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INDICE
• SUMMARY
OF THE
OPINIONS
• Interim
Award
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Judgment of 27 June 1986
For its judgment
on the merits in the case concerning military and Paramilitary
Activities in and against Nicaragua brought by Nicaragua against
the United States of America, the Court was composed as follows: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
** *OPERATIVE
PART OF THE COURT'S JUDGMENT
THE COURT(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 Untied 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 over Rights 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;
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.
(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;
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.
(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
sicológicas 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;
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.
(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;
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.
(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;
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.
(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;
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.
(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.
(16) Unanimously,Recalls
to both Parties their obligation to seek a solution to their
disputes by peaceful means in accordance with international law.
SUMMARY
OF THE JUDGMENTI. Qualités
II. Background
to the dispute
III. The
non-appearance of the Respondent and Article 53 of the Statute
(paras. 26-31)The
Court recalls that subsequent to the delivery of its Judgment
of 26 November 1984 on the jurisdiction of the Court and the admissibility
of Nicaragua's Application, the United States decided not to take
part in the present phase of the proceedings. This however does
not prevent the Court from giving a decision in the case, but
it has to do so while respecting the requirements of Article 53
of the Statute, which provides for the situation when one of the
parties does not appear. The Court's jurisdiction being established,
it has in accordance with Article 53 to satisfy itself that the
claim of the party appearing is well founded in fact and law.
In this respect the Court recalls certain guiding principles brought
out in a number of previous cases, one of which excludes any possibility
of a judgment automatically in favour of the party appearing.
It also observes that it is valuable for the Court to know the
views of the non-appearing party, even if those views are expressed
in ways not provided for in the Rules of Court. The principle
of the equality of the parties has to remain the basic principle,
and the Court has to ensure that the party which declines to appear
should not be permitted to profit from its absence.
IV. Justiciability
of the dispute
(paras. 32-35)The
Court considers it appropriate to deal with a preliminary question.
It has been suggested that the questions of the use of force and
collective self-defence raised in the case fall outside the limits
of the kind of questions the Court can deal with, in other words
that they are not justiciable. However, in the first place the
Parties have not argued that the present dispute is not a "legal
dispute" within the meaning of Article 36, paragraph 2, of
the Statute, and secondly, the Court considers that the case does
not necessarily involve it in evaluation of political or military
matters, which would be to overstep proper judicial bounds. Consequently,
it is equipped to determine these problems.
V. The significance
of the multilateral treaty reservation
(paras. 36-56)The
United States declaration of acceptance of the compulsory jurisdiction
of the Court under Article 36, paragraph 2, of the Statute contained
a reservation excluding from operation of the declaration
"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".
In its Judgment
of 26 November 1984 the Court found, on the basis of Article 79,
paragraph 7, of the Rules of Court, that the objection to jurisdiction
based on the reservation raised "a question concerning matters
of substance relating to the merits of the case" and that
the objection did "not possess, in the circumstances of the
case, an exclusively preliminary character". Since it contained
both preliminary aspects and other aspects relating to the merits,
it had to be dealt with at the stage of the merits.In order to
establish whether its jurisdiction were limited by the effect
of the reservation in question, the Court has to ascertain whether
any third States, parties to the four multilateral treaties invoked
by Nicaragua, and not parties to the proceedings, would be "affected"
by the Judgment. Of these treaties, the Court considers it sufficient
to examine the position under the United Nations Charter and the
Charter of the Organization of American States.The Court examines
the impact of the multilateral treaty reservation on Nicaragua's
claim that the United States has used force in breach of the two
Charters. The Court examines in particular the case of El Salvador,
for whose benefit primarily the United States claims to be exercising
the right of collective self-defence which it regards as a justification
of its own conduct towards Nicaragua, that right being endorsed
by the United Nations Charter (Art. 51) and the OAS Charter (Art.
21). The dispute is to this extent a dispute "arising under"
multilateral treaties to which the United States, Nicaragua and
El Salvador are Parties. It appears clear to the Court that El
Salvador would be "affected" by the Court's decision
on the lawfulness of resort by the United States to collective
self-defence.As to Nicaragua's claim that the United States has
intervened in its affairs contrary to the OAS Charter (Art. 18)
the Court observes that it is impossible to say that a ruling
on the alleged breach of the Charter by the United States would
not "affect" El Salvador.Having thus found that El Salvador
would be "affected" by the decision that the Court would
have to take on the claims of Nicaragua based on violation of
the two Charters by the United States, the Court concludes that
the jurisdiction conferred on it by the United States declaration
does not permit it to entertain these claims. It makes it clear
that the effect of the reservation is confined to barring the
applicability of these two multilateral treaties 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,
including customary international law.
VI. Establishment
of the facts: evidence and methods employed by the Court
(paras. 57-74)The
Court has had to determine the facts relevant to the dispute.
The difficulty of its task derived from the marked disagreement
between the Parties, the non-appearance of the Respondent, the
secrecy surrounding certain conduct, and the fact that the conflict
is continuing. On this last point, the Court takes the view, in
accordance with the general principles as to the judicial process,
that the facts to be taken into account should be those occurring
up to the close of the oral proceedings on the merits of the case
(end of September 1985).With regard to the production of evidence,
the Court indicates how the requirements of its Statute - in
particular Article 53 - and the Rules of Court have
to be met in the case, on the basis that the Court has freedom
in estimating the value of the various elements of evidence. It
has not seen fit to order an enquiry under Article 50 of the Statute.
With regard to certain documentary material (press articles
and various books), the Court has treated these with caution.
