3. nicaragua v us

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CASE CONCERNING THE MILIT RY AND P R MILIT RY ACTIVITIES IN N DAGAINST NICARAGUA NICAJtAGUA v UNITED STATES OF AMERICA) MERITS)

For its judgment on the merits in the case coiicerning Mili-tary and Paramilitary Activities in and against Nicaraguabrought by Nicaragua against theUnited States of America,the Courtwas composed as follows:

Resident Nagendra Singh; Vice-Resident dl: Lacharriare;Judges Lachs, Ruda. Elias, Oda. Ago, Iiette-Camara,Schwebel, ir Robert Jennings, Mbaye, Bedjaoui, Ni,Evensen, Judgead ho Colliard.

OPERATIVEPART OF THE COURT'SUDGMENT

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 on9April 1984, the Court is required to apply the multilateralbeaty reservation contained in proviso (c) to the declarationof acceptance of juristliction made under Article36 para-graph2, of the Statute of the ourt by the Government of theUnited States of America deposited on26 August 1946,

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Summaries of Judgments, Advisory Opinions and Orders of the International Court of JusticeNot an official document


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used force in breach of the tvvo Charters.The Cowt examines ness. With regard in particular to affidavitsand sworn state-in particular the case of El Salvador, for whose benefit prima- ments made by members of a Government, the Courtrily the United States claims to be exercising the right of col- considlers that it can certainly retain such parts of this evi-lective self-defence which iit regards as a justification of its dence as may be regarded as contrary to the interests or con-own conduct towards Nicaragua. hat right being endorsed tentions of the State to which the witness has allegiance; forby the United Nations Chartr:r (Art. 5 1) and the OAS Charter the rest such evidence has to be treated with great reserve.(Art. 21). The dispute is to this extent a dispute "arising The; Court is aware of a publication of the Unitedunder"' multilateral treaties .to which the United States, Nica- States State Department entitled "Revolution Beyond OurWua and El Salvador are It appears clear to the Borders, Sandinista Intervention in Central America" which

Court that El Salvador wot~ld e "affected" by the Court's was not submitted to the Court in any form or manner con-decision on the lawfulness of resort by the United States to templ;ated by the Statute and Rules of Cow. The Court con-collective self-defence. siders that, in view of the special circumstances of this case,

As to Nicaragua's claim that the United States has inter- it may, within limits, make use of information in that publi-vend in its affairs contrary t the OAS Charter (Art. 18) the cation.Court observes that it is impossible to say that a ruling on thealle ed breach of the Charter by the United States would not VII Thefacts imputable to the United States"dect" El Salvador. (paras. 75 to 125)

Having thus found that El Salvador would b "affected" 1. The Court examines the allegations of Nicaragua thatby the decision that the Court would have to take on the the mining of Nicaraguan ports or wa ters was carried out byclaims of Nicaragua based on violation of the two Charters U n i d States military personnel or persons of the nationalityby the United States, the Corut concludes that the: jurisdiction of Lanin American countries in the pay of h e United States.~0nferred n it by the United States declaration does not per- After examining the facts, the Court finds it established that,Illit it to entertain these C ~ ~ ~ I I I S .t makes it cllear that the effect on a date in late 1983 or early 1984, the President of theof the reservation is confined to barring the applicability of united States authorized a United states Government agencythese two multilateral treaties as multilaterd treaty law, and

to lay mines in Nicaraguan ports; that in early 1984 mineshas M urther impact on the sources of international law were laid in or close to the ports of ~1 luff, Corinto andwhich Article 38 of the Statute requires the Court to apply* Puerto Sandino, either in Nicaraguan intennal waters or in itsincluding customary international law. territorial sea or both, by persons in the pay and acting on the

instructions of that agency, under the supervision and withV I . Establishment of thc facts: evidence and methotls the logistic support of United States agents; that neither

employed by the Court before the laying of the mines, nor subsequently, did the(paras. 57-74) United States Government issue any public and official

warning to international shipping of the existence and loca-The Court has had to determine the facts relevant to th tion d he mines; and that personal and material injury was

dispute. The difficulty of iips task derived from the marked cauwd by the explosion of the mines, which also c T e 8 ~disapment between the M e s , he non-appearance of the risks causing a rise n marine insurance ates.Respondent, the secrecy s~mounding ertain conduct, and 2. Nicaragusamibutes to the direct mion of UniHthe fact that the conflict is continuing. n this last point, the prsonnel or prsons in its pay, opNions againstoilCowt takes the view, in accordance with the general princi- inn.llatiom La base etc. lisa in paraaph 81 of thepies as to the judkial p r ~ s s , hPt the facu to *n into Court all these ,account be w'urring to the of the to be establj&ed. Although it is not that any U n i dpooocdings On the merits of the (end of Se~tembcr S m s mi li tq momel taok a dimt pm n the1985). United States agents participated in the planning, direction

reg rd o the production of evidence, the Court indi- md support. The imputability to the United tates of thesecates how the requirements of its Statute- in pdcular Arti- attach appears therefore to the court to be established,cle 53 -and the Rules of Court have to be met in the case, on 3. NicmgUa of infringe cn of its airthe basis that the Court has 1 W o m n estimating the value of by United StsDs milil.ry raft. evithe various elements of evidence. It has not seen fit to order available, the court finds th he only violations ofan enquiry under Article 50 of the Statute. With regard to ear- Nicaraguan .ir spscc imputable the united on fhctain documentary mote~ial (pcss articles and various b.lis of the evidenea high altitude reCOnnaiS e flightsbmLs * he has these with It regsrds and low altitude flights on 7 to 11 November 1984 causingthem not as evidence capable of proving facts, but as material ,,sonic booms,,hich can nevertheless contribute to corroborating the exist-ence of a fact and be taken into account to show whether cer- With regard to joint military ~ ~ ~ o e u v l r e s ith Hondurastain facts matters of public knowledge. With regard to carried out by the United States on Honduran territory nearstatements by representaldves of States sometimes at the the IIond-micaragua frontier* the Cburt considers thathighest level, the Court talces the view that such statements they may betreatedas~ublic nowledge and thus sufficientlyare of particular probative value when They acknowledge established.facts or conduct unfavomble to the State represented by the 4. The Court then examines the genesis, developmentperson who made them. Vith regard to the evidence of wit- and activities of the contra force and the role of the Unitednesses presented by Nicaragua-five wi~tnessies gave oral States in relation to it. According to Nicaragua, the Unitedevidence and another a wtitten aftidavit--one consequence States "conceived, created and organized a mercenary army,of the absence of the Respondent was that the evidence of the the contra force". On the basis of the available information,witnesses was not tested by cross-examination. The Cowt the Court is not able to satisfy itself that the Respondent Statehas not treated as evidence any part of the testimony which "cre atedW he c o m a fome in Nicaragua, but holds it estab-was a mere expression of opinion as o the probability or 0th- lished that it largely financed, trained, equipped, armed anderwise of the existence of a fact not directly known to the wit- organized the FDN, one element of the fome.

