua and consequential loss in accordance with the principles of international law in respect of the violations of international law generally, in a subsequent phase of the present proceedings in case the Court accedes to the third request of the Republic of Nicaragua.”
16. At the conclusion of the last statement made on behalf of Nicaragua at the hearing, the final submissions of Nicaragua were presented, which submissions were identical to those contained in the Memorial on the merits and set out above.
17. No pleadings on the merits having been filed by the United States of America, which was also not represented at the oral proceedings of September 1985, no submissions on the merits were presented on its behalf.
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18. The dispute before the Court between Nicaragua and the United States concerns events in Nicaragua subsequent to the fall of the Government of President Anastasio Somoza Debayle in Nicaragua in July 1979, and activities of the Government of the United States in relation to Nicaragua since that time. Following the departure of President Somoza, a Junta of National Reconstruction and an 18-member government was installed by the body which had led the armed opposition to President Somoza, the Frente Sandinista de Liberación Nacional (FSLN). That body had initially an extensive share in the new government, described as a “democratic coalition”, and as a result of later resignations and reshuffles, became almost its sole component. Certain opponents of the new Government, primarily supporters of the former Somoza Government and in particular ex-members of the National Guard, formed themselves into irregular military forces, and commenced a policy of armed opposition, though initially on a limited scale.
19. The attitude of the United States Government to the “democratic coalition government” was at first favourable; and a programme of economic aid to Nicaragua was adopted. However by 1981 this attitude had changed. United States aid to Nicaragua was suspended in January 1981 and terminated in April 1981. According to the United States, the reason for this change of attitude was reports of involvement of the Government of Nicaragua in logistical support, including provision of arms, for guerrillas in El Salvador. There was however no interruption in diplomatic relations, which have continued to be maintained up to the present time. In September 1981, according to testimony called by Nicaragua, it was decided to plan and undertake activities directed against Nicaragua.
20. The armed opposition to the new Government in Nicaragua, which originally comprised various movements, subsequently became organized into two main groups : the Fuerza Democrática Nicaragüense (FDN) and the Alianza Revolucionaria Democrática (ARDE). The first of these grew from 1981 onwards into a trained fighting force, operating along the borders with Honduras; the second, formed in 1982, operated along the borders with Costa Rica. The precise extent to which, and manner in which, the United States Government contributed to bringing about these developments will be studied more closely later in the present Judgment. However, after an initial period in which the “covert” operations of United States personnel and persons in their pay were kept from becoming public knowledge, it was made clear, not only in the United States press, but also in Congress and in official statements by the President and high United States officials, that the United States Government had been giving support to the contras, a term employed to describe those fighting against the present Nicaraguan Government. 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”. According to Nicaragua, the contras have caused it considerable material damage and widespread loss of life, and have also committed such acts as killing of prisoners, indiscriminate killing of civilians, torture, rape and kidnapping. It is contended by Nicaragua that the United States Government is effectively in control of the contras, that it devised their strategy and directed their tactics, and that the purpose of that Government was, from the beginning, to overthrow the Government of Nicaragua.
21. Nicaragua claims furthermore that certain military or paramilitary operations against it were carried out, not by the contras, who at the time claimed responsibility, but by persons in the pay of the United States Government, and under the direct command of United States personnel, who also participated to some extent in the operations. These operations will also be more closely examined below in order to determine their legal significance and the responsibility for them; they include the mining of certain Nicaraguan ports in early 1984, and attacks on ports, oil installations, a naval base, etc. Nicaragua has also complained of overflights of its territory by United States aircraft, not only for purposes of intelligencegathering and supply to the contras in the field, but also in order to intimidate the population.
22. In the economic field, Nicaragua claims that the United States has withdrawn its own aid to Nicaragua, drastically reduced the quota for imports of sugar from Nicaragua to the United States, and imposed a trade embargo; it has also used its influence in the Inter-American Development Bank and the International Bank for Reconstruction and Development to block the provision of loans to Nicaragua.
23. As a matter of law, Nicaragua claims, inter alia, that the United States has acted in violation of Article 2, paragraph 4, of the United Nations Charter , and of a customary international law obligation to refrain from the threat or use of force; that its actions amount to intervention in the internal affairs of Nicaragua, in breach of the Charter of the Organization of American States and of rules of customary international law forbidding intervention; and that the United States has acted in violation of the sovereignty of Nicaragua, and in violation of a number of other obligations established in general customary international law and in the inter-American system. The actions of the United States are also claimed by Nicaragua to be such as to defeat the object and purpose of a Treaty of Friendship, Commerce and Navigation concluded between the Parties in 1956, and to be in breach of provisions of that Treaty.
24. As already noted, the United States has not filed any pleading on the merits of the case, and was not represented at the hearings devoted thereto. It did however make clear in its Counter-Memorial on the questions of jurisdiction and admissibility that “by providing, upon request, proportionate and appropriate assistance to third States not before the Court” it claims to be acting in reliance on the inherent right of self-defence “guaranteed … by Article 51 of the Charter” of the United Nations , that is to say the right of collective self-defence.
25. Various elements of the present dispute have been brought before the United Nations Security Council by Nicaragua, in April 1984 (as the Court had occasion to note in its Order of 10 May 1984, and in its Judgment on jurisdiction and admissibility of 26 November 1984, I.C.J. Reports 1984, p. 432, para. 91), and on a number of other occasions. The subject-matter of the dispute also forms part of wider issues affecting Central America at present being dealt with on a regional basis in the context of what is known as the “Contadora Process” ( I.C.J. Reports 1984, pp. 183–185, paras. 34–36; pp. 438–441, paras. 102–108).
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26. The position taken up by the Government of the United States of America in the present proceedings, since the delivery of the Court's Judgment of 26 November 1984, as defined in the letter from the United States Agent dated 18 January 1985, brings into operation Article 53 of the Statute of the Court , which provides that “Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim”. Nicaragua, has, in its Memorial and oral argument, invoked Article 53 and asked for a decision in favour of its claim. A special feature of the present case is that the United States only ceased to take part in the proceedings after a Judgment had been given adverse to its contentionson jurisdiction and admissibility. Furthermore, it stated when doing so “that the judgment of the Court was clearly and manifestly erroneous as to both fact and law”, that it “remains firmly of the view … that the Court is without jurisdiction to entertain the dispute” and that the United States “reserves its rights in respect of any decision by the Court regarding Nicaragua's claims”.
27. When a State named as party to proceedings before the Court decides not to appear in the proceedings, or not to defend its case, the Court usually expresses regret, because such a decision obviously has a negative impact on the sound administration of justice (cf. Fisheries Jurisdiction, I.C.J. Reports 1973, p. 7, para. 12; p. 54, para. 13; I.C.J. Reports 1974, p. 9, para. 17; p. 181, para. 18; Nuclear Tests, I.C.J. Reports 1974, p. 257, para. 15; p. 461, para. 15; Aegean Sea Continental Shelf, I.C.J. Reports 1978, p. 7, para. 15; United States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980, p. 18, para. 33). In the present case, the Court regrets even more deeply the decision of the respondent State not to participate in the present phase of the proceedings, because this decision was made after the United States had participated fully in the proceedings on the request for provisional measures, and the proceedings on jurisdiction and admissibility. Having taken part in the proceedings to argue that the Court lacked jurisdiction, the United States thereby acknowledged that the Court had the power to make a finding on its own jurisdiction to rule upon the merits. It is not possible to argue that the Court had jurisdiction only to declare that it lacked jurisdiction. In the normal course of events, for a party to appear before a court entails acceptance of the possibility of the court's finding against that party. Furthermore the Court is bound to emphasize that the non-participation of a party in the proceedings at any stage of the case cannot, in any circumstances, affect the validity of its judgment. Nor does such validity depend upon the acceptance of that judgment by one party. The fact that a State purports to “reserve its rights” in respect of a future decision of the Court, after the Court has determined that it has jurisdiction, is clearly of no effect on the validity of that decision. Under Article 36, paragraph 6, of its Statute , the Court has jurisdiction to determine any dispute as to its own jurisdiction, and its judgment on that matter, as on the merits, is final and binding on the parties under Articles 59 and 60 of the Statute (cf. Corfu Channel, Judgment of 15 December 1949, I.C.J. Reports 1949, p. 248).
28. When Article 53 of the Statute applies, the Court is bound to “satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim” of the party appearing is well founded in fact and law. In the present case, the Court has had the benefit of both Parties pleading before it at the earlier stages of the procedure, those concerning the request for the indication of provisional measures and to the questions of jurisdiction and admissibility. By its Judgment of 26 November 1984, the Court found, inter alia, that it had jurisdiction to entertain the case; it must however take steps to “satisfy itself” that the claims of the Applicant are “well founded in fact and law”. The question of the application of Article 53 has been dealt with by the Court in a number of previous cases, referred to above, and the Court does not therefore find it necessary to recapitulate the content of these decisions. The reasoning adopted to dispose of the basic problems arising was essentially the same, although the words used may have differed slightly from case to case. Certain points of principle may however be restated here. A State which decides not to appear must accept the consequences of its decision, the first of which is that the case will continue without its participation; the State which has chosen not to appear remains a party to the case, and is bound by the eventual judgment in accordance with Article 59 of the Statute . There is however no question of a judgment automatically in favour of the party appearing, since the Court is required, as mentioned above, to “satisfy itself” that that party's claim is well founded in fact and law.
29. The use of the term “satisfy itself” in the English text of the Statute (and in the French text the term “s'assurer”) implies that the Court must attain the same degree of certainty as in any other case that the claim of the party appearing is sound in law, and, so far as the nature of the case permits, that the facts on which it is based are supported by convincing evidence. For the purpose of deciding whether the claim is well founded in law, the principle jura novit curia signifies that the Court is not solely dependent on the argument of the parties before it with respect to the applicable law (cf. “Lotus”, P.C.I.J., Series A, No. 10, p. 31), so that the absence of one party has less impact. As the Court observed in the Fisheries Jurisdiction cases :
“The Court …, as an international judicial organ, is deemed to take judicial notice of international law, and is therefore required in a case falling under Article 53 of the Statute , as in any other case, to consider on its own initiative all rules of international law which may be relevant to the settlement of the dispute. It being the duty of the Court itself to ascertain and apply the relevant law in the given circumstances of the case, the burden of establishing or proving rules of international law cannot be imposed upon any of the parties, for the law lies within the judicial knowledge of the Court.” ( I.C.J. Reports 1974, p. 9, para. 17; p. 181, para. 18.)
Nevertheless the views of the parties to a case as to the law applicable to their dispute are very material, particularly, as will be explained below (paragraphs 184 and 185), when those views are concordant. In the present case, the burden laid upon the Court is therefore somewhat lightened by the fact that the United States participated in the earlier phases of the case, when it submitted certain arguments on the law which have a bearing also on the merits.
30. As to the facts of the case, in principle the Court is not bound to confine its consideration to the material formally submitted to it by the parties (cf. Brazilian Loans, P.C.I.J., Series A, No. 20/21, p. 124; Nuclear Tests, I.C.J. Reports 1974, pp. 263–264, paras. 31, 32). Nevertheless, the Court cannot by its own enquiries entirely make up for the absence of one of the Parties; that absence, in a case of this kind involving extensive questions of fact, must necessarily limit the extent to which the Court is informed of the facts. It would furthermore be an over-simplification to conclude that the only detrimental consequence of the absence of a party is the lack of opportunity to submit argument and evidence in support of its own case. Proceedings before the Court call for vigilance by all. The absent party also forfeits the opportunity to counter the factual allegations of its opponent. It is of course for the party appearing to prove the allegations it makes, yet as the Court has held :
“While Article 53 thus obliges the Court to consider the submissions of the Party which appears, it does not compel the Court to examine their accuracy in all their details; for this might in certain unopposed cases prove impossible in practice.” ( Corfu Channel, I.C.J. Reports 1949, p. 248.)
31. While these are the guiding principles, the experience of previous cases in which one party has decided not to appear shows that something more is involved. Though formally absent from the proceedings, the party in question frequently submits to the Court letters and documents, in ways and by means not contemplated by the Rules . The Court has thus to strike a balance. On the one hand, it is valuable for the Court to know the views of both parties in whatever form those views may have been expressed. Further, as the Court noted in 1974, where one party is not appearing “it is especially incumbent upon the Court to satisfy itself that it is in possession of all the available facts” ( Nuclear Tests, I.C.J. Reports 1974, p. 263, para. 31; p. 468, para. 32). On the other hand, the Court has to emphasize that the equality of the parties to the dispute must remain the basic principle for the Court. The intention of Article 53 was that in a case of non-appearance neither party should be placed at a disadvantage; therefore the party which declines to appear cannot be permitted to profit from its absence, since this would amount to placing the party appearing at a disadvantage. The provisions of the Statute and Rules of Court concerning the presentation of pleadings and evidence are designed to secure a proper administration of justice, and a fair and equal opportunity for each party to comment on its opponent's contentions. The treatment to be given by the Court to communications or material emanating from the absent party must be determined by the weight to be given to these different considerations, and is not susceptible of rigid definition in the form of a precise general rule. The vigilance which the Court can exercise when aided by the presence of both parties to the proceedings has a counterpart in the special care it has to devote to the proper administration of justice in a case in which only one party is present.
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32. Before proceeding further, the Court considers it appropriate to deal with a preliminary question, relating to what may be referred to as the justiciability of the dispute submitted to it by Nicaragua. In its Counter-Memorial on jurisdiction and admissibility the United States advanced a number of arguments why the claim should be treated as inadmissible : inter alia, again according to the United States, that a claim of unlawful use of armed force is a matter committed by the United Nations Charter and by practice to the exclusive competence of other organs, in particular the Security Council; and that an “ongoing armed conflict” involving the use of armed force contrary to the Charter is one with which a court cannot deal effectively without overstepping proper judicial bounds. These arguments were examined by the Court in its Judgment of 26 November 1984, and rejected. No further arguments of this nature have been submitted to the Court by the United States, which has not participated in the subsequent proceedings. However the examination of the merits which the Court has now carried out shows the existence of circumstances as a result of which, it might be argued, the dispute, or that part of it which relates to the questions of use of force and collective self-defence, would be non-justiciable.
33. In the first place, it has been suggested that the present dispute should be declared non-justiciable, because it does not fall into the category of “legal disputes” within the meaning of Article 36, paragraph 2, of the Statute . It is true that the jurisdiction of the Court under that provision is limited to “legal disputes” concerning any of the matters enumerated in the text. The question whether a given dispute between two States is or is not a “legal dispute” for the purposes of this provision may itself be a matter in dispute between those two States; and if so, that dispute is to be settled by the decision of the Court in accordance with paragraph 6 of Article 36. In the present case, however, this particular point does not appear to be in dispute between the Parties. The United States, during the proceedings devoted to questions of jurisdiction and admissibility, advanced a number of grounds why the Court should find that it had no jurisdiction, or that the claim was not admissible. It relied inter alia on proviso (c) to its own declaration of acceptance of jurisdiction under Article 36, paragraph 2, without ever advancing the more radical argument that the whole declaration was inapplicable because the dispute brought before the Court by Nicaragua was not a “legal dispute” within the meaning of that paragraph. As a matter of admissibility, the United States objected to the application of Article 36, paragraph 2, not because the dispute was not a “legal dispute”, but because of the express allocation of such matters as the subject of Nicaragua's claims to the political organs under the United Nations Charter , an argument rejected by the Court in its Judgment of 26 November 1984 ( I.C.J. Reports 1984, pp. 431–436). Similarly, while the United States contended that the nature of the judicial function precludes its application to the substance of Nicaragua's allegations in this case — an argument which the Court was again unable to uphold (ibid., pp. 436–438) —, it was careful to emphasize that this did not mean that it was arguing that international law was not relevant or controlling in a dispute of this kind. In short, the Court can see no indication whatsoever that, even in the view of the United States, the present dispute falls outside the category of “legal disputes” to which Article 36, paragraph 2, of the Statute applies. It must therefore proceed to examine the specific claims of Nicaragua in the light of the international law applicable.
34. There can be no doubt that the issues of the use of force and collective self-defence raised in the present proceedings are issues which are regulated both by customary international law and by treaties, in particular the United Nations Charter . Yet it is also suggested that, for another reason, the questions of this kind which arise in the present case are not justiciable, that they fall outside the limits of the kind of questions a court can deal with. It is suggested that the plea of collective self-defence which has been advanced by the United States as a justification for its actions with regard to Nicaragua requires the Court to determine whether the United States was legally justified in adjudging itself under a necessity, because its own security was in jeopardy, to use force in response to foreign intervention in El Salvador. Such a determination, it is said, involves a pronouncement on political and military matters, not a question of a kind that a court can usefully attempt to answer.
35. As will be further explained below, in the circumstances of the dispute now before the Court, what is in issue is the purported exercise by the United States of a right of collective self-defence in response to an armed attack on another State. The possible lawfulness of a response to the imminent threat of an armed attack which has not yet taken place has not been raised. The Court has therefore to determine first whether such attack has occurred, and if so whether the measures allegedly taken in self-defence were a legally appropriate reaction as a matter of collective self-defence. To resolve the first of these questions, the Court does not have to determine whether the United States, or the State which may have been under attack, was faced with a necessity of reacting. Nor does its examination, if it determines that an armed attack did occur, of issues relating to the collective character of the self-defence and the kind of reaction, necessarily involve it in any evaluation of military considerations. Accordingly the Court can at this stage confine itself to a finding that, in the circumstances of the present case, the issues raised of collective self-defence are issues which it has competence, and is equipped, to determine.
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“When an Application is filed at a time when the law in force between the parties entails the compulsory jurisdiction of the Court … the filing of the Application is merely the condition required to enable the clause of compulsory jurisdiction to produce its effects in respect of the claim advanced in the Application. Once this condition has been satisfied, the Court must deal with the claim; it has jurisdiction to deal with all its aspects, whether they relate to jurisdiction, to admissibility or to the merits. An extrinsic fact such as the subsequent lapse of the Declaration [or, as in the present case also, the Treaty containing a compromissory clause], by reason of the expiry of the period or by denunciation, cannot deprive the Court of the jurisdiction already established.” ( I.C.J. Reports 1953, p. 123.)
37. In the Judgment of 26 November 1984 the Court however also declared that one objection advanced by the United States, that concerning the exclusion from the United States acceptance of jurisdiction under the optional clause of “disputes arising under a multilateral treaty”, raised “a question concerning matters of substance relating to the merits of the case”, and concluded :
“That being so, and since the procedural technique formerly available of joinder of preliminary objections to the merits has been done away with since the 1972 revision of the Rules of Court , the Court has no choice but to avail itself of Article 79, paragraph 7, of the present Rules of Court , and declare that the objection based on the multilateral treaty reservation of the United States Declaration of Acceptance does not possess, in the circumstances of the case, an exclusively preliminary character, and that consequently it does not constitute an obstacle for the Court to entertain the proceedings instituted by Nicaragua under the Application of 9 April 1984.” ( I.C.J. Reports 1984, pp. 425–426, para. 76.)
38. The present case is the first in which the Court has had occasion to exercise the power first provided for in the 1972 Rules of Court to declare that a preliminary objection “does not possess, in the circumstances of the case, an exclusively preliminary character”. It may therefore be appropriate to take this opportunity to comment briefly on the rationale of this provision of the Rules, in the light of the problems to which the handling of preliminary objections has given rise. In exercising its rule-making power under Article 30 of the Statute , and generally in approaching the complex issues which may be raised by the determination of appropriate procedures for the settlement of disputes, the Court has kept in view an approach defined by the Permanent Court of International Justice. That Court found that it was at liberty to adopt
“the principle which it considers best calculated to ensure the administration of justice, most suited to procedure before an international tribunal and most in conformity with the fundamental principles of international law” ( Mavrommatis Palestine Concessions, P.C.I.J., Series A, No. 2, p. 16).
39. Under the Rules of Court dating back to 1936 (which on this point reflected still earlier practice), the Court had the power to join an objection to the merits “whenever the interests of the good administration of justice require it” ( Panevezys-Saldutiskis Railway, P.C.I.J., Series A/B, No. 75, p. 56), and in particular where the Court, if it were to decide on the objection, “would run the risk of adjudicating on questions which appertain to the merits of the case or of prejudging their solution” (ibid.). If this power was exercised, there was always a risk, namely that the Court would ultimately decide the case on the preliminary objection, after requiring the parties fully to plead the merits, — and this did in fact occur ( Barcelona Traction, Light and Power Company, Limited, Second Phase, I.C.J. Reports 1970, p. 3). The result was regarded in some quarters as an unnecessary prolongation of an expensive and time-consuming procedure.
40. Taking into account the wide range of issues which might be presented as preliminary objections, the question which the Court faced was whether to revise the Rules so as to exclude for the future the possibility of joinder to the merits, so that every objection would have to be resolved at the preliminary stage, or to seek a solution which would be more flexible. The solution of considering all preliminary objections immediately and rejecting all possibility of a joinder to the merits had many advocates and presented many advantages. In the Panevezys-Saldutiskis Railway case, the Permanent Court defined a preliminary objection as one
“submitted for the purpose of excluding an examination by the Court of the merits of the case, and being one upon which the Court can give a decision without in any way adjudicating upon the merits” ( P.C.I.J., Series A/B, No. 76, p. 22).
If this view is accepted then of course every preliminary objection should be dealt with immediately without touching the merits, or involving parties in argument of the merits of the case. To find out, for instance, whether there is a dispute between the parties or whether the Court has jurisdiction, does not normally require an analysis of the merits of the case. However that does not solve all questions of preliminary objections, which may, as experience has shown, be to some extent bound up with the merits. The final solution adopted in 1972, and maintained in the 1978 Rules , concerning preliminary objections is the following : the Court is to give its decision
“by which it shall either uphold the objection, reject it, or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character. If the Court rejects the objection, or declares that it does not possess an exclusively preliminary character, it shall fix time-limits for the further proceedings.” (Art. 79, para. 7.)
41. While the variety of issues raised by preliminary objections cannot possibly be foreseen, practice has shown that there are certain kinds of preliminary objections which can be disposed of by the Court at an early stage without examination of the merits. Above all, it is clear that a question of jurisdiction is one which requires decision at the preliminary stage of the proceedings. The new rule enumerates the objections contemplated as follows :
“Any objection by the respondent to the jurisdiction of the Court or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits …” (Art. 79, para. 1.)
It thus presents one clear advantage : that it qualifies certain objections as preliminary, making it quite clear that when they are exclusively of that character they will have to be decided upon immediately, but if they are not, especially when the character of the objections is not exclusively preliminary because they contain both preliminary aspects and other aspects relating to the merits, they will have to be dealt with at the stage of the merits. This approach also tends to discourage the unnecessary prolongation of proceedings at the jurisdictional stage.
42. The Court must thus now rule upon the consequences of the United States multilateral treaty reservation for the decision which it has to give. It will be recalled that the United States acceptance of jurisdiction deposited on 26 August 1946 contains a proviso excluding from its application :
“disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction”.
The 1984 Judgment included pronouncements on certain aspects of that reservation, but the Court then took the view that it was neither necessary nor possible, at the jurisdictional stage of the proceedings, for it to take a position on all the problems posed by the reservation.
43. It regarded this as not necessary because, in its Application, Nicaragua had not confined its claims to breaches of multilateral treaties but had also invoked a number of principles of “general and customary international law”, as well as the bilateral Treaty of Friendship, Commerce and Navigation of 1956. These principles remained binding as such, although they were also enshrined in treaty law provisions. Consequently, since the case had not been referred to the Court solely on the basis of multilateral treaties, it was not necessary for the Court, in order to consider the merits of Nicaragua's claim, to decide the scope of the reservation in question : “the claim … would not in any event be barred by the multilateral treaty reservation” ( I.C.J. Reports 1984, p. 425, para. 73). Moreover, it was not found possible for the reservation to be definitively dealt with at the jurisdictional stage of the proceedings. To make a judgment on the scope of the reservation would have meant giving a definitive interpretation of the term “affected” in that reservation. In its 1984 Judgment, the Court held that the term “affected” applied not to multilateral treaties, but to the parties to such treaties. The Court added that if those parties wished to protect their interests “in so far as these are not already protected by Article 59 of the Statute ”, they “would have the choice of either instituting proceedings or intervening” during the merits phase. But at all events, according to the Court, “the determination of the States ‘affected’ could not be left to the parties but must be made by the Court” ( I.C.J. Reports 1984, p. 425, para. 75). This process could however not be carried out at the stage of the proceedings in which the Court then found itself; “it is only when the general lines of the judgment to be given become clear”, the Court said, “that the States “affected’ could be identified” (ibid.). The Court thus concluded that this was “a question concerning matters of substance relating to the merits of the case” (ibid., para. 76). Since “the question of what States may be ‘affected’ by the decision on the merits is not in itself a jurisdictional problem”, the Court found that it
“has no choice but to avail itself of Article 79, paragraph 7, of the present Rules of Court , and declare that the objection based on the multilateral treaty reservation … does not possess, in the circumstances of the case, an exclusively preliminary character” (ibid., para. 76).
44. Now that the Court has considered the substance of the dispute, it becomes both possible and necessary for it to rule upon the points related to the United States reservation which were not settled in 1984. It is necessary because the Court's jurisdiction, as it has frequently recalled, is based on the consent of States, expressed in a variety of ways including declarations made under Article 36, paragraph 2, of the Statute . It is the declaration made by the United States under that Article which defines the categories of dispute for which the United States consents to the Court's jurisdiction. If therefore that declaration, because of a reservation contained in it, excludes from the disputes for which it accepts the Court's jurisdiction certain disputes arising under multilateral treaties, the Court must take that fact into account. The final decision on this point, which it was not possible to take at the jurisdictional stage, can and must be taken by the Court now when coming to its decision on the merits. If this were not so, the Court would not have decided whether or not the objection was well-founded, either at the jurisdictional stage, because it did not possess an exclusively preliminary character, or at the merits stage, because it did to some degree have such a character. It is now possible to resolve the question of the application of the reservation because, in the light of the Court's full examination of the facts of the case and the law, the implications of the argument of collective self-defence raised by the United States have become clear.
The United States has not in the present phase submitted to the Court any arguments whatever, either on the merits proper or on the question — not exclusively preliminary — of the multilateral treaty reservation. The Court cannot therefore consider that the United States has waived the reservation or no longer ascribes to it the scope which the United States attributed to it when last stating its position on this matter before the Court. This conclusion is the more decisive inasmuch as a respondent's non-participation requires the Court, as stated for example in the Fisheries Jurisdiction cases, to exercise “particular circumspection and … special care” ( I.C.J. Reports 1974, p. 10, para. 17, and p. 181, para. 18).
46. It has also been suggested that the United States may have waived the multilateral treaty reservation by its conduct of its case at the jurisdictional stage, or more generally by asserting collective self-defence in accordance with the United Nations Charter as justification for its activities vis-à-vis Nicaragua. There is no doubt that the United States, during its participation in the proceedings, insisted that the law applicable to the dispute was to be found in multilateral treaties, particularly the United Nations Charter and the Charter of the Organization of American States ; indeed, it went so far as to contend that such treaties supervene and subsume customary law on the subject. It is however one thing for a State to advance a contention that the law applicable to a given dispute derives from a specified source; it is quite another for that State to consent to the Court's having jurisdiction to entertain that dispute, and thus to apply that law to the dispute. The whole purpose of the United States argument as to the applicability of the United Nations and Organization of American States Charters was to convince the Court that the present dispute is one “arising under” those treaties, and hence one which is excluded from jurisdiction by the multilateral treaty reservation in the United States declaration of acceptance of jurisdiction. It is impossible to interpret the attitude of the United States as consenting to the Court's applying multilateral treaty law to resolve the dispute, when what the United States was arguing was that, for the very reason that the dispute “arises under” multilateral treaties, no consent to its determination by the Court has ever been given. The Court was fully aware, when it gave its 1984 Judgment, that the United States regarded the law of the two Charters as applicable to the dispute; it did not then regard that approach as a waiver, nor can it do so now. The Court is therefore bound to ascertain whether its jurisdiction is limited by virtue of the reservation in question.
47. In order to fulfil this obligation, the Court is now in a position to ascertain whether any third States, parties to multilateral treaties invoked by Nicaragua in support of its claims, would be “affected” by the Judgment, and are not parties to the proceedings leading up to it. The multilateral treaties discussed in this connection at the stage of the proceedings devoted to jurisdiction were four in number : the Charter of the United Nations , the Charter of the Organization of American States , the Montevideo Convention on the Rights and Duties of States of 26 December 1933, and the Havana Convention on the Rights and Duties of States in the Event of Civil Strife of 20 February 1928 (cf. I.C.J. Reports 1984, p. 422, para. 68). However, Nicaragua has not placed any particular reliance on the latter two treaties in the present proceedings; and in reply to a question by a Member of the Court on the point, the Nicaraguan Agent stated that while Nicaragua had not abandoned its claims under these two conventions, it believed “that the duties and obligations established by these conventions have been subsumed in the Organization of American States Charter”. The Court therefore considers that it will be sufficient to examine the position under the two Charters, leaving aside the possibility that the dispute might be regarded as “arising” under either or both of the other two conventions.
48. The argument of the Parties at the jurisdictional stage was addressed primarily to the impact of the multilateral treaty reservation on Nicaragua's claim that the United States has used force against it in breach of the United Nations Charter and of the Charter of the Organization of American States , and the Court will first examine this aspect of the matter. According to the views presented by the United States during the jurisdictional phase, the States which would be “affected” by the Court's judgment were El Salvador, Honduras and Costa Rica. Clearly, even if only one of these States is found to be “affected”, the United States reservation takes full effect. The Court will for convenience first take the case of El Salvador, as there are certain special features in the position of this State. It is primarily for the benefit of El Salvador, and to help it to respond to an alleged armed attack by Nicaragua, that the United States claims to be exercising a right of collective self-defence, which it regards as a justification of its own conduct towards Nicaragua. Moreover, El Salvador, confirming this assertion by the United States, told the Court in the Declaration of Intervention which it submitted on 15 August 1984 that it considered itself the victim of an armed attack by Nicaragua, and that it had asked the United States to exercise for its benefit the right of collective self-defence. Consequently, in order to rule upon Nicaragua's complaint against the United States, the Court would have to decide whether any justification for certain United States activities in and against Nicaragua can be found in the right of collective self-defence which may, it is alleged, be exercised in response to an armed attack by Nicaragua on El Salvador. Furthermore, reserving for the present the question of the content of the applicable customary international law, the right of self-defence is of course enshrined in the United Nations Charter, so that the dispute is, to this extent, a dispute “arising under a multilateral treaty” to which the United States, Nicaragua and El Salvador are parties.
Nicaragua argues that the provisions of the Organization of American States Charter prohibiting the use of force are “coterminous with the stipulations of the United Nations Charter”, and that therefore the violations by the United States of its obligations under the United Nations Charter also, and without more, constitute violations of Articles 20 and 21 of the Organization of American States Charter.
50. Both Article 51 of the United Nations Charter and Article 21 of the Organization of American States Charter refer to self-defence as an exception to the principle of the prohibition of the use of force. Unlike the United Nations Charter , the Organization of American States Charter does not use the expression “collective self-defence”, but refers to the case of “self-defence in accordance with existing treaties or in fulfillment thereof”, one such treaty being the United Nations Charter. Furthermore it is evident that if actions of the United States complied with all requirements of the United Nations Charter so as to constitute the exer- cise of the right of collective self-defence, it could not be argued that they could nevertheless constitute a violation of Article 21 of the Organization of American States Charter. It therefore follows that the situation of El Salvador with regard to the assertion by the United States of the right of collective self-defence is the same under the Organization of American States Charter as it is under the United Nations Charter.
51. In its Judgment of 26 November 1984, the Court recalled that Nicaragua's Application, according to that State, does not cast doubt on El Salvador's right to receive aid, military or otherwise, from the United States ( I.C.J. Reports 1984, p. 430, para. 86). However, this refers to the direct aid provided to the Government of El Salvador on its territory in order to help it combat the insurrection with which it is faced, not to any indirect aid which might be contributed to this combat by certain United States activities in and against Nicaragua. The Court has to consider the consequences of a rejection of the United States justification of its actions as the exercise of the right of collective self-defence for the sake of El Salvador, in accordance with the United Nations Charter . A judgment to that effect would declare contrary to treaty-law the indirect aid which the United States Government considers itself entitled to give the Government of El Salvador in the form of activities in and against Nicaragua. The Court would of course refrain from any finding on whether El Salvador could lawfully exercise the right of individual self-defence; but El Salvador would still be affected by the Court's decision on the lawfulness of resort by the United States to collective self-defence. If the Court found that no armed attack had occurred, then not only would action by the United States in purported exercise of the right of collective self-defence prove to be unjustified, but so also would any action which El Salvador might take or might have taken on the asserted ground of individual self-defence.
52. It could be argued that the Court, if it found that the situation does not permit the exercise by El Salvador of its right of self-defence, would not be “affecting” that right itself but the application of it by El Salvador in the circumstances of the present case. However, it should be recalled that the condition of the application of the multilateral treaty reservation is not that the “right” of a State be affected, but that the State itself be “affected” — a broader criterion. Furthermore whether the relations between Nicaragua and El Salvador can be qualified as relations between an attacker State and a victim State which is exercising its right of self-defence, would appear to be a question in dispute between those two States. But El Salvador has not submitted this dispute to the Court; it therefore has a right to have the Court refrain from ruling upon a dispute which it has not submitted to it. Thus, the decision of the Court in this case would affect this right of El Salvador and consequently this State itself.
53. Nor is it only in the case of a decision of the Court rejecting the United States claim to be acting in self-defence that El Salvador would be “affected” by the decision. The multilateral treaty reservation does not require, as a condition for the exclusion of a dispute from the jurisdiction of the Court, that a State party to the relevant treaty be “adversely” or “prejudicially” affected by the decision, even though this is clearly the case primarily in view. In other situations in which the position of a State not before the Court is under consideration (cf. Monetary Gold Removed from Rome in 1943, I.C.J. Reports 1954, p. 32; Continental Shelf ( Libyan Arab Jamahiriya/Malta ), Application to Intervene, Judgment, I.C.J. Reports 1984, p. 20, para. 31) it is clearly impossible to argue that that State may be differently treated if the Court's decision will not necessarily be adverse to the interests of the absent State, but could be favourable to those interests. The multilateral treaty reservation bars any decision that would “affect” a third State party to the relevant treaty. Here also, it is not necessary to determine whether the decision will “affect” that State unfavourably or otherwise; the condition of the reservation is met if the State will necessarily be “affected”, in one way or the other.
54. There may of course be circumstances in which the Court, having examined the merits of the case, concludes that no third State could be “affected” by the decision : for example, as pointed out in the 1984 Judgment, if the relevant claim is rejected on the facts ( I.C.J. Reports 1984, p. 425, para. 75). If the Court were to conclude in the present case, for example, that the evidence was not sufficient for a finding that the United States had used force against Nicaragua, the question of justification on the grounds of self-defence would not arise, and there would be no possibility of El Salvador being “affected” by the decision. In 1984 the Court could not, on the material available to it, exclude the possibility of such a finding being reached after fuller study of the case, and could not therefore conclude at once that El Salvador would necessarily be “affected” by the eventual decision. It was thus this possibility which prevented the objection based on the reservation from having an exclusively preliminary character.
“No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic, and cultural elements.”
The potential link, recognized by this text, between intervention and the use of armed force, is actual in the present case, where the same activities attributed to the United States are complained of under both counts, and the response of the United States is the same to each complaint — that it has acted in self-defence. The Court has to consider what would be the impact, for the States identified by the United States as likely to be “affected”, of a decision whereby the Court would decline to rule on the alleged violation of Article 21 of the Organization of American States Charter , concerning the use of force, but passed judgment on the alleged violation of Article 18. The Court will not here enter into the question whether self-defence may justify an intervention involving armed force, so that it has to be treated as not constituting a breach either of the principle of non-use of force or of that of non-intervention. At the same time, it concludes that in the particular circumstances of this case, it is impossible to say that a ruling on the alleged breach by the United States of Article 18 of the Organization of American States Charter would not “affect” El Salvador.
56. The Court therefore finds that El Salvador, a party to the United Nations Charter and to the Charter of the Organization of American States , is a State which would be “affected” by the decision which the Court would have to take on the claims by Nicaragua that the United States has violated Article 2, paragraph 4, of the United Nations Charter and Articles 18, 20 and 21 of the Organization of American States Charter . Accordingly, the Court, which under Article 53 of the Statute has to be “satisfied” that it has jurisdiction to decide each of the claims it is asked to uphold, concludes that the jurisdiction conferred upon it by the United States declaration of acceptance of jurisdiction under Article 36, paragraph 2, of the Statute does not permit the Court to entertain these claims. It should however be recalled that, as will be explained further below, the effect of the reservation in question is confined to barring the applicability of the United Nations 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.
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57. One of the Court's chief difficulties in the present case has been the determination of the facts relevant to the dispute. First of all, there is marked disagreement between the Parties not only on the interpretation of the facts, but even on the existence or nature of at least some of them. Secondly, the respondent State has not appeared during the present merits phase of the proceedings, thus depriving the Court of the benefit of its complete and fully argued statement regarding the facts. The Court's task was therefore necessarily more difficult, and it has had to pay particular heed, as said above, to the proper application of Article 53 of its Statute . Thirdly, there is the secrecy in which some of the conduct attributed to one or other of the Parties has been carried on. This makes it more difficult for the Court not only to decide on the imputability of the facts, but also to establish what are the facts. Sometimes there is no question, in the sense that it does not appear to be disputed, that an act was done, but there are conflicting reports, or a lack of evidence, as to who did it. The problem is then not the legal process of imputing the act to a particular State for the purpose of establishing responsibility, but the prior process of tracing material proof of the identity of the perpetrator. The occurrence of the act itself may however have been shrouded in secrecy. In the latter case, the Court has had to endeavour first to establish what actually happened, before entering on the next stage of considering whether the act (if proven) was imputable to the State to which it has been attributed.
58. A further aspect of this case is that the conflict to which it relates has continued and is continuing. It has therefore been necessary for the Court to decide, for the purpose of its definition of the factual situation, what period of time, beginning from the genesis of the dispute, should be taken into consideration. The Court holds that general principles as to the judicial process require that the facts on which its Judgment is based should be those occurring up to the close of the oral proceedings on the merits of the case. While the Court is of course very well aware, from reports in the international press, of the developments in Central America since that date, it cannot, as explained below (paragraphs 62 and 63), treat such reports as evidence, nor has it had the benefit of the comments or argument of either of the Parties on such reports. As the Court recalled in the Nuclear Tests cases, where facts, apparently of such a nature as materially to affect its decision, came to its attention after the close of the hearings :
“It would no doubt have been possible for the Court, had it considered that the interests of justice so required, to have afforded the Parties the opportunity, e.g., by reopening the oral proceedings, of addressing to the Court comments on the statements made since the close of those proceedings.” ( I.C.J. Reports 1974, p. 264, para. 33; p. 468, para. 34.)
Neither Party has requested such action by the Court; and since the reports to which reference has been made do not suggest any profound modification of the situation of which the Court is seised, but rather its intensification in certain respects, the Court has seen no need to reopen the hearings.
59. The Court is bound by the relevant provisions of its Statute and its Rules relating to the system of evidence, provisions devised to guarantee the sound administration of justice, while respecting the equality of the parties. The presentation of evidence is governed by specific rules relating to, for instance, the observance of time-limits, the communication of evidence to the other party, the submission of observations on it by that party, and the various forms of challenge by each party of the other's evidence. The absence of one of the parties restricts this procedure to some extent. The Court is careful, even where both parties appear, to give each of them the same opportunities and chances to produce their evidence; when the situation is complicated by the non-appearance of one of them, then a fortiori the Court regards it as essential to guarantee as perfect equality as possible between the parties. Article 53 of the Statute therefore obliges the Court to employ whatever means and resources may enable it to satisfy itself whether the submissions of the applicant State are well-founded in fact and law, and simultaneously to safeguard the essential principles of the sound administration of justice.
60. The Court should now indicate how these requirements have to be met in this case so that it can properly fulfil its task under that Article of its Statute . In so doing, it is not unaware that its role is not a passive one; and that, within the limits of its Statute and Rules , it has freedom in estimating the value of the various elements of evidence, though it is clear that general principles of judicial procedure necessarily govern the determination of what can be regarded as proved.
61. In this context, the Court has the power, under Article 50 of its Statute , to entrust “any individual, body, bureau, commission or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion”, and such a body could be a group of judges selected from among those sitting in the case. In the present case, however, the Court felt it was unlikely that an enquiry of this kind would be practical or desirable, particularly since such a body, if it was properly to perform its task, might have found it necessary to go not only to the applicant State, but also to several other neighbouring countries, and even to the respondent State, which had refused to appear before the Court.
62. At all events, in the present case the Court has before it documentary material of various kinds from various sources. A large number of documents has been supplied in the form of reports in press articles, and some also in the form of extracts from books. Whether these were produced by the applicant State, or by the absent Party before it ceased to appear in the proceedings, the Court has been careful to treat them with great caution; even if they seem to meet high standards of objectivity, the Court regards them not as evidence capable of proving facts, but as material which can nevertheless contribute, in some circumstances, to corroborating the existence of a fact, i.e., as illustrative material additional to other sources of evidence.
63. However, although it is perfectly proper that press information should not be treated in itself as evidence for judicial purposes, public knowledge of a fact may nevertheless be established by means of these sources of information, and the Court can attach a certain amount of weight to such public knowledge. In the case of United States Diplomatic and Consular Staff in Tehran , the Court referred to facts which “are, for the most part, matters of public knowledge which have received extensive coverage in the world press and in radio and television broadcasts from Iran and other countries” ( I.C.J. Reports 1980, p. 9, para. 12). On the basis of information, including press and broadcast material, which was “wholly consistent and concordant as to the main facts and circumstances of the case”, the Court was able to declare that it was satisfied that the allegations of fact were well-founded (ibid., p. 10, para. 13). The Court has however to show particular caution in this area. Widespread reports of a fact may prove on closer examination to derive from a single source, and such reports, however numerous, will in such case have no greater value as evidence than the original source. It is with this important reservation that the newspaper reports supplied to the Court should be examined in order to assess the facts of the case, and in particular to ascertain whether such facts were matters of public knowledge.
64. The material before the Court also includes statements by representatives of States, sometimes at the highest political level. Some of these statements were made before official organs of the State or of an international or regional organization, and appear in the official records of those bodies. Others, made during press conferences or interviews, were reported by the local or international press. The Court takes the view that statements of this kind, emanating from high-ranking official political figures, sometimes indeed of the highest rank, are of particular probative value when they acknowledge facts or conduct unfavourable to the State represented by the person who made them. They may then be construed as a form of admission.
65. However, it is natural also that the Court should treat such statements with caution, whether the official statement was made by an authority of the Respondent or of the Applicant. Neither Article 53 of the Statute , nor any other ground, could justify a selective approach, which would have undermined the consistency of the Court's methods and its elementary duty to ensure equality between the Parties. The Court must take account of the manner in which the statements were made public; evidently, it cannot treat them as having the same value irrespective of whether the text is to be found in an official national or international publication, or in a book or newspaper. It must also take note whether the text of the official statement in question appeared in the language used by the author or on the basis of a translation (cf. I.C.J. Reports 1980, p. 10, para. 13). It may also be relevant whether or not such a statement was brought to the Court's knowledge by official communications filed in conformity with the relevant requirements of the Statute and Rules of Court . Furthermore, the Court has inevitably had sometimes to interpret the statements, to ascertain precisely to what degree they constituted acknowledgments of a fact.
66. At the hearings in this case, the applicant State called five witnesses to give oral evidence, and the evidence of a further witness was offered in the form of an affidavit “subscribed and sworn” in the United States, District of Columbia, according to the formal requirements in force in that place. A similar affidavit, sworn by the United States Secretary of State, was annexed to the Counter-Memorial of the United States on the questions of jurisdiction and admissibility. One of the witnesses presented by the applicant State was a national of the respondent State, formerly in the employ of a government agency the activity of which is of a confidential kind, and his testimony was kept strictly within certain limits; the witness was evidently concerned not to contravene the legislation of his country of origin. In addition, annexed to the Nicaraguan Memorial on the merits were two declarations, entitled “affidavits”, in the English language, by which the authors “certify and declare” certain facts, each with a notarial certificate in Spanish appended, whereby a Nicaraguan notary authenticates the signature to the document. Similar declarations had been filed by Nicaragua along with its earlier request for the indication of provisional measures.
67. As regards the evidence of witnesses, the failure of the respondent State to appear in the merits phase of these proceedings has resulted in two particular disadvantages. First, the absence of the United States meant that the evidence of the witnesses presented by the Applicant at the hearings was not tested by cross-examination; however, those witnesses were subjected to extensive questioning from the bench. Secondly, the Respondent did not itself present any witnesses of its own. This latter disadvantage merely represents one aspect, and a relatively secondary one, of the more general disadvantage caused by the non-appearance of the Respondent.