It regards than not as evidence capable of proving facts, but
as material which can nevertheless contribute to corroborating
the existence of a fact and be taken into account to show whether
certain facts are matters of public knowledge. With regard to
statements by representatives of States, sometimes at the
highest level, the Court takes the view that such statements are
of particular probative value when they acknowledge facts or conduct
unfavourable to the State represented by the person who made them.
With regard to the evidence of witnesses presented by Nicaragua - five
witnesses gave oral evidence and another a written affidavit-one
consequence of the absence of the Respondent was that the evidence
of the witnesses was not tested by cross-examination. The Court
has not treated as evidence any part of the testimony which was
a mere expression of opinion as to the probability or otherwise
of the existence of a fact not directly known to the witness.
With regard in particular to affidavits and sworn statements
made by members of a Government, the Court considers that
it can certainly retain such parts of this evidence as may be
regarded as contrary to the interests or contentions of the State
to which the witness has allegiance; for the rest such evidence
has to be treated with great reserve.The Court is also aware of
a publication of the United States State Department entitled "Revolution
Beyond Our Borders, Sandinista Intervention in Central America"
which was not submitted to the Court in any form or manner contemplated
by the Statute and Rules of Court. The Court considers that, in
view of the special circumstances of this case, it may, within
limits, make use of information in that publication.
VII. The
facts imputable to the United States
(paras. 75
to 125)1. The Court examines the allegations of Nicaragua that
the mining of Nicaraguan ports or waters was carried out
by United States military personnel or persons of the nationality
of Latin American countries in the pay of the United States. After
examining the facts, 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.2. Nicaragua attributes to the
direct action of United States personnel, or persons in its pay,
operations against oil installations, a naval base, etc., listed
in paragraph 81 of the Judgment. The Court finds all these incidents,
except three, to be established. Although it is not proved that
any United States military personnel took a direct part in the
operations, United States agents participated in the planning,
direction and support. The imputability to the United States of
these attacks appears therefore to the Court to be established.3.
Nicaragua complains of infringement of its air space by
United States military aircraft. After indicating the evidence
available, the Court finds that the only violations of Nicaraguan
air space imputable to the United States on the basis of the evidence
are high altitude reconnaissance flights and low altitude flights
on 7 to 11 November 1984 causing "sonic booms".With
regard to joint military manoeuvres with Honduras carried out
by the United States on Honduran territory near the Honduras/Nicaragua
frontier, the Court considers that they may be treated as public
knowledge and thus sufficiently established.4. The Court then
examines the genesis, development and activities of the contra
force, and the role of the United States in relation
to it. According to Nicaragua, the United States "conceived,
created and organized a mercenary army, the contra force".
On the basis of the available information, the Court is not able
to satisfy itself that the Respondent State "created"
the contra force in Nicaragua, but holds it established
that it largely financed, trained, equipped, armed and organized
the FDN, one element of the force.It is claimed by Nicaragua that
the United States Government devised the strategy and directed
the tactics of the contra force, and provided direct combat
support for its military operations. 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 solely devised
by the United States. It therefore cannot uphold the contention
of Nicaragua on this point. The Court however finds it clear that
a number of operations were decided and planned, if not actually
by the 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. It is also established
in the Court's view that the support of the United States 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, etc. The evidence does not however warrant
a finding that the United States gave direct combat support, if
that is taken to mean direct intervention by United States combat
forces.The Court has to determine whether the relationship of
the contras to the United States Government was such 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. The Court considers that the evidence
available to it is insufficient to demonstrate the total dependence
of the contras on United States aid. A partial dependency,
the exact extent of which the Court cannot establish, may be inferred
from the fact that the leaders were selected by the United States,
and from other factors such as the organisation, training and
equipping of the force, planning of operations, the choosing of
targets and the operational support provided. There is no clear
evidence that the United States actually exercised such a degree
of control as to justify treating the contras as acting
on its behalf.5. Having reached the above conclusion, the Court
takes the view that the contras remain responsible for
their acts, in particular the alleged violations by them of humanitarian
law. For the United States to be legally responsible, it would
have to be proved that that State had effective control of the
operations in the course of which the alleged violations were
committed.6. Nicaragua has complained of certain measures of
an economic nature taken against it by the Government of the
United States, which it regards as an indirect form of intervention
in its internal affairs. Economic aid was suspended in January
1981, and terminated in April 1981; the United States acted to
oppose or block loans to Nicaragua by international financial
bodies; the sugar import quota from Nicaragua was reduced by 90
percent in September 1983; and a total trade embargo on Nicaragua
was declared by an executive order of the President of the United
States on 1 May 1985.
VIII. The
conduct of Nicaragua
(paras. 126-171)The
Court has to ascertain, so far as possible, whether the activities
of the United States complained of, claimed to have been the exercise
of collective self-defence, may be justified by certain facts
attributable to Nicaragua.1. The United States has contended that
Nicaragua was actively supporting armed groups operating in
certain of the neighbouring countries, particularly in El
Salvador, and specifically in the form of the supply of arms,
an accusation which Nicaragua has repudiated. The Court first
examines the activity of Nicaragua with regard to El Salvador.Having
examined various evidence, and taking account of a number of concordant
indications, many of which were provided by Nicaragua itself,
from which the Court can reasonably infer the provision of a certain
amount of aid from Nicaraguan territory, the Court concludes that
support for the armed opposition in El Salvador from Nicaraguan
territory was a fact up to the early months of 1981. Subsequently,
evidence of military aid from or through Nicaragua remains very
weak, despite the deployment by the United States in the region
of extensive technical monitoring resources. The Court cannot
however conclude that no transport of or traffic in arms existed.
