military and paramilitary activities in and against nicaragua

8/3/2019 Military and Paramilitary Activities in and Against Nicaragua

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CASE CONCERNING THEMILITARY AND PARAMILITARYACTIVITIESIN ANDAGAINST 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 the United States of America,the Courtwas composed as follows:Resident Nagendra Singh; Vice-Resident dl: Lacharriare;Judges Lachs, Ruda. Elias, Oda. Ago, Iiette-Camara,Schwebel, Sir Robert Jennings, Mbaye, Bedjaoui, Ni,Evensen, Judge adhoeColliard.

OPERATIVEPARTOF THECOURT'SUDGMENTCOURT

(1) By eleven votes to four,Decides that in adjudicating the dispute brought before itby the Application filed by the Republic of Nicaragua on 9April 1984, the Court is required to apply the "multilateralbeaty reservation" contained in proviso (c) to the declarationof acceptance of juristliction made under Article 36, para-graph 2, of theStatute of the Courtby the Government of theUnited States of Am erica deposited on 26August 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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LN FAVOUR: President Nagendra Singh; Vice-PresidentdeLacharriere; Judges Lacfns, Oda, Ago., Schwebel, SirRobert Jennings, Mbaye, Bedjaoui and Evensen;Judge adhoc Colliard;AGAINST:udges Ruda, Elias, Sette-Camara and Ni.

(2) By twelve votes to hree,Rejects the justification of collective self-defence main-tained by the United Stateself America in connection with themilitary and paramilitary ac:tivities in and against Nicaraguathe subject of this case;IN FAVOUR: President Nagendra Singh; Wce-PresidentdeLacharribre; Judges Laths, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evenren;Judge ad hocColliard;AGAINST:udges Oda, Schvvebel and Sir Rsobert Jennings.

(3) By twelve votes to tlwee,Decides that the United States of Arnica, by training,arming, equipping, financing and supplying the contraforces or otherwise encouraging, supporting and aiding mili-tary and paramilitary activilies in and against Nicaragua, hasacted, against the Republic of Nicaragua, in breach of itsobligation under customary jinternational law not to intervenein the affairs of another State;IN FAVOUR: President Nagendra Singh; Vice-president deLacharritre; Judges Laths, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evensen;Judge ad hocColliard;AGAINST:udges Oda, Schwebel and Sir Robert Jennings.

(4) By twelve votes to .three,Decides that the United States of America, by certainattacks on Nicaraguan territory in 1983-1984, namelyattacks on Puerto Sandino on 13 September anti 14 October1983; an attack on Corinto on 10 October 1.983; an attack onPotosi Naval Base on 415 January 1984; anattackon San Juandel Sur on 7 March 1984; attacks on patrol boats at PuertoSandino on 28 and30March 1984; and an attack: on San Juandel Norte on 9 April 1984; and further by those acts of inter-vention referred to in subpruagraph (3) hereof which involvethe use of force, has acted, against the Re:public of Nicara-gua, in breach of its obligation under customary internationallaw not to use force against another State;LN FAVOUR: President Negendra Singh; 'Vice-PresidentdeLachanibre; Judges Lnchs, Ruda, Ellias, Ago, Sette-Camara, Mbaye, Bedjacbui, Ni and Evenoen;Judge ad hocColliard;AGAINST:udges Oda, Schwebel and Sir Elobe~-tennings.

(5) By twelve votes to three,Decides that the United States of America, by directing orauthorizing overflights of Nicaraguan territory, and by theacts imputable to the Uni.ted States refenred to in subpara-graph (4) hereof, has acted, against the R~tpubXicof Nicara-gua, in breach of its obligation under custo:mary nternationallaw not to violate the sovereignty of anoth~a tate;IN FAVOUR: President Nagendra Singh; Vice-.PresidentdeLacharrihre; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjac~ui,Ni and Eveiisen;Judge ad hocColliard;AGAINST:udges Oda, Schwebel and Sir Robert Jennings.

(6) By twelve votes tci three,Decides that, by laying mines in the internal or territorialwaters of the Republic of Nicaragua during the first monthsof 1984, the United States of America has; acted, against theRepublic of Nicaragua, in breach of its obligations undercustomary international larw not to use f o ~ wgainst another

State, not to intervene in its affairs, not to violate its sover-eignty and not to interrupt peaceful maritime commerce;IN FAVOUR: President Nagendra Singh; Vice-PresidentdeLacharriere; Judges Lachs, Ruda, Elias, Ago, Sette-Cannara, Mbaye, Bedjaoui, Ni and Evensen;Judge ad hocColliard;AGAINST:udges 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 theReput~lic f Nicaragua, in breach of its obligations underArticleXIX of the Treaty of Friendship, Commerce and Nav-igation between the United States of America and the Repub-lic of Nicaragua signed at Managua on 21 January 1956;IN FAVOUR: President Nagendra Singh; Vice-PresidentdeLacharribre;Judges Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Sir Robert Jennings, Mbaye, Bedjaoui, Ni andEvensen;Judge ad hoc Colliard;AGAINST:udge Schwebel.

