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[p.395]
The Court,
composed as above,
delivers the following Judgment:
1. On 9 April 1984 the Ambassador of the Republic of Nicaragua to the
Netherlands filed in the Registry of the Court an Application instituting
proceedings against the United States of America in respect of a dispute
concerning responsibility for military and paramilitary activities in and
against Nicaragua. In order to found the jurisdiction of the Court the
Application relied on declarations made by the Parties accepting the
compulsory jurisdiction of the Court under Article 36 of its Statute.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
at once communicated to the Government of the United States of America. In
accordance with paragraph 3 of that Article, all other States entitled to
appear before the Court were notified of the Application.
3. At the same time as the Application was filed, the Republic of Nicaragua
also filed a request for the indication of provisional measures under
Article 41 of the Statute. By a letter from the United States Ambassador at
The Hague to the Registrar dated 13 April 1984, and in the course of the
oral proceedings held on the request by Nicaragua for the indication of
provisional measures, the United States of America contended (inter alia)
that the Court was without jurisdiction to deal with the Application, and
requested that the proceedings be terminated by the removal of the case from
the list. By an Order dated 10 May 1984, the Court rejected the request of
the United States for removal of the case from the list, indicated, pending
its final decision in the proceedings, certain provisional measures, and
decided that, until the Court delivers its final judgment in the case, it
would keep the matters covered by the Order continuously under review.
4. By the said Order of 10 May 1984, the Court further decided that the
written proceedings in the case should first be addressed to the questions
of the jurisdiction of the Court to entertain the dispute and of the
admissibility of the Application. By an Order dated 14 May 1984, the
President of the Court fixed time-limits for the filing of a Memorial by the
Republic of Nicaragua and a Counter-Memorial by the United States of America
on the questions of jurisdiction and admissibility and these pleadings were
duly filed within the time-limits fixed.
5. In the Memorial, the Republic of Nicaragua contended that, in addition to
the basis of jurisdiction relied on in the Application, a Treaty of
Friendship, Commerce and Navigation signed by the Parties in 1956 provides
an independent basis for jurisdiction under Article 36, paragraph 1, of the
Statute of the Court.
6. On 15 August 1984, prior to the closure of the written proceedings on the
questions of jurisdiction and admissibility, the Republic of El Salvador
filed a Declaration of Intervention in the case under Article 63 of the
Statute. In a letter from the Agent of El Salvador dated 10 September 1984,
which El Salvador requested should be considered as a part of its
Declaration of Intervention, El Salvador stated that, if the Court were to
find that it has jurisdiction and that the Application is admissible, it
reserved the right "in a later substantive phase of the case to address the
interpretation and application of the conventions to which it is a party
relevant to that phase". Having been supplied with the written obser-[p
396]vations of the Parties on the Declaration pursuant to Article 83 of the
Rules of Court, the Court, by an Order dated 4 October 1984, decided not to
hold a hearing on the Declaration of Intervention, and decided that that
Declaration was inadmissible inasmuch as it related to the current phase of
the proceedings.
7. On 8-10 and 15-18 October 1984 the Court held public sittings at which it
was addressed by the following representatives of the Parties:
For Nicaragua: H.E. Mr. Carlos Arguello Gσmez,
Hon. Abram Chayes,
Mr. Ian Brownlie,
Mr. Paul S. Reichler,
Mr. Alain Pellet.
For the United States of America: Hon. Davis R. Robinson,
Mr. Patrick M. Norton,
Mr. Myres McDougal,
Mr. Louis B. Sohn,
Mr. John Norton Moore.
8. In the course of the written proceedings the following Submissions were
presented by the Parties:
On behalf of Nicaragua,
at the end of the Memorial:
"Nicaragua submits that:
A. The jurisdiction of the Court to entertain the dispute presented in the
Application is established by the terms of the declaration of Nicaragua of
24 September 1929 under Article 36 (5) and the declaration of the United
States of 14 August 1946 under Article 36 (2) of the Statute of the
International Court of Justice.
B. Nicaragua's declaration of 24 September 1929 is in force as a valid and
binding acceptance of the compulsory jurisdiction of the Court.
C. The attempt by the United States to modify or terminate the terms of its
declaration of 14 August 1946 by a letter dated 6 April 1984 from Secretary
of State George Shultz to the Secretary-General of the United Nations was
ineffective to accomplish either result.
D. The Court has jurisdiction under Article XXIV (2) of the Treaty of
Friendship, Commerce and Navigation between the United States and Nicaragua
of 24 May 1958 over claims presented by this Application falling within the
scope of the Treaty.
E. The Court is not precluded from adjudicating the legal dispute presented
in the Application by any considerations of admissibility and the
Application is admissible."
On behalf of the United States of America,
at the end of the Counter-Memorial:
"May it please the Court, on behalf of the United States of America, to
adjudge and declare, for each and all of the foregoing reasons, that the [p
397] claims set forth in Nicaragua's Application of 9 April 1984 (1) are not
within the jurisdiction of this Court and (2) are inadmissible."
9. In the course of the oral proceedings the following Submissions were
presented by the Parties:
On behalf of Nicaragua
(hearing of 10 October 1984):
"Maintaining the arguments and submissions contained in the Memorial
presented on 30 June 1984 and also the arguments advanced in the oral
hearings on behalf of Nicaragua:
The Government of Nicaragua requests the Court to declare that jurisdiction
exists in respect of the Application of Nicaragua filed on 9 April 1984, and
that the subject-matter of the Application is admissible in its entirety."
On behalf of the United States of America,
(hearing of 16 October 1984):
"May it please the Court, on behalf of the United States of America, to
adjudge and declare, for each and all of the reasons presented in the oral
argument of the United States and in the Counter-Memorial of the United
States of 17 August 1984, that the claims set forth in Nicaragua's
Application of 9 April 1984, (1) are not within the jurisdiction of the
Court and (2) are inadmissible."
10. In accordance with Article 60, paragraph 2, of the Rules of Court, the
two Parties communicated to the Court the written text of their final
submissions as set out above.
***
11. The present case concerns a dispute between the Government of the
Republic of Nicaragua and the Government of the United States of America
occasioned, Nicaragua contends, by certain military and paramilitary
activities conducted in Nicaragua and in the waters off its coasts,
responsibility for which is attributed by Nicaragua to the United States. In
the present phase the case concerns the jurisdiction of the Court to
entertain and pronounce upon this dispute, and the admissibility of the
Application by which it was brought before the Court. The issue being thus
limited, the Court will avoid not only all expressions of opinion on matters
of substance, but also any pronouncement which might prejudge or appear to
prejudge any eventual decision on the merits.
12. To found the jurisdiction of the Court in the present proceedings.
Nicaragua in its Application relied on Article 36 of the Statute of the
Court and the declarations, described below, made by the Parties accepting
compulsory jurisdiction pursuant to that Article. In its Memorial,
Nicaragua, relying on a reservation contained in its Application (para. 26)
of the right to "supplement or to amend this Application", also contended
that [p 398] the Court has jurisdiction under Article XXIV, paragraph 2, of
a Treaty of Friendship, Commerce and Navigation between the Parties signed
at Managua on 21 January 1956.
13. Article 36, paragraph 2, of the Statute of the Court provides that:
"The States parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in
relation to any other State accepting the same obligation, the jurisdiction
of the Court in all legal disputes concerning:
(a) the interpretation of a treaty;
(b) any question of international law:
(c) the existence of any fact which, if established, would constitute a
breach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an
international obligation."
The United States made a declaration, pursuant to this provision, on 14
August 1946, containing certain reservations, to be examined below, and
expressed to
"remain in force for a period of five years and thereafter until the
expiration of six months after notice may be given to terminate this
declaration".
On 6 April 1984 the Government of the United States of America deposited
with the Secretary-General of the United Nations a notification, signed by
the United States Secretary of State. Mr. George Shultz, referring to the
Declaration deposited on 26 August 1946. and stating that;
"the aforesaid declaration shall not apply to disputes with any Central
American State or arising out of or related to events in Central America,
any of which disputes shall be settled in such manner as the parties to them
may agree.
Notwithstanding the terms of the aforesaid declaration, this proviso shall
take effect immediately and shall remain in force for two years, so as to
foster the continuing regional dispute settlement process which seeks a
negotiated solution to the interrelated political, economic and security
problems of Central America."
This notification will be referred to, for convenience, as the "1984
notification".
14. In order to be able to rely upon the United States Declaration of 1946
to found jurisdiction in the present case. Nicaragua has to show that it is
a "State accepting the same obligation" within the meaning of Article 36,
paragraph 2, of the Statute. For this purpose. Nicaragua relies on a
[p 399] Declaration made by it on 24 September 1929 pursuant to Article 36,
paragraph 2, of the Statute of the Permanent Court of International Justice.
That Article provided that:
"The Members of the League of Nations and the States mentioned in the Annex
to the Covenant may, either when signing or ratifying the Protocol to which
the present Statute is adjoined, or at a later moment, declare that they
recognize as compulsory ipso facto and without special agreement, in
relation to any other Member or State accepting the same obligation, the
jurisdiction of the Court"
in any of the same categories of dispute as listed in paragraph 2 of Article
36 of the Statute of the postwar Court, set out above. Nicaragua relies
further on paragraph 5 of Article 36 of the Statute of the present Court,
which provides that:
"Declarations made under Article 36 of the Statute of the Permanent Court of
International Justice and which are still in force shall be deemed, as
between the parties to the present Statute, to be acceptances of the
compulsory jurisdiction of the International Court of Justice for the period
which they still have to run and in accordance with their terms."
15. The circumstances of Nicaragua's Declaration of 1929 were as follows.
The Members of the League of Nations (and the States mentioned in the Annex
to the League of Nations Covenant) were entitled to sign the Protocol of
Signature of the Statute of the Permanent Court of International Justice,
which was drawn up at Geneva on 16 December 1920. That Protocol provided
that it was subject to ratification, and that instruments of ratification
were to be sent to the Secretary-General of the League of Nations. On 24
September 1929, Nicaragua, as a Member of the League, signed this Protocol
and made a declaration under Article 36, paragraph 2, of the Statute of the
Permanent Court which read:
[Translation from the French]
"On behalf of the Republic of Nicaragua I recognize as compulsory
unconditionally the jurisdiction of the Permanent Court of International
Justice.
Geneva, 24 September 1929.
(Signed) T. F. Medina."
16. According to the documents produced by both Parties before the Court, on
4 December 1934, a proposal for the ratification of (inter alia) the Statute
of the Permanent Court of International Justice and of the Protocol of
Signature of 16 December 1920 was approved by the "Ejecutivo" (executive
power) of Nicaragua. On 14 February 1935, the Senate of Nicaragua decided to
ratify these instruments, its decision being published in La Gaceta, the
Nicaraguan official journal, on 12 June 1935, and on 11 July 1935 the
Chamber of Deputies of Nicaragua adopted a similar deci-[p 400]sion,
similarly published on 18 September 1935. On 29 November 1939, the Ministry
of External Relations of Nicaragua sent the following telegram to the
Secretary-General of the League of Nations:
Estatuto y protocolo corte permanente justicia international la haya ya
fueron ratificados punto enviarsele oportunamento ratificacion-relaciones.
[Translation]
(Statute and Protocol Permanent Court International Justice The Hague have
already been ratified. Will send you in due course Instrument Ratification.
Relations.)
The files of the League of Nations however contain no record of an
instrument of ratification ever having been received. No evidence has been
adduced before the Court to show that such an instrument of ratification was
ever despatched to Geneva. On 16 December 1942, the Acting Legal Adviser of
the Secretariat of the League of Nations wrote to the Foreign Minister of
Nicaragua to point out that he had not received the instrument of
ratification "dont le depot est necessaire pour faire naitre effectivement
l'obligation" (the deposit of which is necessary to cause the obligation to
come into effective existence). In the Nicaraguan Memorial, it was stated
that "Nicaragua never completed ratification of the old Protocol of
Signature"; at the hearings, the Agent of Nicaragua explained that the
records are very scanty, and he was therefore unable to certify the facts
one way or the other. He added however that if instruments of ratification
were sent, they would most likely have been sent by sea, and, the Second
World War being then in progress, the attacks on commercial shipping may
explain why the instruments appear never to have arrived. After the war,
Nicaragua took part in the United Nations Conference on International
Organization at San Francisco and became an original Member of the United
Nations, having ratified the Charter on 6 September 1945; on 24 October 1945
the Statute of the International Court of Justice, which is an integral part
of the Charter, came into force.
17. On the basis of these facts, the United States contends, first, that
Nicaragua never became a party to the Statute of the Permanent Court of
International Justice, and that accordingly it could not and did not make an
effective acceptance of the compulsory jurisdiction of the Permanent Court;
the 1929 acceptance was therefore not "still in force" within the meaning of
the English version of Article 36, paragraph 5, of the Statute of the
present Court. In the contention of the United States, the expression in the
French version of the Statute corresponding to "still in force" in the
English text, namely "pour une duree qui n'est pas encore expiree", also
requires that a declaration be binding under the Statute of the Permanent
Court in order to be deemed an acceptance of the jurisdiction of the present
Court under Article 36, paragraph 5, of its Statute.
18. Nicaragua does not contend that its 1929 Declaration was in itself [p
401] sufficient to establish a binding acceptance of the compulsory
jurisdiction of the Permanent Court of International Justice, for which it
would have been necessary that Nicaragua complete the ratification of the
Protocol of Signature of the Statute of that Court. It rejects however the
interpretation of Article 36, paragraph 5, of the Statute of the present
Court advanced by the United States: Nicaragua argues that the phrase "which
are still in force" or "pour une duree qui n'est pas encore expiree" was
designed to exclude from the operation of the Article only declarations that
had already expired, and has no bearing whatever on a declaration, like
Nicaragua's, that had not expired, but which, for some reason or another,
had not been perfected. Consistently with the intention of the provision,
which in Nicaragua's view was to continue the pre-existing situation as
regards declarations of acceptance of compulsory jurisdiction, Nicaragua was
in exactly the same situation under the new Statute as it was under the old.
In either case, ratification of the Statute of the Court would perfect its
Declaration of 1929. Nicaragua contends that the fact that this is the
correct interpretation of the Statute is borne out by the way in which the
Nicaraguan declaration was handled in the publications of the Court and of
the United Nations Secretariat; by the conduct of the Parties to the present
case, and of the Government of Honduras, in relation to the dispute in
1957-1960 between Honduras and Nicaragua in connection with the arbitral
award made by the King of Spain in 1906, which dispute was eventually
determined by the Court; by the opinions of publicists; and by the practice
of the United States itself.
19. With regard to Nicaragua's reliance on the publications of the Court, it
may first be noted that in the Sixteenth Report (the last) of the Permanent
Court of International Justice, covering the period 15 June 1939 to 31
December 1945, Nicaragua was included in the "List of States having signed
the Optional Clause" (p. 358), but it was recorded on another page (p. 50)
that Nicaragua had not ratified the Protocol of Signature of the Statute,
and Nicaragua was not included in the list of "States bound by the Clause"
(i.e., the Optional Clause) on the same page. The first Yearbook, that for
1946-1947, of the present Court contained (p. 110) a list entitled "Members
of the United Nations, other States parties to the Statute and States to
which the Court is open. (An asterisk denotes a State bound by the
compulsory jurisdiction clause)", and Nicaragua was included in that list,
with an asterisk against it, and with a footnote (common to several States
listed) reading "Declaration made under Article 36 of the Statute of the
Permanent Court and deemed to be still in force (Article 36, 5, of Statute
of the present Court)". On another page (p. 210), the text of Nicaragua's
1929 Declaration was reproduced, with the following footnote:
"According to a telegram dated November 29th, 1939, addressed to the League
of Nations, Nicaragua had ratified the Protocol of Signature of the Statute
of the Permanent Court of International Justice [p 402] (December 16th,
1920), and the instrument of ratification was to follow. Notification
concerning the deposit of the said instrument has not, however, been
received in the Registry."
The Yearbook 1946-1947 also includes a list (p. 221) entitled "List of
States which have recognized the compulsory jurisdiction of the
International Court of Justice or which are still bound by their acceptance
of the Optional Clause of the Statute of the Permanent Court of
International Justice (Article 36 of the Statute of the International Court
of Justice)" and this list includes Nicaragua (with a footnote
cross-reference to the page where its 1929 Declaration is reproduced).
20. Subsequent Yearbooks of the Court, up to and including I.C.J. Yearbook
1954-1955, list Nicaragua among the States with regard to which there were
"in force" declarations of acceptance of the compulsory jurisdiction of the
Court, made in accordance with the terms either of the Permanent Court of
International Justice Statute or of the Statute of the present Court (see,
e.g., Yearbook 1954-1955, p. 39); however, a reference was also given to the
page of the Yearbook 1946-1947 at which the text of Nicaragua's 1929
Declaration was printed (ibid., p. 187). Nicaragua also continued to be
included in the list of States recognizing compulsory jurisdiction (ibid.,
p. 195). In the Yearbook 1955-1956, the reference to Nicaragua in this list
(p. 195) had a footnote appended to it reading as follows:
"According to a telegram dated November 29th, 1939, addressed to the League
of Nations, Nicaragua had ratified the Protocol of Signature of the Statute
of the Permanent Court of International Justice (December 16th, 1920), and
the instrument of ratification was to follow. It does not appear, however,
that the instrument of ratification was ever received by the League of
Nations."
A note to the same effect has been included in subsequent Yearbooks up to
the present time.
21. In 1968 the Court began the practice, which has continued up to the
present time, of transmitting a Report to the General Assembly of the United
Nations for the past year. Each of these Reports has included a paragraph
recording the number of States which recognize the jurisdiction of the Court
as compulsory, and Nicaragua has been mentioned among these. For a number of
years the paragraph referred to such States as having so recognized the
Court's jurisdiction "in accordance with declarations filed under Article
36, paragraph 2, of the Statute". No reference has been made in these
Reports to the issue of ratification of the Protocol of Signature of the
Statute of the Permanent Court.
22. Nicaragua also places reliance on the references made to it in a number
of publications issued by the Secretariat of the United Nations, all of
which include it as a State whose declaration of acceptance of the
jurisdiction of the Permanent Court has attracted the operation of Article
36, paragraph 5, of the Statute of the present Court. These publications are
[p 403] the Second Annual Report of the Secretary-General to the General
Assembly; the annual volume entitled Signatures, Ratifications, Acceptances,
Accessions, etc., concerning the Multilateral Conventions and Agreements in
respect of which the Secretary-General acts as Depositary; the Yearbook of
the United Nations; and certain ancillary official publications.
23. The United States contention as to these publications is, as to those
issued by the Registry of the Court, that the Registry took great care not
to represent any of its listings as authoritative; the United States draws
attention to the caveat in the Preface to the I.C.J. Yearbook that it "in no
way involves the responsibility of the Court", to the footnotes quoted in
paragraphs 19 and 20 above, and to a disclaimer appearing for the first time
in the Yearbook 1956-1957 (p. 207) reading as follows:
"The texts of declarations set out in this Chapter are reproduced for
convenience of reference only. The inclusion of a declaration made by any
State should not be regarded as an indication of the view entertained by the
Registry or, a fortiori, by the Court, regarding the nature, scope or
validity of the instrument in question."
It concludes that it is clear that successive Registrars and the Yearbooks
of the Court never adopted, and indeed expressly rejected, Nicaragua's
contention as to the effect of Article 36, paragraph 5, of the Statute. So
far as the United Nations publications are concerned, the United States
points out that where they cite their source of information, they invariably
refer to the I.C.J. Yearbook, and none of them purport to convey any
authority.
*
24. In order to determine whether the provisions of Article 36, paragraph 5,
can have applied to Nicaragua's Declaration of 1929, the Court must first
establish the legal characteristics of that declaration and then compare
them with the conditions laid down by the text of that paragraph.
25. So far as the characteristics of Nicaragua's declaration are concerned,
the Court notes that, at the time when the question of the applicability of
the new Statute arose, that is, on its coming into force, that declaration
was certainly valid, for under the system of the Permanent Court of
International Justice a declaration was valid on condition that it had been
made by a State "either when signing or ratifying" the Protocol of Signature
of the Statute "or at a later moment", whereas under the present Statute,
declarations under Article 36, paragraph 2, can only be made by "States
parties to the present Statute". Since Nicaragua had signed that Protocol,
its declaration concerning the compulsory jurisdiction of the Permanent
Court, which was not subject to ratification, was undoubtedly [p 404]valid
from the moment it was received by the Secretary-General of the League of
Nations (cf. Right of Passage over Indian Territory, I.C.J. Reports 1957, p.
146). The Statute of the Permanent Court did not lay down any set form or
procedure to be followed for the making of such declarations, and in
practice a number of different methods were used by States. Nevertheless
this declaration, though valid, had not become binding under the Statute of
the Permanent Court. It may be granted that the necessary steps had been
taken at national level for ratification of the Protocol of Signature of the
Statute. But Nicaragua has not been able to prove that it accomplished the
indispensable step of sending its instrument of ratification to the
Secretary-General of the League of Nations. It did announce that the
instrument would be sent: but there is no evidence to show whether it was.
Even after having been duly informed, by the Acting Legal Adviser of the
League of Nations Secretariat, of the consequences that this might have upon
its position vis-ΰ-vis the jurisdiction of the Permanent Court, Nicaragua
failed to take the one step that would have easily enabled it to be counted
beyond question as one of the States that had recognized the compulsory
jurisdiction of the Permanent Court of International Justice. Nicaragua has
in effect admitted as much.
26. The Court therefore notes that Nicaragua, having failed to deposit its
instrument of ratification of the Protocol of Signature of the Statute of
the Permanent Court, was not a party to that treaty. Consequently the
Declaration made by Nicaragua in 1929 had not acquired binding force prior
to such effect as Article 36, paragraph 5, of the Statute of the
International Court of Justice might produce.
27. However, while the declaration had not acquired binding force, it is not
disputed that it could have done so, for example at the beginning of 1945,
if Nicaragua had ratified the Protocol of Signature of the Statute of the
Permanent Court. The correspondence brought to the Court's attention by the
Parties, between the Secretariat of the League of Nations and various
Governments including the Government of Nicaragua, leaves no doubt as to the
fact that, at any time between the making of Nicaragua's declaration and the
day on which the new Court came into existence, if not later, ratification
of the Protocol of Signature would have sufficed to transform the content of
the 1929 Declaration into a binding commitment: no one would have asked
Nicaragua to make a new declaration. It follows that such a declaration as
that made by Nicaragua had a certain potential effect which could be
maintained indefinitely. This durability of potential effect flowed from a
certain characteristic of Nicaragua's declaration: being made
"unconditionally", it was valid for an unlimited period. Had it provided,
for example, that it would apply for only five years to disputes arising
after its signature, its potential effect would admittedly have disappeared
as from 24 September 1934. In sum, Nicaragua's 1929 Declaration was valid at
the moment when Nicaragua became a party to the Statute of the new Court; it
had retained its potential effect because Nicaragua, which could have
limited the duration of that effect, had expressly refrained from doing
so.[p 405]
28. The characteristics of Nicaragua's declaration have now to be compared
with the conditions of applicability of Article 36, paragraph 5, as laid
down in that provision. The first condition concerns the relationship
between the declarations and the Statute. Article 36, paragraph 5, refrains
from stipulating that declarations must have been made by States parties to
the Statute of the Permanent Court: it is sufficient for them to have been
made "under" (in French, "en application de") Article 36 of that Statute.
But those who framed the new text were aware that under that Article, a
State could make such a declaration "either when signing or ratifying the
Protocol . . . or at a later moment", i.e., that a State could make a
declaration when it had not ratified the Protocol of Signature of the
Statute, but only signed it. The chosen wording therefore does not exclude
but, on the contrary, covers a declaration made in the circumstances of
Nicaragua's declaration. Apart from this relationship with the Statute of
the Permanent Court, the only condition which declarations have to fulfil is
that they should be "still in force" (in English) or "faites pour une duree
qui n'est pas encore expiree" (in French). The Parties have devoted much
argument to this apparent discrepancy between the two versions, its real
meaning and the interpretation which the Court should adopt as correct.
Drawing opposite conclusions from the jurisprudence of the Court, as
contained in particular in the case concerning the Aerial Incident of 27
July 1955 (Israel v. Bulgaria), they have expatiated on the respective
arguments by which, they allege, it supports their own case.
29. The Court must in the first place observe that this is the first time
that it has had to take a position on the question whether a declaration
which did not have binding force at the time of the Permanent Court is or is
not to be numbered among those to which Article 36, paragraph 5, of the
Statute of the International Court of Justice applies. The case of the
Aerial Incident of 27 July 1955 featured quite a different issue -- in a
nutshell, whether the effect of a declaration that had unquestionably become
binding at the time of the Permanent Court could be transposed to the
International Court of Justice when the declaration in question had been
made by a State which had not been represented at the San Francisco
Conference and had not become a party to the Statute of the present Court
until long after the extinction of the Permanent Court. In view of this
difference in the issues, the Court does not consider that its decision in
the Aerial Incident case, whatever may be its relevance in other respects,
provides any pointers to precise conclusions on the limited point now in
issue. The most that could be pointed out on the basis of the discussions
surrounding the Aerial Incident case is that, at that time, the United
States took a particularly broad view of the separability of an
Optional-Clause declaration and its institutional foundation by contending
that an Optional-Clause declaration (of a binding character) could have
outlived by many years the court to which it related. But the present case
also involves a problem of separability, since the question to be decided is
the extent to which an Optional-Clause declaration (without binding force)
can be separated [p 406] from the institutional foundation which it ought
originally to have possessed, so as to be grafted onto a new institutional
foundation.
30. Having thus stressed the novelty of the problem, the Court will refer to
the following considerations in order to reach a solution. First, it does
not appear possible to reconcile the two versions of Article 36, paragraph
5, by considering that both versions refer to binding declarations.
According to this interpretation, upheld by the United States, Article 36,
paragraph 5, should be read as if it mentioned "binding" declarations. The
French text, in this view, would be the equivalent of the English text, for
logically it would imply that declarations dont la duree n'est pas encore
expiree are solely those which have acquired binding force. The Court,
however, considers that it must interpret Article 36, paragraph 5, on the
basis of the actual terms used, which do not include the word "binding".
According to the travaux preparatoires the word "binding" was never
suggested; and if it had been suggested for the English text, there is no
doubt that the drafters would never have let the French text stand as
finally worded. Furthermore, the Court does not consider the French text to
imply that la duree non expiree (the unexpired period) is that of a
commitment of a binding character. It may be granted that, for a period to
continue or expire, it is necessary for some legal effect to have come into
existence. But this effect does not necessarily have to be of a binding
nature. A declaration validly made under Article 36 of the Statute of the
Permanent Court had a certain validity which could be preserved or
destroyed, and it is perfectly possible to read the French text as implying
only this validity.
31. Secondly, the Court cannot but be struck by the fact that the French
Delegation at the San Francisco Conference called for the expression "still
in force" to be translated, not by "encore en vigueur" but by the term:
"pour une duree qui n'est pas encore expiree". In view of the excellent
equivalence of the expressions "encore en vigueur" and "still in force", the
deliberate choice of the expression "pour une duree qui n'est pas encore
expiree" seems to denote an intention to widen the scope of Article 36,
paragraph 5, so as to cover declarations which have not acquired binding
force. Other interpretations of this proposal are not excluded, but it may
be noted that both "encore en vigueur" and "pour une duree qui n'est pas
encore expiree" would exclude a declaration, like that of France, which had
been binding but which had expired by lapse of time. It can only be said, on
the other hand, that the English version does not require (any more than
does the French version) that the declarations concerned should have been
made by States parties to the Statute of the Permanent Court and does not
mention the necessity of declarations having any binding character for the
provision to be applicable to them. It is therefore the Court's opinion that
the English version in no way expressly excludes a valid [p 407] declaration
of unexpired duration, made by a State not party to the Protocol of
Signature of the Statute of the Permanent Court, and therefore not of a
binding character.
32. The Court will therefore, before deciding on its interpretation, have to
examine to what extent the general considerations governing the transfer of
the powers of the former Court to the new one, and thus serving to define
the object and the purpose of the provisions adopted, throw light upon the
correct interpretation of the paragraph in question. As the Court has
already had occasion to state in the case of the Aerial Incident of 27 July
1955 (Israel v. Bulgaria), the primary concern of those who drafted the
Statute of the present Court was to maintain the greatest possible
continuity between it and its predecessor. As the Court then observed:
"the clear intention which inspired Article 36, paragraph 5, was to continue
in being something which was in existence, to preserve existing acceptances,
to avoid that the creation of a new Court should frustrate progress already
achieved" (I.C.J. Reports 1959, p. 145).
33. In the present case, the Parties, in their pleadings and in the course
of the hearings, have drawn attention to certain statements bearing witness
to this general preoccupation; for example the report to his Government of
the Chairman of the New Zealand delegation to the San Francisco Conference,
who stressed that the primary concern had been "to maintain so far as
possible the progress towards compulsory jurisdiction". If, for a number of
circumstantial reasons, it seemed necessary to abolish the former Court and
to put the new one in its place, at least the delegates to the San Francisco
Conference were determined to see that this operation should not result in a
step backwards in relation to the progress accomplished towards adopting a
system of compulsory jurisdiction. That being so, the question is whether
this intention sheds any light upon the present problem of interpretation of
Article 36, paragraph 5.
34. In this connection it is undeniable that a declaration by which a State
recognizes the compulsory jurisdiction of the Court is "in existence", in
the sense given above, and that each such declaration does constitute a
certain progress towards extending to the world in general the system of
compulsory judicial settlement of international disputes. Admittedly, this
progress has not yet taken the concrete form of a commitment having binding
force, but nonetheless, it is by no means negligible. There are no grounds
for maintaining that those who drafted the Statute meant to go back on this
progress and place it in a category in opposition to the progress achieved
by declarations having binding force. No doubt their main aim was to
safeguard these latter declarations, but the intention to wipe out the
progress evidenced by a declaration such as that of Nicaragua would
certainly not square well with their general concern. As the Court said in
the very similar matter of the already existing field of conventional
compulsory jurisdiction, it was "a natural element of this compromise" [p
408] (then accepted by comparison with the ideal of universal compulsory
jurisdiction) "that the maximum, and not some merely quasi optimum
preservation of this field should be aimed at" (Barcelona Traction, Light
and Power Company, Limited, I.C.J. Reports 1964, p. 32). Furthermore, if the
highly experienced drafters of the Statute had had a restrictive intention
on this point, in contrast to their overall concern, they would certainly
have translated it into a very different formula from the one which they in
fact adopted.
35. On the other hand, the logic of a system substituting a new Court for
the former one without the cause of compulsory jurisdiction in any way
suffering in the process resulted in the ratification of the new Statute
having exactly the same effects as the ratification of the Protocol of
Signature of the former one would have had, that is to say, in the case of
Nicaragua, the step from potential commitment to effective commitment. The
general system of devolution from the old Court to the new thus lends
support to the interpretation whereby Article 36, paragraph 5, even covers
declarations that had not previously acquired binding force. In this
connection, it should not be overlooked that Nicaragua was represented at
the San Francisco Conference, and duly signed and ratified the Charter of
the United Nations. At that time, the consent which it had given in 1929 to
the jurisdiction of the Permanent Court had not become fully effective in
the absence of ratification of the Protocol of Signature; but taking into
account the interpretation given above, the Court may apply to Nicaragua
what it stated in the case of the Aerial Incident of 27 July 1955:
"Consent to the transfer to the International Court of Justice of a
declaration accepting the jurisdiction of the Permanent Court may be
regarded as effectively given by a State which, having been represented at
the San Francisco Conference, signed and ratified the Charter and thereby
accepted the Statute in which Article 36, paragraph 5, appears." (I.C.J.
Reports 1959, p. 142.)
36. This finding as regards the interpretation of Article 36, paragraph 5,
must, finally, be compared to the conduct of States and international
organizations in regard to this interpretation. In that respect, particular
weight must be ascribed to certain official publications, namely the I.C.J.
Yearbook (since 1946-1947), the Reports of the Court to the General Assembly
of the United Nations (since 1968) and the annually published collection of
Signatures, Ratifications, Acceptances, Accessions, etc., concerning the
Multilateral Conventions and Agreements in respect of which the
Secretary-General acts as Depositary. The Court notes that, ever since they
first appeared, all these publications have regularly placed Nicaragua on
the list of those States that have recognized the compulsory jurisdiction of
the Court by virtue of Article 36, paragraph 5, of the Statute. Even if the
I.C.J. Yearbook has, in the issue for 1946-1947 and as from the issue for
1955-1956 onwards, contained a note recalling certain facts concerning
Nicaragua's ratification of the Protocol of Signature of the Statute of the
Permanent Court of International Justice, this publication has never modi-[p
409] fied the classification of Nicaragua or the binding character
attributed to its 1929 Declaration -- indeed the Yearbooks list Nicaragua
among the States "still bound by" their declarations under Article 36 of the
Statute of the Permanent Court (see paragraph 19, above). The same
observation is valid for the Secretariat publication Signatures,
Ratifications, Acceptances, Accessions, etc., which derived its data,
including footnotes, from the I.C.J. Yearbook. As for the reports of the
Court, they are quite categorical in stating that Nicaragua had accepted
compulsory jurisdiction, even if the distinction between acceptances made
under Article 36, paragraph 2, and those "deemed" to be such acceptances, is
not spelled out.
37. The Court has no intention of assigning these publications any role that
would be contrary to their nature but will content itself with noting that
they attest a certain interpretation of Article 36, paragraph 5 (whereby
that provision would cover the declaration of Nicaragua), and the rejection
of an opposite interpretation (which would refuse to classify Nicaragua
among the States covered by that Article). Admittedly, this testimony
concerns only the result and not the legal reasoning that leads to it.
However, the inclusion of Nicaragua in the "List of States which have
recognized the compulsory jurisdiction of the International Court of
Justice, or which are still bound by their acceptance of the Optional Clause
of the Statute of the Permanent Court of International Justice", as from the
appearance of the first I.C.J. Yearbook (1946-1947), contrasts with its
exclusion from the list in the last Report of the Permanent Court of
International Justice of "States bound by the [optional] clause". It is
therefore difficult to escape the conclusion that the basis of this
innovation was to be found in the possibility that a declaration which,
though not of binding character, was still valid, and was so for a period
that had not yet expired, permitted the application of Article 36, paragraph
5, so long as the State in question, by ratifying the Statute of the
International Court of Justice, provided it with the institutional
foundation that it had hitherto lacked. From that moment on, Nicaragua would
have become "bound" by its 1929 Declaration, and could, for practical
purposes, appropriately be included in the same Yearbook list as the States
which had been bound even prior to the coming into force of the post-war
Statute.
38. The importance of this lies in the significance to be attached to the
conduct of the States concerned, which is dependent on the testimony thus
furnished by these publications. The point is not that the Court in its
administrative capacity took a decision as to Nicaragua's status which would
be binding upon it in its judicial capacity, since this clearly could not be
so. It is that the listing found appropriate for Nicaragua amounted over the
years to a series of attestations which were entirely official and public,
and extremely numerous, and ranged over a period of nearly 40 years; and
that hence the States concerned -- first and foremost, Nicaragua -- had
every opportunity of accepting or rejecting the thus-proclaimed
applicability of Article 36, paragraph 5, to the Nicaraguan Declaration of
1929.[p 410]
39. Admittedly, Nicaragua itself, according to the information furnished to
the Court, did not at any moment explicitly recognize that it was bound by
its recognition of the Court's compulsory jurisdiction, but neither did it
deny the existence of this undertaking. The Court notes that Nicaragua, even
if its conduct in the case concerning the Arbitral Award Made by the King of
Spain on 23 December 1906 was not unambiguous, did not at any time declare
that it was not bound by its 1929 Declaration. Having regard to the public
and unchanging nature of the official statements concerning Nicaragua's
commitment under the Optional-Clause system, the silence of its Government
can only be interpreted as an acceptance of the classification thus assigned
to it. It cannot be supposed that that Government could have believed that
its silence could be tantamount to anything other than acquiescence.
Besides, the Court would remark that if proceedings had been instituted
against Nicaragua at any time in these recent years, and it had sought to
deny that, by the operation of Article 36, paragraph 5, it had recognized
the compulsory jurisdiction of the Court, the Court would probably have
rejected that argument. But the Court's jurisdiction in regard to a
particular State does not depend on whether that State is in the position of
an Applicant or a Respondent in the proceedings. If the Court considers that
it would have decided that Nicaragua would have been bound in a case in
which it was the Respondent, it must conclude that its jurisdiction is
identically established in a case where Nicaragua is the Applicant.
40. As for States other than Nicaragua, including those which could be
supposed to have the closest interest in that State's legal situation in
regard to the Court's jurisdiction, they have never challenged the
interpretation to which the publications of the United Nations bear witness
and whereby the case of Nicaragua is covered by Article 36, paragraph 5.
Such States as themselves publish lists of States bound by the compulsory
jurisdiction of the Court have placed Nicaragua on their lists. Of course,
the Court is well aware that such national publications simply reproduce
those of the United Nations where that particular point is concerned.
Nevertheless, it would be difficult to interpret the fact of such
reproduction as signifying an objection to the interpretation thus given; on
the contrary, this reproduction contributes to the generality of the opinion
which appears to have been cherished by States parties to the Statute as
regards the applicability to Nicaragua of Article 36, paragraph 5.
41. Finally, what States believe regarding the legal situation of Nicaragua
so far as the compulsory jurisdiction of the Court is concerned may emerge
from the conclusions drawn by certain governments as regards the possibility
of obliging Nicaragua to appear before the Court or of escaping any
proceedings it may institute. The Court would therefore recall that in the
case concerning the Arbitral Award Made by the King of Spain on 23 December
1906 Honduras founded its application both on a special agreement, the
Washington Agreement, and on Nicaragua's Optional-Clause declaration. It is
also difficult for the Court not to consider that the United States letter
of 6 April 1984 implies that at that date the United States, like [p 411]
other States, believed that Nicaragua was bound by the Court's jurisdiction
in accordance with the terms of its 1929 Declaration.
42. The Court thus finds that the interpretation whereby the provisions of
Article 36, paragraph 5, cover the case of Nicaragua has been confirmed by
the subsequent conduct of the parties to the treaty in question, the Statute
of the Court. However, the conduct of States which has been considered has
been in relation to publications of the Court and of the United Nations
Secretariat which, as noted in paragraph 37 above, do not indicate the legal
reasoning leading to the conclusion that Nicaragua fell within the category
of States to whose declarations Article 36, paragraph 5, applied. The view
might have been taken that that paragraph applied because the Nicaraguan
telegram of 29 November 1929 in itself constituted ratification of the
Protocol of Signature. It should therefore be observed that the conduct of
Nicaragua in relation to the publications in question also supports a
finding of jurisdiction under Article 36, paragraph 2, of the Statute
independently of the interpretation and effect of paragraph 5 of that
Article.
43. Nicaragua has in fact also contended that the validity of Nicaragua's
recognition of the compulsory jurisdiction of the Court finds an independent
basis in the conduct of the Parties. The argument is that Nicaragua's
conduct over a period of 38 years unequivocally constitutes consent to be
bound by the compulsory jurisdiction of the Court by way of a recognition of
the application of Article 36, paragraph 5, of the Statute to the Nicaraguan
Declaration of 1929. Likewise the conduct of the United States over a period
of 38 years unequivocally constitutes its recognition of the essential
validity of the Declaration of Nicaragua of 1929 as a result of the
application of Article 36, paragraph 5, of the Statute. As a consequence it
was recognized by both Parties that any formal defect in Nicaragua's
ratification of the Protocol of Signature of the Statute of the Permanent
Court did not in any way affect the essential validity of Nicaragua's
consent to the compulsory jurisdiction. The essential validity of the
Nicaraguan declaration as an acceptance of the compulsory jurisdiction is
confirmed by the evidence of a long series of public documents, by the
general opinion of States and by the general opinion of qualified
publicists.
44. The United States however objects that this contention of Nicaragua is
flatly inconsistent with the Statute of the Court, which provides only for
consent to jurisdiction to be manifested in specified ways; an "independent
title of jurisdiction, as Nicaragua calls it, is an impossibility". The
Statute provides the sole bases on which the Court can exercise
jurisdiction, under Articles 36 and 37. In the particular case of Article
36, paragraph 5, the Statutes of the two Courts provide a means for States
to express their consent, and Nicaragua did not use them. The United States
urges what it describes as policy considerations of fundamental importance:
that compulsory jurisdiction, being a major obligation, must be based on the
clearest manifestation of the State's intent to accept it; that [p 412]
Nicaragua's thesis introduces intolerable uncertainty into the system; and
that that thesis entails the risk of consenting to compulsory jurisdiction
through silence, with all the harmful consequences that would ensue. The
United States also disputes the significance of the publications and conduct
on which Nicaragua bases this contention.
45. The Court would first observe that, as regards the requirement of
consent as a basis of its jurisdiction, and more particularly as regards the
formalities required for that consent to be expressed in accordance with the
provisions of Article 36, paragraph 2, of the Statute, the Court has already
made known its view in, inter alia, the case concerning the Temple of Preah
Vihear. On that occasion it stated: "The only formality required is the
deposit of the acceptance with the Secretary-General of the United Nations
under paragraph 4 of Article 36 of the Statute." (I.C.J. Reports 1961, p.
31.)
46. The Court must enquire whether Nicaragua's particular circumstances
afford any reason for it to modify the conclusion it then reached. After
all, the reality of Nicaragua's consent to be bound by its 1929 Declaration
is, as pointed out above, attested by the absence of any protest against the
legal situation ascribed to it by the publications of the Court, the
Secretary-General of the United Nations and major States. The question is
therefore whether, even if the consent of Nicaragua is real, the Court can
decide that it has been given valid expression even on the hypothesis that
the 1929 Declaration was without validity, and given that no other
declaration has been deposited by Nicaragua since it became a party to the
Statute of the International Court of Justice. In this connection the Court
notes that Nicaragua's situation has been wholly unique, in that it was the
publications of the Court itself (since 1947, the I.C.J. Yearbook; since
1968, the Reports to the General Assembly of the United Nations), and those
of the Secretary-General (as depositary of the declarations under the
Statute of the present Court) which affirmed (and still affirm today, for
that matter) that Nicaragua had accomplished the formality in question.
Hence, if the Court were to object that Nicaragua ought to have made a
declaration under Article 36, paragraph 2, it would be penalizing Nicaragua
for having attached undue weight to the information given on that point by
the Court and the Secretary-General of the United Nations and, in sum,
having (on account of the authority of their sponsors) regarded them as more
reliable than they really were.
47. The Court therefore recognizes that, so far as the accomplishment of the
formality of depositing an optional declaration is concerned, Nicaragua was
placed in an exceptional position, since the international organs empowered
to handle such declarations declared that the formality in question had been
accomplished by Nicaragua. The Court finds that this exceptional situation
cannot be without effect on the requirements obtaining as regards the
formalities that are indispensable for the consent of a [p 413] State to its
compulsory jurisdiction to have been validly given. It considers therefore
that, having regard to the origin and generality of the statements to the
effect that Nicaragua was bound by its 1929 Declaration, it is right to
conclude that the constant acquiescence of that State in those affirmations
constitutes a valid mode of manifestation of its intent to recognize the
compulsory jurisdiction of the Court under Article 36, paragraph 2, of the
Statute, and that accordingly Nicaragua is, vis-ΰ-vis the United States, a
State accepting "the same obligation" under that Article.
***
48. The United States, however, further contends that even if Nicaragua is
otherwise entitled to invoke against the United States the jurisdiction of
the Court under Article 36, paragraphs 2 and 5, of the Statute, Nicaragua's
conduct in relation to the United States over the course of many years
estops Nicaragua from doing so. Having, it is argued, represented to the
United States that it was not itself bound under the system of the Optional
Clause, Nicaragua is estopped from invoking compulsory jurisdiction under
that clause against the United States. The United States asserts that since
1943 Nicaragua has consistently represented to the United States of America
that Nicaragua was not bound by the Optional Clause, and when the occasion
arose that this was material to the United States diplomatic activities, the
United States relied upon those Nicaraguan representations.
49. The representations by Nicaragua relied on by the United States were as
follows. First, in 1943, the United States Ambassador to Nicaragua consulted
the Nicaraguan Foreign Minister on the question whether the Protocol of
Signature of the Statute of the Permanent Court had been ratified by
Nicaragua. According to a despatch from the Ambassador to Washington, a
decree of July 1935 signed by the President of Nicaragua, mentioning the
approval of the ratification by the Senate and Chamber of Deputies, was
traced, as was a copy of the telegram to the Secretariat of the League of
Nations dated 29 November 1939 (see paragraph 16, above). The decree stated
that it was to become effective on the date of its publication in La Gaceta.
The Ambassador informed his Government that:
"The Foreign Minister informs me that the decree was never published in La
Gaceta. He also declared that there is no record to the instrument of
ratification having been transmitted to Geneva. It would appear that, while
appropriate legislative action was taken in Nicaragua to approve adherence
to the Protocol, Nicaragua is not legally bound thereby, in as much as it
did not deposit its official document of ratification with the League of
Nations."
According to the United States, the United States and Nicaragua could [p
414] only have understood at that point in time that Nicaragua was not bound
by the Optional Clause, and that understanding never changed.
50. Secondly, in 1955-1958 there was diplomatic contact between Honduras,
Nicaragua and the United States over the dispute which was eventually
determined by the Court as the case of the Arbitral Award Made by the King
of Spain on 23 December 1906 (I.C.J. Reports 1960, p. 192). One of the
questions then under examination was whether Honduras would be entitled to
institute proceedings against Nicaragua in reliance upon the 1929
Declaration and Article 36, paragraph 5, of the Statute, and in this
connection the Government of Honduras requested the good offices of the
Government of the United States. In a conversation between the Nicaraguan
Ambassador in Washington and United States officials on 21 December 1955,
"reference was made to the fact that the matter had not been previously
referred to the Court because Nicaragua had never agreed to submit to
compulsory jurisdiction", and the Ambassador was recorded to have "indicated
that an agreement between the two countries would have to be reached to
overcome this difficulty". The United States interprets this as a statement
of Nicaragua's understanding that it was not bound by the Optional Clause.
