CASE CONCERNING
MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA
(Nicaragua v. United States of America)
International Court of Justice
June 27, 1986
General List No. 70
Judgment of 27 June 1986
Separate Opinion:
President Nagendra Singh
Judge Lachs
Judge Ruda
Judge Elias
Judge Ago
Judge Sette-Camara
Judge Ni
Dissenting Opinions:
Judge Oda
Judge Sir Robert Jennings
*14
MERITS
Failure of Respondent to
appear - Statute of the Court, Article 53 - Equality of the parties.
Jurisdiction of the Court
- Effect of application of multilateral treaty reservation to United States
declaration of acceptance of jurisdiction under Statute, Article 36, paragraph
2 - Third State 'affected' by decision of the Court on dispute arising under a
multilateral treaty - Character of objection to jurisdiction not exclusively
preliminary - Rules of Court, Article 79.
Justiciability of the
dispute - 'Legal dispute' (Statute, Article 36, paragraph 2).
Establishment of facts -
Relevant period - Powers of the Court - Press information and matters of public
knowledge - Statements by representatives of States - Evidence of witnesses -
Implicit admissions - Material not presented in accordance with Rules of Court.
Acts imputable to
respondent State - Mining of ports - Attacks on oil installations and other
objectives - Overflights - Support of armed bands opposed to Government of applicant State -
Encouragement of conduct contrary to principles of humanitarian law - Economic
pressure - Circumstances precluding international responsibility - Possible
justification of imputed acts - Conduct of Applicant during relevant period.
Applicable law - Customary
international law - Opinio juris and State practice - Significance of
concordant views of Parties - Relationship between customary international law
and treaty law - United Nations Charter - Significance of Resolutions of United
Nations General Assembly and Organization of American States General Assembly.
*15 Principle prohibiting recourse to the threat
or use of force in international relations - Inherent right of self-defence -
Conditions for exercise - Individual and collective self-defence - Response to
armed attack - Declaration of having been the object of armed attack and
request for measures in the exercise of collective self-defence.
Principle of
non-intervention - Content of the principle - Opinion juris - State practice -
Question of collective counter-measures in response to conduct not amounting to
armed attack.
State sovereignty -
Territory - Airspace - Internal and territorial waters - Right of access of
foreign vessels.
Principles of humanitarian
law - 1949 Geneva Conventions - Minimum rules applicable - Duty of States not
to encourage disrespect for humanitarian law - Notification
of existence and location of mines.
Respect for human rights -
Right of States to choose political system, ideology and alliances.
1956 Treaty of Friendship,
Commerce and Navigation - Jurisdiction of the Court - Obligation under
customary international law not to commit acts calculated to defeat object and
purpose of a treaty - Review of relevant treaty provisions.
Claim for reparation.
Peaceful settlement of
disputes.
Judgment
Present: President
NAGENDRA SINGH; Vice-President DE
LACHARRIERE; Judges LACHS, RUDA, ELIAS,
ODA, AGO, SETTE-CAMARA, SCHWEBEL, Sir Robert JENNINGS, MBAYE, BEDJAOUI, NI,
EVENSEN; Judge ad hoc COLLIARD;
Registrar TORRES BERNARDEZ.
In the case concerning
military and paramilitary activities in and against Nicaragua,
between
the Republic of Nicaragua,
H.E. Mr. Carlos Arguello Gomez, 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'etudes politiques de Paris,
*16 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 Rodriguez, 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.,
as Counsel,
and
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 *17 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.
*18 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 Arguello Gomez, 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 Carrion, 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. Arguello Gomez). 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:
*19 - 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 *20 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.
* * * * *
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 Liberacion 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 *21 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 Democratica Nicaraguense (FDN) and the Alianza Revolucionaria
Democratica (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 *22 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
intelligence-gathering 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 *23 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).
* * *
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 contentions on 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' *24 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 *25 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 *26 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.