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It is claimed by Nicaragua that the Uni.ted States Govern-ment &vised the strategy and directed the tactics of the con-tra force, and provided direct combat support for its militaryoperations. In the light of the evidence and material availableto it, the Court is not satisfied that all the operations launchedby the contra force, at every stage of the: conflict, reflectedstrategy and tactics solely devised by the United States. Ittherefore cannot uphold the contention of' Nicaragua on thispoint. The Court however finds it clear that a number of oper-ations were decided and planned, if not actually by theUnited States advisers, then at least in close collaborationwith them, and on the basis of the intelligence and logisticsupport which the United States was able to offer. It is alsoestablished in the Court's view that the support of the UnitedStates for the activities of the contras took various forms overthe years, such as logistic support, the supply of informationon the location and movements of the Sandinista troops, theuse of sophisticated methods of communication, etc. Theevidence does not however warrant a finding that the UnitedStates gave direct combat support, if that. is taken to meandirect intervention by United States combar forces.

The Court has to determine whether the :relationship of thecontras to the United States Government was such that itwould be right to equate the contras, for legal purposes, withan organ of the United States Government, or as acting onbehalf of that Government. The Court considers that the evi-dence available to it is insufficient to derr~onstrate he totaldependence of the contras on United States aid. A partialdependency, the exact extent of which the Court cannotestablish, may be inferred from the fact that the leaders wereselected by the United States, and from other factors such asthe organization, training and equipping of the force, plan-ning of operations, the choosing of targets and the opera-tional support provided. There is no clear evidence that theUnited States actually exercised such a degree of control as tojustify treating the.contrasas acting on its behalf.

5. Having reached the above conclusion, the Court takesthe view that the contras remain responsible for their acts, inparticular the alleged violations by them of humanitarianlaw For the United States to be legally responsible, it wouldhave to be proved that that State had effective control of the

operations in the course of which the alleged violations werecommitted.

6. Nicaragua has complained of certain measures of aneconomic nature taken against it by the Gc~vernment f theUnited States. which it regards as an indirect form of inter-vention in its internal affairs Economic aid was suspended inJanuary 1981, and tenninated in April 1981; the UnitedStates acted to oppose or block loans to Nictuagua by interna-tional financial bodies; the sugar import quota from Nicara-gua was reduced by 90 percent in September 1983; and a totaltrade embargo on Nicaragua was declared by an executiveorder of the President of the United States on 1 May 1985.

Vm The conduct of Nicaraguaparas. 126-171)

The Court has to ascertain, so far as possilde, whether theactivities of the United States complained of, claimed to havebeen the exercise of collective self-defence, :may be justifiedby certain facts attributable to Nicaragua.

1. The United States has contended that Nicaragua wasact ively supporting armed groups operating in certain of theneighbouring countries, particularly in El Salvador, and spe-cifically in the form of the supply of a m , ,an accusationwhich Nicaragua has repudiated. The Cow: first examinesthe activity of Nicaragua with regard to El Salvador.

Having examired various evidence, and taking account ofa number of concordant indications, many of which wereprovided by Nicaragua itself, from which the Court can tea-sonably infer the provision of a certain amount of aid fromNicaraguan territory, the Court concludes that support for thearmed opposition in El Salvador from Nicaraguan territorywas a fact up to the early months of 1981. Subsequently, evi-Qnce of military. aid from or through Nicaragua remainsvery weak, despite the deployment by the United States inthe region of extensive technical monitoring resources. TheCourt cannot however conclude that no transport of or trafficin arms existed. It merely takes note that the allegations ofarms traffic are not solidly established, and has not been ableto satisfy itself that any continuing flow on a significant scaletook place after the early months of 1981

Even supposing it were established that military aid wasreaching the armed opposition in El Salvador from the tem-tory of Nicaragua, it still remains to be proved that such aid isimputable to the authorities of Nicaragua, which has notsought to conceal the possibility of weapons crossing its ter-ritory, but denies that this is the result of any deliberate offi-cial policy on its ]part. Having regard to the circumstancescharacterizing this part of Central America, the Court con-siders that it is scarcely possible for Nicaragua's responsibil-ity for arms traffic on its temtory to be automaticallyassumed. The Co~lrt onsiders it more consistent with theprobabilities to recognize that an activity of that nature, if ona limited scale, ma:y very well be pursued unknown to the ter-ritorial government. In any event the evidence is insufficientto satisfy the Court that the Government of Nicaragua wasresponsible for any flow of arms at either period.

2 The United States has also accused Nicaragua ofW i g responsible for cross-border military at tac h on Hon-duras and Costa Rka. While not as fully informed on thequestion as it would wish to be, the Court considers as estab-lished the fact that certain trans-border military incursionsare imputable to th Government of Nicaragua.

3. The Judgment recalls certain events which occurredat the time of the fd1 of President Somoza, since reliance hasbeen placed on them by the United States to contend that thepresent Govemeut of Nicaragua is in violation of certainalleged assurances given by its immediate predecessor. TheJudgment refers in particular to the Plan to secure peacesent on 12 July 1979 by the Junta of the Government oNational Reconstni~ction of Nicaragua to the Semetary-General of the OAS, mentioning, inter alia, its firm inten-tion to establish full observance of human rights in our coun-try and to call the first free elections our counwy hasknown in this century . The United States considers that ithas a special responsibility regarding the implementation ofthese commitments.