Further, on 2 March 1956 the Ambassador is alleged to have observed that
there was
"some doubt as to whether Nicaragua would be officially obligated to submit
to the International Court because an instrument of ratification of the
Court's jurisdiction was never sent".
It is contended that the United States relied on these representations by
Nicaragua; the United States has produced documents to support the claims
that the entire premise of United States diplomatic efforts was that
Nicaragua was not a party to the Optional Clause, and observes that in the
eventual proceedings before the Court between Nicaragua and Honduras,
Nicaragua manifested its hostility to the compulsory jurisdiction of the
Court. Nicaragua has made no direct reply to the United States argument of
estoppel, which was only fully developed during the oral proceedings;
however, the position of Nicaragua as to its own conduct is, as indicated
above, that so far from having represented that it was not bound by the
Optional Clause, on the contrary its conduct unequivocally constituted
consent to be so bound.
51. For the same reason, the Court does not need to deal at length with the
contention based on estoppel. The Court has found that the conduct of
Nicaragua, having regard to the very particular circumstances in which it
was placed, was such as to evince its consent to be bound in such a way as
to constitute a valid mode of acceptance of jurisdiction (paragraph 47,
above). It is thus evident that the Court cannot regard the information
obtained by the United States in 1943, or the doubts expressed in diplomatic
contacts in 1955, as sufficient to overturn that conclusion, let alone to
support an estoppel. Nicaragua's contention that since 1946 it has
consistently maintained that it is subject to the jurisdiction of the Court,
is [p 415] supported by substantial evidence. Furthermore, as the Court
pointed out in the North Sea Continental Shelf cases (I.C.J. Reports 1969,
p. 26), estoppel may be inferred from the conduct, declarations and the like
made by a State which not only clearly and consistently evinced acceptance
by that State of a particular regime, but also had caused another State or
States, in reliance on such conduct, detrimentally to change position or
suffer some prejudice. The Court cannot regard Nicaragua's reliance on the
optional clause as in any way contrary to good faith or equity: nor can
Nicaragua be taken to come within the criterion of the North Sea Continental
Shelf case, and the invocation of estoppel by the United States of America
cannot be said to apply to it.
***
52. The acceptance of jurisdiction by the United States which is relied on
by Nicaragua is, as noted above, that dated 14 August 1946. The United
States contends however that effect must also be given to the "1984
notification" -- the declaration deposited with the Secretary-General of the
United Nations on 6 April 1984. It is conceded by Nicaragua that if this
declaration is effective as a modification or termination of the Declaration
of 14 August 1946, and valid as against Nicaragua at the date of its filing
of the Application instituting the present proceedings (9 April 1984), then
the Court is without jurisdiction to entertain those proceedings, at least
under Article 36, paragraphs 2 and 5, of the Statute. It is however
contended by Nicaragua that the 1984 notification is ineffective because
international law provides no basis for unilateral modification of
declarations made under Article 36 of the Statute of the Court, unless a
right to do so has been expressly reserved.
53. The United States insists that the effect of the 1984 notification was a
modification and not a termination of its 1946 Declaration. It argues that,
notwithstanding the fact that its 1946 Declaration did not expressly reserve
a right of modification (as do the declarations made under Article 36 by a
number of other States), the 1984 notification effected a valid modification
of the 1946 Declaration temporarily suspending the consent of the United
States to the adjudication of the claims of Nicaragua. For the United
States, declarations under Article 36 are sui generis, are not treaties, and
are not governed by the law of treaties, and States have the sovereign right
to qualify an acceptance of the Court's compulsory jurisdiction, which is an
inherent feature of the Optional-Clause system as reflected in, and
developed by, State practice. It is suggested that the Court has recognized
the existence of an inherent, extra-statutory, right to modify declarations
in any manner not inconsistent with the Statute at any time until the date
of filing of an Application. The United States also draws attention to the
fact that its declaration dates from 1946, since when, it [p 416] asserts,
fundamental changes have occurred in State practice under the Optional
Clause, and argues that to deny a right of modification to a State which
had, in such an older declaration, not expressly reserved such a right would
be inequitable and unjustified in the light of those changes in State
practice.
54. Nicaragua argues further, in the alternative, that the 1984 notification
may be construed as a purported termination of the United States Declaration
of 1946 and, in effect, the substitution of a new declaration, and that such
an attempt at termination is likewise ineffective. As noted in paragraph 13
above, the 1946 Declaration was to remain in force "for a period of five
years and thereafter until the expiration of six months after notice may be
given to terminate this declaration". Accordingly, if the 1984 notification
constituted a termination of the 1946 Declaration (whether or not
accompanied in effect by the making of a revised declaration) it could only
take effect on 6 October 1984, and was as yet ineffective when the
Application of Nicaragua was filed on 9 April 1984. Both Parties apparently
recognize that a modification of a declaration which only takes effect after
the Court has been validly seised does not affect the Court's jurisdiction:
as the Court found in the Nottebohm case,
"Once the Court has been regularly seised, the Court must exercise its
powers, as these are defined in the Statute. After that, the expiry of the
period fixed for one of the Declarations on which the Application was
founded is an event which is unrelated to the exercise of the powers
conferred on the Court by the Statute, which the Court must exercise
whenever it has been regularly seised and whenever it has not been shown, on
some other ground, that it lacks jurisdiction or that the claim is
inadmissible" (I.C.J. Reports 1953, p. 122),
and the same reasoning applies to a supervening withdrawal or modification
of a declaration.
55. The first answer given by the United States to this contention of
Nicaragua is that the 1984 notification was, on its face, not a
"termination", and the six months' notice proviso was accordingly
inapplicable. However, in the view of the United States, even if it be
assumed for the sake of argument that the six months' notice proviso was
applicable to the 1984 notification, the modification made by that letter
was effective vis-ΰ-vis Nicaragua, even if not effective erga omnes. As
already explained, one contention of the United States in relation to its
own Declaration of 1946 is that States have a sovereign, inherent,
extra-statutory right to modify at any time declarations made under Article
36 of the Statute in any manner not inconsistent with the Statute (paragraph
53, above). Similarly Nicaragua's 1929 Declaration, being indefinite in
duration, not unlimited, is subject to a right of immediate termination,
without previous notice by Nicaragua. The United States, on the other hand,
while enjoying the inherent right of unilateral modification of its
declaration, has bound itself [p 417] by the proviso in its 1946 Declaration
to terminate that declaration only on six months' notice. On this basis, the
United States argues that Nicaragua has not accepted "the same obligation"
(for the purposes of Art. 36, para. 2, of the Statute) as the United States
six months' notice proviso, and may not therefore oppose that proviso as
against the United States. According to the United States contention, the
principles of reciprocity, mutuality and equality of States before the Court
permit the United States to exercise the right of termination with the
immediate effect implicitly enjoyed by Nicaragua, regardless of the six
months' notice proviso in the United States Declaration. The United States
does not claim on this ground to exercise such a right of immediate
termination erga omnes, but it does claim to exercise it vis-ΰ-vis
Nicaragua.
56. Nicaragua first denies that declarations under Article 36 are always
inherently terminable; the general view is said to be that declarations
which contain no provision for termination continue in force indefinitely,
in contractual terms; the question how far they may be terminable is
governed by the principles of the law of treaties applicable to consensual
legal relations arising within the system of the Optional Clause. Nicaragua
concludes that its declaration was made without limit of time, and that
there can be no legal justification for the view that it is subject to
unilateral modification. The thesis that Nicaragua has not accepted "the
same obligation" as the United States is, Nicaragua suggests, completely
baseless. So far as reciprocity is concerned, Nicaragua concludes from its
examination of the views of publicists that reciprocity is ex hypothesi
inapplicable to time-limits, as opposed to express reservations reserving
the power to modify or terminate declarations, and that in respect of such
express reservations reciprocity can only operate when a specific act of
modification or termination is notified by virtue of the express
reservation.
57. The terms of the 1984 notification, introducing substantial changes in
the United States Declaration of Acceptance of 1946, have been quoted above;
they constitute an important element for the development of the Court's
reasoning. The 1984 notification has two salient aspects: on the one hand it
states that the 1946 Declaration of acceptance shall not apply to disputes
with any Central American State or arising out of or related to events in
Central America; on the other hand it states that it is to take effect
immediately, notwithstanding the terms of the 1946 Declaration, and is to
remain in force for two years.
58. The argument between the Parties as to whether the 1984 notification
should be categorized as a modification or as a termination of the 1946
Declaration appears in fact to be without consequence for the purpose of
this Judgment. The truth is that it is intended to secure a partial and
temporary termination, namely to exempt, with immediate effect, the United
States from the obligation to subject itself to the Court's jurisdiction
with regard to any application concerning disputes with Central [p 418]
American States, and disputes arising out of events in Central America.
Counsel for the United States during the hearings claimed that the
notification was equally valid against Nicaragua whether it was regarded as
a "modification" or as a "termination" of the Acceptance Declaration.
59. Declarations of acceptance of the compulsory jurisdiction of the Court
are facultative, unilateral engagements, that States are absolutely free to
make or not to make. In making the declaration a State is equally free
either to do so unconditionally and without limit of time for its duration,
or to qualify it with conditions or reservations. In particular, it may
limit its effect to disputes arising after a certain date; or it may specify
how long the declaration itself shall remain in force, or what notice (if
any) will be required to terminate it. However, the unilateral nature of
declarations does not signify that the State making the declaration is free
to amend the scope and the contents of its solemn commitments as it pleases.
In the Nuclear Tests cases the Court expressed its position on this point
very clearly:
"It is well recognized that declarations made by way of unilateral acts,
concerning legal or factual situations, may have the effect of creating
legal obligations. Declarations of this kind may be, and often are, very
specific. When it is the intention of the State making the declaration that
it should become bound according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State being
thenceforth legally required to follow a course of conduct consistent with
the declaration." (I.C.J. Reports 1974, p. 267, para. 43; p. 472, para. 46.)
60. In fact, the declarations, even though they are unilateral acts,
establish a series of bilateral engagements with other States accepting the
same obligation of compulsory jurisdiction, in which the conditions,
reservations and time-limit clauses are taken into consideration. In the
establishment of this network of engagements, which constitutes the
Optional-Clause system, the principle of good faith plays an important role;
the Court has emphasized the need in international relations for respect for
good faith and confidence in particularly unambiguous terms, also in the
Nuclear Tests cases:
"One of the basic principles governing the creation and performance of legal
obligations, whatever their source, is the principle of good faith. Trust
and confidence are inherent in international cooperation, in particular in
an age when this co-operation in many fields is becoming increasingly
essential. Just as the very rule of pacta sunt servanda in the law of
treaties is based on good faith, so also is the binding character of an
international obligation assumed by unilateral declaration. Thus interested
States may take cognizance of unilateral declarations and place confidence
in them, and are entitled to require that the obligation thus created be
respected." (Ibid., p. 268, para. 46; p. 473, para. 49.)[p 419]
61. The most important question relating to the effect of the 1984
notification is whether the United States was free to disregard the clause
of six months' notice which, freely and by its own choice, it had appended
to its 1946 Declaration. In so doing the United States entered into an
obligation which is binding upon it vis-ΰ-vis other States parties to the
Optional-Clause system. Although the United States retained the right to
modify the contents of the 1946 Declaration or to terminate it, a power
which is inherent in any unilateral act of a State, it has, nevertheless
assumed an inescapable obligation towards other States accepting the
Optional Clause, by stating formally and solemnly that any such change
should take effect only after six months have elapsed as from the date of
notice.
62. The United States has argued that the Nicaraguan 1929 Declaration, being
of undefined duration, is liable to immediate termination, without previous
notice, and that therefore Nicaragua has not accepted "the same obligation"
as itself for the purposes of Article 36, paragraph 2, and consequently may
not rely on the six months' notice proviso against the United States. The
Court does not however consider that this argument entitles the United
States validly to act in non-application of the time-limit proviso included
in the 1946 Declaration. The notion of reciprocity is concerned with the
scope and substance of the commitments entered into, including reservations,
and not with the formal conditions of their creation, duration or
extinction. It appears clearly that reciprocity cannot be invoked in order
to excuse departure from the terms of a State's own declaration, whatever
its scope, limitations or conditions. As the Court observed in the
Interhandel case:
"Reciprocity enables the State which has made the wider acceptance of the
jurisdiction of the Court to rely upon the reservations to the acceptance
laid down by the other party. There the effect of reciprocity ends. It
cannot justify a State, in this instance, the United States, in relying upon
a restriction which the other party, Switzerland, has not included in its
own Declaration." (I.C.J. Reports 1959, p. 23.)
The maintenance in force of the United States Declaration for six months
after notice of termination is a positive undertaking, flowing from the
time-limit clause, but the Nicaraguan Declaration contains no express
restriction at all. It is therefore clear that the United States is not in a
position to invoke reciprocity as a basis for its action in making the 1984
notification which purported to modify the content of the 1946 Declaration.
On the contrary it is Nicaragua that can invoke the six months' notice
against the United States -- not of course on the basis of reciprocity, but
because it is an undertaking which is an integral part of the instrument
that contains it.
63. Moreover, since the United States purported to act on 6 April 1984 in
such a way as to modify its 1946 Declaration with sufficiently immediate
effect to bar an Application filed on 9 April 1984, it would be necessary,
if [p 420] reciprocity is to be relied on, for the Nicaraguan Declaration to
be terminable with immediate effect. But the right of immediate termination
of declarations with indefinite duration is far from established. It appears
from the requirements of good faith that they should be treated, by analogy,
according to the law of treaties, which requires a reasonable time for
withdrawal from or termination of treaties that contain no provision
regarding the duration of their validity. Since Nicaragua has in fact not
manifested any intention to withdraw its own declaration, the question of
what reasonable period of notice would legally be required does not need to
be further examined: it need only be observed that from 6 to 9 April would
not amount to a "reasonable time".
64. The Court would also recall that in previous cases in which it has had
to examine the reciprocal effect of declarations made under the Optional
Clause, it has determined whether or not the "same obligation" was in
existence at the moment of seising of the Court, by comparing the effect of
the provisions, in particular the reservations, of the two declarations at
that moment. The Court is not convinced that it would be appropriate, or
possible, to try to determine whether a State against which proceedings had
not yet been instituted could rely on a provision in another State's
declaration to terminate or modify its obligations before the Court was
seised. The United States argument attributes to the concept of reciprocity,
as embodied in Article 36 of the Statute, especially in paragraphs 2 and 3,
a meaning that goes beyond the way in which it has been interpreted by the
Court, according to its consistent jurisprudence. That jurisprudence
supports the view that a determination of the existence of the "same
obligation" requires the presence of two parties to a case, and a defined
issue between them, which conditions can only be satisfied when proceedings
have been instituted. In the case of Right of Passage over Indian Territory,
the Court observed that
"when a case is submitted to the Court, it is always possible to ascertain
what are, at that moment, the reciprocal obligations of the Parties in
accordance with their respective Declarations" (I.C.J. Reports 1957, p.
143).
"It is not necessary that the 'same obligation' should be irrevocably
defined at the time of the deposit of the Declaration of Acceptance for the
entire period of its duration. That expression means no more than that, as
between States adhering to the Optional Clause, each and all of them are
bound by such identical obligations as may exist at any time during which
the Acceptance is mutually binding." (Ibid., p. 144.)
The coincidence or interrelation of those obligations thus remain in a state
of flux until the moment of the filing of an application instituting
proceedings. The Court has then to ascertain whether, at that moment, the
two [p 421] States accepted "the same obligation" in relation to the
subject-matter of the proceedings; the possibility that, prior to that
moment, the one enjoyed a wider right to modify its obligation than did the
other, is without incidence on the question.
65. In sum, the six months' notice clause forms an important integral part
of the United States Declaration and it is a condition that must be complied
with in case of either termination or modification. Consequently, the 1984
notification, in the present case, cannot override the obligation of the
United States to submit to the compulsory jurisdiction of the Court
vis-a-vis Nicaragua, a State accepting the same obligation.
**
66. The conclusion just reached renders it unnecessary for the Court to pass
upon a further reason advanced by Nicaragua for the ineffectiveness of the
1984 notification. An acceptance of the compulsory jurisdiction of the
Court, governed in many respects by the principles of treaty law, cannot,
Nicaragua argues, be contracted or varied by a mere letter from the United
States Secretary of State. Drawing attention to the provisions of the
Constitution of the United States as to the power of making treaties,
Nicaragua contends that the 1984 notification is, as a matter of United
States law, a nullity, and is equally invalid under the principles of the
law of treaties, because it was issued in manifest violation of an internal
rule of law of fundamental importance (cf. Art. 46 of the Vienna Convention
on the Law of Treaties). However, since the Court has found that, even
assuming that the 1984 notification is otherwise valid and effective, its
operation remains subject to the six months' notice stipulated in 1946, and
hence it is inapplicable in this case, the question of the effect of
internal constitutional procedures on the international validity of the
notification does not have to be determined.
***
67. The question remains to be resolved whether the United States
Declaration of 1946, though not suspended in its effects vis-ΰ-vis Nicaragua
by the 1984 notification, constitutes the necessary of the United States to
the jurisdiction of the Court in the present case, taking into account the
reservations which were attached to the declaration. Specifically, the
United States has invoked proviso (c) to that declaration, which provides
that the United States acceptance of the Court's compulsory jurisdiction
shall not extend to
"disputes arising under a multilateral treaty, unless (1) all parties to the
treaty affected by the decision are also parties to the case before [p 422]
the Court, or (2) the United States of America specially agrees to
jurisdiction".
This reservation will be referred to for convenience as the "multilateral
treaty reservation". Of the two remaining provisos to the declaration, it
has not been suggested that proviso (a), referring to disputes the solution
of which is entrusted to other tribunals, has any relevance to the present
case. As for proviso (b), excluding jurisdiction over "disputes with regard
to matters which are essentially within the domestic jurisdiction of the
United States of America as determined by the United States of America", the
United States has informed the Court that it has determined not to invoke
this proviso, but "without prejudice to the rights of the United States
under that proviso in relation to any subsequent pleadings, proceedings, or
cases before this Court".
68. The United States points out that Nicaragua relies in its Application on
four multilateral treaties, namely the Charter of the United Nations, the
Charter of the Organization of American States, the Montevideo Convention on
Rights and Duties of States of 26 December 1933. and the Havana Convention
on the Rights and Duties of States in the Event of Civil Strife of 20
February 1928. In so far as the dispute brought before the Court is thus one
"arising under" those multilateral treaties, since the United States has not
specially agreed to jurisdiction here, the Court may, it is claimed,
exercise jurisdiction only if all treaty parties affected by a prospective
decision of the Court are also parties to the case. The United States
explains the rationale of its multilateral treaty reservation as being that
it protects the United States and third States from the inherently
prejudicial effects of partial adjudication of complex multiparty disputes.
Emphasizing that the reservation speaks only of States "affected by" a
decision, and not of States having a legal right or interest in the
proceedings, the United States identifies, as States parties to the four
multilateral treaties above mentioned which would be "affected", in a legal
and practical sense, by adjudication of the claims submitted to the Court.
Nicaragua's three Central American neighbours, Honduras, Costa Rica and El
Salvador.
69. The United States recognizes that the multilateral treaty reservation
applies in terms only to "disputes arising under a multilateral treaty", and
notes that Nicaragua in its Application asserts also that the United States
has "violated fundamental rules of general and customary international law".
However, it is nonetheless the submission of the United States that [p 423]
all the claims set forth in Nicaragua's Application are outside the
jurisdiction of the Court. According to the argument of the United States,
Nicaragua's claims styled as violations of general and customary
international law merely restate or paraphrase its claims and allegations
based expressly on the multilateral treaties mentioned above, and Nicaragua
in its Memorial itself states that its "fundamental contention" is that the
conduct of the United States is a violation of the United Nations Charter
and the Charter of the Organization of American States. The evidence of
customary law offered by Nicaragua consists of General Assembly resolutions
that merely reiterate or elucidate the United Nations Charter; nor can the
Court determine the merits of Nicaragua's claims formulated under customary
and general international law without interpreting and applying the United
Nations Charter and the Organization of American States Charter, and since
the multilateral treaty reservation bars adjudication of claims based on
those treaties, it bars all Nicaragua's claims.
70. Nicaragua on the other hand contends that if the multilateral treaty
reservation is given its correct interpretation, taking into account in
particular the travaux preparatories leading to the insertion by the United
States Senate of the reservation into the draft text of the 1946
Declaration, the reservation cannot preclude jurisdiction over any part of
Nicaragua's Application. According to Nicaragua, the record demonstrates
that the reservation is pure surplusage and does not impose any limitation
on acceptance of compulsory jurisdiction by the United States. The amendment
whereby the reservation was introduced was conceived, intended and enacted
to deal with a specific situation: a multiparty suit against the United
States that included parties that had not accepted the Court's compulsory
jurisdiction. Nicaragua contends, not that the reservation is a nullity, but
that when its meaning is properly understood, it turns out to be redundant.
The United States interpretation of the reservation finds no support,
according to Nicaragua, in its legislative history, and would establish a
thoroughly unworkable standard inasmuch as it would be necessary to
ascertain in what circumstances a State not party to a case should be deemed
"affected" by the decision which is yet to be taken by the Court. Nicaragua
argues that the supposed interests of those States that the United States
alleges might be affected by a decision in this case are either non-existent
or plainly beyond the scope of any such decision, and that the
communications sent by those States to the Court fail to establish that they
would be so affected.
71. Furthermore, Nicaragua denies that its claims based on customary law are
no more than paraphrases of its allegations of violation of the United
Nations Charter, and emphasizes that the same facts may justify invocation
of distinct causes of action. Specifically, the provisions of the United
Nations Charter relating to the use of force by States, while they may still
rank as provisions of a treaty for certain purposes, are now within [p 424]
the realm of general international law and their application is not a
question exclusively of interpreting a multilateral treaty. The law relating
to the use of force is not contained wholly in the Charter, and in the
practice of States claims of State responsibility involving violence may be
and frequently are formulated without relying on the Charter. Accordingly,
Nicaragua submits that the multilateral treaty reservation, even if it has
any relevance or validity, has no application to the claims of Nicaragua
based upon customary international law.
72. The multilateral treaty reservation in the United States Declaration has
some obscure aspects, which have been the subject of comment since its
making in 1946. There are two interpretations of the need for the presence
of the parties to the multilateral treaties concerned in the proceedings
before the Court as a condition for the validity of the acceptance of the
compulsory jurisdiction by the United States. It is not clear whether what
are "affected", according to the terms of the proviso, are the treaties
themselves or the parties to them. Similar reservations to be found in
certain other declarations of acceptance, such as those of India, El
Salvador and the Philippines, refer clearly to "all parties" to the
treaties. The phrase "all parties to the treaty affected by the decision" is
at the centre of the present doubts. The United States interprets the
reservation in the present case as referring to the States parties affected
by the decision of the Court, merely mentioning the alternative
interpretation, whereby it is the treaty which is "affected", so that all
parties to the treaty would have to be before the Court, as "an a fortiori
case". This latter interpretation need not therefore be considered. The
argument of the United States relates specifically to El Salvador, Honduras
and Costa Rica, the neighbour States of Nicaragua, which allegedly would be
affected by the decision of the Court.
73. It may first be noted that the multilateral treaty reservation could not
bar adjudication by the Court of all Nicaragua's claims, because Nicaragua,
in its Application, does not confine those claims only to violations of the
four multilateral conventions referred to above (paragraph 68). On the
contrary, Nicaragua invokes a number of principles of customary and general
international law that, according to the Application, have been violated by
the United States. The Court cannot dismiss the claims of Nicaragua under
principles of customary and general international law, simply because such
principles have been enshrined in the texts of the conventions relied upon
by Nicaragua. The fact that the above-mentioned principles, recognized as
such, have been codified or embodied in multilateral conventions does not
mean that they cease to exist and to apply as principles of customary law,
even as regards countries that are parties to such conventions. Principles
such as those of the non-use of force, non-intervention, respect for the
independence and territorial integrity of States, and the freedom of
navigation, continue to be binding as part of customary international law,
despite the operation of provisions of conventional law in which they have
been incorporated. Therefore, since [p 425] the claim before the Court in
this case is not confined to violation of the multilateral conventional
provisions invoked, it would not in any event be barred by the multilateral
treaty reservation in the United States 1946 Declaration.
74. The Court would observe, further, that all three States have made
declarations of acceptance of the compulsory jurisdiction of the Court, and
are free, at any time, to come before the Court, on the basis of Article 36,
paragraph 2, with an application instituting proceedings against Nicaragua
-- a State which is also bound by the compulsory jurisdiction of the Court
by an unconditional declaration without limit of duration --, if they should
find that they might be affected by the future decision of the Court.
Moreover, these States are also free to resort to the incidental procedures
of intervention under Articles 62 and 63 of the Statute, to the second of
which El Salvador has already unsuccessfully resorted in the jurisdictional
phase of the proceedings, but to which it may revert in the merits phase of
the case. There is therefore no question of these States being defenceless
against any consequences that may arise out of adjudication by the Court, or
of their needing the protection of the multilateral treaty reservation of
the United States.
75. The United States Declaration uses the word "affected", without making
it clear who is to determine whether the States refered to are, or are not,
affected. The States themselves would have the choice of either instituting
proceedings or intervening for the protection of their interests, in so far
as these are not already protected by Article 59 of the Statute. As for the
Court, it is only when the general lines of the judgment to be given become
clear that the States "affected" could be identified. By way of example we
may take the hypothesis that if the Court were to decide to reject the
Application of Nicaragua on the facts, there would be no third State's claim
to be affected. Certainly the determination of the States "affected" could
not be left to the parties but must be made by the Court.
76. At any rate, this is a question concerning matters of substance relating
to the merits of the case: obviously the question of what States may be
"affected" by the decision on the merits is not in itself a jurisdictional
problem. The present phase of examination of jurisdictional questions was
opened by the Court itself by its Order of 10 May 1984, not by a formal
preliminary objection submitted by the United States; but it is appropriate
to consider the grounds put forward by the United States for alleged lack of
jurisdiction in the light of the procedural provisions for such objections.
That being so, and since the procedural technique formerly available of
joinder of preliminary objections to the merits has been done away with
since the 1972 revision of the Rules of Court, the Court has no choice but
to avail itself of Article 79, paragraph 7, of the present Rules of Court,
and declare that the objection based on the multilateral treaty reservation
of the United States Declaration of Acceptance does not possess, in the
circumstances of the case, an exclusively preliminary character, and that
consequently it does not constitute an obstacle for the Court [p 426] to
entertain the proceedings instituted by Nicaragua under the Application of 9
April 1984.
77. It is in view of this finding on the United States multilateral treaty
reservation that the Court has to turn to the other ground of jurisdiction
relied on by Nicaragua, even though it is prima facie narrower in scope than
the jurisdiction deriving from the declarations of the two Parties under the
Optional Clause. As noted in paragraphs 1 and 12 above, Nicaragua in its
Application relies on the declarations of the Parties accepting the
compulsory jurisdiction of the Court in order to found jurisdiction, but in
its Memorial it invokes also a 1956 Treaty of Friendship, Commerce and
Navigation between Nicaragua and the United States as a complementary
foundation for the Court's jurisdiction. Since the multilateral treaty
reservation obviously does not affect the jurisdiction of the Court under
the 1956 Treaty, it is appropriate to ascertain the existence of such
jurisdiction, limited as it is.
78. The United States objects to this invocation of a jurisdictional basis
not specified in the Application instituting proceedings: it argues that in
proceedings instituted by means of an application, the jurisdiction of the
Court is founded upon the legal grounds specified in that application. An
Applicant is not permitted, in the view of the United States, to assert in
subsequent pleadings jurisdictional grounds of which it was presumably aware
at the time it filed its Application. While Nicaragua in its Application
purported to reserve the right to amend that Application, and invokes that
reservation to justify adding an alternative jurisdictional basis, the
United States contends that it is ineffective, as it cannot alter the
requirements of the Statute and Rules of Court.
79. Nicaragua has not advanced any arguments to refute the United States
contention that the belated invocation of the 1956 Treaty is impermissible.
During the oral proceedings the Agent of Nicaragua merely explained that in
order to respect the Court's indications regarding the necessity of being as
concise as possible, Nicaragua had omitted from the oral arguments presented
on its behalf a number of arguments developed in the Memorial, and still
asserted by Nicaragua. The Agent stated that Nicaragua does maintain that
the 1956 Treaty constitutes a "subsidiary basis" for the Court's
jurisdiction in the present proceedings, and the final submissions of
Nicaragua incorporated by reference Submission D in the Memorial of
Nicaragua, asserting jurisdiction under the Treaty.
80. The Court considers that the fact that the 1956 Treaty was not invoked
in the Application as a title of jurisdiction does not in itself constitute
a bar to reliance being placed upon it in the Memorial. Since the Court must
always be satisfied that it has jurisdiction before proceeding to [p 427]
examine the merits of a case, it is certainly desirable that "the legal
grounds upon which the jurisdiction of the Court is said to be based" should
be indicated at an early stage in the proceedings, and Article 38 of the
Rules of Court therefore provides for these to be specified "as far as
possible" in the application. An additional ground of jurisdiction may
however be brought to the Court's attention later, and the Court may take it
into account provided the Applicant makes it clear that it intends to
proceed upon that basis (Certain Norwegian Loans, I.C.J. Reports 1957, p.
25), and provided also that the result is not to transform the dispute
brought before the Court by the application into another dispute which is
different in character (Societe Commerciale de Belgique, P.C.I.J., Series
A/B, No. 78, p. 173). Both these conditions are satisfied in the present
case.
81. Article XXIV, paragraph 2, of the Treaty of Friendship, Commerce and
Navigation between the United States of America and Nicaragua, signed at
Managua on 21 January 1956, reads as follows:
"Any dispute between the Parties as to the interpretation or application of
the present Treaty, not satisfactorily adjusted by diplomacy, shall be
submitted to the International Court of Justice, unless the Parties agree to
settlement by some other pacific means."
The treaty entered into force on 24 May 1958 on exchange of ratifications;
it was registered with the Secretariat of the United Nations by the United
States on 11 July 1960. The provisions of Article XXIV, paragraph 2, are in
terms which are very common in bilateral treaties of amity or of
establishment, and the intention of the parties in accepting such clauses is
clearly to provide for such a right of unilateral recourse to the Court in
the absence of agreement to employ some other pacific means of settlement
(cf. United States Diplomatic and Consular Staff in Tehran, I.C.J. Reports
1980, p. 27, para. 52). In the present case, the United States does not deny
either that the Treaty is in force, or that Article XXIV is in general
capable of conferring jurisdiction on the Court. It contends however that if
the basis of jurisdiction is limited to the Treaty, since Nicaragua's
Application presents no claims of any violations of it, there are no claims
properly before the Court for adjudication. In order to establish the
Court's jurisdiction over the present dispute under the Treaty, Nicaragua
must establish a reasonable connection between the Treaty and the claims
submitted to the Court; but according to the United States, Nicaragua cannot
establish such a connection. Furthermore, the United States has drawn
attention to the reference in Article XXIV to disputes "not satisfactorily
adjusted by diplomacy", and argues that an attempt so to adjust the dispute
is thus a prerequisite of its submission to the Court. Since, according to
the United States, Nicaragua has never even raised in negotiations with the
United States the application or interpretation of the Treaty to any of the
factual or legal allegations in its Application, Nicaragua has [p 428]
failed to satisfy the Treaty's own terms for invoking the compromissory
clause.
82. Nicaragua in its Memorial submits that the 1956 Treaty has been and was
being violated by the military and paramilitary activities of the United
States in and against Nicaragua, as described in the Application;
specifically, it is submitted that these activities directly violate the
following Articles:
Article XIX: providing for freedom of commerce and navigation, and for
vessels of either party to have liberty "to come with their cargoes to all
ports, places and waters of such other party open to foreign commerce and
navigation", and to be accorded national treatment and most-favored-nation
treatment within those ports, places and waters.
Article XIV: forbidding the imposition of restrictions or prohibitions on
the importation of any product of the other party, or on the exportation of
any product to the territories of the other party.
Article XVII: forbidding any measure of a discriminatory nature that hinders
or prevents the importer or exporter of products of either country from
obtaining marine insurance on such products in companies of either party.
Article XX: providing for freedom of transit through the territories of each
party.
Article I: providing that each party shall at all times accord equitable
treatment to the persons, property, enterprises and other interests of
nationals and companies of the other party.
83. Taking into account these Articles of the Treaty of 1956, particularly
the provision in, inter alia, Article XIX, for the freedom of commerce and
navigation, and the references in the Preamble to peace and friendship,
there can be no doubt that, in the circumstances in which Nicaragua brought
its Application to the Court, and on the basis of the facts there asserted,
there is a dispute between the Parties, inter alia, as to the
"interpretation or application" of the Treaty. That dispute is also clearly
one which is not "satisfactorily adjusted by diplomacy" within the meaning
of Article XXIV of the 1956 Treaty (cf. United States Diplomatic and
Consular Staff in Tehran, I.C.J. Reports 1980, pp. 26-28, paras. 50 to 54).
In the view of the Court, it does not necessarily follow that, because a
State has not expressly referred in negotiations with another State to a
particular treaty as having been violated by conduct of that other State, it
is debarred from invoking a compromissory clause in that treaty. The United
States was well aware that Nicaragua alleged that its conduct was a breach
of international obligations before the present case was instituted; and it
is now aware that specific articles of the 1956 Treaty are alleged to have
been violated. It would make no sense to require Nicaragua now to institute
fresh proceed-[p 429] ings based on the Treaty, which it would be fully
entitled to do. As the Permanent Court observed,
"the Court cannot allow itself to be hampered by a mere defect of form, the
removal of which depends solely on the party concerned" (Certain German
Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925,
P.C.I.J., Series A, No. 6, p. 14).
Accordingly, the Court finds that, to the extent that the claims in
Nicaragua's Application constitute a dispute as to the interpretation or the
application of the Articles of the Treaty of 1956 described in paragraph 82
above, the Court has jurisdiction under that Treaty to entertain such
claims.
***
84. The Court now turns to the question of the admissibility of the
Application of Nicaragua. The United States of America contended in its
Counter-Memorial that Nicaragua's Application is inadmissible on five
separate grounds, each of which, it is said, is sufficient to establish such
inadmissibility, whether considered as a legal bar to adjudication or as "a
matter requiring the exercise of prudential discretion in the interest of
the integrity of the judicial function". Some of these grounds have in fact
been presented in terms suggesting that they are matters of competence or
jurisdiction rather than admissibility, but it does not appear to be of
critical importance how they are classified in this respect. These grounds
will now be examined; but for the sake of clarity it will first be
convenient to recall briefly what are the allegations of Nicaragua upon
which it bases its claims against the United States.
85. In its Application instituting proceedings, Nicaragua asserts that:
"The United States of America is using military force against Nicaragua and
intervening in Nicaragua's internal affairs, in violation of Nicaragua's
sovereignty, territorial integrity and political independence and of the
most fundamental and universally accepted principles of international law.
The United States has created an 'army' of more than 10,000 mercenaries ...
installed them in more than ten base camps in Honduras along the border with
Nicaragua, trained them, paid them, supplied them with arms, ammunition,
food and medical supplies, and directed their attacks against human and
economic targets inside Nicaragua",
and that Nicaragua has already suffered and is now suffering grievous
consequences as a result of these activities. The purpose of these
activities is claimed to be
"to harass and destabilize the Government of Nicaragua so that ultimately it
will be overthrown, or, at a minimum, compelled to change those of its
domestic and foreign policies that displease the United States".[p 430]
86. The first ground of inadmissibility relied on by the United States is
that Nicaragua has failed to bring before the Court parties whose presence
and participation is necessary for the rights of those parties to be
protected and for the adjudication of the issues raised in the Application.
The United States first asserts that adjudication of Nicaragua's claim would
necessarily implicate the rights and obligations of other States, in
particular those of Honduras, since it is alleged that Honduras has allowed
its territory to be used as a staging ground for unlawful uses of force
against Nicaragua, and the adjudication of Nicaragua's claims would
necessarily involve the adjudication of the rights of third States with
respect to measures taken to protect themselves, in accordance with Article
51 of the United Nations Charter, against unlawful uses of force employed,
according to the United States, by Nicaragua. Secondly, it is claimed by the
United States that it is fundamental to the jurisprudence of the Court that
it cannot determine the rights and obligations of States without their
express consent or participation in the proceedings before the Court.
Nicaragua questions whether the practice of the Court supports the
contention that a case cannot be allowed to go forward in the absence of
"indispensable parties", and emphasizes that in the present proceedings
Nicaragua asserts claims against the United States only, and not against any
absent State, so that the Court is not required to exercise jurisdiction
over any such State. Nicaragua's Application does not put in issue the right
of a third State to receive military or economic assistance from the United
States (or from any other source). As another basis for the indispensable
status of third States, the United States contends that facts concerning
relevant activities by or against them may not be in the possession or
control of a Party. Nicaragua refers to the powers of the Court under
Article 44 of the Statute and Article 66 of the Rules of Court, and observes
that it would be in the third States' interest to provide the United States
with factual material under their control.
87. This contention was already raised by the United States at the stage of
the proceedings on the request for provisional measures when it argued that
"the other States of Central America have stated their view that Nicaragua's
request for the indication of provisional measures directly implicates their
rights and interests, and that an indication of such measures would
interfere with the Contadora negotiations. These other Central American
States are indispensable parties in whose absence this Court cannot properly
proceed." (I.C.J. Reports 1984, p. 184, para. 35.)
The United States then referred to communications addressed to the Court by
the Governments of Costa Rica and El Salvador, and a telex message to the
United Nations Secretary-General addressed by the Government of Honduras
which, according to the United States, "make it quite clear that Nicaragua's
claims are inextricably linked to the rights and interests of [p 431] those
other States", and added "Any decision to indicate the interim measures
requested, or a decision on the merits, would necessarily affect the rights
of States not party to the proceedings" (ibid.). It should be pointed out,
however, that in none of the communications from the three States mentioned
by the United States was there any indication of an intention to intervene
in the proceedings before the Court between Nicaragua and the United States
of America, and one (Costa Rica) made it abundantly clear that it was not to
be regarded as indicating such an intention. At a later date El Salvador did
of course endeavour to intervene.
88. There is no doubt that in appropriate circumstances the Court will
decline, as it did in the case concerning Monetary Gold Removed from Rome in
1943, to exercise the jurisdiction conferred upon it where the legal
interests of a State not party to the proceedings "would not only be
affected by a decision, but would form the very subject-matter of the
decision" (I.C.J. Reports 1954, p. 32). Where however claims of a legal
nature are made by an Applicant against a Respondent in proceedings before
the Court, and made the subject of submissions, the Court has in principle
merely to decide upon those submissions, with binding force for the parties
only, and no other State, in accordance with Article 59 of the Statute. As
the Court has already indicated (paragraph 74, above) other States which
consider that they may be affected are free to institute separate
proceedings, or to employ the procedure of intervention. There is no trace,
either in the Statute or in the practice of international tribunals, of an
"indispensable parties" rule of the kind argued for by the United States,
which would only be conceivable in parallel to a power, which the Court does
not possess, to direct that a third State be made a party to proceedings.
The circumstances of the Monetary Gold case probably represent the limit of
the power of the Court to refuse to exercise its jurisdiction; and none of
the States referred to can be regarded as in the same position as Albania in
that case, so as to be truly indispensable to the pursuance of the
proceedings.
*
89. Secondly, the United States regards the Application as inadmissible
because each of Nicaragua's allegations constitutes no more than a
reformulation and restatement of a single fundamental claim, that the United
States is engaged in an unlawful use of armed force, or breach of the peace,
or acts of aggression against Nicaragua, a matter which is committed by the
Charter and by practice to the competence of other organs, in particular the
United Nations Security Council. All allegations of this kind are confided
to the political organs of the Organization for consideration and
determination; the United States quotes Article 24 of the Charter, which
confers upon the Security Council "primary responsibility for the
maintenance of international peace and security". The provisions of the
Charter [p 432] dealing with the ongoing use of armed force contain no
recognition of the possibility of settlement by judicial, as opposed to
political, means. Under Article 52 of the Charter there is also a commitment
of responsibility for the maintenance of international peace and security to
regional agencies and arrangements, and in the view of the United States the
Contadora process is precisely the sort of regional arrangement or agency
that Article 52 contemplates.
90. Nicaragua contends that the United States argument fails to take account
of the fundamental distinction between Article 2, paragraph 4, of the
Charter which defines a legal obligation to refrain from the threat or use
of force, and Article 39, which establishes a political process. The
responsibility of the Security Council under Article 24 of the Charter for
the maintenance of international peace and security is "primary", not
exclusive. Until the Security Council makes a determination under Article
39, a dispute remains to be dealt with by the methods of peaceful settlement
provided under Article 33, including judicial settlement; and even after a
determination under Article 39, there is no necessary inconsistency between
Security Council action and adjudication by the Court. From a juridical
standpoint, the decisions of the Court and the actions of the Security
Council are entirely separate.
91. It will be convenient to deal with this alleged ground of
inadmissibility together with the third ground advanced by the United States
namely that the Court should hold the Application of Nicaragua to be
inadmissible in view of the subject-matter of the Application and the
position of the Court within the United Nations system, including the impact
of proceedings before the Court on the ongoing exercise of the "inherent
right of individual or collective self-defence" under Article 51 of the
Charter. This is, it is argued, a reason why the Court may not properly
exercise "subject-matter jurisdiction" over Nicaragua's claims. Under this
head, the United States repeats its contention that the Nicaraguan
Application requires the Court to determine that the activities complained
of constitute a threat to the peace, a breach of the peace, or an act of
aggression, and proceeds to demonstrate that the political organs of the
United Nations, to which such matters are entrusted by the Charter, have
acted, and are acting, in respect of virtually identical claims placed
before them by Nicaragua. The United States points to the approach made by
Nicaragua to the Security Council on 4 April 1984, a few days before the
institution of the present proceedings: the draft resolution then presented,
corresponding to the claims submitted by Nicaragua to the Court, failed to
achieve the requisite majority under Article 27, paragraph 3, of the
Charter. However, this fact, it is argued, and the perceived likelihood that
similar claims in future would fail to secure the required majority, does
not vest the Court with subject-matter jurisdiction over the Application.
Since Nicaragua's Application in effect asks the Court for a judgment in all
material respects identical to the decision which the Security Council did
not take, it amounts to an appeal to the Court from an adverse consid-[p
433] eration in the Security Council. Furthermore, in order to reach a
determination on what amounts to a claim of aggression the Court would have
to decide whether the actions of the United States, and the other States not
before the Court, are or are not unlawful: more specifically, it would have
to decide on the application of Article 51 of the Charter, concerning the
right of self-defence. Any such action by the Court cannot be reconciled
with the terms of Article 51, which provides a role in such matters only for
the Security Council. Nor would it be only in case of a decision by the
Court that the inherent right of self-defence would be impaired: the fact
that such claims are being subjected to judicial examination in the midst of
the conflict that gives rise to them may alone be sufficient to constitute
such impairment.
92. Nicaragua observes in this connection that there is no generalized right
of self-defence: Article 51 of the Charter refers to the inherent right of
self-defence "if an armed attack occurs against a Member of the United
Nations". The factual allegations made against Nicaragua by the United
States, even if true, fall short of an "armed attack" within the meaning of
Article 51. While that Article requires that actions under it "must be
immediately reported to the Security Council" -- and no such report has been
made -- it does not support the claim that the question of the legitimacy of
actions assertedly taken in self-defence is committed exclusively to the
Security Council. The argument of the United States as to the powers of the
Security Council and of the Court is an attempt to transfer municipal-law
concepts of separation of powers to the international plane, whereas these
concepts are not applicable to the relations among international
institutions for the settlement of disputes.
93. The United States is thus arguing that the matter was essentially one
for the Security Council since it concerned a complaint by Nicaragua
involving the use of force. However, having regard to the United States
Diplomatic and Consular Staff in Tehran case, the Court is of the view that
the fact that a matter is before the Security Council should not prevent it
being dealt with by the Court and that both proceedings could be pursued
pari passu. In that case the Court held:
"In the preamble to this second resolution the Security Council expressly
took into account the Court's Order of 15 December 1979 indicating
provisional measures; and it does not seem to have occurred to any member of
the Council that there was or could be anything irregular in the
simultaneous exercise of their respective functions by the Court and the
Security Council. Nor is there in this any cause for surprise." (I.C.J.
Reports 1980, p. 21, para. 40.)
The Court in fact went further, to say:
"Whereas Article 12 of the Charter expressly forbids the General Assembly to
make any recommendation with regard to a dispute or situation while the
Security Council is exercising its functions in [p 434] respect of that
dispute or situation, no such restriction is placed on the functioning of
the Court by any provision of either the Charter or the Statute of the
Court. The reasons are clear. It is for the Court, the principal judicial
organ of the United Nations, to resolve any legal questions that may be in
issue between parties to the dispute; and the resolution of such legal
questions by the Court may be an important, and sometimes decisive, factor
in promoting the peaceful settlement of the dispute. This is indeed
recognized by Article 36 of the Charter, paragraph 3 of which specifically
provides that:
In making recommendations under this Article the Security Council should
also take into consideration that legal disputes should as a general rule be
referred by the parties to the International Court of Justice in accordance
with the provisions of the Statute of the Court.'" (I.C.J. Reports 1980, p.
22, para. 40.)
94. The United States argument is also founded on a construction, which the
Court is unable to share, of Nicaragua's complaint about the United States
use, or threat of the use, of force against its territorial integrity and
national independence, in breach of Article 2, paragraph 4, of the United
Nations Charter. The United States argues that Nicaragua has thereby invoked
a charge of aggression and armed conflict envisaged in Article 39 of the
United Nations Charter, which can only be dealt with by the Security Council
in accordance with the provisions of Chapter VII of the Charter, and not in
accordance with the provisions of Chapter VI. This presentation of the
matter by the United States treats the present dispute between Nicaragua and
itself as a case of armed conflict which must be dealt with only by the
Security Council and not by the Court which, under Article 2, paragraph 4,
and Chapter VI of the Charter, deals with pacific settlement of all disputes
between member States of the United Nations. But, if so, it has to be noted
that, while the matter has been discussed in the Security Council, no
notification has been given to it in accordance with Chapter VII of the
Charter, so that the issue could be tabled for full discussion before a
decision were taken for the necessary enforcement measures to be authorized.