69. The Court has had to attach considerable significance to the declarations made by the responsible authorities of the States concerned in view of the difficulties which it has had to face in determining the facts. Nevertheless, the Court was still bound to subject these declarations to the necessary critical scrutiny. A distinctive feature of the present case was that two of the witnesses called to give oral evidence on behalf of Nicaragua were members of the Nicaraguan Government, the Vice-Minister of the Interior (Commander Carrión), and the Minister of Finance (Mr. Huper). The Vice-Minister of the Interior was also the author of one of the two declarations annexed to the Nicaraguan Memorial on the merits, the author of the other being the Minister for Foreign Affairs. On the United States side, an affidavit was filed sworn by the Secretary of State. These declarations at ministerial level on each side were irreconcilable as to their statement of certain facts. In the view of the Court, this evidence is of such a nature as to be placed in a special category. In the general practice of courts, two forms of testimony which are regarded as prima facie of superior credibility are, first the evidence of a disinterested witness — one who is not a party to the proceedings and stands to gain or lose nothing from its outcome — and secondly so much of the evidence of a party as is against its own interest. Indeed the latter approach was invoked in this case by counsel for Nicaragua.
70. A member of the government of a State engaged, not merely in international litigation, but in litigation relating to armed conflict, will probably tend to identify himself with the interests of his country, and to be anxious when giving evidence to say nothing which could prove adverse to its cause. The Court thus considers that it can certainly retain such parts of the evidence given by Ministers, orally or in writing, as may be regarded as contrary to the interests or contentions of the State to which the witness owes allegiance, or as relating to matters not controverted. For the rest, while in no way impugning the honour or veracity of the Ministers of either Party who have given evidence, the Court considers that the special circumstances of this case require it to treat such evidence with great reserve. The Court believes this approach to be the more justified in view of the need to respect the equality of the parties in a case where one of them is no longer appearing; but this should not be taken to mean that the non-appearing party enjoys a priori a presumption in its favour.
71. However, before outlining the limits of the probative effect of declarations by the authorities of the States concerned, the Court would recall that such declarations may involve legal effects, some of which it has defined in previous decisions ( Nuclear Tests , United States Diplomatic and Consular Staff in Tehran cases). Among the legal effects which such declarations may have is that they may be regarded as evidence of the truth of facts, as evidence that such facts are attributable to the States the authorities of which are the authors of these declarations and, to a lesser degree, as evidence for the legal qualification of these facts. The Court is here concerned with the significance of the official declarations as evidence of specific facts and of their imputability to the States in question.
72. The declarations to which the Court considers it may refer are not limited to those made in the pleadings and the oral argument addressed to it in the successive stages of the case, nor are they limited to statements made by the Parties. Clearly the Court is entitled to refer, not only to the Nicaraguan pleadings and oral argument, but to the pleadings and oral argument submitted to it by the United States before it withdrew from participation in the proceedings, and to the Declaration of Intervention of El Salvador in the proceedings. It is equally clear that the Court may take account of public declarations to which either Party has specifically drawn attention, and the text, or a report, of which has been filed as documentary evidence. But the Court considers that, in its quest for the truth, it may also take note of statements of representatives of the Parties (or of other States) in international organizations, as well as the resolutions adopted or discussed by such organizations, in so far as factually relevant, whether or not such material has been drawn to its attention by a Party.
73. In addition, the Court is aware of the existence and the contents of a publication of the United States State Department entitled “Revolution Beyond Our Borders”, Sandinista Intervention in Central America intended to justify the policy of the United States towards Nicaragua. This publication was issued in September 1985, and on 6 November 1985 was circulated as an official document of the United Nations General Assembly and the Security Council, at the request of the United States (A/40/858; S/17612); Nicaragua had circulated in reply a letter to the Secretary-General, annexing inter alia an extract from its Memorial on the Merits and an extract from the verbatim records of the hearings in the case (A/40/907; S/17639). The United States publication was not submitted to the Court in any formal manner contemplated by the Statute and Rules of Court , though on 13 September 1985 the United States Information Office in The Hague sent copies to an official of the Registry to be made available to anyone at the Court interested in the subject. The representatives of Nicaragua before the Court during the hearings were aware of the existence of this publication, since it was referred to in a question put to the Agent of Nicaragua by a Member of the Court. They did not attempt to refute before the Court what was said in that publication, pointing out that materials of this kind “do not constitute evidence in this case”, and going on to suggest that it “cannot properly be considered by the Court”. The Court however considers that, in view of the special circumstances of this case, it may, within limits, make use of information in such a publication.
74. In connection with the question of proof of facts, the Court notes that Nicaragua has relied on an alleged implied admission by the United States. It has drawn attention to the invocation of collective self-defence by the United States, and contended that “the use of the justification of collective self-defence constitutes a major admission of direct and substantial United States involvement in the military and paramilitary operations” directed against Nicaragua. The Court would observe that the normal purpose of an invocation of self-defence is to justify conduct which would otherwise be wrongful. If advanced as a justification in itself, not coupled with a denial of the conduct alleged, it may well imply both an admission of that conduct, and of the wrongfulness of that conduct in the absence of the justification of self-defence. This reasoning would do away with any difficulty in establishing the facts, which would have been the subject of an implicit overall admission by the United States, simply through its attempt to justify them by the right of self-defence. However, in the present case the United States has not listed the facts or described the measures which it claims to have taken in self-defence; nor has it taken the stand that it is responsible for all the activities of which Nicaragua accuses it but such activities were justified by the right of self-defence. Since it has not done this, the United States cannot be taken to have admitted all the activities, or any of them; the recourse to the right of self-defence thus does not make possible a firm and complete definition of admitted facts. The Court thus cannot consider reliance on self-defence to be an implicit general admission on the part of the United States; but it is certainly a recognition as to the imputability of some of the activities complained of.
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75. Before examining the complaint of Nicaragua against the United States that the United States is responsible for the military capacity, if not the very existence, of the contra forces, the Court will first deal with events which, in the submission of Nicaragua, involve the responsibility of the United States in a more direct manner. These are the mining of Nicaraguan ports or waters in early 1984; and certain attacks on, in particular, Nicaraguan port and oil installations in late 1983 and early 1984. It is the contention of Nicaragua that these were not acts committed by members of the contras with the assistance and support of United States agencies. Those directly concerned in the acts were, it is claimed, not Nicaraguan nationals or other members of the FDN or ARDE, but either United States military personnel or persons of the nationality of unidentified Latin American countries, paid by, and acting on the direct instructions of. United States military or intelligence personnel. (These persons were apparently referred to in the vocabulary of the CIA as “UCLAs” — “Unilaterally Controlled Latino Assets”, and this acronym will be used, purely for convenience, in what follows.) Furthermore, Nicaragua contends that such United States personnel, while they may have refrained from themselves entering Nicaraguan territory or recognized territorial waters, directed the operations and gave very close logistic, intelligence and practical support. A further complaint by Nicaragua which does not relate to contra activity is that of overflights of Nicaraguan territory and territorial waters by United States military aircraft. These complaints will now be examined.
76. On 25 February 1984, two Nicaraguan fishing vessels struck mines in the Nicaraguan port of El Bluff, on the Atlantic coast. On 1 March 1984 the Dutch dredger Geoponte, and on 7 March 1984 the Panamanian vessel Los Caraibes were damaged by mines at Corinto. On 20 March 1984 the Soviet tanker Lugansk was damaged by a mine in Puerto Sandino. Further vessels were damaged or destroyed by mines in Corinto on 28, 29 and 30 March. The period for which the mines effectively closed or restricted access to the ports was some two months. Nicaragua claims that a total of 12 vessels or fishing boats were destroyed or damaged by mines, that 14 people were wounded and two people killed. The exact position of the mines — whether they were in Nicaraguan internal waters or in its territorial sea — has not been made clear to the Court : some reports indicate that those at Corinto were not in the docks but in the access channel, or in the bay where ships wait for a berth. Nor is there any direct evidence of the size and nature of the mines; the witness Commander Carrión explained that the Nicaraguan authorities were never able to capture an unexploded mine. According to press reports, the mines were laid on the sea-bed and triggered either by contact, acoustically, magnetically or by water pressure; they were said to be small, causing a noisy explosion, but unlikely to sink a ship. Other reports mention mines of varying size, some up to 300 pounds of explosives. Press reports quote United States administration officials as saying that mines were constructed by the CIA with the help of a United States Navy Laboratory.
77. According to a report in Lloyds List and Shipping Gazette , responsibility for mining was claimed on 2 March 1984 by the ARDE. On the other hand, according to an affidavit by Mr. Edgar Chamorro, a former political leader of the FDN, he was instructed by a CIA official to issue a press release over the clandestine radio on 5 January 1984, claiming that the FDN had mined several Nicaraguan harbours. He also stated that the FDN in fact played no role in the mining of the harbours, but did not state who was responsible. According to a press report, the contras announced on 8 January 1984, that they were mining all Nicaraguan ports, and warning all ships to stay away from them; but according to the same report, nobody paid much attention to this announcement. It does not appear that the United States Government itself issued any warning or notification to other States of the existence and location of the mines.
78. It was announced in the United States Senate on 10 April 1984 that the Director of the CIA had informed the Senate Select Committee on Intelligence that President Reagan had approved a CIA plan for the mining of Nicaraguan ports; press reports state that the plan was approved in December 1983, but according to a member of that Committee, such approval was given in February 1984. On 10 April 1984, the United States Senate voted that
“it is the sense of the Congress that no funds … shall be obligated or expended for the purpose of planning, directing, executing or supporting the mining of the ports or territorial waters of Nicaragua”.
During a televised interview on 28 May 1984, of which the official transcript has been produced by Nicaragua, President Reagan, when questioned about the mining of ports, said “Those were homemade mines … that couldn't sink a ship. They were planted in those harbors … by the Nicaraguan rebels.” According to press reports quoting sources in the United States administration, the laying of mines was effected from speed boats, not by members of the ARDE or FDN, but by the “UCLAs”. The mother ships used for the operation were operated, it is said, by United States nationals; they are reported to have remained outside the 12-mile limit of Nicaraguan territorial waters recognized by the United States. Other less sophisticated mines may, it appears, have been laid in ports and in Lake Nicaragua by contras operating separately; a Nicaraguan military official was quoted in the press as stating that “most” of the mining activity was directed by the United States.
79. According to Nicaragua, vessels of Dutch, Panamanian, Soviet, Liberian and Japanese registry, and one (Homin) of unidentified registry, were damaged by mines, though the damage to the Homin has also been attributed by Nicaragua rather to gunfire from minelaying vessels. Other sources mention damage to a British or a Cuban vessel. No direct evidence is available to the Court of any diplomatic protests by a State whose vessel had been damaged; according to press reports, the Soviet Government accused the United States of being responsible for the mining, and the British Government indicated to the United States that it deeply deplored the mining, as a matter of principle. Nicaragua has also submitted evidence to show that the mining of the ports caused a rise in marine insurance rates for cargo to and from Nicaragua, and that some shipping companies stopped sending vessels to Nicaraguan ports.
80. On this basis, the Court finds it established that, on a date in late 1983 or early 1984, the President of the United States authorized a United States government agency to lay mines in Nicaraguan ports; that in early 1984 mines were laid in or close to the ports of El Bluff, Corinto and Puerto Sandino, either in Nicaraguan internal waters or in its territorial sea or both, by persons in the pay and acting on the instructions of that agency, under the supervision and with the logistic support of United States agents; that neither before the laying of the mines, nor subsequently, did the United States Government issue any public and official warning to international shipping of the existence and location of the mines; and that personal and material injury was caused by the explosion of the mines, which also created risks causing a rise in marine insurance rates.
81. The operations which Nicaragua attributes to the direct action of United States personnel or “UCLAs”, in addition to the mining of ports, are apparently the following :
(i) 8 September 1983 : an attack was made on Sandino international airport in Managua by a Cessna aircraft, which was shot down;
(ii) 13 September 1983 : an underwater oil pipeline and part of the oil terminal at Puerto Sandino were blown up;
(iii) 2 October 1983 : an attack was made on oil storage facilities at Benjamin Zeledon on the Atlantic coast, causing the loss of a large quantity of fuel;
(iv) 10 October 1983 : an attack was made by air and sea on the port of Corinto, involving the destruction of five oil storage tanks, the loss of millions of gallons of fuel, and the evacuation of large numbers of the local population;
(v) 14 October 1983 : the underwater oil pipeline at Puerto Sandino was again blown up;
(vi) 4/5 January 1984 : an attack was made by speedboats and helicopters using rockets against the Potosi Naval Base;
(vii) 24/25 February 1984 : an incident at El Bluff listed under this date appears to be the mine explosion already mentioned in paragraph 76;
(viii) 7 March 1984 : an attack was made on oil and storage facility at San Juan del Sur by speedboats and helicopters;
(ix) 28/30 March 1984 : clashes occurred at Puerto Sandino between speedboats, in the course of minelaying operations, and Nicaraguan patrol boats; intervention by a helicopter in support of the speedboats;
(x) 9 April 1984 : a helicopter allegedly launched from a mother ship in international waters provided fire support for an ARDE attack on San Juan del Norte.
82. At the time these incidents occurred, they were considered to be acts of the contras, with no greater degree of United States support than the many other military and paramilitary activities of the contras. The declaration of Commander Carrión lists the incidents numbered (i), (ii), (iv) and (vi) above in the catalogue of activities of “mercenaries”, without distinguishing these items from the rest; it does not mention items (iii), (v) and (vii) to (x). According to a report in the New York Times (13 October 1983), the Nicaraguan Government, after the attack on Corinto (item (iv) above) protested to the United States Ambassador in Managua at the aid given by the United States to the contras, and addressed a diplomatic note in the same sense to the United States Secretary of State. The Nicaraguan Memorial does not mention such a protest, and the Court has not been supplied with the text of any such note.
83. On 19 October 1983, thus nine days after the attack on Corinto, a question was put to President Reagan at a press conference. Nicaragua has supplied the Court with the official transcript which, so far as relevant, reads as follows :
“Question : Mr. President, regarding the recent rebel attacks on a Nicaraguan oil depot, is it proper for the CIA to be involved in planning such attacks and supplying equipment for air raids? And do the American people have a right to be informed about any CIA role?
The President : I think covert actions have been a part of government and a part of government's responsibilities for as long as there has been a government. I'm not going to comment on what, if any, connection such activities might have had with what has been going on, or with some of the specific operations down there.
But I do believe in the right of a country when it believes that its interests are best served to practice covert activity and then, while your people may have a right to know, you can't let your people know without letting the wrong people know, those that are in opposition to what you're doing.”
Nicaragua presents this as one of a series of admissions “that the United States was habitually and systematically giving aid to mercenaries carrying out military operations against the Government of Nicaragua”. In the view of the Court, the President's refusal to comment on the connection between covert activities and “what has been going on, or with some of the specific operations down there” can, in its context, be treated as an admission that the United States had something to do with the Corinto attack, but not necessarily that United States personnel were directly involved.
84. The evidence available to the Court to show that the attacks listed above occurred, and that they were the work of United States personnel or “UCLAs”, other than press reports, is as follows. In his declaration, Commander Carrion lists items (i), (ii), (iv) and (vi), and in his oral evidence before the Court he mentioned items (ii) and (iv). Items (vi) to (x) were listed in what was said to be a classified CIA internal memorandum or report, excerpts from which were published in the Wall Street Journal on 6 March 1985; according to the newspaper, “intelligence and congressional officials” had confirmed the authenticity of the document. So far as the Court is aware, no denial of the report was made by the United States administration. The affidavit of the former FDN leader Edgar Chamorro states that items (ii), (iv) and (vi) were the work of UCLAs despatched from a CIA “mother ship”, though the FDN was told by the CIA to claim responsibility. It is not however clear what the source of Mr. Chamorro's information was; since there is no suggestion that he participated in the operation (he states that the FDN “had nothing whatsoever to do” with it), his evidence is probably strictly hearsay, and at the date of his affidavit, the same allegations had been published in the press. Although he did not leave the FDN until the end of 1984, he makes no mention of the attacks listed above of January to April 1984.
85. The Court considers that it should eliminate from further consideration under this heading the following items :
— the attack of 8 September 1983 on Managua airport (item (i)) : this was claimed by the ARDE; a press report is to the effect that the ARDE purchased the aircraft from the CIA, but there is no evidence of CIA planning, or the involvement of any United States personnel or UCLAs;
— the attack on Benjamin Zeledon on 2 October 1983 (item (iii)) : there is no evidence of the involvement of United States personnel or UCLAs;
— the incident of 24–25 February 1984 (item vii), already dealt with under the heading of the mining of ports.
86. On the other hand the Court finds the remaining incidents listed in paragraph 81 to be established. The general pattern followed by these attacks appears to the Court, on the basis of that evidence and of press reports quoting United States administration sources, to have been as follows. A “mother ship” was supplied (apparently leased) by the CIA; whether it was of United States registry does not appear. Speedboats, guns and ammunition were supplied by the United States administration, and the actual attacks were carried out by “UCLAs”. Helicopters piloted by Nicaraguans and others piloted by United States nationals were also involved on some occasions. According to one report the pilots were United States civilians under contract to the CIA. Although it is not proved that any United States military personnel took a direct part in the operations, agents of the United States participated in the planning, direction, support and execution of the operations. The execution was the task rather of the “UCLAs”, while United States nationals participated in the planning, direction and support. The imputability to the United States of these attacks appears therefore to the Court to be established.
87. Nicaragua complains of infringement of its airspace by United States military aircraft. Apart from a minor incident on 11 January 1984 involving a helicopter, as to which, according to a press report, it was conceded by the United States that it was possible that the aircraft violated Nicaraguan airspace, this claim refers to overflights by aircraft at high altitude for intelligence reconnaissance purposes, or aircraft for supply purposes to the contras in the field, and aircraft producing “sonic booms”. The Nicaraguan Memorial also mentions low-level reconnaissance flights by aircraft piloted by United States personnel in 1983, but the press report cited affords no evidence that these flights, along the Honduran border, involved any invasion of airspace. In addition Nicaragua has made a particular complaint of the activities of a United States SR-71 plane between 7 and 11 November 1984, which is said to have flown low over several Nicaraguan cities “producing loud sonic booms and shattering glass windows, to exert psychological pressure on the Nicaraguan Government and population”.
88. The evidence available of these overflights is as follows. During the proceedings on jurisdiction and admissibility, the United States Government deposited with the Court a “Background Paper” published in July 1984, incorporating eight aerial photographs of ports, camps, an airfield, etc., in Nicaragua, said to have been taken between November 1981 and June 1984. According to a press report, Nicaragua made a diplomatic protest to the United States in March 1982 regarding overflights, but the text of such protest has not been produced. In the course of a Security Council debate on 25 March 1982, the United States representative said that
“It is true that once we became aware of Nicaragua's intentions and actions, the United States Government undertook overflights to safeguard our own security and that of other States which are threatened by the Sandinista Government”,
“These overflights, conducted by unarmed, high-flying planes, for the express and sole purpose of verifying reports of Nicaraguan intervention, are no threat to regional peace and stability; quite the contrary.” (S/PV.2335, p. 48, emphasis added.)
The use of the present tense may be taken to imply that the overflights were continuing at the time of the debate. Press reports of 12 November 1984 confirm the occurrence of sonic booms at that period, and report the statement of Nicaraguan Defence Ministry officials that the plane responsible was a United States SR-71.
89. The claim that sonic booms were caused by United States aircraft in November 1984 rests on assertions by Nicaraguan Defence Ministry officials, reported in the United States press; the Court is not however aware of any specific denial of these flights by the United States Government. On 9 November 1984 the representative of Nicaragua in the Security Council asserted that United States SR-71 aircraft violated Nicaraguan airspace on 7 and 9 November 1984; he did not specifically mention sonic booms in this respect (though he did refer to an earlier flight by a similar aircraft, on 31 October 1984, as having been “accompanied by loud explosions” (S/PV. 2562, pp. 8–10)). The United States representative in the Security Council did not comment on the specific incidents complained of by Nicaragua but simply said that “the allegation which is being advanced against the United States” was “without foundation” (ibid., p. 28).
90. As to low-level reconnaissance flights by United States aircraft, or flights to supply the contras in the field, Nicaragua does not appear to have offered any more specific evidence of these; and it has supplied evidence that United States agencies made a number of planes available to the contras themselves for use for supply and low-level reconnaissance purposes. According to Commander Carrión, these planes were supplied after late 1982, and prior to the contras receiving the aircraft, they had to return at frequent intervals to their basecamps for supplies, from which it may be inferred that there were at that time no systematic overflights by United States planes for supply purposes.
91. The Court concludes that, as regards the high-altitude overflights for reconnaissance purposes, the statement admitting them made in the Security Council is limited to the period up to March 1982. However, not only is it entitled to take into account that the interest of the United States in “verifying reports of Nicaraguan intervention” — the justification offered in the Security Council for these flights — has not ceased or diminished since 1982, but the photographs attached to the 1984 Background Paper are evidence of at least sporadic overflights subsequently. It sees no reason therefore to doubt the assertion of Nicaragua that such flights have continued. The Court finds that the incidents of overflights causing “sonic booms” in November 1984 are to some extent a matter of public knowledge. As to overflights of aircraft for supply purposes, it appears from Nicaragua's evidence that these were carried out generally, if not exclusively, by the contras themselves, though using aircraft supplied to them by the United States. Whatever other responsibility the United States may have incurred in this latter respect, the only violations of Nicaraguan airspace which the Court finds imputable to the United States on the basis of the evidence before it are first of all, the high-altitude reconnaissance flights, and secondly the low-altitude flights of 7 to 11 November 1984, complained of as causing “sonic booms”.
92. One other aspect of activity directly carried out by the United States in relation to Nicaragua has to be mentioned here, since Nicaragua has attached a certain significance to it. Nicaragua claims that the United States has on a number of occasions carried out military manoeuvres jointly with Honduras on Honduran territory near the Honduras/Nicaragua frontier; it alleges that much of the military equipment flown in to Honduras for the joint manoeuvres was turned over to the contras when the manoeuvres ended, and that the manoeuvres themselves formed part of a general and sustained policy of force intended to intimidate the Government of Nicaragua into accepting the political demands of the United States Government. The manoeuvres in question are stated to have been carried out in autumn 1982; February 1983 (“Ahuas Tara I”); August 1983 (“Ahuas Tara II”), during which American warships were, it is said, sent to patrol the waters off both Nicaragua's coasts; November 1984, when there were troop movements in Honduras and deployment of warships off the Atlantic coast of Nicaragua; February 1985 (“Ahuas Tara III”); March 1985 (“Universal Trek '85”); June 1985, paratrooper exercises. As evidence of these manoeuvres having taken place, Nicaragua has offered newspaper reports; since there was no secrecy about the holding of the manoeuvres, the Court considers that it may treat the matter as one of public knowledge, and as such, sufficiently established.
93. The Court must now examine in more detail the genesis, development and activities of the contra force, and the role of the United States in relation to it, in order to determine the legal significance of the conduct of the United States in this respect. According to Nicaragua, the United States “conceived, created and organized a mercenary army, the contra force”. However, there is evidence to show that some armed opposition to the Government of Nicaragua existed in 1979–1980, even before any interference or support by the United States. Nicaragua dates the beginning of the activity of the United States to “shortly after” 9 March 1981, when, it was said, the President of the United States made a formal presidential finding authorizing the CIA to undertake “covert activities” directed against Nicaragua. According to the testimony of Commander Carrión, who stated that the “organized military and paramilitary activities” began in December 1981, there were Nicaraguan “anti-government forces” prior to that date, consisting of
“just a few small bands very poorly armed, scattered along the northern border of Nicaragua and … composed mainly of exmembers of the Somoza's National Guard. They did not have any military effectiveness and what they mainly did was rustling cattle and killing some civilians near the borderlines.”
These bands had existed in one form or another since the fall of the Somoza government : the affidavit of Mr. Edgar Chamorro refers to “the exNational Guardsmen who had fled to Honduras when the Somoza government fell and had been conducting sporadic raids on Nicaraguan border positions ever since”. According to the Nicaraguan Memorial, the CIA initially conducted military and paramilitary activities against Nicaragua soon after the presidential finding of 9 March 1981, “through the existing armed bands”; these activities consisted of “raids on civilian settlements, local militia outposts and army patrols”. The weapons used were those of the former National Guard. In the absence of evidence, the Court is unable to assess the military effectiveness of these bands at that time; but their existence is in effect admitted by the Nicaraguan Government.
94. According to the affidavit of Mr. Chamorro, there was also a political opposition to the Nicaraguan Government, established outside Nicaragua, from the end of 1979 onward, and in August 1981 this grouping merged with an armed opposition force called the 15th of September Legion, which had itself incorporated the previously disparate armed opposition bands, through mergers arranged by the CIA. It was thus that the FDN is said to have come into being. The other major armed opposition group, the ARDE, was formed in 1982 by Alfonso Robelo Callejas, a former member of the original 1979 Junta and Edén Pastora Gómez, a Sandinista military commander, leader of the FRS (Sandino Revolutionary Front) and later Vice-Minister in the Sandinista government. Nicaragua has not alleged that the United States was involved in the formation of this body. Even on the face of the evidence offered by the Applicant, therefore, the Court is unable to find that the United States created an armed opposition in Nicaragua. However, according to press articles citing official sources close to the United States Congress, the size of the contra force increased dramatically once United States financial and other assistance became available : from an initial body of 500 men (plus, according to some reports, 1,000 Miskito Indians) in December 1981, the force grew to 1,000 in February 1982, 1,500 in August 1982, 4,000 in December 1982, 5,500 in February 1983, 8,000 in June 1983 and 12,000 in November 1983. When (as explained below) United States aid other than “humanitarian assistance” was cut off in September 1984, the size of the force was reported to be over 10,000 men.
95. The financing by the United States of the aid to the contras was initially undisclosed, but subsequently became the subject of specific legislative provisions and ultimately the stake in a conflict between the legislative and executive organs of the United States. Initial activities in 1981 seem to have been financed out of the funds available to the CIA for “covert” action; according to subsequent press reports quoted by Nicaragua, $19.5 million was allocated to these activities. Subsequently, again according to press sources, a further $19 million was approved in late 1981 for the purpose of the CIA plan for military and paramilitary operations authorized by National Security Decision Directive 17. The budgetary arrangements for funding subsequent operations up to the end of 1983 have not been made clear, though a press report refers to the United States Congress as having approved “about $20 million” for the fiscal year to 30 September 1983, and from a Report of the Permanent Select Committee on Intelligence of the House of Representatives (hereinafter called the “Intelligence Committee”) it appears that the covert programme was funded by the Intelligence Authorization Act relating to that fiscal year, and by the Defence Appropriations Act , which had been amended by the House of Representatives so as to prohibit “assistance for the purpose of overthrowing the Government of Nicaragua”. In May 1983, this Committee approved a proposal to amend the Act in question so as to prohibit United States support for military or paramilitary operations in Nicaragua. The proposal was designed to have substituted for these operations the provision of open security assistance to any friendly Central American country so as to prevent the transfer of military equipment from or through Cuba or Nicaragua. This proposal was adopted by the House of Representatives, but the Senate did not concur; the executive in the meantime presented a request for $45 million for the operations in Nicaragua for the fiscal year to 30 September 1984. Again conflicting decisions emerged from the Senate and House of Representatives, but ultimately a compromise was reached. In November 1983, legislation was adopted, coming into force on 8 December 1983, containing the following provision :
“During fiscal year 1984, not more than $24,000,000 of the funds available to the Central Intelligence Agency, the Department of Defence, or any other agency or entity of the United States involved in intelligence activities may be obligated or expended for the purpose or which would have the effect of supporting, directly or indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization, movement, or individual.” ( Intelligence Authorization Act 1984, Section 108.)
96. In March 1984, the United States Congress was asked for a supplemental appropriation of $21 million “to continue certain activities of the Central Intelligence Agency which the President has determined are important to the national security of the United States”, i.e., for further support for the contras. The Senate approved the supplemental appropriation, but the House of Representatives did not. In the Senate, two amendments which were proposed but not accepted were : to prohibit the funds appropriated from being provided to any individual or group known to have as one of its intentions the violent overthrow of any Central American government; and to prohibit the funds being used for acts of terrorism in or against Nicaragua. In June 1984, the Senate took up consideration of the executive's request for $28 million for the activities in Nicaragua for the fiscal year 1985. When the Senate and the House of Representatives again reached conflicting decisions, a compromise provision was included in the Continuing Appropriations Act 1985 (Section 8066). While in principle prohibiting the use of funds during the fiscal year to 30 September 1985
“for the purpose or which would have the effect of supporting, directly or indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization, movement or individual”,
the Act provided $14 million for that purpose if the President submitted a report to Congress after 28 February 1985 justifying such an appropriation, and both Chambers of Congress voted affirmatively to approve it. Such a report was submitted on 10 April 1985; it defined United States objectives toward Nicaragua in the following terms :
“United States policy toward Nicaragua since the Sandinistas' ascent to power has consistently sought to achieve changes in Nicaraguan government policy and behavior. We have not sought to overthrow the Nicaraguan Government nor to force on Nicaragua a specific system of government.”
The changes sought were stated to be :
“— termination of all forms of Nicaraguan support for insurgencies or subversion in neighboring countries;
— reduction of Nicaragua's expanded military/security apparatus to restore military balance in the region;
— severance of Nicaragua's military and security ties to the Soviet Bloc and Cuba and the return to those countries of their military and security advisers now in Nicaragua; and
— implementation of Sandinista commitment to the Organization of American States to political pluralism, human rights, free elections, non—alignment, and a mixed economy.”
At the same time the President of the United States, in a press conference, referred to an offer of a cease-fire in Nicaragua made by the opponents of the Nicaraguan Government on 1 March 1984, and pledged that the $14 million appropriation, if approved, would not be used for arms or munitions, but for “food, clothing and medicine and other support for survival” during the period “while the cease-fire offer is on the table”. On 23 and 24 April 1985, the Senate voted for, and the House of Representatives against, the $14 million appropriation.
97. In June 1985, the United States Congress was asked to approve the appropriation of $38 million to fund military or paramilitary activities against Nicaragua during the fiscal years 1985 and 1986 (ending 30 September 1986). This appropriation was approved by the Senate on 7 June 1985. The House of Representatives, however, adopted a proposal for an appropriation of $27 million, but solely for humanitarian assistance to the contras, and administration of the funds was to be taken out of the hands of the CIA and the Department of Defence. The relevant legislation, as ultimately agreed by the Senate and House of Representatives after submission to a Conference Committee, provided
“$27,000,000 for humanitarian assistance to the Nicaraguan democratic resistance. Such assistance shall be provided in such department or agency of the United States as the President shall designate, except the Central Intelligence Agency or the Department of Defence …
As used in this subsection, the term ‘humanitarian assistance’ means the provision of food, clothing, medicine, and other humanitarian assistance, and it does not include the provision of weapons, weapons systems, ammunition, or other equipment, vehicles, or material which can be used to inflict serious bodily harm or death.”
The Joint Explanatory Statement of the Conference Committee noted that while the legislation adopted
“does proscribe these two agencies [CIA and DOD] from administering the funds and from providing any military training or advice to the democratic resistance … none of the prohibitions on the provision of military or paramilitary assistance to the democratic resistance prevents the sharing of intelligence information with the democratic resistance”.
In the House of Representatives, it was stated that an assurance had been given by the National Security Council and the White House that
“neither the [CIA] reserve for contingencies nor any other funds available [would] be used for any material assistance other than that authorized … for humanitarian assistance for the Nicaraguan democratic resistance, unless authorized by a future act of Congress”.
Finance for supporting the military and paramilitary activities of the contras was thus available from the budget of the United States Government from some time in 1981 until 30 September 1984; and finance limited to “humanitarian assistance” has been available since that date from the same source and remains authorized until 30 September 1986.
98. It further appears, particularly since the restriction just mentioned was imposed, that financial and other assistance has been supplied from private sources in the United States, with the knowledge of the Government. So far as this was earmarked for “humanitarian assistance”, it was actively encouraged by the United States President. According to press reports, the State Department made it known in September 1984 that the administration had decided “not to discourage” private American citizens and foreign governments from supporting the contras. The Court notes that this statement was prompted by an incident which indicated that some private assistance of a military nature was being provided.
99. The Court finds at all events that from 1981 until 30 September 1984 the United States Government was providing funds for military and paramilitary activities by the contras in Nicaragua, and thereafter for “humanitarian assistance”. The most direct evidence of the specific purposes to which it was intended that these funds should be put was given by the oral testimony of a witness called by Nicaragua : Mr. David MacMichael, formerly in the employment of the CIA as a Senior Estimates Officer with the Analytic Group of the National Intelligence Council. He informed the Court that in 1981 he participated in that capacity in discussion of a plan relating to Nicaragua, excerpts from which were subsequently published in the Washington Post , and he confirmed that, with the exception of a detail (here omitted), these excerpts gave an accurate account of the plan, the purposes of which they described as follows :
“Covert operations under the CIA proposal, according to the NSC records, are intended to :
‘Build popular support in Central America and Nicaragua for an opposition front that would be nationalistic, anti-Cuban and anti-Somoza.
Support the opposition front through formation and training of action teams to collect intelligence and engage in paramilitary and political operations in Nicaragua and elsewhere.
Work primarily through non-Americans’
to achieve these covert objectives …”
100. Evidence of how the funds appropriated were spent, during the period up to autumn 1984, has been provided in the affidavit of the former FDN leader, Mr. Chamorro; in that affidavit he gives considerable detail as to the assistance given to the FDN. The Court does not however possess any comparable direct evidence as to support for the ARDE, though press reports suggest that such suppport may have been given at some stages. Mr. Chamorro states that in 1981 former National Guardsmen in exile were offered regular salaries from the CIA, and that from then on arms (FAL and AK-47 assault rifles and mortars), ammunition, equipment and food were supplied by the CIA. When he worked full time for the FDN, he himself received a salary, as did the other FDN directors. There was also a budget from CIA funds for communications, assistance to Nicaraguan refugees or family members of FDN combatants, and a military and logistics budget; however, the latter was not large since all arms, munitions and military equipment, including uniforms, boots and radio equipment, were acquired and delivered by the CIA.
101. According to Mr. Chamorro, training was at the outset provided by Argentine military officers, paid by the CIA, gradually replaced by CIA personnel. The training given was in
“guerrilla warfare, sabotage, demolitions, and in the use of a variety of weapons, including assault rifles, machine guns, mortars, grenade launchers, and explosives, such as Claymore mines … also … in field communications, and the CIA taught us how to use certain sophisticated codes that the Nicaraguan Government forces would not be able to decipher”.
The CIA also supplied the FDN with intelligence, particularly as to Nicaraguan troop movements, derived from radio and telephonic interception, code-breaking, and surveillance by aircraft and satellites. Mr Chamorro also refers to aircraft being supplied by the CIA; from press reports it appears that those were comparatively small aircraft suitable for reconnaissance and a certain amount of supply-dropping, not for offensive operations. Helicopters with Nicaraguan crews are reported to have taken part in certain operations of the “UCLAs” (see paragraph 86 above), but there is nothing to show whether these belonged to the contras or were lent by United States agencies.
102. It appears to be recognized by Nicaragua that, with the exception of some of the operations listed in paragraph 81 above, operations on Nicaraguan territory were carried out by the contras alone, all United States trainers or advisers remaining on the other side of the frontier, or in international waters. It is however claimed by Nicaragua that the United States Government has devised the strategy and directed the tactics of the contra force, and provided direct combat support for its military operations.
103. In support of the claim that the United States devised the strategy and directed the tactics of the contras, counsel for Nicaragua referred to the successive stages of the United States legislative authorization for funding the contras (outlined in paragraphs 95 to 97 above), and observed that every offensive by the contras was preceded by a new infusion of funds from the United States. From this, it is argued, the conclusion follows that the timing of each of those offensives was determined by the United States. In the sense that an offensive could not be launched until the funds were available, that may well be so; but, in the Court's view, it does not follow that each provision of funds by the United States was made in order to set in motion a particular offensive, and that that offensive was planned by the United States.
104. The evidence in support of the assertion that the United States devised the strategy and directed the tactics of the contras appears to the Court to be as follows. There is considerable material in press reports of statements by FDN officials indicating participation of CIA advisers in planning and the discussion of strategy or tactics, confirmed by the affidavit of Mr. Chamorro. Mr. Chamorro attributes virtually a power of command to the CIA operatives : he refers to them as having “ordered” or “instructed” the FDN to take various action. The specific instances of influence of United States agents on strategy or tactics which he gives are as follows : the CIA, he says, was at the end of 1982 “urging” the FDN to launch an offensive designed to take and hold Nicaraguan territory. After the failure of that offensive, the CIA told the FDN to move its men back into Nicaragua and keep fighting. The CIA in 1983 gave a tactical directive not to destroy farms and crops, and in 1984 gave a directive to the opposite effect. In 1983, the CIA again indicated that they wanted the FDN to launch an offensive to seize and hold Nicaraguan territory. In this respect, attention should also be drawn to the statement of Mr. Chamorro (paragraph 101 above) that the CIA supplied the FDN with intelligence, particularly as to Nicaraguan troop movements, and small aircraft suitable for reconnaissance and a certain amount of supply-dropping. Emphasis has been placed, by Mr. Chamorro, by Commander Carrión, and by counsel for Nicaragua, on the impact on contra tactics of the availability of intelligence assistance and, still more important, supply aircraft.
105. It has been contended by Nicaragua that in 1983 a “new strategy” for contra operations in and against Nicaragua was adopted at the highest level of the United States Government. From the evidence offered in support of this, it appears to the Court however that there was, around this time, a change in contra strategy, and a new policy by the United States administration of more overt support for the contras, culminating in the express legislative authorization in the Department of Defence Appropriations Act, 1984, section 775, and the Intelligence Authorization Act for Fiscal Year 1984, section 108. The new contra strategy was said to be to attack “economic targets like electrical plants and storage facilities” and fighting in the cities.
106. In the light of the evidence and material available to it, the Court is not satisfied that all the operations launched by the contra force, at every stage of the conflict, reflected strategy and tactics wholly devised by the United States. However, it is in the Court's view established that the support of the United States authorities for the activities of the contras took various forms over the years, such as logistic support, the supply of information on the location and movements of the Sandinista troops, the use of sophisticated methods of communication, the deployment of field broadcasting networks, radar coverage, etc. The Court finds it clear that a number of military and paramilitary operations by this force 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.
107. To sum up, despite the secrecy which surrounded it, at least initially, the financial support given by the Government of the United States to the military and paramilitary activities of the contras in Nicaragua is a fully established fact. The legislative and executive bodies of the respondent State have moreover, subsequent to the controversy which has been sparked off in the United States, openly admitted the nature, volume and frequency of this support. Indeed, they clearly take responsibility for it, this government aid having now become the major element of United States foreign policy in the region. As to the ways in which such financial support has been translated into practical assistance, the Court has been able to reach a general finding.
108. Despite the large quantity of documentary evidence and testimony which it has examined, the Court has not been able to satisfy itself that the respondent State “created” the contra force in Nicaragua. It seems certain that members of the former Somoza National Guard, together with civilian opponents to the Sandinista régime, withdrew from Nicaragua soon after that régime was installed in Managua, and sought to continue their struggle against it, even if in a disorganized way and with limited and ineffectual resources, before the Respondent took advantage of the existence of these opponents and incorporated this fact into its policies vis-à-vis the régime of the Applicant. Nor does the evidence warrant a finding that the United States gave “direct and critical combat support”, at least if that form of words is taken to mean that this support was tantamount to direct intervention by the United States combat forces, or that all contra operations reflected strategy and tactics wholly devised by the United States. On the other hand, the Court holds it established that the United States authorities largely financed, trained, equipped, armed and organized the FDN.
109. What the Court has to determine at this point is whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government. Here it is relevant to note that in May 1983 the assessment of the Intelligence Committee, in the Report referred to in paragraph 95 above, was that the contras “constitute[d] an independent force” and that the “only element of control that could be exercised by the United States” was “cessation of aid”. Paradoxically this assessment serves to underline, a contrario, the potential for control inherent in the degree of the contras' dependence on aid. Yet despite the heavy subsidies and other support provided to them by the United States, there is no clear evidence of the United States having actually exercised such a degree of control in all fields as to justify treating the contras as acting on its behalf.
110. So far as the potential control constituted by the possibility of cessation of United States military aid is concerned, it may be noted that after 1 October 1984 such aid was no longer authorized, though the sharing of intelligence, and the provision of “humanitarian assistance” as defined in the above-cited legislation (paragraph 97) may continue. Yet, according to Nicaragua's own case, and according to press reports, contra activity has continued. In sum, the evidence available to the Court indicates that 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. This conclusion, however, does not of course suffice to resolve the entire question of the responsibility incurred by the United States through its assistance to the contras.
111. In the view of the Court it is established that the contra force has, at least at one period, been so dependent on the United States that it could not conduct its crucial or most significant military and paramilitary activities without the multi-faceted support of the United States. This finding is fundamental in the present case. Nevertheless, adequate direct proof that all or the great majority of contra activities during that period received this support has not been, and indeed probably could not be, advanced in every respect. It will suffice the Court to stress that a degree of control by the United States Government, as described above, is inherent in the position in which the contra force finds itself in relation to that Government.
112. To show the existence of this control, the Applicant argued before the Court that the political leaders of the contra force had been selected, installed and paid by the United States; it also argued that the purpose herein was both to guarantee United States control over this force, and to excite sympathy for the Government's policy within Congress and among the public in the United States. According to the affidavit of Mr. Chamorro, who was directly concerned, when the FDN was formed “the name of the organization, the members of the political junta, and the members of the general staff were all chosen or approved by the CIA”; later the CIA asked that a particular person be made head of the political directorate of the FDN, and this was done. However, the question of the selection, installation and payment of the leaders of the contra force is merely one aspect among others of the degree of dependency of that force. This partial dependency on the United States authorities, the exact extent of which the Court cannot establish, may certainly be inferred inter alia from the fact that the leaders were selected by the United States. But it may also be inferred from other factors, some of which have been examined by the Court, such as the organization, training and equipping of the force, the planning of operations, the choosing of targets and the operational support provided.
113. The question of the degree of control of the contras by the United States Government is relevant to the claim of Nicaragua attributing responsibility to the United States for activities of the contras whereby the United States has, it is alleged, violated an obligation of international law not to kill, wound or kidnap citizens of Nicaragua. The activities in question are said to represent a tactic which includes “the spreading of terror and danger to non-combatants as an end in itself with no attempt to observe humanitarian standards and no reference to the concept of military necessity”. In support of this, Nicaragua has catalogued numerous incidents, attributed to “CIA-trained mercenaries” or “mercenary forces”, of kidnapping, assassination, torture, rape, killing of prisoners, and killing of civilians not dictated by military necessity. The declaration of Commander Carrión annexed to the Memorial lists the first such incident in December 1981, and continues up to the end of 1984. Two of the witnesses called by Nicaragua (Father Loison and Mr. Glennon) gave oral evidence as to events of this kind. By way of examples of evidence to provide “direct proof of the tactics adopted by the contras under United States guidance and control”, the Memorial of Nicaragua offers a statement, reported in the press, by the ex-FDN leader Mr. Edgar Chamorro, repeated in the latter's affidavit, of assassinations in Nicaraguan villages; the alleged existence of a classified Defence Intelligence Agency report of July 1982, reported in the New York Times on 21 October 1984, disclosing that the contras were carrying out assassinations; and the preparation by the CIA in 1983 of a manual of psychological warfare. At the hearings, reliance was also placed on the affidavit of Mr. Chamorro.
114. In this respect, the Court notes that according to Nicaragua, the contras are no more than bands of mercenaries which have been recruited, organized, paid and commanded by the Government of the United States. This would mean that they have no real autonomy in relation to that Government. Consequently, any offences which they have committed would be imputable to the Government of the United States, like those of any other forces placed under the latter's command. In the view of Nicaragua, “stricto sensu, the military and paramilitary attacks launched by the United States against Nicaragua do not constitute a case of civil strife. They are essentially the acts of the United States.” If such a finding of the imputability of the acts of the contras to the United States were to be made, no question would arise of mere complicity in those acts, or of incitement of the contras to commit them.
115. 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 operations in the course of which the alleged violations were committed.
116. The Court does not consider that the assistance given by the United States to the contras warrants the conclusion that these forces are subject to the United States to such an extent that any acts they have committed are imputable to that State. It takes the view that the contras remain responsible for their acts, and that the United States is not responsible for the acts of the contras, but for its own conduct vis-à-vis Nicaragua, including conduct related to the acts of the contras. What the Court has to investigate is not the complaints relating to alleged violations of humanitarian law by the contras, regarded by Nicaragua as imputable to the United States, but rather unlawful acts for which the United States may be responsible directly in connection with the activities of the contras. The lawfulness or otherwise of such acts of the United States is a question different from the violations of humanitarian law of which the contras may or may not have been guilty. It is for this reason that the Court does not have to determine whether the violations of humanitarian law attributed to the contras were in fact committed by them. At the same time, the question whether the United States Government was, or must have been, aware at the relevant time that allegations of breaches of humanitarian law were being made against the contras is relevant to an assessment of the lawfulness of the action of the United States. In this respect, the material facts are primarily those connected with the issue in 1983 of a manual of psychological operations.