IX he applicable law: customary international lawp a . 72-182)

The Court has reached the conclusion (section V, i n wthat it has to apply the multilateral treaty reservation in theUnited States declaration, the consequential exclusion ofmultilateral treaties being without prejudice either to othertreaties or other sources of law enumerated in Article 38 ofthe Statute. In order to determine the law actually to beapplied to the dispute, it has to ascertain he consequences ofthe exclusion of the applicability of the multilateral treatiesfor the definition of the content of the customary intema-tiond law which remains applicable.

The Court, which h s already commented briefly on thissubject in the jurisdiction phase (I.C.J. Reports 1984, pp


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424 and 425, para. 73). devr:lops its initial .remarks. It doesnot consider that it can be claimed, as the United States does,that all the customary rules which may be invoked have acontent exactly identical to Bhat of the rules contained in thetreaties which cannot be applied by virtue of the UnitedStates reservation. Even if a treaty norm rind a customarynorm relevant to the present dispute were to have exactly thesame content, this would not be a reason for the Court to takethe view that the operation of the treaty process must neces-sarily deprive the customaqr norm of its separate applicabil-ity. Consequently, the Court is in no way 'bound to upholdcustomary rules only in so :Far as they differ from the treatyrules which it is prevented by the United States reservationfrom applying.

In response to an argumemt of the United States, the Courtconsiders that the divergence between the content of the cus-tomary norms and that of tht: treaty law nornls is not such thata judgment confined to the field of customary internationallaw would not be susceptible of complianu: or execution bythe parties.

X The content of the app licable law(paras. 183 to 225)

1. Introduction: genenzl observatio ns(paras. 183-186)

The Court has next to cctnsider what are: the rules of cus-tomary law applicable to the present dispute. For this pur-pose it has to consider whether a customary rule exists in theopinio uris of States, and satisfy itself that it is confirxned bypractice.

2. i? e prohibition of the use of forc e am ? he right ofself-defence(paras. 187 to 201)

The Court finds that balth Parties take the view that theprinciples as to the use of force incorporated in the UnitedNations Charter correspond, in essentials, to those found incustomary intemational law. They therefore accept a treaty-

law obligation to refrain in, their international n:lations fromthe threat or use of force t~gainst he territorial integrity orpolitical independence of ;any State, or in any other mannerinconsistent with the purposes of the United Nations Art. 2para. 4, of the Charter). The Court has however to be satas-fied that there exists in customary law an opinio jurisas to thebinding character of such abstention. It considers that thisopinio uris may be deduoed from inter alia the attitude ofthe Parties and of States towards certain General Assemblyresolutions, and particularly resolution 2625 (YXV) entitled

Declaration on Principles of Intanationill Law concerningFriendly Relations and Co-i~peration mong Staks in Accord-ance with the Charter of the United Nations . Consent tosuch resolutions is one of the forms of expression of anopinio uris with regard tc~ he principle of non-use of force,regarded as a principle of ~:ustomary ntennational law, inde-

pendently of the provisiotls, especially those of an institu-tional kind, to which it is subject on the treaty-law plane ofthe Charter.

matter of customary international law, agree in holding thatwhether the response to an attack is lawful depends on theobservance of the criteria of the necessity and the pmportion-ality of the measures taken in self-defence.

Whtsther self-defence be individual or collective, it canonly be exercised in response to an armed attack . In theview of the Court, this is to be understood as meaning notmerely action by regular armed forces across an internationalborder, but also the sending by a State of armed bands on to

the territory of another State, if such an operation, because ofits scale and effects, would have been classified as an armedattack had it been carried out by regular rumed forces. TheCourt quotes the definition of aggression annexed to GeneralAssembly resolution 33 14 XXIX) as expressing customarylaw in this respect.

The Court does not believe that the concept of armedattack includes assistance to rebels in the form of the provi-sion of weapons or logistical or other support. Furthermore.the Court finds that in customary international law, whetherof a gc:neral kind or that particular to the inter-American legalsystem, there is no rule permitting the exercise of collectiveself-defence in the absence of a request by the State which isa victim of the alleged attack, this being additional to therequirement that the State in question should have declareditself to have been attacked.

3. The principle of non-intervention(paras. 202 to 209)

The principle of non-intervention involves the right ofevery sovereign State to conduct its affairs without outsideinterference. Expressions of an opinio uris of States regard-ing the existence of this principle are numerous. The Courtnotes that this principle, stated in its own jurisprudence, hasbeen refiected in numerous declarations and resolutionsadopted by international organizations and conferences inwhich the United States and Nicaragua have participated.The text thereof testifies to the acceptance by the UnitedStates and Nicaragua of a customary principle which has uni-versal applichtion. As to the content of the principle in cus-tomary law, the Court defines the constitutive elementswhich appear relevant in thk case: a prohibited interventionmust be one bearing on matters in which each State is permit-ted, t ~ yhe principle of State sovereignty, to decide freely (forexample the choice of a political, economic, social and cul-tural system, and formulation of foreign policy). Interven-tion is wrongful when it uses, in regard to such choices,methods of coercion, particularly force, either in the d i i tform of military action or in the indirect form of support forsubversive activities in another State.

With regard to the practice of States, the Court notes thatthere have been in recent years a number of instances of for-eign intervention in one State for the benefit of forcesopposed to the government of that State. It concludes that thepractice of States does not justify the view that any generalright of intervention in support of an opposition withinanother State exists in contemporary international law; andthis is in fact not asserted either by the IJnited States or byNicaragua.