* * *
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
nonjusticiable.
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 *27 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 *28
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.
* * *
36. By its Judgment of 26
November 1984, the Court found that it had jurisdiction to entertain the
present case, first on the basis of the United States declaration of acceptance
of jurisdiction, under the optional clause of Article 36, paragraph 2, of the
Statute, deposited on 26 August 1946 and secondly on the basis of Article XXIV
of a Treaty of Friendship, Commerce and Navigation between the Parties, signed
at Managua on 21 January 1956. The
Court notes that since the institution of the present proceedings, both bases
of jurisdiction have been terminated.
On 1 May 1985 the United States gave written notice to the Government of
Nicaragua to terminate the Treaty, in accordance with Article XXV, paragraph 3,
thereof; that notice expired, and thus
terminated the treaty relationship, on 1 May 1986. On 7 October 1985 the United States deposited with the
Secretary-General of the United Nations a notice terminating the declaration
under the optional clause, in accordance with the terms of that declaration,
and that notice expired on 7 April 1986. These
circumstances do not however affect the jurisdiction of the Court under Article
36, paragraph 2, of the Statute, or its jurisdiction under Article XXIV,
paragraph 2, of the Treaty to determine 'any dispute between the Parties as to
the interpretation or application' of the Treaty. As the Court pointed out in the Nottebohm case:
'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 *29 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 aragraph 7, of the
present Rules of Court, and declare tht 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, *30 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 *31
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 *32 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.
45. The reservation in
question is not necessarily a bar to the United States accepting the Court's
jurisdiction whenever a third State which may *33 be affected by the
decision is not a party to the proceedings.
According to the actual text of the reservation, the United States can
always disregard this fact if it 'specially agrees to jurisdiction'. Besides, apart from this possibility, as the
Court recently observed: 'in principle
a State may validly waive an objection to jurisdiction which it might otherwise
have been entitled to raise' (I.C.J. Reports 1985, p. 216, para. 43). But it is clear that the fact that the
United States, having refused to participate at the merits stage, did not have
an opportunity to press again at that stage the argument which, in the jurisdictional phase, it founded on its
multilateral treaty reservation cannot be tantamount to a waiver of the argument
drawn from the reservation. Unless unequivocally waived, the reservation
constitutes a limitation on the extent of the jurisdiction voluntarily accepted
by the United States; and, as the Court
observed in the Aegean Sea Continental Shelf case,
'It would not discharge
its duty under Article 53 of the Statute if it were to leave out of its
consideration a reservation, the invocation of which by the Respondent was
properly brought to its notice earlier in the proceedings.' (I.C.J. Reports 1978, p. 20, para. 47.)
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-a-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 *34 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 *35 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.
49. As regards the Charter
of the Organization of American States, the Court notes that Nicaragua bases
two distinct claims upon this multilateral treaty: it is contended, first, that
the use of force by the United States against Nicaragua in violation of the
United Nations Charter is equally a violation of Articles 20 and 21 of the
Organization of American States Charter, and secondly that the actions it
complains of constitute intervention in the internal and external affairs of
Nicaragua in violation of Article 18 of the Organization of American States
Charter. The Court will first refer to
the claim of use of force alleged to be contrary to Articles 20 and 21. Article 21 of the Organization of American
States Charter provides:
'The American States
bind themselves in their international relations not to have recourse to the use of force, except in
the case of self-defense in accordance with existing treaties or in fulfillment
thereof.'
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
exercise *36 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 *37 ' 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.
55. As indicated in
paragraph 49 above, there remains the claim of Nicaragua that the United States
has intervened in the internal and external affairs of Nicaragua in violation
of Article 18 of the Organization of American States Charter. That Article provides:
'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 *38 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.
* * *
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 *39 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 *40
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 have 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 *41
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 *42 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.