(8) By fourteen votes to one,Decides that the United States of Ameiica, by failing tomake known the existence and location of the mines laid byit, referred to in subparagraph (6) hereof, has acted in breachof its obligations under customary international law in thisrespect;IN FAVOUR: President Nagendra Singh; Vice-PresidentdeLacharribre; Judges Lachs, Ruda, Elias, Ago, Sette-Csumara, Schwebel, Sir Robert Jennings, Mbaye, Bed-jaoui, Ni and Evensen;Judge ad hoc Colliard;AGAINST:Judge Oda.

(9) By fourteen votes to one,Fir& that the United States of America, by producing in1983 a manual entitled "Operaciones sicol6gicas en guerrade guerrillas", and disseminating it to contra forces, hasencouraged the commission by them of actscontrary to gen-eral principles of humanitarian law; but does not find a a basisfor ccwcluding that any such acts which may have been com-mitted are imputable to the United States ~ imerica as actsof the: United States of America;IN FAVOUR: President Nagendra Singh; Vice-PresidentdeLacharribre; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Schwebel. Sir Robert Jennings, Mbaye, Bed-jaoui, Ni and Evensen;Judge ad hoc Colliard;AGAINST:udge Oda.

(10) By twelve votes to three,Decides that the United States of America, by the attackson Nicaraguan territory referred to in subparagraph (4)hereof, and by declaring a general embargo on trade withNicaragua on 1 May 1985, has committed acts calculated todeprive of its object and purpose the %sty of Friendship,Commerce and Navigation between the Parties signed atManagua on 21 January 1956;IN R~VOUR:President Nagendra Singh; Vice-president &Ltnchanii?re; Judges Lachs, Ruda, Elias, Ago, Sette-C'unara, Mbaye, Bedjaoui, Ni and Evensen;Judge ad hocColliard;AGAINST:udges Oda, Schwebel and Sir Robert Je~ingS.

(1 1) By twelve votes to three,Decides that the United States of America, by the attackson Nicaraguan territory referred to in subparagraph (4)hereof, and by declaring a general embargo on trade withNicaragua on 1 May 1985, has acted in bteach of its obliga-tions; under Article XIX of the Treaty of Friendship, Com-


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merce and Navigation between the Ruties signedatManagua Judgment of 26 November 1984 on the jurisdiction of theon 21 January 1956; Court and the admussibility of Nicaragua's Application, theIN FAVOUR: President Nagendra Singh; 'Vice-Presidentde United States decided not to take Part in the present phase ofLacharrihre; Judges h h s , RU&, E]ias, go, Sette- the pmeedings. 'ifhis however does not prevent the CourtCamara, Mbaye, Bedjaoui, Ni and Evensen;Judge ad hw f ~0 miving a decision in the Case, but it has to do so whileColliard; respecting the requirements of Article 53 of the Statute,AGAINST:udgesOda, schwebelndSir R~~~ Jennings. which provides for the situation when one of the parties does

(12) By twelve votes to three, not appear. TheColurt's jurisdiction being established, it hasin accordance with Article 53 to satisfy itself that the claim ofDecides that the United States of America is mder a duty the party appearing is well founded in fact and law. In thisimmediately to cease and to refrain from all such acts as may respect the Court recalls certain guiding principles broughtconstitute breaches of the foregoing legal o.bligations; out in a number of previous cases, one of which excludes anyIN FAVOUR: President Nagendra Singh; Vice-President de possibility of a judgment automatically in favour of the partyLacharribre; Judges Lachs, Ruda, Elias, Ago, Sette- appearing. It also observes that it is valuable for the Court toCamara, Mbaye, Bedjaoui, Ni and Evenrin;Judge ad hw know the views of the non-appearing parry, even if thoseColliard; views are expressed in ways not provided for in the Rules ofAGAINST:udgesOda, chwebel and Sir Robert Jennings. ~ ~ Q u T .he ~rinciplle f the equaliv of the parties has to