117. Nicaragua has in fact produced in evidence before the Court two publications which it claims were prepared by the CIA and supplied to the contras in 1983. The first of these, in Spanish, is entitled “Operaciones sicológicas en guerra de guerrillas” (Psychological Operations in Guerrilla Warfare), by “Tayacán”; the certified copy supplied to the Court carries no publisher's name or date. In its Preface, the publication is described as
“a manual for the training of guerrillas in psychological operations, and its application to the concrete case of the Christian and democratic crusade being waged in Nicaragua by the Freedom Commandos”.
The second is entitled the Freedom Fighter's Manual , with the subtitle “Practical guide to liberating Nicaragua from oppression and misery by paralyzing the military-industrial complex of the traitorous marxist state without having to use special tools and with minimal risk for the combatant”. The text is printed in English and Spanish, and illustrated with simple drawings : it consists of guidance for elementary sabotage techniques. The only indications available to the Court of its authorship are reports in the New York Times, quoting a United States Congressman and Mr. Edgar Chamorro as attributing the book to the CIA. Since the evidence linking the Freedom Fighter's Manual to the CIA is no more than newspaper reports the Court will not treat its publication as an act imputable to the United States Government for the purposes of the present case.
118. The Court will therefore concentrate its attention on the other manual, that on “Psychological Operations”. That this latter manual was prepared by the CIA appears to be clearly established : a report published in January 1985 by the Intelligence Committee contains a specific statement to that effect. It appears from this report that the manual was printed in several editions; only one has been produced and it is of that text that the Court will take account. The manual is devoted to techniques for winning the minds of the population, defined as including the guerrilla troops, the enemy troops and the civilian population. In general, such parts of the manual as are devoted to military rather than political and ideological matters are not in conflict with general humanitarian law; but there are marked exceptions. A section on “Implicit and Explicit Terror”, while emphasizing that “the guerrillas should be careful not to become an explicit terror, because this would result in a loss of popular support”, and stressing the need for good conduct toward the population, also includes directions to destroy military or police installations, cut lines of communication, kidnap officials of the Sandinista government, etc. Reference is made to the possibility that “it should be necessary … to fire on a citizen who was trying to leave the town”, to be justified by the risk of his informing the enemy. Furthermore, a section on “Selective Use of Violence for Propagandistic Effects” begins with the words :
“It is possible to neutralize carefully selected and planned targets, such as court judges, mesta judges, police and State Security officials, CDS chiefs, etc. For psychological purposes it is necessary to take extreme precautions, and it is absolutely necessary to gather together the population affected, so that they will be present, take part in the act, and formulate accusations against the oppressor.”
In a later section on “Control of mass concentrations and meetings”, the following guidance is given (inter alia) :
“If possible, professional criminals will be hired to carry out specific selective ‘jobs’.
… … … … … … … … … . .
Specific tasks will be assigned to others, in order to create a ‘martyr’ for the cause, taking the demonstrators to a confrontation with the authorities, in order to bring about uprisings or shootings, which will cause the death of one or more persons, who would become the martyrs, a situation that should be made use of immediately against the régime, in order to create greater conflicts.”
119. According to the affidavit of Mr. Chamorro, about 2,000 copies of the manual were distributed to members of the FDN, but in those copies Mr. Chamorro had arranged for the pages containing the last two passages quoted above to be torn out and replaced by expurgated pages. According to some press reports, another edition of 3,000 copies was printed (though according to one report Mr. Chamorro said that he knew of no other edition), of which however only some 100 are said to have reached Nicaragua, attached to balloons. He was quoted in a press report as saying that the manual was used to train “dozens of guerrilla leaders” for some six months from December 1983 to May 1984. In another report he is quoted as saying that “people did not read it” and that most of the copies were used in a special course on psychological warfare for middle-level commanders. In his affidavit, Mr. Chamorro reports that the attitude of some unit commanders, in contrast to that recommended in the manual, was that “the best way to win the loyalty of the civilian population was to intimidate it” — by murders, mutilations, etc. — “and make it fearful of us”.
120. A question examined by the Intelligence Committee was whether the preparation of the manual was a contravention of United States legislation and executive orders; inter alia, it examined whether the advice on “neutralizing” local officials contravened Executive Order 12333. This Executive Order, re-enacting earlier directives, was issued by President Reagan in December 1981; it provides that
“2.11. No person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in, assassination.
2.12. No agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order.” ( US Code, Congressional and Administrative News , 97th Congress, First Session, 1981, p. B. 114.)
The manual was written, according to press reports, by “a low-level contract employee” of the CIA; the Report of the Intelligence Committee concluded :
“The Committee believes that the manual has caused embarrassment to the United States and should never have been released in any of its various forms. Specific actions it describes are repugnant to American values.
The original purpose of the manual was to provide training to moderate FDN behavior in the field. Yet, the Committee believes that the manual was written, edited, distributed and used without adequate supervision. No one but its author paid much attention to the manual. Most CIA officials learned about it from news accounts.
The Committee was told that CIA officers should have reviewed the manual and did not. The Committee was told that all CIA officers should have known about the Executive Order's ban on assassination … but some did not. The entire publication and distribution of the manual was marked within the Agency by confusion about who had authority and responsibility for the manual. The incident of the manual illustrates once again to a majority of the Committee that the CIA did not have adequate command and control of the entire Nicaraguan covert action …
CIA officials up the chain of command either never read the manual or were never made aware of it. Negligence, not intent to violate the law, marked the manual's history.
The Committee concluded that there was no intentional violation of Executive Order 12333.”
When the existence of the manual became known at the level of the United States Congress, according to one press report, “the CIA urged rebels to ignore all its recommendations and began trying to recall copies of the document”.
121. When the Intelligence Committee investigated the publication of the psychological operations manual, the question of the behaviour of the contras in Nicaragua became of considerable public interest in the United States, and the subject of numerous press reports. Attention was thus drawn to allegations of terrorist behaviour or atrocities said to have been committed against civilians, which were later the subject of reports by various investigating teams, copies of which have been supplied to the Court by Nicaragua. According to the press, CIA officials presented to the Intelligence Committee in 1984 evidence of such activity, and stated that this was the reason why the manual was prepared, it being intended to “moderate the rebels' behaviour”. This report is confirmed by the finding of the Intelligence Committee that “The original purpose of the manual was to provide training to moderate FDN behaviour in the field”. At the time the manual was prepared, those responsible were aware of, at the least, allegations of behaviour by the contras inconsistent with humanitarian law.
122. The Court concludes that in 1983 an agency of the United States Government supplied to the FDN a manual on psychological guerrilla warfare which, while expressly discouraging indiscriminate violence against civilians, considered the possible necessity of shooting civilians who were attempting to leave a town; and advised the “neutralization” for propaganda purposes of local judges, officials or notables after the sem- blance of trial in the presence of the population. The text supplied to the contras also advised the use of professional criminals to perform unspecified “jobs”, and the use of provocation at mass demonstrations to produce violence on the part of the authorities so as to make “martyrs”.
123. Nicaragua has complained to the Court of certain measures of an economic nature taken against it by the Government of the United States, beginning with the cessation of economic aid in April 1981, which it regards as an indirect form of intervention in its internal affairs. According to information published by the United States Government, it provided more than $100 million in economic aid to Nicaragua between July 1979 and January 1981; however, concern in the United States Congress about certain activities attributed to the Nicaraguan Government led to a requirement that, before disbursing assistance to Nicaragua, the President certify that Nicaragua was not “aiding, abetting or supporting acts of violence or terrorism in other countries” ( Special Central American Assistance Act, 1979, Sec. 536 (g) ). Such a certification was given in September 1980 (45 Federal Register 62779), to the effect that
“on the basis of an evaluation of the available evidence, that the Government of Nicaragua ‘has not co-operated with or harbors any international terrorist organization or is aiding, abetting or supporting acts of violence or terrorism in other countries’ “.
An official White House press release of the same date stated that
“The certification is based upon a careful consideration and evaluation of all the relevant evidence provided by the intelligence community and by our Embassies in the field … Our intelligence agencies as well as our Embassies in Nicaragua and neighboring countries were fully consulted, and the diverse information and opinions from all sources were carefully weighed.”
On 1 April 1981 however a determination was made to the effect that the United States could no longer certify that Nicaragua was not engaged in support for “terrorism” abroad, and economic assistance, which had been suspended in January 1981, was thereby terminated. According to the Nicaraguan Minister of Finance, this also affected loans previously contracted, and its economic impact was more than $36 million per annum. Nicaragua also claims that, at the multilateral level, the United States has acted in the Bank for International Reconstruction and Development and the Inter-American Development Bank to oppose or block loans to Nicaragua.
124. On 23 September 1983, the President of the United States made a proclamation modifying the system of quotas for United States imports of sugar, the effect of which was to reduce the quota attributed to Nicaragua by 90 per cent. The Nicaraguan Finance Minister assessed the economic impact of the measure at between $15 and $18 million, due to the preferential system of prices that sugar has in the market of the United States.
125. On 1 May 1985, the President of the United States made an Executive Order, which contained a finding that “the policies and actions of the Government of Nicaragua constitute an unusual and extraordinary threat to the national security and foreign policy of the United States” and declared a “national emergency”. According to the President's message to Congress, this emergency situation had been created by “the Nicaraguan Government's aggressive activities in Central America”. The Executive Order declared a total trade embargo on Nicaragua, prohibiting all imports from and exports to that country, barring Nicaraguan vessels from United States ports and excluding Nicaraguan aircraft from air transportation to and from the United States.
∗ ∗ ∗
126. The Court has before it, in the Counter-Memorial on jurisdiction and admissibility filed by the United States, the assertion that the United States, pursuant to the inherent right of individual and collective self-defence, and in accordance with the Inter-American Treaty of Reciprocal Assistance , has responded to requests from El Salvador, Honduras and Costa Rica, for assistance in their self-defence against aggression by Nicaragua. The Court has therefore to ascertain, so far as possible, the facts on which this claim is or may be based, in order to determine whether collective self-defence constitutes a justification of the activities of the United States here complained of. Furthermore, it has been suggested that, as a result of certain assurances given by the Nicaraguan “Junta of the Government of National Reconstruction” in 1979, the Government of Nicaragua is bound by international obligations as regards matters which would otherwise be matters of purely domestic policy, that it is in breach of those obligations, and that such breach might justify the action of the United States. The Court will therefore examine the facts underlying this suggestion also.
127. Nicaragua claims that the references made by the United States to the justification of collective self-defence are merely “pretexts” for the activities of the United States. It has alleged that the true motive for the conduct of the United States is unrelated to the support which it accuses Nicaragua of giving to the armed opposition in El Salvador, and that the real objectives of United States policy are to impose its will upon Nicaragua and force it to comply with United States demands. In the Court's view, however, if Nicaragua has been giving support to the armed opposition in El Salvador, and if this constitutes an armed attack on El Salvador and the other appropriate conditions are met, collective self-defence could be legally invoked by the United States, even though there may be the possibility of an additional motive, one perhaps even more decisive for the United States, drawn from the political orientation of the present Nicaraguan Government. The existence of an additional motive, other than that officially proclaimed by the United States, could not deprive the latter of its right to resort to collective self-defence. The conclusion to be drawn is that special caution is called for in considering the allegations of the United States concerning conduct by Nicaragua which may provide a sufficient basis for self-defence.
128. In its Counter-Memorial on jurisdiction and admissibility, the United States claims that Nicaragua has “promoted and supported guerrilla violence in neighboring countries”, particularly in El Salvador; and has openly conducted cross-border military attacks on its neighbours, Honduras and Costa Rica. In support of this, it annexed to the Counter-Memorial an affidavit by Secretary of State George P. Shultz. In his affidavit, Mr. Shultz declares, inter alia, that:
“The United States has abundant evidence that the Government of Nicaragua has actively supported armed groups engaged in military and paramilitary activities in and against El Salvador, providing such groups with sites in Nicaragua for communications facilities, command and control headquarters, training and logistics support. The Government of Nicaragua is directly engaged with these armed groups in planning ongoing military and paramilitary activities conducted in and against El Salvador. The Government of Nicaragua also participates directly in the procurement, and transshipment through Nicaraguan territory, of large quantities of ammunition, supplies and weapons for the armed groups conducting military and paramilitary activities in and against El Salvador.
In addition to this support for armed groups operating in and against El Salvador, the Government of Nicaragua has engaged in similar support, albeit on a smaller scale, for armed groups engaged, or which have sought to engage, in military or paramilitary activities in and against the Republic of Costa Rica, the Republic of Honduras, and the Republic of Guatemala. The regular military forces of Nicaragua have engaged in several direct attacks on Honduran and Costa Rican territory, causing casualties among the armed forces and civilian populations of those States.”
In connection with this declaration, the Court would recall the observations it has already made (paragraphs 69 and 70) as to the evidential value of declarations by ministers of the government of a State engaged in litigation concerning an armed conflict.
129. In addition, the United States has quoted Presidents Magana and Duarte of El Salvador, press reports, and United States Government publications. With reference to the claim as to cross-border military attacks, the United States has quoted a statement of the Permanent Representative of Honduras to the Security Council, and diplomatic protests by the Governments of Honduras and Costa Rica to the Government of Nicaragua. In the subsequent United States Government publication “Revolution Beyond Our Borders”, referred to in paragraph 73 above, these claims are brought up to date with further descriptive detail. Quoting “Honduran government records”, this publication asserts that there were 35 border incursions by the Sandinista People's Army in 1981 and 68 in 1982.
131. In the proceedings on the merits, Nicaragua has addressed itself primarily to refuting the claim that it has been supplying arms and other assistance to the opponents of the Government of El Salvador; it has not specifically referred to the allegations of attacks on Honduras or Costa Rica. In this it is responding to what is, as noted above, the principal justification announced by the United States for its conduct. In ascertaining whether the conditions for the exercise by the United States of the right of collective self-defence are satisfied, the Court will accordingly first consider the activities of Nicaragua in relation to El Salvador, as established by the evidence and material available to the Court. It will then consider whether Nicaragua's conduct in relation to Honduras or Costa Rica may justify the exercise of that right; in that respect it will examine only the allegations of direct cross-border attacks, since the affidavit of Mr. Shultz claims only that there was support by the provision of arms and supplies for military and paramilitary activities “on a smaller scale” in those countries than in El Salvador.
132. In its Declaration of Intervention dated 15 August 1984, the Government of El Salvador stated that : “The reality is that we are the victims of aggression and armed attack from Nicaragua and have been since at least 1980.” (Para. IV.) The statements of fact in that Declaration are backed by a declaration by the Acting Minister for Foreign Affairs of El Salvador, similar in form to the declarations by Nicaraguan Ministers annexed to its pleadings. The Declaration of Intervention asserts that “terrorists” seeking the overthrow of the Government of El Salvador were “directed, armed, supplied and trained by Nicaragua” (para. III); that Nicaragua provided “houses, hideouts and communication facilities” (para. VI), and training centres managed by Cuban and Nicaraguan military personnel (para. VII). On the question of arms supply, the Declaration states that
“Although the quantities of arms and supplies, and the routes used, vary, there has been a continuing flow of arms, ammunition, medicines, and clothing from Nicaragua to our country.” (Para. VIII.)
133. In its observations, dated 10 September 1984, on the Declaration of Intervention of El Salvador , Nicaragua stated as follows :
“The Declaration includes a series of paragraphs alleging activities by Nicaragua that El Salvador terms an ‘armed attack’. The Court should know that this is the first time El Salvador has asserted it is under armed attack from Nicaragua. None of these allegations, which are properly addressed to the merits phase of the case, is supported by proof or evidence of any kind. Nicaragua denies each and every one of them, and stands behind the affidavit of its Foreign Minister, Father Miguel d'Escoto Brockmann, in which the Foreign Minister affirms that the Government of Nicaragua has not supplied arms or other materials of war to groups fighting against the Government of El Salvador or provided financial support, training or training facilities to such groups or their members.”
134. Reference has also to be made to the testimony of one of the witnesses called by Nicaragua. Mr. David MacMichael (paragraph 99 above) said in evidence that he was in the full time employment of the CIA from March 1981 to April 1983, working for the most part on Inter-American affairs. During his examination by counsel for Nicaragua, he stated as follows :
“[Question :] In your opinion, if the Government of Nicaragua was sending arms to rebels in El Salvador, could it do so without detection by United States intelligence-gathering capabilities?
[Answer :] In any significant manner over this long period of time I do not believe they could have done so.
Q. : And there was in fact no such detection during the period that you served in the Central Intelligence Agency?
A. : No.
Q. : In your opinion, if arms in significant quantities were being sent from Nicaraguan territory to the rebels in El Salvador — with or without the Government's knowledge or consent — could these shipments have been accomplished without detection by United States intelligence capabilities?
A. : If you say in significant quantities over any reasonable period of time, no I do not believe so.
Q. : And there was in fact no such detection during your period of service with the Agency?
A. : No.
Q. : Mr. MacMichael, up to this point we have been talking about the period when you were employed by the CIA — 6 March 1981 to 3 April 1983. Now let me ask you without limit of time : did you see any evidence of arms going to the Salvadorian rebels from Nicaragua at any time?
A. : Yes, I did.
Q. : When was that?
A. : Late 1980 to very early 1981.”
Mr. MacMichael indicated the sources of the evidence he was referring to, and his examination continued :
“[Question :] Does the evidence establish that the Government of Nicaragua was involved during this period?
[Answer:] No, it does not establish it. but I could not rule it out.”
135. After counsel for Nicaragua had completed his examination of the witness, Mr. MacMichael was questioned from the bench, and in this context he stated (inter alia) as follows :
“[Question :] Thus if the Government of Nicaragua had shipped arms to El Salvador before March 1981, for example in 1980 and early 1981, in order to arm the big January offensive of the insurgents in El Salvador, you would not be in a position to know that; is that correct?
[Answer :] I think I have testified, your honour, that I reviewed the immediate past intelligence material at that time, that dealt with that period, and I have stated today that there was credible evidence and that on the basis of my reading of it I could not rule out a finding that the Nicaraguan Government had been involved during that period.
Q. : Would you rule it ‘in’?
A. : I prefer to stay with my answer that I could not rule it out, but to answer you as directly as I can my inclination would be more towards ruling ‘in’ than ruling Out”.
… … … … … … … … … . .
Q. : I understand you to be saying, Mr. MacMichael, that you believe that it could be taken as a fact that at least in late 1980/early 1981 the Nicaraguan Government was involved in the supply of arms to the Salvadorian insurgency. Is that the conclusion I can draw from your remarks?
A. : I hate to have it appear that you are drawing this from me like a nail out of a block of wood but, yes, that is my opinion.”
In short, the Court notes that the evidence of a witness called by Nicaragua in order to negate the allegation of the United States that the Government of Nicaragua had been engaged in the supply of arms to the armed opposition in El Salvador only partly contradicted that allegation.
136. Some confirmation of the situation in 1981 is afforded by an internal Nicaraguan Government report, made available by the Government of Nicaragua in response to a request by the Court, of a meeting held in Managua on 12 August 1981 between Commander Ortega, Co-ordinator of the Junta of the Government of Nicaragua and Mr. Enders, Assistant Secretary of State for Inter-American Affairs of the United States. According to this report, the question of the flow of “arms, munitions and other forms of military aid” to El Salvador, was raised by Mr. Enders as one of the “major problems” (problemas principales). At one point he is reported to have said :
“On your part, you could take the necessary steps to ensure that the flow of arms to El Salvador is again halted as in March of this year. We do not seek to involve ourselves in deciding how and with whom this object should be achieved, but we may well monitor the results.”
Later in the course of the discussion, the following exchange is recorded :
“[Ortega :] As for the flow of arms to El Salvador, what must be stated is that as far as we have been informed by you, efforts have been made to stop it; however, I want to make clear that there is a great desire here to collaborate with the Salvadorian people, also among members of our armed forces, although our Junta and the National Directorate have a decision that activities of this kind should not be permitted. We would ask you to give us reports about that flow to help us control it.
[Enders :] You have succeeded in doing so in the past and I believe you can do so now. We are not in a position to supply you with intelligence reports. We would compromise our sources, and our nations have not yet reached the necessary level to exchange intelligence reports.”
137. As regards the question, raised in this discussion, of the picture given by United States intelligence sources, further evidence is afforded by the 1983 Report of the Intelligence Committee (paragraphs 95, 109 above). In that Report, dated 13 May 1983, it was stated that
“The Committee has regularly reviewed voluminous intelligence material on Nicaraguan and Cuban support for leftist insurgencies since the 1979 Sandinista victory in Nicaragua.”
The Committee continued :
“At the time of the filing of this report, the Committee believes that the intelligence available to it continues to support the following judgments with certainty :
A major portion of the arms and other material sent by Cuba and other communist countries to the Salvadorian insurgents transits Nicaragua with the permission and assistance of the Sandinistas.
The Salvadorian insurgents rely on the use of sites in Nicaragua, some of which are located in Managua itself, for communications, command-and-control, and for the logistics to conduct their financial, material and propaganda activities.
The Sandinista leadership sanctions and directly facilitates all of the above functions.
Nicaragua provides a range of other support activities, including secure transit of insurgents to and from Cuba, and assistance to the insurgents in planning their activities in El Salvador.
In addition, Nicaragua and Cuba have provided — and appear to continue providing — training to the Salvadorian insurgents.”
The Court is not aware of the contents of any analogous report of a body with access to United States intelligence material covering a more recent period. It notes however that the Resolution adopted by the United States Congress on 29 July 1985 recorded the expectation of Congress from the Government of Nicaragua of :
“the end to Sandinista support for insurgencies in other countries in the region, including the cessation of military supplies to the rebel forces fighting the democratically elected government in El Salvador”.
138. In its Declaration of Intervention, El Salvador alleges that “Nicaraguan officials have publicly admitted their direct involvement in waging war on us” (para. IX). It asserts that the Foreign Minister of Nicaragua admitted such support at a meeting of the Foreign Ministers of the Contadora Group in July 1983. Setting this against the declaration by the Nicaraguan Foreign Minister annexed to the Nicaraguan Memorial, denying any involvement of the Nicaraguan Government in the provision of arms or other supplies to the opposition in El Salvador, and in view of the fact that the Court has not been informed of the exact words of the alleged admission, or with any corroborative testimony from others present at the meeting, the Court cannot regard as conclusive the assertion in the Declaration of Intervention. Similarly, the public statement attributed by the Declaration of Intervention (para. XIII) to Commander Ortega, referring to “the fact of continuing support to the Salvadorian guerrillas” cannot, even assuming it to be accurately quoted, be relied on as proof that that support (which, in the form of political support, is openly admitted by the Nicaraguan Government) takes any specific material form, such as the supply of arms.
“ Article One
In the Introduction to its proposal the Nicaraguan Government stated that it was ready to enter into an agreement of this kind immediately, even if only with the United States, “in order that the Government of that country cease justifying its interventionist policy in El Salvador on the basis of supposed actions by Nicaragua” (p. 58).
140. When filing its Counter-Memorial on the questions of jurisdiction and admissibility, the United States deposited a number of documents in the Registry of the Court, two of which are relevant to the questions here under examination. The first is a publication of the United States Department of State dated 23 February 1981, entitled Communist Interference in El Salvador , reproducing a number of documents (in Spanish with English translation) stated to have been among documents in “two particularly important document caches … recovered from the Communist Party of El Salvador (PCS) in November 1980 and the People's Revolutionary Army (ERP) in January 1981”. A summary of the documents is also to be found in an attachment to the 1983 Report of the Intelligence Committee, filed by Nicaragua. The second is a “Background Paper” published by the United States Department of State and Department of Defence in July 1984, entitled Nicaragua's Military Build-Up and Support for Central American Subversion .
141. The full significance of the documents reproduced in the first of these publications, which are “written using cryptic language and abbreviations”, is not readily apparent, without further assistance from United States experts, who might have been called as witnesses had the United States appeared in the proceedings. For example, there are frequent references to “Lagos” which, according to the United States, is a code-name for Nicaragua; but without such assistance the Court cannot judge whether this interpretation is correct. There is also however some specific reference in an undated document to aid to the armed opposition “which all would pass through Nicaragua” — no code-name being here employed — which the Court must take into account for what it is worth.
142. The second document, the Background Paper, is stated to be based on “Sandinista documents, press reports, and interviews with captured guerrillas and defectors” as well as information from “intelligence sources”; specific intelligence reports are not cited “because of the potential consequences of revealing sources and methods”. The only material evidence included is a number of aerial photographs (already referred to in paragraph 88 above), and a map said to have been captured in a guerrilla camp in El Salvador, showing arms transport routes; this map does not appear of itself to indicate that arms enter El Salvador from Nicaraguan territory.
143. The Court's attention has also been drawn to various press reports of statements by diplomats, by leaders of the armed opposition in El Salvador, or defectors from it, supporting the view that Nicaragua was involved in the arms supply. As the Court has already explained, it regards press reports not as evidence capable of proving facts, but considers that they can nevertheless contribute, in some circumstances, to corroborating the existence of a particular fact (paragraph 62 above). The press reports here referred to will therefore be taken into account only to that extent.
144. In an interview published in English in the New York Times Magazine on 28 April 1985, and in Spanish in ABC, Madrid, on 12 May 1985 given by Daniel Ortega Saavedra, President of the Junta of Nicaragua, he is reported to have said :
“We've said that we're willing to send home the Cubans, the Russians, the rest of the advisers. We're willing to stop the movement of military aid, or any other kind of aid, through Nicaragua to El Salvador, and we're willing to accept international verification. In return, we're asking for one thing : that they don't attack us, that the United States stop arming and financing … the gangs that kill our people, burn our crops and force us to divert enormous human and economic resources into war when we desperately need them for development.” (“Hemos dicho que estames dispuestos a sacar a los cubanos, soviéticos y demás asesores; a suspender todo tránsita par nuestro territorio de ayuda militar u otra a los salvadoreños, bajo verificación internacional. Hemos dicho que lo único que pedimos es que no nos agredan y que Estados Unidos no arme y financie … a las bandas que entran a matarnos, a quemar las cosechas, y que nos obligan a distraer enormes recursos humanos y económicos que nos hacen una falta angustiosa para el desarrollo.”)
The Court has to consider whether this press report can be treated as evidence of an admission by the Nicaraguan Head of State that the Nicaraguan Government is in a position to stop the movement of military or other aid through Nicaraguan territory to El Salvador; and whether it can be deduced from this (in conjunction with other material) that the Nicaraguan Government is responsible for the supply or transit of such aid.
145. Clearly the remarks attributed to President Ortega raise questions as to his meaning, namely as to what exactly the Nicaraguan Government was offering to stop. According to Nicaragua's own evidence. President Ortega had offered during the meeting of 12 August 1981 to stop the arms flow if the United States would supply the necessary information to enable the Nicaraguan Government to track it down; it may in fact be the interview of 12 August 1981 that President Ortega was referring to when he spoke of what had been said to the United States Government. At all events, against the background of the firm denial by the Nicaraguan Government of complicity in an arms flow to El Salvador, the Court cannot regard remarks of this kind as an admission that that Government was in fact doing what it had already officially denied and continued subsequently to deny publicly.
146. Reference was made during the hearings to the testimony of defectors from Nicaragua or from the armed opposition in El Salvador; the Court has no such direct testimony before it. The only material available in this respect is press reports, some of which were annexed to the United States Counter-Memorial on the questions of jurisdiction and admissibility. With appropriate reservations, the Court has to consider what the weight is of such material, which includes allegations of arms supply and of the training of Salvadoreans at a base near Managua. While the Court is not prepared totally to discount this material, it cannot find that it is of any great weight in itself. Still less can statements attributed in the press to unidentified diplomats stationed in Managua be regarded as evidence that the Nicaraguan Government was continuing to supply aid to the opposition in El Salvador.
147. The evidence or material offered by Nicaragua in connection with the allegation of arms supply has to be assessed bearing in mind the fact that, in responding to that allegation, Nicaragua has to prove a negative. Annexed to the Memorial was a declaration dated 21 April 1984 of Miguel d'Escoto Brockmann, the Foreign Minister of Nicaragua. In this respect the Court has, as in the case of the affidavit of the United States Secretary of State, to recall the observations it has already made (paragraphs 69 and 70) as to the evidential value of such declarations. In the declaration, the Foreign Minister states that the allegations made by the United States, that the Nicaraguan Government “is sending arms, ammunition, communications equipment and medical supplies to rebels conducting a civil war against the Government of El Salvador, are false”. He continues :
“In truth, my government is not engaged, and has not been engaged, in the provision of arms or other supplies to either of the factions engaged in the civil war in El Salvador … Since my government came to power on July 19, 1979, its policy and practice has been to prevent our national territory from being used as a conduit for arms or other military supplies intended for other governments or rebel groups. In fact, on numerous occasions the security forces of my government have intercepted clandestine arms shipments, apparently destined for El Salvador, and confiscated them.”
The Foreign Minister explains the geographical difficulty of patrolling Nicaragua's frontiers :
“Nicaragua's frontier with Honduras, to the north, is 530 kilometers long. Most of it is characterized by rugged mountains, or remote and dense jungles. Most of this border area is inaccessible by motorized land transport and simply impossible to patrol. To the south, Nicaragua's border with Costa Rica extends for 220 kilometers. This area is also characterized by dense and remote jungles and is also virtually inaccessible by land transport. As a small underdeveloped country with extremely limited resources, and with no modern or sophisticated detection equipment, it is not easy for us to seal off our borders to all unwanted and illegal traffic.”
He then points out the complication of the presence of the contras along the northern and southern borders, and describes efforts by Nicaragua to obtain verifiable international agreements for halting all arms traffic in the region.
148. Before turning to the evidence offered by Nicaragua at the hearings, the Court would note that the action of the United States Government itself, on the basis of its own intelligence reports, does not suggest that arms supply to El Salvador from the territory of Nicaragua was continuous from July 1979, when the new régime took power in Managua, and the early months of 1981. The presidential Determination of 12 September 1980, for the purposes of the Special Central American Assistance Act 1979 , quoted in paragraph 123 above, officially certified that the Government of Nicaragua was not aiding, abetting or supporting acts of violence or terrorism in other countries, and the press release of the same date emphasized the “careful consideration and evaluation of all the relevant evidence provided by the intelligence community and by our Embassies in the field” for the purposes of the Determination. The 1983 Report of the Intelligence Committee, on the other hand, referring to its regular review of intelligence since “the 1979 Sandinista victory in Nicaragua”, found that the intelligence available to it in May 1983 supported “with certainty” the judgment that arms and material supplied to “the Salvadorian insurgents transits Nicaragua with the permission and assistance of the Sandinistas” (see paragraph 137 above).
149. During the oral proceedings Nicaragua offered the testimony of Mr. MacMichael, already reviewed above (paragraphs 134 and 135) from a different aspect. The witness, who was well placed to judge the situation from United States intelligence, stated that there was no detection by United States intelligence capabilities of arms traffic from Nicaraguan territory to El Salvador during the period of his service (March 1981 to April 1983). He was questioned also as to his opinion, in the light of official statements and press reports, on the situation after he left the CIA and ceased to have access to intelligence material, but the Court considers it can attach little weight to statements of opinion of this kind (cf. paragraph 68 above).
150. In weighing up the evidence summarized above, the Court has to determine also the significance of the context of, or background to, certain statements or indications. That background includes, first, the ideological similarity between two movements, the Sandinista movement in Nicaragua and the armed opposition to the present government in El Salvador; secondly the consequent political interest of Nicaragua in the weakening or overthrow of the government in power in El Salvador; and finally, the sympathy displayed in Nicaragua, including among members of the army, towards the armed opposition in El Salvador. At the meeting of 12 August 1981 (paragraph 136 above), for example, Commander Ortega told the United States representative, Mr. Enders, that “we are interested in seeing the guerrillas in El Salvador and Guatemala triumph …”, and that “there is a great desire here to collaborate with the Salvadorian people …”. Against this background, various indications which, taken alone, cannot constitute either evidence or even a strong presumption of aid being given by Nicaragua to the armed opposition in El Salvador, do at least require to be examined meticulously on the basis that it is probable that they are significant.
151. It is in this light, for example, that one indirect piece of evidence acquires particular importance. From the record of the meeting of 12 August 1981 in Managua, mentioned in the preceding paragraph, it emerges that the Nicaraguan authorities may have immediately taken steps, at the request of the United States, to bring to a halt or prevent various forms of support to the armed opposition in El Salvador. The United States representative is there reported to have referred to steps taken by the Government of Nicaragua in March 1981 to halt the flow of arms to El Salvador, and his statement to that effect was not contradicted. According to a New York Times report (17 September 1985) Commander Ortega stated that around this time measures were taken to prevent an airstrip in Nicaragua from continuing to be used for these types of activities. This, in the Court's opinion, is an admission of certain facts, such as the existence of an airstrip designed to handle small aircraft, probably for the transport of weapons, the likely destination being El Salvador, even if the Court has not received concrete proof of such transport. The promptness with which the Nicaraguan authorities closed off this channel is a strong indication that it was in fact being used, or had been used for such a purpose.
152. The Court finds, in short, that support for the armed opposition in El Salvador from Nicaraguan territory was a fact up to the early months of 1981. While the Court does not possess full proof that there was aid, or as to its exact nature, its scale and its continuance until the early months of 1981, it cannot overlook a number of concordant indications, many of which were provided moreover by Nicaragua itself, from which it can reasonably infer the provision of a certain amount of aid from Nicaraguan territory. The Court has already explained (paragraphs 64, 69 and 70) the precise degree to which it intended to take account, as regards factual evidence, of statements by members of the governments of the States concerned, including those of Nicaragua. It will not return to this point.
153. After the early months of 1981, evidence of military aid from or through Nicaragua remains very weak. This is so despite the deployment by the United States in the region of extensive technical resources for tracking, monitoring and intercepting air, sea and land traffic, described in evidence by Mr. MacMichael and its use of a range of intelligence and information sources in a political context where, moreover, the Government had declared and recognized surveillance of Nicaragua as a “high priority”. The Court cannot of course conclude from this that no transborder traffic in arms existed, although it does not seem particularly unreasonable to believe that traffic of this kind, had it been persistent and on a significant scale, must inevitably have been discovered, in view of the magnitude of the resources used for that purpose. The Court merely takes note that the allegations of arms-trafficking are not solidly established; it has not, in any event, been able to satisfy itself that any continuing flow on a significant scale took place after the early months of 1981.
154. In this connection, it was claimed in the Declaration of Intervention by El Salvador that there was a “continuing flow of arms, ammunition, medicines, and clothing from Nicaragua to our country” (para. VIII), and El Salvador also affirmed the existence of “land infiltration routes between Nicaragua and El Salvador”. Had evidence of this become available, it is not apparent why El Salvador, given full knowledge of an arms-flow and the routes used, could not have put an end to the traffic, either by itself or with the assistance of the United States, which has deployed such powerful resources. There is no doubt that the United States and El Salvador are making considerable effort to prevent any infiltration of weapons and any form of support to the armed opposition in El Salvador from the direction of Nicaragua. So far as the Court has been informed, however, they have not succeeded in tracing and intercepting this infiltration and these various forms of support. Consequently, it can only interpret the lack of evidence of the transborder arms-flow in one of the following two ways : either this flow exists, but is neither as frequent nor as considerable as alleged by the respondent State; or it is being carried on without the knowledge, and against the will, of a government which would rather put a stop to it. If this latter conclusion is at all valid with regard to El Salvador and the United States it must therefore be at least equally valid with regard to Nicaragua.
155. Secondly, even supposing it well established that military aid is reaching the armed opposition in El Salvador from the territory of Nicaragua, it still remains to be proved that this aid is imputable to the authorities of the latter country. Indeed, the applicant State has in no way sought to conceal the possibility of weapons en route to the armed opposition in El Salvador crossing its territory but it denies that this is the result of any deliberate official policy on its part. As the Court observed in 1949:
“it cannot be concluded from the mere fact of the control exercised by a State over its territory and waters that that State necessarily knew, or ought to have known, of any unlawful act perpetrated therein, nor yet that it necessarily knew, or should have known, the authors. This fact, by itself and apart from other circumstances, neither involves prima facie responsibility nor shifts the burden of proof.” ( Corfu Channel, I.C.J. Reports 1949, p. 18.)
Here it is relevant to bear in mind that there is reportedly a strong will for collaboration and mutual support between important elements of the populations of both El Salvador and Nicaragua, not least among certain members of the armed forces in Nicaragua. The Court sees no reason to dismiss these considerations, especially since El Salvador itself recognizes the existence in Nicaraguan coastal areas of “traditional smugglers” (Declaration, para. VIII, H), because Nicaragua is accused not so much of delivering weapons itself as of allowing them to transit through its territory; and finally because evidence has been provided, in the report of the meeting of 12 August 1981 referred to in paragraph 136 above, of a degree of co-operation between the United States and Nicaragua for the purpose of putting a stop to these arms deliveries. The continuation of this co-operation does not seem to have depended solely on the Government of Nicaragua, for the Government of the United States, which in 1981 again raised with it the question of this traffic, this time refused to provide the Nicaraguan authorities, as it had on previous occasions, with the specific information and details that would have enabled them to call a halt to it. Since the Government of the United States has justified its refusal by claiming that any disclosure would jeopardize its sources of information, the Court has no means of assessing the reality or cogency of the undivulged evidence which the United States claimed to possess.
156. In passing, the Court would remark that, if this evidence really existed, the United States could be expected to have taken advantage of it in order to forestall or disrupt the traffic observed; it could presumably for example arrange for the deployment of a strong patrol force in El Salvador and Honduras, along the frontiers of these States with Nicaragua. It is difficult to accept that it should have continued to carry out military and paramilitary activities against Nicaragua if their only purpose was, as alleged, to serve as a riposte in the exercise of the right of collective self-defence. If, on the other hand, this evidence does not exist, that, as the Court has pointed out, implies that the arms traffic is so insignificant and casual that it escapes detection even by the sophisticated techniques employed for the purpose, and that, a fortiori, it could also have been carried on unbeknown to the Government of Nicaragua, as that Government claims. These two conclusions mutually support each other.
157. This second hypothesis would provide the Court with a further reason for taking Nicaragua's affirmation into consideration, in that, if the flow of arms is in fact reaching El Salvador without either Honduras or El Salvador or the United States succeeding in preventing it, it would clearly be unreasonable to demand of the Government of Nicaragua a higher degree of diligence than is achieved by even the combined efforts of the other three States. In particular, when Nicaragua is blamed for allowing consignments of arms to cross its territory, this is tantamount, where El Salvador is concerned, to an admission of its inability to stem the flow. This is revealing as to the predicament of any government, including that of Nicaragua, faced with this arms traffic : its determination to put a stop to it would be likely to fail. More especially, to the extent that some of this aid is said to be successfully routed through Honduras, this accusation against Nicaragua would also signify that Honduras, which is not suspected of seeking to assist the armed opposition in El Salvador, is providing involuntary proof that it is by no means certain that Nicaragua can combat this clandestine traffic any better than Honduras. As the means at the disposal of the governments in the region are roughly comparable, the geographical obstacles, and the intrinsic character of any clandestine arms traffic, simply show that this traffic may be carried on successfully without any complicity from governmental authorities, and even when they seek to put a stop to it. Finally, if it is true that the exceptionally extensive resources deployed by the United States have been powerless to prevent this traffic from keeping the Salvadorian armed opposition supplied, this suggests even more clearly how powerless Nicaragua must be with the much smaller resources at its disposal for subduing this traffic if it takes place on its territory and the authorities endeavour to put a stop to it.
158. Confining itself to the regional States concerned, the Court accordingly considers that it is scarcely possible for Nicaragua's responsibility for an arms traffic taking place on its territory to be automatically assumed while the opposite assumption is adopted with regard to its neighbours in respect of similar traffic. Having regard to the circumstances characterizing this part of Central America, the Court considers it more realistic, and consistent with the probabilities, to recognize that an activity of that nature, if on a limited scale, may very well be pursued unbeknown to the territorial government.
159. It may be objected that the Nicaraguan authorities are alleged to have declared on various occasions that military assistance to the armed opposition in El Salvador was part of their official policy. The Court has already indicated that it is unable to give weight to alleged statements to that effect of which there is insufficient evidence. In the report of the diplomatic talks held on 12 August 1981 at Managua, Commander Ortega did not in any sense promise to cease sending arms, but, on the contrary, said on the one hand that Nicaragua had taken immediate steps to put a stop to it once precise information had been given and, on the other hand, expressed inability to take such steps where Nicaragua was not provided with information enabling that traffic to be located. The Court would further observe that the four draft treaties submitted by Nicaragua within the Contadora process in 1983 (quoted in paragraph 139 above) do not constitute an admission by Nicaragua of the supply of assistance to the armed opposition in El Salvador, but simply make provision for the future in the context of the inter-American system, in which a State is prohibited from assisting the armed opposition within another State.
160. On the basis of the foregoing, the Court is satisfied that, between July 1979, the date of the fall of the Somoza régime in Nicaragua, and the early months of 1981, an intermittent flow of arms was routed via the territory of Nicaragua to the armed opposition in El Salvador. On the other hand, the evidence is insufficient to satisfy the Court that, since the early months of 1981, assistance has continued to reach the Salvadorian armed opposition from the territory of Nicaragua on any significant scale, or that the Government of Nicaragua was responsible for any flow of arms at either period.
161. The Court therefore turns to the claim that Nicaragua has been responsible for cross-border military attacks on Honduras and Costa Rica. The United States annexed to its Counter-Memorial on jurisdiction, inter alia, a document entitled “Resume of Sandinista Aggression in Honduran Territory in 1982” issued by the Press and Information Officer of the Honduran Ministry of Foreign Relations on 23 August 1982. That document listed 35 incidents said to involve violations of Honduran territory, territorial waters or airspace, attacks on and harassment of the Honduran population or Honduran patrols, between 30 January 1982 and 21 August 1982. Also attached to the Counter-Memorial were copies of diplomatic Notes from Honduras to Nicaragua protesting at other incidents stated to have occurred in June/July 1983 and July 1984. The Court has no information as to whether Nicaragua replied to these communications, and if so in what terms.
162. With regard to Costa Rica, the United States has supplied the text of diplomatic Notes of protest from Costa Rica to Nicaragua concerning incidents in September 1983, February 1984 and April 1984, and a Note from Costa Rica to the Foreign Ministers of Colombia, Mexico, Panama and Venezuela, referring to an incident of 29 April 1984, and requesting the sending of a mission of observers. Again, the Court has no information as to the contemporary reaction of Nicaragua to these allegations; from press reports it appears that the matter was later amicably settled.
163. As the Court has already observed (paragraphs 130 to 131 above), both the Parties have addressed themselves primarily to the question of aid by the Government of Nicaragua to the armed opposition in El Salvador, and the question of aggression directed against Honduras and Costa Rica has fallen somewhat into the background. Nevertheless the allegation that such aggression affords a basis for the exercise by the United States of the right of collective self-defence remains on the record; and the Court has to note that Nicaragua has not taken the opportunity during the proceedings of expressly refuting the assertion that it has made cross-border military attacks on the territory of those two States. At the opening of the hearings in 1984 on the questions of jurisdiction and admissibility, the Agent of Nicaragua referred to the “supposed armed attacks of Nicaragua against its neighbours”, and proceeded to “reiterate our denial of these accusations which in any case we will amply address in the merits phase of these proceedings”. However, the declaration of the Nicaraguan Foreign Minister annexed to the Memorial on the merits filed on 30 April 1985, while repudiating the accusation of support for the armed opposition in El Salvador, did not refer at all to the allegation of border incidents involving Honduras and Costa Rica.
164. The Court, while not as fully informed on the question as it would wish to be, therefore considers as established the fact that certain transborder military incursions into the territory of Honduras and Costa Rica are imputable to the Government of Nicaragua. The Court is also aware of the fact that the FDN operates along the Nicaraguan border with Honduras, and the ARDE operates along the border with Costa Rica.
165. In view of the assertion by the United States that it has acted in exercise of the right of collective self-defence for the protection of El Salvador, Honduras and Costa Rica, the Court has also to consider the evidence available on the question whether those States, or any of them, made a request for such protection. In its Counter-Memorial on jurisdiction and admissibility, the United States informed the Court that
“El Salvador, Honduras, and Costa Rica have each sought outside assistance, principally from the United States, in their self-defense against Nicaragua's aggression. Pursuant to the inherent right of individual and collective self-defense, and in accordance with the terms of the Inter-American Treaty of Reciprocal Assistance , the United States has responded to these requests.”
No indication has however been given of the dates on which such requests for assistance were made. The affidavit of Mr. Shultz, Secretary of State, dated 14 August 1984 and annexed to the United States Counter-Memorial on jurisdiction and admissibility, while asserting that the United States is acting in accord with the provisions of the United Nations Charter , and pursuant to the inherent right of self defence, makes no express mention of any request for assistance by the three States named. El Salvador, in its Declaration of Intervention in the present proceedings of 15 August 1984, stated that, faced with Nicaraguan aggression,
“we have been called upon to defend ourselves, but our own economic and military capability is not sufficient to face any international apparatus that has unlimited resources at its disposal, and we have, therefore, requested support and assistance from abroad. It is our natural, inherent right under Article 51 of the Charter of the United Nations to have recourse to individual and collective acts of self-defence. It was with this in mind that President Duarte, during a recent visit to the United States and in discussions with United States congressmen, reiterated the importance of this assistance for our defence from the United States and the democratic nations of the world.” (Para. XII.)