It is clear that the complaint of Nicaragua is not about an ongoing armed
conflict between it and the United States, but one requiring, and indeed
demanding, the peaceful settlement of disputes between the two States.
Hence, it is properly brought before the principal judicial organ of the
Organization for peaceful settlement.
95. It is necessary to emphasize that Article 24 of the Charter of the
United Nations provides that
"In order to ensure prompt and effective action by the United Nations, its
Members confer on the Security Council primary responsibility for the
maintenance of international peace and security . . ."
The Charter accordingly does not confer exclusive responsibility upon the
Security Council for the purpose. While in Article 12 there is a provision
[p 435] for a clear demarcation of functions between the General Assembly
and the Security Council, in respect of any dispute or situation, that the
former should not make any recommendation with regard to that dispute or
situation unless the Security Council so requires, there is no similar
provision anywhere in the Charter with respect to the Security Council and
the Court. The Council has functions of a political nature assigned to it,
whereas the Court exercises purely judicial functions. Both organs can
therefore perform their separate but complementary functions with respect to
the same events.
96. It must also be remembered that, as the Corfu Channel case (I.C.J.
Reports 1949, p. 4) shows, the Court has never shied away from a case
brought before it merely because it had political implications or because it
involved serious elements of the use of force. The Court was concerned with
a question of a "demonstration of force" (cf. loc. cit., p. 31) or
"violation of a country's sovereignty" (ibid.); the Court, indeed, found
that
"Intervention is perhaps still less admissible in the particular form it
would take here; for, from the nature of things, it would be reserved for
the most powerful States, and might easily lead to perverting the
administration of international justice itself." (Ibid., p. 35.)
What is also significant is that the Security Council itself in that case
had "undoubtedly intended that the whole dispute should be decided by the
Court" (p. 26).
97. It is relevant also to observe that while the United States is arguing
today that because of the alleged ongoing armed conflict between the two
States the matter could not be brought to the International Court of Justice
but should be referred to the Security Council, in the 1950s the United
States brought seven cases to the Court involving armed attacks by military
aircraft of other States against United States military aircraft; the only
reason the cases were not dealt with by the Court was that each of the
Respondent States indicated that it had not accepted the jurisdiction of the
Court, and was not willing to do so for the purposes of the case. The United
States did not contradict Nicaragua's argument that the United States indeed
brought these suits against the Respondents in this Court, rather than in
the Security Council. It has argued further that in both the Corfu Channel
case and the Aerial Incident cases, the Court was asked to adjudicate the
rights and duties of the parties with respect to a matter that was fully in
the past. To a considerable extent this is a question relevant to the fourth
ground of inadmissibility advanced by the United States, to be examined
below. However the United States also contends that the Corfu Channel case,
at least, shows that it was the fact that the incident in question was not
part of an ongoing use of armed force that led the Security Council to
conclude that its competence was not engaged. In the view of the Court, this
argument is not relevant.[p 436]
98. Nor can the Court accept that the present proceedings are objectionable
as being in effect an appeal to the Court from an adverse decision of the
Security Council. The Court is not asked to say that the Security Council
was wrong in its decision, nor that there was anything inconsistent with law
in the way in which the members of the Council employed their right to vote.
The Court
is asked to pass judgment on certain legal aspects of a situation which has
also been considered by the Security Council, a procedure which is entirely
consonant with its position as the principal judicial organ of the United
Nations. As to the inherent right of self-defence, the fact that it is
referred to in the Charter as a "right" is indicative of a legal dimension;
if in the present proceedings it becomes necessary for the Court to judge in
this respect between the Parties -- for the rights of no other State may be
adjudicated in these proceedings -- it cannot be debarred from doing so by
the existence of a procedure for the States concerned to report to the
Security Council in this connection.
*
99. The fourth ground of inadmissibility put forward by the United States is
that the Application should be held inadmissible in consideration of the
inability of the judicial function to deal with situations involving ongoing
conflict. The allegation, attributed by the United States to Nicaragua, of
an ongoing conflict involving the use of armed force contrary to the Charter
is said to be central to, and inseparable from, the Application as a whole,
and is one with which a court cannot deal effectively without overstepping
proper judicial bounds. The resort to force during ongoing armed conflict
lacks the attributes necessary for the application of the judicial process,
namely a pattern of legally relevant facts discernible by the means
available to the adjudicating tribunal, establishable in conformity with
applicable norms of evidence and proof, and not subject to further material
evolution during the course of, or subsequent to, the judicial proceedings.
It is for reasons of this nature that ongoing armed conflict must be
entrusted to resolution by political processes. The situation alleged in the
Nicaraguan Application, in particular, cannot be judicially managed or
resolved; continuing practical guidance to the Parties in respect of the
measures required of them is critical to the effective control of situations
of armed conflict such as is there alleged to exist. But the Court has, it
is said, recognized that giving such practical guidance to the Parties lies
outside the scope of the judicial function. The United States does not argue
that the Application must be dismissed because it presents a "political"
question rather than a "legal" question, but rather that an allegation of an
ongoing use of unlawful armed force was never intended by the drafters of
the Charter to be encompassed by Article 36, paragraph 2, of the Statute. It
is also recalled that the circumstances alleged in the Application involve
the activities of "groups indigenous to Nicaragua" that have their own
motivations and are beyond the control of any State. The United States
emphasizes, however, that to conclude that the Court [p 437] cannot
adjudicate the merits of the complaints alleged does not require the
conclusion that international law is neither directly relevant nor of
fundamental importance in the settlement of international disputes, but
merely that in this respect the application of international legal
principles is the responsibility of other organs set up under the Charter.
100. Nicaragua contends that, inasmuch as the United States questions
whether the Court would have at its disposal vital evidence necessary to
resolve the dispute, the problem is not so much the nature of the dispute as
the willingness of the Respondent fully to inform the Court about the
activities of which it is accused. Nicaragua also points to the Corfu
Channel case as showing, as the Court has noted above (paragraph 96), that
the Court does exercise its judicial functions in situations of armed
conflict. The Court will decide in the light of the evidence produced by the
Parties, and enjoys considerable powers in the obtaining of evidence.
Nicaragua disputes that the judicial function, being governed by the
principle of res judicata, is "inherently retrospective", and therefore
inapplicable to a fluid situation. Nicaragua concedes that a judgment
delivered by the Court must be capable of execution, but points out that
such a judgment does not by itself resolve -- and is not intended to resolve
-- all the difficulties between the parties. The Court is not being asked to
bring an armed conflict to an end by nothing more than the power of words.
101. The Court is bound to observe that any judgment on the merits in the
present case will be limited to upholding such submissions of the Parties as
have been supported by sufficient proof of relevant facts, and are regarded
by the Court as sound in law. A situation of armed conflict is not the only
one in which evidence of fact may be difficult to come by, and the Court has
in the past recognized and made allowance for this (Corfu Channel, I.C.J.
Reports 1949, p. 18; United States Diplomatic and Consular Staff in Tehran,
I.C.J. Reports 1980, p. 10, para. 13). Ultimately, however, it is the
litigant seeking to establish a fact who bears the burden of proving it; and
in cases where evidence may not be forthcoming, a submission may in the
judgment be rejected as unproved, but is not to be ruled out as inadmissible
in limine on the basis of an anticipated lack of proof. As to the
possibility of implementation of the judgment, the Court will have to assess
this question also on the basis of each specific submission, and in the
light of the facts as then established; it cannot at this stage rule out a
priori any judicial contribution to the settlement of the dispute by
declaring the Application inadmissible. It should be observed however that
the Court "neither can nor should contemplate the contingency of the
judgment not being complied with" (Factory at Chorzow, P.C.I.J., Series A,
No. 17, p. 63). Both the Parties have undertaken to comply with the
decisions of the Court, under Article 94 of the Charter; and
"Once the Court has found that a State has entered into a com-[p 438]
mitment concerning its future conduct it is not the Court's function to
contemplate that it will not comply with it." (Nuclear Tests, I.C.J. Reports
1974, p. 272, para. 60; p. 477, para. 63.)
*
102. The fifth and final contention of the United States under this head is
that the Application should be held inadmissible because Nicaragua has
failed to exhaust the established processes for the resolution of the
conflicts occurring in Central America. In the contention of the United
States, the Contadora process, to which Nicaragua is party, is recognized
both by the political organs of the United Nations and by the Organization
of American States, as the appopriate method for the resolution of the
issues of Central America. That process has achieved agreement among the
States of the region, including Nicaragua, on aims which go to the very
heart of the claims and issues raised by the Application. The United States
repeats its contention (paragraph 89, above) that the Contadora process is a
"regional arrangement" within the meaning of Article 52, paragraph 2, of the
Charter, and contends that under that Article, Nicaragua is obliged to make
every effort to achieve a solution to the security problems of Central
America through the Contadora process. The exhaustion of such regional
processes is laid down in the Charter as a precondition to the reference of
a dispute to the Security Council only, in view of its primary
responsibility in this domain, but such a limitation must a fortiori apply
with even greater force with respect to the Court, which has no specific
responsibility under the Charter for dealing with such matters. Nicaragua
is, it is claimed, under a similar obligation under Articles 20 and 21 of
the Charter of the Organization of American States. Furthermore, Nicaragua
is asking the Court to adjudicate only certain of the issues involved in the
Contadora process, and this would have the inevitable effect of rendering
those issues largely immune to further adjustment in the course of the
negotiations, thus disrupting the balance of the negotiating process. The
Nicaraguan Application is incompatible with the Contadora process and, given
the commitment of both Parties to that process, the international
endorsement of it, and its comprehensive, integrated nature, the Court
should, it is contended, refrain from adjudicating the merits of the
Nicaraguan allegations and hold the Application to be inadmissible.
103. Nicaragua points out that the United States is not taking part in the
Contadora process, and cannot shelter behind negotiations between third
States in a forum in which it is not participating. The support given by the
international community to the Contadora process does not constitute an
obstacle to the exercise by the Court of its jurisdiction; and the United
Nations Charter and the Charter of the Organization of American States do
not require the exhaustion of prior regional negotiations. In reply to this
objection of the United States as well as to the third ground of
inadmissibility (paragraphs 91 et seq., above), Nicaragua emphasizes the
parallel competence of the political organs of the United Nations. The Court
may [p 439] pronounce on a dispute which is examined by other political
organs of the United Nations, for it exercises different functions.
104. This issue also was raised at the stage of the request by Nicaragua for
provisional measures, when the Court noted that
"The United States notes that the allegations of the Government of Nicaragua
comprise but one facet of a complex of interrelated political, social,
economic and security matters that confront the Central American region.
Those matters are the subject of a regional diplomatic effort, known as the
'Contadora Process', which has been endorsed by the Organization of American
States, and in which the Government of Nicaragua participates." (I.C.J.
Reports 1984, p. 183, para. 33.)
To this Nicaragua then replied that, while it was
"actively participating in the Contadora Process, and will continue to do
so, our legal claims against the United States cannot be resolved, or even
addressed, through that Process" (ibid., p. 185, para. 38).
Nicaragua further denied that the present proceedings could prejudice the
legitimate rights of any other States or disrupt the Contadora Process, and
referred to previous decisions of the Court as establishing the principle
that the Court is not required to decline to take cognizance of one aspect
of a dispute merely because that dispute has other aspects and that the
Court should not decline its essentially judicial task merely because the
question before the Court is intertwined with political questions.
105. On this latter point, the Court would recall that in the United States
Diplomatic and Consular Staff in Tehran case it stated:
"The Court, at the same time, pointed out that no provision of the Statute
or Rules contemplates that the Court should decline to take cognizance of
one aspect of a dispute merely because that dispute has other aspects,
however important." (I.C.J. Reports 1980, p. 19, para. 36.)
And, a little later, added:
"Yet never has the view been put forward before that, because a legal
dispute submitted to the Court is only one aspect of a political dispute,
the Court should decline to resolve for the parties the legal questions at
issue between them. Nor can any basis for such a view of the Court's
functions or jurisdiction be found in the Charter or the Statute of the
Court; if the Court were, contrary to its settled jurisprudence, to adopt
such a view, it would impose a far-reaching and [p 440] unwarranted
restriction upon the role of the Court in the peaceful solution of
international disputes." (I.C.J. Reports 1980, p. 20, para. 37.)
106. With regard to the contention of the United States of America that the
matter raised in the Nicaraguan Application was part of the Contadora
Process, the Court considers that even the existence of active negotiations
in which both parties might be involved should not prevent both the Security
Council and the Court from exercising their separate functions under the
Charter and the Statute of the Court. It may further be recalled that in the
Aegean Sea Continental Shelf case the Court said:
"The Turkish Government's attitude might thus be interpreted as suggesting
that the Court ought not to proceed with the case while the parties continue
to negotiate and that the existence of active negotiations in progress
constitutes an impediment to the Court's exercise of jurisdiction in the
present case. The Court is unable to share this view. Negotiation and
judicial settlement are enumerated together in Article 33 of the Charter of
the United Nations as means for the peaceful settlement of disputes. The
jurisprudence of the Court provides various examples of cases in which
negotiations and recourse to judicial settlement have been pursued pari
passu. Several cases, the most recent being that concerning the Trial of
Pakistani Prisoners of War (I.C.J. Reports 1973, p. 347), show that judicial
proceedings may be discontinued when such negotiations result in the
settlement of the dispute. Consequently, the fact that negotiations are
being actively pursued during the present proceedings is not, legally, any
obstacle to the exercise by the Court of its judicial function," (I.C.J.
Reports 1978, p. 12, para. 29.)
107. The Court does not consider that the Contadora process, whatever its
merits, can properly be regarded as a "regional arrangement" for the
purposes of Chapter VIII of the Charter of the United Nations. Furthermore,
it is also important always to bear in mind that all regional, bilateral,
and even multilateral, arrangements that the Parties to this case may have
made, touching on the issue of settlement of disputes or the jurisdiction of
the International Court of Justice, must be made always subject to the
provisions of Article 103 of the Charter which reads as follows:
"In the event of a conflict between the obligations of the Members of the
United Nations under the present Charter and their obligations under any
other international agreement, their obligations under the present Charter
shall prevail."
108. In the light of the foregoing, the Court is unable to accept either
that there is any requirement of prior exhaustion of regional negotiating
processes as a precondition to seising the Court; or that the existence of
the Contadora process constitutes in this case an obstacle to the
examination by the Court of the Nicaraguan Application and judicial
determi-[p 441] nation in due course of the submissions of the Parties in
the case. The Court is therefore unable to declare the Application
inadmissible, as requested by the United States, on any of the grounds it
has advanced as requiring such a finding.
**
109. The Court thus has found that Nicaragua, as authorized by the second
paragraph of Article 36 of the Statute of the Permanent Court of
International Justice, made, on 24 September 1929, following its signature
of the Protocol to which the Statute was adjoined, an unconditional
Declaration recognizing the compulsory jurisdiction of the Permanent Court,
in particular without conditions as to ratification and without limit of
time, though it has not been established that the instrument of ratification
of that Protocol ever reached the Secretariat of the League. Nevertheless,
the Court has not been convinced by the arguments addressed to it that the
absence of such formality excluded the operation of Article 36, paragraph 5,
of the Statute of the present Court, and prevented the transfer to the
present Court of the Declaration as a result of the consent thereto given by
Nicaragua which, having been represented at the San Francisco Conference,
signed and ratified the Charter and thereby accepted the Statute in which
Article 36, paragraph 5, appears. It has also found that the constant
acquiescence of Nicaragua in affirmations, to be found in United Nations and
other publications, of its position as bound by the optional clause
constitutes a valid manifestation of its intent to recognize the compulsory
jurisdiction of the Court.
110. Consequently, the Court finds that the Nicaraguan Declaration of 24
September 1929 is valid, and that Nicaragua accordingly was, for the
purposes of Article 36, paragraph 2, of the Statute of the Court, a "State
accepting the same obligation" as the United States of America at the date
of filing of the Application, so as to be able to rely on the United States
Declaration of 26 August 1946. The Court also finds that despite the United
States notification of 6 April 1984, the present Application is not excluded
from the scope of the acceptance by the United States of America of the
compulsory jurisdiction of the Court. Accordingly the Court finds that the
two Declarations do afford a basis for the jurisdiction of the Court.
111. Furthermore, it is quite clear for the Court that, on the basis alone
of the Treaty of Friendship, Commerce and Navigation of 1956, Nicaragua and
the United States of America are bound to accept the compulsory jurisdiction
of this Court over claims presented by the Application of Nicaragua in so
far as they imply violations of provisions of this treaty.
**[p 442]
112. In its above-mentioned Order of 10 May 1984, the Court indicated
provisional measures "pending its final decision in the proceedings
instituted on 9 April 1984 by the Republic of Nicaragua against the United
States of America". It follows that the Order of 10 May 1984, and the
provisional measures indicated therein, remain operative until the delivery
of the final judgment in the present case.
***
113. For these reasons,
The Court,
(1) (a) finds, by eleven votes to five, that it has jurisdiction to
entertain the Application filed by the Republic of Nicaragua on 9 April
1984, on the basis of Article 36, paragraphs 2 and 5, of the Statute of the
Court;
In favour: President
Elias; Vice-President Sette-Camara; Judges Lachs, Morozov, Nagendra Singh,
Ruda, El-Khani, de Lacharriθre, Mbaye, Bedjaoui; Judge ad hoc Colliard;
Against: Judges Mosler, Oda, Ago, Schwebel and Sir Robert Jennings.
(b) finds, by fourteen votes to two, that it has jurisdiction to entertain
the Application filed by the Republic of Nicaragua on 9 April 1984, in so
far as that Application relates to a dispute concerning the interpretation
or application of the Treaty of Friendship, Commerce and Navigation between
the United States of America and the Republic of Nicaragua signed at Managua
on 21 January 1956, on the basis of Article XXIV of that Treaty;
In favour: President Elias; Vice-President Sette-Camara; Judges Lachs,
Morozov, Nagendra Singh, Mosler, Oda, Ago, El-Khani, Sir Robert Jennings, de
Lacharriθre, Mbaye, Bedjaoui; Judge ad hoc Colliard;
Against: Judges Ruda and Schwebel.
(c) finds, by fifteen votes to one, that it has jurisdiction to entertain
the case;
In favour: President Elias; Vice-President Sette-Camara; Judges Lachs,
Morozov, Nagendra Singh, Ruda, Mosler, Oda, Ago, El-Khani, Sir Robert
Jennings, de Lacharriθre, Mbaye, Bedjaoui; Judge ad hoc Colliard;
Against: Judge Schwebel.
(2) finds, unanimously, that the said Application is admissible.[p 443]
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twenty-sixth day of November, one thousand
nine hundred and eighty-four, in three copies, one of which will be placed
in the archives of the Court and the others will be transmitted to the
Government of Nicaragua and to the Government of the United States of
America, respectively.
(Signed) Taslim O. Elias,
President.
(Signed) Santiago Torres Bernαrdez,
Registrar.
Judges Nagendra Singh, Ruda, Mosler, Oda, Ago and Sir Robert Jennings append
separate opinions to the Judgment of the Court.
Judge Schwebel appends a dissenting opinion to the Judgment of the Court.
(Initialled) T.O.E.
(Initialled) S.T.B.
[p 444]
Separate opinion of judge Nagendra Singh
While I have voted for the jurisdiction of the Court on both counts, namely
under the Optional Clause of Article 36, paragraphs 2 and 5, of the Statute
of the Court, as well as under Article 36, paragraph 1, of the Statute on
the basis of Article XXIV, paragraph 2, of the Treaty of Friendship,
Commerce and Navigation of 21 January 1956,I have felt all along in those
proceedings that the jurisdiction of the Court resting upon the latter,
namely the Treaty, provides a clearer and a firmer ground than the
jurisdiction based on the former, that is, the Optional Clause. The reasons
are obvious, since the acceptance of the Court's jurisdiction by both the
Applicant, Nicaragua, and the Respondent, the United States, presents
several legal difficulties to be resolved and in respect of which there is
room for differing views. For example, there are the problems of the
"imperfect" acceptance of the jurisdiction by Nicaragua; and of the
certainly unwilling response from the United States as revealed by its
Declaration of 6 April 1984 intended to bar the Court's jurisdiction in
relation to any dispute with any Central American State for a period of two
years. Furthermore, there is also the plea of multilateral treaty
reservation of the United States, as well as the question of reciprocity in
relation to six months' notice of termination stipulated in the United
States Declaration of 14 August 1946. The Court's consideration of all these
legal obstacles to its own jurisdiction under the Optional Clause has been
both thorough and careful, and I do agree with the Court's finding, but it
does represent one way of looking at the picture and of interpreting the
legal situation. There could, therefore, also be the rival way of looking at
it, and hence my preference for basing the Court's jurisdiction on Article
XXIV, paragraph 2, of the Treaty of Friendship, Commerce and Navigation of
1956. This, for me, takes priority on an overall consideration of the case
at this stage, when the Court is solely concerned about its own jurisdiction
in the matter. Though there are certain objections raised by the United
States to the application of Article XXIV of that Treaty, they are not of
such gravity as to bar the jurisdiction of the Court on any clear or
categorical basis. The Court has effectively and adequately dealt with the
United States objections of basing the Court's jurisdiction on that Treaty
and hence it is not necessary for me to repeat them here. I would, however,
like to draw attention to the following aspects which appear to merit
mention, and provide the raison d'κtre of this opinion.
(i) The United States has asserted that under clause 1 of Article XXIV it
was necessary for Nicaragua to enter into negotiations and to make efforts
to adjust the dispute by diplomacy. The Respondent maintains that no [p 445]
such efforts were ever made, and even though there were negotiations with
Nicaragua this dispute was never raised. It is therefore argued by the
United States that the mandatory provision of clause 1 of Article XXIV has
not been fulfilled and hence Nicaragua could not invoke the jurisdiction of
the Court under the Treaty. However, if the wording of the com-promissory
clause of the Treaty is examined, it would appear that nego-tiations or
representations affecting the operation of the present Treaty are not
prescribed as a condition precedent to invoking the jurisdiction of the
Court. The Treaty clearly states that if a party does choose to make
representations affecting the operation of the Treaty the other party is
obliged to "accord sympathetic consideration" and "afford adequate
opportunity for consultation". However, it does not make it obligatory that
such representations must be made and negotiations on the matter affecting
the operation of the Treaty must take place before proceeding to the Court.
It would appear to be the intention that due weight should be given to
"sympathetic consideration" and "opportunity for consultation" if a party
were to make representations on a matter affecting the operation of the
Treaty. There is, however, no binding obligation to negotiate. The above
conclusion would appear to be clearly justified from the wording of clause 1
of Article XXIV, which is reproduced below:
"Each Party shall accord sympathetic consideration to, and shall afford
adequate opportunity for consultation regarding, such representations as
the other Party may make with respect to any matter affecting the operation
of the present Treaty." (Emphasis added.)
The second objection of the United States is that, in accordance with
subclause 2 of Article XXI. it is essential that the dispute must not have
been satisfactorily adjusted by diplomacy. In other words, resort to a
diplomatic move to settle the dispute would appear to be a condition
essential before submitting the case to the International Court of Justice.
Similarly, parties must not have agreed to settlement by some other pacific
means. Both these conditions appear to be satisfied because every effort has
been made to settle the dispute by diplomacy inasmuch as Nicaragua has
referred it to the Security Council. Furthermore, the dispute is before the
Contadora Group, which is essentially a diplomatic process to resolve the
problems of the area. In short, therefore, it could not be asserted that the
dispute has not been referred to diplomatic methods for settlement. The
United Nations Security Council is an organ which is essentially engaged in
diplomatic methods for settling disputes. It is also true that neither the
Contadora process nor the Security Council have been able to resolve the
dispute by diplomacy. Again, the Parties have not resorted to any other
pacific means for the settlement of the dispute. In the circumstances, the
allegation made by the United States that Nicaragua in its negotiations has
never raised the application or interpretation of the Treaty would appear to
have no relevance to the jurisdiction of the Court [p 446] because
negotiations have not been specifically prescribed as a sine qua non for the
Parties to proceed to the Court. There are several treaties which do
categorically specify negotiations as a condition precedent to resorting to
the International Court of Justice. For example, the Convention on the
Prevention and Punishment of Crimes against Internationally Protected
Persons of 1973 has the following jurisdictional clause. Article 13,
paragraph 1, of the Treaty is reproduced below:
"Any dispute between two or more States Parties concerning the
interpretation or application of this Convention which is not settled by
negotiation shall, at the request of one of them, be submitted to
arbitration. If within six months from the date of request for arbitration
the parties are unable to agree on the organization of the arbitration, any
one of those parties may refer the dispute to the International Court of
Justice by request in conformity with the Statute of the Court." (Emphasis
added.)
In the aforesaid Treaty, which was cited by the United States in the United
States Diplomatic and Consular Staff in Tehran case (I.C.J. Reports 1980),
it would appear that the jurisdictional clause made negotiations an
essential condition before proceeding to arbitration; and a lapse of six
months from the date of the request for arbitration a condition precedent to
referring the dispute to the International Court of Justice. The words
"which is not settled by negotiation" have the same importance as the words
"not satisfactorily adjusted by diplomacy" which occur in the 1956 Treaty of
Friendship, Commerce and Navigation. There is no reference to negotiation
in the Treaty under consideration. In the circumstances the conditions
necessary under Article XXIV for the case to be brought to the
International Court of Justice have been fulfilled.
(ii) It is of course true that the field of the jurisdiction of the Court
conferred by the Treaty is restricted to and limited by the words "dispute
as to the interpretation or application of the present Treaty". Thus
Nicaragua would have to cite the specific articles and provisions of the
Treaty of 1956 and demonstrate the point of dispute in order that the Court
may exercise jurisdiction in the matter. The Court has listed in the
Judgment (para. 82) the various articles of the Treaty which, according to
Nicaragua, have been violated by the military and paramilitary activities of
the United States. These articles need not be repeated here. However, it
appears essential to point out that there is in addition a specific
provision, namely Article XXI, which deals with items like the maintenance
or restoration of international peace and security or measures necessary to
protect the essential security interests of the Parties. The Court may well
have to consider at some stage whether Article XXI of the Treaty falls
within the purview of the Treaty or is excluded from it. Clause 1 of the
said Article reads as follows:[p 447]
"The present Treaty shall not preclude the application of measures ...
(c) regulating the production of or traffic in arms, ammunition and
implements of war, or traffic in other materials carried on directly or
indirectly for the purpose of supplying a military establishment;
(d) necessary to fulfil the obligation of a Party for the maintenance or
restoration of international peace and security, or necessary to protect its
essential security interests."
It does appear necessary to ascertain the intention of the Parties to the
Treaty as to whether the application of measures under Article XXI of the
Treaty are excluded from or fall within the purview of the Treaty. As far as
Nicaragua is concerned, it is difficult to discern the intention because in
the Memorial it has not referred to Article XXI, and in the oral hearings
this Treaty has been invoked summarily in one line and not fully dealt with.
However, as far as the United States is concerned, it would appear that the
provisions of Article XXI, paragraph 1 (c) and (d), are excluded from the
purview of the Treaty. This would appear to be a legitimate conclusion to
draw from the Counter-Memorial of the Respondent (para. 179). However, in
the oral hearings this Treaty was not mentioned at all by the United States.
It would appear that clause 1 of Article XXI of the Treaty is worded rather
ambiguously. It states "the present Treaty shall not preclude the
application of measures", which in relation to subclauses (c) and (d) would
apply to obligations for the maintenance of international peace and
security or protection of essential security interests. The words "shall
not preclude the application of measures" would stand to mean that the
present Treaty shall permit the application of "necessary measures" and
therefore such measures would be within the purview of the Treaty; at least
to the extent that there may obviously be a question whether or not certain
measures are, for example, truly "necessary" within the meaning of paragraph
(d). And what, furthermore, is intended by the qualifying term, the
"application" of measures? If the intention was to exclude these matters
from the purview of the Treaty, the word "preclude" alone should have been
used, and not preceded by the word "not". To say that "the present Treaty
shall not preclude the application of measures" would amount to saying that
the present Treaty expressly sanctions the application of measures such as
those mentioned in subclauses (c) and (d). This ambiguity in clause 1 of
Article XXI of the Treaty has to be read with the Counter-Memorial of the
United States to get the intention of the Party, which is that such measures
as specified in subclauses (c) and (d) are altogether excluded from the
purview of the Treaty. However, this inference does not appear to be borne
out by the use of the words "not preclude the application of measures". The
question therefore arises whether the Court has jurisdiction in relation to
the interpretation and application of Article XXI, which is an integral part
of the Treaty; or whether it has no [p 448] jurisdiction because the
intention of one of the Parties was to exclude from the purview of the
Treaty items (c) and (d) of clause 1 of the said Article. In this context it
is indeed significant that the jurisdictional clause of Article XXTV of the
Treaty, does not specify the exclusion of Article XXI from the Court's
jurisdiction. If the intention of both Parties was to exclude from the
Court's purview that aspect of the Treaty which relates to clause 1 of
Article XXI, a provision to that effect would have been helpful even if it
is not regarded as strictly necessary for implementing that purpose.
However, as stated before, it will be for the Court to decide on this
aspect when it proceeds to the next phase of the case.
(iii) A noteworthy feature of the jurisdiction based on the 1956 Treaty,
established under Article 36. paragraph 1, of the Statute, is that it is not
subject to the multilateral treaty reservation of the United States which is
applicable to the Court's jurisdiction under the Optional Clause of Article
36, paragraph 2, of the Statute. Thus under the Treaty basis the Court would
be free to apply for purposes of interpretation and application of the
Treaty the whole sphere of international law, as defined in Article 38 of
the Statute, namely both customary and conventional law as well as the
general principles of international law (vide Art. 38. paras. (a), (b) and
(c) of the Statute). On the other hand, the multilateral treaty reservation
operating in relation to the Court's jurisdiction based on the Optional
Clause under Article 36, paragraph 2, of the Statute would confine the
applicable law for purposes of adjudication of the dispute to customary law
as well as the general principles of international law (Art. 38, para. 1 (b)
and (c)) and not to conventional treaty law (Art. 38, para. 1 (a)), unless
State Parties affected by the decision of the Court were also present in the
proceedings.
However, I do fully endorse the conclusion reached by the Court that the
multilateral treaty reservation of the Respondent does not possess "an
exclusively preliminary character'" and remains inapplicable at this
jurisdictional stage of the case, and hence under Article 79, paragraph 7,
of the Rules, the Court has affirmed its own jurisdiction under Article 36,
paragraph 2, of the Statute and proceeded to fix time-limits for the
further proceedings on the merits of the case. In short, the Court has held
that the multilateral treaty reservation of the United States has not barred
its jurisdiction for the simple reason that at this stage it is not possible
to name with any precision or firmness the States whose presence is
necessary to enable the Court to proceed further with the case. In this
connection it is worth pointing out that there are several States which have
made reservations of the "Vandenberg" type which is described by the Court
as the multilateral treaty reservation of the United States added to its
Declaration of 1946 under Article 36, paragraph 2, of the Statute. Proviso
"(c)" of the United States Declaration which embodies the multilateral
treaty reservation provides that the United States acceptance of the Court's
compulsory jurisdiction shall not extend to:
"disputes arising under a multilateral treaty, unless (1) all parties to [p
449] the treaty affected by the decision are also parties to the case before
the Court, or (2) the United States of America specially agreed to
jurisdiction ..." (emphasis added).
The key words of the aforesaid reservation are "affected by the decision",
which deprive the reservation of its preliminary character because at the
present jurisdictional stage it is not possible to come to any conclusion as
to which, if any, of the States parties to a multilateral treaty would be
affected by the decision of the Court. It is indeed significant to observe
here that the same observation could not be made in relation to the other
Vandenberg-type reservations such as those made by India and the
Philippines. The reservation made by India on 18 September 1974 is to the
effect that the Government of India accepts the jurisdiction of the Court
over all disputes other than:
"(7) disputes concerning the interpretation or application of a
multilateral treaty unless all the parties to the treaty are also parties
to the case before the Court or Government of India specially agree to
jurisdiction".
The reservation of the Philippines, made on 18 January 1972. is similarly
worded, stating that the Court's jurisdiction would not extend to any legal
dispute
"(d) arising under a multilateral treaty, unless (1) all parties to the
treaty are also parties to the case before the Court, or (2) the Republic of
the Philippines specially agrees to jurisdiction".
It will appear from the wording of the reservations of India and the
Philippines that they both clearly maintain their essentially preliminary
character and would therefore unambiguously act as a bar to the
jurisdiction of the Court at the very start. This would be so because their
meaning is clear and the application is simple and straightforward, as
opposed to the Vandenberg reservation of the United States type which poses
several problems concerning the determination of "States affected by the
decision of the Court". The first question that arises relates to who is to
judge which States are affected by the decision of the Court ? Is it to be
the decision of the Respondent - the United States - which made the
reservation, in which event if would appear to take the objections of the
Connally reservation, or is it to be left to the States concerned who
regard themselves as affected by the decision of the Court, or is it for the
Court itself to decide ? The reservations of India and the Philippines do
not pose such problems and cannot be described as "not exclusively
preliminary" so as to be caught by the provisions of Article 79, paragraph
7, of the Rules of Court, which are found applicable here in relation to the
United States reservation to render it ineffective. [p 450]
It may be observed that the words used by a State in making a reservation
under Article 36. paragraph 2, of the Statute must be such as clearly and
unequivocally to spell out the application of the reservation in a straight
and simple manner and not raise questions which are ambiguous and therefore
create confusion as to the intention of the State making the reservation.
The Vandenberg reservation of the United States, by the use of the words
"States parties to a treaty affected by the decision", has introduced an
element which spells ambiguity in the application of the reservation
inasmuch as the Court is left with no option but to conclude that the said
reservation cannot act as a bar to the jurisdiction of the Court at this
stage of the case. It is quite clear that the decision of the Court at the
present stage is not even in sight. The merits of the case have to be argued
first by the Parties and at this stage it is not even known which
multilateral treaties will have to be invoked by the Court's decision, and
hence the inherent difficulty in applying the said United States reservation
at the present phase of the case. The Court has therefore been indeed
correct in coming to the conclusion that the Vandenberg reservation of the
Respondent is "not exclusively preliminary" and hence cannot debar the
Court today as it proceeds to pronounce its jurisdiction in the case.
(iv) Another helpful feature of the 1956 Treaty-based jurisdiction of the
Court under Article 36, paragraph 1, of the Statute is that it compels the
Parties to come to the Court, invoking legal principles and adopting legal
procedures which would helpfully place legal limits to the presentation of
this sprawling dispute, which could otherwise easily take a non-legal
character by including political issues and thus raising the problem of
sorting out what is justiciable as opposed to non-justiciable matters being
brought before the Court. Invoking the Treaty base would indeed help to
specify and legally channelize the issues of the dispute. For example, the
Applicant will have to present specific violations of the provisions of the
Treaty, thus involving their interpretation and application in the
adjudication of the dispute. Thus, while the Treaty would help the judicial
process to run on the right legal lines, the jurisdiction of the Court under
the Optional Clause could possibly open the door to limitless
considerations, presenting problems in adjudication.
(v) There is also the objection raised by the United States which relates to
the pleadings of Nicaragua inasmuch as the oral hearings before the Court do
not bring out the jurisdiction of the Court based on the Treaty of 1956,
except by way of a single line in which Nicaragua's Agent mentions this
Treaty in very bald terms. The result has been that the United States, too,
in the oral hearings has totally ignored the Treaty because it had not been
gone into by Nicaragua. Furthermore, Nicaragua has not mentioned the Treaty
of 1956 in its Application but has inserted a clause reserving the right to
supplement the Application of 9 April 1984 or to amend it at a later stage.
Nicaragua has relied on this clause, and in its written Memorial dated 30
June 1984 has stated that it "respectfully requests the Court to [p 451]
consider that Nicaragua is exercising the right to invoke the Treaty of
Friendship, Commerce and Navigation of 1956 between Nicaragua and the United
States" (Nicaragua's Memorial, para. 164, note 3). On that basis Nicaragua
has in its Memorial devoted Chapter III, paragraphs 163-175, to the
aforesaid Treaty, attempting to establish the jurisdiction of the Court
under Article 36, paragraph 1, of the Statute. As a result the United States
Counter-Memorial deals with this Treaty at length and answers the points
that have been raised by Nicaragua (Chap. II, paras. 167-183, of the United
States Counter-Memorial). In short, while the oral hearings have almost
totally neglected the Treaty as a base of jurisdiction, the Parties have
properly dealt with this aspect in the Memorial and the Counter-Memorial. It
is felt that Nicaragua, having reserved the right in its Application to
supplement or amend it, was in a legal position to invoke the Treaty in its
Memorial. Again, as both the Applicant and the Respondent have dealt with
the jurisdiction of the Court as based on the Treaty in the written
pleadings, it was not possible for the Court to ignore that base in its
calculations in search of its own jurisdiction. No tribunal can afford to
ignore the written pleadings and to pay sole attention to the oral hearings.
In fact, both the written pleadings and the oral hearings constitute the
right and left foot in the presentation of the case and the Court would
therefore be justified in relying on the Treaty-basis of the jurisdiction
since it has been pleaded by both the Parties at length in the written
proceedings. It could perhaps be argued that the neglect of the Treaty in
the oral hearings should have provoked a question from the Court so that the
Parties were not taken by surprise as to the Court's reliance on the legal
validity of the base of its jurisdiction provided by the Treaty. However,
these can hardly be said to be valid reasons preventing the Court from
relying on the Treaty, which, as stated earlier, has been fully discussed by
both the Parties in their written pleadings.
It is in view of the aforesaid reasons that I have come to the conclusion
that the jurisdiction of the Court as based on the Treaty of 1956 is clear,
convincing and reliable.
(Signed) Nagendra Singh.
[p 452]
Separate opinion of judge Ruda
1. I have voted in favour of subparagraphs 1 (a), 1 (c) and 2 of the
operative provisions of the Judgment, but since I have voted against
subparagraph 1 (b) and do not concur in some important points with the
reasoning of the Court, I am bound to append this separate opinion. This
opinion will refer to three subjects: the 1956 Treaty of Friendship as a
basis of the jurisdiction of the Court, Proviso c of the 1946 United States
Declaration, and the conduct of the States as a basis of the jurisdiction of
the Court.
I. The 1956 Treaty as the Basis of the Jurisdiction of the Court
2. The Court finds that it has jurisdiction under the Treaty of Friendship,
Commerce and Navigation of 1956 between the United States and Nicaragua to
entertain the claims referred to in the Nicaraguan Application, to the
extent that they constitute a dispute as to the interpretation or
application of several articles of the Treaty.
The 1956 Treaty provides in Article XXIV:
"1. Each Party shall accord sympathetic consideration to, shall afford
adequate opportunity for consultation regarding, such representations as
the other Party may make with respect to any matter affecting the operation
of the present Treaty.
2. Any dispute between the Parties as to the interpretation or application
of the present Treaty, not satisfactorily adjusted by diplomacy, shall be
submitted to the International Court of Justice, unless the Parties agree to
settlement by some other pacific means."
3. It is true, as the Court says, in paragraph 81 of the Judgment that
"the intention of the Parties in accepting such clauses is clearly to
provide for such a right of unilateral recourse to the Court in the absence
of agreement to employ some other pacific means of settlement".
But from this point onwards. I regret to part company with the reasoning of
the Court.
4. The compromissory clause of the 1956 Treaty is common to many treaties of
"establishment". Its structure is simple. Two conditions must be fulfilled
in order to open the way to recourse to the Court. One, that there should be
a dispute between the parties as to the interpretation and
[p 453] application of the Treaty and second that such a "dispute has not
been adjusted by diplomacy".
5. There is no doubt that a dispute exists between Nicaragua and the United
States as to the facts asserted by Nicaragua in its Application; but even if
this dispute, which is very doubtful, could be covered by the terms of the
Treaty, this does not mean that Nicaragua could take action on it as a
dispute over the interpretation and application of the Treaty, after the
institution of the proceedings. Nicaragua has to follow the procedure laid
down in the Treaty, which is simple and clear, before coming before the
Court.
6. It is not sufficient to invoke the Treaty, alleging before the Court
violations of its provisions, in the course of the proceedings, at the time
of submitting the Memorial on jurisdiction and admissibility. These
allegations must have been the subject of negotiations prior to the
institution of proceedings. How can there be a dispute as to the
interpretation and application of the Treaty, if no demarche has been
presented to the other party?
7. To invoke the 1956 Treaty as a title of jurisdiction, it is essential
that diplomatic negotiations should have taken place prior to coming before
the Court, because, first, that is what is set out in clear terms in Article
XXIV of the Treaty and second, because it is impossible to know the
existence and scope of a dispute without one party submitting a claim
against the other, stating the facts and specifying the provisions of the
Treaty alleged to have been violated. It is the essence and therefore the
indissoluble attributes of the concept of dispute that negotiations between
the interested States should precede the institution of proceedings before
the Court, because negotiations or the adjustment by diplomacy fixes the
points of fact and law over which the parties disagree. But, in this
particular case, apart from this reasoning, the Treaty itself clearly
provides that prior efforts should be made to adjust the dispute by
diplomacy.
8. No evidence has been submitted by the Applicant that it had made any
representation, approach, claim or demarche with regard to the Respondent
before filing its Memorial, where the Treaty of 1956 has been invoked. No
dispute has been proved to exist, prior to the institution of the
proceedings, as to the interpretation and application of the Treaty.
9. For these reasons, I part company with my colleagues on the finding of
the Court, that on the "basis alone" (para. 111) of the Treaty of 1956, the
Court is competent. The Court states in paragraph 83 that:
"In the view of the Court, it does not necessarily follow that, because a
State has not expressly referred in negotiations with another State to a
particular treaty as having been violated by conduct of that other State, it
is debarred from invoking a compromissory clause in that treaty."[p 454]
10. I take the opposite view from the Court. I think that a State is
debarred from judicially invoking the compromissory clause of a treaty, if
the procedure provided for in this clause is not followed. This procedure is
not a mere formality, it has a reason from the juridical point of view: it
is during the negotiations that the dispute is established and its scope
defined. A procedure, incorporated in a legal instrument, must be complied
with, except in circumstances when the impossibility of following the
procedure could frustrate the purposes of the instrument, as was the case in
the Judgment on the United States Diplomatic and Consular Staff in Tehran,
I.C.J- Reports 1980, page 3. It should be remembered that on this occasion,
the Court considered, as a basis for the exercise of its jurisdiction, a
similar article in the 1955 Treaty of Amity, Economic Relations and Consular
Rights between the United States and Iran, in regard to a claim concerning
two private individuals, said to be held in the American Embassy. The Court
stated:
"As previously pointed out, when the United States filed its Application on
29 November 1979, its attempts to negotiate with Iran in regard to the
overrunning of its Embassy and detention of its nationals as hostages had
reached a deadlock, owing to the refusal of the Iranian Government to enter
into any discussion of the matter. In consequence, there existed at that
date not only a dispute but, beyond any doubt, a 'dispute .. . not
satisfactorily adjusted by diplomacy' within the meaning of Article XXI,
paragraph 2, of the 1955 Treaty; and this dispute comprised, inter alia, the
matters that are the subject of the United States claims under that Treaty."
(I.C.J. Reports 1980, p. 27, para. 51.)
11. The Court invoked paragraph 2 as a basis of its jurisdiction because
there was an impossibility to negotiate under the Treaty.
12. The circumstances in the present case are just the opposite; both
countries have Embassies in their respective capitals, the Secretary of
State has visited Managua and negotiations are going on between the Parties.
In this case, it is possible to apply the provisions of Article XXIV.
paragraph 2. Therefore, there is no factual impediment to the application
of the compromissory clause of the Treaty of 1956. and the way seems open to
negotiations under this instrument, but negotiations have not taken place
until today.
II. Proviso C of the United States Declaration of 1946
13. The United States Declaration of 14 August 1946 accepting the compulsory
jurisdiction of the Court under Article 36. paragraph 2, of the Statute
excludes, inter alia, from such jurisdiction:
"(c) disputes arising under a multilateral treaty, unless (1) all parties to
the treaty affected by the decision are also parties to the case [p 455]
before the Court, or (2) the United States of America specially agrees to
that jurisdiction".
14. Much doctrinal controversy arose in the 1940s as to the meaning of this
proviso, but this is the first time that it has been invoked by the United
States to bar the jurisdiction of the Court.
15. The textual interpretation of the proviso is not easy. I agreed with
those who consider that the phrase "affected by the decision" qualifies
"parties" and not "treaty" and therefore it is not necessary for all the
parties to a multilateral treaty to be present before the Court for it to
declare itself competent, in a case when the United States is party to a
dispute, under the treaty.
16. The problem of interpretation of this proviso arises from the meaning
to be attached to the phrase "parties . .. affected by the decision".
17. The history of the proviso is well known and it is not of much help to
find the intention of its authors, but that is the only source of
interpretation available. My reading of this legislative history leads me to
the conclusion that the objective was to ensure that the United States would
not be forced, because of its acceptance of the Optional Clause, to be
involved in a case before the Court when not all the parties to the dispute
are before it: the United States does not wish, because of its acceptance of
the Optional Clause, to be bound by a judgment of the Court vis-ΰ-vis States
that have accepted the Clause, when other States which have not accepted the
Optional Clause, would not be bound by the same judgment.
18. This interpretation derives from the following part of Mr. Dulles'
Memorandum submitted to a subcommittee of the Committee on Foreign Relations
of the United States Senate:
"Since the Court uses the singular 'any other State', it might be desirable
to make clear that there is no compulsory obligation to submit to the Court
merely because one of several parties to such dispute is similarly bound,
the others not having bound themselves to become parties before the Court
and, consequently, not being subject to the Charter provision (Art. 94)
requiring Members to comply with decisions of the Court in cases to which
they are a party." (Hearings before a Subcommittee of the Committee on
Foreign Relations on S. Res. 196, 79th Cong., 2nd sess, p. 44.)