(13) By twelve votes to three, remain the basic principle, and the Court has to ensure thatthe party which declines to appear should not be permitted toDecides that the United States of America is under an obli- profit rom itsabseclce.gation to make reparation to the Republic of Nicaragua for allinjury caused to Nicaragua by the breaches of obligations Iy. Jwticaility ofthe dispvreunder customary international law enumerard above; (paras. 32-35)IN FAVOUR: President Nagendra Singh; Wce-PresidentdeLacharribre; Judges Lachs, Ruda, Eliiu. Ago, Sette- The Court considers it appropriate to deal with a prelimi-Camara, Mbaye, Bedjaoui, Ni and Evensen;Judge ad hoc nary question. It has been suggested that the questions of theColliard, use of force and collective self-defence raised in the case fallAGAINST: udgesOda, Schwebel and Sir ~a,ber tennings. outside the limits of the kind of questionstheCourt can&d

(14) By fourteen votes to one, with, in other words that they are not justiciable. However, inthe first place the Parties have not argued that the present dis-Decides that the United States of America is under an obli- ute is not a -legal dispute- the meaningof ~~l~gation reparation tothe RepublicofN i c m ~ aor d l b, aragraph 2, of the Statue, and secondly, the C o wcon-injury caused to Nicaragua by the breaches of the 'Ifeaty of si&rs that the case d,ms not necessarily involve it in evalua-Friendship, COLMEIW and Navigation betvveen the Parties tion of political or military mattem, which would be to over-signed at Managua on 21 January 1956; step proper judicial bounds. Consequently, it is equipped toIN FAVOUR: President Nagendra Singh; Vice-Presidentde detedne these prok~lems.Lachanibre;Judges Lachs, Ruda, Elias, Oda, Ago, Sette-~amara , i r ~obe r tennings, maye, BtAjaoui, Ni and V. The signifc am e of the multilateral treaty resen tationEvensen; Judge ad hw Colliard; (paras. 36-56)AGAINST:udge Schwebel.(15) By fourteen votes to one, The United States declaration of acceptance of the com-pulsory jurisdiction of the Court under Article 36 paragraphDecides that the form and amount of such ieparation, fail-

2, of the statuteontined a reservation exclud&g from theing agreement between the Ruties, will be settled by the Operationof the declarationCourt, and reserves for this purpose the subsequent proce-dure in the case; "disputes arising under a multilateral treaty, unless (1)a llparties to the treaty affected bythedecisionare alsopartiesIN FAVOUR: President Nagendra Singh; Yice-Presidentde to the,, before the or (2) the United SeatesofLacharriko;Judges L.ohs, Ruda, Elias,Gb,Ago, Sette- America to urisdiction,s.Camara, Sir Robert Jennings, Mbaye, Bedjaoui, Ni andEvensen;Judge adhw Colliard; In its Judgment of 26 November 1984 the Court found, onAGAINST:udge Schwebel. the basis of Article 79, paragraph 7, of the Rules of Court,

(16) Unanimously, that the objection to jurisdiction based on the reservationraised "a question concerning matters of substance relatingRecalls to both Parties their obligation to seek a solution to to he merits of the cw;ewand that the objection did "not pas-disputes by peaceful means in ac~0-m with intm a- sess, in the circumstances of the case, an exclusively prelim-tional law. inary character". Since it contained both preliminary aspectsand other aspects relating to the merits, it had to be dealt withSUMMARYFTHE UDGMENT at the stage of the merits.I . Qualitds In order to establish whether its jurisdiction was limited by(patas. 1 o 17) the effect of the reseination in question, the Court has toascertain whether any third States, parties to the four multi-11. Background to the dispute lateral treaties invoketi by Nicaragua, and not parties to the(paras. 18-25) proceedings, would be "affected" by the Judgment.Of thesetreaties, the Court contriders it sufficientto examine the posi-m. The nOn-appearance of the Respondent G& Article 53 tion under the United Nations Charter andtheCharter of theof the Statute Organization of American States.(paras.26-3 1) The Court examinefr the impact of the multilateraItreatyThe Court recalls that subsequent to the delivery of its reservation on Nicaragua's claim that the United States has