68. The Court has not
treated as evidence any part of the testimony given which was not a statement
of fact, but a mere expression of opinion as to the probability or otherwise of
the existence of such facts, not directly known to the witness. Testimony of this kind, which may be highly
subjective, cannot take the place of evidence.
An opinion expressed by a witness is a mere personal and subjective
evaluation of a possibility, which has yet to be shown to correspond to a
fact; it may, in conjunction with other
material, assist the Court in determining a question of fact, but is not proof
in itself. Nor is testimony of matters
not within the direct knowledge of the witness, but known to him only from
hearsay, of much weight; as the Court
observed in relation to a particular witness in the Corfu Channel case:
'The statements
attributed by the witness . . . to third parties, of which the Court has
received no personal and direct confirmation, can be regarded only as
allegations falling short of conclusive evidence.' (I.C.J. Reports 1949, pp. 16-17.)
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. *43
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 Carrion), 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.
*44 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 *45 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.
* * * * *
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 *46 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 Carrion 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 *47 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.
*48 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 speed-boats;
(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.
*49 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 Carrion 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, *50
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 *51
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',
and continued
'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.)
*52 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
Carrion, 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 *53 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
Nicaragus'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 *54 Carrion, 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 ex-National 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 Eden Pastora Gomez, 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 *55 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
Defense 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 Defense, or any other agency or entity
of the United States involved in intelligence activities may be obligated or
expended for the purpose or *56 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;
*57 - 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 Defense. 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 Defense . . .
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
*58 '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:
*59 '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 support 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 *60
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. Ch
morro (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 Carrion, and by counsel *61 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 Defense 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 *62 that members of the former Somoza National Guard, together
with civilian opponents to the Sandinista regime, withdrew from Nicaragua soon
after that regime 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-a-vis the regime
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 subsides 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 *63
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 *64
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
Carrion 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 *65 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-a-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 sicologicas en guerra de guerrillas' (Psychological Operations in
Guerrilla Warfare), by 'Tayacan'; 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 *66 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 regime, in order to create greater conflicts.'
*67 119. 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 *68
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 semblance *69
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 *70 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 *71 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 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 *72 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.
130. In its pleading at
the jurisdictional stage, the United States asserted the justification of
collective self-defence in relation to alleged attacks on El Salvador, Honduras
and Costa Rica. It is clear from the
material laid before the Court by Nicaragua that, outside the context of the
present judicial proceedings, the United States administration has laid the
greatest stress on the question of arms supply and other forms of support to
opponents of the Government in El Salvador.
In 1983, on the proposal of the Intelligence Committee, the covert
programme of assistance to the contras 'was to be directed only at the
interdiction of arms to El Salvador'.
Nicaragua's other neighbours have not been lost sight of, but the
emphasis has continued to be on El Salvador:
the United States Continuing Appropriations Act 1985, Section 8066 (b)
(1) (A), provides for aid for the military or paramilitary activities in
Nicaragua to be resumed if the President reports inter alia that
'the Government of
Nicaragua is providing material or monetary support to anti-government forces
engaged in military or paramilitary operations in El Salvador or other Central American countries'.
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
*73 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-*74 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 *75 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.'
*76 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 *77 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.
139. The Court has taken
note of four draft treaties prepared by Nicaragua in 1983, and submitted as an
official proposal within the framework of the Contadora process, the text of
which was supplied to the Court with the Nicaraguan Application. These treaties, intended to be 'subscribed
to by all nations that desire to contribute to the peaceful solution of the
present armed conflict in the Republic of El Salvador' (p. 58), contained the
following provisions:
'Article One
The High Contracting
Parties promise to not offer and, should such be the case, to suspend military
assistance and training and the supply and trafficking of arms, munitions and
military equipment that may be made directly to the contending forces or
indirectly through third States.
Article Two
The High Contracting
Parties promise to adopt in their respective territories whatever measures may
be necessary to impede all supply and trafficking of arms, munitions and
military equipment and military assistance to and training of the contending
forces in the Republic of El Salvador.' (P. 60.)