The general rule ~rohit~iting orce established in custom- 4, Collective counter-measures in response to conductry law allows for certain exceptions. The exception of the not amounting to armed attack

right of individual or colbctive self-defence is also, in theview of States. establishetl in customarv law. as is avvarent

(paras. 210 and 211)or example f;om the terms of ~ r t i c i e 1 .of the-Onited The Court then considers the question whether, if one

Nations Charter, which n:fers to an inherent right , and State acts towards another in breach of the principle of non-from the declaration in resolution 2625 (2aV). The Parties, intervention, a third State may lawfully takeaction by way ofwho consider the existence of this right to be established as a counter-measures which would amount to an intervention in


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the first State's internal affairs. This woulld be analogous tothe right of self-defence in the case of anned attack, but theact giving rise to the reaction would t less grave, notamounting to armed attack. In the view of the Court, underinternational law in force today, States do not have a right of

collective armed response to acts which do not constitutean armed attack .

5. State sovereignty(paras. 212 to 214)

'hrning to the principle of respect for State sovereignty,the Court recalls that the concept of sovereignty, both intreaty-law and in customary international law, extends to theinternal waters and temtorial sea of every tate and to the air-space above its territory. It notes that the hying of mines nec-essarily affects the sovereignty of the coasltal State, and thatif the right of access to ports is hinderedl by the laying ofmines by another State, what is infringed is the freedom ofcommunications and of maritime commerce.

6. Humanitarian law(paras. 215 to 220)

The Court observes that the laying of mines in the watersof another State without any warning or ilotification is notonly an unlawful act but also a breach of the principles ofhumanitarian law underlying the Hague Convention No.WII of 1907. This consideration leads the Court on to exam-ination of the international humanitarian l.aw applicable tothe dispute. Nicaragua has not expressly ixlvoked the provi-sions of international humanitarian law as such, but has com-plained of acts committed on its territory which would appearto be breaches thereof. In its submissions it has accused theUnited States of having killed, wounded and kidnapped citi-zens of Nicaragua. Since the evidence avidlable is insuffi-cient for the purpose of attributing to the United States theacts committed by the contras, the Court rejiects this submis-sion.

The question however remains of the law applicable to theacts of the United States in relation to the activities of thecontras. Although Nicaragua has refrained .from referring tothe four Geneva Conventions of 12 Augus~: 949, to whichNicaragua and the United States are parties;, the Court con-siders that the rules stated in Article 3, which is common tothe four Conventions, applying to armed ccwflicts of a non-international character, should be applied. The United Statesis under an obligation to respect the Conventions and evento ensure respect for them, and thus not to encourage per-so s or groups engaged in the conflict in Ni1:aragua to act inviolation of the provisions of Article 3. This obligationderives from the general principles of humanitarian law towhich the Conventions merely give specific expression.

7 The 956 treaty(paras. 22 1 to 225)

n its Judgment of 26 November 1984, the Court con-cluded that it had jurisdiction to entertain claims concerningthe existence of a dispute between the United States and Nic-aragua a to the interpretation or application of a number ofarticles of the treaty of Friendship, Commerce and Naviga-tion signed at Managua on 21 January 1956. It has to deter-mine the meaning of the various relevant provisions, and inparticular of Article XXI paragraphs 1 (c ) and 1 4, ywhich the parties reserved the power to derogate from theother provisions.

XI Application of the law to the facts(paras. 226 to 282)

Having set out the facts of the case and the ules of intema-tional law which appear to be in issue as a result of thosefacts, the Court has now to appraise the facts in relation to thelegal rules applicable, and determine whether there arepresent any circu~mstances xcluding the unlawfulness ofparticular acts.

1. The prohibition of the use of force and the right ofself-defence(paras. 227' to 238)

Appraising the facts first in the light of the principle of thenon-use of force, the Court considers that the laying of minesin early 1984 and certain attacks on Nicaraguan ports, oilinstallations and naval bases, imputable to the United States,constitute infringements of this principle, unless justified bycircumstances which exclude their unlawfulness. It also con-siders that the United States has committed a prima facie vio-lation of the principle by arming and training the contras,unless this can be justified as an exercise of the right of self-defence.

On the other hand, it does not consider that militarymanoeuvres held by the United States near the Nicaraguanborders, or the supply of funds to the contras, amounts to ause of force.

The Court has to consider whether the acts which it regardsas breaches of the principle may be justified by the exerciseof the right of collective self-defence, and has therefore toestablish whether the circumstances required are present. Forthis, it would first have to find that Nicaragua engaged in anarnned attack against El Salvador, Honduras or Costa Rica,since only such an a&tack could justify reliance on the right ofse lf defence. As re:gards El Salvador, the Court considersthat in customary international law the provision of arms tothe opposition in another State does not constitute an armedattack on that State. As regards Honduras and Costa Rica, theCourt states that, in the absence of sufficient infinmation asto the transborder incursions into the territory of those twoStates from Nicaragua, it is difficult to decide whether theyamount, singly or collectively, to an armed attack by Nicara-gua. The Court finds that neither these incursions nor thealleged supply of arms may be relied on as justifying theexercise of the right of collective self-defence.

Secondly, in order to determine whether the United Stateswas justified in exercising self-defence, the Court has toascertain whether the circumstances required for the exerciseof this right of collective self-defence were present, andtherefore considers whether the States in question believedthat they were the viictims of an anned attack by Nicaragua,and requested the assistance of the United States in the exer-cise of collective selfdefence. The Court has seen no evi-dence that the conduct of those States was consistent withsuch a situation.

Finally, appraising the United States activity in relation tothe criteria of necessity and proportionality, the Court cannotfind that the activities in question were undertaken in the lightof necessity, and finds that some of them cannot be regardedas satisfying the criterion of proportionality.

Since the plea of collective self-defence advanced by theUnited States cannot be upheld, it follows that the UnitedStates has violated the principle prohibiting recourse to thethreat or use of force by the acts referred to in the first para-graph of this section.