It merely takes note that the allegations of arms traffic are
not solidly established, and has not been able to satisfy itself
that any continuing flow on a significant scale took place after
the early months of 1981.Even supposing it were established that
military aid was reaching the armed opposition in El Salvador
from the territory of Nicaragua, it skill remains to be proved
that such aid is imputable to the authorities of Nicaragua, which
has not sought to conceal the possibility of weapons crossing
its territory, but denies that this is the result of any deliberate
official policy on its part. Having regard to the circumstances
characterizing this part of Central America, the Court considers
that it is scarcely possible for Nicaragua's responsibility for
arms traffic on its territory to be automatically assumed. The
Court considers it more consistent with the probabilities to recognize
that an activity of that nature, if on a limited scale, may very
well be pursued unknown to the territorial government. In any
event the evidence is insufficient to satisfy the Court that the
Government of Nicaragua was responsible for any flow of arms at
either period.2. The United States has also accused Nicaragua
of being responsible for cross-border military attacks on
Honduras and Costa Rica. While not as fully informed on the question
as it would wish to be, the Court considers as established the
fact that certain trans-border military incursions are imputable
to the Government of Nicaragua.3. The Judgment recalls certain
events which occurred at the time of the fall of President Somoza,
since reliance has been placed on them by the United States to
contend that the present Government of Nicaragua is in violation
of certain alleged assurances given by its immediate predecessor.
The Judgment refers in particular to the "Plan to secure
peace" sent on 12 July 1979 by the "Junta of the Government
of National Reconstruction" of Nicaragua to the Secretary-General
of the OAS, mentioning, inter alia, its "firm
intention to establish full observance of human rights in our
country" and "to call the first free elections our country
has known in this century". The United States considers that
it has a special responsibility regarding the implementation of
these commitments.
IX. The
applicable law: customary international law
(paras. 172-182)The
Court has reached the conclusion (section V, in fine) that
it has to apply the multilateral treaty reservation in the United
States declaration, the consequential exclusion of multilateral
treaties being without prejudice either to other treaties or other
sources of law enumerated in Article 38 of the Statute. In order
to determine the law actually to be applied to the dispute, it
has 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.The
Court, which has already commented briefly on this subject in
the jurisdiction phase (I.C.J. Reports 1984, pp. 424
and 425, para. 73), develops its initial remarks. It does not
consider that it can be claimed, as the United States does, 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.
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. Consequently, the Court is in no
way bound to uphold customary rules only in so far as they differ
from the treaty rules which it is prevented by the United States
reservation from applying.In response to an argument of the United
States, the Court considers that the divergence between the content
of the customary norms and that of the treaty law norms is not
such that a judgment confined to the field of customary international
law would not be susceptible of compliance or execution by the
parties.
X. The content
of the applicable law
(paras. 183
to 225)1. Introduction: general observations
The Court has
next to consider what are the rules of customary law applicable
to the present dispute. For this purpose it has to consider whether
a customary rule exists in the opinio juris of States,and
satisfy itself that it is confirmed by practice.2. The prohibition
of the use of force, and the right of self-defence
The Court 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.
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 (Art. 2, para. 4, of the Charter). The Court has however
to be satisfied that there exists in customary law an opinio
juris as to the binding character of such abstention. It considers
that this opinio juris may be deduced from, inter alia,
the attitude of the Parties and 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". Consent
to such resolutions is one of the forms of expression of an opinio
juris with regard to the principle of non-use of force, regarded
as a principle of customary international law, independently of
the provisions, especially those of an institutional kind, to
which it is subject on the treaty-law plane of the Charter.The
general rule prohibiting force established in customary law allows
for certain exceptions. The exception of the right of individual
or collective self-defence is also, in the view of States, established
in customary law, as is apparent for example from the terms of
Article 51 of the United Nations Charter, which refers to an "inherent
right", and from the declaration in resolution 2625 (XXV).
The Parties, who consider the existence of this right to be established
as a matter of customary international law, agree in holding that
whether the response to an attack is lawful depends on the observance
of the criteria of the necessity and the proportionality of the
measures taken in self-defence.Whether self-defence be individual
or collective, it can only be exercised in response to an "armed
attack". In the view of the Court, this is to be understood
as meaning not merely action by regular armed forces across an
international border, but also the sending by a State of armed
bands on to the territory of another State, if such an operation,
because of its scale and effects, would have been classified as
an armed attack had it been carried out by regular armed forces.
The Court quotes the definition of aggression annexed to General
Assembly resolution 3314 (XXIX) as expressing customary law in
this respect.The Court does not believe that the concept of "armed
attack" includes assistance to rebels in the form of the
provision of weapons or logistical or other support. Furthermore,
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 is
a victim of the alleged attack, this being additional to the requirement
that the State in question should have declared itself to have
been attacked.3. The principle of non-intervention
The principle
of non-intervention involves the right of every sovereign State
to conduct its affairs without outside interference. Expressions
of an opinio juris of States regarding the existence of
this principle are numerous. The Court notes that this principle,
stated in its own jurisprudence, has been reflected in numerous
declarations and resolutions adopted by international organizations
and conferences in which the United States and Nicaragua have
participated. The text thereof testifies to the acceptance by
the United States and Nicaragua of a customary principle which
has universal application. As to the content of the principle
in customary law, the Court defines the constitutive elements
which appear relevant in this case: a prohibited intervention
must be one bearing on matters in which each State is permitted,
by the principle of State sovereignty, to decide freely (for example
the choice of a political, economic, social and cultural system,
and formulation of foreign policy). Intervention is wrongful when
it uses, in regard to such choices, methods of coercion, particularly
force, either in the direct form of military action or in the
indirect form of support for subversive activities in another
State.With regard to the practice of States, the Court notes that
there have been in recent years a number of instances of foreign
intervention in one State for the benefit of forces opposed to
the government of that State. It concludes that the practice of
States does not justify the view that any general right of intervention
in support of an opposition within another State exists in contemporary
international law; and this is in fact not asserted either by
the United States or by Nicaragua.4. Collective counter-measures
in response to conduct not amounting to armed attack
The Court then
considers the question whether, if one State acts towards another
in breach of the principle of non-intervention, a third State
may lawfully take action by way of counter-measures which would
amount to an intervention in the first State's internal affairs.