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used force in breach of the tvvoCharters. The Cowt examines ness. With regard in particular to affidavits and 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 .towhich 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" whichCourt 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 contraryto 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" ElSalvador. (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 themining 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.~0nferredn 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 theinstructions of that agency, under the supervision and withV I . Establishment of thc facts: evidence and methotls the logistic support of United States agents; that neitheremployed by the Court before the laying of the mines, nor subsequently, did the(paras. 57-74) United States Government issue any public and officialwarning to international shipping of the existence and loca-The Court has had to determine the facts relevant to the tiond he mines; and that personal and material injurywasdispute. 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 causinga rise in marine insurance ates.Respondent, the secrecy s~mounding ertain conduct, and 2. Nicaragus amibutes to the direct mion of UniHthe fact that the conflict is continuing. On this last point, the prsonnel, orprsons in itspay,opNions againstoilCowt takes the view, in accordance with the general princi- inn.llatiom,La base,etc., lisa in paraaph 81ofthepies 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, directionregard o the production of evidence, the Court indi- md support. The imputability to the United Statesof 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 basisthat the Courthas 1Wom n estimating the value of by United StsDs milil.ry &raft. evi-the various elements of evidence. It has not seen fit to order available, the court findstha he only violationsofan 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 theevidenea high altitude reCOnnaiS-e flightsbmLs)*he has these with It regsrds and low altitude flights on 7 to 11 November 1984 causingthem not asevidence 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 sith Hondurastain factsm 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.factsor conduct unfavomble to the State represented by the 4. The Court then examines the genesis, developmentperson who made them. FVith regard to the evidence of wit- and activitie s of the contra force, and the role of the Unitednesses presented by Nicaragua-five wi~tnessiesgave 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 ofa 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 directedthe tactics of the con-tra force, and provided direct combat support for its militaryoperations. In the light of the evidence and material availableto it, theCourt 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 aslogistic 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~onstratehe 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 theoperations 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 internalaffairs.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 by90percent in September1983; and a totaltrade embargo on Nicaragua was declared by an executiveorder of the President of the United States on 1May 1985.Vm. The conduct of Nicaragua(paras.126-171)

The Court has to ascertain, so far as possilde, whether theactivities of the United States complained of, claimed tohavebeen 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 ortrafficin 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 aftertheearly months of 1981.Even supposing it were established that military aid wasreaching the armed opposition in El Salvador from the tem-toryof 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 the

probabilities to recognize that an activity of that nature, if ona limited scale, ma:y very wellbe pursued unknown tothe 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 att ac 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 theGovernment of Nicaragua.3. The Judgment recalls certain events which occurredat the time of the fd1of President Somoza, since reliancehasbeen placed on them by the United States to contend that thepresent Govemeut of Nicaragua is in violation of certain

allegedassurances given by its immediate predecessor. TheJudgment refers in particular to the "Plan to secure peace"sent on 12 July 1979 by the "Junta of the Government ofNational 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. The applicable law: customary international law( p a . 72-182)

The Court has reached the conclusion (section V, i n w )that 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 toascertain 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 has 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 totakethe 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 applic able law(paras. 183 to 225)1. Introduction: genenzl observa tions

(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?%eprohibition 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~gainsthe territorial integrity orpolitical independence of ;any State, or in any other mannerinconsistent with the purposes of the United Nations(Art.2,para. 4, of the Charter). The Court has however to be satas-fiedthat there exists in customary lawan 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~perationmong 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~heprinciple 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 ofthe 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 toGeneralAssembly 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 elements

which 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~it ingorce established in custom- 4, Collective counter-measures in response to conductary law allows for certain exceptions. The exception of the not amounting to armed attackright of individual or colbctive self-defence is also, in theview of States. establishetl in customarv law. as is avvarent (paras. 210 and 211)fo r example f;om the terms of ~ r t ic ie 1 .of the-Onited The Court then considers the question whether, if oneNations 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 lawfullytake action by way ofwho consider the existence of this right to be establishedas a counter-measures which would amount to an intervention in


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2. Theprinciple of non-i,?~tervention(paras. 239 to 245)The Court finds it clearly established that the United Statesintended, by its support of the contras, to ccerce Nicaraguain respect of matters in which each State is permitted todecide freely, and that the intention of thecontras 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 im 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, constitutesn 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 conclemnationas a11 intervention inthe internal affairs of another State, it mustbe limited to thepurposes hallowed in the practice of the Red Cross, andabove all be given without discrimination.W~thegard to the form of indirect intervention which Nic-aragua sees in the taking of certain action of a11economicnature against it by the United States, the Court is unable toregard such action in the pre::sent caseas a breach of the cus-tomary law principle of nomintemention.3. Collective counter-measures in response to conductnot amounting to armed 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 is 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 are 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 cannotbejustified 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 GuemllaWarfare", 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 justifc ation of the actsof the United States(paras. 257 to 269)The United Stateshas linked its supportto 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~tgn the conduct of Nicaragua which might legallywarrant counter-measuresby 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".W~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~thegard to the alleged militarization of Nicaragua, alsoreferred to by the United States to justify its activities, theCourt obsems that in international law there are 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 I956Treaty(paras. 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 regardtothe question what activities of the United States might havebeen such as to deprive the 'Ifeaty of its object and purpose,the Cwrt makes a distinction. It is unable to regard all theacts complained of in that light, but considers that therearecertain activities which undermine the whole spirit of theagreement. These are 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 commerceguaranteed by ArticleXIX of 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 todeprive 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-cleXXI concerning "measures . . .necessary to protect theessential security interests" of aParty may be invoked tojus-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 1May 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 dollarsasan 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 makingan 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 Party' not todirect 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:sultsof 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 casetheneed 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>yArticle 33 ofthe United Nations Charter.