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2. The principle of non-i ?~tervention(paras. 239 to 245)

The Court finds it clearly established that the United Statesintended, by its support of th contras to ccerce Nicaraguain respect of matters in which each State is permitted todecide freely, and that the intention of the contras themselveswas to overthrow the present: Government of Nicaragua. Itconsiders that if one State, with a view to the coercion ofanother State, supports and assists armed bands i m that Statewhose purpose is to overthrow its government, that amountsto an intervention in its internal affairs, whatever the politicalobjective of the State giving support. It therefore finds thatthe support given by the United States to the military andparamilitary activities of the contras in Nicaragua, by finan-cial support, training, supply of weapons, intelligence andlogistic support, constitutes n clear breach of the principle ofnon-intervention. Humanimiian aid on the other hand cannotbe regarded as unlawful intervention. With effect from 1October 1984, the United States Congress h~as estricted theuse of funds to humanitarian assistance to the contras.The Court recalls that if the provision of humanitarianassistance is to escape conclemnation s a11 intervention inthe internal affairs of another State, it must be limited to thepurposes hallowed in the practice of the Red Cross, andabove all be given without discrimination.

W~th egard to the form of indirect intervention which Nic-aragua sees in the taking of certain action of a economicnature against it by the United States, the Court is unable toregard such action in the pre::sent case s a breach of the cus-tom ry law principle of nomintemention.

3. Collective counter-measures in response to conductnot amounting to arm ed attack(paras. 246 to 249)

Having found that intervention in the internal affairs ofanother State does not produce an entitlement to take collec-tive counter-measures involving the use of force, the Courtfinds that the acts of which Nicaragua s accused, evenassuming them to have been established and imputable tothat State, could not justify counter-measures aken by a third

State, the United States, and particularly could not justifyintervention involving the use of force.

4 State sovereignty(paras. 250 to 253)

The Court finds that the assistance to the contras thedirect attacks on Nicaragua1 ports, oil installations, etc., themining operations in Nicaraguan ports, andl the iicts of inter-vention involving the use 13f force referred to in the Judg-ment, which re already a breach of the principle of non-useof force, are also an infringement of the principle of respectfor temtorial sovereignty. This principle is also directlyinfringed by the unauthorized overflight of Nicaraguan tem-tory. These acts cannot be justified by the activities in El Sal-vador attributed to Nicaragua; assuming that such activitiesdid in fact occur, they do not bring into effect any rightbelonging to the United States. The Court also concludesthat, in the context of the plEsent proceedi~ngs, he laying ofmines in or near Nicaraguan ports constitutes an infringe-ment, to Nicaragua's detrin~~ent, f the freetiom of communi-cations and of maritime coInmerce.

5. Humanitarian law(paras. 254 to 256)

The Court has found the United States nzsponsible for thefailure to give notice of the mining of Nicaraguan ports.

It has also found that, under general principles of humani-tarian law, the United States was bound to refrain fromencouragement of persons or groups engaged in the conflictin Nicaragua to commit violations of common Article 3 ofthe four Geneva Conventions of 12 August 1949. The man-ual on Psychological Operations in Guemlla Warfare , forthe publication and dissemination of which the United Statesis responsible, advises certain acts which1 cannot but beregarded as contrary to that article.

6. Other grounds mentioned in justifcation of the actsof the United States(paras. 257 to 269)

The United States has linked its support to the contras withalleged breaches by the Government of Nicaragua of certainsolemn commitments to the Nicaraguan people, the UnitedStates and the OAS. The Court considers whether there isanythi~tg n the conduct of Nicaragua which might legallywarrant counter-measures by the United States in response tothe alleged violations. With reference to the Plan to securepeace put forward by the Junta of the Government ofNational Reconstruction (12 July 1979). the Court is unableto find anything in the documents and communications trans-mitting the plan from which it can be inferred that any legalundertaking was intended to exist. The Court cannot contem-

plate the creation of a new rule opening up a right of interven-tion by one State against another on the ground that the latterhas opted for some particular ideology or political system.Furthermore the Respondent has not advanced a legal argu-ment based on an alleged new principle of ideological inter-vention .

~th egard more specifically to alleged violations ofhuman rights relied on by the United States, the Court con-siders that the use of force by the United States could not bethe appropriate method to monitor or ensure respect for suchrights, normally provided for in the applicable conventions.W~th egard to the alleged militarization of Nicaragua, alsoreferred to by the United States to justify its activities, theCourt obse ms that in international law there re no rules,other than such rules as may be accepted by the State con-cerned, by treaty or otherwise, whereby the level of

arma-ments of a sovereign State can be limited, and this principleis valid for all States without exception.

7 The I9 6 Treatyparas. 270 to 282)

The: Court turns to the claims of Nicaragua based on the7keaty of Friendship, Commerce and Navigation of 1956,and the claim that the United States has deprived the 'Ifeatyof its object and purpose and emptied it of real content. TheCourt cannot however entertain these claims unless the con-duct complained of is not measures necessary to pro-tect the essential security interests of the United States,since Article XXI of the 'Ifeaty provides that the 'Ifeaty shallnot preclude the application of such measures. With regard tothe question what activities of the United States might havebeen such as to deprive the 'Ifeaty of its object and purpose,the Cw rt makes a distinction. It is unable to regard all theacts complained of in that light, but considers that there recertain activities which undermine the whole spirit of theagreement. These re the mining of Nicaraguan ports, thedirect attacks on ports, oil installations, etc:. nd the generaltrade embargo.

The Court also upholds the contention ahat the mining ofthe ports is in manifest contradiction with the freedom ofnavigation and commerce guaranteed by Article XIXof the


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Treaty. It also concludes that the trade embargo proclaimedon 1 May 1985 is contrary to that article.

The Court therefore finds that the United States is primafacie in breach of an obligation not to deprive the 1956 Iieatyof its object and purpose @acta sunt servatrda ,and has com-mitted acts in contmdiction with the terms of the Treaty. TheCourt has however to consider whether the exception in Arti-cle XX concerning "measures necessary to protect theessential security interests" of a Party may be invoked to jus-tify the acts complained of. After examining the availablematerial, particularly the Executive OIder of PresidentReagan of 1 May 1985, the Court finds that the mining ofNicaraguan ports, and the direct attacks on ports and oilinstallations, and the general trade embargo of 1 May 1985,cannot be justified as necessary to protect the essential secu-rity interests of the United States.