Again, no dates are given, but the Declaration continues “This was also done by the Revolutionary Junta of Government and the Government of President Magana”, i.e., between October 1979 and December 1980, and between April 1982 and June 1984.
166. The Court however notes that according to the report, supplied by the Agent of Nicaragua, of the meeting on 12 August 1981 between President Ortega of Nicaragua and Mr. Enders, the latter is reported to have referred to action which the United States might take
“if the arms race in Central America is built up to such a point that some of your [sc. Nicaragua's] neighbours in Central America seek protection from us under the Inter-American Treaty [of Reciprocal Assistance] ”.
This remark might be thought to carry the implication that no such request had yet been made. Admittedly, the report of the meeting is a unilateral one, and its accuracy cannot be assumed as against the United States. In conjunction with the lack of direct evidence of a formal request for assistance from any of the three States concerned to the United States, the Court considers that this report is not entirely without significance.
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167. Certain events which occurred at the time of the fall of the régime of President Somoza have next to be mentioned, since reliance has been placed on them to support a contention that the present Government of Nicaragua is in violation of certain alleged assurances given by its immediate predecessor, the Government of National Reconstruction, in 1979. From the documents made available to the Court, at its request, by Nicaragua, it appears that what occurred was as follows. On 23 June 1979, the Seventeenth Meeting of Consultation of Ministers of Foreign Affairs of the Organization of American States adopted by majority, over the negative vote of, inter alios, the representative of the Somoza government of Nicaragua, a resolution on the subject of Nicaragua. By that resolution after declaring that “the solution of the serious problem is exclusively within the jurisdiction of the people of Nicaragua”, the Meeting of Consultation declared
“That in the view of the Seventeenth Meeting of Consultation of Ministers of Foreign Affairs this solution should be arrived at on the basis of the following :
1. Immediate and definitive replacement of the Somoza régime.
2. Installation in Nicaraguan territory of a democratic government, the composition of which should include the principal representative groups which oppose the Somoza régime and which reflects the free will of the people of Nicaragua.
3. Guarantee of the respect for human rights of all Nicaraguans without exception.
4. The holding of free elections as soon as possible, that will lead to the establishment of a truly democratic government that guarantees peace, freedom, and justice.”
On 12 July 1979, the five members of the Nicaraguan “Junta of the Government of National Reconstruction” sent from Costa Rica a telegram to the Secretary-General of the Organization of American States, communicating the “Plan of the Government of National Reconstruction to Secure Peace”. The telegram explained that the plan had been developed on the basis of the Resolution of the Seventeenth Meeting of Consultation; in connection with that plan, the Junta members stated that they wished to “ratify” (ratificar) some of the “goals that have inspired their government”. These included, first
“our firm intention to establish full observance of human rights in our country in accordance with the United Nations Universal Declaration of the Rights of Man [sic], and the Charter on Human Rights of the Organization of American States ”;
the Inter-American Commission on Human Rights was invited “to visit our country as soon as we are installed in our national territory”. A further goal was
“the plan to call the first free elections our country has known in this century, so that Nicaraguans can elect their representatives to the city councils and to a constituent assembly, and later elect the country's highest authorities”.
The Plan to Secure Peace provided for the Government of National Reconstruction, as soon as established, to decree a Fundamental Statute and an Organic Law, and implement the Program of the Government of National Reconstruction. Drafts of these texts were appended to the Plan; they were enacted into law on 20 July 1979 and 21 August 1979.
168. In this connection, the Court notes that, since thus announcing its objectives in 1979, the Nicaraguan Government has in fact ratified a number of international instruments on human rights. At the invitation of the Government of Nicaragua, the Inter-American Commission on Human Rights visited Nicaragua and compiled two reports (OEA/Ser.L/V/11.53 and 62). A state of emergency was declared by the Nicaraguan Government (and notified to the United Nations Secretary-General) in July 1979, and was re-declared or extended on a number of subsequent occasions. On 4 November 1984, presidential and legislative elections were held, in the presence of foreign observers; seven political parties took part in the election, while three parties abstained from taking part on the ground that the conditions were unsatisfactory.
169. The view of the United States as to the legal effect of these events is reflected in, for example, a Report submitted to Congress by President Reagan on 10 April 1985 in connection with finance for the contras. It was there stated that one of the changes which the United States was seeking from the Nicaraguan Government was :
“implementation of Sandinista commitment to the Organization of American States to political pluralism, human rights, free elections, non-alignment, and a mixed economy”.
A fuller statement of those views is contained in a formal finding by Congress on 29 July 1985, to the following effect :
“(A) the Government of National Reconstruction of Nicaragua formally accepted the June 23, 1979, resolution as a basis for resolving the Nicaraguan conflict in its ‘Plan to Achieve Peace’ which was submitted to the Organization of American States on July 12, 1979;
(B) the June 23, 1979, resolution and its acceptance by the Government of National Reconstruction of Nicaragua was the formal basis for the removal of the Somoza régime and the installation of the Government of National Reconstruction;
(C) the Government of National Reconstruction, now known as the Government of Nicaragua and controlled by the Frente Sandinista (the FSLN), has flagrantly violated the provisions of the June 23, 1979, resolution, the rights of the Nicaraguan people, and the security of the nations in the region, in that it —
(i) no longer includes the democratic members of the Government of National Reconstruction in the political process;
(ii) is not a government freely elected under conditions of freedom of the press, assembly, and organization, and is not recognized as freely elected by its neighbors, Costa Rica, Honduras, and El Salvador;
(iii) has taken significant steps towards establishing a totalitarian Communist dictatorship, including the formation of FSLN neighborhood watch committees and the enactment of laws that violate human rights and grant undue executive power;
(iv) has committed atrocities against its citizens as documented in reports by the Inter-American Commission on Human Rights of the Organization of American States;
(v) has aligned itself with the Soviet Union and Soviet allies, including the German Democratic Republic, Bulgaria, Libya, and the Palestine Liberation Organization;
(vi) has committed and refuses to cease aggression in the form of armed subversion against its neighbors in violation of the Charter of the United Nations , the Charter of the Organization of American States , the Inter-American Treaty of Reciprocal Assistance , and the 1965 United Nations General Assembly Declaration on Intervention ; and
(vii) has built up an army beyond the needs of immediate self-defense, at the expense of the needs of the Nicaraguan people and about which the nations of the region have expressed deepest concern.”
170. The resolution goes on to note the belief expressed by Costa Rica, El Salvador and Honduras that
“their peace and freedom is not safe so long as the Government of Nicaragua excludes from power most of Nicaragua's political leadership and is controlled by a small sectarian party, without regard to the will of the majority of Nicaraguans”
and adds that
“the United States, given its role in the installation of the current Government of Nicaragua, has a special responsibility regarding the implementation of the commitments made by that Government in 1979, especially to those who fought against Somoza to bring democracy to Nicaragua with United States support”.
Among the findings as to the “Resolution of the Conflict” is the statement that the Congress
“supports the Nicaraguan democratic resistance in its efforts to peacefully resolve the Nicaraguan conflict and to achieve the fulfillment of the Government of Nicaragua's solemn commitments to the Nicaraguan people, the United States, and the Organization of American States”.
From the transcripts of speeches and press conferences supplied to the Court by Nicaragua, it is clear that the resolution of Congress expresses a view shared by the President of the United States, who is constitutionally responsible for the foreign policy of the United States.
171. The question whether the alleged violations by the Nicaraguan Government of the 1979 Resolution of the Organization of American States Meeting of Consultation, listed in paragraph 169, are relied on by the United States Government as legal-justifications of its conduct towards Nicaragua, or merely as political arguments, will be examined later in the present Judgment. It may however be observed that the resolution clearly links United States support for the contras to the breaches of what the United States regards as the “solemn commitments” of the Government of Nicaragua.
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172. The Court has now to turn its attention to the question of the law applicable to the present dispute. In formulating its view on the significance of the United States multilateral treaty reservation, the Court has reached the conclusion that it must refrain from applying the multilateral treaties invoked by Nicaragua in support of its claims, without prejudice either to other treaties or to the other sources of law enumerated in Article 38 of the Statute . The first stage in its determination of the law actually to be applied to this dispute is to ascertain the consequences of the exclusion of the applicability of the multilateral treaties for the definition of the content of the customary international law which remains applicable.
173. According to the United States, these consequences are extremely wide-ranging. The United States has argued that :
“Just as Nicaragua's claims allegedly based on ‘customary and general international law’ cannot be determined without recourse to the United Nations Charter as the principal source of that law, they also cannot be determined without reference to the ‘particular international law’ established by multilateral conventions in force among the parties.”
The United States contends that the only general and customary international law on which Nicaragua can base its claims is that of the Charter : in particular, the Court could not, it is said, consider the lawfulness of an alleged use of armed force without referring to the “principal source of the relevant international law”, namely, Article 2, paragraph 4, of the United Nations Charter . In brief, in a more general sense “the provisions of the United Nations Charter relevant here subsume and supervene related principles of customary and general international law”. The United States concludes that “since the multilateral treaty reservation bars adjudication of claims based on those treaties, it bars all of Nicaragua's claims”. Thus the effect of the reservation in question is not, it is said, merely to prevent the Court from deciding upon Nicaragua's claims by applying the multilateral treaties in question; it further prevents it from applying in its decision any rule of customary international law the content of which is also the subject of a provision in those multilateral treaties.
174. In its Judgment of 26 November 1984, the Court has already commented briefly on this line of argument. Contrary to the views advanced by the United States, it affirmed that it
“cannot dismiss the claims of Nicaragua under principles of customary and general international law, simply because such principles have been enshrined in the texts of the conventions relied upon by Nicaragua. The fact that the above-mentioned principles, recognized as such, have been codified or embodied in multilateral conventions does not mean that they cease to exist and to apply as principles of customary law, even as regards countries that are parties to such conventions. Principles such as those of the non-use of force, nonintervention, respect for the independence and territorial integrity of States, 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.” ( I.C.J. Reports 1984, p. 424, para. 73.)
Now that the Court has reached the stage of a decision on the merits, it must develop and refine upon these initial remarks. The Court would observe that, according to the United States argument, it should refrain from applying the rules of customary international law because they have been “subsumed” and “supervened” by those of international treaty law, and especially those of the United Nations Charter . Thus the United States apparently takes the view that 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.
175. The Court does not consider that, in the areas of law relevant to the present dispute, it can be claimed that all the 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 virtue of the United States reservation. On a number of points, the areas governed by the two sources of law do not exactly overlap, and the substantive rules in which they are framed are not identical in content. But in addition, even if a treaty norm and a customary norm relevant to the present dispute were to have exactly the same content, this would not be a reason for the Court to take the view that the operation of the treaty process must necessarily deprive the customary norm of its separate applicability. Nor can the multilateral treaty reservation be interpreted as meaning that, once applicable to a given dispute, it would exclude the application of any rule of customary international law the content of which was the same as, or analogous to, that of the treaty-law rule which had caused the reservation to become effective.
176. As regards the suggestion that the areas covered by the two sources of law are identical, the Court observes that the United Nations Charter , the convention to which most of the United States argument is directed, by no means covers the whole area of the regulation of the use of force in international relations. On one essential point, this treaty itself refers to pre-existing customary international law; this reference to customary law is contained in the actual text of Article 51, which mentions the “inherent right” (in the French text the “droit naturel”) of individual or collective self-defence, which “nothing in the present Charter shall impair” and which applies in the event of an armed attack. The Court therefore finds that Article 51 of the Charter is only meaningful on the basis that there is a “natural”” or “inherent” right of self-defence, and it is hard to see how this can be other than of a customary nature, even if its present content has been confirmed and influenced by the Charter. Moreover the Charter, having itself recognized the existence of this right, 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, authorizes 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. It rather demonstrates that in the field in question, the importance of which for the present dispute need hardly be stressed, customary international law continues to exist alongside treaty law. The areas governed by the two sources of law thus do not overlap exactly, and the rules do not have the same content. This could also be demonstrated for other subjects, in particular for the principle of non-intervention.
177. But as observed above (paragraph 175), even if the customary norm and the treaty norm were to have exactly the same content, this would not be a reason for the Court to hold that the incorporation of the customary norm into treaty-law must deprive the customary norm of its applicability as distinct from that of the treaty norm. The existence of identical rules in international treaty law and customary law has been clearly recognized by the Court in the North Sea Continental Shelf cases. To a large extent, those cases turned on the question whether a rule enshrined in a treaty also existed as a customary rule, either because the treaty had merely codified the custom, or caused it to “crystallize”, or because it had influenced its subsequent adoption. The Court found that this identity of content in treaty law and in customary international law did not exist in the case of the rule invoked, which appeared in one article of the treaty, but did not suggest that such identity was debarred as a matter of principle : on the contrary, it considered it to be clear that certain other articles of the treaty in question “were … regarded as reflecting, or as crystallizing, received or at least emergent rules of customary international law” ( I.C.J. Reports 1969, p. 39, para. 63). More generally, there are no grounds for holding that when customary international law is comprised of rules identical to those of treaty law, the latter “supervenes” the former, so that the customary international law has no further existence of its own.
178. There are a number of reasons for considering that, even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence. This is so from the standpoint of their applicability. In a legal dispute affecting two States, one of them may argue that the applicability of a treaty rule to its own conduct depends on the other State's conduct in respect of the application of other rules, on other subjects, also included in the same treaty. For example, if a State exercises its right to terminate or suspend the operation of a treaty on the ground of the violation by the other party of a “provision essential to the accomplishment of the object or purpose of the treaty” (in the words of Art. 60, para. 3 (b), of the Vienna Convention on the Law of Treaties ), it is exempted, vis-à-vis the other State, from a rule of treaty-law because of the breach by that other State of a different rule of treaty-law. But if the two rules in question also exist as rules of customary international law, the failure of the one State to apply the one rule does not justify the other State in declining to apply the other rule. Rules which are identical in treaty law and in customary international law are also distinguishable by reference to the methods of interpretation and application. A State may accept a rule contained in a treaty not simply because it favours the application of the rule itself, but also because the treaty establishes what that State regards as desirable institutions or mechanisms to ensure implementation of the rule. Thus, if that rule parallels a rule of customary international law, two rules of the same content are subject to separate treatment as regards the organs competent to verify their implementation, depending on whether they are customary rules or treaty rules. The present dispute illustrates this point.
179. It will therefore be clear that customary international law continues to exist and to apply, separately from international treaty law, even where the two categories of law have an identical content. Consequently, in ascertaining the content of the customary international law applicable to the present dispute, the Court must satisfy itself that the Parties are bound by the customary rules in question; but the Court is in no way bound to uphold these rules only in so far as they differ from the treaty rules which it is prevented by the United States reservation from applying in the present dispute.
180. The United States however presented a further argument, during the proceedings devoted to the question of jurisdiction and admissibility, in support of its contention that the multilateral treaty reservation debars the Court from considering the Nicaraguan claims based on customary international law. The United States observed that the multilateral treaties in question contain legal standards specifically agreed between the Parties to govern their mutual rights and obligations, and that the conduct of the Parties will continue to be governed by these treaties, irrespective of what the Court may decide on the customary law issue, because of the principle of pacta sunt servanda. Accordingly, in the contention of the United States, the Court cannot properly adjudicate the mutual rights and obligations of the two States when reference to their treaty rights and obligations is barred; the Court would be adjudicating those rights and obligations by standards other than those to which the Parties have agreed to conduct themselves in their actual international relations.
181. The question raised by this argument is whether the provisions of the multilateral treaties in question, particularly the United Nations Charter , diverge from the relevant rules of customary international law to such an extent that a judgment of the Court as to the rights and obligations of the parties under customary law, disregarding the content of the multilateral treaties binding on the parties, would be a wholly academic exercise, and not “susceptible of any compliance or execution whatever” ( Northern Cameroons, I.C.J. Reports 1963, p. 37). The Court does not consider that this is the case. As already noted, on the question of the use of force, the United States itself argues for a complete identity of the relevant rules of customary international law with the provisions of the Charter. The Court has not accepted this extreme contention, having found that on a number of points the areas governed by the two sources of law do not exactly overlap, and the substantive rules in which they are framed are not identical in content (paragraph 174 above). However, so far from having constituted a marked departure from a customary international law which still exists unmodified, the Charter gave expression in this field to principles already present in customary international law, and that law has in the subsequent four decades developed under the influence of the Charter, to such an extent that a number of rules contained in the Charter have acquired a status independent of it. The essential consideration is that both the Charter and the customary international law flow from a common fundamental principle outlawing the use of force in international relations. The differences which may exist between the specific content of each are not, in the Court's view, such as to cause a judgment confined to the field of customary international law to be ineffective or inappropriate, or a judgment not susceptible of compliance or execution.
182. The Court concludes that it should exercise the jurisdiction conferred upon it by the United States declaration of acceptance under Article 36, paragraph 2, of the Statute , to determine the claims of Nicaragua based upon customary international law notwithstanding the exclusion from its jurisdiction of disputes “arising under” the United Nations and Organization of American States Charters .
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183. In view of this conclusion, the Court has next to consider what are the rules of customary international law applicable to the present dispute. For this purpose, it has to direct its attention to the practice and opinio juris of States; as the Court recently observed,
“It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States, even though multilateral conventions may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them.” ( Continental Shelf ( Libyan Arab Jamahiriya/Malta ), I.C.J. Reports 1985, pp. 29–30, para. 27.)
In this respect the Court must not lose sight of the Charter of the United Nations and that of the Organization of American States , notwithstanding the operation of the multilateral treaty reservation. Although the Court has no jurisdiction to determine whether the conduct of the United States constitutes a breach of those conventions, it can and must take them into account in ascertaining the content of the customary international law which the United States is also alleged to have infringed.
184. The Court notes that there is in fact evidence, to be examined below, of a considerable degree of agreement between the Parties as to the content of the customary international law relating to the non-use of force and non-intervention. This concurrence of their views does not however dispense the Court from having itself to ascertain what rules of customary international law are applicable. The mere fact that States declare their recognition of certain rules is not sufficient for the Court to consider these as being part of customary international law, and as applicable as such to those States. Bound as it is by Article 38 of its Statute to apply, inter alia, international custom “as evidence of a general practice accepted as law”, the Court may not disregard the essential role played by general practice. Where two States agree to incorporate a particular rule in a treaty, their agreement suffices to make that rule a legal one, binding upon them; but in the field of customary international law, the shared view of the Parties as to the content of what they regard as the rule is not enough. The Court must satisfy itself that the existence of the rule in the opinio juris of States is confirmed by practice.
185. In the present dispute, the Court, while exercising its jurisdiction only in respect of the application of the customary rules of non-use of force and non-intervention, cannot disregard the fact that the Parties are bound by these rules as a matter of treaty law and of customary international law. Furthermore, in the present case, apart from the treaty commitments binding the Parties to the rules in question, there are various instances of their having expressed recognition of the validity thereof as customary international law in other ways. It is therefore in the light of this “subjective element” — the expression used by the Court in its 1969 Judgment in the North Sea Continental Shelf cases ( I.C.J. Reports 1969, p. 44) — that the Court has to appraise the relevant practice.
186. 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 other's internal affairs. 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 justifications contained within the rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.
187. The Court must therefore determine, first, the substance of the customary rules relating to the use of force in international relations, applicable to the dispute submitted to it. The United States has argued that, on this crucial question of the lawfulness of the use of force in inter-State relations, the rules of general and customary international law, and those of the United Nations Charter , are in fact identical. In its view this identity is so complete that, as explained above (paragraph 173), it constitutes an argument to prevent the Court from applying this customary law, because it is indistinguishable from the multilateral treaty law which it may not apply. In its Counter-Memorial on jurisdiction and admissibility the United States asserts that “Article 2 (4) of the Charter is customary and general international law”. It quotes with approval an observation by the International Law Commission to the effect that
“the great majority of international lawyers today unhesitatingly hold that Article 2, paragraph 4, together with other provisions of the Charter, authoritatively declares the modern customary law regarding the threat or use of force” ( ILC Yearbook , 1966, Vol. II, p. 247).
The United States points out that Nicaragua has endorsed this view, since one of its counsel asserted that “indeed it is generally considered by publicists that Article 2, paragraph 4, of the United Nations Charter is in this respect an embodiment of existing general principles of international law”. And the United States concludes :
“In sum, the provisions of Article 2 (4) with respect to the lawfulness of the use of force are ‘modern customary law’ (International Law Commission, loc. cit.) and the ‘embodiment of general principles of international law’ (counsel for Nicaragua, Hearing of 25 April 1984, morning, loc. cit.). There is no other ‘customary and general international law’ on which Nicaragua can rest its claims.”
“It is, in short, inconceivable that this Court could consider the lawfulness of an alleged use of armed force without referring to the principal source of the relevant international law — Article 2 (4) of the United Nations Charter.”
As for Nicaragua, the only noteworthy shade of difference in its view lies in Nicaragua's belief that
“in certain cases the rule of customary law will not necessarily be identical in content and mode of application to the conventional rule”.
188. The Court thus finds that both Parties take the view that the principles as to the use of force incorporated in the United Nations Charter correspond, in essentials, to those found in customary international law. The Parties thus both take the view that the fundamental principle in this area is expressed in the terms employed in Article 2, paragraph 4, of the United Nations Charter . They therefore accept a treaty-law obligation to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. The Court has however to be satisfied that there exists in customary international law an opinio juris as to the binding character of such abstention. This opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States towards certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”. 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 themselves. The principle of non-use of force, for example, may thus be regarded as a principle of customary international law, not as such conditioned by provisions relating to collective security, or to the facilities or armed contingents to be provided under Article 43 of the Charter . It 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.
189. As regards the United States in particular, the weight of an expression of opinio juris can similarly be attached to its support of the resolution of the Sixth International Conference of American States condemning aggression (18 February 1928) and ratification of the Montevideo Convention on Rights and Duties of States (26 December 1933), Article 11 of which imposes the obligation not to recognize territorial acquisitions or special advantages which have been obtained by force. Also significant is United States acceptance of the principle of the prohibition of the use of force which is contained in the declaration on principles governing the mutual relations of States participating in the Conference on Security and Co-operation in Europe (Helsinki, 1 August 1975), whereby the participating States undertake to “refrain in their mutual relations, as well as in their international relations in general,“ (emphasis added) from the threat or use of force. Acceptance of a text in these terms confirms the existence of an opinio juris of the participating States prohibiting the use of force in international relations.
190. 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 may be found in the fact that it is frequently referred to in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law. The International Law Commission, in the course of its work on the codification of the law of treaties, expressed the view that “the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens“ (paragraph (1) of the commentary of the Commission to Article 50 of its draft Articles on the Law of Treaties, ILC Yearbook, 1966-II, p. 247). Nicaragua in its Memorial on the Merits submitted in the present case states that the principle prohibiting the use of force embodied in Article 2, paragraph 4, of the Charter of the United Nations “has come to be recognized as jus cogens”. The United States, in its Counter-Memorial on the questions of jurisdiction and admissibility, found it material to quote the views of scholars that this principle is a “universal norm”, a “universal international law”, a “universally recognized principle of international law”, and a “principle of jus cogens”.
“Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States.
… … … … … … … … … . .
States have a duty to refrain from acts of reprisal involving the use of force.
… … … … … … … … … . .
Every State has the duty to refrain from any forcible action which deprives peoples referred to in the elaboration of the principle of equal rights and self-determination of that right to self-determination and freedom and independence.
Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State.
Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.”
192. Moreover, in the part of this same resolution devoted to the principle of non-intervention in matters within the national jurisdiction of States, a very similar rule is found :
“Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the régime of another State, or interfere in civil strife in another State.”
In the context of the inter-American system, this approach can be traced back at least to 1928 ( Convention on the Rights and Duties of States in the Event of Civil Strife, Art. 1 (1)); it was confirmed by resolution 78 adopted by the General Assembly of the Organization of American States on 21 April 1972. The operative part of this resolution reads as follows :
“The General Assembly Resolves :
1. To reiterate solemnly the need for the member states of the Organization to observe strictly the principles of nonintervention and self-determination of peoples as a means of ensuring peaceful coexistence among them and to refrain from committing any direct or indirect act that might constitute a violation of those principles.
2. To reaffirm the obligation of those states to refrain from applying economic, political, or any other type of measures to coerce another state and obtain from it advantages of any kind.
193. The general rule prohibiting force allows for certain exceptions. In view of the arguments advanced by the United States to justify the acts of which it is accused by Nicaragua, the Court must express a view on the content of the right of self-defence, and more particularly the right of collective self-defence. First, with regard to the existence of this right, it notes that in the language of Article 51 of the United Nations Charter , the inherent right (or “droit naturel”) which any State possesses in the event of an armed attack, covers both collective and individual self-defence. Thus, the Charter itself testifies to the existence of the right of collective self-defence in customary international law. Moreover, just as the wording of certain General Assembly declarations adopted by States demonstrates their recognition of the principle of the prohibition of force as definitely a matter of customary international law, some of the wording in those declarations operates similarly in respect of the right of self-defence (both collective and individual). Thus, in the declaration quoted above on the Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, the reference to the prohibition of force is followed by a paragraph stating that :
“nothing in the foregoing paragraphs shall be construed as enlarging or diminishing in any way the scope of the provisions of the Charter concerning cases in which the use of force is lawful”.
This resolution demonstrates that the States represented in the General Assembly regard the exception to the prohibition of force constituted by the right of individual or collective self-defence as already a matter of customary international law.
194. With regard to the characteristics governing the right of self-defence, since the Parties consider the existence of this right to be established as a matter of customary international law, they have concentrated on the conditions governing its use. In view of the circumstances in which the dispute has arisen, reliance is placed by the Parties only on the right of self-defence in the case of an armed attack which has already occurred, and the issue of the lawfulness of a response to the imminent threat of armed attack has not been raised. Accordingly the Court expresses no view on that issue. The Parties also agree in holding that whether the response to the attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self-defence. Since the existence of the right of collective self-defence is established in customary international law, the Court must define the specific conditions which may have to be met for its exercise, in addition to the conditions of necessity and proportionality to which the Parties have referred.
195. In the case of individual self-defence, the exercise of this right is subject to the State concerned having been the victim of an armed attack. Reliance on collective self-defence of course does not remove the need for this. There appears now to be general agreement on the nature of the acts which can be treated as constituting armed attacks. In particular, it may be considered to be agreed that an armed attack must be understood as including not merely action by regular armed forces across an international border, but also “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to” (inter alia) an actual armed attack conducted by regular forces, “or its substantial involvement therein”. This description, contained in Article 3, paragraph (g), of the Definition of Aggression annexed to General Assembly resolution 3314 (XXIX) , may be taken to reflect customary international law. The Court sees no reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces. But the Court does not believe that the concept of “armed attack” includes not only acts by armed bands where such acts occur on a significant scale but also assistance to rebels in the form of the provision of weapons or logistical or other support. Such assistance may be regarded as a threat or use of force, or amount to intervention in the internal or external affairs of other States. It is also clear that it is the State which is the victim of an armed attack which must form and declare the view that it has been so attacked. There is no rule in customary international law permitting another State to exercise the right of collective self-defence on the basis of its own assessment of the situation. Where collective self-defence is invoked, it is to be expected that the State for whose benefit this right is used will have declared itself to be the victim of an armed attack.
“agree that an armed attack by any State against an American State shall be considered as an attack against all the American States and, consequently, each one of the said Contracting Parties undertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective self-defence recognized by Article 51 of the Charter of the United Nations ”;
and under paragraph 2 of that Article,
“On the request of the State or States directly attacked and until the decision of the Organ of Consultation of the Inter-American System, each one of the Contracting Parties may determine the immediate measures which it may individually take in fulfilment of the obligation contained in the preceding paragraph and in accordance with the principle of continental solidarity.”
(The 1947 Rio Treaty was modified by the 1975 Protocol of San José, Costa Rica , but that Protocol is not yet in force.)
198. The Court observes that the Treaty of Rio de Janeiro provides that measures of collective self-defence taken by each State are decided “on the request of the State or States directly attacked”. It is significant that this requirement of a request on the part of the attacked State appears in the treaty particularly devoted to these matters of mutual assistance; it is not found in the more general text (the Charter of the Organization of American States ), but Article 28 of that Charter provides for the application of the measures and procedures laid down in “the special treaties on the subject”.
199. At all events, the Court finds that in customary international law, whether of a general kind or that particular to the inter-American legal system, 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. The Court concludes that the requirement of a request by the State which is the victim of the alleged attack is additional to the requirement that such a State should have declared itself to have been attacked.
200. At this point, the Court may consider whether in customary international law there is any requirement corresponding to that found in the treaty law of the United Nations Charter , by which the State claiming to use the right of individual or collective self-defence must report to an international body, empowered to determine the conformity with international law of the measures which the State is seeking to justify on that basis. Thus Article 51 of the United Nations Charter requires that measures taken by States in exercise of this right of self-defence must be “immediately reported” to the Security Council. As the Court has observed above (paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in customary international law, may well be so unencumbered with the conditions and modalities surrounding it in the treaty. 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.
201. To justify certain activities involving the use of force, the United States has relied solely on the exercise of its right of collective self-defence. However the Court, having regard particularly to the non-participation of the United States in the merits phase, considers that it should enquire whether customary international law, applicable to the present dispute, may contain other rules which may exclude the unlawfulness of such activities. It does not, however, see any need to reopen the question of the conditions governing the exercise of the right of individual self-defence, which have already been examined in connection with collective self-defence. On the other hand, the Court must enquire whether there is any justification for the activities in question, to be found not in the right of collective self-defence against an armed attack, but in the right to take counter-measures in response to conduct of Nicaragua which is not alleged to constitute an armed attack. It will examine this point in connection with an analysis of the principle of non-intervention in customary international law.
202. 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. As the Court has observed : “Between independent States, respect for territorial sovereignty is an essential foundation of international relations” ( I.C.J. Reports 1949, p. 35), and international law requires political integrity also to be respected. Expressions of an opinio juris regarding the existence of the principle of non-intervention in customary international law are numerous and not difficult to find. Of course, statements whereby States avow their recognition of the principles of international law set forth in the United Nations Charter cannot strictly be interpreted as applying to the principle of non-intervention by States in the internal and external affairs of other States, since this principle is not, as such, spelt out in the Charter. But it was never intended that the Charter should embody written confirmation of every essential principle of international law in force. The existence in the opinio juris of States of the principle of non-intervention is backed by established and substantial practice. It has moreover been presented as a corollary of the principle of the sovereign equality of States. A particular instance of this is General Assembly resolution 2625 (XXV) , the Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States. In the Corfu Channel case, when a State claimed a right of intervention in order to secure evidence in the territory of another State for submission to an international tribunal (I.C.J. Reports 1949, p. 34), the Court observed that :
“the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law. Intervention is perhaps still less admissible in the particular form it would take here; for, from the nature of things, it would be reserved for the most powerful States, and might easily lead to perverting the administration of international justice itself.” ( I.C.J. Reports 1949, p. 35.)
203. The principle has since been reflected in numerous declarations adopted by international organizations and conferences in which the United States and Nicaragua have participated, e.g., General Assembly resolution 2131 (XX) , the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty. It is true that the United States, while it voted in favour of General Assembly resolution 2131 (XX), also declared at the time of its adoption in the First Committee that it considered the declaration in that resolution to be “only a statement of political intention and not a formulation of law” ( Official Records of the General Assembly, Twentieth Session , First Committee, A/C.1/SR.1423, p. 436). However, the essentials of resolution 2131 (XX) are repeated in the Declaration approved by resolution 2625 (XXV) , which set out principles which the General Assembly declared to be “basic principles” of international law, and on the adoption of which no analogous statement was made by the United States representative.
204. As regards inter-American relations, attention may be drawn to, for example, the United States reservation to the Montevideo Convention on Rights and Duties of States (26 December 1933), declaring the opposition of the United States Government to “interference with the freedom, the sovereignty or other internal affairs, or processes of the Governments of other nations”; or the ratification by the United States of the Additional Protocol relative to Non-intervention (23 December 1936). Among more recent texts, mention may be made of resolutions AG/RES.78 and AG/RES.128 of the General Assembly of the Organization of American States . In a different context, the United States expressly accepted the principles set forth in the declaration, to which reference has already been made, appearing in the Final Act of the Conference on Security and Co-operation in Europe (Helsinki, 1 August 1975), including an elaborate statement of the principle of non-intervention; while these principles were presented as applying to the mutual relations among the participating States, it can be inferred that the text testifies to the existence, and the acceptance by the United States, of a customary principle which has universal application.
205. Notwithstanding the multiplicity of declarations by States 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? As regards the first problem — that of the content of the principle of non-intervention — the Court will define only those aspects of the principle which appear to be relevant to the resolution of the dispute. In this respect it notes that, in view of the generally accepted formulations, the principle forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. 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. As noted above (paragraph 191), General Assembly resolution 2625 (XXV) equates assistance of this kind with the use of force by the assisting State when the acts committed in another State “involve a threat or use of force”. These forms of action are therefore wrongful in the light of both the principle of non-use of force, and that of non-intervention. In view of the nature of Nicaragua's complaints against the United States, and those expressed by the United States in regard to Nicaragua's conduct towards El Salvador, it is primarily acts of intervention of this kind with which the Court is concerned in the present case.
206. However, before reaching a conclusion on the nature of prohibited intervention, the Court must be satisfied that State practice justifies it. 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 decolonization; this question is not in issue in the present case. 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 non-intervention.
207. In considering the instances of the conduct above described, the Court has to emphasize that, as was observed in the North Sea Continental Shelf cases, 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 necessitatis. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is
“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.” ( I.C.J. Reports 1969, p. 44, para. 77.)
The Court has no jurisdiction to rule upon the conformity with international law of any conduct of States not parties to the present dispute, or of conduct of the Parties unconnected with the dispute; nor has it authority to ascribe to States legal views which they do not themselves advance. 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 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.
208. In particular, as regards the conduct towards Nicaragua which is the subject of the present case, the United States has not claimed that its intervention, which it justified in this way on the political level, was also justified on the legal level, alleging the exercise of a new right of intervention regarded by the United States as existing in such circumstances. As mentioned above, the United States has, on the legal plane, justified its intervention expressly and solely by reference to the “classic” rules involved, namely, collective self-defence against an armed attack. Nicaragua, for its part, has often expressed its solidarity and sympathy with the opposition in various States, especially in El Salvador. But Nicaragua too has not argued that this was a legal basis for an intervention, let alone an intervention involving the use of force.
209. The Court therefore finds 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 non-intervention 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.
210. When dealing with the rule of the prohibition of the use of force, the Court considered the exception to it constituted by the exercise of the right of collective self-defence in the event of armed attack. Similarly, it must now consider the following question : if one State acts towards another State in breach of the principle of non-intervention, may a third State lawfully take such action by way of counter-measures against the first State as would otherwise constitute an intervention in its internal affairs? A right to act in this way in the case of intervention would be analogous to the right of collective self-defence in the case of an armed attack, but both the act which gives rise to the reaction, and that reaction itself, would in principle be less grave. Since the Court is here dealing with a dispute in which a wrongful use of force is alleged, it has primarily to consider whether a State has a right to respond to intervention with intervention going so far as to justify a use of force in reaction to measures which do not constitute an armed attack but may nevertheless involve a use of force. The question is itself undeniably relevant from the theoretical viewpoint. However, since the Court is bound to confine its decision to those points of law which are essential to the settlement of the dispute before it, it is not for the Court here to determine what direct reactions are lawfully open to a State which considers itself the victim of another State's acts of intervention, possibly involving the use of force. Hence it has not to determine whether, in the event of Nicaragua's having committed any such acts against El Salvador, the latter was lawfully entitled to take any particular counter-measure. It might however be suggested that, in such a situation, the United States might have been permitted to intervene in Nicaragua in the exercise of some right analogous to the right of collective self-defence, one which might be resorted to in a case of intervention short of armed attack.
211. The Court has recalled above (paragraphs 193 to 195) that for one State to use force against another, on the ground that that State has committed a wrongful act of force against a third State, is regarded as lawful, by way of exception, only when the wrongful act provoking the response was an armed attack. Thus the lawfulness of the use of force by a State in response to a wrongful act of which it has not itself been the victim is not admitted when this wrongful act is not an armed attack. In the view of the Court, under international law in force today — whether customary international law or that of the United Nations system — States do not have a right of “collective” armed response to acts which do not constitute an “armed attack”. Furthermore, the Court has to recall that the United States itself is relying on the “inherent right of self-defence” (paragraph 126 above), but apparently does not claim that any such right exists as would, in respect of intervention, operate in the same way as the right of collective self-defence in respect of an armed attack. In the discharge of its duty under Article 53 of the Statute , the Court has nevertheless had to consider whether such a right might exist; but in doing so it may take note of the absence of any such claim by the United States as an indication of opinio juris.
212. The Court should now mention the principle of respect for State sovereignty, which in international law is of course closely linked with the principles of the prohibition of the use of force and of non-intervention. The basic legal concept of State sovereignty in customary international law, expressed in, inter alia, Article 2, paragraph 1, of the United Nations Charter , extends to the internal waters and territorial sea of every State and to the air space above its territory. As to superjacent air space, the 1944 Chicago Convention on International Civil Aviation (Art. 1) reproduces the established principle of the complete and exclusive sovereignty of a State over the air space above its territory. That convention, in conjunction with the 1958 Geneva Convention on the Territorial Sea , further specifies that the sovereignty of the coastal State extends to the territorial sea and to the air space above it, as does the United Nations Convention on the Law of the Sea adopted on 10 December 1982. The Court has no doubt that these prescriptions of treaty-law merely respond to firmly established and longstanding tenets of customary international law.
213. The duty of every State to respect the territorial sovereignty of others is to be considered for the appraisal to be made of the facts relating to the mining which occurred along Nicaragua's coasts. The legal rules in the light of which these acts of mining should be judged depend upon where they took place. The laying of mines within the ports of another State is governed by the law relating to internal waters, which are subject to the sovereignty of the coastal State. The position is similar as regards mines placed in the territorial sea. It is therefore the sovereignty of the coastal State which is affected in such cases. It is also by virtue of its sovereignty that the coastal State may regulate access to its ports.
214. On the other hand, it is true that in order to enjoy access to ports, foreign vessels possess a customary right of innocent passage in territorial waters for the purposes of entering or leaving internal waters; Article 18, paragraph 1 (b), of the United Nations Convention on the Law of the Sea of 10 December 1982, does no more than codify customary international law on this point. Since freedom of navigation is guaranteed, first in the exclusive economic zones which may exist beyond territorial waters (Art. 58 of the Convention ), and secondly, beyond territorial waters and on the high seas (Art. 87), it follows that any State which enjoys a right of access to ports for its ships also enjoys all the freedom necessary for maritime navigation. It may therefore be said that, if this right of access to the port is hindered by the laying of mines by another State, what is infringed is the freedom of communications and of maritime commerce. At all events, it is certain that interference with navigation in these areas prejudices both the sovereignty of the coastal State over its internal waters, and the right of free access enjoyed by foreign ships.
Neutral Powers which lay mines off their own coasts must issue a similar notification, in advance (Art. 4). It has already been made clear above that in peacetime for one State to lay mines in the internal or territorial waters of another is an unlawful act; but in addition, if a State lays mines in any waters whatever in which the vessels of another State have rights of access or passage, and fails to give any warning or notification whatsoever, in disregard of the security of peaceful shipping, it commits a breach of the principles of humanitarian law underlying the specific provisions of Convention No. VIII of 1907. Those principles were expressed by the Court in the Corfu Channel case as follows :
216. This last consideration leads the Court on to examination of the international humanitarian law applicable to the dispute. Clearly, use of force may in some circumstances raise questions of such law. Nicaragua has in the present proceedings not expressly invoked the provisions of international humanitarian law as such, even though, as noted above (paragraph 113), it has complained of acts committed on its territory which would appear to be breaches of the provisions of such law. In the submissions in its Application it has expressly charged
“That the United States, in breach of its obligation under general and customary international law, has killed, wounded and kidnapped and is killing, wounding and kidnapping citizens of Nicaragua.” (Application, 26 (f).)
The Court has already indicated (paragraph 115) that the evidence available is insufficient 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; accordingly, this submission has to be rejected. The question however remains of the law applicable to the acts of the United States in relation to the activities of the contras, in particular the production and dissemination of the manual on psychological operations described in paragraphs 117 to 122 above; as already explained (paragraph 116), this is a different question from that of the violations of humanitarian law of which the contras may or may not have been guilty.
217. The Court observes that Nicaragua, which has invoked a number of multilateral treaties, has refrained from making reference to the four Geneva Conventions of 12 August 1949, to which both Nicaragua and the United States are parties. Thus at the time when the Court was seised of the dispute, that dispute could be considered not to “arise”, to use the wording of the United States multilateral treaty reservation, under any of these Geneva Conventions. The Court did not therefore have to consider whether that reservation might be a bar to the Court treating the relevant provisions of these Conventions as applicable. However, if the Court were on its own initiative to find it appropriate to apply these Conventions, as such, for the settlement of the dispute, it could be argued that the Court would be treating it as a dispute “arising” under them; on that basis, it would have to consider whether any State party to those Conventions would be “affected” by the decision, for the purposes of the United States multilateral treaty reservation.
“shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience” ( Convention I, Art. 63; Convention II, Art. 62; Convention III, Art. 142; Convention IV, Art. 158).
Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a noninternational character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court's opinion, reflect what the Court in 1949 called “elementary considerations of humanity” ( Corfu Channel, Merits, I.C.J. Reports 1949, p. 22; paragraph 215 above). The Court may therefore find them applicable to the present dispute, and is thus not required to decide what role the United States multilateral treaty reservation might otherwise play in regard to the treaties in question.
219. The conflict between the contras' forces and those of the Government of Nicaragua is an armed conflict which is “not of an international character”. The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character; whereas the actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts. Because the minimum rules applicable to international and to non-international conflicts are identical, there is no need to address the question whether those actions must be looked at in the context of the rules which operate for the one or for the other category of conflict. The relevant principles are to be looked for in the provisions of Article 3 of each of the four Conventions of 12 August 1949, the text of which, identical in each Convention, expressly refers to conflicts not having an international character.
“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions :
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons :
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(c) regulating the production of or traffic in arms, ammunition and implements of war, or traffic in other materials carried on directly or indirectly for the purpose of supplying a military establishment;
In the Spanish text of the Treaty (equally authentic with the English text) the last phrase is rendered as “sus intereses esenciales y seguridad”.
222. This article cannot be interpreted as removing the present dispute as to the scope of the Treaty from the Court's jurisdiction. Being itself an article of the Treaty, it is covered by the provision in Article XXIV that any dispute about the “interpretation or application” of the Treaty lies within the Court's jurisdiction. Article XXI defines the instances in which the Treaty itself provides for exceptions to the generality of its other provisions, but it by no means removes the interpretation and application of that article from the jurisdiction of the Court as contemplated in Article XXIV. That the Court has jurisdiction to determine whether measures taken by one of the Parties fall within such an exception, is also clear a contrario from the fact that the text of Article XXI of the Treaty does not employ the wording which was already to be found in Article XXI of the General Agreement on Tariffs and Trade . This provision of GATT , contemplating exceptions to the normal implementation of the General Agreement, stipulates that the Agreement is not to be construed to prevent any contracting party from taking any action which it “considers necessary for the protection of its essential security interests”, in such fields as nuclear fission, arms, etc. The 1956 Treaty, on the contrary, speaks simply of “necessary” measures, not of those considered by a party to be such.
223. The Court will therefore determine the substantial nature of the two categories of measures contemplated by this Article and which are not barred by the Treaty . No comment is required at this stage on subparagraph 1 (c) of Article XXl. As to subparagraph 1 (d) , clearly “measures … necessary to fulfill the obligations of a Party for the maintenance or restoration of international peace and security” must signify measures which the State in question must take in performance of an international commitment of which any evasion constitutes a breach. A commitment of this kind is accepted by Members of the United Nations in respect of Security Council decisions taken on the basis of Chapter VII of the United Nations Charter (Art. 25), or, for members of the Organization of American States, in respect of decisions taken by the Organ of Consultation of the Inter-American system, under Articles 3 and 20 of the Inter-American Treaty of Reciprocal Assistance (Rio de Janeiro, 1947). The Court does not believe that this provision of the 1956 Treaty can apply to the eventuality of the exercise of the right of individual or collective self-defence.
224. On the other hand, action taken in self-defence, individual or collective, might be considered as part of the wider category of measures qualified in Article XXI as “necessary to protect” the “essential security interests” of a party. In its Counter-Memorial on jurisdiction and admissibility, the United States contended that : “Any possible doubts as to the applicability of the FCN Treaty to Nicaragua 's claims is dispelled by Article XXI of the Treaty …” After quoting paragraph 1 (d) (set out in paragraph 221 above), the Counter-Memorial continues :
“Article XXI has been described by the Senate Foreign Relations Committee as containing ‘the usual exceptions relating … to traffic in arms, ammunition and implements of war and to measures for collective or individual self-defense’.”
It is difficult to deny that self-defence against an armed attack corresponds to measures necessary to protect essential security interests. But the concept of essential security interests certainly extends beyond the concept of an armed attack, and has been subject to very broad interpretations in the past. The Court has therefore to assess whether the risk run by these “essential security interests” is reasonable, and secondly, whether the measures presented as being designed to protect these interests are not merely useful but “necessary”.