19. And from the following part of the report of the Committee on Foreign
Relations:
"If the United States would prefer to deny jurisdiction without special
agreement, in disputes among several States, some of which [p 456] have not
declared to be bound, Article 36 (3) permits it to make its declaration
conditional as to the reciprocity of several or certain States.
Mr. Dulles' objection might possibly be provided by another subsection, in
the first proviso ..." (S. Rept. 1835, 79th Cong., 2nd sess, pp. 6, 7.)
20. On the floor of the Senate the following exchange took place between Mr.
Vandenberg from Michigan and Mr. Thomas from Utah:
"Mr. Vandenberg. Mr. Dulles ... has raised the question whether the language
of the resolution might not involve us in accepting jurisdiction in a
multilateral dispute in which some one or more nations had not accepted
jurisdiction. It is my understanding that it is the opinion of the Senator
from Utah that if we confronted such a situation we would not be bound to
submit to compulsory jurisdiction in a multilateral case if all of the other
nations involved in the multilateral situation had not themselves accepted
compulsory jurisdiction. Is that so?
Mr. Thomas. That is surely my understanding. 1 think reciprocity is
complete. All parties to the case must stand on exactly the same foundation
except that we have waived a right." (Congressional Record, 1 August 1946,
p. 10618.)
21. Therefore, the phrase "parties... affected by the decision" seems to
mean, in the context of proviso c, that, I repeat, the United States will
accept the jurisdiction of the Court in a dispute arising under a
multilateral treaty, when all other parties to the treaty involved in the
dispute have previously accepted the jurisdiction of the Court. In other
words, the United States wishes to avoid a situation under a multilateral
treaty, in which it would be obliged to apply the treaty in a certain way
because of the Court's decision and the other parties to the treaty would
remain juridically free to apply it in another form, because of the effects
of Article 59 of the Statute.
22. The proviso could only be invoked if the United States is defendant in a
case, because as Applicant it would not, logically, submit the Application
until it was sure that all the other parties to the dispute were in a
condition to be bound by the decision of the Court. Moreover, I do not
interpret the proviso as meaning that it includes the defence of the
interests of third parties; from the debates in the Senate it is clear that
the intention was to preserve the interests of the United States, i.e., to
ensure that third States would also be bound by the decision of the Court.
On the other hand, it does not seem logical that a State submitting a
declaration accepting the compulsory jurisdiction of the Court, but
excluding certain matters affecting its own interests from that
jurisdiction, should act on behalf of third States. The other States also
have the same opportunity as the United States, and they are the sole
sovereign judges of their own [p 457]
interests; furthermore, it is open to these States to apply to intervene
under Articles 62 and 63 of the Statute, if they think their interests are
affected.
23. In the present proceedings, there is a dispute under several
multilateral treaties and the United States is defendant against the claims
submitted by Nicaragua. But the United States alleges that there is a
situation where the decision of the Court will affect El Salvador, Honduras
and Costa Rica, and that, consequently, proviso c is applicable here.
24. However, that is not my understanding of the case. It is true that there
is a complex and generalized conflict among Central American countries, but
not the whole conflict, with all its economic, social, political and
security aspects, is submitted to the Court, only the claims of Nicaragua
against the United States. Nicaragua has not presented any claims against
Honduras, El Salvador and Costa Rica.
25. In my analysis there are two disputes: the first, Nicaragua v. United
States, and the second, involving the grievances of EI Salvador, Honduras
and Costa Rica FN1 against Nicaragua. A decision of the Court in the first
[p 458] dispute will not affect the reciprocal rights, duties and
obligations of these Central American countries. Whatever conduct, if any,
that the Court would impose on the United States, such a decision would not
debar the rights of these three countries vis-ΰ-vis Nicaragua.
---------------------------------------------------------------------------------------------------------------------
FN1 As for the grievances of El Salvador against Nicaragua I would refer,
for instance, to the statement made by President Magana to the ABC, Madrid,
on 22 December 1983. when, replying to a question on how and where the
guerrillas obtained their supplies, he said:
"Be sure of this, from Nicaragua and only from Nicaragua. In the past two
weeks we have detected 62 incursions by aircraft which parachuted equipment,
weapons and ammunitions into the Morazan area ..."
and he added:
''While Nicaragua draws the world's attention by claiming for the past two
years that it is about to be invaded, they have not ceased for one moment to
invade our country. There is only one point of departure for the armed
subversion: Nicaragua." (United States Counter-Memorial, Ann. 51.)
See also the statements of a similar tenor by President Duarte on 4 June
1984 and 27 July
1984 (United States Counter-Memorial, Anns. 52 and 53). See also the
Declaration of
Intervention filed on 15 August 1984.
As for the grievances of Costa Rica, I would refer to the notes presented to
Nicaragua,
reproduced in documents of the Organization of American States where it is
said, for
example, on 10 September 1983:
"The Government of Costa Rica condemns and repudiates with profound
indignation the attack on Costa Rican territory, on Members of the armed
forces of Costa Rica and the country installations ..." (United States
Counter-Memorial. Anns. 63 and 64.)
With reference to the grievances of Honduras I would refer to the diplomatic
notes, reproduced in documents of the Organization of American States, where
it is said, for example, on 1 July 1983:
"It has been confirmed that they were caused [the deaths of two US
journalists, injuries to a Honduran citizen and damages to a truck] by the
explosion of antitank and antipersonnel mines placed by the Sandinista
forces on the Honduran highway ..." (United States Counter-Memorial, Anns.
59, 60, 61 and 62.)
-------------------------------------------------------------------------------------------------------------------
26. For this reason, I think that the present situation is not the one
provided for in proviso c, where a situation is foreseen, in which the
United States, as a defendant, would be obliged to follow a certain course
of action and the other parties to the dispute would be free. Here, if the
Court imposes, in a decision, a certain conduct on the United States
vis-ΰ-vis Nicaragua for alleged violations of several multilateral treaties,
there is no possibility of other States being affected, because there are no
other parties to this dispute. Honduras, El Salvador and Costa Rica ask, on
the contrary, that Nicaragua should stop illegal actions of a similar
character against them. Nicaragua is placed in a defensive position, but the
rights of Honduras, El Salvador and Costa Rica cannot be affected by the
Court's decision. Although I recognize that both disputes are part of a
generalized conflict, they are clearly distinguished from the juridical
point of view, because in one Nicaragua is in the position of Applicant and
in the other the claims are made against it.
27. I am, therefore, of the opinion that proviso c is not applicable in the
case before the Court and, consequently, it should be rejected. Since my
understanding of the juridical situation is different from that of the
Court, and I reach a different conclusion, I part company from the Judgment
where the Court finds that the bar raised by the United States does not
possess, in the circumstances of the case, an exclusive preliminary
character.
III. The Conduct of States as a Basis of the Jurisdiction of the Court
28. I fully agree with the finding of the Court, in paragraph 42 of the
Judgment, "that the interpretation whereby the provisions of Article 36,
paragraph 5. cover the case of Nicaragua has been confirmed by the
subsequent conduct of the parties to the treaty in question, the Statute of
the Court"; and this is precisely the reason why I have voted in favour of
the decision that the Court has jurisdiction to entertain the Application
filed by Nicaragua on 9 April 1984. But I disagree with the reasoning of the
Court and the corresponding finding in paragraphs 42 and 47:
"... It should therefore be observed that the conduct of Nicaragua in
relation to the publications in question also supports a finding of
jurisdiction under Article 36, paragraph 2, of the Statute independently of
the interpretation and effect of paragraph 5 of that Article." (Para. 42.)[p
459]
"... [The Court] considers therefore that, having regard to the origin and
generality of the statements to the effect that Nicaragua was bound by its
1929 Declaration, it is right to conclude that the constant acquiescence of
that State in those affirmations constitutes a valid mode of manifestation
of its intent to recognize the compulsory jurisdiction of the Court under
Article 36, paragraph 2, of the Statute, and that accordingly Nicaragua is,
vis-ΰ-vis the United States, a State accepting 'the same obligation' under
that Article." (Para. 47.)
29. My disagreement is based on my reading of the Statute of the Court,
where it is provided that the only condition necessary to make operative a
declaration accepting the jurisdiction of the Court under Article 36,
paragraph 2, of the Statute, is, in accordance with paragraph 4 of the same
Article, the deposit of the declaration with the Secretary-General of the
United Nations. The consent of a State to be bound by the international
obligations assumed under a treaty, should be given in accordance with the
procedure laid down in the treaty. The conduct of a State is an important
element in the interpretation of a convention, including the Statute, which
the Court has taken into account in previous paragraphs, but it is a totally
different matter to regard this conduct as constituting acceptance of the
international obligations set out in a treaty, without following the
procedure laid down precisely for the entry into force of these
obligations.
30. I agree with the Court that the situation of Nicaragua is wholly unique,
among the States bound by the Optional Clause, but this uniqueness does not
justify taking the conduct of this State as a basis for considering
Nicaragua as accepting the compulsory jurisdiction of the Court under
Article 36, paragraph 2, of the present Statute, independently of Article
36, paragraph 5, for the reasons I have just explained.
31. Moreover, I disagree with the Court's affirmation that the reports of
the Secretary-General, as depositary of the declarations, and that the
International Court of Justice Yearbooks have affirmed that Nicaragua had
accomplished the formality of deposit, if I have correctly interpreted the
Court's statement in paragraph 46.
32. In the publication of the Secretary-General concerning Multilateral
Treaties Deposited with the Secretary-General, Nicaragua's acceptance is
included under subtitle (b):
"Declarations made under Article 36, paragraph 2, of the Statute of the
Permanent Court of International Justice, which are deemed to be acceptances
of the compulsory jurisdiction of the International Court of Justice."
(Emphasis added; Multilateral Treaties deposited with the Secretary-General.
Status as at 31 December 1982, p. 24.)
33. In the International Court of Justice Yearbook 1946-1947, Nicaragua's
declaration is included among "Communications and declarations of States
which are still bound by their adherence to the Optional Clause of the
Statute of the Permanent Court of International Justice" (p. 207) and the
country is included in the [p 460]
"List of States which have recognized the compulsory jurisdiction of the
International Court of Justice or which are still bound by their acceptance
of the Optional Clause of the Statute of the Permanent Court of
International Justice (Article 36 of the Statute of the International Court
of Justice)." (P. 221.)
34. The same title is reproduced in the Yearbook 1947-1948 (p. 133). The
parenthesis is deleted in the Yearbook 1955-1956 (p. 188). The last
Yearbook 1982-1983 includes Nicaragua in a list of "Declarations
recognizing as compulsory the jurisdiction of the Court"; it is stated,
before the texts of the Declarations:
"In view of the provisions of Article 36, paragraph 5, of the Statute of the
International Court of Justice, the present section also contains the texts
of Declarations made under the Statute of the Permanent Court of
International Justice which have not lapsed or been withdrawn. There are
now eight such declarations." (Emphasis added in the original text, p. 56.)
35. In my reading of these official publications, what Nicaragua has
acquiesced in is to be considered bound by the Optional Clause, in
accordance with the interpretation and application given by these organs of
the United Nations to Article 36, paragraph 5, of the Statute of the Court,
and not to be bound directly under Article 36, paragraph 2, as has been
found by the Court.
(Signed) J. M. Ruda.
[p 461]
Separate opinion of judge Mosler
As is shown by my vote, I share the opinion of the Court that it has
jurisdiction to entertain the dispute and that the Application of Nicaragua
is admissible. Nevertheless, to my regret, I cannot agree with paragraph 1
(a) of the operative part of the Judgment, in which the Court assumes
jurisdiction on the basis of Article 36, paragraphs 2 and 5, of the Statute.
In my view the Court possesses jurisdiction solely on the basis of the 1956
Treaty of Friendship, Commerce and Navigation between the Parties, but not
on the basis of currently effective and mutually corresponding submissions
of the Parties under the compulsory jurisdiction of the Court by virtue of
the Optional Clause. However, on the assumption adopted by the majority that
the Court has general jurisdiction on the basis of the Optional Clause, I
support most of the consequential conclusions made by it, but I have to
disagree with part of the reasoning, either because I have another view of
the matter or because I think that the far-reaching consequences of the
Court's conclusions should be more explicitly explained. The points in
question are the effect of the notification of 6 April 1984 of the United
States (the "Shultz letter"), and the multilateral treaty reservation in
its Declaration of Acceptance of the compulsory jurisdiction of the Court
(proviso (c)) (see Part II, below). I feel obliged to make the following
remarks, taking into account the importance of the issues involved, which
relate to fundamental questions of the jurisdictional system established by
the Statute. I shall however avoid going into detail.
I
1. The Court concludes that the Nicaraguan Declaration of 24 September
1929, accepting unconditionally the compulsory jurisdiction of the Permanent
Court of International Justice, is a currently valid instrument because
Article 36, paragraph 5, of the present Statute transferred the Declaration
to the International Court of Justice (see, inter alia, Judgment, para.
109). Until the entry into force of the Statute (as an integral part of the
United Nations Charter) the Declaration, with regard to Nicaragua, was,
according to the Judgment, undoubtedly valid from the moment of its deposit,
but had not become binding (para. 25). Nicaragua, as a Member of the League
of Nations, had been entitled to sign and ratify the 1920 Protocol of
Signature of the Statute of the Permanent Court of International Justice
and, on this basis, make a declaration under the Optional Clause, as
provided for by Article 36, paragraph 2, of this Statute. Signa-[p 462]
tures of the Protocol were subject to ratification; declarations were not.
While, according to the logical order, declarations followed ratifications
of the Protocol on which they depended, Nicaragua in fact made its
Declaration first. Constitutional procedures in Nicaragua to ratify the
Protocol took place in 1934-1935, but the instrument of ratification,
although announced by the telegram of 29 November 1939 to the
Secretary-General of the League of Nations, was never received in Geneva
(paras. 15-16). These facts are uncontested, but the legal construction
given to them in the Judgment is, in my view, unclear, and susceptible of
inducing errors. The Declaration of 1929 was a legal instrument, the effect
of which depended on a condition precedent, namely the deposit of the
instrument of ratification of the Protocol of 1920. So long as this act had
not been performed the Declaration remained without legal effect. To qualify
it as certainly valid, but not binding, seems to me a misconstruction of a
legal act which was subject to a suspensive condition. Moreover, the use of
this terminology may indicate that the "certainly valid" declaration has an
intrinsic validity which has only to be completed by ratification in order
to become binding. A potentially effective act however only acquires its
validity if and when the condition is met. If the interpretation given in
the Judgment is correct, the Declaration of Nicaragua would not have been
wholly inoperative in 1945 - as in fact it was - but would have been a
valid act which might be taken into account when the new Statute had to
solve the problem of transferring old declarations to the new Court. The
construction and the terminology regarding the Declaration of 1929 thus
prepare the way for an interpretation of Article 36, paragraph 5, which I am
unable to accept.
2. Article 36, paragraph 5 (the text of which is reproduced in para. 14 of
the Judgment), effected, in the interpretation of the Judgment, the transfer
of the declaration to the present Court. The consent thereto had been given
by Nicaragua
"which, having been represented at the San Francisco Conference, signed and
ratified the Charter and thereby accepted the Statute in which Article 36,
paragraph 5, appears".
The effect attributed to paragraph 5 is open to doubt. The conduct of
Nicaragua, in so far as it plays a role in this connection, will be taken up
later (para. 3, below).
The Statute of the International Court of Justice seeks to guarantee, as far
as possible, continuity between the Permanent Court and the International
Court of Justice, thus avoiding undesirable consequences resulting from a
legal discontinuity between the old and the new Court. In parti-cular,
paragraph 5 was inserted in Article 36 in order to transfer the acceptances
of the compulsory jurisdiction of the Permanent Court, according to their
terms, to the jurisdiction of the International Court of Justice.
According to the Judgment, paragraph 5 refers not only to declarations [p
463] operative at the time of the entry into force of the Statute for the
declarant State, but also to a declaration still valid though not binding
(para. 37). It finds support for this interpretation in the French version,
which attributes the transferring effect to the declarations "faites en
application de l'article 36 du Statut de la Cour permanente de Justice
internationale pour une duree qui n'est pas encore expiree". The English
text, which refers to "Declarations made under Article 36 of the Statute of
the Permanent Court of International Justice and which are still in force",
cannot, according to the Judgment, be reconciled with the French text by
accepting the proposition that both versions refer to binding declarations
(para. 30). The preference given to the French version has been justified by
recourse to the preparatory work of the Statute. It is true that the French
delegation at San Francisco succeeded in replacing the original term "encore
en vigueur", which corresponded to the English words "still in force", with
the present French text. For two reasons I am not able to share the
conclusion of the Judgment in disregarding the English text in favour of the
French text interpreted in the light of the preparatory work : first,
according to general principles of interpretation, as codified in the Vienna
Convention on the Law of Treaties (Arts. 31 to 33), a text authenticated in
several languages is equally authoritative in each language. Only if the
texts cannot be reconciled are supplementary means of interpretation, such
as recourse to the preparatory work, permitted. I do not see any difficulty
in finding the same meaning in both texts : a declaration which has been
made for a duration which has not yet expired (French text) must have been
in force (English text). The Judgment is certainly right in saying that to
interpret the French wording as referring also to declarations not effective
in respect of the Permanent Court, but made for a period which would not yet
have expired if the declaration had been effective, would contradict the
English text. Apart from this reason, which seems to me in itself
sufficient, I have been unable to find conclusive evidence in the
preparatory work that the change from the original French text to the final
version was made in order to include declarations not in force. On the
contrary, the French delegation declared explicitly that no change of
substance was intended (UNCIO doc, Vol. XIII, pp. 282-284). There could be
several reasons which motivated the French delegation to ask for the change
in the text without affecting the English wording. I refrain from
speculating as to which possibility may be the right one. I find no
indication that the meaning attributed by the Judgment to the French text
was also intended by the French delegation.
My conclusion is therefore that the text of paragraph 5, without leaving the
meaning ambiguous or obscure (see Art. 32 of the Vienna Convention), related
to declarations being effective, according to their terms, at the critical
date. Consequently, the Nicaraguan Declaration of 1929 was not affected by
paragraph 5.
3. The Court has also found
"that the constant acquiescence of Nicaragua in affirmations, to be [p 464]
found in United Nations and other publications, of its position as bound by
the Optional Clause constitutes valid manifestation of its intent to
recognize the compulsory jurisdiction of the Court" (para. 109).
This statement, in the Court's reasoning, supports a finding of
jurisdiction under Article 36, paragraph 2, of the Statute independently of
the interpretation and effect of paragraph 5 of that Article (para. 42). I
do not exclude the view a priori that an unequivocal conduct of Nicaragua in
respect of its unconditional adherence to the compulsory jurisdiction and
the general impression existing among States that this was the status of
Nicaragua with respect to this jurisdiction, may constitute sufficient
reasons for the Court to apply Nicaragua's submission in the terms of the
1929 Declaration in the present proceedings. The legal reason for this view
may be the clear and undoubted appearance of a valid submission which has
been maintained over many years. The legal concept justifying such a
consideration would be analogous to that of acquisitive prescription, a
general principle of law within the meaning of Article 38, paragraph 1 (c),
of the Statute, by which lapse of time may remedy deficiencies of formal
legal acts. If one follows this theory the facts and the conduct must be
absolutely unequivocal and must not leave room for any doubt.
I cannot conclude that the constant acquiescence of Nicaragua in
affirmations of its position as bound by the Optional Clause, and the
inclusion of Nicaragua in the listing of declarations under Article 36,
paragraph 2, in the Court's Yearbooks, and in United Nations publications as
well as national official publications, which were often and over a long
period accompanied by a qualifying caveat, sufficiently show that the
requirements just mentioned are fulfilled. Nicaragua which, as the Judgment
rightly notes, was aware of the deficiency and could easily have clarified
the situation, failed to do so. It cannot take advantage of uncertainties
which it knowingly left unchallenged. On the other hand, Nicaragua allowed a
situation to subsist which could be interpreted as its adherence to the
Optional Clause in the terms of the 1929 Declaration.
The case concerning the Arbitral Award Made by the King of Spain is part of
this ambiguous conduct. In its application, Honduras founded the
jurisdiction of the Court not only on the Compromis with Nicaragua reached
under the auspices of the Organization of American States on 21 July 1957,
but also on the submission of Nicaragua to the Permanent Court's compulsory
jurisdiction on 24 September 1929 (I.C.J. Pleadings, Arbitral Award Made by
the King of Spain on 23 December 1906, Vol. I, p. 8). Nicaragua, for its
part, wanted to limit the dispute with Honduras to the definition given in
the said Compromis and its accompanying documents.[p 465]
It insisted on having the dispute decided only on this basis (see, e.g., the
Nicaraguan Reply, ibid., Vol. I, p. 754). Proceedings on the basis of
acceptance of the Optional Clause would have given Honduras the opportunity
to present a more extensive claim (including compensation for damages) than
one seeking judgment solely on the basis of the Compromis. Understandable as
this conduct may be from the point of view of Nicaragua, it certainly does
not prove its acquiescence in the application of the 1929 Declaration. No
other events occurred by which Nicaragua took position one way or the other.
It is nevertheless a fact that Nicaragua did run the risk during many years
of being sued by another State on the basis of its submission. It may well
be, as the Judgment rightly says, that on this hypothesis the Court would
have held Nicaragua bound by the Declaration because it tolerated or
maintained the appearance shown, with and without caveats, in official
documents (which, in themselves, had no authoritative character). Whether
the Court would have assumed jurisdiction in such a hypothetical case cannot
be either affirmed or denied. Affirmation was however a possibility to be
taken into account by Nicaragua.
This consideration is however not sufficient to conclude that an
application by Nicaragua against another State can be entertained on the
basis of the submission under the Optional Clause. Weighing this ambiguous
conduct against the strict criterion of continuous unequivocal conduct in
favour of the binding force of the declaration, the conclusion can only be
that this basis alone is not sufficient to justify Nicaragua's reliance on
the declaration.
II
Since the majority of the Court has voted in favour of assuming
jurisdiction on the basis of the Declaration (para. 1 (a) of the operative
part of the Judgment), the following remarks on some other points of the
Judgment are made on this assumption.
1. I share the Court's opinion that the notification made by the Shultz
letter of 6 April 1984 has no effect on the obligations of the United States
created by its Declaration of 26 August 1946 under the Optional Clause (for
the text of the letter see para. 13 of the Judgment). I agree also with the
Judgment that the question whether this notification - which the United
States calls a "proviso" to the Declaration of 1946 constitutes only a
modification or the termination of this Declaration, is not relevant for the
decision of the present dispute. My observations concern the relation
between the Nicaraguan Declaration (treated as being valid) and its United
States counterpart of 1946.
When the system of the Optional Clause was adopted at San Francisco [p 466]
as a substitute for general compulsory jurisdiction of the new Court - an
ideal which was not attainable - member States of the United Nations which
became, ipso jure, parties to the Statute, and other parties to the Statute,
remained free not only to refrain from submitting to the jurisdiction at
all, but also to qualify their declarations by time-limits and reservations
concerning substantive matters. Time-limits could provide either fixed
periods for validity, or periods of notice for notification of termination.
Moreover, according to paragraph 2 of Article 36, a consensual link between
the various declarations is created only between States which undertake the
"same obligation". The Nicaraguan Declaration of 1929 is unconditional with
respect to substantive reservations and time-limits, whereas the United
States Declaration of 1946 is qualified by three provisos containing
substantive reservations, and may be terminated six months after a
notification to this effect has been made.
There is general agreement that reservations relating to substantive
restrictions limit the obligations of other States which have submitted to
the compulsory jurisdiction without having made corresponding reservations.
The consensual bond, which is the basis of the operation of the Optional
Clause, comes into being at the time at which another State deposits its
declaration. Although the reciprocal character of the substantive provision
of declarations is not in doubt, there is, however, no such agreement
regarding different time-limits in declarations which, from the point of
view of their substance, are mutually applicable.
In my view, time-limits are taken into account as substantive reservations
because the requirement of Article 36, paragraph 2, that the consensual
bond exists only between States accepting the same obligation, must be
applied to both types of qualifications which are permitted to be included
in declarations. Reservations restrict the substantive extent of the
obligation, time-limits put an end to the obligation, whether made with or
without substantive limitations, in its entirety. It is difficult to see how
the "same obligation" within the meaning of Article 36, paragraph 2, can
continue to exist longer for one State than for its potential counterpart
whose declaration is limited by a shorter notice period, or may be
terminated by notification at any moment. This consideration is, of course,
no longer relevant when an application has been filed before the defendant
State has made use of the shorter delay to notify the termination of its
declaration, which it is, in my view, entitled to make due to the fact that
the time-limit of another State's declaration is shorter. I am aware of the
disadvantages flowing from the relative effect of declarations with regard
to other States. But the difficulties are not much greater than the
relativity generally admitted with respect to substantive reservations.
The relation between the Declarations of Nicaragua and the United States, of
1929 and 1946 respectively, is, in my view, the following: Nicaragua's
Declaration is unconditional, that is, not only without reservation but
also without time-limit. To this declaration the general principle applies
that all legally binding acts, whether made unilaterally, or within the
framework of a contractual relationship, or in the complex system [p 467]
which the Judgment describes as "sui generis", can, under certain
conditions, be terminated. Article 56 of the Vienna Convention is based on
this principle. The question remains however on what conditions the right of
termination may be exercised. It may be open to doubt whether the Nicaraguan
Declaration can be terminated with legal effect immediately on notice, or
only after a lapse of a certain time after such notice. Article 56 of the
Vienna Convention refers to the "nature of the treaty", or envisages a 12
months' notice. Applying the same ideas by analogy to the "consensual bond"
effected by declarations under the Optional Clause, the "nature" of the
bond is characterized by the equal significance of the obligations. This
results from Article 36, paragraph 2, without any special reservation being
necessary as provided for in paragraph 3 of the same Article. The Court
emphasized in the case of Right of Passage over Indian Territory
(Preliminary Objections) (I.C.J. Reports 1957, p. 145), that the principle
of reciprocity forms part of the system of the Optional Clause. It does not
follow from the "nature" of an "unconditional" declaration that it may be
terminated at any time and with immediate effect. Article 56 of the Vienna
Convention shows - and here again an analogy is suggested - that the
termination of an obligation must be governed by the principle of good
faith. Withdrawal without any period of notice seems to me not to
cor-respond with this principle if a declaration has been made explicitly
unconditional.
The precise period of notice necessary or appropriate to terminate the
Nicaraguan obligation need not be decided in the circumstances in which the
Shultz letter was made. This letter, which disregarded the notification
clause in the 1946 Declaration, was received by the United Nations
Secretariat on Friday afternoon, 6 April 1984, whereas the Application of
Nicaragua was filed with the Registry of the Court on the following Monday,
9 April 1984. The Court has not yet had the opportunity to judge a parallel
case. It did however pronounce, in the Right of Passage over Indian
Territory case, on the reverse situation. Portugal had made a declaration
regarding the Optional Clause only a few days before it filed an application
against India based on this declaration. The Court did not accept the Indian
Preliminary Objection that the Portuguese declaration -made with a view to
its own application was inadmissible.
Though I admit that a certain analogy exists between the two situations,
more convincing reasons speak, in my view, for a different interpretation.
If Nicaragua, as I concluded above, could not terminate its obligation with
immediate effect, then the corresponding obligation of the United States,
disregarding entirely the six months' notice period, or applying a period of
a few days only, could also not be terminated. Admittedly, the
interpretation of the requirements of good faith on either side cannot be
determined in the abstract; it must be fixed in concreto according to the
circumstances of the case. Whatever the period of notice may be to
terminate the unconditional submission, it would not have been permissible
[p 468] to cut it down to a minimum. Correspondingly, the six months' notice
period in the United States Declaration could not be reduced to the few days
before the filing of the Nicaraguan Application. The Shultz letter could
therefore not have the effect which it was intended to produce.
2. The multilateral treaty reservation (proviso (c) of the United States
Declaration of 1946) has been invoked by the United States as applicable in
the present proceedings in so far as Nicaragua founds its claim on the
alleged violation by the United States of four multilateral treaties, the
Charter of the United Nations, the Charter of the Organization of American
States, the Convention on the Rights and Duties of States and the Convention
on the Rights and Duties of States in the Event of Civil Strife. According
to the reservation, the submission of the United States to the compulsory
jurisdiction of the Court shall not apply to "disputes arising under a
multilateral treaty, unless ... all parties to the treaty affected by the
decision are also parties to the case before the Court". This restriction
included in the Declaration of 1946 has been deplored as very far-reaching
and unclear. It has been criticized because it seemed "only to have been
inspired by vague fears and misconceptions as to the working of the Optional
Clause in a case arising under a multilateral treaty" (H. Waldock, "The
Decline of the Optional Clause", 32 British Year Book of International Law,
1955-1956, p. 275) and because "the language of the reservation betrays such
confusion of thought that to this day no one is quite sure what it means"
(H. W. Briggs, "Reservations to the Acceptance of Compulsory Jurisdiction of
the International Court of Justice", 93 Recueil des cours, 1958-I, p. 307).
The example of the United States has however been followed by some other
States, whose reservations refer simply to "all parties", while the
qualification in the United States reservation which refers to the States
parties "affected by the decision" does not appear (see para. 72 of the
Judgment). This expansion of the use of the clause indicates that it has an
applicable meaning, and that it cannot be put aside either because of its
consequences or of its lack of clarity which has given rise to much
confusion.
Both Parties referred to the legislative history of the reservation in the
United States Senate. It was inserted in the Declaration in order to take
account of Mr. J. F. Dulles' concern that the United States might be exposed
to disputes before the Court by States which were parties to the same
dispute, but not parties to the litigation pending before the Court against
the United States, because these States had not bound themselves by the
Optional Clause. It may well be that misconceptions and misunderstandings
which occurred in the debates of the United States Senate are responsible
for the insertion of the reservation and its actual wording. The basis of
the interpretation is however the text itself. If it has a meaning which can
reasonably be applied in a concrete situation, the reservation has to be
given its full effect. If not, the question arises as to whether its
invalidity affects the entire declaration of acceptance. On this assumption
the United States could not be sued by an application referring to its [p
469] acceptance of the Optional Clause. The Court has never had the
opportunity to decide whether a whole declaration under the Optional Clause
may be invalid because an ineffective reservation had to be considered an
essential part of it. If an affirmative conclusion were to be taken, its
effect would be worse than to apply the reservation and to maintain the rest
of the declaration. While this consideration, it is true, is not in itself
an element of interpretation of reservations made in a declaration under the
Optional Clause, it is nevertheless a point of view to be kept in mind when
a reasonable construction of a reservation is made.
Of the two possibilities of interpreting the reservation in a wider sense,
to include the treaties affected by the decision of the Court, or in a
narrower sense which includes only the States affected by multilateral
treaties relevant in a dispute before the Court, the United States prefers
the latter meaning. Although it belongs to the competence of the Court to
decide on the applicability of the reservation (Art. 36, para. 6, of the
Statute) I agree with the Judgment when it follows this interpretation
(para. 72). States which might be affected within the meaning of the
reservation are thus the Central American neighbouring States of Nicaragua.
I equally share the view of the Judgment that the question as to whether
States are "affected" within the meaning of the reservation cannot be
answered in the present jurisdictional phase of the proceedings, but only in
connection with the merits of the case. The objection based on the
reservation does therefore "not possess, in the circumstances of the case,
an exclusively preliminary character", a situation envisaged in Article 79,
paragraph 7, of the Rules of Court. The Court has not yet had the
opportunity to apply this provision, which belongs to the new provisions
made by the partial revision of the Rules in 1972. The intention was to
depart from the former practice in which the preliminary and the principal
phase of the proceedings had not been properly distinguished and
preliminary objections had been more often joined to the phase of the
merits than was desirable in view of a sound economy of proceedings. There
may, however, be cases in which, as in the present one, the decision on a
substantive element in an objection against jurisdiction needs to be made
before the Court can make a decision as to whether the objection is upheld.
The consequence of this situation is that the answer to the whole question
cannot be given in the proceedings on jurisdiction but must be postponed to
the phase of the merits. If the answer to the question which has not an
exclusively preliminary character is such that the element belonging to the
merits exists in the actual case, the reservation must be given effect. In
concrete terms, if the Court should find, in the merits phase, that other
States are "affected", within the meaning of the reservation as interpreted
by the Court, then in its decision the four multilateral treaties referred
to in the Nicaraguan Application cannot be applied in the present dispute.
On this hypothesis the Court remains competent to apply, with the exception
of the four multilateral treaties, the other rules and principles mentioned
in Article 38, paragraph 1, of the Statute. If it comes to the contrary
conclusion, the four multilateral treaties can be taken into account.[p
470]
To conclude this opinion, I repeat the statement made at the beginning that
I dissent from the Court in so far as it founds its jurisdiction on Article
36, paragraphs 2 and 5, of the Statute.
(Signed) Hermann Mosler.
[p 471]
Separate opinion of judge Oda
Table of Contents
|
|
Pages |
|
Opening Remarks......................... |
472 |
|
|
|
|
Part I. |
Nicaragua's
Standing as Applicant ............ |
473 |
|
Chapter 1. |
Nicaragua's Declaration of 1929 for acceptance of the
Optional Clause............................ |
473 |
|
Chapter 2. |
Article 36, paragraph 5, of the Statute .......... |
478 |
|
Chapter 3. |
Nicaragua's position in respect of the Optional
Clause .... |
483 |
|
|
|
|
|
Part II. |
Effect
of the Shultz Letter................ |
489 |
|
|
|
|
|
Chapter 1. |
New types of reservation ................ |
489 |
|
Chapter 2. |
Termination and modification of the United States
Declaration
|
494 |
|
Chapter 3. |
Effect vis-ΰ-vis Nicaragua of the United States
termination of its
obligation under the Optional Clause............... |
510 |
|
|
|
|
Conclusions........................... |
513 |
[p 472]
Opening Remarks
While dissenting on many vital points from the Judgment, I nevertheless
concur in the conclusion the Court has reached in paragraph 113 (1) (c) that
it has jurisdiction to entertain the case solely because I cannot, with
confidence, hold in respect of the 1956 Treaty of Friendship, Commerce and
Navigation between Nicaragua and the United States any view different from
the interpretation given by the Judgment.
Yet this Treaty was not mentioned at all in Nicaragua's Application and was
scarcely discussed during the oral proceedings, except for a single
reference by the Agent to the Treaty as "a subsidiary basis for the Court's
jurisdiction"; neither am I confident that the Court has sufficiently
satisfied itself that a dispute concerning the interpretation or
application of this Treaty which is of a commercial nature exists or
that, if any dispute does exist, diplomatic negotiations have been tried and
have failed to adjust it (see Treaty, Art. XXIV, para. 2). I am afraid that
the Court might seem in danger of inviting a case "through the back door".
So it should be understood that a case brought under the 1956 Treaty must be
more strictly limited in scope than that brought by Nicaragua's original
Application. In other words, the present case could be sustained only as far
as any violations of specific provisions of that Treaty are proved.
Furthermore, in depending on this Treaty as one of the bases for
jurisdiction, the Court seems implicitly to concede that Article 36,
paragraph 2, read with paragraph 5, of its Statute does not provide a solid
foundation. It is true that in the case concerning United States Diplomatic
and Consular Staff in Tehran the Court based its jurisdiction on two
different sources, but it did so for reasons which have no parallel in the
present case, so that the Judgment's reference to this alleged precedent
constitutes a highly misleading application of the Court's jurisprudence.
In view of the unduly short time allowed to Judges in the present case for
expounding their separate or dissenting opinions, I cannot, to my great
regret, cover all the issues over which I am in disagreement with the
Judgment. I confine myself therefore, in the main, to expressing my views,
which are quite contrary to those of the Judgment, with regard to Article
36, paragraph 2, read with paragraph 5, of the Statute of the Court, since
these provisions, which are the basis of the so-called system of the
Optional Clause or of compulsory jurisdiction, raise issues of
interpretation and application that are so important that the future of the
Court might well depend upon them.[p 473]
Part I. Nicaragua's Standing as Applicant
Chapter 1. Nicaragua's Declaration of 1929 for Acceptance of the Optional
Clause
I
Nicaragua became a Member of the League of Nations on 3 November 1920FN1 On
13 December of that year it joined the other Members in a unanimous
resolution approving, as amended, the draft Statute of the Permanent Court
of International Justice and providing for a Protocol of Signature whereby
States would declare their "recognition of this Statute". The Protocol was
so worded as to render this recognition meaningful and effective by, first,
bringing the Statute into force through ratification by the majority of
League Members and, second, securing from League Members declarations "that
they accepted] the jurisdiction of the Court in accordance with the terms
and subject to the conditions of the above-mentioned Statute". The Protocol
continued in the following terms:
"The present Protocol ... is subject to ratification. Each Power shall send
its ratification to the Secretary-General of the League of Nations; the
latter shall take the necessary steps to notify such ratification to the
other signatory Powers. The ratification shall be deposited in the archives
of the Secretariat of the League of Nations." (P.C.I.J., Series D, No. 1,
4th ed., p. 7.)
---------------------------------------------------------------------------------------------------------------------
FN1 Nicaragua later announced on 26 June 1936 that it would withdraw from
the League, and this withdrawal became effective as of 26 June 1938 (League
of Nations, Official Journal, 17th Year, Nos. 8-9 (1936), p. 923).
---------------------------------------------------------------------------------------------------------------------
Ratification of the Protocol was thus essential both for the creation of the
Permanent Court and for conferring upon it jurisdiction ratione personae It
can accordingly be concluded that a State, even if it had participated in
the resolution of 13 December 1920 and even if it remained a Member of the
League of Nations, could not be held to have accepted the jurisdiction of
the Court in the minimal sense indicated above unless or until it had both
signed and ratified the Protocol, which became open for signature only three
days after the adoption of the resolution.
Nicaragua did sign the Protocol of Signature, but not until 14 September
1929, when it also signed the Protocol relating to the revision of the
Statute of the Court. There is, however, as the Judgment makes abundantly
clear, no evidence that it ever provided an instrument of ratification for
deposit in the archives of the League Secretariat. On the other hand,
various documents submitted to the Court indicate that between 1934 and 1939
Nicaragua internally carried out domestic formalities for the ratification
of the Protocol of the Statute. Externally, on 29 November 1939, the
Ministry [p 474] of Foreign Affairs of Nicaragua sent the following telegram
to the Secretary-General of the League of Nations:
[English translation]
"Statute and Protocol Permanent Court International Justice The Hague have
already been ratified. Will send you in due course instrument ratification
- Relations."
The Acting Legal Adviser to the League of Nations acknowledged receipt of
the telegram on 30 November 1939, and stated:
"En reponse, je m'empresse de vous informer que le service competent du
Secretariat se tient ΰ la disposition de votre Gouvernement pour lui
faciliter les formalites relatives au depτt dudit instrument de
ratification." (Ann. No. 23 to United States Counter-Memorial.)
The Secretariat of the League of Nations did not, however, receive the
instrument of ratification thereafter. In his letter of 15 September 1942 to
Judge Manley O. Hudson, the Acting Legal Adviser stated:
"We have not received the ratification necessary to complete the signature
of the Court Protocol and at the same time to bring into force the
obligations concerning Article 36. But on November 29th, 1939, the
Secretary-General was informed by a telegram that the Court Protocol was
ratified by the President of the Republic of Nicaragua. We have however
never received the instrument of ratification itself, which should have
been sent to us. Nicaragua is therefore not bound either by the Protocol or
by the optional clause." (Ann. No. 25 to United States Counter-Memorial.)
Nicaragua's Memorial (para. 86) concedes that: "The instrument of
ratification of the Protocol of Signature appears not to have been
deposited." Annex I to the Memorial states:
"In connection with this proceeding, the Government of Nicaragua has
undertaken investigations in the official archives of Nicaragua. To date, no
evidence has been uncovered that the instrument of ratification of the
Protocol of Signature to the Statute of the Permanent Court of International
Justice was forwarded to Geneva."
The Agent of Nicaragua stated:
"World War II, which was then in full progress, and the attacks on
commercial shipping may explain why the instruments appear never to have
arrived at the Registry of the Permanent Court." (Hearing of 8 October
1984.) [p 475]
Thus Nicaragua itself seems to recognize that the instrument of ratification
of the Protocol was not deposited, as it should have been, with the
Secretariat of the League of Nations.
Nicaragua has suggested that this defect in the process of recognizing the
Statute and accepting the jurisdiction of the Permanent Court of
International Justice can be attributed to the outbreak of war in Europe in
1939. However, what is of concern in the present case is not whether the
ne-cessary ratification could have been deposited by any fixed date in 1939.
Even if one acknowledges the serious situation in Europe as from 1939, it is
difficult to suppose that Nicaragua would not, at some time up to 1945, have
been able to cure the defect if it persisted in the intention of becoming a
party to the Statute of the Permanent Court of International Justice.
II
Nicaragua had thus gone only half way towards "recognition of the Statute"
(in the language of the 1920 resolution) or "acceptance of the jurisdiction"
(in that of the Protocol) when, on 24 September 1929, the following
declaration was made in accordance with the so-called Optional Clause:
"On behalf of the Republic of Nicaragua I recognize as compulsory
unconditionally the jurisdiction of the Permanent Court of International
Justice."
Article 36 of the Permanent Court's Statute provided that such declarations
might be made "either when signing or ratifying the Protocol" of Signature
"or at a later moment". In Nicaragua's case the moment chosen was ten days
after signature of the Protocol, which strongly suggests that it fully
intended, at that period, to complete all the processes whereby it would
have recognized the Statute and accepted the jurisdiction of the Permanent
Court - accepted it, what is more, as compulsory without condition. Failing
ratification, however, none of this occurred, and the fulfilment of that
intention remained, as we have seen, indefinitely in suspense. From the
viewpoint of legal effectivity, the half-way stage reached by Nicaragua
remained of no account. What effect can after all be attributed to its
recognition as compulsory of a jurisdiction it had not formally accepted :
the jurisdiction of a Court whose Statute it had not formally recognized ?
In this connection, and even supposing that Nicaragua's intention was
constant and demonstrable beyond all doubt, I cannot accept the proposition
that that intention outweighed the defect because of the formal character of
the latter. As I have indicated at the outset, ratification of the Protocol
was a stringent requirement without whose fulfilment the Permanent Court
could have no jurisdiction over Nicaragua. This conclusion [p 476] is
reinforced by the very language of the resolution of 13 December 1920, which
had stated in terms that the Permanent Court was to deal solely with
"disputes between the Members [of the League] or States which have ratified
[the Protocol]" or other States which had been given access to the Court
under the second paragraph of Article 35 of its Statute (P.C.I.J., Series D,
No. 1, 4th ed., p. 7). Nicaragua never fell into either category.
Ratification was thus no matter of pure form, and neither was the
requirement of "sending" the ratification to the Secretary-General,
considering that the possibility of his notifying "other signatory powers"
depended entirely upon its accomplishment. To my knowledge, he has never
been held remiss for not proceeding to the notification upon the strength of
the 1939 telegram.
Certainly, at the time of the Permanent Court, there was no doubt at The
Hague that Nicaragua, until it ratified the Protocol, could not be held
bound by its declaration. The Collection of Texts Governing the Jurisdiction
of the Court issued by the Registrar (P. C.I.J., Series D, No. 6, 4th ed.,
1932) made this perfectly clear with a list of mere "Signataires" of the
Optional Clause (on p. 32) followed immediately by one of "Etats lies" (p.
33). Several States were placed in the first list, but not in the second; in
most cases because of a self-imposed requirement of ratification of the
declaration that had yet to be fulfilled, but in Nicaragua's case because
it had not ratified the Protocol (ibid., p. 58, n. 5, and table on p. 61).
That situation never changed throughout the life of the Permanent Court, and
so there was never any moment at which Nicaragua's declaration could be
relied upon.
Nicaragua, be it noted, was not alone in having made its declaration in
advance of the necessary ratification of the Protocol of Signature of the
Statute. Particularly in the early days of the Permanent Court of
International Justice, several States, doubtless encouraged by the very
wording of Article 36 of the Statute, made declarations of acceptance of
compulsory jurisdiction "when signing" the Protocol of Signature, far in
advance of its ratification. Thus Annual Report No. 15 of the Permanent
Court of International Justice, the last number available prior to 1945,
indicates that as of 15 June 1939 the 1920 Protocol of Signature had been
signed by 58 nations, of which nine (United States of America, Argentina,
Costa Rica, Egypt, Guatemala, Iraq, Liberia, Nicaragua and Turkey) had not
ratified it; though the eight here italicized had declared their acceptance
of the compulsory jurisdiction of the Court in one way or another.
Whatever the legal significance of official yearbooks, the fact is that the
Registrar of the Court, in prefacing the addenda to the above-mentioned
Collection of Texts which were incorporated into the Annual Reports, took
care to describe that collection as mentioning "instruments already in force
or merely signed" (e.g., P.C.I.J., Series E, No. 15, p. 211), so that no [p
477] conclusion of effectivity is to be drawn from the inclusion of the
above eight States in the List of States having signed the Optional Clause.
The situation of Nicaragua in this respect had not changed by 31 December
1945. In Report No. 16 of the Permanent Court of International Justice (the
latest volume of the series, covering the years 1939-1945 and therefore not
called Annual Report), published after 1946, Nicaragua was referred to in
exactly the same way as in the preceding volumes, except for the addition of
the following footnote in a section entitled Protocol of Signature of the
Statute of the Court:
"According to a telegram dated November 29th, 1939, addressed to the League
of Nations, Nicaragua had ratified the Protocol, and the instrument of
ratification was to follow. The latter however has not been deposited."
(P.C.I.J., Series E, No. 16, p. 331.)