XII. The cluimfor reparation(paras. 283 to 285)

The Court is requested to adjudge and declare that compen-sation is due to Nicaragua, the quantum thereof to be fixedsubsequently, and to award to Nicaragua the sum of 370.2million US dollars s an interim award. After satisfying itselfthat it has jurisdiction to order reparation, l.he Court consid-ers appropriate the request of Nicaragua for the nature and

amount of the reparation to be determined in a subsequentphase of the proceedings. It also considers that there is noprovision in the Statute of the Court either specificallyempowering it or debarring it from making n nterim awardof the kind requested. In a case in which one Party is notappearing, the Court should refrain from any unnecessary actwhich might prove an obstacle to a negotiated settlement.The Court therefore does not consider that it can accede atthis stage to this request by Nicaragua.

XIII. The provisional measures(paras. 286 to 289)

After recalling certain passages in its Order of 10 May1984, the Court concludes that it is incumbent on each Partynot to direct its conduct solely by reference tot what it believes

to be its rights. Particularly is this so in a situation of armedconflict where no reparation can efface the re:sults of conductwhich the Court may rule to have been contrary to interna-tional law.

XIV Aaceful settlement of disputes; the Contadora pro-cess(paras. 290 to 29 1)

In the present case the Court has already ulken note of theContadora process, and of the fact that it hadl been endorsedby the United Nations Security Council and General Assem-bly, as well as by Nicaragua and the United States. It recallsto both Parties to the present case the need to co-operate withthe Contadora efforts in seeking a definitive aid lasting peacein Central America, in accordance with the principle of cus-

tomary international law that prescribes the peaceful settle-ment of international disputes, also endorsed I>y Article 33 ofthe United Nations Charter.

SUMMARY F TH OPINIONS APPENDED TOTHE UDGMENT TH COURT

Separate Opinion of Judge Nagendra Singh,President

adopted unanimously by the Court which enjoins parties toseek a peaceful sollution of their disputes in accordance withinternational law really rests on the due observance of twobasic principles: namely that of non-use of force in inter-State relations and that of non-intervention in the affairs ofother States. This In the President's view is the main thrust ofthe Judgment of the Court rendered with utmost sincerity toserve the best interests of the community.

In fact, the card,inal principle of non-use of force in inter-national relations has been the pivotal point of a time-

honoured legal philosophy thath s

evolved particularly afterthe two world wars of the current century. The Charter provi-sions s well s the Latin American Treaty System have notonly developed tht: concept but strengthened it to the extentthat it would stand on its own, even if the Charter and theTreaty basis were held inapplicable in this case. The obviousexplanation is that the original customary aspect which hasevolved with the treaty law development has come now tostay and survive as; the existing modern concept of interna-tional law, whether customary, because of its origins, or "ageneral principle o12intemational aw recognized by civilizednations". The contribution of the Court has been to empha-size the principle on-use of force s one belonging tothe ealm of us cogens and hence as the very cornerstone ofthe human effon to promote peace in a world tom bystrife. Force begets force and aggravates conflicts, embit-ters relations and endangers peaceful resolution of the dis-pute.

There is also the key doctrine of non-intervention in theaffairs of States which is equally vital for the peace andprogress of humanity being essentially needed to promote thehealthy existence of the community. The principle of non-intervention is to be mated as a sanctified absolute rule oflaw.

States must observe both these principles namely that ofnon-use of force and' that of non-intervention in the best inter-ests of peace and c&r in the community. The Court hasrightly held them both as principles of customary interna-tional law although sanctified by treaty law, but applicable inthis case in the former customary manifestation having beenreinvigorated by being further strengthened by the expfessconsent of States particularly the Parties in dispute here. Thismust indeed have all the weight that law could ever commandin any case.

The decision of tire Court is in the result of a collegiateexercise reached after prolonged deliberation and a fullexchange of views of no less than fifteen Judges who, work-ing according to the Statute and Rules of the Court, haveexamined the legal arguments and all the evidence before it.In this, as in all other cases, every care has been taken tostricltly observe the procedures prescribed and the decision isupheld by a clear majority. What is more, the binding charac-ter ofthe Judgment under the Statute (Art. 59) is made sacro-sanct by a provision of the U Charter (Art. 94): all Mem-bers of the United Nations have undertaken an obligation tocomply with the Court's decisions addressed to them and toalways respect the validity of the Judgment.

Separate Opinion of Judge Lachs

Judge Lachs begins by drawing attention to the require-ments of the Statute in respect of the personal qualities anddiversity of origin that must characterize Members of theCow , and deprecates any aspersion upon their in&pen-denco.

The operative part of paragraph 292 (16) of the Judgment On the substance ofthe Judgment he would have prefernd

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more attention to be given to foreign assistance to the opposi- Separate O pinion of Judge Eliastion forces in El Salvador, and different f~ rm ul ae o have

Judge considem that, following the Court,s Judg-been used in various places.ment in the jurisdictional phase, the multilateral treaty reser-

Judge hc h s returns to solne aspects of jurisdiction, con- vation attached to the United States declaration acceptingsidering that insufficient weight had previously bexn given to jurisdiction under the Optional Clause was left in abeyancethe forty years that had ela~lsed efore any public objection and had no further relevance unless El Salvador, Honduras orhad been raised against the validity of Nicaragua's accept- costa Rita intervened in the phase on merits and reparation.

of the Court's jurisdiction. When that validity had been For the Court to have applied it was therefore incorrect andprivately questioned in ~0 nne ~t i0 n ith a case in the mid- tantamount to invoking a power t revise its &cision on