This would be analogous to the right of self-defence in the case
of armed attack, but the act giving rise to the reaction would
be less grave, not amounting to armed attack. In the view of the
Court, under international law in force today, States do not have
a right of "collective" armed response to acts which
do not constitute an "armed attack".5. State sovereignty
Turning to
the principle of respect for State sovereignty, the Court recalls
that the concept of sovereignty, both in treaty-law and in customary
international law, extends to the internal waters and territorial
sea of every State and to the airspace above its territory. It
notes that the laying of mines necessarily affects the sovereignty
of the coastal State, and that if the right of access to ports
is hindered by the laying of mines by another State, what is infringed
is the freedom of communications and of maritime commerce.6.
Humanitarian law
The Court observes
that the laying of mines in the waters of another State without
any warning or notification is not only an unlawful act but also
a breach of the principles of humanitarian law underlying the
Hague Convention No. VIII of 1907. This consideration leads the
Court on to examination of the international humanitarian law
applicable to the dispute. Nicaragua has not expressly invoked
the provisions of international humanitarian law as such, but
has complained of acts committed on its territory which would
appear to be breaches thereof. In its submissions it has accused
the United States of having killed, wounded and kidnapped citizens
of Nicaragua. Since the evidence available is insufficient for
the purpose of attributing to the United States the acts committed
by the contras, the Court rejects this submission.The question
however remains of the law applicable to the acts of the United
States in relation to the activities of the contrast Although
Nicaragua has refrained from referring to the four Geneva Conventions
of 12 August 1949, to which Nicaragua and the United States are
parties, the Court considers that the rules stated in Article
3, which is common to the four Conventions, applying to armed
conflicts of a non-international character, should be applied.
The United States is under an obligation to "respect"
the Conventions and even to "ensure respect" for them,
and thus not to encourage persons or groups engaged in the conflict
in Nicaragua to act in violation of the provisions of Article
3. This obligation derives from the general principles of humanitarian
law to which the Conventions merely give specific expression.7.
The 1956 treaty
In its Judgment
of 26 November 1984, the Court concluded that it had jurisdiction
to entertain claims concerning the existence of a dispute between
the United States and Nicaragua as to the interpretation or application
of a number of articles of the treaty of Friendship, Commerce
and Navigation signed at Managua on 21 January 1956. It has to
determine the meaning of the various relevant provisions, and
in particular of Article XXI, paragraphs I (c) and I (d),
by which the parties reserved the power to derogate from the other
provisions.
XI. Application
of the law to the facts
(paras. 226
to 282)Having set out the facts of the case and the rules of international
law which appear to be in issue as a result of those facts, the
Court has now to appraise the facts in relation to the legal rules
applicable, and determine whether there are present any circumstances
excluding the unlawfulness of particular acts.1. The prohibition
of the use of force and the right of self-defence
Appraising
the facts first in the light of the principle of the non-use of
force, the Court considers that the laying of mines in early 1984
and certain attacks on Nicaraguan ports, oil installations and
naval bases, imputable to the United States constitute infringements
of this principle, unless justified by circumstances which exclude
their unlawfulness. It also considers that the United States has
committed a prima facie violation of the principle by arming and
training the contras, unless this can be justified as an
exercise of the right of self-defence.On the other hand, it does
not consider that military manoeuvres held by the United States
near the Nicaraguan borders, or the supply of funds to the contras,
amounts to a use of force.The Court has to consider whether
the acts which it regards as breaches of the principle may be
justified by the exercise of the right of collective self-defence,
and has therefore to establish whether the circumstances required
are present. For this, it would first have to find that Nicaragua
engaged in an armed attack against El Salvador, Honduras or Costa
Rica, since only such an attack could justify reliance on the
right of self-defence. As regards El Salvador, the Court considers
that in customary international law the provision of arms to the
opposition in another State does not constitute an armed attack
on that State. As regards Honduras and Costa Rica, the Court states
that, in the absence of sufficient information as to the transborder
incursions into the territory of those two States from Nicaragua,
it is difficult to decide whether they amount, singly or collectively,
to an armed attack by Nicaragua. The Court finds that neither
these incursions nor the alleged supply of arms may be relied
on as justifying the exercise of the right of collective self-defence.Secondly,
in order to determine whether the United States was justified
in exercising self-defence, the Court has to ascertain whether
the circumstances required for the exercise of this right of collective
self-defence were present, and therefore considers whether the
States in question believed that they were the victims of an armed
attack by Nicaragua, and requested the assistance of the United
States in the exercise of collective self-defence. The Court has
seen no evidence that the conduct of those States was consistent
with such a situation.Finally, appraising the United States activity
in relation to the criteria of necessity and proportionality,
the Court cannot find that the activities in question were undertaken
in the light of necessity, and finds that some of them cannot
be regarded as satisfying the criterion of proportionality.Since
the plea of collective self-defence advanced by the United States
cannot be upheld, it follows that the United States has violated
the principle prohibiting recourse to the threat or use of force
by the acts referred to in the first paragraph of this section.2.