*78 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 Defense 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 *79 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 estamos dispuestos a sacar
a los cubanos, sovieticos y demas asesores;
a suspender todo transito por nuestro territorio de ayuda militar u otra
a los salvadorenos, bajo verificacion internacional. Hemos dicho que lo unico 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
economicos 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 *80 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:
*81 '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 regime 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 *82 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 this type 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 *83 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 *84 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 *85 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 *86 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 regime 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 *87 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 trans-border 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, *88 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.
* * *
167. Certain events which occurred at the
time of the fall of the regime 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*89 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 regime.
2. Installation in
Nicaraguan territory of a democratic government, the composition of which
should include the principal representative groups which oppose the Somoza
regime 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'.
*90 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 regime 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 -
*91 (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
*92 '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.
* * * * *
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 *93 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,
non-intervention, 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 *94 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 *95 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-a-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 *96 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, *97 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.
* * *
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, *98 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 *99
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 *100 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 signifcant 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 *101 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'.
191. As regards certain
particular aspects of the principle in question, it will be necessary to
distinguish the most grave forms of the use of force (those constituting an
armed attack) from other less grave forms.
In determining the legal rule which applies to these latter forms, the
Court can again draw on the formulations contained in the Declaration on
Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations (General
Assembly resolution 2625 (XXV), referred to above). As already observed, the adoption by States of this text affords
an indication of their opinio juris as to customary international law on the
question. Alongside certain
descriptions which may refer to aggression, this text includes others which
refer only to less grave forms of the use of force. In particular, according to this resolution:
'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.'
*102 192. 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 regime 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.
3. Similarly, to
reaffirm the obligation of these states to refrain from organizing, supporting,
promoting, financing, instigation, or tolerating subversive, terrorist, or
armed activities against another state and from intervening in a civil war in
another state or in its internal struggles.'
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 *103 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 *104 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.
196. The question remains
whether the lawfulness of the use of collective self-defence by the third State
for the benefit of the attacked State also depends on a request addressed by
that State to the third State. A
provision of the Charter of the Organization of American States is here in
point: and while the Court has no
jurisdiction to consider that instrument as applicable to the dispute, it may
examine it to ascertain what light it throws on the content of customary
international law. The Court notes that
the Organization of American States Charter includes, in Article 3 (f), the
principle that: 'an act of aggression
against one American State is an act of aggression against all the other
American States' and a provision in Article 27 that:
'Every act of aggression
by a State against the territorial integrity or the inviolability of the territory
or against the sovereignty or political independence of an American State shall
be considered an act of aggression against the other American States.'
197. Furthermore, by Article 3, paragraph 1,
of the Inter-American Treaty of Reciprocal Assistance, signed at Rio de Janeiro
on 2 September 1947, the High- Contracting Parties
'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 *105 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
Jose, 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.
*106 201. 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:
*107 '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, *108 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 *109 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 *110
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
*111 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 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 *112 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.
* *
215. The Court has noted
above (paragraph 77 in fine) that the United States did not issue any warning
or notification of the presence of the mines which had been laid in or near the
ports of Nicaragua. Yet even in time of
war, the Convention relative to the laying of automatic submarine contact mines
of 18 October 1907 (the Hague Convention No. VIII) provides that 'every
possible precaution must be taken for the security of peaceful shipping' and
belligerents are bound
'to notify the danger
zones as soon as military exigencies permit, by a notice addressed to ship
owners, which must also be communicated to the Governments through the
diplomatic channel' (Art. 3).
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:
'certain general and well
recognized principles, namely:
elementary considerations of humanity, even more exacting in peace than
in war' (I.C.J. Reports 1949, p. 22).
* *
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 *113 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.