SUMMARYFTHE OPINIONSAPPENDEDTOTHE UDGMENTFTHE 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,inalprinciple of non-use of force in inter-national relations has been the pivotal point of a time-

honoured legal philosophy that has evolved particularly afterthe two world wars of the current century. The Charter provi-sions as well as 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 principled on-use of force as one belonging tothe ealm of jus 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 disputehere. 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 UN 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 LachsJudge 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 prefernd168


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more attention tobe given to foreign assistance to the opposi- Separate O pinion of Judge Eliastion forces in El Salvador, and different f~ rmulaeo have Judge considem that, followingthe Court,s Judg-been used in various places. ment in the jurisdictional phase, the multilateral treaty reser-Judge h ch 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 incorrectandprivately questioned in ~0nne~ti0nith a case in the mid- tantamount to invoking a power to revise its &cision on1950's, action should have been taken by the: United Nations: jurisdiction and admissibility on behalf of ~~on-partieso 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, hefeels that the Court made a somewhat too hasty finding astoJudge Lachs also deals wiith the question of the justiciabil- the quasi-identityof between customary intema-ity of the case: the close relationship between legal and polit- tional law and the law enshrined in certainmajormultilateralical disputes, as between law and politics. :lnter~~ationalaw maties of universal character, and was also somewhat tootoday covers such wide areas of international relations that rcsdy tosee theendorsementof certainprinciplesby UN 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 opinio juris of members of the international cornmu-are not justiciable. He spe~:ifically instances the case con- nity. JudgeAgo also feelsobliged to draw attention to 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 ~hstates 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 to 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 ofStates and self-determination-are not only cardinal princi-Separate O piluionof Judge Ruda plesd ustomary international law but could in addition berecognized 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 separatejects. 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.~~amaraecognizes the right of any State makingDee-which he submitted in 1984. larations of Acceptance to append to them whatever reserva-tions it deems fit. However, he contends that the Court isIn the third part, Judge Ruda deals with the question of free, and indeed bound, to interpret those reservations. Heself-defence. He explains that his conclusic~nsre the same as regrets that the applicationof the multilateral reaty reserva-those reached by the Court, but in his view it is not necessary tion debarred thecourtrom resting the ~~d~~~~~n the pro-to enter into all the factual details, because assistance to visions of thecharter 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 andThe fourth part is devoted to the reasons why Judge Ruda, the bilateral maty 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 IA Dissenting O pinion of Judge SchwebelJudge 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 known 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 supportof armed insurgency in El Salvador was mta-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~lreaty Nicaragua had not been confined o providing the Salvadoranreservation. Such being the case, Judge Ni differed from the ,his with large qurlntitiesofarms, munitionsand supplies,majority of the Court in that he considered that the IUleS Con- which of themselves arguably might be seen as not mta-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 withcommand-and-contnolfacilities, bases, communications andDissenting Op inion of Judge Otda sanctuary which enitbled the leadership of the SalvadoranJudge Oda agrees with the Court's reclognition of the rebels to operate from Nicaraguan temtory. That scale ofapplicability 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 affirmedby Nicaragua's leading witness in the case, and con-Respondent fell far short of what was needed to show a com- finnedby 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 thatcle36(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 1956Treaty of Fri~endship,Com- El Salvador.merce and Navigation. In Judge Oda's view, the mining of For United States nleasures in collective self-defencetobethe 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 measws 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 economic 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 t ~ yubstantial invo1vt:ment in thesending of irregulars onto its territory-is, p ri m fac ie , theaggressor. Nicaragua's status as prima facie aggressor canonly be confirmed upon examination of the facts. "More-over", Judge Schwebel cc~~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 in its favour is thus unwarranted,and would be unwarranted even if it should be concluded-as t should not be-that the responsive actions of the UnitedStates were unnecessary or disproportionate."

Dissenting Opin ion of Judge Sir Robert JenningsJudge Sir Robert Jennings agreed with the Court that theUnited States multilateral treaty reservation is valid and mustbe respected. He was unable to 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 compelled 10 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.

military and paramilitary activities in and against nicaragua

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