The principle of non-intervention
The Court finds
it clearly established that the United States intended, by its
support of the contras, to coerce Nicaragua in respect
of matters in which each State is permitted to decide freely,
and that the intention of the contras themselves was to
overthrow the present Government of Nicaragua. It considers that
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
its government, that amounts to an intervention in its internal
affairs, whatever the political objective of the State giving
support. It therefore finds that the support given by the United
States 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. Humanitarian aid on the
other hand cannot be regarded as unlawful intervention. With effect
from 1 October 1984, the United States Congress has restricted
the use of funds to "humanitarian assistance" to the
contrast The Court recalls that if the provision of "humanitarian
assistance" is to escape condemnation as an intervention
in the internal affairs of another State, it must be limited to
the purposes hallowed in the practice of the Red Cross, and above
all be given without discrimination.With regard to the form of
indirect intervention which Nicaragua sees in the taking of certain
action of an economic nature against it by the United States,
the Court is unable to regard such action in the present case
as a breach of the customary law principle of non-intervention.3.
Collective counter-measures in response to conduct not amounting
to armed attack (paras.
246 to 249)
Having found
that intervention in the internal affairs of another State does
not produce an entitlement to take collective counter-measures
involving the use of force, the Court finds that the acts of
which Nicaragua is accused, even assuming them to have been
established and imputable to that State, could not justify counter-measures
taken by a third State, the United States, and particularly
could not justify intervention involving the use of force.
4. State
sovereignty (paras.
250 to 253)
The Court finds
that the assistance to the contras, the direct attacks
on Nicaraguan ports, oil installations, etc., the mining operations
in Nicaraguan ports, and the acts of intervention involving the
use of force referred to in the Judgment, which are already a
breach of the principle of non-use of force, are also an infringement
of the principle of respect for territorial sovereignty. This
principle is also directly infringed by the unauthorized overflight
of Nicaraguan territory. These acts cannot be justified by the
activities in El Salvador attributed to Nicaragua; assuming that
such activities did in fact occur, they do not bring into effect
any right belonging to the United States. The Court also concludes
that, in the context of the present proceedings, the laying of
mines in or near Nicaraguan ports constitutes an infringement,
to Nicaragua's detriment, of the freedom of communications and
of maritime commerce.5. Humanitarian law (paras.
254 to 256)
The
Court has found the United States responsible for the failure
to give notice of the mining of Nicaraguan ports.It has also found
that, under general principles of humanitarian law, the United
States was bound to refrain from encouragement of persons or groups
engaged in the conflict in Nicaragua to commit violations of common
Article 3 of the four Geneva Conventions of 12 August 1949. The
manual on "Psychological Operations in Guerrilla Warfare",
for the publication and dissemination of which the United States
is responsible, advises certain acts which cannot but be regarded
as contrary to that article.6. Other grounds mentioned in justification
of the acts of the United States (paras.
257 to 269)
The
United States has linked its support to the contras with
alleged breaches by the Government of Nicaragua of certain solemn
commitments to the Nicaraguan people, the United States and the
OAS. The Court considers whether there is anything in the conduct
of Nicaragua which might legally warrant counter-measures by the
United States in response to the alleged violations. With reference
to the "Plan to secure peace" put forward by the Junta
of the Government of National Reconstruction (12 July 1979),
the Court is unable to find anything in the documents and communications
transmitting the plan from which it can be inferred that any legal
undertaking was intended to exist. 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. Furthermore
the Respondent has not advanced a legal argument based on an alleged
new principle of "ideological intervention".With regard
more specifically to alleged violations of human rights relied
on by the United States, the Court considers that the use of force
by the United States could not be the appropriate method to monitor
or ensure respect for such rights, normally provided for in the
applicable conventions. With regard to the alleged militarization
of Nicaragua, also referred to by the United States to justify
its activities, the Court observes that 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.7. The 1956 Treaty
(paras. 270
to 282)
The Court turns to the claims of Nicaragua based on the Treaty
of Friendship, Commerce and Navigation of 1956, and the claim
that the United States has deprived the Treaty of its object and
purpose and emptied it of real content. The Court cannot however
entertain these claims unless the conduct complained of is not
"measures . . . necessary to protect the essential
security interests" of the United States, since Article XXI
of the Treaty provides that the Treaty shall not preclude the
application of such measures. With regard to the question what
activities of the United States might have been such as to deprive
the Treaty of its object and purpose, the Court makes a distinction.
It is unable to regard all the acts complained of in that light,
but considers that there are certain activities which undermine
the whole spirit of the agreement. These are the mining of Nicaraguan
ports, the direct attacks on ports, oil installations, etc., and
the general trade embargo.The Court also upholds the contention
that the mining of the ports is in manifest contradiction with
the freedom of navigation and commerce guaranteed by Article XIX
of the Treaty. It also concludes that the trade embargo proclaimed
on 1 May 1985 is contrary to that article.The Court therefore
finds that the United States is prima facie in breach of an obligation
not to deprive the 1956 Treaty of its object and purpose (pacta
sunt servanda), and has committed acts in contradiction with
the terms of the Treaty. The Court has however to consider whether
the exception in Article XXI concerning "measures . . .
necessary to protect the essential security interests" of
a Party may be invoked to justify the acts complained of. After
examining the available material, particularly the Executive Order
of President Reagan of 1 May 1985, the Court finds that the mining
of Nicaraguan ports, and the direct attacks on ports and oil installations,
and the general trade embargo of 1 May 1985, cannot be justified
as necessary to protect the essential security interests of the
United States.