225. Since Article XXI of the 1956 Treaty contains a power for each of the parties to derogate from the other provisions of the Treaty , the possibility of invoking the clauses of that Article must be considered once it is apparent that certain forms of conduct by the United States would otherwise be in conflict with the relevant provisions of the Treaty. The appraisal of the conduct of the United States in the light of these relevant provisions of the Treaty pertains to the application of the law rather than to its interpretation, and the Court will therefore undertake this in the context of its general evaluation of the facts established in relation to the applicable law.
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226. The Court, having outlined both the facts of the case as proved by the evidence before it, and the general rules of international law which appear to it to be in issue as a result of these facts, and the applicable treaty-law, has now to appraise the facts in relation to the legal rules applicable. In so far as acts of the Respondent may appear to constitute violations of the relevant rules of law, the Court will then have to determine whether there are present any circumstances excluding unlawfulness, or whether such acts may be justified upon any other ground.
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227. The Court will first appraise the facts in the light of the principle of the non-use of force, examined in paragraphs 187 to 200 above. What is unlawful, in accordance with that principle, is recourse to either the threat or the use of force against the territorial integrity or political independence of any State. For the most part, the complaints by Nicaragua are of the actual use of force against it by the United States. Of the acts which the Court has found imputable to the Government of the United States, the following are relevant in this respect :
— the laying of mines in Nicaraguan internal or territorial waters in early 1984 (paragraph 80 above);
— certain attacks on Nicaraguan ports, oil installations and a naval base (paragraphs 81 and 86 above).
These activities constitute infringements of the principle of the prohibition of the use of force, defined earlier, unless they are justified by circumstances which exclude their unlawfulness, a question now to be examined. The Court has also found (paragraph 92) the existence of military manoeuvres held by the United States near the Nicaraguan borders; and Nicaragua has made some suggestion that this constituted a “threat of force”, which is equally forbidden by the principle of non-use of force. The Court is however not satisfied that the manoeuvres complained of, in the circumstances in which they were held, constituted on the part of the United States a breach, as against Nicaragua, of the principle forbidding recourse to the threat or use of force.
So far as the claim concerns breach of the Charter , it is excluded from the Court's jurisdiction by the multilateral treaty reservation. As to the claim that United States activities in relation to the contras constitute a breach of the customary international law principle of the non-use of force, the Court finds that, subject to the question whether the action of the United States might be justified as an exercise of the right of self-defence, the United States has committed a prima facie violation of that principle by its assistance to the contras in Nicaragua, by “organizing or encouraging the organization of irregularforces or armed bands … for incursion into the territory of another State”, and “participating in acts of civil strife … in another State”, in the terms of General Assembly resolution 2625 (XXV) . According to that resolution, participation of this kind is contrary to the principle of the prohibition of the use of force when the acts of civil strife referred to “involve a threat or use of force”. In the view of the Court, while the arming and training of the contras can certainly be said to involve the threat or use of force against Nicaragua, this is not necessarily so in respect of all the assistance given by the United States Government. In particular, the Court considers that the mere supply of funds to the contras, while undoubtedly an act of intervention in the internal affairs of Nicaragua, as will be explained below, does not in itself amount to a use of force.
229. The Court must thus consider whether, as the Respondent claims, the acts in question of the United States are justified by the exercise of its right of collective self-defence against an armed attack. The Court must therefore establish whether the circumstances required for the exercise of this right of self-defence are present and, if so, whether the steps taken by the United States actually correspond to the requirements of international law. For the Court to conclude that the United States was lawfully exercising its right of collective self-defence, it must first find that Nicaragua engaged in an armed attack against El Salvador, Honduras or Costa Rica.
230. As regards El Salvador, the Court has found (paragraph 160 above) that it is satisfied that between July 1979 and the early months of 1981, an intermittent flow of arms was routed via the territory of Nicaragua to the armed opposition in that country. The Court was not however satisfied that assistance has reached the Salvadorian armed opposition, on a scale of any significance, since the early months of 1981, or that the Government of Nicaragua was responsible for any flow of arms at either period. Even assuming that the supply of arms to the opposition in El Salvador could be treated as imputable to the Government of Nicaragua, to justify invocation of the right of collective self-defence in customary international law, it would have to be equated with an armed attack by Nicaragua on El Salvador. As stated above, the Court is unable to consider that, in customary international law, the provision of arms to the opposition in another State constitutes an armed attack on that State. Even at a time when the arms flow was at its peak, and again assuming the participation of the Nicaraguan Government, that would not constitute such armed attack.
231. Turning to Honduras and Costa Rica, the Court has also stated (paragraph 164 above) that it should find established that certain transborder incursions into the territory of those two States, in 1982, 1983 and 1984, were imputable to the Government of Nicaragua. Very little information is however available to the Court as to the circumstances of these incursions or their possible motivations, which renders it difficult to decide whether they may be treated for legal purposes as amounting, singly or collectively, to an “armed attack” by Nicaragua on either or both States. The Court notes that during the Security Council debate in March/April 1984, the representative of Costa Rica made no accusation of an armed attack, emphasizing merely his country's neutrality and support for the Contadora process (S/PV.2529, pp. 13–23); the representative of Honduras however stated that
”my country is the object of aggression made manifest through a number of incidents by Nicaragua against our territorial integrity and civilian population” (ibid., p. 37).
There are however other considerations which justify the Court in finding that neither these incursions, nor the alleged supply of arms to the opposition in El Salvador, may be relied on as justifying the exercise of the right of collective self-defence.
232. The exercise of the right of collective self-defence presupposes that an armed attack has occurred; and it is evident that it is the victim State, being the most directly aware of that fact, which is likely to draw general attention to its plight. It is also evident that if the victim State wishes another State to come to its help in the exercise of the right of collective self-defence, it will normally make an express request to that effect. Thus in the present instance, the Court is entitled to take account, in judging the asserted justification of the exercise of collective self-defence by the United States, of the actual conduct of El Salvador, Honduras and Costa Rica at the relevant time, as indicative of a belief by the State in question that it was the victim of an armed attack by Nicaragua, and of the making of a request by the victim State to the United States for help in the exercise of collective self-defence.
233. The Court has seen no evidence that the conduct of those States was consistent with such a situation, either at the time when the United States first embarked on the activities which were allegedly justified by self-defence, or indeed for a long period subsequently. So far as El Salvador is concerned, it appears to the Court that while El Salvador did in fact officially declare itself the victim of an armed attack, and did ask for the United States to exercise its right of collective self-defence, this occurred only on a date much later than the commencement of the United States activities which were allegedly justified by this request. The Court notes that on 3 April 1984, the representative of El Salvador before the United Nations Security Council, while complaining of the “open foreign intervention practised by Nicaragua in our internal affairs” (S/PV.2528, p. 58), refrained from stating that El Salvador had been subjected to armed attack, and made no mention of the right of collective self-defence which it had supposedly asked the United States to exercise. Nor was this mentioned when El Salvador addressed a letter to the Court in April 1984, in connection with Nicaragua's complaint against the United States. It was only in its Declaration of Intervention filed on 15 August 1984, that El Salvador referred to requests addressed at various dates to the United States for the latter to exercise its right of collective self-defence (para. XII), asserting on this occasion that it had been the victim of aggression from Nicaragua “since at least 1980”. In that Declaration, El Salvador affirmed that initially it had “not wanted to present any accusation or allegation [against Nicaragua] to any of the jurisdictions to which we have a right to apply”, since it sought “a solution of understanding and mutual respect” (para. III).
234. As to Honduras and Costa Rica, they also were prompted by the institution of proceedings in this case to address communications to the Court; in neither of these is there mention of armed attack or collective self-defence. As has already been noted (paragraph 231 above), Honduras in the Security Council in 1984 asserted that Nicaragua had engaged in aggression against it, but did not mention that a request had consequently been made to the United States for assistance by way of collective self-defence. On the contrary, the representative of Honduras emphasized that the matter before the Security Council “is a Central American problem, without exception, and it must be solved regionally” (S/PV.2529, p. 38), i.e., through the Contadora process. The representative of Costa Rica also made no reference to collective self-defence. Nor, it may be noted, did the representative of the United States assert during that debate that it had acted in response to requests for assistance in that context.
235. There is also an aspect of the conduct of the United States which the Court is entitled to take into account as indicative of the view of that State on the question of the existence of an armed attack. At no time, up to the present, has the United States Government addressed to the Security Council, in connection with the matters the subject of the present case, the report which is required by Article 51 of the United Nations Charter in respect of measures which a State believes itself bound to take when it exercises the right of individual or collective self-defence. The Court, whose decision has to be made on the basis of customary international law, has already observed that in the context of that law, the reporting obligation enshrined in Article 51 of the Charter of the United Nations does not exist. It does not therefore treat the absence of a report on the part of the United States as the breach of an undertaking forming part of the customary international law applicable to the present dispute. But the Court is justified in observing that this conduct of the United States hardly conforms with the latter's avowed conviction that it was acting in the context of collective self-defence as consecrated by Article 51 of the Charter. This fact is all the more noteworthy because, in the Security Council, the United States has itself taken the view that failure to observe the requirement to make a report contradicted a State's claim to be acting on the basis of collective self-defence (S/PV.2187).
236. Similarly, while no strict legal conclusion may be drawn from the date of El Salvador's announcement that it was the victim of an armed attack, and the date of its official request addressed to the United States concerning the exercise of collective self-defence, those dates have a significance as evidence of El Salvador's view of the situation. The declaration and the request of El Salvador, made publicly for the first time in August 1984, do not support the contention that in 1981 there was an armed attack capable of serving as a legal foundation for United States activities which began in the second half of that year. The States concerned did not behave as though there were an armed attack at the time when the activities attributed by the United States to Nicaragua, without actually constituting such an attack, were nevertheless the most accentuated; they did so behave only at a time when these facts fell furthest short of what would be required for the Court to take the view that an armed attack existed on the part of Nicaragua against El Salvador.
237. Since the Court has found that the condition sine qua non required for the exercise of the right of collective self-defence by the United States is not fulfilled in this case, the appraisal of the United States activities in relation to the criteria of necessity and proportionality takes on a different significance. As a result of this conclusion of the Court, even if the United States activities in question had been carried on in strict compliance with the canons of necessity and proportionality, they would not thereby become lawful. If however they were not, this may constitute an additional ground of wrongfulness. On the question of necessity, the Court observes that the United States measures taken in December 1981 (or, at the earliest, March of that year — paragraph 93 above) cannot be said to correspond to a “necessity” justifying the United States action against Nicaragua on the basis of assistance given by Nicaragua to the armed opposition in El Salvador. First, these measures were only taken, and began to produce their effects, several months after the major offensive of the armed opposition against the Government of El Salvador had been completely repulsed (January 1981), and the actions of the opposition considerably reduced in consequence. Thus it was possible to eliminate the main danger to the Salvadorian Government without the United States embarking on activities in and against Nicaragua. Accordingly, it cannot be held that these activities were undertaken in the light of necessity. Whether or not the assistance to the contras might meet the criterion of proportionality, the Court cannot regard the United States activities summarized in paragraphs 80, 81 and 86, i.e., those relating to the mining of the Nicaraguan ports and the attacks on ports, oil installations, etc., as satisfying that criterion. Whatever uncertainty may exist as to the exact scale of the aid received by the Salvadorian armed opposition from Nicaragua, it is clear that these latter United States activities in question could not have been proportionate to that aid. Finally on this point, the Court must also observe that the reaction of the United States in the context of what it regarded as self-defence was continued long after the period in which any presumed armed attack by Nicaragua could reasonably be contemplated.
238. Accordingly, the Court concludes that the plea of collective self-defence against an alleged armed attack on El Salvador, Honduras or Costa Rica, advanced by the United States to justify its conduct toward Nicaragua, cannot be upheld; and accordingly that the United States has violated the principle prohibiting recourse to the threat or use of force by the acts listed in paragraph 227 above, and by its assistance to the contras to the extent that this assistance “involve[s] a threat or use of force” (paragraph 228 above).
239. The Court comes now to the application in this case of the principle of non-intervention in the internal affairs of States. It is argued by Nicaragua that the “military and paramilitary activities aimed at the government and people of Nicaragua” have two purposes :
“(a) The actual overthrow of the existing lawful government of Nicaragua and its replacement by a government acceptable to the United States; and
(b) The substantial damaging of the economy, and the weakening of the political system, in order to coerce the government of Nicaragua into the acceptance of United States policies and political demands.”
Nicaragua also contends that the various acts of an economic nature, summarized in paragraphs 123 to 125 above, constitute a form of “indirect” intervention in Nicaragua's internal affairs.
240. Nicaragua has laid much emphasis on the intentions it attributes to the Government of the United States in giving aid and support to the contras. It contends that the purpose of the policy of the United States and its actions against Nicaragua in pursuance of this policy was, from the beginning, to overthrow the Government of Nicaragua. In order to demonstrate this, it has drawn attention to numerous statements by high officials of the United States Government, in particular by President Reagan, expressing solidarity and support for the contras, described on occasion as “freedom fighters”, and indicating that support for the contras would continue until the Nicaraguan Government took certain action, desired by the United States Government, amounting in effect to a surrender to the demands of the latter Government. The official Report of the President of the United States to Congress of 10 April 1985, quoted in paragraph 96 above, states that : “We have not sought to overthrow the Nicaraguan Government nor to force on Nicaragua a specific system of government.” But it indicates also quite openly that “United States policy toward Nicaragua” — which includes the support for the military and paramilitary activities of the contras which it was the purpose of the Report to continue — “has consistently sought to achieve changes in Nicaraguan government policy and behavior”.
241. The Court however does not consider it necessary to seek to establish whether the intention of the United States to secure a change of governmental policies in Nicaragua went so far as to be equated with an endeavour to overthrow the Nicaraguan Government. It appears to the Court to be clearly established 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 1983 Report of the Intelligence Committee refers to the contras' “openly acknowledged goal of overthrowing the Sandinistas”. Even if it be accepted, for the sake of argument, that the objective of the United States in assisting the contras was solely to interdict the supply of arms to the armed opposition in El Salvador, it strains belief to suppose that a body formed in armed opposition to the Government of Nicaragua, and calling itself the “Nicaraguan Democratic Force”, intended only to check Nicaraguan interference in El Salvador and did not intend to achieve violent change of government in 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 farreaching. It is for this reason that the Court has only examined the intentions of the United States Government so far as they bear on the question of self-defence.
242. The Court therefore finds that the support given by the United States, up to the end of September 1984, to the military and paramilitary activities of the contras in Nicaragua, by financial support, training, supply of weapons, intelligence and logistic support, constitutes a clear breach of the principle of non-intervention. The Court has however taken note that, with effect from the beginning of the United States governmental financial year 1985, namely 1 October 1984, the United States Congress has restricted the use of the funds appropriated for assistance to the contras to “humanitarian assistance” (paragraph 97 above). There can be no doubt that the provision of strictly 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. The characteristics of such aid were indicated in the first and second of the fundamental principles declared by the Twentieth International Conference of the Red Cross, that
“The Red Cross, born of a desire to bring assistance without discrimination to the wounded on the battlefield, endeavours — in its international and national capacity — to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being. It promotes mutual understanding, friendship, co-operation and lasting peace amongst all peoples”
“It makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavours only to relieve suffering, giving priority to the most urgent cases of distress.”
243. The United States legislation which limited aid to the contras to humanitarian assistance however also defined what was meant by such assistance, namely :
“the provision of food, clothing, medicine, and other humanitarian assistance, and it does not include the provision of weapons, weapons systems, ammunition, or other equipment, vehicles, or material which can be used to inflict serious bodily harm or death” (paragraph 97 above).
It is also to be noted that, while the United States Congress has directed that the CIA and Department of Defence are not to administer any of the funds voted, it was understood that intelligence information might be “shared” with the contras. Since the Court has no information as to the interpretation in fact given to the Congress decision, or as to whether intelligence information is in fact still being supplied to the contras, it will limit itself to a declaration as to how the law applies in this respect. An essential feature of truly humanitarian aid is that it is given “without discrimination” of any kind. In the view of the Court, if the provision of “humanitarian assistance” is to escape condemnation as an intervention in the internal affairs of Nicaragua, not only must it be limited to the purposes hallowed in the practice of the Red Cross, namely “to prevent and alleviate human suffering”, and “to protect life and health and to ensure respect for the human being”; it must also, and above all, be given without discrimination to all in need in Nicaragua, not merely to the contras and their dependents.
244. As already noted, Nicaragua has also asserted that the United States is responsible for an “indirect” form of intervention in its internal affairs inasmuch as it has taken, to Nicaragua's disadvantage, certain action of an economic nature. The Court's attention has been drawn in particular to the cessation of economic aid in April 1981; the 90 per cent reduction in the sugar quota for United States imports from Nicaragua in April 1981; and the trade embargo adopted on 1 May 1985. While admitting in principle that some of these actions were not unlawful in themselves, counsel for Nicaragua argued that these measures of economic constraint add up to a systematic violation of the principle of non-intervention.
245. The Court does not here have to concern itself with possible breaches of such international economic instruments as the General Agreement on Tariffs and Trade , referred to in passing by counsel for Nicaragua; any such breaches would appear to fall outside the Court's jurisdiction, particularly in view of the effect of the multilateral treaty reservation, nor has Nicaragua seised the Court of any complaint of such breaches. The question of the compatibility of the actions complained of with the 1956 Treaty of Friendship, Commerce and Navigation will be examined below, in the context of the Court's examination of the provisions of that Treaty. At this point, the Court has merely to say that it is unable to regard such action on the economic plane as is here complained of as a breach of the customary-law principle of non-intervention.
246. Having concluded that the activities of the United States in relation to the activities of the contras in Nicaragua constitute prima facie acts of intervention, the Court must next consider whether they may nevertheless be justified on some legal ground. As the Court has stated, the principle of non-intervention derives from customary international law. It would certainly lose its effectiveness as a principle of law if intervention were to be justified by a mere request for assistance made by an opposition group in another State — supposing such a request to have actually been made by an opposition to the régime in Nicaragua in this instance. Indeed, it is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition. This would permit any State to intervene at any moment in the internal affairs of another State, whether at the request of the government or at the request of its opposition. Such a situation does not in the Court's view correspond to the present state of international law.
247. The Court has already indicated (paragraph 238) its conclusion that the conduct of the United States towards Nicaragua cannot be justified by the right of collective self-defence in response to an alleged armed attack on one or other of Nicaragua's neighbours. So far as regards the allegations of supply of arms by Nicaragua to the armed opposition in El Salvador, the Court has indicated that while the concept of an armed attack includes the despatch by one State of armed bands into the territory of another State, the supply of arms and other support to such bands cannot be equated with armed attack. Nevertheless, such activities may well constitute a breach of the principle of the non-use of force and an intervention in the internal affairs of a State, that is, a form of conduct which is certainly wrongful, but is of lesser gravity than an armed attack. The Court must therefore enquire now whether the activities of the United States towards Nicaragua might be justified as a response to an intervention by that State in the internal affairs of another State in Central America.
248. The United States admits that it is giving its support to the contras in Nicaragua, but justifies this by claiming that that State is adopting similar conduct by itself assisting the armed opposition in El Salvador, and to a lesser extent in Honduras and Costa Rica, and has committed transborder attacks on those two States. The United States raises this justification as one of self-defence; having rejected it on those terms, the Court has nevertheless to consider whether it may be valid as action by way of counter-measures in response to intervention. The Court has however to find that the applicable law does not warrant such a justification.
249. On the legal level the Court cannot regard response to an intervention by Nicaragua as such a justification. 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 counter-measures 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.
250. In the Application, Nicaragua further claims :
“That the United States, in breach of its obligation under general and customary international law, has violated and is violating the sovereignty of Nicaragua by :
— armed attacks against Nicaragua by air, land and sea;
— incursions into Nicaraguan territorial waters;
— aerial trespass into Nicaraguan airspace;
— efforts by direct and indirect means to coerce and intimidate the Government of Nicaragua.” (Para. 26 (b).)
The Nicaraguan Memorial, however, enumerates under the heading of violations of sovereignty only attacks on Nicaraguan territory, incursions into its territorial sea, and overflights. The claim as to United States “efforts by direct and indirect means to coerce and intimidate the Government of Nicaragua” was presented in the Memorial under the heading of the threat or use of force, which has already been dealt with above (paragraph 227). Accordingly, that aspect of Nicaragua's claim will not be pursued further.
251. The effects of the principle of respect for territorial sovereignty inevitably overlap with those of the principles of the prohibition of the use of force and of non-intervention. Thus the assistance to the contras, as well as the direct attacks on Nicaraguan ports, oil installations, etc., referred to in paragraphs 81 to 86 above, not only amount to an unlawful use of force, but also constitute infringements of the territorial sovereignty of Nicaragua, and incursions into its territorial and internal waters. Similarly, the mining operations in the Nicaraguan ports not only constitute breaches of the principle of the non-use of force, but also affect Nicaragua's sovereignty over certain maritime expanses. The Court has in fact found that these operations were carried on in Nicaragua's territorial or internal waters or both (paragraph 80), and accordingly they constitute a violation of Nicaragua's sovereignty. The principle of respect for territorial sovereignty is also directly infringed by the unauthorized overflight of a State's territory by aircraft belonging to or under the control of the government of another State. The Court has found above that such overflights were in fact made (paragraph 91 above).
252. These violations cannot be justified either by collective self-defence, for which, as the Court has recognized, the necessary circumstances are lacking, nor by any right of the United States to take counter-measures involving the use of force in the event of intervention by Nicaragua in El Salvador, since no such right exists under the applicable international law. They cannot be justified by the activities in El Salvador attributed to the Government of Nicaragua. The latter activities, assuming that they did in fact occur, do not bring into effect any right belonging to the United States which would justify the actions in question. Accordingly, such actions constitute violations of Nicaragua's sovereignty under customary international law.
253. At this point it will be convenient to refer to another aspect of the legal implications of the mining of Nicaragua's ports. As the Court has indicated in paragraph 214 above, where the vessels of one State enjoy a right of access to ports of another State, if that right of access is hindered by the laying of mines, this constitutes an infringement of the freedom of communications and of maritime commerce. This is clearly the case here. It is not for the Court to pass upon the rights of States which are not parties to the case before it; but it is clear that interference with a right of access to the ports of Nicaragua is likely to have an adverse effect on Nicaragua's economy and its trading relations with any State whose vessels enjoy the right of access to its ports. Accordingly, the Court finds, in the context of the present proceedings between Nicaragua and the United States, that the laying of mines in or near Nicaraguan ports constituted an infringement, to Nicaragua's detriment, of the freedom of communications and of maritime commerce.
254. The Court now turns to the question of the application of humanitarian law to the activities of the United States complained of in this case. Mention has already been made (paragraph 215 above) of the violations of customary international law by reason of the failure to give notice of the mining of the Nicaraguan ports, for which the Court has found the United States directly responsible. Except as regards the mines, Nicaragua has not however attributed any breach of humanitarian law to either United States personnel or the “UCLAs”, as distinct from the contras. The Applicant has claimed that acts perpetrated by the contras constitute breaches of the “fundamental norms protecting human rights”; it has not raised the question of the law applicable in the event of conflict such as that between the contras and the established Government. In effect, Nicaragua is accusing the contras of violations both of the law of human rights and humanitarian law, and is attributing responsibility for these acts to the United States. The Court has however found (paragraphs 115, 216) that this submission of Nicaragua cannot be upheld; but it has also found the United States responsible for the publication and dissemination of the manual on “Psychological Operations in Guerrilla Warfare” referred to in paragraphs 118 to 122 above.
and probably also of the prohibition of “violence to life and person, in particular murder to all kinds, …”.
256. It is also appropriate to recall the circumstances in which the manual of psychological operations was issued. When considering whether the publication of such a manual, encouraging the commission of acts contrary to general principles of humanitarian law, is unlawful, it is material to consider whether that encouragement was offered to persons in circumstances where the commission of such acts was likely or foreseeable. The Court has however found (paragraph 121) that at the relevant time those responsible for the issue of the manual were aware of, at the least, allegations that the behaviour of the contras in the field was not consistent with humanitarian law; it was in fact even claimed by the CIA that the purpose of the manual was to “moderate” such behaviour. The publication and dissemination of a manual in fact containing the advice quoted above must therefore be regarded as an encouragement, which was likely to be effective, to commit acts contrary to general principles of international humanitarian law reflected in treaties.
257. The Court has noted above (paragraphs 169 and 170) the attitude of the United States, as expressed in the finding of the Congress of 29 July 1985, linking United States support to the contras with alleged breaches by the Government of Nicaragua of its “solemn commitments to the Nicaraguan people, the United States, and the Organization of American States”. Those breaches were stated to involve questions such as the composition of the government, its political ideology and alignment, totalitarianism, human rights, militarization and aggression. So far as the question of “aggression in the form of armed subversion against its neighbours” is concerned, the Court has already dealt with the claimed justification of collective self-defence in response to armed attack, and will not return to that matter. It has also disposed of the suggestion of a right to collective counter-measures in face of an armed intervention. What is now in question is whether there is anything in the conduct of Nicaragua which might legally warrant counter-measures by the United States.
258. The questions as to which the Nicaraguan Government is said to have entered into a commitment are questions of domestic policy. The Court would not therefore normally consider it appropriate to engage in a verification of the truth of assertions of this kind, even assuming that it was in a position to do so. A State's domestic policy falls within its exclusive jurisdiction, provided of course that it does not violate any obligation of international law. Every State possesses a fundamental right to choose and implement its own political, economic and social systems. Consequently, there would normally be no need to make any enquiries, in a matter outside the Court's jurisdiction, to ascertain in what sense and along what lines Nicaragua has actually exercised its right.
on the other hand, it provides for the right of every State “to organize itself as it sees fit” (Art. 12), and to “develop its cultural, political and economic life freely and naturally” (Art. 16).
260. The Court has set out above the facts as to the events of 1979, including the resolution of the XVIIth Meeting of Consultation of Ministers for Foreign Affairs of the Organization of American States, and the communications of 12 July 1979 from the Junta of the Government of National Reconstruction of Nicaragua to the Secretary-General of the Organization, accompanied by a “Plan to secure peace”. The letter contained inter alia a list of the objectives of the Nicaraguan Junta and stated in particular its intention of installing the new régime by a peaceful, orderly transition and of respecting human rights under the supervision of the Inter-American Commission on Human Rights, which the Junta invited to visit Nicaragua “as soon as we are installed”. In this way, before its installation in Managua, the new régime soothed apprehensions as desired and expressed its intention of governing the country democratically.
261. However, the Court is unable to find anything in these documents, whether the resolution or the communication accompanied by the “Plan to secure peace”, from which it can be inferred that any legal undertaking was intended to exist. Moreover, the Junta made it plain in one of these documents that its invitation to the Organization of American States to supervise Nicaragua's political life should not be allowed to obscure the fact that it was the Nicaraguans themselves who were to decide upon and conduct the country's domestic policy. The resolution of 23 June 1979 also declares that the solution of their problems is a matter “exclusively” for the Nicaraguan people, while stating that that solution was to be based (in Spanish, deberia inspirarse) on certain foundations which were put forward merely as recommendations to the future government. This part of the resolution is a mere statement which does not comprise any formal offer which if accepted would constitute a promise in law, and hence a legal obligation. Nor can the Court take the view that Nicaragua actually undertook a commitment to organize free elections, and that this commitment was of a legal nature. The Nicaraguan Junta of National Reconstruction planned the holding of free elections as part of its political programme of government, following the recommendation of the XVIIth Meeting of Consultation of Foreign Ministers of the Organization of American States. This was an essentially political pledge, made not only to the Organization, but also to the people of Nicaragua, intended to be its first beneficiaries. But the Court cannot find an instrument with legal force, whether unilateral or synallagmatic, whereby Nicaragua has committed itself in respect of the principle or methods of holding elections. The Organization of American States Charter has already been mentioned, with its respect for the political independence of the member States; in the field of domestic policy, it goes no further than to list the social standards to the application of which the Members “agree to dedicate every effort”, including :
“The incorporation and increasing participation of the marginal sectors of the population, in both rural and urban areas, in the economic, social, civic, cultural, and political life of the nation, in order to achieve the full integration of the national community, acceleration of the process of social mobility, and the consolidation of the democratic system.” (Art. 43 (f) .)
It is evident that provisions of this kind are far from being a commitment as to the use of particular political mechanisms.
262. Moreover, even supposing that such a political pledge had had the force of a legal commitment, it could not have justified the United States insisting on the fulfilment of a commitment made not directly towards the United States, but towards the Organization, the latter being alone empowered to monitor its implementation. The Court can see no legal basis for the “special responsibility regarding the implementation of the commitments made” by the Nicaraguan Government which the United States considers itself to have assumed in view of “its role in the installation of the current Government of Nicaragua” (see paragraph 170 above). Moreover, even supposing that the United States were entitled to act in lieu of the Organization, it could hardly make use for the purpose of methods which the Organization could not use itself; in particular, it could not be authorized to use force in that event. Of its nature, a commitment like this is one of a category which, if violated, cannot justify the use of force against a sovereign State.
263. The finding of the United States Congress also expressed the view that the Nicaraguan Government had taken “significant steps towards establishing a totalitarian Communist dictatorship”. However the régime in Nicaragua be defined, adherence by a State to any particular doctrine does not constitute a violation of customary international law; to hold otherwise would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State. Consequently, Nicaragua's domestic policy options, even assuming that they correspond to the description given of them by the Congress finding, cannot justify on the legal plane the various actions of the Respondent complained of. The Court cannot contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system.
264. The Court has also emphasized the importance to be attached, in other respects, to a text such as the Helsinki Final Act, or, on another level, to General Assembly resolution 2625 (XXV) which, as its name indicates, is a declaration on “Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations ”. Texts like these, in relation to which the Court has pointed to the customary content of certain provisions such as the principles of the non-use of force and non-intervention, envisage the relations among States having different political, economic and social systems on the basis of coexistence among their various ideologies; the United States not only voiced no objection to their adoption, but took an active part in bringing it about.
265. Similar considerations apply to the criticisms expressed by the United States of the external policies and alliances of Nicaragua. Whatever the impact of individual alliances on regional or international political-military balances, the Court is only competent to consider such questions from the standpoint of international law. From that aspect, it is sufficient to say that State sovereignty evidently extends to the area of its foreign policy, and that there is no rule of customary international law to prevent a State from choosing and conducting a foreign policy in co-ordination with that of another State.
266. The Court also notes that these justifications, advanced solely in a political context which it is naturally not for the Court to appraise, were not advanced as legal arguments. The respondent State has always confined itself to the classic argument of self-defence, and has not attempted to introduce a legal argument derived from a supposed rule of “ideological intervention”, which would have been a striking innovation. The Court would recall that one of the accusations of the United States against Nicaragua is violation of “the 1965 General Assembly Declaration on Intervention ” (paragraph 169 above), by its support for the armed opposition to the Government in El Salvador. It is not aware of the United States having officially abandoned reliance on this principle, substituting for it a new principle “of ideological intervention”, the definition of which would be discretionary. As stated above (paragraph 29), the Court is not solely dependent for its decision on the argument of the Parties before it with respect to the applicable law : it is required to consider on its own initiative all rules of international law which may be relevant to the settlement of the dispute even if these rules have not been invoked by a party. The Court is however not entitled to ascribe to States legal views which they do not themselves formulate.
267. The Court also notes that Nicaragua is accused by the 1985 finding of the United States Congress of violating human rights. This particular point requires to be studied independently of the question of the existence of a “legal commitment” by Nicaragua towards the Organization of American States to respect these rights; the absence of such a commitment would not mean that Nicaragua could with impunity violate human rights. However, where human rights are protected by international conventions, that protection takes the form of such arrangements for monitoring or ensuring respect for human rights as are provided for in the conventions themselves. The political pledge by Nicaragua was made in the context of the Organization of American States, the organs of which were consequently entitled to monitor its observance. The Court has noted above (paragraph 168) that the Nicaraguan Government has since 1979 ratified a number of international instruments on human rights, and one of these was the American Convention on Human Rights (the Pact of San José, Costa Rica). The mechanisms provided for therein have functioned. The Inter-American Commission on Human Rights in fact took action and compiled two reports (OEA/Ser.L/V/11.53 and 62) following visits by the Commission to Nicaragua at the Government's invitation. Consequently, the Organization was in a position, if it so wished, to take a decision on the basis of these reports.
268. In any event, while the United States might form its own appraisal of the situation as to respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect. With regard to the steps actually taken, the protection of human rights, a strictly humanitarian objective, cannot be compatible with the mining of ports, the destruction of oil installations, or again with the training, arming and equipping of the contras. The Court concludes that the argument derived from the preservation of human rights in Nicaragua cannot afford a legal justification for the conduct of the United States, and cannot in any event be reconciled with the legal strategy of the respondent State, which is based on the right of collective self-defence.
269. The Court now turns to another factor which bears both upon domestic policy and foreign policy. This is the militarization of Nicaragua, which the United States deems excessive and such as to prove its aggressive intent, and in which it finds another argument to justify its activities with regard to Nicaragua. It is irrelevant and inappropriate, in the Court's opinion, to pass upon this allegation of the United States, since in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited, and this principle is valid for all States without exception.
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270. Having thus concluded its examination of the claims of Nicaragua based on customary international law, the Court must now consider its claims based on the Treaty of Friendship, Commerce and Navigation between the Parties, signed at Managua on 21 January 1956; Article XXIV, paragraph 2, of that Treaty provides for the jurisdiction of the Court for any dispute between the Parties as to its interpretation or application. The first claim which Nicaragua makes in relation to the Treaty is however one not based directly on a specific provision thereof. Nicaragua has argued that the United States, by its conduct in relation to Nicaragua, has deprived the Treaty of its object and purpose, and emptied it of real content. For this purpose, Nicaragua has relied on the existence of a legal obligation of States to refrain from acts which would impede the due performance of any treaties entered into by them. However, if there is a duty of a State not to impede the due performance of a treaty to which it is a party, that is not a duty imposed by the treaty itself. Nicaragua itself apparently contends that this is a duty arising under customary international law independently of the treaty, that it is implicit in the rule pacta sunt servanda. This claim therefore does not in fact fall under the heading of possible breach by the United States of the provisions of the 1956 Treaty, though it may involve the interpretation or application thereof.
271. In view of the Court's finding in its 1984 Judgment that the Court has jurisdiction both under the 1956 FCN Treaty and on the basis of the United States acceptance of jurisdiction under the Optional Clause of Article 36, paragraph 2, this poses no problem of jurisdiction in the present case. It should however be emphasized that the Court does not consider that a compromissory clause of the kind included in Article XXIV, paragraph 2, of the 1956 FCN Treaty , providing for jurisdiction over disputes as to its interpretation or application, would enable the Court to entertain a claim alleging conduct depriving the treaty of its object and purpose. It is only because in the present case the Court has found that it has jurisdiction, apart from Article XXIV, over any legal dispute between the Parties concerning any of the matters enumerated in Article 36, paragraph 2, of the Statute, that it can proceed to examine Nicaragua's claim under this head. However, as indicated in paragraph 221 above, the Court has first to determine whether the actions of the United States complained of as breaches of the 1956 FCN Treaty have to be regarded as “measures … necessary to protect its essential security interests [sus intereses esenciales y seguridad]”, since Article XXI of the Treaty provides that “the present Treaty shall not preclude the application of” such measures. The question thus arises whether Article XXI similarly affords a defence to a claim under customary international law based on allegation of conduct depriving the Treaty of its object and purpose if such conduct can be shown to be “measures … necessary to protect” essential security interests.
272. In the view of the Court, an act cannot be said to be one calculated to deprive a treaty of its object and purpose, or to impede its due performance, if the possibility of that act has been foreseen in the treaty itself, and it has been expressly agreed that the treaty “shall not preclude” the act, so that it will not constitute a breach of the express terms of the treaty. Accordingly, the Court cannot entertain either the claim of Nicaragua alleging conduct depriving the treaty of its object and purpose, or its claims of breach of specific articles of the treaty, unless it is first satisfied that the conduct complained of is not “measures … necessary to protect” the essential security interests of the United States. The Court will first proceed to examine whether the claims of Nicaragua in relation to the Treaty appear to be well founded, and then determine whether they are nevertheless justifiable by reference to Article XXI.
273. The argument that the United States has deprived the Treaty of its object and purpose has a scope which is not very clearly defined, but it appears that in Nicaragua's contention the Court could on this ground make a blanket condemnation of the United States for all the activities of which Nicaragua complains on more specific grounds. For Nicaragua, the Treaty is “without doubt a treaty of friendship which imposes on the Parties the obligation to conduct amicable relations with each other”, and “Whatever the exact dimensions of the legal norm of ‘friendship’ there can be no doubt of a United States violation in this case”. In other words, the Court is asked to rule that a State which enters into a treaty of friendship binds itself, for so long as the Treaty is in force, to abstain from any act toward the other party which could be classified as an unfriendly act, even if such act is not in itself the breach of an international obligation. Such a duty might of course be expressly stipulated in a treaty, or might even emerge as a necessary implication from the text; but as a matter of customary international law, it is not clear that the existence of such a far-reaching rule is evidenced in the practice of States. There must be a distinction, even in the case of a treaty of friendship, between the broad category of unfriendly acts, and the narrower category of acts tending to defeat the object and purpose of the Treaty. That object and purpose is the effective implementation of friendship in the specific fields provided for in the Treaty, not friendship in a vague general sense.
Nicaragua claims that the conduct of the United States is such as drastically to “affect the operation” of the Treaty; but so far as the Court is informed, no representations on the specific question have been made. The Court has therefore first to be satisfied that a claim based on the 1956 FCN Treaty is admissible even though no attempt has been made to use the machinery of Article XXIV, paragraph 1, to resolve the dispute. In general, treaty rules being lex specialis, it would not be appropriate that a State should bring a claim based on a customary-law rule if it has by treaty already provided means for settlement of such a claim. However, in the present case, the operation of Article XXIV, paragraph 1, if it had been invoked, would have been wholly artificial. While Nicaragua does allege that certain activities of the United States were in breach of the 1956 FCN Treaty, it has also claimed, and the Court has found, that they were violations of customary international law. In the Court's view, it would therefore be excessively formalistic to require Nicaragua first to exhaust the procedure of Article XXIV, paragraph 1, before bringing the matter to the Court. In its 1984 Judgment the Court has already dealt with the argument that Article XXIV, paragraph 2, of the Treaty required that the dispute be “one not satisfactorily adjusted by diplomacy”, and that this was not the case in view of the absence of negotiations between the Parties. The Court held that :
“it does not necessarily follow that, because a State has not expressly referred in negotiations with another State to a particular treaty as having been violated by conduct of that other State, it is debarred from invoking a compromissory clause in that treaty” ( I.C.J. Reports 1984, p. 428).
The point now at issue is different, since the claim of conduct impeding the operation of the Treaty is not advanced on the basis of the compromissory clause in the Treaty. The Court nevertheless considers that neither paragraph of Article XXIV constitutes a bar to examination of Nicaragua's claims.
275. In respect of the claim that the United States activities have been such as to deprive the 1956 FCN Treaty of its object and purpose, the Court has to make a distinction. It is unable to regard all the acts complained of in that light; but it does consider that there are certain activities of the United States which are such as to undermine the whole spirit of a bilateral agreement directed to sponsoring friendship between the two States parties to it. These are : the direct attacks on ports, oil installations, etc., referred to in paragraphs 81 to 86 above; and the mining of Nicaraguan ports, mentioned in paragraph 80 above. Any action less calculated to serve the purpose of “strengthening the bonds of peace and friendship traditionally existing between” the Parties, stated in the Preamble of the Treaty , could hardly be imagined.
276. While the acts of economic pressure summarized in paragraphs 123 to 125 above are less flagrantly in contradiction with the purpose of the Treaty , the Court reaches a similar conclusion in respect of some of them. A State is not bound to continue particular trade relations longer than it sees fit to do so, in the absence of a treaty commitment or other specific legal obligation; but where there exists such a commitment, of the kind implied in a treaty of friendship and commerce, such an abrupt act of termination of commercial intercourse as the general trade embargo of 1 May 1985 will normally constitute a violation of the obligation not to defeat the object and purpose of the treaty. The 90 per cent cut in the sugar import quota of 23 September 1983 does not on the other hand seem to the Court to go so far as to constitute an act calculated to defeat the object and purpose of the Treaty. The cessation of economic aid, the giving of which is more of a unilateral and voluntary nature, could be regarded as such a violation only in exceptional circumstances. The Court has also to note that, by the very terms of the legislation authorizing such aid (the Special Central American Assistance Act, 1979), of which the Government of Nicaragua must have been aware, the continuance of aid was made subject to the appreciation of Nicaragua's conduct by the President of the United States. As to the opposition to the grant of loans from international institutions, the Court cannot regard this as sufficiently linked with the 1956 FCN Treaty to constitute an act directed to defeating its object and purpose.
277. Nicaragua claims that the United States is in breach of Article I of the 1956 FCN Treaty , which provides that each Party is to accord “equitable treatment” to the nationals of the other. Nicaragua suggests that whatever meaning given to the expression “equitable treatment”
“it necessarily precludes the Government of the United States from … killing, wounding or kidnapping citizens of Nicaragua, and, more generally from threatening Nicaraguan citizens in the integrity of their persons or the safety of their property”.
It is Nicaragua's claim that the treatment of Nicaraguan citizens complained of was inflicted by the United States or by forces controlled by the United States. The Court is however not satisfied that the evidence available demonstrates that the contras were “controlled” by the United States when committing such acts. As the Court has indicated (paragraph 110 above), the exact extent of the control resulting from the financial dependence of the contras on the United States authorities cannot be established; and it has not been able to conclude that the contras are subject to the United States to such an extent that any acts they have committed are imputable to that State (paragraph 115 above). Even if the provision for “equitable treatment” in the Treaty is read as involving an obligation not to kill, wound or kidnap Nicaraguan citizens in Nicaragua — as to which the Court expresses no opinion — those acts of the contras performed in the course of their military or paramilitary activities in Nicaragua are not conduct attributable to the United States.
278. Secondly, Nicaragua claims that the United States has violated the provisions of the Treaty relating to freedom of communication and commerce. For the reasons indicated in paragraph 253 above, the Court must uphold the contention that the mining of the Nicaraguan ports by the United States is in manifest contradiction with the freedom of navigation and commerce guaranteed by Article XIX, paragraph 1, of the 1956 Treaty ; there remains the question whether such action can be justified under Article XXI (see paragraphs 280 to 282 below). In the commercial context of the Treaty, Nicaragua's claim is justified not only as to the physical damage to its vessels, but also the consequential damage to its trade and commerce. Nicaragua however also contended that all the activities of the United States in and against Nicaragua are “violative of the 1956 Treaty” :
“Since the word ‘commerce’ in the 1956 Treaty must be understood in its broadest sense, all of the activities by which the United States has deliberately inflicted on Nicaragua physical damage and economic losses of all types, violate the principle of freedom of commerce which the Treaty establishes in very general terms.”
It is clear that considerable economic loss and damage has been inflicted on Nicaragua by the actions of the contras : apart from the economic impact of acts directly attributable to the United States, such as the loss of fishing boats blown up by mines, the Nicaraguan Minister of Finance estimated loss of production in 1981–1984 due to inability to collect crops, etc., at some US$ 300 million. However, as already noted (paragraph 277 above) the Court has not found the relationship between the contras and the United States Government to have been proved to be such that the United States is responsible for all acts of the contras.
279. The trade embargo declared by the United States Government on 1 May 1985 has already been referred to in the context of Nicaragua's contentions as to acts tending to defeat the object and purpose of the 1956 FCN Treaty . The question also arises of its compatibility with the letter and the spirit of Article XIX of the Treaty . That Article provides that “Between the territories of the two Parties there shall be freedom of commerce and navigation” (para. 1) and continues
“3. Vessels of either Party shall have liberty, on equal terms with vessels of the other Party and on equal terms with vessels of any third country, to come with their cargoes to all ports, places and waters of such other Party open to foreign commerce and navigation …”
By the Executive Order dated 1 May 1985 the President of the United States declared “I hereby prohibit vessels of Nicaraguan registry from entering into United States ports, and transactions relating thereto”. The Court notes that on the same day the United States gave notice to Nicaragua to terminate the Treaty under Article XXV, paragraph 3, thereof; but that Article requires “one year's written notice” for the termination to take effect. The freedom of Nicaraguan vessels, under Article XIX, paragraph 3, “to come with their cargoes to all ports, places and waters” of the United States could not therefore be interfered with during that period of notice, let alone terminated abruptly by the declaration of an embargo. The Court accordingly finds that the embargo constituted a measure in contradiction with Article XIX of the 1956 FCN Treaty.
280. The Court has thus found that the United States is in breach of a duty not to deprive the 1956 FCN Treaty of its object and purpose, and has committed acts which are in contradiction with the terms of the Treaty, subject to the question whether the exceptions in Article XXI, paragraphs 1 (c) and 1 (d) , concerning respectively “traffic in arms” and “measures … necessary to fulfill” obligations “for the maintenance or restoration of international peace and security” or necessary to protect the “essential security interests” of a party, may be invoked to justify the acts complained of. In its Counter-Memorial on jurisdiction and admissibility, the United States relied on paragraph 1 (c) as showing the inapplicability of the 1956 FCN Treaty to Nicaragua's claims. This paragraph appears however to be relevant only in respect of the complaint of supply of arms to the contras, and since the Court does not find that arms supply to be a breach of the Treaty, or an act calculated to deprive it of its object and purpose, paragraph 1 (c) does not need to be considered further. There remains the question of the relationship of Article XXI, paragraph 1 (d), to the direct attacks on ports, oil installations, etc.; the mining of Nicaraguan ports; and the general trade embargo of 1 May 1985 (paragraphs 275 to 276 above).