1950's, action should have been taken by the: United Nations: jurisdiction and admissibility on behalf of ~~on-parties o theNicaragua should have been asked to complete any necessary case.formalities and, if it failed to do so, would have beenremoved from the list of States subject to the compulsory Separate Opinion of Judge Agojurisdiction of the Court. The United Nations having takenno action, it was legitimate to view the imperfection as cured While subscribing to the Judgment as a whole and aPProv-by acquiescence over a very long period. The jurisdiction of ing in particular the position adopted by the Court COncern-the Court based on the FCN Treaty of 1956 I;ave no cause for ing the United States' multilateral treaty reservation, Judgedoubt. Ago remains hesitant about certain points. For example, he

feels that the Court made a somewhat too hasty finding as tJudge Lachs also deals wiith the question of the justiciabil- the quasi-identity of between customary intema-ity of the case: the close relationship between legal and polit- tional law and the law enshrined in certain major multilateralical disputes, as between law and politics. :lnter~~ational aw maties of universal character and was also somewhat tootoday covers such wide areas of international relations that rcsdy to see the endorsementof certain principlesby U ndOnly very few domains--f0r the problem of OAS resolutions as proof of the presence of those principlesdisarmament, or others, s~ecifically xcluded by States- in the opiniojur s of members of the international cornmu-are not justiciable. He spe~:ifically instances the case con- nity. Judge Ago also feels obliged to draw attention t whatceming United States Dip10matic and C onsular Sta s in he views as some con~adictory of theTehran. Court's assessment of the factual and legal situation. He fur-

Refemng to the Court's refusal to grant a hearing to El Sal- ther considers that some passages of the jludgnient show avador at the jurisdictional smge, Judge La ~ hs tates that he paucity of legal reasoning to support the Court's conclusionshas come to view it as a judlicial error which d a : ~ ot, how- as to the imputability of certain acts to the: Respondent quaever, justify any unrelated conclusions. acts giving rise to international responsil~ility, nd would

The broad confrontation between the m e s should, in have preferred t see the Court include a more explicit confir-Judge Lachs's view, be settled within the framc:work of the mation of its case-law on this subject.Contadora Plan, in co-operation with all States of the region.The area, tom by conflicts, suffering frorn untler-develop- Separate Opinion of Judge Sette Camarament for a long time, requim a new approach based on equal ~~d~~ sette-camaraully concurs with the ~~d~~~~~consideration of the interests of all concerned in the spirit of because he firmly believes that the non-use of force as wellgood-neighburly relations. as non-intervention he latter as a corollary of equality of

States and self-determination-are not only cardinal princi-Separate O piluionof Judge Ruda ples ustomary international law but could in addition be

recognized as peremptory rules of customary internationalThe Separate Opinion of Judge h d a deids with four Sub- law which impose obligations on all States . His separate

jects In the first place, Judge Ruda does not acC(3pt the reser- opinion deals only with subpara&raph (1) of the operativevation expressed by the United States in the letter dated 18 part, against which he has voted. He maintains that the multi-January 1985 in respect of any decisi13n by the Court lateral treaty reservation, appended to the IJnited States 1946regarding Nicaragua's clainns In Judge Ehda's view, pur- Decimation of Acceptance of the Jurisdiction of the Courtsuant to Article 94, paragral?h 1, of the Charter of the United according to Article 36, paragraph 2 of the Statute, cannotNations, the Member Stater; of the United Nations have for- be applied to the present case, since none: of the &cisionsrnally accepted the obligation to comply with the Court's taken in the operative part can in any way affect thirddecisions. States, and in particular El Salvador. The case is between

s he second part of the (:)pinion refers to the Vandenberg Nicaragua and the United States and the binding force of theAmendment. Judge Ruda voted against the application of the Court's decision is confined to these mV0 Parties. JudgeAmendment, for the reasorls stated in the separate Opinion Sette.~~amara ecognizes the right of any State making Dee-which he submitted in 1984. larations of Acceptance to append to them whatever reserva-

tions it deems fit. However, he contends that th Court isn the third part, Judge Ruda deals wit the question of free and indeed bound, to interpret those reservations. He

self-defence. He explains that his conclusic~ns re the same as regretsthat the application of the multilateral reaty reservathose reached by the Court, but in his view it is not necessary tion debarred the courtrom resting the ~~d~~~~~ n the pro-to enter into all the factual details, because assistance to visions of the charter of the u n i ~ ~~i~~~ nd the chapterrebels is not per se a pretext for self-defence from the legal the organization of American states, nd forced it topoint of view. resort only to principles of customary international law and

The fourth part is devoted to the reasons why Judge Ruda, the bilateral m a t y of Friendship, Comme~ce nd Navigationdespite having voted in 1984 against the Treaty of Friend- of 1956. He submits that the law applied1 by the Judgmentship, Commerce and Navigation as a basis of the Court's would be clearer and more precise if the Court had =sorted tojurisdiction, believes he is bound to vote on the substantive the specific provisions of the relevant multilateral conven-issues submitted to the Court on this subject. tions.

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Separate O pinion of Judge I Dissenting O pinion of Judge Schwebel

Judge Ni's primary concern, as expres5e.d in his separate Judge Schwebel dissented from the Court's Judgment onopinion, is with respect to the multilaters~l reaty reserva- factual and legal gmunds. He agreed with the Court in itstion invoked by the United States. In his view, any accept- holdings against the United States for its failure to makeance of its applicability entailed (1) the exclusion of the nown he existence and location of mines laid by it and itsCourt from exercising jurisdiction insofar as Nicaragua's causing the publication of a manual advocating acts in viola-claims were based on the multilateral treaties in question, tion of the law of war. But Judge Schwebel concluded thatand 2) the preclusion, if the case was on other grounds still the United States essentially acted lawfully in exerting armedin the Court for adjudication of the merits, ad the application pressures against Nicaragua, both directly and through itsof such multilateral treaties. In the instant case, however, the support of the conpas because Nicaragua's prior and sus-United States, while invoking the multilatenal treaty reserva- tained support of armed insurgency in El Salvador was mt a -tion to challenge the exercise of jurisdictialn by the Court, mount to an armed attack upon El Salvador against which thehad in the meantime persistently claimed that the multilateral United States could react in collective self-defence in El Sal-treaties, which constitute the very basis of' its reservation, vador's support.Should done be applied to the Case in dispute. That claim Judge Schwebel found that, since 1979 Nicaragua hadamounted in effect to a negation of its own :reservation and, assisted and persistt:d in providing large-scale, vital assist-taking into account all the relevant circumshnces, to ance to the insurgents in El Salvador. The delictual acts ofhave been considered as a waiver of the IIlultilat~l reaty Nicaragua had not been confined o providing the Salvadoranreservation. Such being the case, Judge Ni differed from the ,hi s with large qurlntities of arms, munitions and supplies,majority of the Court in that he considered that the IUleS Con- which of themselves arguably might be seen as not m t a -tained in multilateral treaties, as well as cus.tomary interna- mount to 4 attack. ~i~~~~~~ had also joined with thetional law, should, where appropriate, have been applied to Salvadoran rebels in the organization, planning and trainingthe case. for their acts of insurgency, and had provided them with

command-and-contnol facilities, bases, communications andDissenting Opinion of Judge Otda sanctuary which enitbled the leadership of the Salvadoran