XII.
The claim for reparation
(paras. 283
to 285)The Court is requested to adjudge and declare that compensation
is due to Nicaragua, the quantum thereof to be fixed subsequently,
and to award to Nicaragua the sum of 370.2 million US dollars
as an interim award. After satisfying itself that it has
jurisdiction to order reparation, the Court considers appropriate
the request of Nicaragua for the nature and amount of the reparation
to be determined in a subsequent phase of the proceedings. It
also considers that there is no provision in the Statute of the
Court either specifically empowering it or debarring it from making
an interim award of the kind requested. In a cases in which one
Party is not appearing, the Court should refrain from any unnecessary
act which might prove an obstacle to a negotiated settlement.
The Court therefore does not consider that it can accede at
this stage to this request by Nicaragua.
XIII. The
provisional measures
(paras. 286
to 289)After recalling certain passages in its Order of 10 May
1984, the Court concludes that it is incumbent on each Party 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
XIV. Peaceful
settlement of disputes; the Contadora process
(paras. 290
to 291)In the present case the Court has already taken note of
the Contadora process, and of the fact that it had been endorsed
by the United Nations Security Council and General Assembly, as
well as by Nicaragua and the United States. It 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,
also endorsed by Article 33 of the United Nations Charter.
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SUMMARY
OF THE OPINIONS APPENDED TO THE JUDGMENT OF THE COURT
Separate Opinion of Judge Nagendra Singh,President
The operative
part of paragraph 292 (16) of the Judgment adopted unanimously
by the Court which enjoins parties to seek a peaceful solution
of their disputes in accordance with international law really
rests on the due observance of two basic principles: namely that
of non-use of force in inter-State relations and that of non-intervention
in the affairs of other States. This in the President's view is
the main thrust of the Judgment of the Court rendered with utmost
sincerity to serve the best interests of the community.In fact,
the 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. The Charter provisions as well as the Latin American
Treaty System have not only developed the concept but strengthened
it to the extent that it would stand on its own, even if the Charter
and the Treaty basis were held inapplicable in this case. The
obvious explanation is that the original customary aspect which
has evolved with the treaty law development has come now to stay
and survive as the existing modern concept of international law,
whether customary, because of its origins, or "a general
principle of international law recognized by civilized nations".
The contribution of the Court has been to emphasize the principle
of non-use of force as one belonging to the realm of jus
cogens and hence as the very cornerstone of the human effort
to promote peace in a world torn by strife. Force begets force
and aggravates conflicts, embitters relations and endangers peaceful
resolution of the dispute.There is also the key doctrine of non-intervention
in the affairs of States which is equally vital for the peace
and progress of humanity being essentially needed to promote the
healthy existence of the community. The principle of non-intervention
is to be treated as a sanctified absolute rule of law.States must
observe both these principles namely that of non-use of force
and that of non-intervention in the best interests of peace and
order in the community. 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 having been 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
commend in any case.The decision of the Court is in the result
of a collegiate exercise reached after prolonged deliberation
and a full exchange of views of no less than fifteen Judges who,
working according to the Statute and Rules of the 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 UN 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 always respect the validity of the Judgment.
Separate
Opinion of Judge Lachs
Judge Lachs
begins by drawing attention to the requirements of the Statute
in respect of the personal qualities and diversity of origin that
must characterize Members of the Court, and deprecates any aspersion
upon their independence.On the substance of the Judgment he would
have preferred more attention to be given to foreign assistance
to the opposition forces in El Salvador, and different formulae
to have been used in various places.Judge Lachs returns to some
aspects of jurisdiction, considering that insufficient weight
had previously been given to the forty years that had elapsed
before any public objection had been raised against the validity
of Nicaragua's acceptance of the Court's jurisdiction. When that
validity had been privately questioned in connection with a case
in the mid-1950s, action should have been taken by the United
Nations: Nicaragua should have been asked to complete any necessary
formalities and, if it failed to do so, would have been removed
from the list of States subject to the compulsory jurisdiction
of the Court. The United Nations having taken no action, it was
legitimate to view the imperfection as cured by acquiescence over
a very long period. The jurisdiction of the Court based on the
FCN Treaty of 1956 gave no cause for doubt.Judge Lachs also deals
with the question of the justiciability of the case: the close
relationship between legal and political disputes, as between
law and politics. International law today covers such wide areas
of international relations that only very few domains - for
instance, the problem of disarmament, or others, specifically
excluded by States - are not justiciable. He specifically
instances the case concerning United States Diplomatic and
Consular Staff in Tehran.Referring to the Court's refusal
to grant a hearing to El Salvador at the jurisdictional stage,
Judge Lachs states that he has come to view it as a judicial error
which does not, however, justify any unrelated conclusions.The
broad confrontation between the Parties should, in Judge Lachs's
view, be settled within the framework of the Contadora Plan, in
co-operation with all States of the region. The area, torn by
conflicts, suffering from under-development for a long time, requires
a new approach based on equal consideration of the interests of
all concerned in the spirit of good-neighbourly relations.
Separate
Opinion of Judge Ruda
The separate
Opinion of Judge Ruda deals with four subjects. In the first place,
Judge Ruda does not accept the reservation expressed by the United
States in the letter dated 18 January 1985 "in respect of
any decision by the Court regarding Nicaragua's claims".