281. In approaching this question, the Court has first to bear in mind the chronological sequence of events. If the activities of the United States are to be covered by Article XXI of the Treaty , they must have been, at the time they were taken, measures necessary to protect its essential security interests. Thus the finding of the President of the United States on 1 May 1985 that “the policies and actions of the Government of Nicaragua constitute an unusual and extraordinary threat to the national security and foreign policy of the United States”, even if it be taken as sufficient evidence that that was so, does not justify action by the United States previous to that date.
282. Secondly, the Court emphasizes the importance of the word “necessary” in Article XXI : the measures taken must not merely be such as tend to protect the essential security interests of the party taking them, but must be “necessary” for that purpose. Taking into account the whole situation of the United States in relation to Central America, so far as the Court is informed of it (and even assuming that the justification of self-defence, which the Court has rejected on the legal level, had some validity on the political level), the Court considers that the mining of Nicaraguan ports, and the direct attacks on ports and oil installations, cannot possibly be justified as “necessary” to protect the essential security interests of the United States. As to the trade embargo, the Court has to note the express justification for it given in the Presidential finding quoted in paragraph 125 above, and that the measure was one of an economic nature, thus one which fell within the sphere of relations contemplated by the Treaty . But by the terms of the Treaty itself, whether a measure is necessary to protect the essential security interests of a party is not, as the Court has emphasized (paragraph 222 above), purely a question for the subjective judgment of the party; the text does not refer to what the party “considers necessary” for that purpose. Since no evidence at all is available to show how Nicaraguan policies had in fact become a threat to “essential security interests” in May 1985, when those policies had been consistent, and consistently criticized by the United States, for four years previously, the Court is unable to find that the embargo was “necessary” to protect those interests. Accordingly, Article XXI affords no defence for the United States in respect of any of the actions here under consideration.
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283. The third submission of Nicaragua in its Memorial on the merits, set out in paragraph 15 above, requests the Court to ad judge and declare that compensation is due to Nicaragua and
“to receive evidence and to determine, in a subsequent phase of the present proceedings, the quantum of damages to be assessed as the compensation due to the Republic of Nicaragua”.
The fourth submission requests the Court to award to Nicaragua the sum of 370,200,000 United States dollars, “which sum constitutes the minimum valuation of the direct damages” claimed by Nicaragua. In order to decide on these submissions, the Court must satisfy itself that it possesses jurisdiction to do so. In general, jurisdiction to determine the merits of a dispute entails jurisdiction to determine reparation. More specifically, the Court notes that in its declaration of acceptance of jurisdiction under the Optional Clause of 26 August 1946, the United States expressly accepted the Court's jurisdiction in respect of disputes concerning “the nature or extent of the reparation to be made for the breach of an international obligation”. The corresponding declaration by which Nicaragua accepted the Court's jurisdiction contains no restriction of the powers of the Court under Article 36, paragraph 2 (d), of its Statute ; Nicaragua has thus accepted the “same obligation”. Under the 1956 FCN Treaty , the Court has jurisdiction to determine “any dispute between the Parties as to the interpretation or application of the present Treaty” (Art. XXIV, para. 2); and as the Permanent Court of International Justice stated in the case concerning the Factory at Chorzów ,
“Differences relating to reparations, which may be due by reason of failure to apply a convention, are consequently differences relating to its application.” (Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21.)
284. The Court considers appropriate the request of Nicaragua for the nature and amount of the reparation due to it to be determined in a subsequent phase of the proceedings. While a certain amount of evidence has been provided, for example, in the testimony of the Nicaraguan Minister of Finance, of pecuniary loss sustained, this was based upon contentions as to the responsibility of the United States which were more farreaching than the conclusions at which the Court has been able to arrive. The opportunity should be afforded Nicaragua to demonstrate and prove exactly what injury was suffered as a result of each action of the United States which the Court has found contrary to international law. Nor should it be overlooked that, while the United States has chosen not to appear or participate in the present phase of the proceedings, Article 53 of the Statute does not debar it from appearing to present its arguments on the question of reparation if it so wishes. On the contrary, the principle of the equality of the Parties requires that it be given that opportunity. It goes without saying, however, that in the phase of the proceedings devoted to reparation, neither Party may call in question such findings in the present Judgment as have become res judicata.
285. There remains the request of Nicaragua (paragraph 15 above) for an award, at the present stage of the proceedings, of $370,200,000 as the “minimum (and in that sense provisional) valuation of direct damages”. There is no provision in the Statute of the Court either specifically empowering the Court to make an interim award of this kind, or indeed debarring it from doing so. In view of the final and binding character of the Court's judgments, under Articles 59 and 60 of the Statute , it would however only be appropriate to make an award of this kind, assuming that the Court possesses the power to do so, in exceptional circumstances, and where the entitlement of the State making the claim was already established with certainty and precision. Furthermore, in a case in which the respondent State is not appearing, so that its views on the matter are not known to the Court, the Court should refrain from any unnecessary act which might prove an obstacle to a negotiated settlement. It bears repeating that
“the judicial settlement of international disputes, with a view to which the Court has been established, is simply an alternative to the direct and friendly settlement of such disputes between the Parties; as consequently it is for the Court to facilitate, so far as is compatible with its Statute, such direct and friendly settlement …” ( Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, P.C.I.J., Series A, No. 22, p. 13).
Accordingly, the Court does not consider that it can accede at this stage to the request made in the Fourth Submission of Nicaragua.
286. By its Order of 10 May 1984, the Court indicated, pursuant to Article 41 of the Statute of the Court , the provisional measures which in its view “ought to be taken to preserve the respective rights of either party”, pending the final decision in the present case. In connection with the first such measure, namely that
“The United States of America should immediately cease and refrain from any action restricting, blocking or endangering access to or from Nicaraguan ports, and, in particular, the laying of mines”,
the Court notes that no complaint has been made that any further action of this kind has been taken.
287. On 25 June 1984, the Government of Nicaragua addressed a communication to the Court referring to the Order indicating provisional measures, informing the Court of what Nicaragua regarded as “the failure of the United States to comply with that Order”, and requesting the indication of further measures. The action by the United States complained of consisted in the fact that the United States was continuing “to sponsor and carry out military and paramilitary activities in and against Nicaragua”. By a letter of 16 July 1984, the President of the Court informed the Agent of Nicaragua that the Court considered that that request should await the outcome of the proceedings on jurisdiction which were then pending before the Court. The Government of Nicaragua has not reverted to the question.
288. The Court considers that it should re-emphasize, in the light of its present findings, what was indicated in the Order of 10 May 1984 :
“The right to sovereignty and to political independence possessed by the Republic of Nicaragua, like any other State of the region or of the world, should be fully respected and should not in any way be jeopardized by any military and paramilitary activities which are prohibited by the principles of international law, in particular the principle that States should refrain in their international relations from the threat or use of force against the territorial integrity or the political independence of any State, and the principle concerning the duty not to intervene in matters within the domestic jurisdiction of a State, principles embodied in the United Nations Charter and the Charter of the Organization of American States .”
289. Furthermore, the Court would draw attention to the further measures indicated in its Order, namely that the Parties “should each of them ensure that no action of any kind is taken which might aggravate or extend the dispute submitted to the Court” and
“should each of them ensure that no action is taken which might prejudice the rights of the other Party in respect of the carrying out of whatever decision the Court may render in the case”.
When the Court finds that the situation requires that measures of this kind should be taken, it is incumbent on each party to take the Court's indications seriously into account, and not to direct its conduct solely by reference to what it believes to be its rights. Particularly is this so in a situation of armed conflict where no reparation can efface the results of conduct which the Court may rule to have been contrary to international law.
290. In the present Judgment, the Court has found that the Respondent has, by its activities in relation to the Applicant, violated a number of principles of customary international law. The Court has however also to recall a further principle of international law, one which is complementary to the principles of a prohibitive nature examined above, and respect for which is essential in the world of today : the principle that the parties to any dispute, particularly any dispute the continuance of which is likely to endanger the maintenance of international peace and security, should seek a solution by peaceful means. Enshrined in Article 33 of the United Nations Charter , which also indicates a number of peaceful means which are available, this principle has also the status of customary law. In the present case, the Court has already taken note, in its Order indicating provisional measures and in its Judgment on jurisdiction and admissibility ( I.C.J. Reports 1984, pp. 183–184, paras. 34 ff., pp. 438–441, paras. 102 ff.) of the diplomatic negotiation known as the Contadora Process, which appears to the Court to correspond closely to the spirit of the principle which the Court has here recalled.
291. In its Order indicating provisional measures, the Court took note of the Contadora Process, and of the fact that it had been endorsed by the United Nations Security Council and General Assembly (I.C.J. Reports 1984, pp. 183–184, para. 34). During that phase of the proceedings as during the phase devoted to jurisdiction and admissibility, both Nicaragua and the United States have expressed full support for the Contadora Process, and praised the results achieved so far. Therefore, the Court could not but take cognizance of this effort, which merits full respect and consideration as a unique contribution to the solution of the difficult situation in the region. The Court is aware that considerable progress has been achieved on the main objective of the process, namely agreement on texts relating to arms control and reduction, exclusion of foreign military bases or military interference and withdrawal of foreign advisers, prevention of arms traffic, stopping the support of groups aiming at the destabilization of any of the Governments concerned, guarantee of human rights and enforcement of democratic processes, as well as on co-operation for the creation of a mechanism for the verification of the agreements concerned. The work of the Contadora Group may facilitate the delicate and difficult negotiations, in accord with the letter and spirit of the United Nations Charter , that are now required. The Court recalls to both Parties to the present case the need to co-operate with the Contadora efforts in seeking a definitive and lasting peace in Central America, in accordance with the principle of customary international law that prescribes the peaceful settlement of international disputes.
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292. For these reasons,
(1) By eleven votes to four,
Decides that in adjudicating the dispute brought before it by the Application filed by the Republic of Nicaragua on 9 April 1984, the Court is required to apply the “multilateral treaty reservation” contained in proviso (c) to the declaration of acceptance of jurisdiction made under Article 36, paragraph 2, of the Statute of the Court by the Government of the United States of America deposited on 26 August 1946;
IN FAVOUR : President Nagendra Singh; Vice-President de Lacharrière; Judges Lachs, Oda, Ago, Schwebel, Sir Robert Jennings, Mbaye, Bedjaoui and Evensen; Judge ad hoc Colliard;
AGAINST : Judges Ruda, Elias, Sette-Camara and Ni.
(2) By twelve votes to three,
Rejects the justification of collective self-defence maintained by the United States of America in connection with the military and paramilitary activities in and against Nicaragua the subject of this case;
IN FAVOUR : President Nagendra Singh; Vice-President de Lacharrière; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST : Judges Oda, Schwebel and Sir Robert Jennings.
(3) By twelve votes to three,
Decides that the United States of America, by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to intervene in the affairs of another State;
IN FAVOUR : President Nagendra Singh; Vice-President de Lacharrière; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST : Judges Oda, Schwebel and Sir Robert Jennings.
(4) By twelve votes to three,
Decides that the United States of America, by certain attacks on Nicaraguan territory in 1983–1984, namely attacks on Puerto Sandino on 13 September and 14 October 1983; an attack on Corinto on 10 October 1983; an attack on Potosi Naval Base on 4/5 January 1984; an attack on San Juan del Sur on 7 March 1984; attacks on patrol boats at Puerto Sandino on 28 and 30 March 1984; and an attack on San Juan del Norte on 9 April 1984; and further by those acts of intervention referred to in subparagraph (3) hereof which involve the use of force, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to use force against another State;
IN FAVOUR : President Nagendra Singh; Vice-President de Lacharrière; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST : Judges Oda, Schwebel and Sir Robert Jennings.
(5) By twelve votes to three,
Decides that the United States of America, by directing or authorizing overflights of Nicaraguan territory, and by the acts imputable to the United States referred to in subparagraph (4) hereof, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to violate the sovereignty of another State;
AGAINST : Judges Oda, Schwebel and Sir Robert Jennings.
(6) By twelve votes to three,
Decides that, by laying mines in the internal or territorial waters of the Republic of Nicaragua during the first months of 1984, the United States of America has acted, against the Republic of Nicaragua, in breach of its obligations under customary international law not to use force against another State, not to intervene in its affairs, not to violate its sovereignty and not to interrupt peaceful maritime commerce;
AGAINST : Judges Oda, Schwebel and Sir Robert Jennings.
(7) By fourteen votes to one,
Decides that, by the acts referred to in subparagraph (6) hereof, the United States of America has acted, against the Republic of Nicaragua, in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the United States of America and the Republic of Nicaragua signed at Managua on 21 January 1956;
IN FAVOUR : President Nagendra Singh; Vice-President de Lacharrière; Judges Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Sir Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST : Judge Schwebel.
(8) By fourteen votes to one,
Decides that the United States of America, by failing to make known the existence and location of the mines laid by it, referred to in subparagraph (6) hereof, has acted in breach of its obligations under customary international law in this respect;
IN FAVOUR : President Nagendra Singh; Vice-President de Lacharrière; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Schwebel, Sir Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST : Judge Oda.
(9) By fourteen votes to one,
Finds that the United States of America, by producing in 1983 a manual entitled Operaciones sicólogicas en guerra de guerrillas , and disseminating it to contra forces, has encouraged the commission by them of acts contrary to general principles of humanitarian law; but does not find a basis for concluding that any such acts which may have been committed are imputable to the United States of America as acts of the United States of America;
IN FAVOUR : President Nagendra Singh; Vice-President de Lacharrière; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Schwebel, Sir Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST : Judge Oda.
(10) By twelve votes to three,
Decides that the United States of America, by the attacks on Nicaraguan territory referred to in subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May 1985, has committed acts calculated to deprive of its object and purpose the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956;
AGAINST : Judges Oda, Schwebel and Sir Robert Jennings.
(11) By twelve votes to three,
Decides that the United States of America, by the attacks on Nicaraguan territory referred to in subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May 1985, has acted in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956;
AGAINST : Judges Oda, Schwebel and Sir Robert Jennings.
(12) By twelve votes to three,
Decides that the United States of America is under a duty immediately to cease and to refrain from all such acts as may constitute breaches of the foregoing legal obligations;
AGAINST : Judges Oda, Schwebel and Sir Robert Jennings.
(13) By twelve votes to three,
Decides that the United States of America is under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of obligations under customary international law enumerated above;
AGAINST : Judges Oda, Schwebel and Sir Robert Jennings.
(14) By fourteen votes to one,
Decides that the United States of America is under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956;
IN FAVOUR : President Nagendra Singh; Vice-President de Lacharrière; Judges Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Sir Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST : Judge Schwebel.
(15) By fourteen votes to one,
Decides that the form and amount of such reparation, failing agreement between the Parties, will be settled by the Court, and reserves for this purpose the subsequent procedure in the case;
IN FAVOUR : President Nagendra Singh; Vice-President de Lacharrière; Judges Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Sir Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST : Judge Schwebel.
Recalls to both Parties their obligation to seek a solution to their disputes by peaceful means in accordance with international law.
Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-seventh day of June, one thousand nine hundred and eighty-six, in three copies, one of which will be placed in the archives of the Court and the others will be transmitted to the Government of the Republic of Nicaragua and to the Government of the United States of America, respectively.
(Signed) Nagendra Singh,
(Signed) Santiago Torres Bernárdez,
President Nagendra Singh, Judges Lacks, Ruda, Elias, Ago, SetteCamara and Ni append separate opinions to the Judgment of the Court.
Judges Oda, Schwebel and Sir Robert Jennings append dissenting opinions to the Judgment of the Court.
Separate Opinion of President Nagendra Singh
2 A major consideration in the resolution of the dispute in this case has been the principle of non-use of force. It is indeed a well-established tenet of modern international law that the lawful use of force is circumscribed by proper regulation, and this is so from whichever angle one looks at it, whether the customary viewpoint or that of the conventional international law on the subject. However the customary aspect does visualize the exceptional need for the provision of the “inherent right” to use force in self-defence. The aforesaid concepts of the principle and its exception do have an existence independent of treaty-law as contained in the United Nations Charter or the Inter-American system of conventional law on the subject. In this context it appears necessary to emphasize certain aspects, which is attempted below.
3 (A) In fact this cardinal principle of non-use of force in international relations has been the pivotal point of a time-honoured legal philosophy that has evolved particularly after the two World Wars of the current century. It has thus been deliberately extended to cover the illegality of recourse to armed reprisals or other forms of armed intervention not amounting to war which aspect may not have been established by the law of the League of Nations, or by the Nuremberg or Tokyo Trials, but left to be expressly developed and codified by the United Nations Charter . The logic behind this extension of the principle of non-use of force to reprisals has been that if use of force was made permissible not as a lone restricted measure of self-defence, but also for other minor provocations demanding counter-measures, the day would soon dawn when the world would have to face the major catastrophe of a third World War — an event so dreaded in 1946 as to have justified concrete measures being taken forthwith to eliminate such a contingency arising in the future.
4 There can be no doubt therefore of the innate legal existence of this basic reasoning, irrespective of the later developments which have now found a place in the treaty provisions as reflected in Article 2, paragraph 4, and Article 51 of the United Nations Charter . However it is pertinent that the origin of legal regulation of use of force is much older than the United Nations Charter and this has been acknowledged to be so. If an issue was raised whether the concepts of the principle of non-use of force and the exception to it in the form of use of force for self-defence are to be characterized as either part of customary international law or that of conventional law, the answer would appear to be that both the concepts are inherently based in customary international law in their origins, but have been developed further by treaty-law. In any search to determine whether these concepts belong to customary or conventional international law it would appear to be a fallacy to try to split any concept to ascertain what part or percentage of it belongs to customary law and what fraction belongs to conventional law. There is no need to try to separate the inseparable, because the simple logical approach would be that if the concept in its origin was a customary one, as in this case, and later built up by treaty law, the Court would be right in ruling that the present dispute before the Court does not arise under a multilateral treaty, so as to fall outside the Court's jurisdiction because of the Vandenberg Reservation invoked by the Respondent.
5 It is also argued that the Court's reasoning maintaining a close parallelism between customary law and Article 2, paragraph 4, and Article 51 of the United Nations Charter , could be justified only if the treaty text was a mere codification of custom. As that was not the case here it is further alleged that the Court appears “to apply the treaty in reality”, but under the name or caption of custom, to evade the multilateral treaty reservation of the Respondent. This reasoning appears to miss the fundamental aspect of the matter, which is whether, if the treaty base of a concept was removed, that concept would fall to the ground or still survive as a principle of law recognized by the community. It is submitted that the Charter provisions have not only developed the concept but strengthened it to the extent that it would stand on its own even if the Charter for any reason was held inapplicable in this case. It is submitted in short that the removal of the Charter base of the concept would still enable that concept to survive. The obvious explanation is that the customary aspect which has evolved with the treaty-law development has come now to stay as the existing modern concept of international law, whether customary, because of its origins, or as “a general principle of international law recognized by civilized nations”.
6 In this context the Court's approach has indeed been cautious. For example, the requirement “to report” under Article 51 of the Charter is not insisted upon as an essential condition of the concept of self-defence but mentioned by the Court as an indication of the attitude of the State which is invoking the right of self-defence but certainly not closely following the treaty. The Court's observations in paragraph 200 of the Judgment are indeed to the point in this connection. In the present case therefore the Court's approach has been a logical one, inasmuch as it has decided not to apply the multilateral treaties to the resolution of this dispute but to confine its observations to the basis of customary international law, ruling that it had jurisdiction to apply customary law for the settlement of the case before the Court. It is felt that this is not only the correct approach in the circumstances of this case for many reasons, but also that it represents the contribution of the Court in emphasizing that the principle of non-use of force belongs to the realm of jus cogens, and is the very cornerstone of the human effort to promote peace in a world torn by strife. This aspect does need to be emphasized.
7 (B) Furthermore, it is submitted that this is a pertinent case for which all sources of law mentioned in Article 38 of the Statute must surely be compatible with and respect the major legal principle of non-use of force which was clearly the intention of the international community in 1946; the Court has felt the need to reiterate the same now in 1986 in the best interests of all States. To lay emphasis therefore on a doubt as to how a close parallelism could ever have evolved between customary and conventional law in relation to the concept of non-use of force and of self-defence, and thereby to regard those concepts as treaty-based, and hence a bar to the settlement of the dispute by the Court, would be to miss a major opportunity to state the law so as to serve the best interests of the community. The Court as the principal judicial organ of the United Nations has to promote peace, and cannot refrain from moving in that direction.
8 Even if the Charter were not a codification of existing customary law on non-use of force and self-defence, and there were a clear progressive development leading on to the banning of reprisals involving the use of force, it needs to be stated that this developmental aspect, or the precise formulatory aspect, is surely now a part of international law, whether it be categorized as customary or as one of the “general principles of law recognized by civilized nations”. To invoke these could not amount to defeating the intention of the State invoking the Vandenberg Reservation, because no party before a tribunal could ever plead that it could totally opt out of all the four corners of the law both conventional — because of the reservation — and customary, because the latter was identical in content to the former and hence inapplicable. Could a party then claim not to have any law applicable to its conduct? The Vandenberg Reservation was not intended to be a self-assessing reservation, but if this approach were adopted it would certainly become much worse indeed, a self-defeating one in relation to the due process of law. Therefore the Court confined itself to applying customary international law in this case and held treaty-law as inapplicable. It could hardly promote in the settlement of the dispute the concept of total evasion of law as pleaded, when the sole intention of use of the optional clause under Article 36, paragraph 2, of the Statute could be to confer some basis of jurisdiction on the Court, however hedged about with reservations.
9 Another major consideration which has needed to be emphasized is the difficulty which the Court has experienced as a result of the non-appearance of the Respondent at the merits stage of the case. The regret most keenly felt by the Court, owing to the absence of the Respondent, was in relation to the correct appraisal of the evidence presented to the Court by the Applicant. Though careful observance of Article 53 of the Statute has been the key-note of the Court's approach, that Article could not require the Court to go beyond the regular procedures and to seek out all and every source of information, far and near from different corners of the world, in order to adjudicate a case submitted to it. The evidence before the Court may perhaps have fallen short of what the Court would have desired, as became noticeable because of the absence of the Respondent. However, in the light of such a situation, the Court has endeavoured to achieve as perfect an equality between the parties as possible, in order to assess the application of the law to the facts of the case with a view to drawing correct conclusions in the absence of the Respondent.
10 For my part, in regard to the flow of arms from Nicaragua to El Salvador, I believe that even if it is conceded that this may have been both regular and substantial, as well as spread over a number of years and thus amounting to intervention by Nicaragua in El Salvador, still it could not amount as such to an “armed attack” against El Salvador. Again, the Applicant may not have been ignorant of this flow involving the supply of arms to the rebels in El Salvador. However, even granting all this, the Court still could not hold that such supply of arms, even though imputable as an avowed object of Nicaragua's policy, could amount to an “armed attack” on El Salvador, so as to justify the exercise of the right of collective self-defence by the United States against Nicaragua. This conclusion of the Court is indeed warranted by whatever process of reasoning one adopts, and hence I have voted for subparagraph (2) of operative paragraph 292 of the Judgment.
11 Furthermore, it has been argued that the Court should in its Judgment have passed strictures on the conduct of Nicaragua if it found that, by the said flow of arms to El Salvador, Nicaragua was violating the principle of non-intervention in the affairs of a State, because the arms supply was imputable to Nicaragua. It is submitted that the Court rightly felt that it could not do so, because the case before the Court was between Nicaragua and the United States, and not between Nicaragua and El Salvador. The sole concern of the Court in this case was to adjudge the conduct of Nicaragua in so far as it was relevant to the determination of the validity of the plea of self-defence raised by the Respondent. In that particular context, all that was necessary was to determine if the said arms flow from Nicaragua to El Salvador was of such an order as to warrant intervention by the Respondent on the ground of collective self-defence. This aspect the Court has examined in detail in paragraphs 128 to 160 and 227 to 237 of the Judgment, and I am in entire agreement with the legal conclusions therein stated. No tribunal could do more in appreciation of the position of the absent Respondent, because to do otherwise would be to annihilate the very principle of equality of parties by placing the Respondent in a position more favourable than the Applicant.
12 In the light of the aforesaid reasoning, it is difficult to accept that it is a just appreciation of this case to maintain that the Court simply adopted the false testimony of witnesses produced by Nicaragua on a matter which is essential to the disposition of this case. For example in one paragraph of the Judgment, paragraph 84, Mr. Chamorro's evidence on a particular question is downgraded as “strictly hearsay”, and therefore properly evaluated in the context of this case.
13 In fact the Court has found reason to mention in paragraphs 59 ff. of its Judgment the principles observed by it in the appraisal of the evidence produced before it. These principles by all standards are fair and just and do merit a mention in this context.
14 Again, in paragraph 135 of the Judgment, where the evidence of Mr. David MacMichael is relied upon, the Court has not lost sight of the basic values in assessing the testimony and has noted the probative importance of a witness
“called by Nicaragua in order to negate the allegation of the United States that the Government of Nicaragua has been engaged in the supply of arms to the armed opposition in El Salvador ‘whose testimony’ only partly contradicted that allegation” (emphasis added).
Similar observations of the Court in paragraph 146 are pertinent to mention here.
15 Furthermore, leaving aside revision under Article 61 of the Statute , the validity of a judgment is not a matter to be challenged at any stage by anyone on any grounds. The decision of the Court is the result of a collegiate exercise reached after prolonged deliberation and a full exchange of views of no less than 15 judges who, working according to the Statute and Rules of Court , have examined the legal arguments and all the evidence before it. In this, as in all other cases, every care has been taken to strictly observe the procedures prescribed and the decision is upheld by a clear majority. What is more, the binding character of the judgment under the Statute (Art. 59) is made sacrosanct by a provision of the United Nations Charter (Art. 94) : all Members of the United Nations have undertaken an obligation to comply with the Court's decisions addressed to them and to respect the judgment.
16 May I also add that I agree with the view that the CIA Manual entitled Operaciones sicológicas en guerra de guerrillas cannot be a breach of humanitarian law as such, but only an encouragement provoking such breaches, which aspect the Court has endeavoured to bring out correctly in subparagraph (9) of the operative paragraph 292 of the Judgment. Furthermore, I would also emphasize the assertion that the said manual was condemned by the Permanent Select Committee on Intelligence of the House of Representatives, an attempt was made to recall copies, and the contras were asked to ignore it, all of which does reflect the healthy concern of the Respondent, which has a great legal tradition of respect for the judicial process and human rights.
18 I cannot conclude this opinion without emphasizing the key importance of the doctrine of non-intervention in the affairs of States which is so vital for the peace and progress of the international community. To ignore this doctrine is to undermine international order and to promote violence and bloodshed which may prove catastrophic in the end. The significant contribution which the Latin American treaty system along with the United Nations Charter make to the essentials of sound public order embraces the clear, unequivocal expression given to the principle of non-intervention, to be treated as a sanctified absolute rule of law whose non-observance could lead to disastrous consequences causing untold misery to humanity. The last subparagraph (16) of the operative paragraph 292 of the Judgment, which has been adopted unanimously by the Court, really rests on the due observance of the basic principles of non-use of force and non-intervention in the affairs of States. The Court has rightly held them both as principles of customary international law although sanctified by treaty law, but applicable in this case in the former customary manifestation to fully meet the viewpoint of the Respondent which the Court has rightly respected. However, the concepts of both these principles do emerge in their manifestation here fully reinvigorated by being further strengthened by the express consent of States particularly the parties in dispute here. This must indeed have all the weight that law could ever command in any case and no reservations could ever suppress this pivotal fact of inter-state law, life and relations. This in my view is the main thrust of the Judgment of the Court, rendered with utmost sincerity in the hope of serving the best interests of the international community.
(Signed) Nagendra Singh.
Separate Opinion of Judge Lachs
1 At the outset, I am impelled to express my regret at what, to my mind, is a strange occurrence in the present case. It was stated that much of the evidence was “of a highly sensitive intelligence character” and asserted that the Respondent would “not risk United States national security by presenting such sensitive material in public”.
2 Giving all due respect where it is due, this is not the first time that “security risks” have been invoked in connection with proceedings before this Court. In the Corfu Channel case the United Kingdom Agent was requested to produce certain documents “for use of the Court”. These documents were not produced, the Agent pleading naval secrecy; and the United Kingdom witnesses declined to answer questions relating to them. Consequently the Judgment stated :
“The Court cannot … draw from the refusal to produce the orders any conclusions differing from those to which the actual events gave rise.” (I.C.J. Reports 1949, p. 32.)
3 However, in the present case another factor has been added to the risk of presenting “such sensitive material before a Court”, for in the same context an allusion was made to the alliance whose members include the countries of which certain Judges were nationals. In brief, it was suggested that in view of this alliance these Judges, or rather the Judge in question — for only one is now involved — may be “more” than a Judge or “less” than a Judge. In either case he would be unfit to sit on the bench. If so, he would be unfit to sit not only in this but in any other case. For, even apart from the stipulations of Article 2 of the Court's Statute , two requirements are overriding : integrity and independence.
4 A judge — as needs no emphasis — is bound to be impartial, objective, detached, disinterested and unbiased. In invoking the assistance of this Court or accepting its jurisdiction, States must feel assured that the facts of the dispute will be properly elicited; they must have the certainty that their jural relationship will be properly defined and that no partiality will result in injustice towards them. Thus those on the bench may represent different schools of law, may have different ideas about law and justice, be inspired by conflicting philosophies or travel on divergent roads — as indeed will often be true of the States parties to a case — and that their characters, outlook and background will widely differ is virtually a corollary of the diversity imposed by the Statute . But whatever philosophy the judges may confess they are bound to “master the facts” and then apply to them the law with utmost honesty.
5 As human beings, judges have their weaknesses and limitations; however, to be equal to their task they have to try to overcome them. Thus in both their achievements and shortcomings they must be looked upon as individuals : it is their personality that matters. As James Brown Scott so rightly stated :
“The Court is an admirable body representing the different forms of civilization and systems of law and calculated not only to do justice between nations without fear or favour but to their satisfaction. One dream of the ages has been realized in our time.” (15 AJIL, 1921, pp. 557–558.)
6 This variety of origin of the Judges is certainly the great strength of this Court. It is a major contributory factor to the confidence that all States may feel in the balanced nature of the Court's decisions and the broad spectrum of legal opinion they represent. But can this diversity justify an invidious distinction between Judges according to their nationality or the alliances of which their countries may happen to be members? All Judges “should be not only impartial but also independent of control by their own countries or the United Nations Organization” ( UNCIO , Vol. 13, p. 174). In fact, while they may have served their countries in various capacities, they have had to cut the ties on becoming a Judge. As was once said :
“It is difficult for any Judge to solicit an act of faith in favour of a process so epistemologically subjective and temporal. This is essentially true of the international Judge who must seek a commitment from various societies operating within differing systems of legal hypothesis.”
7 Each and every Judge stands on his own record. As the late Judge Philip C. Jessup held, speaking from his considerable experience and referring to a particular dispute :
“It is one of the cases which show that a dissection of the views of the Judges of the Court to prove some kind of national alignment is often not supportable and may be quite misleading.“
A telling illustration of this remark, and one apposite to the issue I raise, may be seen in the Judgment in the United States Diplomatic and Consular Staff in Tehran case (I.C.J. Reports 1980, pp. 44–45; cf. also I.C.J. Reports 1982, p. 8). “The Justice writing an opinion, said John Mason Brown, a distinguished literary figure on the American scene,
“carries a burden unknown to the playwright, the poet or the novelist. It is a burden of public responsibility so heavy that its weight often makes itself felt in his prose. Wisdom is what we want from a Judge, not wit; clarity of phrase, before beauty, decision rather than diversion. No wonder Judges' opinions, being the awesome things they are, using language as an instrument of action and capable of changing the history of a nation, are seldom read as literature.” (Lecture delivered before the American Law Institute, 23 May 1952.)
8 Justice Frankfurter, speaking of Judges of the Supreme Court, observed :
“What is essential for the discharge of functions that are almost too much by nine fallible creatures is that you get men who bring to their task, first and foremost, humility and an understanding of the range of the problems and of their own inadequacy in dealing with them, disinterestedness and allegiance to nothing except the effort, amid tough words and limited insights, to find the path through precedent, through policy, through history to the best Judgment that fallible creatures can reach in that most difficult of all tasks : the achievement of justice between men and men, between men and State, through reason called law.”
9 The words of that great judge Oliver Wendell Holmes may be added :
“The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.” (“The Path of Law”, a talk given in 1897.)
This goal is certainly attainable to the very few, but we can and should attempt to strive for it : to uphold the dignity of a profession to which society for centuries has attached profound importance. In the light of such considerations, which are seldom absent from the judicial mind, it appears unseemly to doubt a Judge on account of the place where he was born or the passport he may carry. And this case is probably unique as one in which these are by implication claimed to impair a Judge's status, standing, wisdom, discretion and impartiality, and to warrant the limitation of the knowledge made available to him for the discharge of his trust.
10 Since the Court has pronounced its final Judgment in the present case and I did not express my views at the earlier stages of the proceedings, I take this opportunity to do so now. I have to revert to some questions already settled but I will do so very briefly in order not to overburden the reader who faces so many pages reflecting the wealth of thought to which the present case has given rise. Though I would have preferred the Court to have dealt in greater detail with the question of assistance from or through Nicaragua to opposition forces in El Salvador, since the principal issues before the Court were those of self-defence and resort to the use of force, I will not touch upon the substance of this question. I would also have preferred different formulae to be used here and there in the Judgment. Be that as it may, the first issue on which I felt it behoves me to make my position clear is that of the Court's jurisdiction under Article 36 of the Statute .
I. Aspects of Jurisdiction
11 The 1984 Judgment, as well as the separate or dissenting opinions appended to it, revealed that the case had some highly exceptional aspects beyond the routine questions that demand to be answered in determining the Court's jurisdiction. These aspects arose chiefly from the fact that, in the League of Nations system, two instruments were involved in the procedure for accepting the jurisdiction of the Court as compulsory in all or certain international legal disputes : the Protocol of adherence to the actual Statute of the Permanent Court of International Justice , and the Declaration of acceptance corresponding to the so-called Optional Clause. While the former in all cases required ratification, the latter needed ratifying only where domestic law so demanded, which was not Nicaragua's case.
12 Nicaragua made its Declaration as long ago as 1929; thus in subsequent Reports of the Permanent Court of International Justice it was listed among those States having made a Declaration under the “Optional Clause” without any requirement of ratification ( P.C.I.J., Series E, No. 16, 1939–1945, p. 49). It was not however listed among States bound by the Clause (ibid., p. 50), because, as was noted, though it had signed the Protocol and had notified the Secretary-General of the League (by a telegram of 29 November 1939) that an instrument of ratification was to be dispatched, no trace could be discovered of such an instrument having been received.
13 The implications of this situation revolve on the interpretation of Article 36, paragraph 5, of the present Court's Statute , and I have to say that the issue may be seen also in a different perspective than that reflected in the Judgment of 1984 ( I.C.J. Reports 1984, pp. 403 ff.). I feel that the making of a Declaration under the Optional Clause was not only a manifestation of Nicaragua's willingness to subject itself to compulsory jurisdiction but also, ipso jure, a confirmation of its will to become a party to the Statute of the Permanent Court of International Justice . From the viewpoint of intent it was thus tantamount to ratification of its signature of the Protocol. Formally, it is true, this did not suffice, and so we are faced here with the classic issue of the relationship between “will” and “deed”. For, as this Court has itself remarked :
“Just as a deed without the intent is not enough, so equally the will without the deed does not suffice to constitute a valid legal transaction.” ( I.C.J. Reports 1961, p. 31.)
14 However, one has to bear in mind that in the case of Nicaragua the will was clearly manifested by the whole procedure, beginning with the acceptance of the Optional Clause and ending with the telegram concerning the ratification of the Protocol, evidenced by decisions of the competent organs of the State including signature by the President. The telegram indeed notified these acts to the Secretary-General of the League of Nations. The question arises as to its legal effects, since the instrument of ratification was not deposited.
16 It may of course be argued that ratification is not a mere formality. However, in the present case, more attention should have been paid to the conduct of the States concerned, their practice, “toleration” or “lack of protest”.
17 The conduct of Nicaragua, in particular, made it clear that it had acquiesced in being bound to accept the compulsory jurisdiction of the Court and that this acquiescence had an effect on the requirement of ratification of the Protocol to the old Court's Statute — a requirement moreover which could arguably have been regarded as otiose now that Nicaragua's membership of the United Nations had made it a party to the Statute of the new and may have called for a different action. Moreover one should bear in mind that the process of ratification had been initiated; there was at least an “inchoate ratification”; for the process had already been engaged and completed, on the domestic plane, and the only point of such domestic ratification was to legalize the international step which had next to be taken.
18 Here I find a very essential factor, and one which, by force of practice over a period of almost 40 years, could not have remained without legal effect upon an instrument even if legally imperfect.
19 An important factor was undoubtedly the Yearbook of the International Court of Justice (to whose Statute Nicaragua had become a party), which consistently featured Nicaragua among the States which had accepted its compulsory jurisdiction, while adding a footnote : “the notification concerning the deposit of the instrument of ratification has not, however, been received in the Registry.” Since 1955–1956 it read : “it does not appear, however, that the instrument of ratification was ever received by the League of Nations.” One wonders how this affected the heading of the list; and another list in which reference was made to Article 36, paragraph 5, of the Statute of the present Court (cf. I.C.J. Yearbook 1947–1948 , pp. 38 ff.).
20 In considering what value to attach to the Yearbook of the Court, which is published by its Registrar on the instructions of the Court, one has naturally to give full weight to the reservation that it “is prepared by the Registry” and “in no way involves the responsibility of the Court”, a caveat that “refers particularly” to
“summaries of judgments, advisory opinions and orders contained in Chapter VI [which] cannot be quoted against the actual text of those judgments, advisory opinions and orders and do not constitute an interpretation of them”.
However, there is much more to the matter than this : the Court itself has been submitting annually for some years to the General Assembly of the United Nations a report, signed by the President of the Court, which becomes an official document of the Assembly and has evidential value. This report has from the outset, and without any caveat or footnote whatsoever, included Nicaragua among States having made declarations accepting the Court's compulsory jurisdiction.
21 The other factor is preparatory work that was needed to bring the case concerning the Arbitral Award Made by the King of Spain on 23 December 1906 before the Court. Here the enquiry conducted on the subject by former Judge Hudson, acting on behalf of Honduras, is not unenlightening.
22 Hudson approached the Registrar of the Court on this subject under discussion and received a very interesting reply :
“I do not think one could disagree with the view you expressed when you said that it would be difficult to regard Nicaragua's ratification of the Charter of the United Nations as affecting that State's acceptance of compulsory jurisdiction. If the declaration of 24 September 1929 was in fact ineffective by reason of failure to ratify the Protocol of signature, I think it is impossible to say that Nicaragua's ratification of the Charter would make it effective and therefore bring into play Article 36, paragraph 5, of the Statute of the present Court .” (Letter of 2 September 1955; Counter-Memorial in the present case, Ann. 35.)
23 Notwithstanding this statement, Hudson took a very guarded view on the subject, because in analysing the case he arrived at the conclusion :
“It must be borne in mind that the International Court of Justice has not determined whether there is any degree to which Nicaragua's Government is bound by the declaration of 24 September 1929 as to the International Court of Justice. Without such determination it is impossible to say definitely whether or not the Government of Honduras may proceed against the Government of Nicaragua.” (Counter-Memorial in the present case, Ann. 37.)
He also visualized the following :
“it is also possible that the action should begin against Nicaragua in spite of the fact that the State is not bound by the second paragraph of Article 36 of the Statute of the International Court of Justice . If Nicaragua later agrees to the jurisdiction the situation will be much the same as if it had agreed to a special agreement in advance of the case.” (Ibid.)
24 Finally it is worth recalling that Hudson, after his exchanges with the Registrar, when publishing his last annual article on the International Court in 1957, continued to include Nicaragua in the list of States parties to the compulsory jurisdiction of the Court. The Respondent suggests that he did so “perhaps in deference to his client, Honduras” and goes on to point out that Hudson nevertheless “introduced a new cryptic footnote to Nicaragua's listing : ‘See the relevant correspondence’.” ( M. Hudson, “The Thirty-fifth Year of the World Court”, 51 AJIL. 1957, 17: cf. also Counter-Memorial in the present case. para. 143.)
25 One should however also recall the statement of the Nicaraguan Ambassador in Washington denying that Nicaragua had agreed to submit to compulsory jurisdiction (ibid., para. 116). Yet there was a special reason for this attitude, and this is made clear.
26 Nicaragua held that the dispute with Honduras was one which “ne porte en aucune façon sur la réalité de tout fait qui, s'il était établi, constituerait la violation d'un engagement international” ( I.C.J. Pleadings, Arbitral Award Made by the King of Spain on 23 December 1906, Vol. I, p. 132, para. 3; cf. also para. 4). These were, then, the special motives in that particular case for Nicaragua to try to evade the compulsory jurisdiction of the Court and to seek a special agreement on special conditions.
27 As is well known, the Parties did conclude a special agreement, yet, this notwithstanding, Honduras referred in its Memorial to Article 36, paragraph 2, of the Statute of the Court and also to the Decree of 14 February 1935 of the Senate of Nicaragua ratifying the Statute and Protocol of the Permanent Court of International Justice, a similar action undertaken on 11 July 1935 by the Chamber of Deputies and its publication in the Official Gazette in 1939, No. 130, page 1033. In the same Memorial Honduras referred further to the fact that the Parties had, on the basis of Article 36, paragraph 2, of the Statute of the International Court of Justice, recognized its compulsory jurisdiction ( I.C.J. Pleadings, Arbitral Award Made by the King of Spain on 23 December 1906, Vol. I, p. 59, paras. 37–39).
28 If the Registrar referred to above had a negative view on the subject, why did he continue to publish this information? Obviously, the footnote did not resolve the problem. Was it not his duty to draw the attention of the respective United Nations organs to it in order to clarify the situation in the light of the circumstances which arose in the case concerning the Arbitral Award Made by the King of Spain on 23 December 1906 ? Should not the attention of the Court have been drawn to the status of Nicaragua as he saw it? Clearly the only possible way of arriving at a definite conclusion would have been for the Court and the Secretary-General of the United Nations to be informed in order to resolve the issue. It could have been decided to inform Nicaragua accordingly. Its Government could have been asked to make clear whether it considered itself bound, in which case it may have been requested to clinch the matter, or, if it felt otherwise, to say so, which would imply its deletion from the list. This was not done, and no action was taken for a further 30 years. Here I cannot avoid concluding that the blame for this very awkward and time-wasting controversy on the issue of jurisdiction which caused so many difficulties must be laid at the door of the United Nations and those of its organs which failed to clarify the situation in time.
29 If this was so, the reason was not that Nicaragua was accorded special status or that the law was interpreted in its favour. Thus any suggestions that the Court insisted on the exercise of jurisdiction are revealed as hollow. It has never so conducted itself in the past, and has not done so now. I, for one, have always been inclined to severity in testing the requirements to this effect.
30 My final conclusion on the subject of Nicaragua's Declaration is that while that State's submission to the jurisdiction of the Permanent Court of International Justice was imperfect, so far as the present Court is concerned, Nicaragua's status as a party to the Statute , the effluxion of time 40 years' acquiescence on the part of all concerned — the lack of action by the responsible officials, must all be taken into account. No less essential has been the documentary affirmation of Nicaragua's status in the Yearbook and Reports of the Court. At all events, all these factors had combined to cure the imperfection which may have constituted an obstacle in the acceptance of the jurisdiction. For one should bear in mind that legal effects, rights and obligations arise in the most different circumstances, some unforeseen and unforeseeable : legal relations evolve sometimes owing to a strange accumulation of will and deeds.
II. Justiciability of the Case
32 I now approach another subject, one raised in the first place by the respondent State — that of the alleged non-justiciability of the case. This indeed is a very serious objection and needed to be given adequate consideration. In principle, a case may be justiciable only if the jurisdiction of the Court has a basis in law and the merits of the case can be decided in accordance with law, which however “shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto” ( Statute, Art. 38, para. 2). In the present case it has been claimed that the submission of the “lawfulness of an allegedly ongoing use of armed force” to the Court for determination is without precedent (Counter-Memorial, para. 480); that “decisions concerning the resort to force during ongoing armed conflict are the exclusive preserve of political modes of resolution, which by their nature need not entail determinations of legal fault” (ibid., para. 484; also paras. 520 ff.) : if a country's security is in jeopardy, the necessity of using force is alleged to be a purely political or military matter, thus not a matter such as the Court could possibly decide. It has also been claimed, as recalled by the Judgment, that the matters subject of the Application were left by the Charter “to the exclusive competence of the political organs” of the United Nations, in particular the Security Council (ibid., paras. 450 ff.). Strictly speaking, however, this question of the competence of other organs of the United Nations involves issues of “judicial propriety” rather than justiciability.