Judge Oda agrees with the Court's reclognition of therebels to operate from Nicaraguan temtory. That scale of

applicability of the multilateral treaty proviso attached to the assismce, in Judge: Schwebel's view, was legally mt a -United States* 1946 declaration but consi&rs that, having mount to an armed attack. Not only was El Salvador entitledthus decided that the dispute had arisen under a multilateral to defend itself agirist that armed attack, it had called upontreaty, it should have ceased to entertain tht: application of the IJnited States to assist it in the exercise of collective self-Nicaragua on the basis of that declaration. The Court had defence. The United States Was entitled to do SO, throughbeen wrong to interpret the exclusion of the dispute by that measures overt or cC1vert. Those n~easures ould be exertedproviso as merely placing restrictions upon the sources of not only in El Salvador but against Nicaragua on its own ter-law to which it was entitled to refer. ritory.

Judge Oda further believes that, to the extent that the Nica- In Judge Schwebell's view, the Court's conclusion that theraguan claims presupposed the Court's jurisdiction under Nicaraguan Governnlent was not responsible for any flowdeclarations made pursuant to Article 36 (2) of the Statute, of arms to the hlviadoran insurgents was not sustained bywhich refers to legal disputes , they shcluld have been judicial or judicious considerations. The Court haddeclared non-justiciable, since the dispute was not legal excluded, discounted and excused the unanswerable evi-within the meaning and intention of that clause or, even if it dence of Nicaragua's major and maintained intervention inwere, it was not one that the Court could pro;perly entertain: the Salvadoran insurgency . Nicaragua's intervention in Elas a political dispute, it was more suitable fcr resolution by Salvador in support of the &lvadoran insurgents was, Judgeother organs and procedures. Moreover, the facts the Court Schwebel held, admitted by the Resident of Nicaragua,could elicit by examining the evidence in the absence of the affirmed by Nicaragua's leading witness in the case, and con-Respondent fell far short of what was needed to show a com- finne by a comuc~pia f co~b ora tion .plete picture. Even if, contrary to his view, Nicaragua's actions in sup-

Judge Oda thus considers that, in so far as the Court could port of the Salvadomn insurgency were not viewed as tanta-properly entertain the case, it could do so on the basis of Arti- mourlt to an armed attack, Judge Schwebel concluded thatcle 36 (1) of the Statute, where the term all matters specially they undeniably constituted unlawful intervention. But theprovided for in treaties in force gave no such Court, remarkably enough , while finding the Unitedgrounds for questioning the legal nature of the dispute. States responsible for intervention in Nicaragua, failed toThe Court could therefore legitimately examine any breach recognize Nicaragua's prior and continuing intervention inof the concrete terms of the 1956 Treaty of Fri~endship, Com- El Salvador.merce and Navigation. In Judge Oda's view, the mining of For United States nleasures in collective self-defence t bethe Nicaraguan Ports had ~onstituted uch a breach, for lawful, they must be necessary and proportionate. In Judgewhich the United States had incurred responsibility.

Schwebel's view, it was doubtful whether the question ofJudge Oda emphasizes that his negative votes on many necessity in this case .was justiciable, because the facts werecounts of the Judgment must not be interpreted as implying so indeterminate, depending as they did on whether meas-that he is opposed to the rules of law concerning the use of ures not involving the use of force could succeed in termi-force or intervention, of whose violation the United States nating Nicaragua's intervention in El Salvador. But it couldhas been accused, but are merely a logical consequence of his reasonably be held that the necessity of those me asws wasconvictions on the subject of jurisdiction under Article 36 2) indicated by persistent Nicaraguan failure to cease armedof the Statute. subversion of El Salvador .

Finally, Judge Oda regrets that the Court h~as een need- Judge Schwebel held that the actions of the United Stateslessly precipitate in giving its views on c~ollective elf- are strikingly proportiionate. The Salvadoran rebels, vitallydefence in its first Judgment to broach that subject. supported by Nicaragoa, conduct a rebellion in El Salvador;

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in collective self-defence, the United States symmetricallysupports rebels who conduct a rebellion in Nicruapa. Therebels in El Salvador pervasively attack eccmomic targets ofimportance in El Salvado~.;he United States selectivelyattacks econom ic targets of military importance in Nicara-gua.

Judge Schwebel maintained that, in contempoiary interna-tional law, the State which first intervener; with the use offorce in another State-as ~ yubstantial invo1vt:ment in thesending of irregulars onto its territory-is, p ri m facie theaggressor. Nicaragua's statusas prima facie aggressor canonly be confirmed upon examination of the facts. More-over , Judge Schwebelcc~~ncluded,Niciiragua has com-pounded its delictual behaviour by pressing false testimonyon the Court in a deliberate effort to conceal it. Accordingly,on both grounds, Nicaragua does not come before the Court

with clean hands. Judgment ints favour is thus unwarranted,and would be unwarranted even if it should be concluded-

s t should not be-that the responsive actions of the UnitedStates were unnecessary or disproportionate.

Dissenting Opin ion of Judge Sir Robert Jennings

Judge Sir Robert Jennings agreed with the Court thatthUnited States multilateral treaty reservation is valid and mustbe respected. He was unableto accept the Court's decisionthat it could, nevertheless, exercise urisdiction over the caseby applying customary law in lieu of the relevant multilateraltreaties. Accordingly, whilst able to vote in favour of certainof the Court's findings, he felt compelled10 vote against itsdecisions on the use of force, on intervention, and on thequestion of self-defence, because in his view the Court waslacking jurisdiction to decide those matters.

3. nicaragua v us

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