In Judge Ruda's view, pursuant to Article 94, paragraph I,
of the Charter of the United Nations, the Member States of the
United Nations have formally accepted the obligation to comply
with the Court's decisions.The second part of the Opinion refers
to the Vandenberg Amendment. Judge Ruda voted against the application
of the Amendment, for the reasons stated in the separate Opinion
which he submitted in 1984.In the third part, Judge Ruda deals
with the question of self-defence. He explains that his conclusions
are the same as those reached by the Court, but in his view it
is not necessary to enter into all the factual details, because
assistance to rebels is not per se a pretext for
self-defence from the legal point of view.The fourth part is devoted
to the reasons why Judge Ruda, despite having voted in 1984 against
the Treaty of Friendship, Commerce and Navigation as a basis of
the Court's jurisdiction, believes he is bound to vote on the
substantive issues submitted to the Court on this subject.
Separate
Opinion of Judge Elias
Judge Elias
considers that, following the Court's Judgment in the jurisdictional
phase, the multilateral treaty reservation attached to the United
States declaration accepting jurisdiction under the Optional Clause
was left in abeyance and had no further relevance unless El Salvador,
Honduras or Costa Rica intervened in the phase on merits and reparation.
For the Court to have applied it was therefore incorrect and tantamount
to invoking a power to revise its decision on jurisdiction and
admissibility on behalf of non-parties to the case.
Separate
Opinion of Judge Ago
While subscribing
to the Judgment as a whole and approving in particular the position
adopted by the Court concerning the United States' multilateral
treaty reservation, Judge Ago remains hesitant about certain points.
For example, he feels that the Court made a somewhat too hasty
finding as to the quasi-identity of substance between customary
international law and the law enshrined in certain major multilateral
treaties of universal character, and was also somewhat too ready
to see the endorsement of certain principles by UN and OAS resolutions
as proof of the presence of those principles in the opinio
juris of members of the international community. Judge Ago
also feels obliged to draw attention to what he views as some
partially contradictory aspects of the Court's assessment of the
factual and legal situation. He further considers that some passages
of the Judgment show a paucity of legal reasoning to support the
Court's conclusions as to the imputability of certain acts to
the Respondent qua acts giving rise to international responsibility,
and would have preferred to see the Court include a more explicit
confirmation of its case-law on this subject.
Separate
Opinion of Judge Sette-Camara
Judge Sette-Camara
fully concurs with the Judgment because he firmly believes 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".
His separate opinion deals only with subparagraph (1) of the operative
part, against which he has voted. He maintains that the multilateral
treaty reservation, appended to the United States 1946 Declaration
of Acceptance of the Jurisdiction of the Court according to Article
36, paragraph 2, of the Statute, cannot be applied to the present
case, since none of the decisions taken in the operative part
can in any way "affect" third States, and in particular
El Salvador. The case is between Nicaragua and the United States
and the binding force of the Court's decision is confined to these
two Parties. Judge Sette-Camara recognizes the right of any State
making Declarations of Acceptance to append to them whatever reservations
it deems fit. However, he contends that the Court is free, and
indeed bound, to interpret those reservations. He regrets that
the application of the multilateral treaty reservation debarred
the Court from resting the Judgment on the provisions of the Charter
of the United Nations and the Charter of the Organization of American
States, and forced it to resort only to principles of customary
international law and the bilateral Treaty of Friendship, Commerce
and Navigation of 1956. He submits that the law applied by the
Judgment would be clearer and more precise if the Court had resorted
to the specific provisions of the relevant multilateral convention
Separate
Opinion of Judge Ni
Judge Ni's
primary concern, as expressed in his separate opinion, is with
respect to the "multilateral treaty reservation" invoked
by the United States. In his view, any acceptance of its applicability
entailed (1) the exclusion of the Court from exercising jurisdiction
in so far as Nicaragua's claims were based on the multilateral
treaties in question, and (2) the preclusion, if the case was
on other grounds still in the Court for adjudication of the merits,
of the application of such multilateral treaties. In the instant
case, however, the United States, while invoking the multilateral
treaty reservation to challenge the exercise of jurisdiction by
the Court, had in the meantime persistently claimed that the multilateral
treaties, which constitute the very basis of its reservation,
should alone be applied to the case in dispute. That claim amounted
in effect to a negation of its own reservation and, taking into
account all the relevant circumstances, ought to have been considered
as a waiver of the multilateral treaty reservation. Such being
the case, Judge Ni differed from the majority of the Court in
that he considered that the rules contained in multilateral treaties,
as well as customary international law, should, where appropriate,
have been applied to the case.
Dissenting
Opinion of Judge Oda
Judge Oda agrees
with the Court's recognition of the applicability of the multilateral
treaty proviso attached to the United States' 1946 declaration
but considers that, having thus decided that the dispute had arisen
under a multilateral treaty, it should have ceased to entertain
the application of Nicaragua on the basis of that declaration.
The Court had been wrong to interpret the exclusion of the dispute
by that proviso as merely placing restrictions upon the sources
of law to which it was entitled to refer.Judge Oda further believes
that, to the extent that the Nicaraguan claims presupposed the
Court's jurisdiction under declarations made pursuant to Article
36 (2) of the Statute, which refers to "legal disputes",
they should have been declared non-justiciable, since the dispute
was not "legal" within the meaning and intention of
that clause or, even if it were, it was not one that the Court
could properly entertain: as a political dispute, it was more
suitable for resolution by other organs and procedures. Moreover,
the facts the Court could elicit by examining the evidence in
the absence of the Respondent fell far short of what was needed
to show a complete picture.Judge Oda thus considers that, in so
far as the Court could properly entertain the case, it could do
so on the basis of Article 36 (1) of the Statute, where the term
"all matters specially provided for in . . .
treaties . . . in force" gave no such grounds
for questioning the "legal" nature of the dispute. The
Court could therefore legitimately examine any breach of the concrete
terms of the 1956 Treaty of Friendship, Commerce and Navigation.