33 It is also submitted that the “established processes for the resolution of the overall issues of Central America have not been exhausted” and that “adjudication of only one part of the issues involved in the Contadora Process would necessarily disrupt that process” (ibid., paras. 532 ff. and 548 ff.). Thus the Respondent suggests that the dispute is not justiciable.
34 The Northern Cameroons case is referred to, and in particular the statement that “even if the Court, when seised, finds that it has jurisdiction, the Court is not compelled in every case to exercise that jurisdiction” (I.C.J. Reports 1963, p. 29). In that case it was held that Cameroon had directed its plea to the General Assembly, which had rejected it (ibid., p. 32). The Judgment added that, in the circumstances, “The decisions of the General Assembly would not be reversed by the judgment of the Court” (ibid., p. 33). The Respondent in the present case suggested that “the Court should be guided” by the “considerations” of that case. With all due respect to this reasoning, it is worth recalling that, in the case referred to, the Court found “that the resolution [of the General Assembly] had definitive effect” (ibid., quoted by the Respondent). But the most important passage of the Judgment states :
“The function of the Court is to state the law, but it may pronounce judgment only in connection with concrete cases where there exists at the time of the adjudication an actual controversy involving a conflict of legal interests between the parties.” (I.C.J. Reports 1963, pp. 33–34.)
In short, it was a “moot” case. For the Court found that “circumstances that have since arisen render any adjudication devoid of purpose” (ibid., p. 38). The same view was also held in the Nuclear Tests cases : “The Court therefore sees no reason to allow the continuance of proceedings which it knows are bound to be fruitless.” ( I.C.J. Reports 1974, p. 271, para. 58.) The present case, in contrast, is one in which the issues are very much alive and in which a clarification of the law can produce positive results. It is above all one in which the action of the Court may well assist the deliberations of the other organs and intermediaries concerned. The precedents referred to are therefore inapt.
35 Reliance has also been placed on the decision of the Court in the Corfu Channel case. However, the argument based on that case was rebutted by recalling that what was there in question amounted to no more than a single act involving use of force, whereas the present case features continuous hostile action. Corfu Channel has therefore little bearing on whether or not the Court may consider situations of “ongoing armed conflict”. However that may be, it should be emphasized that the Parties now before the Court have been at odds for a long time, yet they maintain diplomatic relations, they are not at war, their armies are not engaged in battle, and the acts of force considered here are not executed by them. The Court is not faced with the “armed forces” of one State acting against another. Thus the argument of the necessity of force, or its use by an organ of a State, is not involved. In a case of this kind it may be maintained that there is no predetermined limit to the possibilities of judicial settlement. In a message of the Swiss Federal Council published in 1924 on the occasion of the conclusion of a treaty for the arbitration and judicial settlement of disputes it was stated that :
“Un Etat n'abdique rien de sa souveraineté lorsque, librement, délibérément, il assure par avance une solution arbitrale ou judiciaire à tous les différends, sans exception, qui n'auraient pu être aplanis par voie de négociations directes. Il renonce seulement, par esprit de justice et de paix, à faire prévaloir ce qu'il considère comme son bon droit par des moyens qui pourraient etre inconciliables avec la conception même du droit.” ( Feuille fédérale de la Confédération suisse , 1924, Vol. III, p. 697.)
In general it is power relationships — or whatever other name may be attached to this area of relations between States — which render a given legal dispute indivorcible from considerations going beyond the legal object and thus prevent its judicial solution.
36 But today the body of international law has in any case grown to dimensions unknown in the past. Almost all disputes arising between States have both political and legal aspects; politics and law meet at almost every point on the road. Political organs, national or international, are under obligation to respect the law. This does not mean that all disputes arising out of them are suitable for judicial solution. Need I recall that in the last century and the beginning of the present, those concerning “vital interests” of States, or their “honour”, were viewed as political, and thus not subject to third-party settlement? Even a very minute dispute may be viewed as touching the vital interests of a State. On the other hand, boundary disputes which frequently involve hundreds of miles of land, and vast areas of the ocean — thus concerning the vital interests of many States — have been most frequently referred to courts. It is here where subjective and objective criteria confront one another. If the first criterion is applied, then of course the will of the parties, or of one of them, is decisive. If the second is involved, one can confirm without hesitation that there is no dispute which is not justiciable. Yet a balance must be struck between the two criteria : the world we live in is one where certain notions, though part of the vocabulary of law, continue to be controlled by subjective evaluations. An illustration in this respect may be found in the field of disarmament : or the very concept of “balance of power”. If a State were to seek a legal remedy from the Court, relying on the criterion of “balance of power”, the Court would have to reflect very seriously before assuming jurisdiction, no matter how well established the Court's formal competence.
38 Tension between the parties is not the decisive factor : it may be the outcome of an eminently “legal” dispute. Nor is the test to be sought in the “importance” of the dispute. Sometimes the officials responsible would prefer to have the dispute settled by the parties themselves and not by a group of jurists who are mostly unknown to them; to have it resolved on subjective criteria, by a decision less learned but more practice-oriented.
39 It is frequently argued that on matters of great importance law is less precise while on other, minor matters it contains much more detail. One could maintain that the present state of international law opens the way to the legal solution of all disputes, but would such a solution always dispose of the problems behind them?
40 Thus it becomes clear that the dividing line between justiciable and non-justiciable disputes is one that can be drawn only with great difficulty. It is not the purely formal aspects that should in my view be decisive, but the legal framework, the efficacy of the solution that can be offered, the contribution the judgment may make to removing one more dispute from the overcrowded agenda of contention the world has to deal with today.
41 The view “that the Court cannot adjudicate the merits of the complaints alleged in the Nicaraguan Application does not require the conclusion that international law is neither directly relevant nor of fundamental importance in the settlement of international disputes” (Counter-Memorial, para. 531).
42 In this context reference is made to Lauterpacht's dictum :
“Here as elsewhere care must be taken not to confuse the limitation upon the unrestricted freedom of judicial decision with a limitation of the rule of law 1 .”
However, Lauterpacht also maintained that :
“there is no fixed limit to the possibilities of judicial settlement. All conflicts in the sphere of international politics can be reduced to contests of a legal nature. The only decisive test of the justiciability of the dispute is the willingness of the disputants to submit the conflict to the arbitrament of law.” (Ibid.)
43 Among the reservations contained in the Respondent's declaration recognizing the Court's jurisdiction, there is none which would exclude disputes of the character reflected in the present case. For it is not among those declarants which have accepted the compulsory jurisdiction of the Court with the exception of “disputes arising out of any war or international hostilities”, or “affecting the national security”.
44 Once the case is brought before it, the Court is obviously not bound by the reasoning of either party, which may attach to the dispute different labels. Here it need not accept the reasoning of Nicaragua and in fact it does not on several points. In this context it may be of interest to recall some comments on the Judgment in the United Stales Diplomatic and Consular Staff in Tehran case made by a recognized authority on the International Court of Justice :
“According to one doctrine of justiciability of disputes, it would be difficult to imagine a more tension-laden and therefore non-justiciable dispute. The alleged non-justiciable character of the dispute was underscored by Iran in its letter of 9 December 1979 to the Court 2 .”
“In the view of the United States, the case was eminently justiciable.” [As the Applicant's Agent stated in presenting the case at the phase of Provisional Measures :] “this case presents the Court with the most dramatic opportunity it has ever had to affirm the rule of law among nations and thus fulfil the world community's expectations that the Court will act vigorously in the interests of international law and international peace 1 ”. “It would seem [says Gross] that the Court lived up to these expectations.“ ”There is no doubt that this case represents a landmark in the relations between the United States and the Court.” [The author adds :] “This then is the first time in 35 years that the United States has turned to the Court 2 .”
45 Finally, the justiciability of the present case is not affected by any other means tried by the Parties in order to solve their disputes. As I indicated some time ago :
“There are obviously some disputes which can be resolved only by negotiations, because there is no alternative in view of the character of the subject-matter involved and the measures envisaged. But there are many other disputes in which a combination of methods would facilitate their resolution. The frequently unorthodox nature of the problems facing States today requires as many tools to be used and as many avenues to be opened as possible, in order to resolve the intricate and frequently multi-dimensional issues involved. It is sometimes desirable to apply several methods at the same time or successively. Thus no incompatibility should be seen between the various instruments and fora to which States may resort, for all are mutually complementary 3 .”
III. Judicial Error
46 Anatole France had one of the heroes of his stories. Judge Thomas de Maulan, say : “un juge soucieux de bien remplir sa fonction se garde de toute cause d'erreur. Croyez-le bien, cher monsieur, l'erreur judiciaire est un mythe.” Yet such errors do occur, to all. As Justice Frankfurter stated in the United Mine Workers case : “Even this Court has the last say only for a time. Being composed of fallible men, it may err.” (330 US 308, quoted in his concurring opinion in the famous Little Rock School case : 358 US 22.)
47 As an illustration of this unfortunate fact. I myself find upon reflection that the Order of 4 October 1984 ( I.C.J. Reports 1984, pp. 215 ff.), should have granted El Salvador a hearing on its declaration of intervention. In that Order the Court took note that El Salvador reserved
“the right in a later substantive phase of the case to address the interpretation and application of the conventions to which it is also a party relevant to that phase”.
One might have hoped or expected that El Salvador would at the later stage — the “substantive phase” — deal with all the issues of interest to it, and thus assist the Court in the performance of its task.
48 However, while there was no adequate reason to grant El Salvador the right of intervention at the jurisdictional stage, it would probably have been in the interest of the proper administration of justice for the Court to have granted “a hearing” and thus to have become more enlightened on the issues El Salvador had in mind; at the very least, it would have prevented an impression of justice “not being seen to be done”. It is, after all. “of fundamental importance that justice should not only be done, but should manifestedly and undoubtedly be seen to be done” (Lord Hewart in The King v. Sussex Justices ex parte McCarthy , 1 K.B. , pp. 256 and 259).
49 However, “I sometimes think that we worry ourselves overmuch” — Justice Cardozo once exclaimed — “about the enduring consequences of our errors. They may work a little confusion for a time. The future takes care of such things.”
IV. Regional Efforts Towards a Solution
51 The Court's decision is intended to resolve the dispute between the Parties submitted to it in the present case.
52 However, it is also greatly to be hoped that it will serve to diminish the basic tension and confrontation between them. It should give occasion to the opening of a new chapter in their mutual relationship and to the redoubling of efforts to assist them in the resolution of their conflict.
53 The Court should take note with satisfaction of the well-known diplomatic initiative undertaken in 1983 by four countries of the area : Colombia, Mexico, Panama and Venezuela. Its purpose was to reach a regional arrangement including those States and the five countries of Central America — among them Nicaragua. This plan was commended by the Security Council of the United Nations (res. 530, 19 May 1983) and the group was urged “to spare no effort to find solutions to the problems of the region”. Similar action was taken by the General Assembly (res. 38/10, 11 November 1983) and the General Assembly of the Organization of American States (AC/res. 675 (XXII-6/83), 18 November 1983).
54 It is noteworthy in how consistent and determined a fashion the Group has continued its efforts, addressing itself to basic economic, social, political and security concerns which plague the region. This has been borne out by a series of meetings, draft agreements and continuous consultations.
55 I am confident that the Governments of the “Contadora Group” States are genuinely concerned to fulfil the task they voluntarily accepted : to secure peace, territorial integrity and economic development in the countries of Central America; i.e., Nicaragua, Costa Rica, Honduras, El Salvador and Guatemala.
56 At a recent stage the interest in these problems has grown and other Latin American States — Argentina, Brazil, Peru and Uruguay — have established the so-called “support group” to work in co-operation with the Contadora Group.
57 While the Court was dealing with the case, representatives of all these States met in order to prepare the Contadora Act. The meeting held in Guatemala City (15 January 1986), following the inauguration of the first civilian President after 32 years, was viewed as particularly successful. The last meeting held in May 1986 recorded some progress but as yet has not produced the hoped-for treaties.
58 This remains the best way for the solution of the conflict : one in which the Applicant and other Central American States would undertake clear and unequivocal obligations and which would be guaranteed by other Latin American States with the participation of the respondent Government. Both Parties, then, should co-operate with the Contadora Group as the most-qualified intermediary.
59 As the Court held in the past, its real function, whatever the character of the dispute, is “to facilitate, so far as is compatible with its Statute , a direct and friendly settlement” ( P.C.I.J., Series A, No. 22, p. 13). It has stressed on other occasions the great desirability of a negotiated settlement ( P.C.I.J., Series A/B, No. 78, p. 178).
60 Therefore, while it is my profound conviction that a peaceful solution of the dispute remains a realistic possibility and the only feasible one, I consider the Court should in the meantime have stressed that, in order not to disturb such a solution, both Parties should refrain from any activities likely to aggravate or complicate their relationship and should do everything in their power to speed up their efforts, jointly with the States mentioned, to reach the required agreement on reconciliation, and on co-operation in various domains.
61 The Judgment can thus make a constructive contribution to the resolution of a dangerous dispute — paving the way to stability in a region troubled for decades by conflict and confrontation.
Separate Opinion of Judge Ruda
José Maria Ruda
1. I have voted in favour of the decisions adopted by the Court in the operative part, with the exception of subparagraph (1), relating to the application of the reservation made by the United States of America, at the time of the acceptance of the jurisdiction of the Court, under Article 36, paragraph 2, of the Statute , which is known as the “Vandenberg Reservation”.
2. This favourable vote does not mean that I share all and every part of the reasoning followed by the Court in reaching the same conclusions. Nevertheless, I feel it necessary to state my views only on certain subjects which are important enough to deserve a separate opinion and on which 1 think that the Court should have taken a different approach.
I. The United States Agent's Letter of 18 January 1985
3. In his letter of 18 January 1985, the Agent of the United States conveyed the position of his Government on the Court's Judgment on jurisdiction and admissibility, given on 26 November 1984. The letter states in its final part :
“Accordingly, it is my duty to inform you that the United States intends not to participate in any further proceedings in connection with this case, and reserves its rights in respect of any decision by the Court regarding Nicaragua's claims.”
4. I fully agree with the statement of the Court in paragraph 27 that a State party to proceedings before the Court may decide not to participate in them. But I do not think that the Court should pass over in silence a statement whereby a State reserves its rights in respect of a future decision of the Court.
5. Article 94, paragraph 1, of the United Nations Charter says in a clear and simple way : “Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.”
6. No reservation made by a State, at any stage of the proceedings, could derogate from this solemn obligation, freely entered into, which is, moreover, the cornerstone of the system, centred upon the Court, for the judicial settlement of international disputes. The United States, like any other party to the Statute , is bound by the decisions taken by the Court and there is no right to be reserved but the right to have them complied with by such other parties as they may bind.
II. Proviso (c) to the United States Declaration of 1946
7. In a separate opinion to the 1984 Judgment, on this case, concerning the jurisdiction of the Court and the admissibility of the Application, I tried to explain, in paragraphs 13 to 27, my opposition to applying this part (proviso (c)) of the United States declaration of 1946.
9. I have voted in favour of the decision of the Court, appearing in subparagraph (2) to reject the plea of collective self-defence raised by the United States, but if I reached the same conclusions as the Court, in the matter of the alleged assistance given by Nicaragua to rebels in El Salvador, I did so through a different method, which I wish to summarize here.
10. In paragraph 230 the Court expresses the following :
“As stated above, the Court is unable to consider that, in customary international law, the provision of arms to the opposition in another State constitutes an armed attack on that State. Even at the time when the arms flow was at its peak, and again assuming the participation of the Nicaraguan Government, that would not constitute such armed attack.”
And the Court added in paragraph 247 :
“So far as regards the allegations of supply of arms by Nicaragua to the armed opposition in El Salvador, the Court has indicated that while the concept of an armed attack includes the despatch by one State of armed bands into the territory of another State, the supply of arms and other support to such bands cannot be equated with armed attack.”
11. I fully agree with this statement and others made by the Court in the same sense. It does not mean, of course, that assistance to rebels in another country could not be considered illegal under other rules of international law, such as the obligations not to intervene in the internal affairs of another State and to refrain in international relations from the threat or use of force against the territorial integrity or political independence of another State. But here the question to be decided in regard to the plea of the United States is whether the justification of self-defence in the case of assistance to rebels is valid or not under customary international law. My reply, just like the one given by the Court, is in the negative.
12. If, juridically, assistance to rebels cannot, per se, be justified on grounds of self-defence, I do not see why the Court feels bound to analyse in detail the facts of the case relating to such assistance. Neither do I perceive the need for entering, in the Judgment, into the questions of the requirements, in the case of collective self-defence, of a request by a State which regards itself as the victim of an armed attack, or a declaration by that State that it has been attacked or of its submission of an immediate report on the measure taken in the exercise of this right of self-defence.
13. From my point of view it would have been sufficient to say, just as the Court does in its conclusions, that even if there was such assistance and flow of arms, that is not a sufficient excuse for invoking self-defence because, juridically, the concept of “armed attack” does not include assistance to rebels.
14. Therefore, I have a different method of approach from that of the Court, even though I reach the same conclusions.
15. Following the logic of my reasoning, I pass no judgment as to what the Court says on such facts as may underlie the claimed justification of collective self-defence. I share, however, the findings of fact and law of the Court on the transborder incursions in the territory of Honduras and Costa Rica.
IV. The 1956 Treaty of Friendship, Commerce and Navigation
16. I voted in the 1984 Judgment, together with another judge, against accepting the 1956 Treaty of Friendship, Commerce and Navigation as a basis for the jurisdiction of the Court to entertain the dispute and I have expressed my reasoning in a separate opinion. However, I consider that in regard to the present Judgment I was obliged to vote on the question whether the United States has acted in breach of this Treaty. The question of jurisdiction and that of the breach of a treaty are of a different juridical nature; the Court could be incompetent for lack of consent to go into the merits of a dispute, but that does not mean that the States in the controversy might have not violated a rule of international law. Once the Court has established its competence, a judge is bound to decide on the merits of the case, even if he was in the minority on the question of jurisdiction. Otherwise, in the event that a judge had voted against both sources of Jurisdiction, as has happened in this case, that judge would have no standing for participating in the merits stage, which would be an absurb proposition.
Separate Opinion of Judge Elias
Taslim Olawale Elias
1 I have voted, without enthusiasm, for subparagraphs (2) to (16) of the operative clause, but I consider that subparagraph (1) of the operative clause is out of place in the present Judgment. It is inappropriate because it is contradictory to the Judgment already given in 1984, which, from the standpoint of the Court, is difficult to attempt to amend now. It has no organic or even symbolic relation to the remaining operative subparagraphs. I hesitate to call it a mere concession to expediency, but find it linguistically colourless and procedurally out of place.
2 By the Court's Judgment of 26 November 1984 the question of the Vandenberg Reservation was definitely left in abeyance, pending any intervention by El Salvador, Honduras or Costa Rica in the current phase of the proceedings, on merits and reparation; since none of the three countries has sought to intervene, the reservation is of no further relevance.
3 I cannot accept what appears to me to be the employment by the Court of Article 53 of the Statute to endow itself with the power to interpret and revise its own previous Judgment on jurisdiction and admissibility, by an extended interpretation of Articles 60 and 61 of the Statute . Such a power could not be exercised even if the non-appearing Respondent itself had requested it at this stage. It is thus even more remarkable that the Court should attempt to invoke such a power for the benefit of non-parties to the present case (like El Salvador, Honduras and Costa Rica).
4 I do not intend to make general remarks either on the Judgment itself or on Judge Schwebel's dissenting opinion because I believe that the reader himself will read and judge. I would however like to say a few words on two attacks launched against me personally in two separate paragraphs, 109 and 115 of Judge Schwebel's dissenting opinion, together with their accompanying remarks.
6 By its Order of 4 October 1984 the Court after deliberation, decided not to hold a hearing on the Declaration of Intervention of El Salvador filed on 15 August 1984 and that the Declaration was inadmissible inasmuch as it related to the then current phase of the proceedings. These decisions were taken after consideration by the Court of the Declaration of El Salvador and of the written observations thereon submitted by Nicaragua and the United States pursuant to Article 83 of the Rules of Court , the time-limit for which had been set at a date, 14 September 1984, prior to the opening of the oral proceedings on the questions of jurisdiction and admissibility. The opening of those oral proceedings having been fixed for the afternoon of 8 October 1984, this date was made public in advance, after consultations, in accordance with standard practice, by means of a press communiqué issued on 27 September 1984, which indicated also that the Court was seised of a Declaration of Intervention of El Salvador. There is nothing inherent in the Statute and Rules of Court that would have prevented the Court, had it so decided on 4 October 1984, from holding a hearing on the Declaration before or during the oral proceedings on the questions of jurisdiction and admissibility to open on 8 October 1984, or El Salvador from submitting during those proceedings its observations with respect to the subject-matter of the intervention pursuant to Article 86 of the Rules of Court . Under Article 82 of the Rules of Court , a State which desires to avail itself of the right of intervention conferred upon it by Article 63 of the Statute shall file its declaration to that effect as soon as possible and “not later than the date fixed for the opening of the oral proceedings”. It is thus evident that only after such a date is announced can other States know whether or not a declaration is filed within the time-limits prescribed by the Rules of Court. It is significant that Judge Oda, who is cited by Judge Schwebel, did vote with the majority of the Court to reject El Salvador's Declaration of Intervention.
7 With regard to the interview referred to by Judge Schwebel, he should recall that it took place in the Court on 12 December 1984, after repeated requests by the Associated Press to the First Secretary in charge of information matters, to persuade me to grant an interview on the Judgment which we delivered on 26 November 1984, holding that the Court had jurisdiction to hear the case brought by Nicaragua. The First Secretary was present throughout the question and answer interview and demanded from the interviewer a promise that he would let us see the transcript from the tape recording which he had made before any publication. Judge Schwebel's account in his written dissenting opinion was the first that the First Secretary and I had ever seen of the account narrated in the opinion together with the comments of outsiders, who are not Members of the Court, also cited by Judge Schwebel. Apart from the slants given to my alleged remarks, I confirm that the gist of what I am supposed to have said is quite correct and I very much regret the use made of it in a Member of the Court's dissenting opinion to a Judgment which still confirms that the United States of America was found wrong by the Court even under a new President, on all the essential points made by Nicaragua against it.
(Signed) T. O. Elias.
Separate Opinion of Judge Ago
1. In the separate opinion which I appended to the Judgment of 26 November 1984 on the jurisdiction of the Court and the admissibility of the Application in the present case, I explained why I had felt able to vote in favour of the finding that the Court had “a jurisdiction in the present case enabling it to proceed to examination of the merits”, convinced as I was that sufficient warrant for this finding was to be found in the existence between the Parties, under Article 36, paragraph 1, of the Statute of the Court , of a valid and indisputable jurisdictional link, one contractually and unchallengeably established in Article XXIV, paragraph 2, of the bilateral treaty of Friendship , Commerce and Navigation concluded on 21 January 1956. On the other hand, I rejected the majority view of the Court that another jurisdictional link between Nicaragua and the United States of America existed under Article 36, paragraph 2, of the Statute . Here I had reached my conclusion — which I feel bound to confirm, given the unshaken constancy of my conviction on the matter — because, to my mind, Nicaragua's alleged acceptance of the Court's compulsory jurisdiction was not and had never become real. The intention manifested on the subject in 1937 had at no time materialized in the formal undertaking which alone would have possessed legal force. It followed that no obligation had yet been accepted or even come into being on the date of the extinction of the Permanent Court of International Justice, so there was no obligation which could be “maintained” after that date, since it is impossible to maintain what does not yet exist. And if the obligation itself did not exist, neither could it have any effects that might conceivably be transferred from the Permanent Court to its successor, the International Court of Justice. In sum, the declaration of acceptance of the Court's compulsory jurisdiction which had been made by the United States of America on 14 August 1946 was not matched, as it indispensably had to be, by an equally valid acceptance on the part of Nicaragua; hence no jurisdictional link could be founded on such a basis between the two States.
2. If the majority of the Court had in 1984 adopted the same position as certain judges, the result in the present, merits phase of the case would have been that only acts that might be regarded as breaches of obligations under the Treaty of 21 January 1956 could be taken into consideration as acts whereby the United States of America might have incurred international responsibility towards Nicaragua. However, the situation is otherwise, since the majority of the Court, in the 1984 Judgment, approved and gave pride of place to the idea that a jurisdictional link existed between the Parties on the basis of the coincidence of two unilateral declarations accepting the Court's compulsory jurisdiction, both of which, and no less that of Nicaragua than that of the United States, had in its view been regularly made. Though somewhat reluctantly, I have felt obliged to respect the majority decision of the Court, which is now res judicata, and accordingly to agree to reason in the present merits phase on the basis of the supposition that when proceedings were instituted two different links of jurisdiction existed between the Parties. Of those two links, the one based upon the Optional Clause in Article 36, paragraph 2, of the Statute was manifestly of wider scope and was bound to receive the main emphasis.
3. As it happens, my scruples in this connection have to some extent been softened, though not entirely removed, on account of the recognition by the majority of the Court, in the present phase, of the effect of the restriction placed on the acceptance of its compulsory jurisdiction through the “multilateral treaty reservation”, also known as the “Vandenberg Reservation” from the name of the Senator who successfully presented it for the approval of the United States Senate. Under that reservation, the United States' acceptance of the Court's compulsory jurisdiction did not extend to :
“disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction 1 ”.
4. In this connection, the Court, in its Judgment of 26 November 1984 on questions of jurisdiction and admissibility, had declared that the objection advanced by the United States of America with regard to the exclusion from its acceptance of the Court's jurisdiction under the Optional Clause of “disputes arising under a multilateral treaty” raised a problem “concerning matters of substance relating to the merits of the case”. This had led the Court to the conclusion that the objection did not possess an “exclusively preliminary” character and could not in the circumstances constitute an obstacle to its entertaining the merits of the case, given that Nicaragua's Application did not solely complain of breaches of multilateral conventions but also relied, quite apart from the bilateral treaty of 1956, on a number of principles of “general and customary international law”. In this, the merits phase, the Court has accordingly been entirely consistent and proceeded to examine the question raised by the Respondent in its objection.
5. It is in paragraphs 42 ff. of the present Judgment that the Court has given its ruling on the consequences arising from the United States' multilateral treaty reservation in the present case. In doing so it has relied in the main on the following two points : (a) the original source of its jurisdiction to pass upon a dispute involving a particular State is always that State's consent, which implies, inter alia, that any State accepting its compulsory jurisdiction under the Optional Clause is entirely free to restrict that acceptance in any way it wishes and, more especially, to exclude disputes arising out of certain categories of treaty; (b) in the instant case, at least one third State, namely El Salvador, had to be considered as potentially “affected” by any decision involving the application of certain multilateral treaties including, but not limited to, the Charter of the United Nations and that of the Organization of American States. The necessary consequence was that the application of those instruments was excluded so far as the decision of this case was concerned. Thus the Court rightly rejected the idea of setting up against the United States an interpretation of the “Vandenberg Reservation” which would be manifestly different from the one always advanced by that Party and reduce it to mere redundancy. It can never be sufficiently emphasized that acceptance of the Court's compulsory jurisdiction on the basis of Article 36, paragraph 2, of its Statute is a sovereign, voluntary act the effects of which are strictly confined to the limits within which it was conceived and intended. The Court therefore proceeded correctly in holding itself obliged to conclude that the jurisdiction conferred upon it by the declaration of acceptance which the United States made in 1946 under Article 36, paragraph 2, of the Statute did not enable it to entertain the complaints submitted by Nicaragua concerning the violation of the treaties in question. But at the same time and, in my view, in perfect accord with its premises, it held that its jurisdiction to pass upon Nicaragua's complaints regarding the violation by the United States of obligations under rules proceeding from customary international law or the 1956 FCN Treaty remained intact.
6. Given the starting-point of the Court's reasoning, I cannot but find the conclusion it reached entirely correct. I have also to acknowledge its concern to uphold the independent existence in customary international law of each of the rules it has applied in the case. Even so, I am bound to express serious reservations with regard to the seeming facility with which the Court — while expressly denying that all the customary rules are identical in content to the rules in the treaties (para. 175) — has nevertheless concluded in respect of certain key matters that there is a virtual identity of content as between customary international law and the law enshrined in certain major multilateral treaties concluded on a universal or regional plane. I am ready to agree with the Court that, so far as the basic rule prohibiting use of force is concerned (para. 188), and even the rule requiring respect for the territorial sovereignty of other States (para. 212), there may be a close correspondence between unwritten general international law and the written law embodied in the Charter . But I remain unconvinced that, for example, certain restrictive requirements on which the Charter makes resort to self-defence conditional are also to be found in customary international law. And I am still inclined to doubt whether the customary international law that exists not only at universal 1 but also at regional level in the Americas has already endorsed all the achievements of treaty law where the prohibition of intervention is concerned. I am moreover most reluctant to be persuaded that any broad identity of content exists between the Geneva Conventions and certain “fundamental general principles of humanitarian law”, which, according to the Court, were pre-existent in customary law, to which the Conventions “merely give expression” (para. 220) or of which they are at most “in some respects a development” (para. 218). Fortunately, after pointing out that the Applicant has not relied on the four Geneva Conventions of 12 August 1949, the Court has shown caution in regard to the consequences of applying this idea, which in itself is debatable.
7. There are, similarly, doubts which I feel bound to express regarding the idea which occasionally surfaces in the Judgment (paras. 191, 192, 202 and 203) that the acceptance of certain resolutions or declarations drawn up in the framework of the United Nations or the Organization of American States, as well as in another context, can be seen as proof conclusive of the existence among the States concerned of a concordant opinio juris possessing all the force of a rule of customary international law. I shall confine myself here to a mere placing of these impressions on record, while emphasizing that such reservations as I might express on the points concerned do not carry the implication that I should disagree with the basic findings of the Judgment.
8. Coming now to those aspects of the present case which more specifically and exclusively concern the merits, I would first point out that the findings reached by the Court in the present Judgment coincide in the main with those which, from another angle, it had already adumbrated in its Order of 10 May 1984 on the request for provisional measures filed by Nicaragua on 9 April of that year. Needless to say, the present analysis is developed at far greater length and the reasoning presented in order to underpin the findings is far more substantial. But the fact remains that the acts which the Court today considers should be imputed to the United States of America are the same as the decision on provisional measures had succinctly mentioned, while, more particularly, the breaches of international law which the Court now holds those acts to have constituted are practically the same as already enumerated under B (1) and (2) in paragraph 41 of the Order of 10 May 1984. The obligations now declared to have been violated are virtually the same as those found to exist on that previous occasion : the obligations not to intervene in the internal affairs of another State, to refrain from any recourse to the threat or use of force against the territorial integrity or political independence of another State, to accord its territorial sovereignty full respect and not to disrupt or endanger its maritime commerce. At the time, I voted knowingly and conscientiously in favour of the decisions adopted by the Court on these various points, and at the present juncture I see no reason to do otherwise.
9. Nevertheless, I cannot but be struck by the presence in the Judgment now rendered — with of course my own participation — of certain aspects in the appraisal of the factual and legal situation which are in my view mutually inconsistent and appear to call for some rectification.
10. The first concerns the perspective in which the Judgment appears to place and envisage the case on which the Court was required to give its decision. To my mind, it is impossible to grasp the overall, meaningful reality of this case without keeping in view the fact that the soil in which the present dispute between Nicaragua and the United States germinated, and from which it sprang, was compounded of a situation of civil strife, of conflict within a State. Today also, this situation characterizes the present case to a greater degree than appears to have been realized.
11. Not, of course, that the Judgment completely ignores this situation. Where the Court expresses its position with regard to the breaches of the rules of humanitarian law committed in the instant case, it does indeed point out (in para. 219) that :
“The conflict between the contras' forces and those of the Government of Nicaragua is an armed conflict which is ‘not of an international character’. The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character; whereas the actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts.”
This observation is certainly correct. I readily acknowledge, moreover, that in its description of the various forms of aid and assistance provided by the United States to the contra rebels, the Court has deliberately avoided making use of certain expressions, proposed by the Applicant, which would have given rise to dangerous ambiguity, precisely in connection with the question as to the international nature of the conflict between those rebels and the forces of the Sandinist government. Thus the Court (in paras. 113 and 114) has refused to go along with the Applicant's assertions that the contra forces are mere bands of “mercenaries” recruited by the United States of America for its own ends, or in other words that they are a kind of foreign legion constituting an auxiliary body in the United States armed forces. I must also add that the very fact of construing the multifarious forms of assistance to the contras as a kind of unlawful intervention by one State in the internal conflicts of another provides further evidence that the Court has seen this essential aspect for what it is.
12. On the other hand, in the Court's manner of presenting the two sides in contention and, above all, the origins and causes of the internal conflict that broke out in Nicaragua, it seems to me that the Judgment fails to accord sufficient weight to the important changes that took place in that country during the months immediately following the fall of the Somoza government. In saying this, it is not my intention to question the Judgment's interpretation (in paras. 260–262) of the points included in the “Plan to secure peace” that the coalescent anti-Somoza elements had drawn up during the final stage of the liberation struggle against the dictatorship and that the Junta of the Government of National Reconstruction of Nicaragua had communicated to the Secretary-General of the Organization of American States in response to the resolution of the XVIIth Meeting of Consultation of the Ministers for Foreign Affairs of that Organization. Neither am I here concerned to deny the finding that the communication of this plan was merely a “political promise” devoid of all binding legal force, even though I still have some doubts in that respect; for I cannot understand how the Organization of American States member governments could have agreed to adopt such an exceptional measure as the withdrawal of recognition from a government which, however dictatorial and hateful, was undeniably in charge and, from that angle, “legitimate” unless they possessed a solid guarantee that it would be replaced by a government offering the precise characteristics defined in the peace plan, one of a kind which the members of the Organization, with the exception of the Somoza government itself, all hoped to see materialize.
13. What I wish here to stress is simply the fact that at the time when the government which the Judgment itself, at the rare points where it mentions it, styles a “democratic coalition” (para. 18) “the democratic coalition government” (para. 19) or “the Government of National Reconstruction” (para. 167) took office in Managua it corresponded in its composition, however provisional that may have been, to the various points in the “Plan to secure peace”. It was only later that matters changed. As I have found confirmed by many pieces of testimony, and inter alia by accounts of a very recent on-the-spot inquiry in Nicaragua 1 , the various political trends whose adherents had taken part in the overthrow of the dictatorship were indeed represented in the government initially resulting from the revolutionary struggle. This government clearly stated its intention of setting up a stable régime characterized by democratic pluralism, political, economic and trade-union freedom, and non-alignment in international relations. Only later, and only after a sudden change, did a government come to power which was exclusively Sandinist in complexion. That is to say, the new government which replaced the first towards the end of 1979 was practically uniform in its make-up and followed a very different line from its predecessor in regard to domestic policy, the organization of industrial and agricultural production, trade-union policy, the structure of the armed forces, foreign policy and international relations. By reaction, this development led to the formation of an opposition including elements from some very disparate backgrounds, an opposition which gradually gained ground despite being subjected to close surveillance and measures of restriction. In this climate, the elections organized by the government were boycotted by the political parties which denied their democratic regularity; relations between the civil authorities and the church worsened; there was a growing split between the traditional trade unions and those owing allegiance to the government; the conditions of the ethnic minorities deteriorated. On account of the combination of these factors, various groups belonging to the trends opposed to the new régime left the country, feeling driven to seek refuge in exile. As it happens, once in exile, the new refugees felt reluctantly impelled to seek the collaboration of the apparently sparse remnants of the Somoza guard with a view to setting up a coalition of rebel forces capable of fighting in order to provoke a development of the situation such as might enable them to return home in new circumstances. But this turn of events should not be allowed to obscure the fact that underlying the civil conflict in question there was the determining factor of a split between the various components of the coalition that had opposed the Somoza dictatorship and brought about its downfall. Neither must it be allowed to obscure the fact that the receipt by these refugees of the massive and multifarious aid and assistance that was vital for their action has not turned them into anything other than they were, has not erased their identity as part of the Nicaraguan people or rendered their fight against the government of their country anything other than a civil struggle. In my opinion, the Court could and should in its Judgment have delved more deeply into this aspect for the sake of a better understanding of the various facets of this case, though in saying this I have no intention of seeking any substantial modifications in regard to the findings reached on this subject.
14. The other aspect to which I would like briefly to refer concerns the question whether the various categories of acts the subject of the Applicant's allegations are or are not imputable to the Respondent qua acts giving rise to international responsibility.
15. Here I consider that the findings of the Judgment, at least where certain acts are concerned, merit unhesitating concurrence. Among the accumulation of acts complained of by Nicaragua, the Court was entirely right in returning an affirmative answer to the question of the imputability to the Respondent of those which must undeniably be construed as the conduct of United States agents or organs in the proper sense of those terms, namely acts performed by persons or groups directly belonging to the State apparatus of that country and acting as such. The Court has done well to add that where this conduct took place in the presence or with the participation of persons or groups that cannot be so described (in the case in point, contras) the presence or participation of the latter could not change this finding in the slightest. This is in conformity with the provisions of Article 5 (Attribution to the Slate of the conduct of its organs) of the draft articles adopted on the subject by the International Law Commission. The Court was also right to consider as acts of the United States of America the conduct of persons or groups that, without strictly being agents or organs of that State, belong nevertheless to public entities empowered within its domestic legal order to exercise certain elements of the government authority. Here I note conformity with the provisions of Article 7 (Attribution to the State of the conduct of other entities empowered to exercise elements of the government authority) of the International Law Commission's draft . The first of the two hypotheses here mentioned applied in particular to conduct by members of the government administration or armed forces of the United States, and the second to activities of members of the CIA, or of UCLAs or of other bodies of the same kind. Although the Court has not outlined, as it would have been interesting to do, any theoretical justification of its findings with regard to these hypotheses, I entirely share the view that they are well founded.
16. On the other hand, the negative answer returned by the Court to the Applicant's suggestion that the misdeeds committed by some members of the contra forces should be considered as acts imputable to the United States of America is likewise in conformity with the provisions of the International Law Commission's draft 1 . It would indeed be inconsistent with the principles governing the question to regard members of the contra forces as persons or groups acting in the name and on behalf of the United States of America. Only in cases where certain members of those forces happened to have been specifically charged by United States authorities to commit a particular act, or carry out a particular task of some kind on behalf of the United States, would it be possible so to regard them. Only in such instances does international law recognize, as a rare exception to the rule, that the conduct of persons or groups which are neither agents nor organs of a State, nor members of its apparatus even in the broadest acceptation of that term, may be held to be acts of that State. The Judgment, accordingly, takes a correct view when, referring in particular to the atrocities, acts of violence or terrorism and other inhuman actions that Nicaragua alleges to have been committed by the contras against the persons and property of civilian populations, it holds that the perpetrators of these misdeeds may not be considered as having been specifically charged by United States authorities to commit them unless, in certain concrete cases, unchallengeable proof to the contrary has been supplied.
17. Where this last point is concerned, therefore, I naturally agree in principle with what the Judgment observes in paragraph 116, namely that the Court, within the framework of the present proceedings, did not have to concern itself with any anti-humanitarian misdeeds as the contras may have committed which Nicaragua wrongly sees as violations, attributable to the United States of America, of the principles of humanitarian law, but solely with unlawful acts for which the United States may be responsible “in connection with the activities of the contras”. One or two hesitations or linguistic improprieties that can be noted in the drafting of certain passages do nothing to impair the essential correctness of that observation. More especially, I cannot but agree with the fundamental recognition that the misdeeds committed by the contras in the course of their military or paramilitary operations in Nicaragua are not imputable to the United States of America (paras. 115, 116 and 278).
18. However, I feel obliged to point out that the Judgment exhibits some hesitancy, a few at least apparent contradictions 1 and a certain paucity of legal reasoning in seeking to substantiate the position the Court takes on the points in question. I am above all inclined to regret that the Judgment does not refer explicitly to the precedent provided by the Judgment of 24 May 1980 in the case concerning United States Diplomatic and Consular Staff in Tehran . The Court seems to me to have overlooked the fact that, at that time, it was faced with a situation in many ways similar to the present one. Inter alia, it had to decide whether and, if so, to what extent the acts committed in the initial phase of the affair, namely the armed attack perpetrated on 4 November 1979 by Iranian “militants” against the Embassy of the United States, the invasion of its premises and the taking of the persons there as hostages, the seizure of the Embassy's property and archives, all those “active” misdeeds, in other words, could or could not be imputed to the Iranian State. And it reached a negative conclusion on this subject, because the “militants” in question had no official status of any kind as agents or organs of the State and there was nothing to prove that they had in fact acted in the name and on behalf of the Iranian authorities. The Court explicitly noted that even the congratulatory or approving statements made immediately following the misdeeds in question could not alter the fact that these acts committed by the “militants” could not, at that time, be attributed to the State, even if their authors were the darlings of the supreme authorities of the country. The only thing the Court considered could be attributed to the State, in this first phase of events, was the “negative” fact of having neglected to take appropriate steps for the protection of the premises and staff, so as to ward off attacks which were only to be expected on the part of over-excited hostile elements, or the equally “negative” fact that, once the attack had been perpetrated, the official authorities failed to respond to the incessant appeals for help addressed to them and did not intervene to free the persons and premises in question.
19. In the present case the Court has in effect reached similar conclusions as to the non-imputability-to the United States of America this time-of the misdeeds perpetrated by the insurgents against the Sandinist government in the context of the hostilities pursued by them in Nicaraguan territory, and the imputability to the United States solely of such conduct as can be duly proved to be that of organs of the United States “in connection with” these misdeeds of the contras. In sum, this is the second time in a very brief period that the Court has had to deal with questions of international responsibility and, more specifically, situations in which the principles to be applied have been those concerning problems of imputability, which is one of the most delicate aspects of the entire theory of responsibility. I can only regret that the Court has not seized the opportunity to emphasize, by appropriate references, a confirmation of the position it took before and of the theoretical reasoning developed in support, so as to underline the continuity and solidity of the jurisprudence.
∗ ∗ ∗
There are other points in the Judgment on which I could comment and in regard to which, perhaps, I could express some partial disagreement 1 . However, I prefer to confine myself here to these few observations and points that I feel it has been necessary to put forward in order to make known my views regarding some selected aspects of fact and law which to my mind were the most important. Here and there the reader will note some reservations which are not merely formal in regard to the holdings set forth in certain chapters or paragraphs of the Judgment and its attendant reasoning. Yet, in the last resort, there are no disagreements of such an order as to impel me to forsake the general concurrence that I believe in all objectivity I may accord the Judgment delivered today.
(Signed) Roberto Ago.
Separate Opinion of Judge Sette-Camara
1 Since I have voted against subparagraph (1) of paragraph 292 of the Judgment, I feel myself obliged to append this separate opinion stating my reasons.
2 During the previous proceedings relating to the jurisdiction and admissibility of the Nicaraguan Application of 9 April 1984, the multilateral treaty reservation attached to the 26 August 1946 United States Declaration of Acceptance of the Court's jurisdiction under Article 36, paragraph 2, of the Statute was subjected to thorough and detailed discussion, leading to the decision of the Court in the Judgment of 26 November 1984. The two Parties in their arguments examined the reservation in all its aspects, and weighed all possible interpretations of its rather nebulous wording and the consequences of its application.
3 It should be recalled that the reservation is contained in proviso (c) to the Declaration, which excludes from the operation of the clause
“disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction” ( I.C.J. Yearbook 1984–1985 , p. 100).
4 Five member States have appended a similar reservation to their Declarations of Acceptance, namely, El Salvador, India, Malta, Pakistan and the Philippines. However, only the reservations of Pakistan and Malta include the wording appearing in the United States reservation “all parties to the treaty affected by the decision”. The reservations of El Salvador, India and the Philippines exclude disputes arising from the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties in the case before the Court ( I.C.J. Yearbook 1984–1985 , pp. 75, 78 and 92 respectively). Of course the latter version of the reservation is broader in scope, because, if the multilateral treaty reservation were to be applied as it appears in the Indian, Philippine and Salvadorian formulations, all the States parties to a multilateral convention would have to appear before the Court together with the original parties in the case. It is difficult to see how the reservation could apply to universal treaties such as the Charter of the United Nations , or even treaties of a regional ambit, such as the Charter of the Organization of American States — both in cause in the Nicaraguan Application — because that would amount to bringing before the Court the entire membership of the United Nations, and the regional organization itself.
5 The multilateral treaty reservation has been widely criticized by publicists ever since the 1946 United States Declaration was deposited with the Secretary-General of the United Nations. Indeed several writers, including some eminent American scholars, have considered it ambiguous, redundant and superfluous. Counsel for the United States recognized the doubts connected with the ambiguity of its formulation (hearing of 15 October 1984, afternoon) :
“As the United States indicated in its Counter-Memorial, scholars discussing the reservation at the time of its inclusion in the declaration disagreed about whether the reservation required the presence before the Court of all treaty parties, or only of those treaty parties that would be affected by the Court's decision.”
6 Moreover, at that time, there were also doubts as to the unclear wording of the proviso, especially as to whether it referred to “the treaty affected” or to “all parties affected”.