In No. 16, as in the preceding volumes, Nicaragua was listed as a State
which had signed [the Optional Clause] without condition as to ratification
(ibid., p. 49), and as a State which had signed without condition as to
ratification but had not ratified the Protocol of Signature of the Statute
(ibid., p. 50). Even in this volume Nicaragua was not among the 29 States
which were listed as States bound by the Clause (ibid.). Despite the 1939
telegram, there was no change in Nicaragua's treatment in the List of States
having signed the Optional Clause (ibid., p. 345).
III
It stands to reason that the declaration of acceptance of the compulsory
jurisdiction of the Permanent Court of International Justice as such did not
have effect if it emanated from a State which had not become a Party to the
Statute of the Permanent Court of International Justice, and that the
declaration of acceptance of the compulsory jurisdiction of the Court could
not have been in force separately from the recognition of the Statute
itself, to which alone such a declaration could have been attached.
It is not easy to count the exact number of those States whose declarations
of acceptance of the compulsory jurisdiction of the Court were still valid
in 1945, because of the somewhat vague status of the declaration in the case
of some countries. Quite a number of declarations had already expired by
that time because of the expiration of the term fixed by the declarations
themselves, and still-valid declarations had been made by States which were
not the original Members of the United Nations. In 1945 it was possible to
say, on the basis of Volume 15 of the Annual Report (the latest available),
that about 20 declarations made by original Member States of the United
Nations were still valid and effective. This brings me to the question of
the transition to the International Court of Justice.[p 478]
Chapter 2. Article 36, paragraph 5, of the Statute
I
The origin of Article 36, paragraph 5, of the present Court's Statute may be
traced to a question raised by the United Kingdom at the Washington
Committee of Jurists in the preparations for the San Francisco Conference in
the spring of 1945 to draft the United Nations Charter. In a document dated
10 April 1945 the United Kingdom drew attention to the matter as follows:
"One question which will arise in connection with Article 36, is what action
should be taken concerning the existing acceptances of the 'optional
clause', by which a number of countries have, subject to certain
reservations, bound themselves to accept the jurisdiction of the Court as
obligatory. Should these acceptances be regarded as having automatically
come to an end or should some provision be made for continuing them in force
with perhaps a provision by which those concerned could revise or denounce
them [?]" (UNCIO, Vol. XIV, p. 318, emphasis added.)
The documents of the Committee of Jurists do not reveal any significant
discussions on this subject, but in a report of 14 April 1945 the
Sub-Committee dealing with the drafting of Article 36 expressed its belief
that provision should be made for a "special agreement for continuing these
acceptances in force" (in French, "un accord special pour maintenir ces
acceptations en vigueur") (ibid., p. 289). Thus continuance in force was the
theme from the outset.
II
In Committee IV/1 of the San Francisco Conference, the United Kingdom
representative made the following statement on 28 May 1945:
"If the Committee decides to retain the optional clause, it could provide
for the continuing validity of existing adherences to it. Since forty
Members of the United Nations are bound by it, compulsory jurisdiction would
to this extent be a reality." (UNCIO, Vol. XIII, p. 227.)
A Sub-Committee was set up on that day and its report submitted to Committee
IV/1 on 31 May 1945 read as follows:
"The text proposed by the Sub-Committee to the Committee is attached. This
text is the same as that of the first alternative proposed for Article 36 by
the Committee of Jurists of Washington, with the exception of the two
following modifications:
[p 479] (2) the new paragraph which follows (new paragraph 4) has been
inserted after paragraph 3 :
'Declarations made under Article 36 of the Statute of the Permanent Court
of International Justice and which are still in force shall be deemed as
between the parties to the present Statute to have been made under this
Article and shall continue to apply, in accordance with their terms."'
(UNCIO, Vol. XIII, p. 558, emphasis added.)
The French text of this new paragraph reads:
"Les declarations encore en vigueur, faites en application de l'article 36
du Statut de la Cour permanente de Justice internationale seront
considerees, en ce qui concerne les rapports reciproques des parties au
present Statut, comme ayant ete faites en application du present article, et
continueront ΰ s'appliquer conformement aux conditions qu'elles stipulent."
(Ibid., p. 564, emphasis added.)
In other words, the English and French texts were drafted in exactly the
same manner.
During the debate on this report in Committee IV/1 on 1 June 1945, several
delegates expressed their views on this particular provision.
Canada:
"In view of the new paragraph quoted above, as soon as states sign the
Charter, the great majority of them would be automatically under the
compulsory jurisdiction of the Court because of existing declarations."
(Ibid, p. 248.)
United Kingdom:
"After referring to the fact that his country had accepted the jurisdiction
of the Court for the past sixteen years, he stated that, for the reasons
given in the report, he favoured the compromise suggested therein. He
thought that some forty states would thereby become automatically subject to
the compulsory jurisdiction of the Court." (Ibid., p. 249.)
Australia:
"[H]e desired to call attention to the fact that not forty but about twenty
states would be automatically bound as a result of the compromise. In this
connection he pointed out that of the fifty-one states that have adhered to
the optional clause, three had ceased to be independent states, seventeen
were not represented at the Conference and about ten of the declarations of
other states had expired. The difference between the two systems was
therefore much greater than had been suggested." (Ibid., p. 266.)[p 480]
On 5 June 1945 France made a new proposal, suggesting that the paragraph
should read as follows:
"Les declarations faites en application de l'article 36 du Statut de la Cour
permanente de Justice internationale pour une duree qui n'est pas encore
expiree seront considerees, dans les rapports entre parties au present
Statut, comme comportant acceptation de la juridiction obligatoire de la
Cour internationale de Justice pour la duree et dans les conditions
exprimees par ces declarations. " ( UNCIO, Vol. XIII, p. 486, emphasis
added.)
The English text of this suggested amendment reads as follows:
"Declarations made under Article 36 of the Statute of the Permanent Court
of International Justice and which are still in force shall be deemed, as
between the parties to the present Statute, as including acceptance of
compulsory jurisdiction of the International Court of Justice for the time
and under the conditions expressed in these declarations." (Ibid., p. 485,
emphasis added.)
It is to be noted, however, that the French amendment was suggested so as to
replace the latter part of the new paragraph as proposed by the
Sub-Committee D, in both the English and French texts, but to change the
wording of the first part only in the French text by replacing "encore en
vigueur" with "pour une duree qui n'est pas encore expiree". The French
representative stated that "the changes suggested by him in paragraph (4)
were not substantive ones, but were intended to improve the phraseology"
(ibid., p. 284). According to the French version of the report:
"Le representant de la France declare que les changements dont il a
propose
l'introduction au paragraphe 4 ne visaient pas le fond mais tendaient ΰ
ameliorer la redaction." (Ibid., p. 290.)
This statement is crucial to the interpretation of what is now paragraph 5
of Article 36, for it precludes one from arguing, on the basis of the
preparatory work, that the meaning of the English text may be strained to
cover every subtlety encompassed by its French counterpart.
On 6 June Committee IV/1 unanimously approved paragraph 4, which was finally
drafted as follows:
"Declarations made under Article 36 of the Statute of the Permanent Court
of International Justice and which are still in force shall be deemed, as
between the parties to the present Statute, to be acceptances of the
compulsory jurisdiction of the International Court of Justice for the period
during which they still have to run and in accordance with their terms."
(Ibid., p. 284.)
In the report of this Committee it was stated as follows:
"A new paragraph 4 was inserted to preserve declarations made [p 481] under
Article 36 of the old Statute for periods of time which have not expired,
and to make these declarations applicable to the jurisdiction of the new
Court." (UNCIO, Vol. XIII, p. 391.)
This English text was identical with that of the draft report (p. 314), but
its French equivalent had been recast so as, inter alia, to replace "les
declarations formulees ... pour des periodes qui n'ont pas encore expirees"
(p. 348) with "les declarations non expirees" (p. 426), which, one may point
out in passing, appears closer to "still in force" than either the French
text of the Statute or the English of the report. The only other mention of
this provision in the document is, curiously enough, found in the part
devoted to the Charter, where it is indicated that the new paragraph (and
Art. 37 of the Statute) would safeguard "the progressive development of the
judicial process" (p. 384).
On 9 June this paragraph had been renumbered paragraph 5 (owing to the
insertion of a new paragraph 4 which is irrelevant to this discussion), and
it thus finally became Article 36, paragraph 5, of the Statute.
III
There is no denying that the founders of the International Court of Justice
in 1945 wanted to carry over to it declarations accepting the jurisdiction
of the Permanent Court of International Justice as compulsory. This is no
licence, however, for interpreting Article 36, paragraph 5, as attempting to
refer to any declaration which, without being effective, was simply on
record at that time as a historical statement. As shown in the explanation
given by the United Kingdom, which took the initiative on this particuliar
provision, Article 36, paragraph 5, was drafted to meet problems such as:
should "the acceptances of the 'Optional Clause', by which a number of
countries have... bound themselves to accept the jurisdiction of the Court
as obligatory" "be regarded as having automatically come to an end"? Or
"Should some provision be made for continuing them in force"? (UNCIO, Vol.
XIV, p. 318, emphasis added.) [p 482]
To my mind, this, and the clear limits on interpretation which are imposed
by the English text of Article 36, paragraph 5, and should be evident from
the foregoing section, quite rule out the possibility that the provision may
be held to contemplate any declaration not in force or by which the
declarant State was not or in Nicaragua's case never had been bound. The
French delegate at the San Francisco Conference who suggested the expression
"pour une duree qui n'est pas encore expiree" for Article 36, paragraph 5,
may or may not have been thinking of his own Government's case, because the
French Declaration of 1936 had already expired in 1941. On the other hand,
there is not the slightest ground for believing that the French delegate had
in mind the case of Nicaragua in suggesting the rephrasing of the French
version.
It may indeed be asked whether there was any reason for the San Francisco
Conference in 1945 to concern itself with any States that had never been
parties to the Statute of the Permanent Court of International Justice. The
new Article 36, paragraph 2, was certainly available to all such States, and
there was therefore no necessity to make any additional provision to enable
expression to be given to their consent to be bound by the Court's
compulsory jurisdiction. A contrario, had any attempt been made to "capture"
them unawares through a statutory formula, that would have been an extremely
dubious device which tended to violate the principle of consent and was ex
hypothesi vitiated. The straightforward solution offered by the new Article
36, paragraph 2, sufficed to enable any State joining the new judicial
institution, including one having made a declaration that had never come
into force, to express its readiness to accept the compulsory jurisdiction.
The present Judgment states:
"[T]hose who framed the new text were aware... that a State could make a
declaration when it had not ratified the Protocol of Signature of the
Statute, but only signed it. The chosen wording therefore does not exclude
but, on the contrary, covers a declaration made in the circumstances of
Nicaragua's declaration." (Para. 28.)
While this may be literally true, it begs the whole question of the legal
force to be attributed to a declaration "made" in such circumstances.
Nothing in the proceedings of the San Francisco Conference confirms the
implied presumption that on the dissolution of the Permanent Court a
declaration of this nature had any life that could be sustained.
Furthermore, I suggest that this presumption be tested against the
situations of two other countries never parties to the Statute of the
Permanent Court of International Justice, Argentina and Iraq, which in 1935
and 1938 respectively made declarations, both subject to ratification, to
run for a given number of years (Argentina 10, Iraq 5) from the date of
deposit of the ratification of the declaration in question (and, in Iraq's
case, thereafter until notice of [p 483] termination). Supposing that either
of these two countries were now to deposit a ratification of their pre-war
declaration, could it seriously be held that those declarations had remained
merely dormant and had been made effective by such ratification?
Chapter 3. Nicaragua's Position in Respect of the Optional Clause
I
There is no indication as to how Nicaragua understood its own position in
1945 vis-ΰ-vis the provisions of Article 36 of the Statute of the new Court.
The only things which are clear are, first, that Report No. 16 of the
Permanent Court of International Justice, which covered the period from 15
June 1939 to 31 December 1945, had not then been published; and, second,
that the only available report was No. 15, which covered the period 15 June
1938 to 15 June 1939, and which was prepared before the 1939 telegram was
sent. Thus in 1945 Nicaragua was not in a position to check its status in
the Permanent Court of International Justice from any official publication.
It may be noted that Nicaragua was represented at the Washington Committee
of Jurists by Ambassador Guillermo Sevilla-Sacasa and at the San Francisco
Conference by Mr. Mariano Argόello Vargas, then Minister for Foreign
Affairs. At any rate, Nicaragua cannot be deemed to have believed in 1945
that it would be bound by the compulsory jurisdiction of the new Court
pursuant to Article 36, paragraph 5, of the new Statute.
II
Nicaragua further states that its own conduct, and the acquiescence of the
United States as well as of other States since 1945, provided a basis for
the effectiveness of the 1929 Declaration. According to Nicaragua:
"3. Nicaragua has demonstrated by its consistent conduct for 38 years that
it has fully consented to the compulsory jurisdiction of the Court.
4. The United States, by accepting the effectiveness of Nicaragua's
declaration for 38 years, has waived any objection to the formal defect in
ratification of the Protocol of Signature." (Nicaragua's Memorial, paras.
91, 94.)
In order to prove the allegedly consistent conduct by Nicaragua and the
alleged acceptance of the effectiveness of Nicaragua's Declaration by the
United States, the present Judgment heavily depends on the way in which
Nicaragua is listed in the International Court of Justice Yearbooks. The [p
484] Judgment points out the fact that Nicaragua is included in the "List of
States which have recognized the compulsory jurisdiction of the
International Court of Justice, or which are still bound by their
acceptance of the Optional Clause of the Statute of the Permanent Court of
International Justice" in the first International Court of Justice Yearbook
1946-1947, in contrast to its exclusion from the list in the last Report of
the Permanent Court of International Justice of "States bound by the
[optional] clause", and it states:
"It is ... difficult to escape the conclusion that the basis of this
innovation was to be found in the possibility that a declaration which,
though not of binding character, was still valid, and was so for a period
that had not yet expired, permitted the application of Article 36, paragraph
5, so long as the State in question, by ratifying the Statute of the
International Court of Justice, provided it with the institutional
foundation that it had hitherto lacked. From that moment on, Nicaragua would
have become 'bound' by its 1929 Declaration, and could, for practical
purposes, appropriately be included in the same Yearbook list as the States
which had been bound even prior to the coming into force of the post-war
Statute." (Para. 37.)
Relying on the inclusion of Nicaragua in the "List of States having
recognized the compulsory jurisdiction of the International Court of
Justice, or which are still bound by the acceptance of the Optional Clause
of the Statute of the Permanent Court of International Justice" in the
Inter-national Court of Justice Yearbooks, the Judgment (para. 37) seems to
overlook, or ignore, the disclaimer which started in the 1956-1957 Yearbook
and which reads:
"The inclusion of a declaration made by any State should not be regarded as
an indication of the view entertained by the Registry or, a fortiori, by the
Court, regarding the nature, scope or validity of the instrument in
question." (P. 207.)
From the Yearbook 1958-1959 to the Yearbook 1964-1965, the beginning of the
above reads:
"The inclusion or omission of ..."
Furthermore, the Judgment seems to overlook another fact, namely, that in
the Yearbook 1946-1947 of the International Court of Justice, the
declarations made for the purpose of accepting the compulsory jurisdiction
of the Permanent Court by States which had not deposited the ratifi-cation
of the Protocol of Signature, such as Argentina, Costa Rica, Egypt,
Guatemala, Iraq, Liberia and Turkey, were certainly not treated as having
any potential effect under the Statute of the new Court.
The Registrar of the Court, who is requested by the Court to prepare the
Yearbook, is admittedly responsible for the accuracy of the facts described
therein: however, what kind of legal significance can be drawn from a
description in this document is a completely different matter. The Regis-[p
485]trar is not responsible for the legal interpretation of or implications
to be drawn from this publication. It falls within the judicial functions of
the Court to give authoritative meaning to such description and not within
the administrative tasks to be discharged by the Registrar.
III
It is, however, pertinent to examine how the position of Nicaragua has been
dealt with in the International Court of Justice Yearbooks, whose
presentation of the facts concerning acceptance under the Optional Clause,
after remaining fairly similar from Volume 1 (1946-1947) to Volume 18
(1963-1964), was greatly changed when a complete overhaul of the structure
of the Yearbook was undertaken with Volume 19 (19641965). Since then it has
not changed to the present day.
The information which concerns us here has at various times been dealt with
in different chapters of the Yearbook. It will be appropriate to begin with
the mentions in Chapter III, concerning the Court's jurisdiction. In this
chapter, there was a table concerning Declarations accepting compul-sory
jurisdiction from 1946-1947 to 1949-1950. The table of States accepting
compulsory jurisdiction was set out under the headings "State - Date
-Conditions" in the Yearbook 1946-1947, but this was changed to "State -Date
- Duration" in the 1948-1949 volume, then to "State - Date of Signature -
Duration" in that of 1949-1950. In all of the Yearbooks Nicaragua was listed
as follows: "Nicaragua - 24 IX 29 - Unconditionally", but with a footnote
attached in the same manner as to some other countries (for instance, in the
volume of 1946-1947, Australia, Canada, Colombia, Dominican Republic, El
Salvador, Haiti, India, Iran, Luxembourg, New Zealand, Panama, Paraguay,
Siam, Union of South Africa, United Kingdom and Uruguay) (apparently there
is an error in that Sweden was omitted in the 1946-1947 volume). This
footnote stated:
"Declaration made under Article 36 of the Statute of the Permanent Court
and deemed to be still in force (Article 36, paragraph 5, of Statute of the
present Court)."
As from the volume of 1950-1951 this table disappeared, and under the title
of "Acceptance of compulsory jurisdiction" there was a listing showing:
"The following States have deposited with the Secretary-General of the
United Nations the declaration recognizing the Court's jurisdiction as
compulsory, or had already accepted the jurisdiction of the Permanent Court
of International Justice as compulsory for a period that has not yet
expired." (I.C.J. Yearbook 1951-1952, p. 43 )
This format continued until the Yearbook 1958-1959, but since the 19591960
volume such reference to the names of States completely disappeared from
Chapter III. Nicaragua was included in the list mentioned above[p 486] since
the volume of 1950-1951. From the 1956-1957 to the 1958-1959 volumes, the
following footnote was added to Nicaragua: "See footnote to the declaration
of this State, Chapter X, second part."
In the Yearbook 1946-1947 until that of 1963-1964 there was always a chapter
entitled Texts governing the jurisdiction of the Cour ; this was modelled on
the practice of the Registry of the Permanent Court of International
Justice, which however had also issued such chapters as offprints
constituting addenda to Series D, No. 6, bearing the same title. In Chapter
X for 1946-1947, the declaration of Nicaragua was listed under the section:
Communications and declarations of States which are still bound by their
adherence to the Optional Clause of the Statute of the Permanent Court of
International Justice (p. 207), with a footnote which read:
"According to a telegram dated November 29th, 1939, addressed to the League
of Nations, Nicaragua had ratified the Protocol of Signature of the Statute
of the Permanent Court of International Justice (December 16th, 1920), and
the instrument of ratification was to follow. Notification concerning the
deposit of the said instrument has not, however, been received in the
Registry."
It should be remembered in passing that the final sentence was rightly
designed not to exclude the possibility that the ratification had,
unbeknown to the Registrar, been deposited where it belonged in the
archives of the League Secretariat.
From the time of the Yearbook 1947-1948, under the section headed Acceptance
of the compulsory jurisdiction of the Court, only the texts of new
declarations were reproduced. Declarations like those of Nicaragua which had
been printed in the 1946-1947 volume were not reproduced but simply made the
subject of a reference back to that volume. This practice, which in effect
preserved the actuality of the footnote, was continued until the Yearbook
1955-1956. Since the Yearbook 1956-1957 all the declarations in force have
always been reproduced.
Also in this Chapter X mentioned above, until the Yearbook 1955-1956 there
was always a "List of States which have recognized the compulsory
jurisdiction of the International Court of Justice or which are still bound
by their declarations accepting the compulsory jurisdiction of the
Perma-nent Court of International Justice" (Art. 36 of the Statute of the
International Court of Justice) (I.C.J. Yearbook 1947-1948, p. 133 FN1).
The headings of each column of the table listing these States have been
changed from "States - Date of signature - Conditions - Date of deposit of
ratification" in the Yearbook 1946-1947 to "State - Date of signature
-Conditions - Date of deposit of ratification" in 1947-1948; "State - Date
of signature - Conditions - Date of ratification" in 1948-1949; "State -Date
of signature Date of deposit of signature Conditions" in 19491950 ; and
"State - Date of signature - Date of deposit of declarations
[p 487] Conditions" in the 1951-1952 volume. This last type remained until
the 1955-1956 volume. During this period Nicaragua was listed as "Nicaragua
- 24 IX 29 - (Unconditionally) - blank". Since the Yearbook 1949-1950,
because of the change of format, Nicaragua was listed as "Nicaragua -24 IX
29 - 24 IX 29 - (Unconditionally)".
---------------------------------------------------------------------------------------------------------------------
FN1The title in the 1946-1947 volume was slightly different.
---------------------------------------------------------------------------------------------------------------------
In the 1955-1956 volume a footnote was attached to the listing of Nicaragua,
which read as follows:
"According to a telegram dated November 29th, 1939, addressed to the League
of Nations, Nicaragua had ratified the Protocol of Signature of the Statute
of the Permanent Court of International Justice (December 16th, 1920), and
the instrument of ratification was to follow. It does not appear, however,
that the instrument of ratification was ever received by the League of
Nations."
The new final sentence shows clearly that by 1956 the Registrar had made
thorough enquiries and was reasonably satisfied that the possibility left
open by the previous footnote was now unlikely in the extreme. Since the
Yearbook 1956-1957, as previously mentioned, the texts of all the
declarations in force were listed under the title Acceptance of the
compulsory jurisdiction of the Court in pursuance of Article 36 of the
Statute, after which the table was discontinued. A footnote is attached to
the declaration itself of Nicaragua, which is identical to that in the
1955-1956 volume. From the Yearbook 1961-1962 onwards, the title was changed
to Declaration recognizing compulsory jurisdiction, but there was no change
to the substance.
There has been a complete change in the format of the Yearbook since that of
1964-1965. The former Chapter X was replaced by a new Chapter IV, Texts
governing the jurisdiction of the Court, in which Section II, "Declarations
recognizing as compulsory the jurisdiction of the Court", contained the
complete texts of the declarations; the listing of Nicaragua in that volume
was the same as in 1956-1957 and this presentation has continued until the
latest Yearbook 1982-1983.
Thus it can be seen that throughout the Yearbooks, from the very beginning,
a reservation has always been attached to the Declaration of Nicaragua. In
the 1955-1956 volume a footnote was added in respect of Nicaragua in the
list in Chapter X, and in the 1956-1957 volume, where the list was
discontinued and the full text reproduced, the same footnote was carried
over. In addition, in Chapter III of the volumes from 1956-1957 to 1958-1959
which continued the express reference to the names of the States, Nicaragua
was mentioned with a footnote which referred back to the footnote included
in Chapter X.
IV
Is it possible, from the facts as mentioned above, to draw the conclusion
that the Court has made any authoritative interpretation that Nicaragua
would be bound by the compulsory jurisdiction of the Court? I do not [p 488]
deny that the Registrar or his staff, at the outset of the International
Court of Justice in 1946, might have queried the legal effect of the 1939
telegram from Nicaragua. Yet, as the differences of opinions between Judges
in the present case show only too well, it would have been most presumptuous
of him to exclude any declaration that might be seen as not having expired.
It was natural and indeed proper for him to continue publishing Nicaragua's
Declaration with the factual qualification set out in a footnote, rather
than categorically ignoring it. The Registrar was certainly not in a
position to give any authoritative interpretation to the effect of the 1939
telegram; and there is no room to interpret the uncertainties in the
handling of the case of Nicaragua in the International Court of Justice
Yearbook as giving any fresh legal significance to the value of Nicaragua's
Declaration.
It may be true that such a treatment of Nicaragua's declaration had not been
contested by any country, but no one can deny that, unless there is any
practical need to scrutinize specific points, little attention is likely to
have been paid by other States to items which were repeated year by year.
The International Court of Justice Yearbook, like other works of reference
produced by reputable institutions, exists for the accurate conveying of
facts, and where the facts it relates suffice in themselves as the basis of
legal conclusions, it is, I repeat, quite inappropriate to attach ultimate
legal authority to the manner of its drafting. Even were that not so, given
that a footnote is the exception rather than the rule, would it not be
reasonable to expect that the Registry's remarks would do more to alert the
informed reader against the effectiveness of Nicaragua's declaration than
its inclusion would do to suggest its being in force?
V
The case concerning the Arbitral Award Made by the King of Spain on 23
December 1906 between Honduras and Nicaragua has repeatedly been referred to
by Nicaragua in support of its contention that its acceptance of the
compulsory jurisdiction of the Court was valid. The present Judgment does
not have much to say about the case, yet it states:
"The Court notes that Nicaragua, even if its conduct in the case concerning
the Arbitral Award Made by the King of Spain on 23 December 1906 was not
unambiguous, did not at any time declare that it was not bound by its 1929
Declaration." (Para. 39.)
In another place it states:
"[W]hat States believe regarding the legal situation of Nicaragua so far as
the compulsory jurisdiction of the Court is concerned may emerge from the
conclusions drawn by certain governments as [p 489] regards the possibility
of obliging Nicaragua to appear before the Court or of escaping any
proceedings it may institute. The Court would therefore recall that in the
case concerning the Arbitral Award Made by the King of Spain on 23 December
1906 Honduras founded its application both on a special agreement, the
Washington Agreement, and on Nicaragua's Optional-Clause declaration."
(Para. 41.)
It may be wondered whether it is the intention of the Judgment to assert
that the Respondent's acceptance of the compulsory jurisdiction can be
established by the Applicant's assertion.
The Court concludes, again after referring to the above-mentioned case:
"[T]he position of Nicaragua as to its own conduct is, as indicated above,
that so far from having represented that it was not bound by the Optional
Clause, on the contrary its conduct unequivocally constituted consent to be
so bound." (Para. 50.)
The Court thus appears to take Nicaragua's assertion at face value and
evades considering whether Nicaragua's conduct in that case would really
constitute acquiescence in the compulsory jurisdiction of the Court under
any other head than the Washington Agreement. That apart, what is "indicated
above", in the quoted phrase, is so scanty that it certainly gives no ground
to conclude that Nicaragua believed it would have been bound by the Optional
Clause of the Statute in that particular litigation.
Part II. Effect of the Shultz Letter
Chapter 1. New Types of Reservation
I
If Nicaragua lacks legal standing as an Applicant for the reason that it has
not accepted the compulsory jurisdiction of the Court under Article 36,
paragraph 2 or 5, of the Statute, the present proceedings, which were
initiated by a unilateral application by Nicaragua, cannot be entertained on
the basis of those provisions. However, it still appears pertinent to
examine whether the United States could be proceeded against in the present
case supposing Nicaragua did have locus standi to bring the United States to
the Court because of the latter's acceptance of the compulsory jurisdiction
of the Court.
On 6 April 1984 the United States added in the so-called Shultz letter a
further reservation to those already made in its Declaration of 26 August
1946. The Shultz letter purported to exclude from the jurisdiction of the
Court:[p 490]
"[D]isputes with any Central American state or arising out of or related to
events in Central America, any of which disputes shall be settled in such
manner as the parties to them may agree."
In order to see whether or not this reservation was effective, it is
pertinent to look at the history of reservations to the Optional Clause
since the time of the Permanent Court of International Justice.
II
In drafting the Statute of the Permanent Court of International Justice, the
Advisory Committee of Jurists in 1920 did not anticipate any reservations
being made concerning the compulsory jurisdiction. The Netherlands was the
first State accepting the compulsory jurisdiction of the Court (on 6 August
1921) to make a reservation. It was rather a modest one, which attempted to
limit the jurisdiction of the Court to "any future dispute in regard to
which the parties have not agreed to have recourse to some other means of
friendly settlement" (P.C.I.J., Series D, No. 4, 2nd ed., p. 20). This type
of reservation was used in the 1920s by Estonia (1923), Belgium (1925),
Ethiopia (1926), Germany (1927), Spain (1928), Italy (1929), Latvia (1929),
France (1929) and Czechoslovakia (1929).
In order to reply to the question of the legality of making a reservation to
the Optional Clause and to facilitate the acceptance of the compulsory
jurisdiction of the Court by as many countries as possible, the General
Assembly of the League of Nations, on 2 October 1924, passed a resolution
concerning Arbitration, Security, and Reduction of Armaments in which it
"[c]onsider[ed] that the study of the ... terms [of Article 36, paragraph
2] shows them to be sufficiently wide to permit States to adhere to the
Special Protocol opened for signature in virtue of Article 36, paragraph 2,
with the reservations which they regard as indispensable" (League of Nations
Official Journal, Special Supplement No. 21, p. 21, emphasis added)
and recommended "States to accede at the earliest possible date" to the
Optional Clause. The Protocol for the Pacific Settlement of International
Disputes, which was attached as an annex to that resolution, reads:
"The Signatory States undertake to recognize as compulsory, ipso facto and
without special agreement, the jurisdiction of the Permanent Court of
International Justice in the cases covered by paragraph 2 of Article 36 of
the Statute of the Court, but without prejudice to the right of any State,
when acceding to the special protocol provided for in the said Article and
opened for signature on December 16th, 1920, to make reservations compatible
with the said clause." (League of Nations Official Journal, Special
Supplement No. 21, p. 22, emphasis added.) [p 491]
In 1928 the General Assembly of the League of Nations again passed a
resolution along the lines suggested four years previously:
"Pacific Settlement of International Disputes, Non-Aggression and Mutual
Assistance
(v) resolution regarding the optional clause of article 36 of the statute of
the permanent court of international justice
The Assembly:
Referring to the [1924 resolution]... considering that the terms of Article
36, paragraph 2, of the Statute of the Permanent Court of International
Justice are sufficiently wide to permit States to adhere to the special
Protocol opened for signature in virtue of that article, with the
reservations which they regard as indispensable, and convinced that it is
in the interest of the progress of international justice that the greatest
possible number of States should, to the widest possible extent, accept as
compulsory the jurisdiction of the Court, recommends States to accede to the
said Protocol at the earliest possible date;
Noting that this recommendation has not so far produced all the effect that
is to be desired;
Being of opinion that, in order to facilitate effectively the acceptance of
the clause in question, it is expedient to diminish the obstacles which
prevent States from committing themselves;
Being convinced that the efforts now being made through progressive
codification to diminish the uncertainties and supply the deficiencies of
international law will greatly facilitate the acceptance of the optional
clause of Article 36 of the Statute of the Court, and that meanwhile
attention should once more be drawn to the possibility offered by the terms
of that clause to States which do not see their way to accede to it without
qualification, to do so subject to appropriate reservations limiting the
extent of their commitments, both as regards duration and as regards scope;
Noting, in this latter connection, that the reservations conceivable may
relate, either generally to certain aspects of any kind of dispute, or
specifically to certain classes or lists of disputes, and these different
kinds of reservation can be legitimately combined;
Recommends that States which have not yet acceded to the optional clause of
Article 36 of the Statute of the Permanent Court of International Justice
should, failing accession pure and simple, consider, with due regard to
their interests, whether they can accede on the conditions above indicated;
..." {League of Nations Official Journal, Special Supplement No. 64, p. 183,
emphasis added.) [p 492]
Thus, within less than ten years of the foundation of the Permanent Court of
International Justice, reservations to the jurisdiction of the Court had
become permissible in order to make it easier for States to accept the
compulsory jurisdiction of the Court.
III
Great Britain, in its Declaration of 19 September 1929, together with other
Commonwealth nations, such as the Union of South Africa (19 September 1929),
New Zealand (19 September 1929), India (19 September 1929), Australia (20
September 1929), and Canada (20 September 1929) attempted to restrict their
acceptance of the jurisdiction of the Court and added, in addition to the
type of reservation initiated by the Netherlands, two new types concerning
disputes among the members of the British Commonwealth and disputes with
regard to questions which, by international law, fell exclusively within
the declarant's jurisdiction. Great Britain and other Commonwealth nations
also reserved, with some provisos,
"the right to require that proceedings in the Court shall be suspended in
respect of any dispute which has been submitted to and is under
consideration by the Council of the League of Nations".
In the 1930s, following the initiative taken by Great Britain, it became
common practice for States to make a variety of reservations to the
declaration of acceptance of compulsory jurisdiction. Some States followed
the reservation of Great Britain in some way or another. The reservation
concerning domestic jurisdiction was included by Yugoslavia (16 May 1930),
Albania (17 September 1930), Iran (2 October 1930), Romania (8 October
1930), Poland (24 January 1931), Argentina (28 December 1935), Brazil (26
January 1937), Iraq (22 September 1938) and Egypt (30 May 1939). On the
other hand the notion of suspension in respect of any dispute before the
Council of the League of Nations was adopted by Italy (9 September 1929),
Czechoslovakia (19 September 1929), France (19 September 1929), Peru (19
September 1929) and Iraq (22 September 1938). In addition, a new type of
reservation for disputes relating to territorial status was made by Greece
(12 September 1929), Albania (17 September 1930), Persia (2 October 1930),
Romania (8 October 1930) and Iraq (22 September 1938).
On 7 March 1940 Great Britain, making a new declaration, added a further
reservation concerning "disputes arising out of events occurring at a time
when His Majesty's Government were involved in hostilities". This type of
reservation was immediately followed by the other Commonwealth nations, such
as India (7 March 1940), New Zealand (8 April 1940), the Union of South
Africa (20 April 1940) and Australia (2 September 1940). (Canada did not
make such a reservation.) [p 493]
IV
During the preparation of the Statute of the International Court of Justice
at the San Francisco Conference, no doubt was expressed as to the
permissibility of making reservations to acceptance of the compulsory
jurisdiction of the Court to be newly founded. The report of Sub-Committee
D to Committee 1 of Commission IV on Article 36 of the Statute of the
International Court of Justice, prepared on 31 May 1945, clearly recognizes
the permissibility of attaching reservations to the declaration of
acceptance of the compulsory jurisdiction of the Court. It reads:
"The question of reservations calls for an explanation. As is well known,
the article has consistently been interpreted in the past as allowing states
accepting the jurisdiction of the Court to subject their declarations to
reservations. The Subcommittee has considered such interpretation as being
henceforth established. It has therefore been considered unnecessary to
modify paragraph 3 in order to make express reference to the right of the
states to make such reservations." (UNCIO, Vol. XIII, p. 559.)
Most declarations referring to the compulsory jurisdiction of the new Court
have been accompanied by reservations, the scope of which has been
considerably more far-reaching than that of the declarations which had been
made under the Permanent Court of International Justice. For example, the
famous Vandenberg amendment in the United States Declaration of 26 August
1946 formed one such reservation and was emulated by Pakistan (12 September
1960), Malta (29 November 1966) and India (15 September 1974). The so-called
automatic reservation, also in the United States Declaration, was adopted
subsequently by Mexico (23 October 1947), Liberia (3 March 1952), France (18
February 1957), Sudan (30 December 1957) and Malawi (29 November 1966).
There were also some instances in which the declarant States attempted to
make reservations in respect of disputes which were about to occur.
Australia's Declaration to exclude from the Court's jurisdiction:
"disputes arising out of or concerning jurisdiction or rights claimed or
exercised by Australia
(a) in respect of the continental shelf of Australia and the Territories
under the authority of Australia, as that continental shelf is described or
delimited in the Australian Proclamations of 10 September 1953 or in or
under the Australian Pearl Fisheries Acts ..." (I.C.J. Yearbook 1953-1954,
p. 210)
was made on 6 February 1954, a few months after an agreement was reached
with Japan to submit jointly to the International Court of Justice a dispute
on Japanese pearl fishing on Australia's continental shelf, but subject to
successful negotiations on a modus vivendi. India issued a new [p 494]
Declaration on 15 September 1974 to matters of the law of the sea, including
"the determination and delimitation of its maritime boundaries", while it
was reported that some negotiations with Bangladesh were taking place
concerning the maritime boundaries of the Gulf of Bengal. While the law of
the sea negotiations were proceeding in the United Nations, the new
reservation added to exclude matters of the law of the sea also appeared in
several declarations, such as those of Canada (7 April 1970), Philippines
(23 December 1971), New Zealand (22 September 1977) and Malta (23 January
1981 and 23 September 1983). These are only a few examples of the types of
reservations made.
V
In the light of the practice concerning reservations to the Optional Clause
throughout the period of the Permanent Court of International Justice and
the International Court of Justice, the reservations made by the United
States in 1984 cannot be held so exceptional or extraordinary as to fall
outside the purview of permissibility.
Chapter 2. Termination and Modification of the United States Declaration
I
The point at issue with regard to the Shultz letter concerns the legal
implications of its purporting to make a new reservation with immediate
effect. The letter states:
"Notwithstanding the terms of the aforesaid [1946] Declaration, this proviso
[i.e., new reservation] shall take effect immediately and shall remain in
force for two years, so as to foster the continuing regional dispute
settlement process which seeks a negotiated solution to the interrelated
political, economic and security problems of Central America." (Emphasis
added.)
The "Notwithstanding" constitutes, of course, an allusion to the following
clause in the United States Declaration of 1946:
"[T]his declaration shall remain in force ... until the expiration of six
months after notice may be given to terminate this declaration."
It should thus be asked whether the addition of this new reservation on 6 [p
495] April 1984 effectively exempts the United States from its adherence,
given in 1946, to the Court's jurisdiction for a dispute unilaterally
brought to the Court by Nicaragua on 9 April 1984.
The United States has implied that the Shultz letter did not purport to
terminate the 1946 Declaration but only to amend it by making a new
reservation. It is pertinent in this respect to examine the problem of the
validity of a declaration of acceptance of the Optional Clause. Relevant
indications concerning these declarations can be found in the Annual Report
in the case of the Permanent Court of International Justice, and in the
Yearbook in the case of the International Court of Justice, but the format
of these publications has changed from time to time and is often
inconsistent.
II
At the time of the Permanent Court of International Justice in particular,
it appears that the Registry did not necessarily have a precise
understanding of how to deal with the Optional Clause. The inconsistency in
dealing with the date of the Optional Clause in the Annual Reports causes
great confusion to the reader FN1; it is extremely difficult to derive a
clear indication of the status of some of the declarations of acceptance of
the Optional Clause from the Annual Reports of the Permanent Court of
International Justice. However, with this reservation, I deem it useful to
proceed with some analysis of these declarations.
---------------------------------------------------------------------------------------------------------------------
FN1 Ratification was not imposed by the terms of the Optional Clause, but in
fact some declarations were made subject to ratification while others (which
did not require it) were nevertheless ratified. In No. 1 of the Annual
Reports of the Permanent Court of International Justice, the table
concerning the Optional Clause in Chapter III (p. 138) had three columns
headed "Signatory States - Date of ratification (if any) Conditions of
acceptance", while another table in Chapter X (p. 359) was headed simply
"Signatory States Date of ratification when required". In No. 2 of the
Annual Reports, the table appeared in Chapter III only, under the headings
"States -Date of signature -Conditions - Date of deposit of ratification (if
any)". In No. 3, the headings of the tables in Chapters III and X were
identical in that they indicate "States Date of signature Conditions -
Date of deposit of ratification (if any)" (pp. 83 and 335). After No. 4 of
the Annual Reports the list in Chapter III disappeared and the format of the
table in Chapter X of No. 3 was retained. However, in Report No. 16 a table
in Chapter X is headed "States - Date of signature - Conditions - Date of
deposit of ratification", thus omitting "(if any)" from the heading
concerning ratification. I assume that what must have been significant was
the date of the deposit of the declaration, no matter whether ratification
was required under the internal procedures of some countries. When the table
indicates the "Date of deposit of ratification" it might have meant the date
of deposit of the declaration itself, whether it was properly ratified under
internal procedures (when required), or was simply deposited, in cases where
internal ratification was not required.
---------------------------------------------------------------------------------------------------------------------
[p 496] Table I shows all the declarations made under the Permanent Court of
International Justice, arranged in chronological order of the first
declarations of States:
Table I. declarations under the permanent court of international justice (in
chronological order)
S = date of signature.
R = date of deposit of ratification.
T = date of expiration or termination of the latest declaration.
D = P.C.I.J., Series D.
E = P.C.I.J., Series E.
* State whose latest declaration has expired or was terminated by 1945.
a Declaration signed without condition as to ratification.
b Declaration signed and ratified.
c Declaration subject to ratification but not ratified.
d Declaration signed before ratification of Protocol of Signature deposited.
|
Denmark |
I
: |
S
before
28.I.21, R
13.VI.21 (D4, E6); |
|
|
II
: |
S
11.XII.25,
R
28.III.26
(E6); |
|
|
III
: |
S
4.VI.36, R
? b
(D4, El
2). |
|
Switzerland |
I
: |
S
before
28.I.21 (D4, E6),
R
25.VII.21 (El) ; |
|
|
II
: |
S
1.III.26,
R
24.VII.26 (E6) ; |
|
|
III
: |
S
23.IX.36,
R 17.IV.37 b (E13). |
|
Portugal |
|
S
before
28.I.21 (D4, E6),
R 8.X.21
a (El). |
|
El Salvador |
|
S
before
28.I.21, R
29.VIII.30 a d (D4, E6) (Protocol
ratified 29.VIII.30). |
|
Costa
Rica |
|
S
before
28.I.21 a
d (D4, E6) (Protocol signed before
28.I.21
but never ratified). |
|
Uruguay |
|
S
before
28.I.21 (D4, E6),
R
27.IX.21 a (El). |
|
Netherlands
* |
I
: |
S
and R
6.VIII.21 a (D4, E6)
; |
|
|
II: |
S
2.IX.26 (E6)
; |
|
|
III: |
S
5.VIII.36 a (E13), T
1943. |
|
Sweden |
I
: |
S
16.VIII.21 a (D4, E6)
; |
|
|
II
: |
S
18.111.26
(E6) ; |
|
|
III : |
S
18.IV.36 a (E12). |
|
Norway |
I
: |
S
6.IX.21,
R 3.X.21 (D4, E6)
; |
|
|
II
: |
S
22.IX.26 b (E6)
; |
|
|
III : |
S
19.V.36 b (E12). |
|
Lithuania
* |
I
: |
S
5.X.21,
R 16.V.22 (D4, E6)
; |
|
|
II
: |
S
14.I.30
a (E6)
; |
|
|
III
: |
S
8.III.35, R
12.III.35 a
(EII), T 1940. |
|
Panama |
|
S
25.X.21,
R 14.VI.29 a
(D4, E6). |
|
Brazil |
I
: |
R
1.XI.21 a (E6)
; |
|
|
II
: |
S
and R
26.1.37
a (E13). |
[p 497]
|
Luxembourg |
I: |
S 1921 (D4, E6) (Protocol ratified 15.IX.30); |
|
|
II: |
S 15.IX.30 a (E7). |
|
Finland |
I: |
S 1921, R 6.IV.22 (D4, E6); |
|
|
II: |
S 3.III.27 a (E3, E6); |
|
|
III: |
S 9.IV.37 a (E13). |
|
Liberia |
|
S 1921c d (D4, E6) (Protocol signed 24.VII.21 but
never ratified). |
|
Bulgaria |
|
S 1921 a, R 12.VIII.21 (D4, E6). |
|
Haiti |
|
S 1921 a (D4, E6). |
|
Austria |
I: |
S 14.IV.22 (D4, E6), R 14.III.22 (El); |
|
|
II: |
S 12.1.27, R 13.III.27 (E6); |
|
|
III: |
S 22.III.37, R 30.VI.37 b (E13). |
|
China |
|
S 13.V.22 a (D4, E6). |
|
Estonia |
I: |
R 2.V.23 a (El, E6); |
|
|
II: |
S 25.VI.28 a (E4, E6); |
|
|
III: |
S 6.V.38 a (E14). |
|
Latvia |
I: |
S 11.IX.23 (D4) (Protocol ratified 12.11.24); |
|
|
II: |
S 10.IX.29, R 26.II.30 (E6); |
|
|
III: |
S 31.I.35, R 26.II.35 b (Ell). |
|
Dominican |
|
|
|
Republic |
|
S 30.IX.24, R 4.II.33 b (E9). |
|
France * |
I: |
S 2.X.24 (El); |
|
|
II: |
S 19.IX.29 (E6), R 25.IV.31 (E7); |
|
|
III: |
S 7.IV.36 a (E12), T 1941. |
|
Belgium * |
|
S 25.IX.25, R 10.III.26 b (E2), T 1941. |
|
Ethiopia * |
I: |
S 12.VII.26, R 16.VII.26 (E6); |
|
|
II: |
S 15.IV.32 a (E8); |
|
|
III: |
S 18.IX.34 a (El1), T 1936. |
|
Guatemala |
|
S 17.XII.26 c d (E3, E6) (Protocol signed 17.XII.26
but never ratified). |
|
Germany * |
I: |
S 23.IX.27, R 29.II.28 (E4, E6); |
|
|
II: |
S 9.III.33, R 5.VII.33 b (E9), T 1938. |
|
Hungary * |
I: |
S 14.IX.28, R 13.VIII.29 (E5, E6); |
|
|
II: |
S 30.V.34 (E10), R 9.VIII.34 (E13); |
|
|
III: |
S 12.VII.39, R ? b (E16), T 1939. |
|
Spain * |
|
S 21.IX.28 a (E5), T 1938. |
|
Italy * |
|
S 9.IX.29 (E6), R 7.IX.31 b (E8), T 1936. |
|
Greece * |
I: |
S 12.IX.29 a (E6); |
|
|
II : |
S 12.IX.34, R 19.VII.35 (Ell); |
|
|
III: |
S 8.IX.39, R 20.II.40 a (E16), T 1944. |
|
Irish Free State |
|
S 14.IX.29 (E6), R 11.VII.30 b (E7). |
|
Czechoslovakia |
|
S 19.IX.29 c (E6). |
|
Peru * |
|
S 19.IX.29 (E6), R 29.111.32 b (E8), T
1942. |
[p 498]
|
United Kingdom |
I: |
S 19.IX.29, R 5.II.30 (E6); |
|
|
II: |
S 28.11.40 a
(E16). |
|
New Zealand |
I: |
S 19.IX.29 (E6); |
|
|
II: |
S 1.IV.40 a
(E16). |
|
Union of |
|
|
|
South Africa |
I: |
S 19.IX.29, R 7.IV.30 (E6); |
|
|
II: |
S 7.IV.40 a
(E16). |
|
India |
I: |
S 19.IX.29, R 5.II.30 (E6); |
|
|
II: |
S 28.II.40 a
(E16). |
|
Australia |
I: |
S 20.IX.29, R 18.VIII.30
(E6); |
|
|
II: |
S 21.VIII.40 a(E16). |
|
Canada |
|
S 20.IX.29, R 28.VII.30
b (E6). |
|
Siam |
I: |
S 20.IX.29 (E6), R 7.V.30
(E7); |
|
|
II: |
S 3.V.40 b
(E16). |
|
Nicaragua |
|
S 24.IX.29 a
d (E6) (Protocol signed |
|
|
|
never ratified). |
|
Yugoslavia * |
|
S 16.V.30 (E6), R 24.XI.30
b (E7), T |
|
Albania * |
I: |
S and R 17.IX.30 (E7); |
|
|
II: |
S 7.XI.35 b
(E12), T 1946. |
|
Persia |
|
S 2.X.30 (E7), R 19.IX.32
b (E9). |
|
Romania * |
I: |
S 8.X.30, R 9.VI.31 (E7); |
|
|
II: |
S 4.VI.36 b
(E12) (corrected E13), T |
|
Poland |
|
S 24.1.31 c (E6). |
|
Colombia |
I: |
S 6.1.32 a (D6); |
|
|
II: |
S and R 30.X.37 a
(E14). |
|
Paraguay |
|
S and R 11.V.33 a(E9). |
|
Argentina
|
|
S 28.XII.35 c
d (E12) (Protocol signed 28.XII.35 but never ratified). |
|
Turkey |
|
S 12.IV.36 a
d (E12) (Protocol signed 12.IV.36 but never ratified). |
|
Bolivia |
|
S and R 7.VII.36 a
(E12, E13). |
|
Monaco
* |
|
S and R 22.IV.37 a
(E13), T 1942. |
|
Iraq |
|
S 22.IX.38 c d
(E15) (Protocol signed 22.IX.38 but never ratified). |
|
Liechtenstein
* |
|
S 22.III.39 a
(E15), T 1944. |
|
Egypt |
|
S 30.V.39 c
d (El5) (Protocol signed 30.V.39 but never ratified). |
Table II shows various types of declaration made for acceptance of the
compulsory jurisdiction of the Permanent Court of International Justice,
classified from the viewpoint of ostensible duration:
[p 499]
Table II. Duration of declarations under the permanent court of
international justice
x Declarations still valid pursuant to Article 36, paragraph 5, of the
Statute of the International Court of Justice.