In Judge Oda's view, the mining of the Nicaraguan ports had constituted
such a breach, for which the United States had incurred responsibility.Judge
Oda emphasizes that his negative votes on many counts of the Judgment
must not be interpreted as implying that he is opposed to the
rules of law concerning the use of force or intervention, of whose
violation the United States has been accused, but are merely a
logical consequence of his convictions on the subject of jurisdiction
under Article 36 (2) of the Statute.Finally, Judge Oda regrets
that the Court has been needlessly precipitate in giving its views
on collective self-defence in its first Judgment to broach that
subject.
Dissenting
Opinion of Judge Schwebel
Judge Schwebel
dissented from the Court's Judgment on factual and legal grounds.
He agreed with the Court in its holdings against the United States
for its failure to make known the existence and location of mines
laid by it and its causing the publication of a manual advocating
acts in violation of the law of war. But Judge Schwebel concluded
that the United States essentially acted lawfully in exerting
armed pressures against Nicaragua, both directly and through its
support of the contras, because Nicaragua's prior and sustained
support of armed insurgency in El Salvador was tantamount to an
armed attack upon El Salvador against which the United States
could react in collective self-defence in El Salvador's support.Judge
Schwebel found that, since 1979, Nicaragua had assisted and persisted
in providing large-scale, vital assistance to the insurgents in
El Salvador. The delictual acts of Nicaragua had not been confined
to providing the Salvadoran rebels with large quantities of arms,
munitions and supplies, which of themselves arguably might be
seen as not tantamount to armed attack. Nicaragua had also joined
with the Salvadoran rebels in the organization, planning and training
for their acts of insurgency, and had provided them with command-and-control
facilities, bases, communications and sanctuary which enabled
the leadership of the Salvadoran rebels to operate from Nicaraguan
territory. That scale of assistance, in Judge Schwebel's view,
was legally tantamount to an armed attack. Not only was El Salvador
entitled to defend itself against that armed attack, it had called
upon the United States to assist it in the exercise of collective
self-defence. The United States was entitled to do so, through
measures overt or covert. Those measures could be exerted not
only in El Salvador but against Nicaragua on its own territory.In
Judge Schwebel's view, the Court's conclusion that the Nicaraguan
Government was not "responsible for any flow of arms"
to the Salvadoran insurgents was not sustained by "judicial
or judicious" considerations. The Court had "excluded,
discounted and excused the unanswerable evidence of Nicaragua's
major and maintained intervention in the Salvadoran insurgency".
Nicaragua's intervention in El Salvador in support of the Salvadoran
insurgents was, Judge Schwebel held, admitted by the President
of Nicaragua, affirmed by Nicaragua's leading witness in the case,
and confirmed by a "cornucopia of corroboration".Even
if, contrary to his view, Nicaragua's actions in support of the
Salvadoran insurgency were not viewed as tantamount to an armed
attack, Judge Schwebel concluded that they undeniably constituted
unlawful intervention. But the Court, "remarkably enough",
while finding the United States responsible for intervention in
Nicaragua, failed to recognize Nicaragua's prior and continuing
intervention in El Salvador.For United States measures in collective
self-defence to be lawful, they must be necessary and proportionate.
In Judge Schwebel's view, it was doubtful whether the question
of necessity in this case was justiciable, because the facts were
so indeterminate, depending as they did on whether measures not
involving the use of force could succeed in terminating Nicaragua's
intervention in El Salvador. But it could reasonably be held that
the necessity of those measures was indicated by "persistent
Nicaraguan failure to cease armed subversion of El Salvador".Judge
Schwebel held that "the actions of the United States are
strikingly proportionate. The Salvadoran rebels, vitally supported
by Nicaragua, conduct a rebellion in El Salvador; in collective
self-defence, the United States symmetrically supports rebels
who conduct a rebellion in Nicaragua. The rebels in El Salvador
pervasively attack economic targets of importance in El Salvador;
the United States selectively attacks economic targets of military
importance" in Nicaragua.Judge Schwebel maintained that,
in contemporary international law, the State which first intervenes
with the use of force in another State - as by substantial
involvement in the sending of irregulars onto its territory - is,
prima facie, the aggressor. Nicaragua's status as prima
facie aggressor can only be confirmed upon examination of
the facts. "Moreover", Judge Schwebel concluded, "Nicaragua
has compounded its delictual behaviour by pressing false testimony
on the Court in a deliberate effort to conceal it. Accordingly,
on both grounds, Nicaragua does not come before the Court with
clean hands. Judgment in its favour thus unwarranted, and would
be unwarranted even if it should be concluded - as it
should not be - that the responsive actions of the United
States were unnecessary or disproportionate."
Dissenting
Opinion of Judge Sir Robert Jennings
Judge Sir Robert
Jennings agreed with the Court that the United States multilateral
treaty reservation is valid and must be respected. He was unable
to accept the Court's decision that it could, nevertheless, exercise
jurisdiction over the case by applying customary law in lieu of
the relevant multilateral treaties. Accordingly, whilst able to
vote in favour of certain of the Court's findings, he felt compelled
to vote against its decisions on the use of force, on intervention,
and on the question of self-defence, because in his view the Court
was lacking jurisdiction to decide those matters.
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