218. The Court however
sees no need to take a position on that matter, since in its view the conduct
of the United States may be judged according to the fundamental general
principles of humanitarian law; in its
view, the Geneva Conventions are in some respects a development, and in other
respects no more than the expression, of such principles. It is significant in this respect that,
according to the terms of the Conventions, the denunciation of one of them
'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 *114 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
non- international 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 in ernational 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.
220. The Court considers
that there is an obligation on the United States Government, in the terms of
Article 1 of the Geneva Conventions, to 'respect' the Conventions and even 'to ensure respect'
for them 'in all circumstances', since such an obligation does not derive only
from the Conventions themselves, but from the general principles of
humanitarian law to which the Conventions merely give specific expression. The United States is thus under an obligation
not to encourage persons or groups engaged in the conflict in Nicaragua to act
in violation of the provisions of Article 3 common to the four 1949 Geneva
Conventions, which reads as follows:
'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 *115 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;
(b) taking of hostages;
(c) outrages upon
personal dignity, in particular, humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly constituted court affording
all the judicial guarantees which are recognized as indispensable by civilized
peoples.
(2) the wounded and sick
shall be collected and cared for . . .
The Parties to the
conflict should further endeavour to bring into force, by means of special
agreements, all or part of the other provisions of the present Convention . .
.'
* *
221. In its Judgment of 26
November 1984, the Court concluded that, in so far as the claims presented in
Nicaragua's Application revealed the existence of a dispute as to the
interpretation or application of the Articles of the 1956 Treaty of Friendship,
Commerce and Navigation between the Parties mentioned in paragraph 82 of that
Judgment (that is, Arts. XIX, XIV, XVII, XX, I), it had jurisdiction to deal
with them under Article XXIV, paragraph 2, of that treaty. Having thus established its jurisdiction to
entertain the dispute between the Parties in respect of the interpretation and
application of the Treaty in question, the
Court must determine the meaning of the various provisions which are relevant
for its judgment. In this connection,
the Court has in particular to ascertain the scope of Article XXI, paragraphs 1
(c) and 1 (d), of the Treaty. According
to that clause
'the present Treaty shall
not preclude the application of measures:
...........................
(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;
*116 (d) necessary to fulfill
the obligations of a Party for the maintenance or restoration of international
peace and security, or necessary to protect its essential security interests'.
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 XXI. 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 *117 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.
* * * * *
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 *118 whether there
are present any circumstances excluding unlawfulness, or whether such acts may
be justified upon any other ground.
* * *
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.
228. Nicaragua has also
claimed that the United States has violated Article 2, paragraph 4, of the Charter,
and has used force against Nicaragua in breach of its obligation under
customary international law in as much as it has engaged in
'recruiting, training,
arming, equipping, financing, supplying and otherwise encouraging, supporting,
aiding, and directing military and paramilitary actions in and against
Nicaragua' (Application, para. 26 (a) and (c)).
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 *119 assistance to the contras in Nicaragua, by
'organizing or encouraging the organization of irregular forces 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*120 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 *121 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 selfdefence. 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 add essed 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 *122 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 *123
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 *124 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 ofnon-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 *125 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'
and that
'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 Defense 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 *126 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 regime 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 *127 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).)
*128 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 sover-eignty 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
sover-eignty 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 *129 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.
255. The Court has also
found (paragraphs 219 and 220 above) that general principles of humanitarian
law include a particular prohibition, accepted by States, and extending to
activities which occur in the context of armed conflicts, whether international
in character or not. By virtue of such
general principles, the United States is bound to refrain from encouragement of
persons or groups engaged in the conflict in Nicaragua to commit violations of
Article 3 which is common to all four Geneva Conventions of 12 August 1949. The
question here does not of course relate to the definition of the circumstances
in which one State may be regarded as responsible for acts carried out by another State, which probably
do not include the possibility of incitement.