7 In the present case the United States, while participating in its previous stages, has had the opportunity to clarify its construction of the meaning of the reservation. The United States Counter-Memorial contended in paragraph 252 (p. 105) :
“The Court may, therefore, exercise jurisdiction over Nicaragua's claims consistent with the multilateral treaty reservation only if all treaty parties affected by a prospective decision of the Court are also parties to the case.”
8 And in paragraph 253 (p. 105) it spelled out the “specific concerns” behind the reservation :
“The multilateral treaty reservation reflects three specific concerns : (1) the United States does not wish to have its legal rights and obligations under multilateral treaties adjudicated with respect to a multilateral dispute unless the rights and obligations of all the treaty parties involved in that dispute will also be adjudicated; (2) adjudication of bilateral aspects of a multilateral dispute is potentially unjust in so far as absent States may have sole possession of facts and documents directly relevant to the rights of the parties to the adjudication inter se; and (3) adjudication of bilateral aspects of a multilateral dispute will inevitably affect the legal rights and practical interests of the absent States.”
9 This threefold description of the reasons inspiring the reservation is not altogether convincing. As to the first point, it would indeed be extraordinary if a State making a declaration of acceptance of the Court's jurisdiction were to append to it reservations to protect the rights and interests of third States.
10 In his separate opinion to the Judgment of 26 November 1984 Judge Ruda rightly observes :
“it does not seem logical that a State submitting a declaration accepting the compulsory jurisdiction of the Court, but excluding certain matters affecting its own interests from the jurisdiction, should act on behalf of third States” ( I.C.J. Reports 1984, p. 456, para. 22).
11 The second point is equally unpersuasive. The “sole possession of facts and documents” by a third State is outside the competence of the Court to appraise. And this specific knowledge has nothing to do with participation in a multilateral treaty. It is possible that a State which is not a party to the treaty might possess such “facts and documents”. Thirdly, it is certainly not true that “adjudication of bilateral aspects of a multilateral dispute will inevitably affect the legal rights and practical interests of the absent States” (emphasis added). It might, or might not, affect them. In the November 1984 Judgment the Court itself gave a specific example of a possible situation in which there would be no third State affected by the decision :
“By way of example we may take the hypothesis that if the Court were to decide to reject the Application of Nicaragua on the facts, there would be no third State's claim to be affected.” ( I.C.J. Reports 1984, p. 425, para. 75.)
12 In the Judgment of 26 November 1984 the Court dealt extensively with the multilateral treaty reservation in paragraphs 72 to 76 ( I.C.J. Reports 1984, pp. 424–426). Having recognized the obscurity of the wording of the proviso, and referred to the difficulties of interpretation which can be traced back to its drafting, and having weighed up the meaning of similar reservations on the part of other States, the Court found, in paragraph 73, that in no way could the reservation bar adjudication, because Nicaragua's Application relied not only on conventional law but also on violation of a number of principles of customary and general international law, such as the non-use of force, non-intervention, respect for the independence and territorial integrity of States and freedom of navigation. These principles are valid and binding in themselves, even if they have been enshrined in the provisions of multilateral treaties. The Court observes that the States to which the argument of the United States refers, the neighbours of Nicaragua, namely, Costa Rica, Honduras and El Salvador, have all made declarations of acceptance of the Court's jurisdiction and could at any time institute proceedings against Nicaragua if they felt their rights and interests to be in jeopardy. They could also resort to the incidental procedure of intervention under Article 62 or 63 of the Statute (I.C.J. Reports 1984, p. 425). Indeed, when considering the Declaration of Intervention filed by El Salvador on 15 August 1984 — which was rejected as untimely, because of the fact that the Court was entertaining the jurisdictional phase of the proceedings —, the Court did preserve the rights of El Salvador to intervene on the merits. But El Salvador did not use these rights. Nor did Honduras and Costa Rica, the only States that could possibly be affected by a decision of the Court in the current case.
13 The 1984 Judgment emphasized in paragraph 75 that : “it is only when the general lines of the judgment to be given become clear that the States ‘affected’ could be identified” ( I.C.J. Reports 1984, p. 425).
14 Therefore the question whether other States are affected by the Judgment could only be finally settled during the merits phase of the Judgment. That is why the Court, considering that the former procedure of joinder of preliminary objections to the merits has been done away with as from the 1972 revision of the Rules of Court , decided to resort to Article 79, paragraph 7, of the present Rules . The Rule was used for the first time, and the Court found that
“the objection based on the multilateral treaty reservation of the United States Declaration of Acceptance does not possess, in the circumstances of the case, an exclusively preliminary character, and that consequently it does not constitute an obstacle for the Court to entertain the proceedings instituted by Nicaragua under the Application of 9 April 1984” ( I.C.J. Reports 1984, pp. 425–426, para. 76).
15 The decision of the Court to apply Rule 79, paragraph 7, I submit, is sound and logical. It is only when the general lines of the Judgment to be given become clear that the States “affected” can be identified, if they exist at all. It is a curious situation : the finding as to whether there are third States parties to the multilateral treaties in question “affected” by the decision, and which they are, can be established only ex post facto. At the same time the reservation, although not having an exclusive preliminary character, remains a preliminary objection to jurisdiction, at least in so far as one of the sources of the law to be applied will be the multilateral treaties invoked by Nicaragua in its Application of 9 April 1984.
16 In these circumstances, the Court feels itself under the obligation to ascertain whether its jurisdiction is limited by virtue of the reservation in question (para. 47 of the present Judgment) and does so in a lengthy and exhaustive manner in paragraphs 47 to 56 of the Judgment.
17 It should be noted that this is a sui generis procedural situation, because although the jurisdictional phase of the case has been closed with the Judgment of 26 November 1984, one question of a preliminary character (albeit not “exclusively” so) was left pending, and the decision on that question should determine the law applicable and hence the whole structure of the Judgment.
18 The Court starts its examination of the problem by restricting the field to which the reservation could be applied, in relation to both the multilateral treaties involved and the States which might potentially be affected. Since Nicaragua has recognized that the duties and obligations arising from the Montevideo Convention on the Rights and Duties of States of 26 December 1933, and the Havana Convention on the Rights and Duties of States in the Event of Civil Strife of 20 February 1928 have been subsumed by the Charter of the Organization of American States , the Court considers
“that it will be sufficient to examine the position under the two Charters [the Charter of the United Nations and the Charter of the Organization of American States], leaving aside the possibility that the dispute might be regarded as ‘arising’ under either or both of the other two conventions” (para. 47 of the Judgment).
19 On the other hand, in spite of the fact that the United States, in the jurisdictional proceedings, had listed Costa Rica, Honduras and El Salvador as States that could be “affected”, the Court confines its consideration to El Salvador, because :
“It is primarily for the benefit of El Salvador, and to help it to respond to an alleged armed attack by Nicaragua, that the United States claims to be exercising a right of collective self-defence, which it regards as a justification of its own conduct towards Nicaragua.” (Para. 48.)
20 I have no objection to the criteria chosen by the Court to restrict the area of application of the multilateral treaty reservation. In some ways it simplifies the problem, although it is undeniable that Honduras — from whose territory the contras operate — is as involved in the dispute as El Salvador, to say the least. But the crux of the question is that the whole of the United States argument rests on the use of the right of collective self-defence. El Salvador, in its Declaration of Intervention of 15 August 1984, told the Court that it considered itself the victim of an armed attack by Nicaragua, and that it had asked the United States to exercise on its behalf the right of collective self-defence.
21 In paragraph 292, subparagraph (2), the Court
“Rejects the justification of collective self-defence maintained by the United States of America in connection with the military and paramilitary activities in and against Nicaragua the subject of this case.”
The justification of collective self-defence, belatedly invoked by the United States during the proceedings on jurisdiction and admissibility in 1984, if valid, should retroact at least to December 1981 when the abovementioned activities actually began. Obviously the rejection of the Court covers equally the same period. Therefore, collective self-defence never justified such activities and the decision of the Court in no way changes the nature and character of the acts of the United States. They were not justified by collective self-defence and they continue not to be so. Hence, if there is no change in the actual situation, I do not see how El Salvador can claim to be “affected” by the decision of the Court. In its argument Nicaragua never placed in issue the right of El Salvador to receive from the United States all kind of assistance, military or otherwise (Memorial of Nicaragua, p. 193, para. 371). Therefore, El Salvador's rights in this respect cannot be affected by a decision of the Court in favour of Nicaragua. The decision of the Court in paragraph 292, subparagraphs (3), (4), (5), (6), (7), (8), (9), (10) and (11), I submit, could in no way affect the rights or obligations of El Salvador. The same can be said of the provision in subparagraph ( 12), calling on the United States to cease and desist immediately from the acts in question. El Salvador preserves its rights of receiving full support from the United States for its defence. But it can hardly be argued that El Salvador can claim a right to the continuance of direct or indirect military or paramilitary actions of the United States against Nicaragua, which are unrelated in any way to the territory of El Salvador. As for subparagraphs (13) and (14) — obligation in respect of reparation to be paid by the United States —, (15) — form and amount of reparation, to be settled by the Court — and (16) — calling on the Parties to settle the dispute by peaceful means —, they have nothing to do with El Salvador. Therefore the decision of the Court as it stands in the operative part of the Judgment could in no way “affect” El Salvador such as to warrant application of the multilateral treaty reservation. In this sense I do not concur with paragraph 51 of the reasoning. Nor do I agree with the argument contained in paragraph 53. The distinction between “adversely” affecting and otherwise, is irrelevant and beside the point. Nothing in the operative clause of the Judgment could, I submit, “affect” the rights or obligations of El Salvador either “adversely” or “favourably”.
22 Likewise, I disagree with the conclusion in paragraph 56 that the Court is debarred from applying the Charter of the United Nations , as a multilateral treaty.
23 Paragraph 55 of the Judgment discusses the same problem of the application of the multilateral treaty reservation in relation to the Charter of the Organization of American States , and especially in regard to Articles 18 and 20 dealing with non-intervention and the non-use of force. The Court concludes that it must regard itself as without competence to deal with either of the two claims of breach of the OAS Charter. As to the alleged violation of Article 18 of the OAS Charter by the United States intervention in the internal or external affairs of Nicaragua, a subject disposed of by subparagraph (3) of the operative part, I fail to see by what stretch of imagination such a decision could be said to affect El Salvador.
24 The so-called Vandenberg Amendment applies to disputes under multilateral treaties which are also multilateral disputes. The current case is between the Applicant — Nicaragua — and the Respondent — the United States of America. Any other State which has any reason to consider that it might be affected by a Judgment of the Court, and which has jurisdictional links with the Parties in the case, and with the Applicant in particular, is free to initiate proceedings of its own or to intervene under Articles 62 and 63 of the Statute . The only relevance of the multilateral treaty reservation in the merits phase of the proceedings is, I submit, that the Court cannot ignore the problem of third States parties to multilateral treaties which might be affected by the Judgment, and should deal with it in the proper terms, namely that they are free to come before the Court to defend their rights and interests if they so desire.
25 Of course the Court cannot ignore the existence of a certain generalized conflict in the Central American area. Judge Ruda, in his separate opinion appended to the November 1984 Judgment, dealt with it in these words :
“It is true that there is a complex and generalized conflict among Central American countries, but not the whole conflict, with all its economic, social, political and security aspects, is submitted to the Court, only the claims of Nicaragua against the United States. Nicaragua has not presented any claims against Honduras, El Salvador and Costa Rica.” ( I.C.J. Reports 1984, p. 457, para. 24.)
26 We should abide by the categoric provision of Article 59 of the Statute , which confines the binding force of the res judicata to the parties in the case, and consequently bear in mind the fact that the expansion of the effects of the Judgment, so as to affect a third party, constitutes a departure from the general rule, and, like any exception, must therefore be founded in indisputable evidence.
27 For all these reasons I regret that the Court decided for the application of the multilateral treaty reservation, thereby precluding recourse to the Charter of the United Nations and the Charter of the Organization of American States as sources of the law violated by the Respondent.
28 I recognize that States which voluntarily deposit declarations of acceptance of the jurisdiction of the Court, pursuant to Article 36, paragraph 2, of the Statute , are free to append to the declaration whatever reservations they deem necessary. But at the same time, the Court is free, and indeed bound, to interpret declarations and appended reservations, as it has done on many occasions.
29 I submit that the law applied by the Judgment would be clearer and more precise if we resorted to the specific provisions in issue, and that there is nothing to prevent us from doing so.
30 The late regretted Judge Baxter has maintained the superiority of treaties over other sources as evidence of law in very cogent terms :
“The most telling argument for giving the treaty that effect is that it is superior to all other forms of evidence of the law. In the first place, the treaty is clear evidence of the will of States, free of the ambiguities and inconsistencies characteristic of the patchwork of evidence of State practice that is normally employed in proving the state of international law.”
And further :
“As one looks at the present state of international law and attempts to see into the future, it should be quite clear that treaty law will increasingly gain paramountcy over customary international law.” ( R. R. Baxter, “Treaties and Custom”, Collected Courses of the Hague Academy of International Law, Vol. 129 (1970–1), pp. 36 and 101.)
31 It is for the reasons set out above that I have no choice but to vote against subparagraph (1) of paragraph 292 of the Judgment. But I fully concur with the rest of the Judgment, as I firmly believe that the non-use of force as well as non-intervention — the latter as a corollary of equality of States and self-determination — are not only cardinal principles of customary international law but could in addition be recognized as peremptory rules of customary international law which impose obligations on all States.
32 With regard to the non-use of force, the International Law Commission in its commentaries on the final articles on the Law of Treaties said :
“the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens” ( International Law Commission Yearbook , 1966, Vol. II, p. 247).
33 As far as non-intervention is concerned, in spite of the uncertainties which still prevail in the matter of identifying norms of jus cogens, I submit that the prohibition of intervention would certainly qualify as such, if the test of Article 53 of the Vienna Convention on the Law of Treaties is applied. A treaty containing provisions by which States agree to intervene, directly or indirectly, in the internal or external affairs of any other State would certainly fall within the purview of Article 53, and should consequently be considered void as conflicting with a peremptory norm of general international law.
(Signed) José Sette-Camara.
Separate Opinion of Judge Ni
1 I have voted in favour of all the subparagraphs of the dispositif except one. But it occurs to me that some parts of the dispositif are so worded and formulated that, quite inevitably, a simple affirmative or negative vote cannot adequately reflect the trend of my thoughts on the questions under consideration. I therefore feel obliged to submit the present separate opinion for the purpose of stating the position I take.
2 My primary concern is with respect to the “multilateral treaty reservation”, sometimes referred to as the “Vandenberg Amendment”. This question might at first sight be deemed no longer important inasmuch as the jurisdictional phase could be considered already over and the Court is in any event competent to deal with the case on the basis of customary international law as well as the 1956 Treaty of Friendship, Commerce and Navigation between Nicaragua and the United States .
3 But a closer examination of the pleadings in the previous phase and the Judgment of 26 November 1984 will reveal the fact that there had been left behind at that time some “unfinished business” which must be considered relegated to the present phase of the proceedings.
4 It is to be recalled that the Court was then confronted with the United States contention that in accordance with proviso (c) to its declaration accepting compulsory jurisdiction of the International Court of Justice, such acceptance shall not extend to
“disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction”.
5 The multilateral treaties relied on by the Application of Nicaragua are the Charter of the United Nations , the Charter of the Organization of American States , the 1933 Montevideo Convention on Rights and Duties of States and the 1928 Havana Convention concerning the Duties and Rights of States in the Event of Civil Strife . The threshold question during the jurisdictional phase of the proceedings was whether the above multilateral treaty reservation constituted a bar to Nicaragua's Application. To support its contention challenging the jurisdiction of the Court, the United States named three Central American States, i.e., El Salvador, Honduras and Costa Rica, as the States parties to the four multilateral treaties mentioned above which would be affected by the adjudication of the claims submitted to the Court.
6 Whether or not these Central American States would be affected by the decision of the Court was a matter difficult to decide at the time of the preliminary proceedings when the merits of the case were not being considered. Before the revision of the Rules of Court in 1972 , decision on a preliminary objection, such as the present one on jurisdiction, could have been joined to the decision on the merits of the case. This cannot be done in the present instance. The Court therefore stated in paragraph 75 of its 1984 Judgment that : “As for the Court, it is only when the general lines of the judgment to be given become clear that the States ‘affected’ could be identified.” The Court concluded thereupon in paragraph 76 that :
“the Court has no choice but to avail itself of Article 79, paragraph 7, of the present Rules of Court , and declare that the objection based on the multilateral treaty reservation of the United States Declaration of Acceptance does not possess, in the circumstances of the case, an exclusively preliminary character, and that consequently it does not constitute an obstacle for the Court to entertain the proceedings instituted by Nicaragua under the Application of 9 April 1984” ( I.C.J. Reports 1984, pp. 425–426).
7 In retrospect, the Court could, in accordance with Article 79, paragraph 7, of the Rules of Court , have ruled on this preliminary objection in one of the three ways provided therein. It could have upheld the objection to its jurisdiction on the ground that, by the wording of the multilateral treaty reservation, i.e., proviso (c) of the United States declaration , the mere possibility of any of the other Central American States being affected by the decision, in one way or the other, was sufficient to defeat Nicaragua's claim of jurisdiction, in so far as allegations of breaches of treaty obligations were concerned. Alternatively, the Court could have rejected the preliminary objection on the ground that any decision to be given by the Court would not affect any of the Central American States and, moreover, according to Article 59 of the Statute , such decision would have no binding force except between the parties and in respect of that particular case, and therefore no third party would be affected thereby. But the Court took the cautious step of postponing a definitive decision on the question and preferred to leave it in abeyance for later consideration. Of course the circumstances of the case provided the Court with the possibility of making such a choice, because Nicaragua's claims did not rely solely on the multilateral treaties but also on customary international law and the bilateral Treaty of 1956 , so that the Court was not left to the hasty choice of either throwing out the case at its very inception or accepting the jurisdiction over the treaty-based claims of Nicaragua not without a tinge of precipitation or prejudging.
8 Now the case has reached the stage of considering the merits. Should the Court re-examine the question of multilateral treaty reservation? I would prefer to say that the Court should continue to examine the question in order to arrive at a more definitive decision with respect to jurisdiction and also, in consequence of going into the merits of the case, with respect to the question of the applicable law. The United States raised the multilateral treaty reservation as a plea in bar to the Application of Nicaragua. This plea, once admitted, will (1) exclude the Court from exercising jurisdiction in so far as the claims made by Nicaragua are based on the multilateral treaties in question; and (2) preclude, if jurisdiction attaches on other grounds so that the case is still in the Court for adjudication on the merits, the application of rules of law provided in or derived from such multilateral treaties.
9 The first point above referred to is quite obvious. The second is relevant only in cases, of which the present case is one, where the Court remains seised with jurisdiction to entertain the proceedings on grounds other than the multilateral treaty or treaties in question. Here a problem of some novelty has taken shape : whether, in a case such as the present one, which is alleged to have arisen under, or is based upon, a multilateral treaty or treaties — this being the very ground for invoking the multilateral treaty reservation —, the Respondent in the case can in the meantime turn round and say that the same multilateral treaty or treaties, the very object of the reservation, should be the applicable law for the solution of the case in dispute. The answer to this is not entirely simple and I will return to it later in the opinion.
10 By the 1984 Judgment, jurisdiction over Nicaragua's claims based on customary international law and the bilateral Treaty of 1956 had been affirmed and the case was ready to enter into the merits phase. However, the question of the applicability of the multilateral treaty reservation remained in abeyance, because it was not then sufficiently clear whether third States parties to the multilateral treaties in question would be affected by the Judgment to be given. A treatment of this question for its final disposal at this phase of the proceedings is indispensable for the following reasons :
11 Firstly, from the procedural point of view, the question had not been, and could not have been, given full treatment in the former proceedings. A conclusion was reached with respect to jurisdiction on grounds other than the multilateral treaties in question. Both the language and the reasoning of the 1984 Judgment do not indicate that an ultimate solution had been attempted.
12 Secondly, the United States, as the declarant of the instrument accepting jurisdiction of the Court on specific questions, has the right to expect a decision on the question which, though properly belonging to the phase on preliminary objection, can only be appropriately determined when the merits are examined in the present proceedings.
13 Thirdly, despite its absence from the current proceedings, the United States challenge to the jurisdiction of the Court on the ground of the multilateral treaty reservation remains an objection which cannot be ignored or overridden by the acceptance of jurisdiction on grounds other than the multilateral treaties in question. Failure to make a definitive pronouncement on the objection raised by the absent Party will not be in consonance with Article 53, paragraph 2, which makes specific mention of jurisdiction.
14 Finally, any determination on the multilateral treaty reservation is intimately linked to the question of what rules of law are to be applied. Should the Court decide that the multilateral treaty reservation contained in the United States declaration constitutes a valid objection to the Court's jurisdiction, then only rules of customary international law and the provisions of the bilateral Treaty of 1956 will be applicable to determine Nicaragua's allegations of breaches of obligations by the United States. The multilateral treaty reservation, once admitted, carries with it not only exclusion of the Court's jurisdiction but also, as a corollary thereof, the non-applicability of the rules of law which are provided in or derived from the multilateral treaties in question, i.e., what can be called multilateral treaty law. If, on the contrary, the Court should decide that the multilateral treaty reservation in the United States declaration does not constitute a valid objection to the Court's jurisdiction, the application of multilateral treaty law will be of course unquestioned and the plea in bar against the Court's jurisdiction is thereby disposed of with finality.
15 In considering the merits of the case, the Court would be at liberty to examine more fully the relevant facts in order to determine with more precision whether any third State or States might be affected by the Judgment to be given. According to the United States,
“El Salvador, Honduras and Costa Rica have each sought outside assistance, principally from the United States, in their self-defense against Nicaragua's aggression … the United States has responded to these requests.” (United States Counter-Memorial, para. 202.)
While admitting provision of economic and military assistance to El Salvador, the United States contended that it was exercising the inherent right of individual and collective self-defence under Article 51 of the United Nations Charter . El Salvador for its part has filed, pursuant to Article 62, paragraph 1, of the Court's Statute , a Declaration of Intervention which the Court had found to be premature ( I.C.J. Reports 1984, pp. 215–217).
16 Under the given circumstances, should the Court find that the facts of the case do not justify the United States claim of collective self-defence, then El Salvador's claim of individual self-defence would also be in question. On the other hand, if the Court should find the United States claim of collective self-defence to be well founded, it would also reflect on the justification of El Salvador's claim of its right of individual self-defence. In one way or the other, El Salvador, to single it out as an example of a third State involved without mentioning any other, cannot be held to be unaffected, though not bound by the Judgment to be given. It is difficult to imagine that the Court, in making such determination, can either justify or deny the United States contention without reference to the position of El Salvador either in express language or by implication. This will give rise to a kind of situation that, while the United States is bound by the Judgment to be given, a third State thus linked thereto remains technically beyond the reach of the res judicata. Thus it might be said that, under normal circumstances, the multilateral treaty reservation raised by the United States, in so far as jurisdiction based on multilateral treaties is concerned, merits consideration. However, the matter does not end there.
17 As has been said before, admission of a reservation like the present one precludes, if jurisdiction still attaches on other grounds, the application of multilateral treaty law, and thus only customary international law and rules of law provided in or derived from the bilateral Treaty of 1956 will apply to determine the merits of the claims made by Nicaragua in the Court against the United States. However, it is to be noticed that the United States, while relying on the multilateral treaty reservation to challenge the exercise of jurisdiction by the Court, has at the same time, both within and outside the proceedings in the Court, persistently invoked the United Nations Charter , the main source of multilateral treaty law applicable to the case before the Court, in order to justify its actions vis-à-vis Nicaragua.
18 In an address before the American Society of International Law on 12 April 1984, three days after the filing of the Nicaraguan Application in this Court, the United States Permanent Representative to the United Nations spoke for the first time of the right of individual and collective self-defence under Article 51 of the United Nations Charter . It was stated that :
“This prohibition on the use of force was never intended to stand on its own, but, as everyone here knows, I am certain, was to be seen in the context of the entire Charter . In particular, as stated in Article 51, it was not intended to ‘impair the inherent right of individual or collective self-defense 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’.” (Nicaraguan Memorial, Ann. C, Attachment II-4.)
It is also to be recalled that, after the Judgment of 26 November 1984 on jurisdiction and the admissibility of Nicaragua's Application was given, the United States repeated, in its statement of 18 January 1985, the claim of the right of collective self-defence under the United Nations Charter ( International Legal Materials , 1985, No. 1, p. 246).
19 Such references to the right of individual and collective self-defence under Article 51 of the United Nations Charter were made by counsel for the United States in the oral proceedings on interim measures of protection in April 1984 as well as in the phase on jurisdiction and admissibility in October of the same year (hearings of 27 April 1984 and 16 October 1984). For instance, counsel for the United States stated to the Court that :
“Nicaragua's Application and request improperly call upon this Court in the circumstances of this case to make judgments and to impose measures potentially impairing the inherent right of States to individual and collective self-defence under Article 51 of the United Nations Charter” (hearing of 27 April 1984, morning).
At another instance, counsel for the United States stated with such gravity as to say :
“the right to engage in individual or collective self-defence recognized by Article 51 of the Charter is absolute, may not be impaired by this Court or any other organization of the United Nations …” (hearing of 16 October 1984, morning).
20 In the written proceedings in the phase on jurisdiction and admissibility, the Counter-Memorial submitted by the United States on 17 August 1984 contained numerous passages in explanation of its position. It stated categorically that :
“Under Article 51 of the Charter of the United Nations , El Salvador has an inherent right of self-defense against such armed attacks and a right to request that the United States provide it with assistance in resisting such attacks. The United States presently does provide economic and military assistance to El Salvador …” (United States Counter-Memorial, para. 290.)
Under the caption “The Various Multilateral Treaties on which Nicaragua Bases its Claims Are the Applicable Law Among Nicaragua, the United States, and the Other Central American States”, the United States claimed that :
“Nicaragua, the United States, and the other four Central American States are all parties to each of the four multilateral treaties on which Nicaragua bases its claims, most notably the Charters of the United Nations and the Organization of American States . Regardless of the status of the Charter of the United Nations as customary and general international law, those treaties constitute the lex inter partes, and Nicaragua's claims cannot be adjudicated by referring to some other, unagreed sources of law.” (United States Counter-Memorial, para. 320.)
21 The Counter-Memorial went on at great length to argue that the provisions of the United Nations Charter relevant to the present case “subsume” and “supervene” related principles of customary international law (paras. 313–319). It stressed in one of its concluding paragraphs that
“It is well-settled that the right of individual or collective self-defense is an inherent right of States. The special and extraordinary nature of the right of individual or collective self-defense is explicitly recognized in the prescription of Article 51 that ‘nothing in the present Charter shall impair’ that right.” (Para. 516.)
22 Various arguments were advanced by the United States to equate the Charter provisions with customary international law relevant to the present case (United States Counter-Memorial, paras. 313–322). for the purpose of showing that, since the multilateral treaty reservation, once admitted, bars application of treaty law, it will likewise bar the application of customary international law because the latter has been subsumed or supervened by the former.
23 However, it is certain that when principles of customary international law are incorporated into a multilateral treaty like the United Nations Charter , these principles of customary international law do not thereby become extinct. The same principles continue to be operative and binding on States, sometimes alongside or in conjunction with treaty law, in their international relations with one another. Article 38, paragraph 1, of the Statute enumerates, as applicable by the Court, the various sources of international law which, in the course of application, usually support, rather than preclude, each other. But it would be inconceivable that application of one should exclude that of any other.
23 The Judgment of 26 November 1984 clearly stated :
“The Court cannot dismiss the claims of Nicaragua under principles of customary and general international law, simply because such principles have been enshrined in the texts of the conventions relied upon by Nicaragua. The fact that these above-mentioned principles, recognized as such, have been codified or embodied in multilateral conventions does not mean that they cease to exist and to apply as principles of customary law, even as regards countries that are parties to such conventions.” ( I.C.J. Reports 1984, p. 424, para. 73.)
24 What is left of the above-mentioned arguments is that the United States is unreservedly committed to the position of accepting the multilateral treaties, the United Nations Charter in particular, as the applicable law for the settlement of the present dispute. This is clearly in contradiction to the stand it took in respect of the multilateral treaty reservation in challenging the exercise of jurisdiction over the dispute by the Court.
25 What is more, not only did the United States hold firm on the application of multilateral treaty law, but Nicaragua also, for its part, responded to the United States contention based on Article 51 of the United Nations Charter by arguing that the factual allegations made against Nicaragua by the United States fell short of an “armed attack” within the meaning of the aforesaid Article and that the United States had not fulfilled the condition of immediately reporting to the Security Council as required by that Article. Counsel for Nicaragua stated, for instance, the following :
“Article 51 recognizes ‘the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations’. The critical words are ‘if an armed attack occurs’. They delimit the scope of the exception.” (Hearing of 25 April 1984, morning).
“Article 51 provides that measures taken by members in the exercise of this right of self-defence shall be immediately reported to the Security Council. Neither the United States nor El Salvador has ever made such a report to the Security Council.” (Ibid.)
26 It can be plainly seen that the two Parties have in fact already joined issue not merely on the applicability, but also on the substance, of a specific provision in the multilateral treaty. They hold different views which, however, stem from the same source. Article 51 of the United Nations Charter . It is left to the Court to decide, on the basis of such multilateral treaty, whether the actions of the United States can be justified. Although such exchanges did not occur in the present phase of the proceedings, the like-minded logic of the Parties to rely on multilateral treaty law as the applicable law for the solution of the case in dispute should not be negatived by the mere fact that such exchanges were made at an earlier stage. No procedural formalism will in all seriousness disregard the Parties' shared positive attitude towards the application of the rules of law flowing from instruments of global or regional recognition. The United States itself has quoted authorities to show that it is only when there are no provisions of a treaty applicable to a situation that international customary law is, next in hierarchical order, properly resorted to and that these conclusions are virtually axiomatic (United States Counter-Memorial, para. 321). If it can be taken that Members of the United Nations may “opt out” of the Organization's Charter by way of invoking a multilateral treaty reservation, why cannot they “opt in” by joining issue on the merits of such multilateral treaty?
27 It is to be pointed out that claims based on a treaty do not only owe their creation and existence to the treaty. They are also to be regulated by the treaty in question. It can hardly be imagined that claims are based on a treaty but not regulated by it. It is owing to the possibility of affecting a third party or parties by the application of multilateral treaty law, that the Court is asked to refrain from exercising jurisdiction in a case such as the present. Therefore, where the Court refrains from exercising jurisdiction because of the multilateral treaty reservation, it will be precluded from applying multilateral treaty law. Conversely, if the Court does exercise jurisdiction notwithstanding the multilateral treaty reservation, it logically follows that the multilateral treaty law, which regulates the mutual rights and obligations of the parties, will be applied for the settlement of the dispute before the Court.
28 The multilateral treaty reservation of the United States, though procedurally linked to jurisdiction, is in substance related to the regulation of the rights and obligations of the Parties. The United States cannot claim that the multilateral treaty reservation concerns only the jurisdiction of the Court and is without relation to the question of the applicable law. These two aspects are intimately related and cannot contradict each other, if the reservation is to have any meaning at all. However, the United States, while invoking the multilateral treaty reservation, had at all times declared its unconditional reliance on the United Nations Charter , which is a multilateral treaty, and had at no time made any intimation that such attitude was without prejudice to its position on the reservation with respect to jurisdiction. In fact, it could not have maintained such a self-conflicting stand.
29 Throughout the proceedings prior to its withdrawal from participation, the United States had persistently relied on multilateral treaties, the United Nations Charter in particular, not merely for the purpose of convincing the Court, as suggested in paragraph 46 of the Judgment, that the present dispute was one “arising under” those treaties and hence excluded from jurisdiction by the United States multilateral treaty reservation, but to fortify its claim of justification for its actions vis-à-vis Nicaragua on the basis of Article 51 of the United Nations Charter , which constitutes the mainstay of its affirmative defence in the present case. Although the United States chose not to participate in the proceedings on the merits, it did clearly state the bases of its arguments against Nicaragua's Application during the phase on jurisdiction and admissibility. In this sense, the question of applicable law is considered by the United States as essential and central to its defence.
30 Since lack of jurisdiction, if the multilateral treaty reservation is effective, will presuppose non-application of multilateral treaty law, insistence on applying multilateral treaty law can only be taken as abandonment of the position on the multilateral treaty reservation. In view of the attitude shared by both Parties towards the question of the applicable law, and in deference to the paramountcy of the United Nations Charter , it is submitted that the United States should be considered as having waived its objection based upon the multilateral treaty reservation which concerns both the jurisdiction of the Court and the application of law. The attitude of the United States as described above warrants a conclusion of such waiver, which alone is compatible with its own stance of strong adherence to the United Nations Charter, as well as the other multilateral treaties. It is to be recalled that the United States once emphasized : “those treaties constitute the lex inter partes, and Nicaragua's claims cannot be adjudicated by referring to some other, unagreed sources of law” (United States Counter-Memorial, para. 320).
31 According to the Judgment of 26 November 1984, the Court has jurisdiction to adjudicate Nicaragua's claims based on customary international law and the bilateral Treaty of 1956 . What remains to be decided in the merits phase on the question of the multilateral treaty reservation is whether or not the Court is also competent to entertain the proceedings with respect to Nicaragua's claims based on multilateral treaties and, as a corollary thereof, what law will be the applicable law. Since the question of the applicable law cannot be treated independently of the multilateral treaty reservation, the unequivocal attitude maintained by the United States with respect to the applicable law can only be taken as waiver of the multilateral treaty reservation. The assumption of waiver does not alter the position of the Court, which has already entertained jurisdiction over the present proceedings. Such being the case, while the Court remains seised of the case as before, the rights and obligations of the Parties are subject to both the multilateral treaty law and the related principles of customary international law as well as rules derived from the bilateral Treaty of 1956.
32 There is no legal barrier to prevent the United States from giving effect to the waiver, since, according to the text of the multilateral treaty reservation, the United States can always specially agree to jurisdiction. It is also to be noted that Nicaragua has not complained in the Court of any third State or States. It did not question the right of El Salvador to receive from the United States assistance, military or otherwise (Nicaraguan Memorial, para. 193). The Court has likewise made clear in its 1984 Judgment on jurisdiction and admissibility of Nicaragua's Application that “the rights of no other State may be adjudicated in these proceedings” ( I.C.J. Reports 1984, p. 436, para. 98). Whether or not they will be affected in any manner by the decision to be given, it might be appropriate to refer to Article 59 of the Statute , which provides that a decision will have no binding force except between the parties and in respect of the particular case. In fact, on the question whether or not Nicaragua has acted in such a way as to amount to resort to the threat or use of force against its neighbours, the Court in the present Judgment considers the evidence to be insufficient or inconclusive. Consequently no third party would be in all certainty affected thereby.
33 Before concluding, it may be said that the treatment of the multilateral treaty reservation invoked by the United States has followed a zigzag path for which a careful mapping would be necessary. Failure to do so will confound the issues resulting in contradictions and inconsistencies, as can be demonstrated by the conflict between the United States stand in respect of jurisdiction and its stand in respect of the applicable law. They need to be re-aligned and given comprehensive appraisal in accordance with logic and good sense. For the foregoing reasons, I regret that I cannot cast an affirmative vote for subparagraph (1) of paragraph 292 in the operative part of the Judgment, which finds the multilateral treaties invoked by Nicaragua as not applicable because of the multilateral treaty reservation of the United States. As to the other subparagraphs in which customary international law and provisions of the Treaty of Friendship, Commerce and Navigation signed on 21 January 1956 are taken as bases, 1 have voted in favour on the understanding that relevant rules of the multilateral treaty law are, where appropriate, not precluded from being applied as bases in support of the findings.
(Signed) Ni Zhengyu.
Dissenting Opinion of Judge Oda
1. I have given support to subparagraph (1) of the Operative Clause but, by the logic of this subparagraph which has recognized the applicability of the so-called Vandenberg Reservation, the Court should now have ceased to entertain the Application of Nicaragua in so far as it is based on Article 36, paragraph 2, of the Statute (Part I below). In addition, I believe that, for other reasons as stated below (Part II), the dispute referred to the Court by the Nicaraguan Application, as so based, should have been declared non-justiciable.
2. I hold that the Court could have remained seised of this case only in relation to the alleged violation by the United States of the 1956 Treaty of Friendship, Commerce and Navigation between the two Parties . From this point of view I voted in favour of subparagraph (7), but voted against subparagraph (6) because it would have been sufficient for the Court to decide on subparagraph (7) only, and against subparagraph (8) because such a decision by the Court concerning a breach of obligations erga omnes under customary international law is out of place in this Judgment. I was also unable to vote in favour of subparagraph (10), for the reason that I believed the Judgment was mistaken in bringing the United States attacks on Nicaraguan territory into relation with that Treaty and, by basing a construction upon its “object and purpose”, had exceeded the jurisdiction granted by its compromissory clause. My negative vote on subparagraph (11) was cast because the attacks on Nicaraguan territory could not be related in my view to a breach of the 1956 Treaty; nor was the trade embargo to be regarded as a breach of it (Part III below).
3. I was obliged to vote against subparagraphs (2), (3), (4), (5), (9), (12) and (13), simply because I considered, as stated above, that the Court should not have pronounced on these issues in the present case unless covered by the compromissory clause of the 1956 Treaty . This does not mean, however, that I am in disagreement with all the legal arguments expounded by the Court regarding the principles of non-intervention, prohibition of the use of force and respect for sovereignty. These principles should certainly be respected, and by Nicaragua no less than the United States. In particular, my negative vote on subparagraph (9) must not be interpreted as implying that I am opposed to the Court's findings on this particular point.
I. Effect of the Application Given to the “Vandenberg Reservation” by the Judgment — Nicaragua's Application Based on Article 36, Paragraph 2, of the Statute Should Be Dismissed
A. Applicability of the “Vandenberg Reservation”
4. The present case was submitted by Nicaragua with a request for the Court to adjudge and declare :
“(a) That the United States, in recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Nicaragua, has violated and is violating its express charter and treaty obligations to Nicaragua and, in particular, its charter and treaty obligations under :
— Article 2 (4) of the United Nations Charter ;
— Articles 18 and 20 of the Charter of the Organization of American States ;
— Article 8 of the Convention on Rights and Duties of States ;
— Article I, Third, of the Convention concerning the Duties and Rights of States in the Event of Civil Strife .”
One of Nicaragua's main allegations is that the United States has violated the rules of international law under several multilateral treaties which, in one way or another, prohibit the “threat or use of force” and “intervention”.
5. Unlike some older principles of international law, the particular principle concerning “threat or use of force” emerged in parallel with the birth of the United Nations towards the end of the Second World War, when the move to outlaw war in general was successfully made. The principle of non-intervention, in contrast, has a long history of application since Emer de Vattel wrote in 1758 as follows :
“It clearly follows from the liberty and independence of Nations that each has the right to govern itself as it thinks proper, and that no one of them has the least right to interfere in the government of another.” ( The Law of Nations , Classics of International Law, Trans., p. 131.)
Yet in ages previous to our own, some attempts were made to justify intervention within the framework of international law in time of peace, even though it could eventually be tantamount to resort to war (which in itself was not then deemed illegal). The dual system of international law in time of peace and international law in time of war was abandoned with the emergence of the outlawry of war and the principle of non-intervention, which, together with the prohibition of the threat or use of force, came to encapsulate the founding spirit of the United Nations.
6. Thus I have no doubt that the present case conspicuously falls to be considered within the framework of the United Nations system and, for that matter, that of the Organization of American States, which has pioneered and adopted similar principles. Having regard to the fact that the Court in 1984 found that it possessed jurisdiction under Article 36, paragraph 2, of the Statute , I fully support the Court's decision that “the Court is required to apply the ‘multilateral treaty reservation’ contained in [the United States declaration of acceptance of jurisdiction]” (para. 292 (1)).
B. The Judgment's Failure to Understand the Effect of the “Vandenberg Reservation”
The Court does not doubt that all parties to multilateral treaties, i.e., the Charter of the United Nations and the Charter of the Organization of American States , affected by the Judgment are not parties to the present case. Yet the Judgment states :
“It should however be recalled that … the effect of the reservation in question is confined to barring the applicability of the United Nations Charter and OAS 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.” (Para. 56.)
“In formulating its view on the significance of the United States multilateral treaty reservation, the Court has reached the conclusion that it must refrain from applying the multilateral treaties invoked by Nicaragua in support of its claims, without prejudice either to other treaties or to the other sources of law enumerated in Article 38 of the Statute. The first stage in its determination of the law actually to be applied to this dispute is to ascertain the consequences of the exclusion of the applicability of the multilateral treaties for the definition of the content of the customary international law which remains applicable.” (Para. 172.)
“It will … be clear that customary international law continues to exist and to apply, separately from international treaty law, even where the two categories of law have an identical content.” (Para. 179.)
8. In sum, the Judgment holds that the Court can still decide the issues before it for the reason that, without reference to such multilateral treaties as the Charter of the United Nations and the Charter of the Organization of American States , the Court can apply customary and general international law which, though having been subsumed in the said multilateral treaties, exists independently.
9. It may well be contended that principles such as the non-use of force and the non-intervention now exist independently as customary and general international law. However, I cannot agree with the Judgment in its contention that the Court may entertain the Nicaraguan Application under Article 36, paragraph 2, of the Statute on the alleged assumption that the United States reservation regarding “disputes arising under a multilateral treaty” simply excludes from the jurisdiction conferred on the Court under that provision of the Statute legal disputes concerning “the interpretation of a [multilateral] treaty”, or that, since the present case involves a “question of international law”, the Court's entertainment of it should not be affected by that reservation inasmuch as the Court, independently of “the interpretation of a treaty”, can confine itself to the application of the principles of customary and general international law.
10. I believe that the issue — which relates to applicable law — of whether, once the Court assumes jurisdiction over a case, it can apply the rules of customary and general international law apart from any applicable treaty rules, is quite different from the other issue — which relates to the Court's jurisdiction — of whether a State's declaration excludes “disputes arising under multilateral treaties]” (United States reservation) from “the jurisdiction of the Court, [which by nature can only be voluntarily accepted] in all legal disputes concerning (a) the interpretation of a treaty, (b) any question of international law …” ( Statute , Art. 36, para. 2). The United States declaration of acceptance of the Court's jurisdiction excluded disputes arising under multilateral treaties subject to exceptions which do not qualify my reasoning and, in any event, have not materialized in the present case.
11. The persistent use of the term “reservation” to describe the exception clauses attached by States to their declarations under Article 36, paragraph 2, of the Statute , and more especially the attachment of the term “Vandenberg Reservation” to the exception in the United States declaration relating to disputes that arise under a multilateral treaty, have surely contributed to a misconception of the inherent scope of such declarations, and of that one in particular. Because of the idealism underlying the notion of a sovereign State submitting to be judged, the so-called “acceptance of the Optional Clause” has always been imagined in terms of the ideal case, where that submission is total and “unreserved”. Nevertheless, the very structure of Article 36, paragraph 2, should make it clear that, in framing a declaration, a State, guided by the categories there suggested (the historical origins of which I shall explain in paras. 27–40), has simply to delineate the bounds of the area of legal disputes over which, subject to reciprocity, it is prepared to accept the Court's jurisdiction independently of treaty clauses or special agreements. If it is under no obligation to make any declaration at all, still less is it obliged to take the ideal case as its standard.
12. Hence the fact that exception clauses may frequently be useful as a means of delineation does not justify any presumption that a State employing them has retracted various parts of an a priori wholesale acceptance of the Court's jurisdiction; on the contrary, the instrument remains a positive indication that the State has unreservedly accepted that jurisdiction within a certain area which those exceptions have merely helped to define. Outside that area, there is simply no acceptance, not even an acceptance subject to a “reservation”, and to reason as if there were is to yield to a kind of optical illusion.
13. In the present case, it seems that thinking about a certain exception in terms of a “reservation” has helped the Court to imagine that if multilateral treaties were ignored as a source of positive law, the “reservation“ would lose its potency, so that the exception could be circumvented. I have explained above why I find this erroneous. The reference to multilateral treaties is merely a means of drawing the boundaries of jurisdiction so as to exclude certain disputes : there is no justification for supposing that a dispute “arising under” a multilateral treaty can nevertheless be brought under the Court's authority because (inevitably) it can also be analysed in terms of general international law. Having decided that the present dispute did “arise under” such a treaty or treaties, the Court should have concluded that only in the circumstances described by the exception itself, namely, the presence of all parties affected or specific waiver, could the boundary of acceptance of jurisdiction be widened to admit the dispute under Article 36, paragraph 2.
“The Court concludes that it should exercise the jurisdiction conferred upon it by the United States declaration of acceptance under Article 36, paragraph 2, of the Statute , to determine the claims of Nicaragua based upon customary international law notwithstanding the exclusion from its jurisdiction of disputes ‘arising under’ the United Nations and OAS Charters ” (para. 182),
the Court should have proved, not that it can apply customary and general international law independently, but that the dispute referred to it in the Applicant's claims had not arisen under these multilateral treaties. The Judgment, however, fails to do this. I must repeat my belief that, in so far as the Judgment holds the Vandenberg Reservation to be applicable, in my view, correctly, the Court should not, and indeed could not, on the basis of Article 36, paragraph 2, of the Statute, have entertained the whole dispute involving “military and paramilitary activities in and against Nicaragua“ which the United States has allegedly pursued.