1. Declarations Valid for a Fixed Period
(1) Five-year period
Denmark I (1921), Switzerland I (1921), Netherlands I (1921), Sweden I
(1921), Norway I (1921), Lithuania I (1921), Brazil I (1921), Luxembourg I
(1921), Finland I (1921), Austria I (1922), China (1922), Estonia I (1923),
Latvia I (1923), Ethiopia I (1926), Germany I (1927), Hungary I (1928),
Italy (1929), Latvia II (1929), France II (1929), Greece I (1929), Lithuania
II (1930), Yugoslavia (1930), Albania I (1930), Romania I (1930), Poland
(1931), Germany II (1933), Greece II (1934), Hungary II (1934), Lithuania
III (1935), Albania II (1935), France III (1936), Turkey (1936), Romania II
(1936), Austria III (1937), Monaco (1937), Egypt (1939), Liechtenstein
(1939), Greece III (1939).
(2) Ten-year period
Denmark II (1925), Switzerland II (1926), Netherlands II (1926), Sweden II
(1926), Norway II (1926), Finland II (1927), Austria II (1927), Estonia II
(1928), Spain (1928), Czechoslovakia (1929), Peru (1929), Siam I (1929),
Argentina (1935), Bolivia (1936), Denmark III (1936), Switzerland III
(1936), Netherlands III (1936), Sweden III (1936), Norway III (1936), Brazil
II (1937), Estonia III (1938), Siam II (1940).
(3) Fifteen-year period
France I (1924), Belgium (1925).
(4) Twenty-year period
Irish Free State (1929).
(5) Two-year period
Ethiopia II (1932), Ethiopia III (1934).
(6) With a specified date of termination
Hungary III (1939).
(7) With a fixed period automatically renewed unless an advance notice of
six months is given
Luxembourg II (1930)x.
2. Declarations for an Initial Fixed Period then Valid until Notice of
Termination Is Given
(1) Initial ten-year period
United Kingdom I (1929), II(1940), New Zealand I (1929), II(1940), Union of
South Africa I (1929), II (1940), Australia I (1929), II (1940), India I
(1929), II (1940), Canada (1929).
(2) Initial five-year period
Latvia III (1935), Iraq (1938).
(3) Initial six-year period
Persia (1930).[p 500]
3. Declarations which Did not Contain any Reference to Duration
Portugal (1921), Salvador (1921), Costa Rica (1921), Uruguay (1921) x,
Liberia (1921), Bulgaria (1921), Haiti (1921) x, Panama (1921)x, Dominican
Republic (1924)x, Guatemala (1926), Nicaragua (1929), Colombia I (1932),
Paraguay (1933), Colombia II (1937) *.
*
The following observations may be made from the analysis of Table II.
First, in the early period of the Permanent Court of International Justice -
in other words in the 1920s - most of the States signatory to the Statute of
the Permanent Court of International Justice (some of which did not deposit
the required ratification of the Protocol of Signature) accepted the
Optional Clause. Many of them did so for a fixed period, mostly five years;
in addition, many renewed the period after the expiration of the initial
period. On the other hand in particular at the very beginning of the
Permanent Court of International Justice some declarations did not specify
any period at all for the duration of the declaration.
Secondly, the most remarkable development was in 1929, when Great Britain
introduced a new concept of the immediate terminability of a declaration.
Great Britain accepted compulsory jurisdiction in a declaration which was
stated to remain valid after the first ten-year period until notice of
termination was given. The declaration read in part as follows:
"I accept as compulsory ... the jurisdiction of the Court ... for a period
of ten years and thereafter until such time as notice may be given to
terminate the acceptance." (P. C.I.J., Series E, No. 6, p. 479.)
This example was followed by the then Commonwealth countries, such as the
Union of South Africa (19 September 1929), India (19 September 1929), New
Zealand (19 September 1929), Australia (20 September 1929) and Canada (20
September 1929). In the period of the Permanent Court of International
Justice this precedent was followed by Persia (2 October 1930), Latvia (31
January 1935), and Iraq (22 September 1938).
Thirdly, another new development was seen in 1930 with the action of
Luxembourg in making a declaration for a five-year period which would
automatically be renewed unless a six months' advance notice was given. The
Declaration of Luxembourg read as follows:
"The present declaration is made for a period of five years. Unless it is
denounced six months before the expiration of that period, it shall [p 501]
be considered as renewed for a specific period of five years and similarly
thereafter FN1."
------------------------------------------------------------------------------------------------------------
FN1This English translation was made by the International Court of Justice
(see I.C.J. Yearbook 1982-1983, p. 73). It is different from the translation
that appeared in the Seventh Annual Report of the Permanent Court of
International Justice (P. C.I.J., Series E, No. 7, p. 464).
------------------------------------------------------------------------------------------------------------
*
Some declarations were terminated or amended while they were still valid.
Colombia, which on 6 January 1932 made a declaration without any reference
to duration, made a fresh declaration on 30 October 1937 which was to
continue for a ten-year period, in order to include a new reserva-tion.
Paraguay, by a decree of 26 April 1938, withdrew the acceptance of
compulsory jurisdiction which had been expressed by its Declaration of 1933
(P.C.I.J., Series E, No. 14, p. 57). On being notified of Paraguay's
withdrawal by the Secretary-General of the League of Nations, some countries
made express reservations as to the effectiveness of such denunciation,
which are contained in the publication of the Permanent Court (P.C.I.J.,
Series E, No. 15, p. 227).
Bolivia "makes the most formal reservations as to the legal value of the
decree and requests the Secretary-General to communicate these reservations
to the States signatories of the Statute and to the Members of the League of
Nations".
Belgium "in taking note of this denunciation, feels bound to make all
reservations".
Brazil "cannot accept such declaration without express reservation".
Sweden "finds itself obliged to formulate every reservation; in its view it
will be for the Court itself, should occasion arise, to pronounce on the
legal effects of that declaration".
Czechoslovakia "is of opinion that, in the absence of any provision in the
Statute regarding the denunciation of declarations, the matter is one in
which reference should be made to the general rules of international law
concerning the termination of international undertakings".
Netherlands "while not opposed to the denunciation, finds itself obliged to
formulate every reservation as regards the right of States to denounce
treaties which do not contain a clause to that effect".
On 7 September 1939, the United Kingdom, which had, as noted above, made a
declaration on 19 September 1929 for an initial period of ten years and then
until notice of termination would be given, stated in its letter:
"[T]he position to-day shows clearly that the Covenant has, in the [p 502]
present instance, completely broken down in practice, that the whole
machinery for the preservation of peace has collapsed, and that the
conditions in which His Majesty's Government accepted the Optional Clause no
longer exist ...
I am, therefore, directed to notify you that His Majesty's Government,
believing themselves to be firmly defending the principles on which the
Covenant was made, will not regard their acceptance of the Optional Clause
as covering disputes arising out of events occurring during the present
hostilities." (P.C.I.J., Series E, No. 16, p. 339.)
Other Commonwealth nations, such as New Zealand, the Union of South Africa,
Australia, India and Canada, followed this example. Similarly, France, which
on 7 April 1936 had made a declaration for a five-year period, sent the
Secretary-General of the League of Nations on 10 September 1939, a letter
which read in part:
"Les conditions dans lesquelles le Gouvernement franηais avait adhere ΰ
cette clause se trouvent aujourd'hui profondement modifiees. En
particulier, depuis que le systθme de rθglement des conflits internationaux
etabli par le Pacte de la Societe des Nations n'est plus regarde comme liant
uniformement et obligatoirement tous les Membres de la Societe des Nations,
la question de la belligerance et des droits des neutres apparaξt sous un
aspect entiθrement nouveau.
Le Gouvernement franηais considθre donc, comme le Gouvernement britannique,
dont le point de vue vous a ete expose d'autre part, que son acceptation de
la clause de l'article 36 du Statut de la Cour permanente de Justice
internationale ne peut plus desormais avoir d'effet ΰ l'egard des differends
relatifs ΰ des evenements qui viendraient ΰ se produire durant le cours de
la presente guerre." (Ibid, p. 337.)
These letters were received in the Secretariat of the League of Nations and
transmitted to States parties to the Protocol of Signature and others. The
publication of the Permanent Court of International Justice shows that some
reservations were made (ibid., p. 333). In its reply of 25 September 1939,
the Swiss Government made "reservations ... regarding the principle which a
denunciation effected in such circumstances involves". In their letters,
Belgium (20 November 1939), Netherlands (30 November 1939), Peru (12
December 1939), Estonia (5 January 1940) and Siam (6 May 1940) reserved
their points of view. The Danish Government, on 29 January 1940, also made
reservations concerning declarations of the Commonwealth nations and France
"more particularly as regards their effect in relation to disputes not
immediately connected with the war". The Norwegian and Swedish Governments,
on 15 and 20 December 1939 respectively, made "reservations as to the legal
effect of the above acts of denunciation, more particularly as regards
disputes not connected with the war". They also drew attention to the [p
503]
"fact that, in virtue of Article 36 of the Statute and the declarations
relating thereto, it rests with the Court itself to decide questions as to
its own jurisdiction and, should the case arise, to pronounce upon the
validity and, if necessary, the scope of the acts of denunciation referred
to."
The Brazilian Government, on 7 May 1940 also made reservations as regards
this "unilateral action ... in so far as concerns all matters relating to
its rights as a neutral in the present war and coming within the
jurisdiction of the Court".
It is interesting to note in this connection that Sweden suggested that,
should the case arise, the Court should pronounce on the legal effect or the
scope of the denunciation of the existing declarations relating to the
withdrawal of the Declaration of Paraguay, and that Sweden and Norway
jointly made a similar suggestion concerning the amendments of the
Commonwealth nations and France.
It is also to be noted that a number of States added various reservations at
the time when they renewed their previous declarations upon expiration of
the period stipulated.
III
I will now try to analyse the period of validity of the declarations of
acceptance of the Optional Clause made under Article 36, paragraph 2, of the
Statute of the International Court of Justice. The States which have made
these declarations amount to 47 in number. Table III may be useful for
appreciating any further analysis of this problem FN1:
---------------------------------------------------------------------------------------------------------------------
FN1 The date indicated in the table is the date of the signature of the
declaration, which is sometimes the same as the date of the deposit of the
declaration with the Secretariat of the United Nations. Although it is
questionable whether a declaration becomes effective from the date of the
signature of the declaration or from the date of the deposit of the
declaration with the United Nations, for the sake of convenience I refer
only to the date of the signature of the declaration in the table.
---------------------------------------------------------------------------------------------------------------------
Table III. Declarations under the international court of justice (in
chronological order)
The figures in brackets indicate the year of the I.C.J. Yearbook.
*The latest declarations which have expired or were terminated.
T = year of termination.
E = year of expiration.
|
Netherlands |
5.VIII.46 (46/47); II :
1.VIII.56 (55/56). |
|
United States |
I: 14.VIII.46 (46/47); II :
6.IV.84. |
|
China * |
26.X.46 (46/47), T 1972. |
|
Norway |
I: 16.XI.46 (46/47); II:
17.XII.56 (56/57); III : 2.IV.76 (75/76). |
|
Denmark |
I : 10.XII.46 (46/47); II:
10.XII.56 (56/57). |
|
[p 504] |
|
|
Guatemala * |
27.I.47 (46/47), E 1952. |
|
France * |
I: undated: 1947? (46/47); II: 10.VII.59 (58/59);
III: 16.V.66 (65/66), T 1974. |
|
Sweden |
I: 5.IV.47 (46/47); II: 6.IV.57 (56/57). |
|
Turkey * |
I: 22.V.47 (47/48); II: 19.IV.54 (53/54), E 1972. |
|
Philippines |
I: 12.VII.47 (47/48); II: 23.XII.71 (71/72). |
|
Mexico |
23.X.47 (47/48). |
|
Honduras |
I : 2.II.48 (47/48); II : 20.II.60 (59/60). |
|
Brazil * |
12.II.48 (47/48), E 1953. |
|
Belgium |
I : 10.VI.48 (47/48); II : 3.IV.58 (57/58). |
|
Bolivia * |
5.VII.48 (47/48), E 1953. |
|
Pakistan |
I : 22.VI.48 (47/48); II: 23.V.57 (56/57);III:
12.IX.60 (60/61). |
|
Switzerland |
6.VII.48 (47/48). |
|
Liechtenstein |
10.III.48 (47/48). |
|
Israel |
I : 4.IX.50 (50/51); II: 3.X.56 (56/57). |
|
Liberia |
3.III.52 (51/52). |
|
Australia |
I : 6.II.54 (53/54); II : 13.III.75 (74/75). |
|
United Kingdom |
I : 1.VI.55 (54/55); II : 31.X.55 (55/56); III :
18.IV.57 (56/57); IV : 26.XI.58 (58/59); V : 27.XI.63 (63/64); VI:
1.I.69 (68/69). |
|
South Africa * |
12.IX.55 (55/56), T 1969. |
|
Portugal |
19.XII.55 (55/56). |
|
India |
I : 7.I.56 (55/56); II : 14.IX.59 (59/60); III :
15.IX.74 (74/75). |
|
Egypt |
18.VII.57 (56/57). |
|
Cambodia (now Democratic Kampuchea) |
9.IX.57 (57/58). |
|
Sudan |
30.XII.57 (57/58). |
|
Finland |
25.VI.58 (57/58). |
|
Japan |
15.IX.58 (58/59). |
|
Somalia |
25.III.63 (62/63). |
|
Uganda |
3.X.63 (63/64). |
|
Kenya |
12.IV.65 (64/65). |
|
Nigeria |
14.VIII.65(65/66). |
|
Gambia |
14.VI.66 (65/66). |
|
Malawi |
22.XI.66 (66/67). |
|
Malta |
I : 29.XI.66 (66/67); II: 2.I.81 (80/81); III:
2.IX.83 (83/84). |
|
Mauritius |
4.IX.68 (68/69). |
|
Swaziland |
9.V.69 (68/69). |
|
[p 505] |
|
|
Botswana |
14.I.70 (69/70). |
|
Canada |
7.IV.70
(69/70). |
|
Austria |
28.IV.71
(70/71). |
|
Costa Rica |
5.II.73
(72/73). |
|
El Salvador |
26.XI.73
(73/74). |
|
New Zealand |
22.IX.77
(77/78). |
|
Togo |
24.X.79
(79/80). |
|
Barbados |
24.VII.80
(80/81). |
Table IV has been prepared in order to indicate various types of
declarations for acceptance of compulsory jurisdiction under the Statute of
the International Court of Justice, classified from the viewpoint of
ostensible duration:
Table IV. duration of declarations under the international court of justice
+ Declarations which were terminated and replaced by new declarations.
* Declarations which have expired or were terminated.
1. Declarations Valid for a Fixed Period
(1) Period of either five or ten years
Norway I (1946)+, Denmark I (1946)+, Guatemala (1947)*, France I (1947 ?) +,
Sweden I (1947) +, Turkey I (1947) +, Honduras I (1948) +, Brazil (1948) *,
Belgium I (1948) +, Bolivia (1948) *, Israel I (1950) +, Turkey II (1954) *,
El Salvador (1973).
(2) With a fixed period automatically renewed Costa Rica (1973).
(3) With a fixed period which may be automatically renewed unless a notice
of termination is given in advance (six months)
Netherlands II (1956), Norway II (1956)+, Denmark II (1956), Sweden II
(1957), Finland (1958), New Zealand (1973), Norway III (1976).
(4) Valid until a notice of termination is given in advance (six months or
one year)
United States (1946), Mexico (1947), Switzerland (1948), Liechtenstein
(1950).
2. Declarations Valid until Notice of Termination Is Given
(1) With initial fixed period
Netherlands I (1946)+, Philippines I (1947)+, Pakistan I (1948)+, Liberia
(1952), Portugal (1955), Cambodia (1957), Belgium II (1958), Japan (1958),
France II (1959)+, Austria (1971).
(2) Without initial fixed period
Australia I (1954) +, United Kingdom I (1955) +, United Kingdom II (1955)
+,[p 506] South Africa (1955) *, India I (1955) +, Israel II (1956), Sudan
(1957), Pakistan II (1957) +, United Kingdom III (1957) +, United Kingdom IV
(1958) +, India II (1959) +, Pakistan III (1960), Somalia (1963), United
Kingdom V (1963) +, Kenya (1965), France III (1966) *, Gambia (1966), Malta
I (1966) +, Mauritius (1968), United Kingdom VI (1969), Canada (1970),
Philippines II (1971), India III (1974), Australia II (1975), Barbados
(1980), Malta II (1981) *.
3. Declarations which Do not Contain any Reference to Duration or Are Made
for an Indefinite or Unlimited Period FN1
---------------------------------------------------------------------------------------------------------------------
FN1 Honduras II was for an indefinite period, and that of Togo for an
unlimited period.
---------------------------------------------------------------------------------------------------------------------
Honduras II(1960), Uganda (1963), Nigeria (1965), Malawi (1966), Swaziland
(1969), Botswana (1970), Togo (1979), Malta III (1983).
*
On the basis of examination of these declarations, I would make the
following observations.
First, of the declarations made for a fixed period (see Table IV, 1 (1) and
(2)), those of Guatemala, Brazil, Bolivia and Turkey II have expired; and
those of Norway I, Denmark I, France I, Sweden I, Honduras I, Belgium I and
Israel I were replaced by differently formulated declarations. The only
Declaration which is still valid for a fixed period is that of El Salvador,
which renewed its Declaration for a further ten-year period in 1978. The
Declaration of Costa Rica has been renewed twice and is still valid.
Secondly, regarding declarations with an initial fixed period and remaining
valid until notice of termination is given (see Table IV, 2(1)) (i.e.,
declarations of the type initiated by the United Kingdom's Declaration in
1929), the initial fixed period of all of these declarations has already
expired. The declarations of Netherlands I, Philippines I, Pakistan I and
France II were replaced by differently formulated declarations; and those of
Liberia, Portugal, Cambodia, Belgium II, Japan and Austria are now to remain
valid until notice of termination is given. In this respect, these
declarations at present have the same effect as those which simply remain
valid until notice of termination is given (Table IV, 2 (2)), such as those
of Israel II, Sudan, Pakistan III, Somalia, Kenya, Gambia, United Kingdom
VI, Mauritius, Canada, Philippines II, India III, Australia II and
Barbados. (South Africa, France III and Malta IFN2 in Table IV, 2 (2), were
terminated in 1967, 1974 and 1983 respectively.)
---------------------------------------------------------------------------------------------------------------------
FN2Malta II was to replace Malta I but was withdrawn in 1982 in order to
return to Malta I.
---------------------------------------------------------------------------------------------------------------------
[p 507]
Thirdly, those declarations without any fixed period, or those which were
made for an indefinite or unlimited period (Table IV, 3), have been very
limited in number; Honduras II, Uganda, Nigeria, Malawi, Swaziland,
Botswana, Togo and Malta II. In addition, the following five decla-rations,
which were made in the period of the Permanent Court of International
Justice, still remain in force pursuant to Article 36, paragraph 5, of the
Statute of the International Court of Justice: Uruguay (1921), Panama
(1921), Haiti (1921), Dominican Republic (1924) and Colombia II (1937).
Fourthly, those declarations which may be terminated only when advance
notice of termination (six months or one year) is given (Table IV, 1 (4))
(i.e., declarations of the type initiated by the Luxembourg Declaration in
1930) were made by the United States, Mexico, Switzerland and
Liechtenstein; and the Declarations of Netherlands II, Denmark II, Sweden
II, Finland, New Zealand and Norway III are still valid for a renewed fixed
period of time unless the renewal is denounced by advance notice of six
months (Table IV, 1 (3)). The Declaration of Luxembourg made in 1930, which
has been carried over in pursuance of Article 36, paragraph 5, of the
Statute of the International Court of Justice, is also added hereto.
*
I now turn to the practice of the termination of declarations during the
period of the International Court of Justice. The declarations made under
the Permanent Court of International Justice by Iran (formerly Persia),
Australia, the United Kingdom, South Africa, India, Canada and New Zealand -
to remain valid until notice of termination would be given, which was
carried over to the International Court of Justice pursuant to Article 36,
paragraph 5, of the Statute - were in fact terminated in 1951,
1954,1955,1955,1956,1970 and 1977 respectively; and the Declaration of El
Salvador made in 1921, which did not have any reference to period and was
carried over to the International Court of Justice, was also terminated in
1973. Except for the case of Iran, which simply denounced the Declaration
on 9 July 1951, these former declarations from the period of the Permanent
Court of International Justice were all replaced by the respective new
declarations which contained new reservations or amended conditions.
Many cases are also reported in which valid declarations made under the
Statute of the International Court of Justice were terminated and replaced
by new declarations. The sign "+" in Table IV indicated these examples, and
it is important to note that these replacements always took place in order
to change the conditions of acceptance of the compulsory jurisdiction or to
add new reservations to the former declarations. In this respect it is noted
that Israel informed the Secretary-General of the United Nations on 28
February 1984 that it was amending its 1956 Declaration. In two cases (South
Africa and France) a declaration which was supposed to [p 508]
remain valid until notice of termination would be given was simply
terminated without being replaced by a new declaration. South Africa gave
notice of the immediate withdrawal and termination on 12 April 1967; France
terminated its declaration by a letter of 2 January 1974.
IV
An attempt to amend the terms of reservations would seem to amount in effect
to the same as the termination of the declarations containing the
reservations in question, in so far as an existing obligation under the
Optional Clause is terminated. In this respect, another significant trend
concerning declarations accepting the Optional Clause cannot be overlooked:
today there is quite a number in which the declarant States have reserved
the right to exclude from submission to the Court's jurisdiction any given
category of dispute.
This precedent was initiated by Portugal in 1956. The Declaration of
Portugal of 19 December 1955 read, in part, as follows:
"The Portuguese Government reserves the right to exclude from the scope of
the present declaration, at any time during its validity, any given category
or categories of disputes, by notifying the Secretary-General of the United
Nations and with effect from the moment of such notification." (I.C.J.
Yearbook 1955-1956, p. 186.)
When the Declaration of Portugal was transmitted to the States parties to
the Statute of the International Court of Justice, the Government of Sweden
responded on 23 February 1956 by making a reservation on its position
concerning Portugal's reservation:
"The Swedish Government is compelled to state that in its opinion the cited
condition in reality signifies that Portugal has not bound itself to accept
the jurisdiction of the Court with regard to any dispute or any category of
disputes. The condition nullifies the obligation intended by the wording of
Article 36, paragraph 2, of the Statute where it is said that the
recognition of the jurisdiction of the Court shall be 'compulsory ipso
facto'.
For the stated reason, the Swedish Government must consider the cited
condition as incompatible with a recognition of the 'Optional Clause' of the
Statute of the International Court of Justice." (I.C.J. Pleadings, Right of
Passage over Indian Territory, Vol. I, p. 217.)
In fact, however, the precedent of the reservation made by Portugal has been
followed by a number of States, as shown in the following table. [p 509]
Table V. Reservations of the right of immediate amendment
Portugal (1955), Somalia (1963), Kenya (1965), France III (1966), Malta I
(1966), Malawi (1966), Mauritius (1968), United Kingdom VI (1969),
Swaziland (1969), Botswana (1970), Canada (1970), El Salvador (1973),
Norway III (1976), New Zealand (1977), Togo (1979) and Malta III (1983) (in
a limited area in the case of Norway III and New Zealand).
It is particularly to be noted that El Salvador made this reservation to be
effective at any time during the period which it fixed in its declaration.
V
To sum up, the present situation with respect to the duration of
declarations is as follows:
Declarations not to be terminated before the fixed period expires or without
advance notice of a fixed period to terminate
Costa Rica, El Salvador (Table IV, 1 (1) (2)).
Denmark, Finland, Liechtenstein, Mexico, Netherlands, New Zealand, Norway,
Sweden, Switzerland, United States (Table IV, 1 (3) (4)) FN1.
---------------------------------------------------------------------------------------------------------------------
FN1 New Zealand and Norway reserved the right to amend their declarations but
only in the special case arising in the light of the results of the Third
United Nations Conference on the Law of the Sea in respect of the settlement
of disputes.
--------------------------------------------------------------------------------------------------------------------
Luxembourg (pursuant to Art. 36, para. 5, of the Statute).
Declarations terminable at any time by notice
Australia, Austria, Barbados, Belgium, Canada, Democratic Kampuchea
(formerly Cambodia), Gambia, India, Japan, Kenya, Liberia, Mauritius,
Pakistan, Philippines, Portugal, Somalia, Sudan, United Kingdom (Table IV, 2
(1) (2)).
Declarations which do not contain any reference to duration or are made for
an indefinite or unlimited period
Botswana, Honduras, Malawi, Malta, Nigeria, Swaziland, Togo, Uganda (Table
IV, 3).
Colombia, Dominican Republic, Haiti, Panama, Uruguay (pursuant to Art. 36,
para. 5, of the Statute).
[p 510]
The declarations of the States here italicized are those in which the right
is reserved to exclude at any time from submission to the Court's
jurisdiction any given category of disputes (Table V)FN1.
---------------------------------------------------------------------------------------------------------------------
FN1 See note 1 on p. 509.
---------------------------------------------------------------------------------------------------------------------
The above list clearly demonstrates the fact that a great number of States
have made their declarations with an express statement that their
declarations may be terminated or amended at any time and with immediate
effect. I have also indicated a number of cases where declarations have been
terminated. Thus to my mind it is quite untenable to argue that those
declarations without any reference to duration (the number of which, as
mentioned above, is very limited) can never be terminated or amended because
of the lack of a clause concerning the period of validity of the
declarations.
The Judgment of the Court states:
"[T]he right of immediate termination of declarations with indefinite
duration is far from established. It appears from the requirements of good
faith that they should be treated, by analogy, according to the law of
treaties, which requires a reasonable time for withdrawal from or
termination of treaties that contain no provision regarding the duration of
their validity." (Para. 63.)
I am astonished to find such an argument put forward by the Court. It seems
that the Court is quite unaware of the development of the Optional Clause
during the past decades: is it the conclusion of the Court that, since in
its view treaty law should be applicable to acceptance of the Optional
Clause, declarations which have been made on condition that they may be
amended or terminated by a notice of the declarant States at any time should
be invalid or unacceptable as contrary to treaty law? For a treaty
containing such a clause conferring a unilateral right entirely to alter or
terminate terms of the treaty with immediate effect would surely be
impossible; it would not be a treaty. Yet this is now almost normal practice
in declarations of acceptance of the Optional Clause.
Chapter 3. Effect vis-ΰ-vis Nicaragua of the United States Termination of
its Obligation under the Optional Clause
If Nicaragua were, contrary to my own view, subject to the compulsory
jurisdiction of the International Court of Justice pursuant to Article 36,
paragraph 5, of the Statute, the declaration which Nicaragua made in 1929
without any fixed period of duration should be interpreted, in view of the
past practice as mentioned above, as being terminable at any time. On the
other hand, the United States, whose declaration in 1946 was expressed to
remain in force until the expiration of six months after notice of termi-[p
511]nation was given, amended its declaration just a few days before the
seisin of the Court with this case.
Thus the question of reciprocity arises, in a case where for one party the
adherence to the Optional Clause is terminable at any time and the other
party is bound by its own declaration not to terminate for a certain fixed
period. The Optional Clause in effect plays a double role: one, positive in
that it may on occasion enable a unilateral application to succeed, and the
other one negative in that it may sometimes result in a Respondent being
brought to the Court against its actual will. Thus a State, by declaring its
acceptance of the compulsory jurisdiction of the Court, may seek to acquire
locus standi in a case in which the odds are in its favour, but on the other
hand it may, where it feels placed at a disadvantage, try to release itself
from the compulsory jurisdiction of the Court by the termination or
amendment of its declaration.
In view of the fact that the Optional Clause was so drafted to cause each
declarant State to "recognize as compulsory ... the jurisdiction of the
Court... [only] in relation to any other State accepting the same
obligation" (Art. 36, para. 2, of the Statute), is it reasonable or
equitable to allow a party which, as a Respondent, is free to escape at any
time from the compulsory jurisdiction of the Court to take advantage, as an
Applicant, by imposing upon the other party the burden of inescapability,
which it does not itself bear FN1? The reciprocity of the obligation must
exist at the date of the seisin of the case, and acceptance of the Court's
jurisdiction by the Applicant and the Respondent must be current at that
date. I am of the view that Nicaragua is not in a position to invoke the
obligation which it does not bear and which the United States, as
Respondent, has borne because of its previous declaration. Thus the United
States is fully exempted from the Court's jurisdiction in relation to
Nicaragua on the date of Nicaragua's Application.
---------------------------------------------------------------------------------------------------------------------
FN1 Interesting in this respect is a new type of reservation initiated in
1959 by India, which had been an adherent to the Optional Clause, to prevent
a non-declarant State from suddenly taking advantage as an Applicant of the
immediate acceptance of the Optional Clause. This declaration of 14
September 1959 excluded a case in which "the acceptance of the Court's
compulsory jurisdiction on behalf of a party to the dispute was deposited or
ratified less than twelve months prior to the filing of the application
bringing the dispute before the Court" (I.C.J. Yearbook 1959-1960, p. 242).
This formula was followed by Somalia (25 March 1963), Malta (29 November
1966), Mauritius (4 September 1968) and the United Kingdom (1 January 1969).
---------------------------------------------------------------------------------------------------------------------
The interpretation of the declaration of acceptance of the compulsory
jurisdiction of the Court as I have presented it above may be criticized as
an attempt to nullify the original intention of the Optional Clause. Such
criticism I would answer as follows: this clause was first proposed at the
beginning of the Permanent Court of International Justice shortly after the
termination of the First World War, following failure to actualize the
idealistic view that, as in a national domestic society, a court should be
[p 512] provided with full jurisdiction over any dispute in the
international community. The drafters of the Statute of the Permanent Court
of International Justice might have thought that this Optional Clause would
be a first step towards the final goal that the International Court should
be given full jurisdiction over disputes. This same idea concerning the
Optional Clause was also prevalent when the new Statute of the International
Court of Justice was being prepared at the San Francisco Conference in 1945
against the background of regret for the "untold sorrow to mankind" brought
by the "scourge of war" (see the Preamble to the United Nations Charter).
The rule of law should prevail in the international community as in modern
domestic society, while the supremacy of the courts is always to be
maintained. Yet the reality of the international community where a lack of
confidence in international law still prevails and the law-enforcement
machinery is still non-existent had not reached a stage that could satisfy
the dreams of the idealists in either the early 1920s or the mid-1940s.
I note that, in contrast to the period of the Permanent Court of
International Justice, when a great majority of the States parties were
subject to the compulsory jurisdiction of the Court under the Optional
Clause, the present situation in the 1980s is that adherence to the
compulsory juris-diction of the Court has been declared by less than
one-third of the parties to the Statute of the International Court of
Justice. In spite of the appeal made by the United Nations in 1974 in
General Assembly resolution 3232 (XXIX) concerning the review of the role of
the International Court of Justice, which read in part:
"[The General Assembly] [r]ecognizes the desirability that States study the
possibility of accepting, with as few reservations as possible, the
compulsory jurisdiction of the International Court of Justice in accordance
with Article 36 of its Statute",
only two States, Togo and Barbados, have adhered to the Optional Clause in
the past decade.
It is a striking fact that those States which at present in their
declarations impose upon themselves the obligation not to escape from the
compulsory jurisdiction of the Court in the face of the possibility of being
brought before the Court, are extremely limited in number three countries
in the western hemisphere, Costa Rica, Mexico and the United States, and
seven Western European countries, Denmark, Finland, Liechtenstein,
Luxembourg, Netherlands, New Zealand, Norway, Sweden and Switzerland. In
addition, the Optional Clause, which was drawn up in 1920 without
foreseeing any reservations, is now encumbered by the great variety of
reser-vations attached to it.
The Court should not close its eyes to the practice and experience over the
last 40 years in the international community, which has given a new meaning
to the Optional Clause. The basic principle that the jurisdiction of [p 513]
any judicial institution in the international community is based upon the
consent of sovereign States has never been changed, and the role of the
Optional Clause can never override that principle. In spite of this, the
Optional Clause would certainly remain useful in the event that any bona
fide parties to a dispute, though not willing to initiate proceedings by
concluding a special agreement, may not object to coming before the Court if
the other party is willing to do so. On the other hand, I am sure that the
interpretation of the Optional Clause given by the present Judgment will
inevitably induce declarant States to terminate their declarations or at
least drop from them any advance notice clause, so as to avoid having to
answer any case unilaterally brought by other States, which themselves can
take advantage of withdrawing at any time from their obligations under the
Court's jurisdiction. This would thus vastly diminish the importance of the
Optional Clause.
Conclusions
Thus the conclusions I have reached are as follows: first, there is no
ground for assuming that Nicaragua, to which Article 36, paragraph 5, of the
Statute cannot apply, can be held to have locus standi in the present
proceedings on the basis of acceptance of the Optional Clause; secondly,
assuming arguendo that Nicaragua has locus standi in the present
proceedings, the Application cannot be entertained under the Optional
Clause, because the United States excluded, before the seisin of the case,
the type of dispute at issue from its obligation under that clause in its
relation to Nicaragua; hence Nicaragua cannot invoke the fixed duration of
the United States obligation to the Court's jurisdiction.
I regret that I have had no time to discuss the so-called Vandenberg
reservation, but even without invoking it the United States, for the reasons
I have stated above, cannot, in my view, be subjected to the Court's
jurisdiction under the Optional Clause for this particular case.
(Signed) Shigeru Oda.
[p 514]
Separate opinion of judge Ago
[Translation]
I
1. I have been able to vote in favour of the finding that the Court has a
jurisdiction in the present case enabling it to proceed to examination of
the merits, as I am convinced of the definite existence of one of the two
distinct bonds of compulsory jurisdiction between the Applicant and the
Respondent which the majority of the Court considers to exist between the
Parties. To be specific, I consider that a valid jurisdictional link between
the Parties, within the meaning of Article 36, paragraph 1, of the Statute
of the Court, is provided by Article XXIV (2) of the Treaty of Friendship,
Commerce and Navigation concluded on 21 January 1956 between the United
States and Nicaragua ("FCN Treaty").
2. In my view, this is an independent and not as the majority of the Court
appears to think a merely "complementary" title of jurisdiction, and one
evidently valid in so far as the complaints put forward by Nicaragua can be
presented as referring to violations of the provisions of this Treaty.
Nicaragua has, moreover, met this requirement by submitting in the Memorial
that the United States "military and paramilitary activities in and against
Nicaragua" constitute breaches of various articles of the Treaty and its
Preamble. In particular, it has submitted that the "mining of Nicaraguan
ports and territorial waters, as well as attacks on Nicaragua's airports,
and military operations that endanger and limit trade and traffic on land"
contravene Article XIX (1) of the Treaty. In addition, it has expressly
reserved its right to demonstrate "during the proceedings on the merits of
this case" the breaches of Article XIV (2), Article XVII (3), Article XIX
(3), Article XX and Article I of the Treaty which it considers to have
resulted from those activities. Finally, it maintains that the Treaty is
intended to achieve certain broad goals and objectives, and that the
activities which it imputes to the United States "directly contradict these
goals and objectives, and the entire spirit of the Treaty". It will clearly
be Nicaragua's responsibility, during the proceedings on the merits, to
furnish proof of the facts alleged and of the contradiction it claims to
detect between them and the specific provisions and general spirit of the
Treaty. It will be at this stage, when replying to Nicaragua's arguments,
that the United States of America will have the opportunity to present its
own views. I am quoting these allegations at this point only in order to
emphasize that, in so far as the Applicant relies upon breaches of the 1956
Treaty and its provisions, it possesses in their regard an appropriate title
of jurisdiction that is provided by the Treaty itself.[p 515]
3. Moreover, as rightly pointed out by the Judgment to which this opinion is
appended, Nicaragua is not barred from reliance on the 1956 Treaty as a
title of jurisdiction through having dealt with it expressly and in detail
only in the Memorial, whereas it had not been mentioned in the Application.
In point of fact, in paragraph 26 of its Application of 9 April 1984,
Nicaragua reserved "the right to supplement or to amend this Application",
which had been filed in the conditions of what it viewed as an emergency.
Two weeks after the filing of the Application, i.e., on 24 April, the Agent
of Nicaragua sent a letter to the Registry in which as the Court has
related in paragraph 14 of its Order of 10 May 1984 on the request for the
indication of provisional measures he stated that, apart from Nicaragua's
1929 Declaration, "there are in force other Treaties which provide this
Court jurisdiction over the Application" (I.C.J. Reports 1984, p. 175).
Finally, in the Memorial filed on 30 June 1984, i.e., in the document which
completes and concludes the initial part of the proceedings, in which only
the Applicant presents its case, Nicaragua exercised the right which it had
previously reserved, by devoting the whole of Part I, Chapter III, to
showing, in the words of the title, that "The Treaty of Friendship, Commerce
and Navigation between Nicaragua and the United States provides an
independent basis for jurisdiction under Article 36(1) of the Statute of the
Court as to violations of that Treaty."
4. Unlike the issues referred to in paragraph 2 above as being appropriate
for examination during the merits phase, the question raised in the United
States Counter-Memorial in Part I, Chapter II, Section III, relates to the
present phase of the proceedings. I refer to the question whether Nicaragua
may or may not invoke the compromissory clause of the 1956 Treaty, "because
it has made no effort to resolve by diplomacy any disputes under the FCN
Treaty". I would emphasize, in this connection, that Article XXIV (2) of the
FCN Treaty does not make use of the wording to be found in other instruments
which formally requires diplomatic negotiations to have been entered into
and pursued as a prior condition for the possibility of instituting
proceedings before an arbitral tribunal or court of justice. The Article in
question provides quite simply for the possibility of submitting to the
International Court of Justice
"any dispute between the Parties as to the interpretation or application of
the present Treaty, not satisfactorily adjusted by diplomacy".
It is not always necessarily the case under these terms that diplomatic
negotiations must be ascertained to have been first begun and then pursued,
and finally to have broken down. The requirements of the text can even be
met, under certain circumstances, without negotiations in the strict sense
ever having taken place. More generally speaking, I am in fact convinced
that prior resort to diplomatic negotiations cannot constitute an [p 516]
absolute requirement, to be satisfied even when the hopelessness of
expecting any negotiations to succeed is clear from the state of relations
between the parties, and that there is no warrant for using it as a ground
for delaying the opening of arbitral or judicial proceedings when provision
for recourse to them exists.
5. One final question that might arise in this connection is whether Article
XXIV (2) of the 1956 Treaty permits the unilateral reference to the Court of
any dispute as to the interpretation or application of the Treaty. Any
possible doubt on this matter has, however, been eliminated by the position
which the Court itself adopted in its Judgment of 24 May 1980 in the case
concerning United States Diplomatic and Consular Staff in Tehran, regarding
Article XXI (2), worded in exactly the same way, of the 1955 Treaty of
Amity, Economic Relations and Consular Rights between the United States and
Iran. The United States had, at that time, submitted claims that Iran had
violated various provisions of this Treaty, basing itself on the
compromissory clause of this instrument (Art. XXI (2)), in addition to its
primary reliance on Article I of the optional protocols on compulsory
dispute-settlement accompanying the respective Vienna Conventions on
Diplomatic and Consular Relations, protocols to which both those States were
parties. Having specifically examined its competence, under Article XXI (2)
of this Treaty, to deal with the violations of the 1955 Treaty which the
Applicant alleged to have taken place, the Court came to the conclusion that
"the United States was free on ... to invoke [the] provisions [of Art. XXI
(2)] for the purpose of referring its claims against Iran under the 1955
Treaty to the Court. While that Article does not provide in express terms
that either party may bring a case to the Court by unilateral application,
it is evident, as the United States contended in its Memorial, that this is
what the parties intended. Provisions drawn in similar terms are very common
in bilateral treaties of amity or of establishment, and the intention of the
parties in accepting such clauses is clearly to provide for such a right of
unilateral recourse to the Court, in the absence of agreement to employ some
other pacific means of settlement." (I.C.J. Reports 1980, p. 27, para. 52.)
6. The considerations set forth in the preceding paragraphs confirm me in
the conviction expressed at the end of paragraph 1 above, namely that there
is between the Parties to the present dispute a valid and undeniable
jurisdictional link, deriving from the provisions of the Treaty, a link
which confers full jurisdiction upon the Court to deal with Nicaragua's
complaints alleging violation by the United States of several particular
provisions of this Treaty, of its Preamble and of its general spirit.[p
517]
II
7. I find myself, unfortunately, unable to take the same view of the far
broader link of jurisdiction deduced by the Judgment from the coincident
existence which it thinks to discover in the facts of acceptances by
both Nicaragua and the United States of the Court's compulsory jurisdiction,
expressed by way of unilateral declaration. In respect of that, I continue
to have the most serious doubts.
8. The comments I shall make in this opinion bear mainly on whether the
Applicant really has or has not accepted compulsory jurisdiction. The link
of compulsory jurisdiction the establishment of which is provided for and
regulated by Article 36, paragraph 2, of the Statute of the Court is brought
into being by the coincidence on the ideal plane of the effects of two
unilateral acts. By each of these two acts, the two States concerned
undertake to "recognize as compulsory ipso facto and without special
agreement, in relation to any other State accepting the same obligation, the
jurisdiction of the Court in all legal disputes" over one of the
subject-matters listed in subparagraphs (a) to (d) of the provision in
question. As the Judgment appropriately points out, in paragraph 14:
"In order to be able to rely upon the United States Declaration of 1946 to
found jurisdiction in the present case, Nicaragua has to show that it is a
'State accepting the same obligation' within the meaning of Article 36,
paragraph 2, of the Statute"
- on the understanding, of course, that the United States Declaration, for
its part, has not lost its binding character.
9. However, as no act of direct acceptance of the compulsory jurisdiction
of the present Court has been accomplished by Nicaragua, such acceptance,
according to that country, would have to result from the automatic extension
to the compulsory jurisdiction of the International Court of Justice under
Article 36, paragraph 5, of its Statute - of an acceptance made with regard
to that of the Permanent Court of International Justice. The problem
currently confronting the Court accordingly comprises two different,
successive aspects. The first relates to the existence and scope of the
acts performed by Nicaragua with a view to acceptance of the compulsory
jurisdiction of the Permanent Court, the second to the applicability to
those acts of the effects provided for by Article 36, paragraph 5, of the
Statute of the Court which replaced it.
10. It is affirmed by the Applicant, and not contested by the Respondent,
that on 24 September 1929 Nicaragua signed the Protocol of Signature of the
Statute of the Permanent Court of International Justice at the same time as
it signed the Optional Clause, annexed to this Protocol, relating to
acceptance of the Court's jurisdiction as compulsory. Thereby Nicaragua must
be held to have given two-fold evidence of intent: on the one hand, it
simply set its signature to the pre-established declaration set forth in
full in the Protocol itself, the effect of which was to recognize the [p
518] Statute of the Court and in general to accept jurisdiction "in
accordance with the terms and subject to the conditions of the
above-mentioned Statute"; on the other, it signed a declaration reproducing,
and completing as necessary, the text of the Optional Clause annexed to the
Protocol, which was worded as follows:
"The undersigned, being duly authorized thereto, further declare, on behalf
of their Government, that, from this date, they accept as compulsory ipso
facto and without special convention, the jurisdiction of the Court in
conformity with Article 36, paragraph 2, of the Statute of the Court, under
the following conditions:".
The word "further" served to link the second, optional, declaration with the
first to which it had been subjoined. As for the "following conditions",
they were reduced in the case of Nicaragua to the word "unconditionally" in
the text signed on its behalf by Ambassador Medina, which is reproduced in
paragraph 15 of the Judgment.