The Court takes note of the advice given in the manual on psychological
operations to 'neutralize' certain 'carefully selected and planned targets',
including judges, police officers, State Security officials, etc., after the
local population have been gathered *130 in order to 'take part in the
act and formulate accusations against the oppressor'. In the view of the Court, this must be regarded as contrary to
the prohibition in Article 3 of the Geneva Conventions, with respect to
non-combatants, of
'the passing of sentences
and the carrying out of executions without previous judgment pronounced by a
regularly constituted court, affording all the judicial guarantees which are
recognized as indispensable by civilized peoples'
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 *131 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.
259. However, the
assertion of a commitment raises the question of the possibility of a State
binding itself by agreement in relation to a question of domestic policy, such
as that relating to the holding of free elections on its territory. The Court cannot discover, within the range
of subjects open to international agreement, any obstacle or provision to
hinder a State from making a commitment of this kind. A State, which is free to decide upon the principle and methods of popular consultation
within its domestic order, is sovereign for the purpose of accepting a
limitation of its sover-eignty in this field.
This is a conceivable situation for a State which is bound by
institutional links to a confederation of States, or indeed to an international
organization. Both Nicaragua and the
United States are members of the Organization of American States. The Charter of that Organization however
goes no further in the direction of an agreed limitation on sovereignty of this
kind than the provision in Article 3 (d) that
'The solidarity of the
American States and the high aims which are sought through it require the
political organization of those States on the basis of the effective exercise
of representative democracy';
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 regime 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 regime soothed apprehensions as desired and expressed its
intention of governing the country democratically.
*132 261. 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 *133 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 regime 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.
*134 266. 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 Jose, 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 *135
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.
* * *
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 *136 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 *137
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.
274. The Court has in this
respect to note that the Treaty itself provides in Article XXIV, paragraph 1,
as follows:
'Each Party shall accord
sympathetic consideration to, and shall afford adequate opportunity for consultation
regarding, such representations as the other Party may make with respect to any
matter affecting the operation of the
present Treaty.'
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).
*138 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*139 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 *140 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, *141 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
selfdefence, 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 *142
no defence for the United States in respect of any of the actions here under consideration.
* * * * *
283. The third submission
of Nicaragua in its Memorial on the merits, set out in paragraph 15 above,
requests the Court to adjudge 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
Chorzow,
'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 *143 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', *144 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 effect the results of conduct which the Court may rule to have
been contrary to international law.
* *
*145 290. 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.
* * * * *
*146 292. For these reasons,
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 United States of America deposited on 26 August 1946;
IN FAVOUR: President
Nagendra Singh; Vice-President de
Lacharriere; 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
Lacharriere; 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
Lacharriere; 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 *147 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
Lacharriere; 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;
IN FAVOUR: President
Nagendra Singh; Vice-President de
Lacharriere; 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
Lacharriere; 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
Lacharriere; 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 *148 (6) hereof, has acted
in breach of its obligations under customary international law in this respect;
IN FAVOUR: President
Nagendra Singh; Vice-President de
Lacharriere; 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 sicologicas 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
Lacharriere; 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
Lacharriere; 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
Lacharriere; Judges Lachs, Ruda, Elias,
Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Oda,
Schwebel and Sir Robert Jennings.
*149 (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
Lacharriere; 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 Lacharriere; 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
Lacharriere; 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
Lacharriere; 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.
*150 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, President.
(Signed) Santiago TORRES BERNARDEZ, Registrar.
President NAGENDRA SINGH,
Judges LACHS, 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.
(Initialled) N.S.
(Initialled) S.T.B.
*151
SEPARATE OPINION OF PRESIDENT NAGENDRA SINGH
While fully endorsing the
operative holdings of the Court in this Judgment, I have considered it
necessary to append this separate opinion to emphasize certain aspects which I
consider essential, either from the legal standpoint or for promoting peaceful community
existence of sovereign States.
I
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.
(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.
*152 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.
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'.
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 *153 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.
(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.
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 *154 itself to applying customary international law in this
case and held treatylaw 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.