11. It should nonetheless be noted that the third paragraph of the Protocol
provides that:
"The present Protocol, which has been drawn up in accordance with the
decision taken by the Assembly of the League of Nations on the 13th
December, 1920, is subject to ratification. Each Power shall send its
ratification to the Secretary-General of the League of Nations; the latter
shall take the necessary steps to notify such ratification to the other
signatory Powers. The ratification shall be deposited in the archives of the
Secretariat of the League of Nations." (Emphasis added.)
There can, then, be no doubt that the Protocol in question had in no way
been conceived as what would nowadays be called an "agreement in simplified
form", which a mere signature could be regarded as sufficient to bring into
force. It was clearly, by its very nature, importance and scope, a formal
international act that could not come into force and produce legal effects
for participant States until it had been ratified.
12. In the case of the signature of the declaration which reproduced and
spelled out the terms of the Optional Clause, no distinct, specific act of
ratification was required, although most signatories did make their
declarations subject to ratification. But it is nonetheless inconceivable
that the undertaking contemplated by the Optional Clause could become
binding in isolation from that contemplated by the protocol to which the
Clause was subjoined. Without ratification of the Protocol, signature of the
declaration provided for by the Optional Clause could not in any way commit
the signatory State; neither, a fortiori, could it generate rights or
obligations benefiting or binding other States which had ratified the
Protocol and signed, if not also ratified, a declaration under the Optional
Clause. The Judgment's ingenious efforts to ascribe an autonomous "potential
effect" to the signature of the Optional Clause and to the declaration
defining its [p 519] terms are as such sufficient in themselves to arouse
feelings of reserveFN1. But, however that may be, I find it certain that
this so-called potential effect could not, in any event, be binding in
character. All it could give rise to on the part of third States concerned
was expectancy the expectation of seeing it turned into a genuine
undertaking, within a reasonable period of time, by ratification of the
Protocol. Moreover, once this reasonable period had expired, even this mere
expectation must inevitably become wholly insubstantial.
---------------------------------------------------------------------------------------------------------------------
FN1 To illustrate this concept of a "potential effect", the Judgment (para.
27) sees fit to refer to an imaginary situation in which the Nicaraguan
Declaration, made on 24 September 1929, might have provided that it would
apply for only five years to "disputes arising after its signature". In that
event, says the Judgment, "its potential effect would admittedly have
disappeared as from 24 September 1934". However, this hypothetical
limitation would only have served to define ratione temporis the category of
disputes for which the binding effect of the Declaration would have come
about when the Decla; ration had come into force, i.e., after ratification
of the Protocol. Clearly, if the ratification had not been deposited until
five years after the signature, or even later, there would no longer have
been any disputes to which compulsory jurisdiction could have applied,
unless there had been the necessary amendment of the temporal definition of
the disputes to which the Declaration could apply. However, all this would
have had nothing to do with determination of the duration of the Declaration
itself, a period which could have only begun to run its course as from the
ratification of the Protocol.
---------------------------------------------------------------------------------------------------------------------
13. I also feel that one further clarification is needed in respect of the
requirement that the Protocol be ratified. What must here be understood by
"ratification" is what the term denotes on the international legal plane :
i.e., in the case of bilateral agreements, the inter-party exchange of
instruments of ratification already perfected on the domestic legal plane
and, in that of multilateral agreements, the deposit of these instruments
with the depositary, in this instance the Secretary-General of the League of
Nations. This is certainly not a mere formality or, as it were, additive
condition. This exchange or deposit of instruments, as the case may be, is
itself the act which, at the level of inter-State relations, establishes the
consent of the States concerned to be bound by the obligations contemplated
by the act in question. Before this exchange or deposit has been
accomplished, the act is not in force, and neither, a fortiori, are the
obligations which it establishes.
14. In the light of these considerations, it might be thought relatively
unimportant to establish whether, in concreto, the Protocol and the clause
annexed to it had or had not undergone to perfection, at the level of
domestic law, the entire process laid down by the constitution of the
country for ratifying international undertakings. Yet the Parties engaged in
lengthy discussion of this problem and could not agree. Upon reflection, one
cannot help being struck by certain points noted which reveal that, many
years after its commencement, the internal constitutional process had still
not been completed. Even the famous telegram of 29 November 1939 that was
sent by the Minister for Foreign Affairs of Nicaragua to the League of
Nations never denoted the contrary. What it communicated to the Secretariat,
concerned at the delay, was the fact that the Senate and [p 520] Chamber had
"ratified", or in other words had carried out their respective tasks for the
purpose of ratification. But regarding the instrument of ratification proper
the telegram merely said that it would be sent "oportunamente", when the
time came. All this was correct, as the instrument in question, namely the
presidential decree to promulgate the ratification, had not then been
published in La Gaceta and, it seems, was never to be. That being so, its
adoption could not, in Nicaraguan law, be considered accomplished, nor could
the instrument itself be considered to have become valid and ready for
depositing with the competent international authority.
15. That this indispensable publication never took place does not seem to be
a question of mere delay due to a succession of fortuitous circumstances,
or even to the general state of uncertainty pervading the globe on the eve
of the Second World War, but seems rather to indicate second thoughts and de
facto abandonment of the intention to complete the ratification process,
even at domestic level. It is, moreover, perfectly normal for a country to
hesitate before such a decisive step as committing itself in advance
vis-α-vis an undefined number of States to bow to the com-pulsory
jurisdiction of the Court in its disputes with them, particularly when there
are reasons to fear the possible repercussions of that commitment upon what
is seen as a vital interest. Nicaragua, in particular, was at the time
particularly anxious to avoid thereby being led into a more or less forced
recognition of the boundary with Honduras that had been defined in the
Arbitral Award made by the King of Spain on 23 December 1906. After initial
quasi-official signs of acceptance followed by a period in which the idea of
challenging the Award took shape, an agreement with Honduras, on 21 January
1931 (and this date is important), had been enshrined in a directly
negotiated "Protocol of Acceptance". However, the Government soon reverted
to its previous attitude, and its refusal to implement the Spanish "laudo",
which it described as obscure and inapplicable, began to be accompanied by
the intention to achieve a de facto modification of the boundary defined in
the Award FN1. Given this climate of very strained relations with the
neighbouring State, it is easy to explain the reluctance of the country and
its Government to perfect an act whose repercussions on a question to which
public opinion was extremely sensitive could not be foreseen.
---------------------------------------------------------------------------------------------------------------------
FN1 In 1937-1940 the Nicaraguan postal administration issued a stamp on
which there appeared a boundary which was different from that determined in
the Arbitral Award. This fact, together with repeated border incidents, gave
rise to high feelings in Honduras and relations between the two countries
deteriorated steadily.
--------------------------------------------------------------------------------------------------------------------
16. In any event, quite apart from this "domestic" aspect of the matter and
the explanations relevant to it, what I consider decisive from the
standpoint of the present case is that at international level the deposit of
the ratification of the Protocol and of the annexed clause for acceptance of
compulsory jurisdiction did not take place, either at the outset or later. I
[p 521] find it furthermore beyond dispute that this deficiency could in no
way be ascribed to an error on the part of the Nicaraguan authorities or to
their being ill-informed, since the requirement of effecting deposit of the
instrument of ratification if the Government of Nicaragua wanted the
declaration it had signed to produce any legal effects was officially
pointed out to that Government on three occasions by the competent
authorities of the League of Nations Secretariat, namely Mr. McKinnon Wood
in 1934 and 1939, and Mr. Emile Giraud in 1942. The receipt of these
reminders is confirmed by the Nicaraguan Foreign Minister's having, on each
occasion, replied with assurances to the said authorities of his intention
to deposit the instrument of ratification, as required, as soon as the
appropriate internal procedure had been completed, or "in due course".
17. I consider that these facts alone fully warrant the conclusion, as
regards this first point, that Nicaragua never became a party to the Statute
of the Permanent Court of International Justice and that the declarations
signed by the representative of that State at the very moment of signing the
Protocol never took shape as an act producing legal effects at international
level. The Official Journal of the League of Nations (Special Supplement, 10
July 1944) again confirmed that this conclusion was well-founded, at a time
when the life of that Organization was drawing to its close.
18. It may be said that the above conclusion is in fact not contested by the
Applicant and that the problem concerning it is, after all, not whether or
not it was subjected to the compulsory jurisdiction of the Permanent Court
of International Justice, but whether or not it is subjected to the
compulsory jurisdiction of the International Court of Justice. This is true,
but it will nonetheless be appropriate to stress certain aspects deriving
precisely from Nicaragua's non-accession to the Statute of the Permanent
Court of International Justice, since it was, for Nicaragua, an inevitable
consequence of want of ratification - or at any rate internationally valid
ratification - of the Protocol of Signature of the Statute that neither that
instrument nor the annexed Optional Clause came into force in regard to that
country: accordingly, the obligation which its declaration on the basis of
that Clause should have brought into being was never constituted and laid
upon it. If then, hypothetically, Nicaragua had, at the time of signing the
Protocol, made a declaration of acceptance of compulsory jurisdiction for a
definite period ten years, for example this period could not have begun
to run, since it would necessarily have presupposed that, through
ratification of the Protocol, the declaration had become productive of legal
effects for the signatory and that its obligation to submit to compulsory
jurisdiction had thus begun to exist. Even if it is true that Nicaragua's
declaration had been made for an indefinite period, this hypothetical
finding is not without importance, as its relevance will be seen below to be
more than purely theoretical.
19. It is in the light of what happened at the time of the Permanent [p 522]
Court of International Justice that one should consider the currently more
relevant question of what exactly happened during that extremely eventful
period which witnessed the dissolution of the League of Nations, the
parallel termination of the Permanent Court of International Justice and its
Statute, the creation of the United Nations Organization and the
incorporation into this Organization of the International Court of Justice
as its principal judicial organ, and finally the adoption of the Statute of
the Court as an annex to the Charter. It was in this context that the
succession between the two Courts was effected and it is this context which
gives meaning to the provision of the Statute of the International Court of
Justice concerning the transmission from one Court to the other.
20. The provision in question is the fifth paragraph of Article 36, which
reads in English as follows:
"Declarations made under Article 36 of the Statute of the Permanent Court
of International Justice and which are still in force shall be deemed, as
between the parties to the present Statute, to be acceptances of the
compulsory jurisdiction of the International Court of Justice for the period
which they still have to run and in accordance with their terms."
And in the French version:
"Les declarations faites en application de l'article 36 du Statut de la Cour
permanente de Justice internationale pour une duree qui n'est pas encore
expiree seront considerees, dans les rapports entre parties au present
Statut, comme comportant acceptation de la juridiction obligatoire de la
Cour internationale de Justice pour la duree restant ΰ courir d'aprθs ces
declarations et conformement ΰ leurs termes."
21. The reading of these two different texts in two different languages,
both authoritative, has necessarily given rise, and continues to give rise,
to problems of interpretation. The English text, in fact, admits of only one
interpretation: a declaration which it describes as "still in force"
(emphasis added), can only be a declaration which, at a given moment, has
begun to be "in force", and which has accordingly come into force following
the only act capable of producing such an effect, namely the deposit with
the depositary of an instrument of ratification of the Protocol to which the
Optional Clause was annexed. The French text, on the other hand, could
apparently lend colour to different interpretations and, according to the
Judgment to which this opinion is appended (para. 31), "the deliberate
choice of the expression 'pour une duree qui n'est pas encore expiree'
seems" even if the Judgment recognizes that other interpretations are
possible "to denote an intention to widen the scope of Article 36,
paragraph 5, so as to cover declarations which have not acquired binding
force". This was in fact the case, and was solely the case, with the
declaration of Nicaragua for which one would therefore have to imagine
that the authors of the French text of Article 36, paragraph 5, cherished
very special feelings.
[p 523]
22. With regard to this question I wish first to recall Article 33 of the
Vienna Convention on the Law of Treaties, relating to the interpretation of
treaties authenticated in two or more languages. In paragraph 4, this
Article provides that:
"Except where a particular text prevails in accordance with paragraph 1,
when a comparison of the authentic text discloses a difference of meaning
which the application of Articles 31 and 32 does not remove, the meaning
which best reconciles the texts, having regard to the object and purpose of
the treaty, shall be adopted." (Emphasis added.)
Now, in the light of this clearly logical prescription, it would seem that a
reconciliation of these two texts with apparently different meanings can
only be effected on the basis of an interpretation requiring that the
declarations taken into consideration for the purposes of Article 36,
paragraph 5, should be declarations which have, at a given moment, come into
force and thus acquired binding character to the exclusion of declarations
which never reached that stage. The Judgment, on the contrary, has attempted
a reconciliation going the opposite way and, to this end, seems to content
itself with the fact (cf. para. 31 in fine) that the English text does not
mention the binding character which declarations should have in order to
come under the regime instituted by the provision in question:
"It is therefore the Court's opinion that the English version in no way
expressly excludes a valid declaration of unexpired duration, made by a
State not party to the Protocol of Signature of the Statute of the Permanent
Court, and therefore not of binding character." (Para. 31.)
In my view, it remains to be explained how a declaration of acceptance of
compulsory jurisdiction could be "in force" and not have the binding force
which is, precisely, its sole object.
23. But even if one takes no account of these difficulties, and supposing
that one were to rely upon the French text alone, I have strong doubts as to
the cogency of the interpretation sought to be founded upon it. The
provision to which we are referring speaks of "declarations made under
Article 36 of the Statute of the Permanent Court of International Justice".
Now that provision as no one thinks to deny permitted States to make the
declaration recognizing the jurisdiction of the Court as compulsory either
when signing or when ratifying the Statute. It could, of course, be made on
either occasion, and this double possibility was connected with the normal
expectation that the two acts of signature and ratification of the "Protocol
of Signature" would be successive, as the Protocol did not provide for
signature alone to be adequate but explicitly required ratification. But
whether it was made on the first or second of these occasions, it was as
from the date of ratification, and only as from that date, that the
declaration in question could become a legal act producing legal effects and
could give rise to the legal obligation upon the State making the [p 524]
declaration to subject itself to the jurisdiction of the Court. In other
words, a declaration made at the time of signature could not have any legal
effects, and could not bind the State that had made it, until such time as
there had been a ratification of the provision upon which the very
possibility of making the declaration had been based. On this point there
seems to be no disagreement. That being so, let us reconsider the hypothesis
of a declaration made by a State accepting the obligation to subject its
international disputes to the jurisdiction of the Court for a given period,
and the question which would then arise of determining both the dies a quo
and the dies ad quern of the obligation thus entered into. I imagine it
would be out of the question for the period of an obligation entered into
for, say, ten years to begin to elapse before the existence of the
obligation in question had been established by the determinative deposit of
the instrument of ratification, and it would be difficult to imagine that it
could expire until ten years had passed from that moment. The same would be
true though only for the dies a quo, of course in the case of an
obligation entered into for an indefinite period. Finally, in a situation
like the one under present examination, where the discussion hinges on a
declaration made for an indefinite period, but regarding which there has
been no act of ratification capable of generating binding legal effects, I
find the only admissible conclusion to be that the obligation contemplated
by the declaration never began to "elapse" for the simple reason that it
never began to "exist".
24. That being the case, it will be appreciated why I find it difficult to
accept the proposition that it could have been the intention of the authors
of even the French text of Article 36, paragraph 5, of the Statute of the
present Court to ensure, for the sake of that Court's succession to the
other, that manifestations of intent which had never produced legal effects
in relation to the old Court, or in other words had never existed as sources
of legal obligations, were endowed with "continuity" of legal effect. I am
prepared to admit that, at the time of this succession, the underlying
concern of the jurists and diplomats who presided over this operation was to
safeguard all the achievements of the former Court for the benefit of the
new. However, for this to be done, these achievements had surely to be real,
i.e., declarations which had begun to produce the legal effects which were
their aim, and not mere manifestations of an intent which had never taken
concrete shape through the acts required for it to become an actual source
of legal effects in international law. It is perfectly correct to say, as
Professor Chayes did on behalf of Nicaragua, that the underlying concern in
1946 was to ensure, through the medium of Article 36, paragraph 5, of the
Statute of the new Court, the "continuity" of the legal effects of
accep-tances of compulsory jurisdiction expressed with reference to the
former Court. But - and this is the very point - for any "continuity" of
effects to be possible, there had to have been, in relation to the former
Court, some acceptances productive of such effects, hence, in this sense,
acceptances which had entered into force and assumed a binding character in
interna-[p 525] tional law. The plane of strict identity is forsaken when
an old declaration is credited with effects in relation to the new Statute
which it never possessed in relation to the previous one.
25. Besides, is it true, as has been maintained, that the case-law of the
International Court of Justice contradicts the position I feel dictated by
juridical logic? From that standpoint, it is of particular interest to study
the positions taken up at the time of the Judgment in Aerial Incident of 27
July 1955, which has perhaps been too lightly passed over as concerning a
situation different from the present one. Where the decision to be adopted
in that case was concerned, there was a disagreement between the majority of
the Court and three Members (Sir Hersch Lauterpacht, Judge Wellington Koo
and Sir Percy Spender) who appended a joint dissenting opinion to the
Judgment. In the context of the problem before us, it is worthwhile
examining the positions of all in that case who expressed one.
26. What strikes me as the most important position is that of the majority
of the Court, since it could serve as a weighty precedent for the present
case. One aspect of the matter seems to me to deserve particular attention.
Reference is made on pages 137 ff. of I.C.J. Reports 1959, especially on
page 138, to the "simple operation" effected by Article 36, paragraph 5, in
its application to States which had signed the Statute of the International
Court of Justice at San Francisco. On this point, the majority emphasized
that the provision in question was designed to transfer to the new Court the
"obligations" which had previously existed vis-a-vis the Permanent Court,
and this seems clearly to exclude its having been designed to extend the
operation in question to declarations which, although made at a given
moment, had never reached the stage of having binding force. The following
passage is highly significant in this respect:
"In the case of signatory States, by an agreement between them having full
legal effect, Article 36, paragraph 5, governed the transfer from one Court
to the other of still-existing declarations; in so doing, it maintained an
existing obligation while modifying its subject-matter." (I.C.J. Reports
1959, p. 138, emphasis added.)
Furthermore, the 1959 Judgment immediately went on to confirm this concept
by pointing out a contrario that, as concerned States which, not having
attended the San Francisco Conference, had not then signed the Statute of
the Court, "the Statute ... could neither maintain nor transform their
original obligation" (emphasis added)FN1. Thus the identification of [p 526]
"existing declaration" with "declaration having binding legal effect" could
not be more clear, and, that being so, it is difficult indeed to imagine
that the Court could at a given moment have envisaged the possibility of the
transfer of the binding "legal effect" of a declaration which did not have
one. It is moreover characteristic that the 1959 Judgment does not even
speak of the transfer of declarations possessing binding force, but directly
describes the operation carried out under Article 36, paragraph 5, as a
transfer of obligations. It must therefore be realized that on this point
the present Judgment undeniably represents a break with the 1959 precedent.
Of course, there is nothing to hinder this, but it is as well to be fully
aware of it.
---------------------------------------------------------------------------------------------------------------------
FN1 I wish also to point out that the present Judgment's theory of the
"separability" of an Optional-Clause declaration (without binding force)
from its "institutional foundation" (see para. 29) appears refuted by the
preclusion of the eventual transfer of a declaration which had created an
obligation that lapsed on the dissolution of the Permanent Court.
---------------------------------------------------------------------------------------------------------------------
27. As for the joint dissenting opinion, it should first be noted that the
three judges laid special emphasis on the identity of meaning between the
English and French texts of Article 36, paragraph 5, and on the fact that
the French text was not designed to depart from, still less modify, but at
the very most to clarify the meaning of the English text. What is most
interesting about the opinion in this context is that it brings out the
reason why the French delegation at San Francisco had submitted, so
insistently, its amendment to the French text. The opinion recalls that
there were present at San Francisco a number of States, including China,
Egypt, Ethiopia, France, Greece, Peru, Turkey and Yugoslavia, that had in
the past made declarations of acceptance which, not having been renewed,
"had lapsed and were therefore no longer in force" (emphasis added). That
being so, the dissenting opinion explains (p. 161):
"It was clearly necessary, by inserting the expression 'which are still in
force', to exclude those States from the operation of paragraph 5. That
interpretation is supported by the French text which is as authoritative as
the English text and which is even more clear and indisputable than the
latter."
28. The fact that one of the States in the above situation was France serves
to explain the legitimate concern of that coumtry's delegation to insure
against the risk of the French Government's having foisted upon it, through
an insufficiently explicit text, an obligation which it wished at the time
to be deemed extinguished. The preoccupation behind the amendment was
therefore the clear and rigorous containment of the effects of Article 36,
paragraph 5, and not the broadening of its scope, still less its unexpected
extension to a State whose acceptance of compulsory jurisdiction could not
even be described as no longer in force, since it had never been in force.
29. These, then, are the conclusions which may be drawn from the whole of
the views expressed in 1959 by the Court itself or within its framework in
the case concerning the Aerial Incident of 27 July 1955. Until the present
case, that was the only one in which the Court had had occasion to take a [p
527] position on the interpretation and effects of Article 36, paragraph 5,
of its Statute.
30. In this same context, I think that some comment is called for with
regard to the Yearbooks of the Court, because I feel that the real situation
in this regard should be described with great precision, so as to avoid
misinterpretations. In these documents, the form of typographic
presen-tation may have changed, but not the substantive position adopted
with regard to the question which concerns us. This position was fixed in
Yearbook 1946-1947, page 210. Nicaragua's situation with regard to the
Optional Clause was there objectively set out, in that the text of its
declaration of acceptance of the compulsory jurisdiction of the Permanent
Court was reproduced, but accompanied with a footnote specifying that the
Registry had not received notification of the instrument of ratification of
the Protocol of Signature of the Statute of that Court. In fact, this was
tantamount to saying that the declaration reproduced had not entered into
force, with all the consequences which might flow therefrom in regard to its
legal effects. In the Yearbook for subsequent years up to 1954-1955, this
footnote does not appear in the same place but is encompassed by a reference
to the relevant page of Yearbook 1946-1947 in the list of States having made
declarations of acceptance of compulsory jurisdiction (see, for instance, p.
168 of the Yearbook 1952-1953). It would therefore be wrong to argue that in
the Yearbooks in question the caveat concerning non-notification of
ratification of the Statute had disappeared. Then, ever since Yearbook
1955-1956, the footnote has again appeared in the same place as in
1946-1947. There is a slight change in wording ("it does not appear,
however, that the instrument of ratification was ever received by the League
of Nations"), but the effect it was meant to have as a caveat does not seem
to have changed. I wish to make all this clear in the interests of accuracy,
but obviously without implying that this published material, which states
what it states, involves the responsibility of the Court itself.
31. It now remains for me to give my opinion on the conclusion which the
Court seems to have reached in this case to the effect that the conduct of
Nicaragua after the establishment of the new Court constitutes a valid
manifestation of its consent to be definitively bound in law by its intent
expressed in 1929 to accept the compulsory jurisdiction of the Court and to
do so unconditionally. On this point, I must first enter an express
reservation as to the very idea that the indisputable requirement of a
formal act of acceptance could admissibly be replaced and, what is more,
in so special and delicate a field as acceptance of the obligation to submit
one's international disputes to the jurisdiction of the Court by mere
evidence of conduct, even if the intention revealed by this conduct is not
in doubt. But what I wish above all to bring out is the fact that the
evidence adduced to prove this "consenting" conduct is not only unpersuasive
as presented but, in my view, stands confounded by the facts.[p 528]
32. After the San Francisco Conference, the situation with regard to
Nicaragua's attitude towards our problem did not change. Its reluctance to
adopt an attitude favourable to definitive acceptance of the Court's
compulsory jurisdiction, far from coming to an end, certainly heightened
following the subsequent deterioration of the situation regarding its
frontier with Honduras. The successive attempts at conciliation and
mediation had all failed. It is in the light of this situation that
Nicaragua's silence vis-ΰ-vis the caveat which continued to be expressed in
the I.C.J. Yearbook footnotes had to be understood. This caveat had in fact
the same meaning as that made at the time of the League of Nations and as
the reminders on the same subject then sent to the Government by the
Secretariat. If there had been any real intention to rectify the position of
the country and dispel the ambiguity which continued to surround it, nothing
would have been easier than to deposit a new acceptance with the Secretariat
of the United Nations, as provided for by the Statute. But nothing of the
sort was done. In 1948, by signing and ratifying the Pact of Bogota,
Nicaragua accepted by treaty the jurisdiction of the International Court of
Justice in its relations with the other American States which were parties
to this treaty. But it entered the following reservation:
"The Nicaraguan Delegation, on giving its approval to the American Treaty
on Pacific Settlement (Pact of Bogota) wishes to record expressly that no
provisions contained in the said Treaty may prejudice any position assumed
by the Government of Nicaragua with respect to arbitral decisions the
validity of which it has contested on the basis of the principles of
international law, which clearly permit arbitral decisions to be attacked
when they are adjudged to be null or invalidated. Consequently, the
signature of the Nicaraguan Delegation to the Treaty in question cannot be
alleged as an acceptance of any arbitral decisions that Nicaragua has
contested and the validity of which is not certain."
33. Meanwhile, relations became more and more strained, and there was an
increasing number of frontier and other incidents. Eventually, since all
attempts at mediation had failed, a legal adviser to Honduras enquired into
the possibility of referring the dispute to the Court unilaterally on the
basis of the Nicaraguan Declaration of 1929. But he was not encouraged to
pursue this line by the replies he received. This idea was therefore not
followed up and it was decided to deal with the dispute within the framework
of the Organization of American States. Under an OAS reso-lution, a
commission of mediation was established and its efforts finally led to the
conclusion between the two States in dispute of the Agreement of 21 July
1957, under which the Parties, after noting the recognition of the
compulsory jurisdiction of the Court as it figured in the Pact of Bogota
(hence not of a jurisdiction resulting from parallel declarations of
unilateral acceptance by both countries), undertook to submit their dispute
to the [p 529] Court, on the understanding that each Government "in the
exercise of its sovereignty and in accordance with the procedures outlined
in this instrument shall present such facets of the matter in disagreement
as it deems pertinent". Both States considered this agreement formally to be
a special agreement within the meaning of Article 36, paragraph 1, of the
Statute of the Court.
34. However, Honduras had no intention of giving up the advantage which it
would derive from the application of Article 36, paragraph 2 (c), of the
Statute, or the possibility of invoking the existence of a jurisdictional
link derived from the presumed acceptance, via unilateral declarations made
by each of the Parties, of the compulsory jurisdiction of the Court. In the
Memorial submitted to the Court on 5 January 1959, Honduras therefore
founded its claim on a dual jurisdictional basis. The first was provided by
the above-mentioned Agreement of 21 July 1957 setting out the procedure to
be followed for submission to the International Court of Justice of the
dispute between the two States over the arbitral award made by the King of
Spain on 23 December 1906. This agreement had been reached after both
countries, having finally complied with an OAS resolution and noted the
recognition of the compulsory jurisdiction of the Inter-national Court of
Justice as it figured in the Pact of Bogota, undertook to submit their
dispute to the Court under the conditions already mentioned. The second
basis alleged was the recognition, in accordance with Article 36, paragraph
2, of the Statute of the International Court of Justice, of the compulsory
jurisdiction of that Court, Honduras having on 24 May 1954 renewed for a
period of six years its declaration of acceptance of the compulsory
jurisdiction made on 10 February 1948, which had duly entered into force,
and Nicaragua having declared on 24 September 1929 that it recognized the
compulsory jurisdiction of the Permanent Court of International Justice,
this declaration being considered by Honduras as having been duly ratified
and its force as having thus been transferred to the International Court of
Justice by virtue of Article 36, paragraph 5, of the Statute of that Court
(Memorial of Honduras, paras. 36-40).
35. In the light of this position adopted by Honduras, the Counter-Memorial
of Nicaragua formally declared in its introduction that Nicaragua did not
deny that the International Court of Justice had jurisdiction in the case,
but in support of this submission it pointed out that this jurisdiction had
been
"moreover, expressly admitted by both Parties in the Agreement of June 21st
and 22nd, 1957, annexed hereto, and ... reproduced in the Resolution of the
Organization of American States, dated 5th July 1957, ... Nicaragua agrees
with Honduras... in ascribing to that instrument the character of a special
agreement".
36. Although Nicaragua thereby expressly recognized the Special Agreement as
a valid title of jurisdiction, it did not have a word to say about the
assertion of Honduras regarding the existence between the two [p 530]
countries of a second jurisdictional link based on the alleged coincidence
of two unilateral declarations recognizing the compulsory jurisdiction of
the Court, of which one was said to have been made by Nicaragua. The
Counter-Memorial enlarged solely upon the Special Agreement of 1957 and its
effects on the position of both Parties within the framework of that
instrument. Then the Counter-Memorial stated
"that it may be only by inadvertence that Honduras presented the first claim
set forth in its submissions as coming within the category of disputes
covered by Article 36,2(c), of the Statute of the International Court of
Justice".
The Counter-Memorial added that Nicaragua could only "express surprise that
Honduras should have invoked Article VI of the Pact of Bogota", and recalled
the reservation which Nicaragua had made when signing this Pact with respect
to any disputed arbitral award.
37. Thus Nicaragua refused in that case to engage in any discussion outside
the very strict framework of the Special Agreement of 1957, or in any way to
consider the issue of the possible existence of a basis of jurisdiction
other than that provided by that instrument. This being so, I
find it truly difficult, if not impossible, to argue that its conduct at
that time amounted to a sort of tacit acceptance of, or acquiescence in, the
contention that it was legally hound by its 1929 Declaration to the effect
that it unconditionally recognized compulsory jurisdiction. On the contrary,
in my opinion its attitude amounted to the most outright, brusque dismissal
of the Honduran assertion that that was so.
38. That was moreover how Nicaragua's attitude was interpreted by Honduras,
which had been possessed by the fear that Nicaragua would in the end refuse
to appear before the Court. This is attested by the insistence with which,
at each stage of the written proceedings, Honduras had
repeated the following formula in its submissions : "may it please the Court
. . . to adjudge and declare, whether the Government of Nicaragua appears or
not". Since the attitude adopted by the opposing Party towards its
presentation of the bases of jurisdiction seemed to justify its fears,
Honduras finally decided, in the oral proceedings, to found its arguments
solely on the Special Agreement and for the remainder of the proceedings to
renounce any claim based on the premise that some other source of
jurisdiction also existed. The Court itself merely made a very brief
reference in its Judgment of 18 November 1960 to the position adopted by
one, hut only one, of the Parties with regard to the existence of a second
basis of jurisdiction, abstaining from any comment in this respect and
postulating its competence solely on the basis of the Special Agreement.
39. In the light of all these observable facts and circumstances surrounding
the preliminaries to the case concerning the Arbitral Award Made by the King
of Spain, the proceedings themselves and their conclusion, I do not think it
possible to discern therein any evidence of Nicaraguas attitude such as to
warrant the finding that it had definitively accepted the com-[p 531]pulsory
jurisdiction to which it had provisionally subscribed in 1929. In fact,
Nicaragua's attitude in this matter did not change even after the conclusion
of this case which had for so long dominated its relations with its
neighbour to the north. Throughout the succeeding two decades, Nicaragua
still held back from taking the simple and indispensable step of producing a
formal act of acceptance, validly drawn up and deposited in accordance with
the provisions of Article 36, paragraph 2, of the present Statute of the
Court. It was only on the eve of its institution of proceedings against the
United States of America that Nicaragua, suddenly realizing that it was in
its interest to be held validly bound to the United States of America by all
possible links of jurisdiction, changed its attitude. But it did so, even
then, merely to take over for its own purposes the argument, fragile though
it had been, which Honduras had raised against it, and which Nicaragua had
at the time so negatively received, to the effect that the 1929 Declaration
remained valid and that its purported effect had been transferred to the
new Court by virtue of Article 36, paragraph 5, of the new Statute. Whatever
else might be said, this change of attitude is certainly to be explained by
the fact that in 1959-1960 Nicaragua found itself in the position of a
Respondent, whereas at present it has turned to the Court as an Applicant.
Then there surely remains the question whether it is admissible for a
State, at its convenience of the moment, to turn a blind eye to a link of
compulsory jurisdiction when it might be bound by it as Respondent, and to
spotlight that same link when it is the Applicant.
40. The foregoing detailed analysis of the relevant legal and factual
aspects of the question under consideration should make it clear why I find
that there is an insuperable obstacle to my sharing the opinion of the
majority of the Court as to the existence between Nicaragua and the United
States of America of a tie of compulsory jurisdiction of which the
non-perfected declaration made by Nicaragua in 1929 would have to be one of
the supporting pillars. In my view, this declaration constitutes a
manifestation of intent valid as such, which could, however, never have
produced any legal effects under either the Permanent Court or the present
Court, whether for Nicaragua or for any of the other States therein
addressed. Furthermore, it is not, in my view, the quite unprobative
conduct of Nicaragua which can have cured this basic flaw.
41. I am therefore compelled to conclude that in this case the Applicant has
failed to provide the proof rightly required of it in this matter.
Moreover, even if any doubts were to remain, it would not, to my mind, be
possible to grant their benefit, in the present phase of the proceedings, to
the Applicant rather than to the Respondent. However, while expressing that
conclusion, I wish at the same time to re-emphasize my conviction that there
does exist between the two countries in dispute a contractually established
jurisdictional link, one undoubtedly valid and not open to challenge in
other respects either, which is provided by the Treaty of 1956. I believe I
have demonstrated as much under Section I of this opinion. This instrument
may, in my view, prove, when applied, to be far more capable [p 532] than is
thought of encompassing, perhaps not completely but certainly in stricter
and better-defined form, the issues in dispute between the Parties. This
jurisdictional link constitutes at all events a fully adequate basis to
enable the Court to move forward to the next stage of the proceedings.
(Signed) Roberto AGO.
[p 533]
Separate opinion of judge sir Robert Jennings
Whilst agreeing with the Court's decision that it has jurisdiction under the
1956 Treaty of Friendship, Commerce and Navigation, in respect of any
breaches of the provisions of that Treaty, and that such claims are also
admissible, I regret that I am unable to concur with the Court's decision
that it has jurisdiction under Article 36, paragraph 2, of the Court's
Statute. I shall explain my reasons, as briefly as may be.
First I shall consider whether the Nicaraguan Declaration of 24 September
1929 is, by operation of Article 36, paragraph 5, of the Statute of this
Court, to be deemed to be an acceptance of the compulsory jurisdiction of
this Court; second, I shall consider the effect of the United States letter
to the Court (the "Shultz letter" of 6 April 1984; third, the effect of the
United States multilateral treaty reservation; and lastly, the position
under the Friendship, Commerce and Navigation Treaty.
**
I. The Nicaraguan Declaration of 24 September 1929
The question here is whether the Nicaraguan Declaration of 24 September
1929, accepting "unconditionally" the compulsory jurisdiction of the
Permanent Court of International Justice is to be counted as one coming
within Article 36, paragraph 5, of the present Court's Statute.
In order to be a party to the Statute of the Permanent Court of
International Justice it was necessary both to sign and to ratify the
Protocol of Signature of the Statute (see P. C.I.J., Series D, No. 6, p.
19). Nicaragua has formally admitted in its Memorial (para. 47) that,
although it was a signatory of the Protocol, it "never completed
ratification of the old Protocol of Signature ...". The finding of the Court
in its Judgment is to the same effect. So Nicaragua, it must be assumed, was
never a party to the Statute of the Permanent Court.
To appreciate the full significance of this failure to ratify the Protocol
of Signature of the Statute of the Permanent Court of International Justice,
it is necessary to examine the form and content of the instrument by which
that Court was established (the most convenient reference for consulting the
essential portions of them is probably P.C.I.J., Series D, No. 5, pp.
58-62).[p 534]
A resolution, of 13 December 1920, of the First Assembly of the League of
Nations, approved the Statute of the Court, prepared by the Council in
accordance with Article 14 of the League of Nations Covenant, and recorded
that the Statute would be submitted to Members of the League "for adoption
in the form of a Protocol duly ratified and declaring their recognition of
this Statute". The Statute would enter into force as soon as it had been
ratified by a majority of the Members of the League. The Statute of the
Court was thus integral with the Protocol, the purpose of which was
precisely to be the vehicle of adoption of the Statute by Members of the
League. The Protocol of Signature is dated 16 December 1920. By it, the
signatories recognized the Statute of the Court. The Protocol refers to the
resolution of 13 December, and provides:
"The present Protocol, which has been drawn up in accordance with the
decision taken by the Assembly of the League of Nations on the 13 December,
1920, is subject to ratification. Each Power shall send its ratification to
the Secretary-General of the League of Nations; the latter shall take the
necessary steps to notify such ratification to the other signatory Powers.
The ratification shall be deposited in the archives of the Secretariat of
the League of Nations."
Next it is important to realize that Article 36 of the Statute, which then
as now was the jurisdictional article, contained, beginning with its second
(but then unnumbered) paragraph the following clause concerning "Optional
Clause" jurisdiction, which is obviously the progenitor of the present
Article 36, but also somewhat differently worded, not least in its reference
to joinder to the Protocol.
"The Members of the League of Nations and the States mentioned in the Annex
to the Covenant may, either when signing or ratifying the Protocol to which
the present Statute is adjoined, or at a later moment, declare that they
recognize as compulsory ipso facto and without special agreement, in
relation to any other Member or State accepting the same obligation, the
jurisdiction of the Court in all or any of the classes of legal disputes
concerning:
(a) The interpretation of the treaty.
(b) Any question of international law.
(c) The existence of any fact which, if established, would constitute a
breach of an international obligation.
(d) The nature or extent of the reparation to be made for the breach of an
international obligation.
The declaration referred to above may be made unconditionally or on
condition of reciprocity on the part of several or certain Members or
States, or for a certain time.
In the event of a dispute as to whether the Court has jurisdiction,[p 535]
the matter shall be settled by the decision of the Court." (Collection of
Texts Governing the Jurisdiction of the Court, P. C.I.J., Series D, No. 5,
p. 61.)
But in addition to the second paragraph of Article 36 there was, as part of
this same instrument containing the Protocol and the Statute, and set out as
a separate item, a "disposition facultative". In other words, there was an
actual "Optional Clause", which parties could sign if they so desired. This
of course is why one still speaks of the "Optional Clause" as a loose way of
referring to jurisdiction under the present Article 36, paragraph 2, even
though the actual Optional Clause is now in the past.
The disposition facultative, or Optional Clause, provided:
"The undersigned, being duly authorized thereto, further declare, on behalf
of their Government, that, from this date, they accept as compulsory ipso
facto and without special convention, the jurisdiction of the Court in
conformity with Article 36, paragraph 2, of the Statute of the Court, under
the following conditions: [Here follow the decla-rations made by the
signatories]."
There were thus two things normally done by a State subscribing to
compulsory jurisdiction: the signing of the declaration set out in standard
form in the Optional Clause, and the adding of any needed declaration saying
whether the undertaking was unconditional or subject to stated reservations.
In a few cases the signing of the Optional Clause itself was made by the
State concerned, subject to a ratification. But this was not required FN1.
It sufficed to sign the Clause and of course to ratify signature of the
Protocol, to which both Statute and Optional Clause were joined to form the
one instrument. But a State which signed and ratified the Protocol, though
it became thus a party to the Statute, did not subject itself to compulsory
jurisdiction unless at some time it signed the Optional Clause. Nicaragua
signed the Protocol on 14 September 1929 (together with the Revision
Protocol), and the signing of the Optional Clause was of course 24
September. She never, however, ratified the Protocol.
---------------------------------------------------------------------------------------------------------------------
FN1 See Table on page 55 of the P.C.I.J., Series D, No. 6 : note 2 to the
column for ratification of a declaration, states, "La ratification n'est en
effet pas exigee par le texte de la Disposition facultative".
---------------------------------------------------------------------------------------------------------------------
The signing of the "Optional Clause" of the Protocol and Statute of the
Permanent Court was something rather different, as has been seen, from the
making of a declaration under Article 36 of the Statute of the
International Court of Justice. The latter declaration is a quite separate
instrument which is to be deposited with the Secretary-General of the
United [p 536] Nations, "who shall transmit copies thereof to the parties to
the Statute and to the Registrar of the Court".
**
The question, therefore, is whether Article 36, paragraph 5, of the present
Court's Statute had the effect of transferring to the new Court, Nicaragua's
subscription to the Optional Clause of the Protocol of Signature and the
Statute of the Permanent Court, which entire instrument required
ratification; but which was never ratified, with the admitted consequence
that Nicaragua never became obligated by the compulsory jurisdiction of the
Permanent Court?
The answer would seem to be placed beyond doubt according to the English
text of Article 36, paragraph 5, which is:
"Declarations made under Article 36 of the Statute of the Permanent Court
of International Justice and which are still in force shall be deemed, as
between the parties to the present Statute, to be acceptances of the
compulsory jurisdiction of the International Court of Justice for the period
which they still have to run and in accordance with their terms."
Thus the declarations which are by that provision to be deemed to be
acceptances of the compulsory jurisdiction of the new Court are those "which
are still in force". And since the Nicaraguan Declaration was never "in
force" in respect of the old Court, it would seem to follow that it cannot
be held to be "still in force" for the purposes of Article 36, paragraph 5.
Furthermore, this result is in conformity with what the preparatory work
shows to have been the purpose and intention of the provision. The
provision, as is well known, was the result of a British proposal made in,
and accepted by, a subcommittee of the Committee of Jurists which met in
Washington in 1945. The very expert subcommittee (Fahy, Fitzmaurice, Krylov,
Novikov, Spiropoulos) reported as follows:
"The subcommittee calls attention to the fact that many nations have
heretofore accepted compulsory jurisdiction under the 'Optional Clause'. The
subcommittee believes that provision should be made at the San Francisco
Conference for a special agreement for continuing these acceptances in force
for the purpose of this Statute." (UNCIO, Vol. XIV, p. 289.)
The proposal, therefore, was to achieve the transfer, that is to say the
continuity, of already existing obligations. It could hardly be expected to
have been otherwise; certainly not to create a new obligation where none
existed before.
This purpose was faithfully pursued at San Francisco, where the present text
of Article 36, paragraph 5, reproduced above, eventually emerged as a part
of the Statute of the Court. [p 537]
The Language Question
Article 36, paragraph 5, necessarily appears in the five equally authentic
languages of the United Nations Charter, Chinese, English, French, Russian
and Spanish (Art. 111). The Chinese, Russian and Spanish versions apparently
translate the English formulation of the criterion of transfer, viz. "and
which are still in force ... ". The French text was, of course, drafted
alongside the English text at San Francisco. Nevertheless, the final version
of Article 36, paragraph 5, both French and English, was proposed by the
French delegation at the 19th meeting of the committee on 7 June, when the
committee adopted what are now the French and English texts of the Article
(UNCIO, Vol. XIII, pp. 485 and 486). In this final French proposal, the
English "which are still in force" remained, but there was an alteration of
the French version of that phrase. Since the Court's Judgment apparently
finds this change in the language of the French version, significant, it is
necessary briefly to examine this final variation of the French text. The
change proposed by the French delegation, to the French text, was this :
where the original French text used the phrase "encore en vigueur" to
correspond to the English "still in force", the proposal was to substitute
"pour une duree qui n'est pas encore expiree" for "encore en vigueur".
According to the official report of the meeting:
"The French Representative stated that the changes suggested by him in
paragraph 4 [as Art. 36, par. 5, then was] were not substantive ones, but
were intended to improve the phraseology." (Ibid., p. 284.)
The text, both in English and French, of Article 36, paragraph 5, was then
unanimously adopted.
The statement of the French representative that the change was concerned
with phraseology and was not substantive must of course be accepted.
Moreover, the French proposal was introduced by the French delegation
coupled with and alongside the English version using "still in force". If it
were possible that the two texts were capable of different meanings, the
rule in Article 33, paragraph 4, of the Vienna Convention on the Law of
Treaties requires that : "the meaning which best reconciles the texts,
having regard to the object and purpose of the treaty, shall be adopted". It
is not possible to reconcile this requirement with any solution which seeks
to give a special meaning to the French text, which meaning cannot be
collected from the Chinese, the English, the Russian and the Spanish.
It is interesting nevertheless to speculate on the question why the French
delegation at San Francisco, in seeking the French equivalent of "still in
force", eventually preferred "pour une duree qui n'est pas encore expiree"
to the simple "en vigueur" which is used in the immediately following
Article 37 of the Statute as equivalent to the English "in force" (in this
case [p 538] of course referring not to declarations but to treaties) ; and,
indeed, is also used in the first paragraph of Article 36.
The comparison of Article 36, paragraph 5, with Article 36, paragraph 1, and
with Article 37, suggests a possible answer to the question. In Article 36,
paragraph 1, which deals with treaties or conventions conferring
jurisdiction on the International Court of Justice ; and in Article 37,
concerning treaties and conventions providing for reference to any tribunal
to have been instituted by the League of Nations, or to the Permanent Court
of International Justice, the only requirement of the treaty or convention
is that it shall be "in force", "en vigueur", at the moment the question of
jurisdiction arises. But Article 36, paragraph 5, is different. Whereas the
key phrase of Article 36, paragraph 1, and Article 37, is "in force", the
key phrase in Article 36, paragraph 5 (in the English version), is "still in
force". To have used the phrase "still in force" in either Article 36,
paragraph 1, or Article 37 would have been otiose. In Article 36, paragraph
5, on the other hand, the word "still" conveys, to my mind, the idea of
something which was in force for the old Court, and is therefore to be
deemed "still in force" for the new Court. There is thus an important
difference between "in force" and "still in force".
The French delegation at San Francisco must have had some good reason for
introducing their change to the French text. That reason, considering that
they said the change was one of phraseology only, and considering that they
proposed no change to the English text, could only have been that they
considered the new French version to convey, more clearly than the original
French text did, the meaning and purpose of the English "still in force".
The new French version, therefore, seizes upon the notion of continuity as
the essential criterion. What matters is not only that a declaration is "in
force" in its terms, but that it has been in force for the old Court and was
expressed for a period that continues and is still not expired. For the
French version retains that important qualifying word, "encore".