II
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.
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' an 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.
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 *155 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.
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 property
evaluated in the context of this case.
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.
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.
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 *156
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.
III
May I also add that I
agree with the view that the CIA Manual entitled Operaciones sicologicas 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.
Nevertheless, that such a
manual did appear and was attributable to the Respondent through the CIA,
although compiled at a low level, was all the more regrettable because of the
aforesaid traditional respect of the United States for the rule of law,
nationally and internationally.
IV
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 *157 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.
*158 SEPARATE OPINION
OF JUDGE LACHS
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'.
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.)
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 inquestion - 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.
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 *159 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.
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.)
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.'
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. *160 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.)
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.'
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.
* *
*161 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
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.
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.
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 *162 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.)
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.
In this context I wish to
recall two factors which could not have remained without legal effect.
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'.
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.
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.
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 *163 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.).
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.
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.
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.)
Notwithstanding this
statement, Hudson took a very guarded view on the subject, because in analysing
the case he arrived at the conclusion:
*164 '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.)
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.)
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.
Nicaragua held that the
dispute with Honduras was one which 'ne porte en aucune facon sur la realite de
tout fait qui, s'il etait etabli, 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.
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 *165 Award Made by
the King of Spain on 23 December 1906, Vol.
I, p. 59, paras. 37-39).
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.
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.
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 Year-book 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.
On the other hand, the
jurisdiction established by the bilateral treaty of 1956 leaves no room for
doubt.
* *
*166 II.
JUSTICIABILITY OF THE CASE
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.
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.
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:
*167 '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 inept.
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 souverainete lorsque, librement, deliberement, il assure par avance une
solution arbitrale ou judiciaire a tous les differends, sans exception, qui
n'auraient pu etre aplanis par voie de negociations directes. Il renonce seulement, par esprit de justice
et de paix, a faire prevaloir ce qu'il considere comme son bon droit par des
moyens qui pourraient etre inconciliables avec la conception meme du droit.'
(Feuille federale de la Confederation 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.
*168 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.
The Court's primary task
is to ascertain the law, and to leave no doubt as to its meaning.
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.
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?
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.
*169
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).
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 [FN1].'
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.)
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'.
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 States 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 [FN2].'
'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 *170 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 [FN3]'. '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 [FN4].'
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 [FN5].'
* *
III. JUDICIAL ERROR
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.)
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 *171 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.
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. [1924], pp. 256 and
259).
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.'
Might it not be a slight
exaggeration to draw from the error to which I refer conclusions totally
unrelated to it?
* *
IV. REGIONAL EFFORTS TOWARDS A SOLUTION
The Court's decision is
intended to resolve the dispute between the Parties submitted to it in the
present case.
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.
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 *172 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).
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.
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.
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.
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.
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.
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).
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.
The Judgment can thus make
a constructive contribution to the resolution *173 of a dangerous
dispute - paving the way to stability in a region troubled for decades by
conflict and confrontation.
This Court can make
contributions in many other cases and resolve controversies which trouble good
relations between States. This is the
task to which the Court is committed.
(Signed) Manfred LACHS.
*174
SEPARATE OPINION OF JUDGE 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 I 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 *175 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.
8. In the present Judgment
the Court has developed its arguments on this subject at some length. However, I regret to say that I have not
been convinced by its reasoning and I continue to think that the reservation is
not applicable, for the same arguments as I put forward in 1984.
III. SELF-DEFENCE
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 *176 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 selfdefence.
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 *177 jurisdiction, as has happened in this case, that
judge would have no standing for participating in the merits stage, which would
be an absurd proposition.
17. For these reasons, I
participated in the discussions and voted on the question whether the United
States had acted in breach of the 1956 Treaty of Friendship, Commerce and
Navigation.
(Signed) J. M. RUDA.
*178
SEPARATE OPINION OF JUDGE ELIAS
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.
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.
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).