One can do no more than speculate on the purpose of the change in the French
text, for the records are sparse. So one is left with the rule that if there
be, which I doubt, material difference between the meaning of the texts, the
one which best reconciles the different language versions, all five of them
that is to say, is to be preferred. For the present case at least there is
no great difficulty in doing that. A declaration of acceptance of
compulsory jurisdiction, which declaration never came into operation under
the old Statute, certainly cannot be said, under the new Statute, to be
"still in force", which is the language used in four of the versions of the
Statute ; and is the meaning consonant with what was said to be the purpose
of the provision, namely the carry over to the new Court of obligations
created in respect of the old Court.
There is no difficulty in collecting the same meaning in the French formula
: pour une duree qui n'est pas encore expiree. What is referred to by that
formula is surely a declaration by which the compulsory jurisdiction of the
Permanent Court was actually established. A declaration to which,[p 539]
owing to failure to ratify the Protocol, no date of commencement of the
obligation in respect of the Permanent Court could be assigned, cannot be
said to be pour une duree qui n'est pas encore expiree. That which never
began cannot be said to have had a duration at all.
**
The Aerial Incident Case
The meaning of Article 36, paragraph 5, is clarified by the Judgment of this
Court in the Aerial Incident case (I.C.J. Reports 1959, p. 127). In that
case Israel, the Applicant State, relied upon the alleged operation of
Article 36, paragraph 5, in respect of Bulgaria's Declaration of 29 July
1921, which has been made unconditionally, and which had certainly come into
effect in respect of the Permanent Court of International Justice because
Bulgaria had indeed ratified the Protocol of Signature of the Statute of
that Court. The International Court of Justice found, nevertheless, that it
did not have compulsory jurisdiction under Article 36, paragraph 5, of its
Statute because, by the time Bulgaria, which was not present at San
Francisco, had become a member of the United Nations in 1955, the Permanent
Court of International Justice had ceased to exist. Accordingly, Bulgaria's
Declaration, even though stated in its terms to be unconditional and
therefore without a time-limit, had, it was held, lapsed with the demise of
the Court. Thus, the question asked by the Court was whether the declaration
could properly be said to be "still in force" in respect to the old Court at
the time when Bulgaria became subject to the Statute of the new Court, and
in particular to Article 36, paragraph 5? Any notion that, for the effect of
Article 36, paragraph 5, one was entitled to look merely to the terms of the
declaration itself, abstracted from its status with respect to the Permanent
Court, was rejected. If a declaration which had come into effect for the
Permanent Court, and in its own terms was still running, was not caught by
Article 36, paragraph 5, because the obligation to the old Court must have
ceased when the Court itself ceased to exist, then one would suppose that, a
fortiori, a declaration which never at any time actually created an
obligation in respect of the old Court, cannot be carried over to the new
Court by Article 36, paragraph 5.
There is one passage of the Judgment that is most apposite to the present
case. The Court is considering the case of those States, like Bulgaria,
which did not become parties to the Charter and to the Statute of the new
Court, until after the dissolution of the Permanent Court.
"Accordingly, the question of the transformation of an existing obligation
could no longer arise so far as they were concerned: all that could be
envisaged in their case was the creation of a new obligation [p 540] binding
upon them. To extend Article 36, paragraph 5, to those States would be to
allow that provision to do in their case something quite different from what
it did in the case of signatory States." (I.C.J. Reports 1959, p. 138.)
In this passage the Court denied that there could be any possibility of
Article 36, paragraph 5, creating a new obligation, not existing under the
old Court - which is precisely what the present Judgment does in respect of
Nicaragua.
For all these reasons it seems to me that to say that the effect of Article
36, paragraph 5, was to create for Nicaragua an obligation in respect of the
new Court, which never in fact existed in respect of the Permanent Court, is
straining the language of that Article beyond what it can bear.
***
The Yearbooks of the Court
Considerable weight has been attached by Nicaragua to the fact that in all
the Yearbooks of the present Court it has been listed among the States bound
by Optional-Clause jurisdiction. The Judgment of the Court also regards the
Yearbooks and other publications as a factor confirming its interpretation
of the effect of Article 36, paragraph 5; if not an independent source of
jurisdiction for the Court. In my view, thus to allow considerable, and
even decisive, effect, to statements in the Court's Yearbook is mistaken in
general principle; and is in any event not sufficiently supported by the
facts in the present case.
It is to my mind wrong in principle because the Court should always
distinguish between its administrative functions - including the
compilation of the Yearbook by the Registrar on the Court's instructions
and its judicial functions. When there is a dispute between States as to the
Court's jurisdiction, that dispute may be, as in the present case, submitted
to the Court for determination in its judicial capacity. To hold, after the
exchange of voluminous written pleadings and after two rounds of oral
proceedings, that the matter was, before all this, virtually settled as a
result of the action of the Registrar acting on behalf of the Court in its
administrative capacity, and without benefit of judicial argument and
procedure, is not free from an element of absurdity. For the Court's
administrative organization to make some necessary assessment of a legal
question for purposes of an annually published reference book; and for the
full Court in its judicial capacity, after its full judicial procedure,
including hearing arguments of both parties, to make a decision on the same
matter; are two entirely different things which should never be confused.
It is of course to prevent any such confusion that every Yearbook is [p 541]
prefaced by the following warning and disclaimer in the general "Preface" to
the volume. In the first Yearbook (1946-1947) it read:
"It is to be understood that the Yearbook of the International Court of
Justice is prepared and published by the Registrar and in no way involves
the responsibility of the Court."
Later Yearbooks somewhat expanded the disclaimer typically as follows:
"The Yearbook is prepared by the Registry and in no way involves the
responsibility of the Court; in particular, the summaries of judgments,
advisory opinions and orders contained in Chapter VI cannot be quoted
against the actual texts of those judgments, advisory opinions and orders
and do not constitute an interpretation of them."
For the Court, nevertheless, to attach important legal consequences to
entries in the Yearbook is to destroy the clear effect of the disclaimer; as
well as, in my view, being wrong in principle.
**
But even apart from the objections of principle, the Yearbooks do not at all
yield any certain message on the status of the Nicaraguan declaration; on
the contrary they consistently each one of them alert the attentive
reader to the existence of doubts.
The first Yearbook is that for 1946-1947. There are two entries concerning
Nicaragua. First, there is a part giving the actual text of "communications
and declarations of States which are still bound by their adherence to the
Optional Clause of the Statute of the Permanent Court of International
Justice" (p. 207) FN1. In this section, on page 210 (p. 206 of the French
edition) the actual text of the Nicaraguan Declaration of 24 September 1929
is set out verbatim, and with a reference to a footnote which reads:
"According to a telegram dated November 29th, 1939, addressed to the League
of Nations, Nicaragua had ratified the Protocol of Signature of the Statute
of the Permanent Court of International Justice (December 16th, 1920), and
the instrument of ratification was to follow. Notification concerning the
deposit of the said instrument has not, however, been received by the
Registry."
---------------------------------------------------------------------------------------------------------------------
FN1The
use in this heading of the phrase "still bound" ("encore lies" in the French
version), far from lending support to Nicaragua's reliance on the Yearbooks,
shows why successive Registrars had doubts whether Nicaragua should have
been listed or not.
--------------------------------------------------------------------------------------------------------------------
This then was the Yearbook in which the actual text of the Nicaraguan [p
542] Declaration was to be found, the practice of the following Yearbooks
being to give a reference back for those who wished to consult the text.
The second entry for Nicaragua in this same Yearbook 1946-1947 is in the
complete list (which also features in subsequent Yearbooks), of
Optional-Clause States. In this list the date and conditions of the State's
acceptance are set out, but not the actual text of the communication. In the
Yearbook 1946-1947 list, Nicaragua appears, in its alphabetical order, on
page 226, as having made an "unconditional" declaration on "24 IX 29". There
is, however, a footnote giving a reference back to page 210 for the actual
text of the declaration. The whole of this list appears under the
bold-letter heading:
"List of States which have recognized the compulsory jurisdiction of the
International Court of Justice or which are still bound by the acceptance of
the Optional Clause of the Statute of the Permanent Court of International
Justice (Article 36 of the Statute of the International Court of Justice)."
Thus, one certain message that can be collected from these Yearbooks (for
the same heading continues through several subsequent volumes) is that the
Registrars at least understood the "still in force" of Article 36,
paragraph 5, as being equivalent to "still bound".
The Yearbooks from 1947-1948 to 1954-1955, in accord with the normal
Yearbook practice, simply reproduced this Nicaraguan entry in the list in
exactly the same form as in the Yearbook 1946-1/947. Nicaragua seemed to
attach some importance to the absence in these subsequent volumes of the
footnote about the non-receipt in Geneva of any Nicaraguan instrument of
ratification of the Protocol of Signature of the Statute of the Permanent
Court of International Justice. But as mentioned above that note did not
appear either, in the Yearbook 1946-1947 in its list and summary of
declarations; it appeared where the actual text of the Nicaraguan
declaration was reproduced. Furthermore there is also in all these
Yearbooks between 1947-1948 and 1954-1955, at the beginning of the
"instruments" section, a list of States having made declarations. Nicaragua
is included in that list, always with a reference back to page 210 (p. 206
of the French version) of the Yearbook 1946-1947 for the text of the
declaration where of course the warning footnote is to be found. So it is
not the position that in this series of seven Yearbooks there is nothing to
suggest any doubt about the Nicaraguan declaration: on the contrary, the
careful reader is always guided back to the text of the declaration in the
Yearbook 1947-1948, and there he finds the cautionary footnote.
From the Yearbook of 1955-1956 onwards there is a change. There is again the
same list of States which refers the reader back to page 210 of the [p 543]
Yearbook 1946-1947 and its footnote. The change is in the summary list of
States "which are still bound by their declarations accepting the
compulsory jurisdiction of the Permanent Court of International Justice".
There Nicaragua now appears with a new footnote, which however reproduces
the 1946-1947 footnote with a change in the second sentence making it rather
stronger. The whole note reads:
"According to a telegram dated November 29th, 1939, addressed to the League
of Nations, Nicaragua had ratified the Protocol of Signature of the Statute
of the Permanent Court of International Justice (December 16th, 1920), and
the instrument of ratification was to follow. It does not appear, however,
that the instrument of ratification was ever received by the League of
Nations."
Thus from 1955-1956 onwards, the reader was warned in two places about the
doubts: first by the usual reference back, in the introductory list of
Optional-Clause States, to the text of the declaration in the 1946-1947
volume, with its cautionary footnote, and second by a new note for the
Nicaraguan entry in the summary of declarations of States "which are still
bound by their declarations accepting the compulsory jurisdiction of the
Permanent Court of International Justice", which note reinforces the
original note.
There is also another caution to the careful reader. Thus, for example, on
page 207 of Yearbook 1956-1957 we find the following very important note:
"The texts of declarations set out in this Chapter are reproduced for
convenience of reference only. The inclusion of a declaration made by any
State should not be regarded as an indication of the view entertained by
the Registry or, a fortiori, by the Court, regarding the nature, scope or
validity of the instrument in question."
This twofold reference to cautionary notes could have been prompted by the
Registrar, as we know from the Pleadings of the Parties, having had letters
of inquiry from Professor Manley Hudson, who was then advising Honduras
about the issue which later came before this Court in the Arbitral Award
Made by the King of Spain case (I.C.J. Reports 1960, p. 192; Professor
Hudson, who died in 1960, did not survive to take part as counsel in the
case, however). But the new note might also have been in anticipation of
the new format of the Yearbook entries from 1956-1957 onwards, by which
there were no longer two lists of these States, one for Article 36,
paragraph 2, declarations and one for Article 36, paragraph 5; but only one
general section in which the texts of the instruments are reproduced. There
is thus, after 1956-1957 up to and including the latest Yearbook, no need
for a list referring back to the Yearbook in which the text of a declaration
is reproduced, because in the new format the text is to be found [p 544] set
out each year in this section; it was, therefore, essential that the note
warning of the doubts about the status of Nicaragua's declaration should
appear against its entry in this, now, single list; as, indeed, it
invariably does.
The point needs to be made with emphasis that the successive Registrars who
compiled the Yearbook, which as the Preface says in every Yearbook, "in no
way involves the responsibility of the CourtFN1, acted in the only correct
way in simply stating the facts and making no attempt to purport to decide
Nicaragua's status one way or the other; this would have been for the
Registrar to act ultra vires. Thus in every Yearbook the more than casual
reader is led to the fact that a Nicaraguan ratification of the Protocol of
Signature of the Statute of the Permanent Court appeared not to have been
received at the League of Nations. The Registrar could not have done more or
less without exceeding his authority. He had simply to inform the reader
that there was indeed a Nicaraguan declaration of acceptance of compulsory
jurisdiction and to add notice of the fact that the necessary ratification
of the Protocol had not been received. The disclaimer note cited above warns
that the Yearbook entry is not to be regarded as involving even the
Registrar's own views. For the Court now to give such weight to these
entries is indeed startling. It is contrary to principle. It is at odds with
the notices of disclaimer in each Yearbook, usually in more than one place.
It is in any event not supported by any more than a superficial reading of
the Yearbook entries.
---------------------------------------------------------------------------------------------------------------------
FN1 These introductory remarks signed personally by the Registrar ceased to
have the heading "Preface" with the 1961-1962 volume. They are always,
however, printed on a separate page immediately following the title-page.
---------------------------------------------------------------------------------------------------------------------
**
Other publications, mainly governmental collections of treaties, were
mentioned by Nicaragua; but these almost certainly use the Yearbook as their
source and usually say so. The ancillary notion that the Court is in some
way bound by the inclusion of Nicaragua in the list of States accepting
compulsory jurisdiction in the Court's Annual Reports to the General
Assembly, can be dealt with shortly. It is an astonishing proposition that
the result of a full adjudication of a difficult legal question, can be in
some way foreclosed by a list in routine reports made by the Court in its
administrative capacity. The purpose of that part of the Reports is to give
the General Assembly a more or less accurate idea of the state of the
Optional-Clause jurisdiction from time to time; it is certainly not to
prejudice, much less to decide, a dispute between Nicaragua and the [p 545]
United States. The whole list is in two short paragraphs, pointing out that
a number of States have made reservations, but with no indication which, or
the nature of any reservations. For those who wish to know more, it gives a
reference to the Yearbook. Nobody should be able to fall into the error of
supposing the list definitive. Nobody concerned with the law involved in the
present case would regard it as other than difficult ; it would be
extraordinary to allow its decision to be prejudiced by a side-wind from a
routine, administrative report.
***
II. The Letter of 6 April 1984 from Secretary of State Shultz
Since in my opinion Article 36, paragraph 5, of the Court's Statute is not
applicable to Nicaragua's 1929 Declaration, and since, accordingly,
Nicaragua does not in my view have standing to prosecute this case before
the Court without the special agreement of the United States, there is
strictly no need to consider any of the other matters in contention between
the Parties. As, however, the Court has decided that it has jurisdiction
under Article 36, paragraph 2, it may be convenient briefly to indicate my
own view upon the effect of the Shultz letter, as well as of the effect of
the United States multilateral treaties reservation. The text of the letter
of 6 April 1984 from Secretary of State Shultz is as follows:
"I have the honor on behalf of the Government of the United States of
America to refer to the Declaration of my Government of August 26, 1946,
concerning the acceptance by the United States of America of the compulsory
jurisdiction of the International Court of Justice, and to state that the
aforesaid declaration shall not apply to disputes with any Central American
state or arising out of or related to events in Central America, any of
which disputes shall be settled in such manner as the parties to them may
agree.
Notwithstanding the terms of the aforesaid declaration, this proviso shall
take effect immediately and shall remain in force for two years, so as to
foster the continuing regional dispute settlement process which seeks a
negotiated solution to the interrelated political, economic and security
problems of Central America."
This raises many questions, but perhaps the most important one -certainly
from the point of view of the general law governing Optional-[p 546] Clause
acceptances is the effect in law of the manifest contradiction between the
1946 United States Declaration of acceptance of compulsory jurisdiction for
"five years and thereafter subject to six months' notice", and the Shultz
letter, which is expressed to take effect immediately and to remain in force
for two years, notwithstanding the terms of the 1946 Declaration.
Before attempting to answer this question, it may be useful to make two
preliminary observations. First, the discussion in the oral proceedings of
whether or not the legal position of declarations under the Optional Clause
is, or is not, governed by the law of treaties, I found not entirely helpful
and in any event inconclusive. The fact of the matter must surely be that
the Optional-Clause regime is sui generis. Doubtless some parts of the law
of treaties may be applied by useful analogy; but so may the law governing
unilateral declarations; and so, most certainly, may the law deriving from
the practice of States in respect of such declarations.
The second preliminary observation is that I do not think one need spend
much time on the somewhat theoretical question whether the Shultz letter
amounts to a modification or a substitution of the 1946 Declaration. The
major problems of principle would apply to either. (See also Right of
Passage over Indian Territory, Preliminary Objections, I.C.J. Reports 1957,
pp. 143-144.) It looks on the face of it like a modification since the
original declaration is untouched for most States and disputes and there
seems to be neither reason nor profit in attempting to go behind the United
States own assertion that it was not intended as a withdrawal, but as a
temporary modification or partial suspension.
Coming now to the question of the contradiction between the terms ratione
temporis of the 1946 Declaration, and the terms of the Shultz letter, it is
of course established law - the so-called rule in the Nottebohm case (I.C.J.
Reports 1953, p. 123) - that the critical moment for the determi-nation
whether or not there is jurisdiction in respect of a particular case, is the
moment when the Court becomes seised of that case, which is the moment of
seisin. In consequence of this rule it is not possible in law for a
government effectively to change its declaration, after seisin, in any way
that might purport to deprive the Court of jurisdiction. Thus, in the Right
of Passage over Indian Territory case (I.C.J. Reports 1957, p. 142) the
Court said:
"It is a rule of law generally accepted, as well as one acted upon in the
past by the Court, that, once the Court has been validly seised of a
dispute, unilateral action by the respondent State in terminating its
Declaration, in whole or in part, cannot divest the Court of jurisdiction."
But the problem in the present case is quite different: it is whether a [p
547] government can lawfully and effectively change the terms of its
declaration before seisin; in the present case, indeed, only hours before
seisin and in direct contemplation of the particular case of which the Court
is seised. This question seems to be, for the Court, a matter prima
impressionis; though it is naturally one that has attracted the attention of
commentators.
Obviously, the making of a declaration under the Optional Clause establishes
some sort of relationship with other States that have made declarations;
although it is not easy to say what kind of legal relationship it is. It is
a relationship created by a great variety of unilateral declarations, all
having, however, the common element of being made within the framework of
Article 36, paragraph 2, of the Court's Statute. The declarations are
statements of intention; and statements of intention made in a quite formal
way. Obviously, however, they do not amount to treaties or contracts; or, at
least, if one says they are treaties, or contracts, one immediately has to
go on to say they are a special kind of treaty, or contract, partaking only
of some of the rules normally applicable to such matters. Thus, however one
starts, one ends by treating them as more or less sui generis. In short, it
seems to me that, interesting as it might be to speculate about the
juridical taxonomy of Optional-Clause declarations, it is better to begin
the inquiry not from a label but from the actual practice and expectation of
States today.
Law develops by precedent, and it is that which gives it consistency and
predictability. But legal precedents like any other must be seen in the
light of history and of changing times. In the period of the Permanent Court
and even in 1946 when the United States Declaration was made, an important
proportion of States had subscribed to the Optional-Clause system. Today
that is no longer the case. The Optional-Clause States are distinctly in the
minority and very many of the most important and powerful States have not
accepted compulsory jurisdiction and show little indication of any ambition
to do so. Any assessment of the position in contemporary practice must take
into account the position of this majority of States which do not subscribe
to the Optional-Clause system. It is well described by Waldock in his
well-known article:
"A State which is a party to the Statute of the Court but does not make a
declaration under the Optional Clause is in a highly favoured position.
Acceptance of the Statute by itself carries no liability to appear in front
of the Court in a contentious case at the suit of another State. Before it
can come under any liability to appear as defendant in a case, a State must
specifically have accepted the Court's contentious jurisdiction either by
treaty or by unilateral declaration under the Optional Clause. On the other
hand, the mere fact that a State is a party to the Statute gives it the
power, under the Optional Clause, at any moment to put itself into the
position of being able instantly to [p 548] bring before the Court any
States which have already subscribed to the Optional Clause in any case
covered by the terms of their declarations. Being a party to the Statute,
it has the right under the Optional Clause at any time and without reference
to any other State to make a declaration recognizing the compulsory
jurisdiction of the Court in relation to States which also subscribe to the
Optional Clause ...
There is, in consequence, a glaring inequality in the position of a State
which does and a State which does not make a declaration under the Optional
Clause. The former State, for practical purposes, is continuously liable to
be brought before the Court compulsorily at the suit of the latter, whereas
the latter is not liable to be brought before the Court at the suit of the
former unless and until it chooses to initiate proceedings before the Court
as plaintiff and makes a declaration under the Optional Clause ad hoc
expressly for that purpose." (BYBIL, 1955-1956, pp. 244 ff., at p. 280.)
It is, therefore, at least in part in the light of what Waldock goes on to
call "this fundamental lack of reciprocity between the positions of States
which do and States which do not make declarations", that the answer to the
question of the legal effect of declarations should be given. It is this
position of inequality and lack of reciprocity that has inevitably produced
reservations by which the declarant State can withdraw or alter a
declaration with immediate effect. Even so there remains inequality with
those States which have chosen not to make any declaration at all. In this
climate it would in my view be as impracticable as it would be inequitable
to hold that a State whose declaration, like that of the United States, is
expressed as subject to six months' notice, is bound by that statement of
intention in respect of all comers, including those very many States which
have declined to risk even a potential liability to jurisdiction; though it
is of course bound once an application has been made.
A solution which has the attraction of compromise is a novel application to
relations even before seisin of the principle of reciprocity. This is the
solution which was espoused by the United States in its argument before the
Court. It has the merit of involving a principle the idea of States
"accepting the same obligation" - which is written into the express terms of
Article 36, paragraph 2, itself, and which all previous practice and
doctrine has regarded as the very basis and justification of the
Optional-Clause system.
This reciprocity test applied before seisin would presumably mean that if
one took, for example, the relationship of a State A with a declaration
subject to 12 months' notice of cesser, and a State B with a declaration
subject to 6 months' notice of cesser, State A would be entitled to give 6
months' notice of cesser as against State B; though it is not easy to
imagine [p 549] circumstances in which State A would be much benefited by
indulging this right. There would, however, be obvious practical benefits
where State B has reserved the right to withdraw or alter at any time; for
then State A would be able to justify, in relation to State B, a withdrawal
with immediate effect, presumably even when made in face of an anticipated
application by State B. This is the way in which the United States thought
it should be applied in the present case; though their argument needs the
further proposition that Nicaragua's "unconditional" declaration is one
which could itself be withdrawn or altered at any time with immediate
effect.
Leaving on one side for the moment whether or not it would in the present
case have the particular result for which the United States contends, it
may be accepted that some such application of a doctrine of pre-seisin
reciprocity is a possible and practicable solution of the problem, that has
considerable attraction.
The idea of applying reciprocity before Seisin rather than after or rather
at seizin is, however, not free from difficulty and would be something of
an innovation. At seisin there are three factors, not two, which enter into
the calculation whether or not the Court has jurisdiction; there are the
terms of the declarations of the two States concerned, but there is also the
terms of the application in the case. It is the latter which makes
practicable the search for a coincidence between the two declarations; and
makes it practicable because the necessary coincidence is limited to
coincidence in respect of the subject-matter of the application. As the
Court said in the
Right of Passage over Indian Territory case:
"When a case is submitted to the Court, it is always possible to ascertain
what are, at the moment, the reciprocal obligations of the Parties in
accordance with their respective Declaration." (I.C.J. Reports 1957, p.
143.)
It is almost an implication of this dictum that it is not possible to make
that ascertainment other than at the moment when a case is submitted to the
Court; at any rate not in quite the same way. Moreover, in that case, the
Court apparently saw no objection to the existence of a degree of
uncertainty in the reciprocal rights and obligations before an application
has been made (ibid., p. 143).
Nevertheless, what is sought to be "ascertained" at seisin - namely
jurisdiction in respect of the subject-matter of the application is quite
different from what is in issue here: namely whether, or to what extent, a
State can withdraw or alter its declaration, contrary to the terms of the
declaration, before seisin. The situation is materially different in respect
of the very question at issue, for whereas after seisin even the most
flexible declaration may not be altered in its impact on the case, there
are, even on [p 550] the strictest view, at least some possibilities of
changing a declaration before seisin; for example, in accordance with the
declaration's own terms.
**
The conclusion I have come to, however, is that, attractive as the device of
reciprocity might be for solving this problem, the fact is that the practice
of States certainly the recent practice of States - has already gone
beyond it. I believe there is ample evidence that States belonging to the
Optional-Clause system have now generally the expectation that they can
lawfully withdraw or alter their declarations of acceptance at will,
provided only that this is done before seisin. Certainly there is no lack
of precedents where this has been done without effective protest, and, in
recent cases, without any protest whatsoever. It is necessary, however,
briefly to mention certain aspects of this modern practice.
The instances of changes to declarations made by certain States before the
Second World War (Colombia, 1936; Paraguay, 1938; and Australia, Canada,
France, India, New Zealand, South Africa; and the United Kingdom in 1939)
are only remotely relevant to the issue before the Court. At that time the
international community of States was relatively very small, and a very
important majority of those States were parties to the Optional-Clause
system so that there was not the present inequality and lack of reciprocity
with a large body of States who are not parties. Perhaps the only important
point to notice about these early instances is that such relatively few
protests as were made were entirely ineffectual and the altered declarations
were left intact.
Of the very considerable body of practice in more recent times, in many ways
the most significant aspect is the number (in relation, that is, to the
number of States with Optional-Clause declarations) of States that now have
declarations which expressly reserve a right to withdraw or modify with
immediate effect. The existence of this right was recognized by the Court in
the Right of Passage over Indian Territory case, when it speaks of
"the right claimed by many Signatories of the Optional Clause, including
India, to terminate their Declarations of Acceptance by simple notification
without any obligatory period of notice" (I.C.J. Reports 1957, p. 143).
It appears that no less than 15 declarations now reserve the right to modify
with immediate effect: Australia, Botswana, Canada, El Salvador, Kenya,
Malawi, Malta, Mauritius, New Zealand, Norway, Portugal, Somalia, Swaziland,
Togo and the United Kingdom. This is almost a third of the declarations now
existing. It might perhaps be argued that this only shows that a right of
immediate change may be expressly reserved; for, ob-[p 551] viously, since
a State need not accept compulsory jurisdiction at all, it may accept
compulsory jurisdiction subject to conditions, including even a power of
instant denunciation. But it is equally arguable that, given now so many
express reservations of a right of immediate denunciation or modification,
the express stipulation made in a unilateral and voluntary declaration is
inserted to make the position clear, or in order to recite modalities of
withdrawal or alteration; and that this body of practice supports the
proposition that the right is now, whatever may have been the position at an
earlier period, one generally available.
In many ways the most striking of the examples of States claiming such a
right are the withdrawals or modifications by those States, which, often
without having expressly reserved such a right, have made the change with
immediate effect and with the obvious intention as in the present case
or frustrating an anticipated case, or a class of cases. There are no less
than 11 instances of modifications made in the absence of any expressly
reserved right to do so; three examples have been provided by the United
Kingdom (2 June 1955; 31 October 1955; 18 April 1957); France has produced
two examples (10 July 1959; 20 May 1966); other States that have resorted to
this device, once, are Australia, on 6 February 1954; South Africa, 13
September 1955; Canada, 7 April 1970; Philippines, 18 January 1972; India,
18 April 1974. Six of these were certainly in order to avoid applications on
subjects which the State concerned wished to avoid litigating. The
Australian modification of 1954, for example, was made to frustrate a
possible Japanese application regarding pearl fisheries in the seas between
Australia and Japan. The United Kingdom twice narrowed the scope of its
declaration; once specifically to avoid an application over its dispute with
Saudi Arabia over the Buraimi Oasis (after the breakdown of the attempted
arbitration). Canada's new reservation to its declaration in 1970 was
specifically to avoid any application questioning the lawfulness of
Canada's 1970 legislation establishing an anti-pollution zone of claimed
Canadian jurisdiction extending 100 miles off its northern coast into Arctic
waters. The Prime Minister of Canada stated to the press that,
"it was important to make the reservation the moment we introduced the law
for fear that at any moment there may be some litigation begun which we
would be too late to withdraw from" (ILM, 9600).
In none of these cases was there a formal protest which questioned the right
of an exclusory modification with immediate effect and in the absence of an
expressly reserved right to modify. In the Canadian case, the United States
vigorously protested the lawfulness of the Canadian legislation. Yet far
from denying Canada's right to modify its Optional-Clause acceptance, the
United States accepted its effect. A Press Release of 15 April 1970 (No.[p
552] 121), setting out a "Department of State Statement on Government of
Canada's Bills on Limits of the Territorial Sea", contains the following
passage:
"If, however, the Canadian Government is unwilling to await international
agreement, we have urged that in the interest of avoiding a continuing
dispute and undermining our efforts to achieve international agreement,
that we submit our differences regarding pollu-tion and exclusive fisheries
jurisdiction beyond 12 miles to the International Court of Justice, the
forum where disputes of this nature should rightfully be settled. Canada's
action last week excluded such disputes from its acceptance of the
International Court's compulsory jurisdiction. However, such action only
prevents Canada from being forced into the Court. It does not preclude
Canada voluntarily joining with us in submitting these disputes to the Court
or an appropriate chamber of the Court." (ILM, 9-606; emphasis supplied.)
There are other well-known instances of modifications such as El Salvador's
1973 change in its 1921 Declaration, which was protested by Honduras but by
no other State; and Israel's 1984 modification of its declaration, which
declaration provided for denunciation but not for modification. This is an
impressive body of practice, considering the present total "constituency" of
the Optional Clause is but 47.
Another relevant consideration is certainly the labours of the
International Law Commission in its work on the law of treaties, and its
view reached, after careful investigation, that treaties of arbitration,
conciliation or judicial settlement are amongst those which, even in the
absence of a denunciation clause, are by reason of the nature of the treaty,
terminable by notice. Such treaties are of course quite different in their
legal nature from the Optional-Clause system. But the significant point is
that Sir Humphrey Waldock, the distinguished Special Rapporteur on the law
of treaties, in examining the position of such treaties, argued from the
analogy of the Optional-Clause system. He said:
"Taken as a whole, State practice under the Optional Clause, and especially
the modern trend toward declarations terminable upon notice, seem only to
reinforce the clear conclusion to be drawn from treaties of arbitration,
conciliation and judicial settlement, that these treaties are regarded as
essentially of a terminable character." (ILC Yearbook, 1963, Vol. 2, p. 68.)
[p 553]
In face of the unmistakable trend of recent developments, I feel bound to
conclude that States now - though the position was probably different during
the earlier, more promising period of the Optional Clause jurisdiction -
have the right, before seisin of the Court, to withdraw or alter their
declarations of acceptance, with immediate effect, and, moreover, even in
anticipation of a particular case or class of cases. If this is so, then it
follows that the Shultz letter was effective to deprive the Court of
jurisdiction under Article 36, paragraph 2, of the Court's Statute.
It remains to add that, if the above view of State practice and expectation
is correct, it must also follow that Nicaragua's "unconditional" declaration
could also be withdrawn or altered at any time before seisin. Indeed I
should be constrained to this view even applying the terms of the Nicaraguan
declaration itself: for it is impossible to believe that an unconditional
declaration is made in perpetuity. A declaration that is made for an
indefinite period, without other condition, is surely one that can at any
time be made definite. And although a need to give notice of withdrawal or
alteration is implied, it is impossible in the light of modern practice in
these matters to deny that the notice may be expressed to have immediate
effect. The practice of the States that have accepted Optional-Clause
jurisdiction suggests strongly that notice with immediate effect is
reasonable notice. Accordingly if, contrary to my own inclination, some sort
of rule of reciprocity, in the matter of notice of change or withdrawal,
were to be applied to relations between Optional-Clause States before
seisin, my answer to the case of Nicaragua would be the same.
It is necessary to add one further and final point about the effect of the
letter of 6 April 1984. Any doubt in a case of this kind should in principle
be resolved in favour of a respondent State denying jurisdiction. As this
Court has pronounced on a former occasion:
"Finally, if any doubt remained, the Court, in order to interpret Article
36, paragraph 5, should consider it in its context and bearing in mind the
general scheme of the Charter and the Statute which founds the jurisdiction
of the Court on the consent of States. It should, as it said in the case of
the Monetary Gold Removed from Rome in 1943, be careful not to 'run counter
to a well-established principle of international law embodied in the
Court's Statute, namely, that the Court can only exercise jurisdiction over
a State with its consent' (I.C.J. Reports 1954, p. 32)." (Aerial Incident of
27 July 1955 (Israel v. Bulgaria), Judgment, I.C.J. Reports 1959, p. 142.)
[p 554]
***
III. The United States Multilateral Treaties Reservation
The United States has pleaded the third of the reservations made to its
Declaration of 26 August 1946, sometimes called the multilateral treaties
reservation and sometimes the Vandenberg Reservation. It reserves from
jurisdiction:
"disputes arising under a multilateral treaty, unless (1) all parties to the
treaty affected by the decision are also parties to the case before the
Court, or (2) the United States of America specially agrees to
jurisdiction".
The reservation is important in more than the context of the present case,
for it served as the paradigm for reservations later made by other
countries; some of them, however, simpler in that they are less qualified,
but by the same token wider in their effect.
I am unable to accept the argument, nor indeed does the Court appear to
accept, that this reservation is "mere surplusage", and that it does no more
than protect the interests of absent States already protected by Article 59
of the Statute. No doubt both that Article and the reservation are
concerned with States not parties to the case; but I am unable to see how
an instrument which protects those States from being bound by the decision
can be said to cover the same ground as one which reserves jurisdiction
unless those States are parties.
The meaning of the words, "unless all parties to the treaty ... are also
parties to the case before the Court", could hardly be plainer. The prospect
of perhaps some scores of parties to a case may be bizarre; but a State is
clearly entitled to make such a reservation, and the practical result is, no
jurisdiction in the absence of special agreement. There can be no doubt, for
example, that a State may, if it so desires, reserve against any case
whatsoever involving a treaty to which it is party.
The principal, though certainly not the only, difficulty with the United
States multilateral treaty reservation, is the qualifying words, "affected
by the decision". But the difficulty is one of interpretation; and it is one
not very different from the one faced in applications to intervene under
Article 62 of the Statute. In any event, if the reservation may be made
without such a qualification, it may surely be made subject to a
qualification which on any view of its meaning must be a considerable
qualification. As to the possible suggestion that the difficulty of
establishing the right meaning of those words makes the whole reservation so
vague that it can be discarded: this immediately runs into the difficulty
that it would then have to be considered whether, since the reservation
might not be severable, it might render the entire United States acceptance
void; in which case there would clearly be no jurisdiction under Article 36,
paragraph 2, and the other aspects of this question need hardly have been
considered at all (see the [p 555]
individual opinion of Judge Sir Hersch Lauterpacht in Certain Norwegian
Loans, Judgment, I.C.J. Reports 1957, pp. 9 ff., at p. 34, and especially,
pp. 55 ff.).
It is, however, possible to exaggerate the difficulties of the phrase,
"affected by the decision". The United States has indicated which States it
believes are affected; and, having regard to the United States argument
based upon the proposition of collective self-defence, it cannot be said
that this interpretation of the reservation is manifestly an impossible one.
But Nicaragua has in turn made the very important, and very interesting,
counter-argument that its case as stated in the Application is based upon
customary law as well as, perhaps as much as, upon multilateral treaty law.
This raises some fundamental questions about the nature of international
law, and its sources; which is to say that it is a matter of substance. I
fail to see how this question could be fully considered at the present stage
of proceedings. I am, therefore, in agreement with the Court that the
argument based on the multilateral treaties reservation is one which at this
stage should, in the words of Article 79, paragraph 7, of the Court's Rules,
be neither upheld nor rejected, but declared to be an objection which "does
not possess, in the circumstances of the case, an exclusively preliminary
character"; and should be dealt with accordingly in the "further
proceedings" for which the Court will presumably now proceed to "fix
time-limits" in accordance with that paragraph of Rule 79.
***
IV. The Friendship, Commerce and Navigation Treaty of 21 January 1956
Nicaragua, in its Memorial, has alleged breach by the United States of
several articles of this treaty, which is in force: Articles I; XIV (2);
XVII (3); XX ; XIX (1) and (3); and XXI (2). Nicaragua adds that: "The proof
of these violations must await the proceedings on the merits." There is a
jurisdiction clause in Article XXIV (2):
"Any dispute between the Parties as to the interpretation or application of
the present Treaty, not satisfactorily adjusted by diplomacy, shall be
submitted to the International Court of Justice, unless the Parties agree to
settlement by some other pacific means."
This jurisdiction clause is, as a matter of fact, the same, word for word,
as Article XXI (2) of the Treaty of Amity, Economic Relations, and Consular
[p 556] Rights of 1955 between the United States and Iran, on which this
Court relied in the United States Diplomatic and Consular Staff in Tehran
case (I.C.J. Reports 1980, p. 26, para. 50). There the Iranian Government
had refused "to enter into any discussion of the matter". In consequence,
said the Court, there existed
"not only a dispute but, beyond any doubt, a 'dispute ... not
satisfactorily adjusted by diplomacy' within the meaning of Article XXI (2)
of the 1955 Treaty; and this dispute comprised, inter alia, the matters that
are the subject of the United States claims under that Treaty" (ibid., p.
27, para. 51).
In the present case, the United States claims that Nicaragua has made no
attempt to settle the matters, the subject of the application, by diplomacy.
But the qualifying clause in question merely requires that the dispute be
one "not satisfactorily adjusted by diplomacy". Expressed thus, in a purely
negative form, it is not an exigent requirement. It seems indeed to be
cogently arguable that all that is required is, as the clause precisely
states, that the claims have not in fact already been "adjusted" by
diplomacy. In short it appears to be intended to do no more than to ensure
that disputes that have already been adequately dealt with by diplomacy,
should not be reopened before the Court. However that may be, the facts in
the present case disclose that Nicaragua brought the subject of the
application before the Security Council, where they were met with the United
States exercising its veto. The United Nations Organization, not least the
Security Council, must now surely be an orthodox forum for diplomacy. It
would seem, therefore, that the requirements of Article XXIV are most fully
met in this matter.
A crucial aspect for present purposes of the Judgment in the United States
Diplomatic and Consular Staff in Tehran case, however, is the decision
that, whilst the jurisdictional article did not provide in express terms
that either party might bring a case to the Court by unilateral application,
"it is evident, as the United States contended in its Memorial, that this is
what the parties intended" (ibid.). Since the jurisdictional clauses in the
two treaties, the one with Iran and the one with Nicaragua, are identical,
the same conclusion must apply in the present case.
As to making good these allegations, and demonstrating that they cover some,
certainly not all, of the content of the Application: this, as Nicaragua
itself has said, "must await the proceedings on the merits".
Accordingly, although I must dissent on the question of jurisdiction under
Article 36, paragraph 2 and paragraph 5, of the Court's Statute, I am in
agreement with the Court that it does have jurisdiction over the
Application in so far as it may involve the question of alleged breaches of
the [p 557]
Treaty of Friendship, Commerce and Navigation of 1956. Moreover, since the
Treaty is bilateral, this jurisdiction would not involve any effect of the
United States multilateral treaties reservation. It may be a question how
far Nicaragua would be able to bring the series of allegations which form
the gravamen of its Application within the framework of what is essentially
the normal form of commercial treaty; more particularly because of the
possible effect of the "preclusion" provisions of Article XXI, which, inter
alia, provides that the Treaty "shall not preclude" the application of
measures:
"(d) ... necessary to fulfill the obligations of a Party for the
maintenance or restoration of international peace and security, or
necessary to protect its essential security interests".
On the other hand, Nicaragua has itself made clear that it believes that
important aspects of the Application can be brought within the scope of the
Treaty; so jurisdiction under Article XXIV of the Treaty is not unimportant.
For the exercise of jurisdiction over allegations of breaches of specific
provisions of the Treaty, no questions of admissibility appear to arise. And
since in my view the Court does not have jurisdiction in any respect other
than under the Treaty, there is no need to consider the difficult questions
of admissibility further, at this stage.
(Signed)RobertY.Jennings.
[p 558]
Dissenting opinion of judge Schwebel
Table of contents
|
Summary |
Paragraphs |
|
I. |
Introduction |
1-2 |
|
II. |
Questions of Jurisdiction |
|
|
|
|
|
|
A. |
The jurisdictional issues
|
3 |
|
B. |
The question of whether Nicaragua has standing to
maintain claims under the Optional Clause |
|
|
|
|
|
|
1. |
The essence of Nicaragua's claims of standing
|
4 |
|
2. |
The essence of United States denial of Nicaragua's
standing |
5 |
|
3. |
A State could not become party to the Optional Clause
of the Statute of the Permanent Court of International Justice
without being party to its Statute |
6-7 |
|
4. |
Nicaragua never became party to the Protocol of
Signature of the Permanent Court or to its Statute and hence never
was party to the Optional Clause |
8-13 |
|
5. |
The effect of Article 36, paragraph 5, of this
Court's Statute on a declaration which was not binding under the
Statute of the Permanent Court |
14-17 |
|
6. |
The intentions of the drafters of Article 36,
paragraph 5 |
18-24 |
|
7. |
The United States understanding of Article 36,
paragraph 5, on ratifying the Statute and adopting its declaration
under Article
36, paragraph 2 |
25 |
|
8. |
The Court's interpretation of Article 36, paragraph 5
|
26-40 |
|
9. |
The listings in the
Yearbooks
of the Court |
41-47 |
|
10. |
Listings in
Reports
of the Court |
48-52 |
|
11. |
The conduct of the Parties |
53-61 |
|
12. |
Conclusion |
62 |
|
|
|
|
|
|
C The question of whether the Court has jurisdiction
over the United States |
|
|
|
|
|
|
1. |
Jurisdiction under the Optional Clause
|
63 |
|
|
|
|
|
|
(i) The Connally Reservation
|
64-66 |
|
|
(ii) The Vandenberg (Multilateral Treaty) Reservation
|
67-90 |
|
|
(iii) The "1984 notification" of the United States
|
91-116 |
|
|
|
|
|
2. |
Jurisdiction under the Treaty, of Friendship,
Commerce and Navigation |
117-129 |
[p 559]
Summary
Standing of Nicaragua
Nicaragua lacks standing to invoke the Optional Clause not only because it
never has deposited a declaration under Article 36, paragraph 2, of this
Court's Statute, but because it never became party to the Statute of the
Permanent Court of International Justice within the meaning of Article 36,
paragraph 5, of this Court's Statute. The Protocol of Signature of the
Statute of the Permanent Court of International Justice required that it be
ratified and that an instrument of ratification be deposited with the
Secretary-General of the League of Nations. No such deposit was made. Thus
Nicaragua was held by the League Secretariat and Permanent Court of
International Justice Registry never to have become party to the Protocol,
the Optional Clause which was an integral part of that Protocol, or to the
Statute. (Paras. 3-13.)
The intention of the drafters of the Statute of the International Court of
Justice, in respect of Article 36, paragraph 5, was to ensure that
declarations made under Article 36 of the Permanent Court of International
Justice Statute "and which are still in force" shall be deemed to be
acceptances of the compulsory jurisdiction of this Court. The travaux
preparatoires demonstrate that by the term, "still in force" was meant
declarations which bound declarants to the compulsory jurisdiction of the
Permanent Court of International Justice and which remain in force. The
intention was to maintain in effect declarations which were in effect, but
it was not to give effect for the first time to a declaration which, like
Nicaragua's, had never come into force. That meaning is expressed as
precisely by the French text as by the English of Article 36, paragraph 5.
In proposing a drafting amendment to the original text, the French
delegation at San Francisco apparently had not Nicaraguan but French
interests in view, namely, to make it perfectly clear that declarations
which, like the French, had expired, were not embraced by the terms of
Article 36, paragraph 5. Nicaragua's Declaration was not of a duration
which had not expired, because it was never "inspired". (Paras. 14-24.)
The four cases of this Court interpreting Article 36, paragraph 5, show that
the Court has always interpreted that Article only to embrace declarations
which had been binding under the Permanent Court of International Justice
Statute. (Paras. 26-40.) The fact that Nicaragua was listed in the Yearbooks
of this Court as bound by the Optional Clause is not dispositive,
particularly because the listings were accompanied by foot [p 560] notes
which indicated that Nicaragua had not deposited its instrument of
ratification with the League, i.e., that it had not fulfilled a condition
precedent to being covered by Article 36, paragraph 5. Listings in reports
of this Court to the General Assembly and in other publications lead to no
other conclusion. (Paras. 41-52.)
The conduct of Nicaragua, of other States, and of the Court, of its Registry
and the Secretary-General of the United Nations neither establishes nor
confirms that Nicaragua is bound by the Optional Clause. Before these
proceedings, Nicaragua never expressly stated that it believed itself to be
bound. It evaded the clear occasion to do so when Honduras so maintained
during the Arbitral Award Made by the King of Spain on 23 December 1906
case. It rather gave the impression to the United States and Honduras that
it did not believe itself to be bound. Nicaragua never queried or otherwise
reacted to the footnotes in the Yearbook listings. In all, its conduct, and
that of other actors, is neither consistent with nor clearly supportive of
Nicaragua's position. (Paras. 53-61.)
Jurisdiction over the United States
There is ground for questioning whether the United States 1946 adherence to
the Court's compulsory jurisdiction under the Optional Clause is valid, in
view of its self-judging proviso, the "Connally Reservation". But that
ground is not now pursued since the United States does not invoke it.
(Paras. 64-66.)
The Vandenberg "multilateral treaty" Reservation bars the Court from
assuming jurisdiction over the United States in a case in which multilateral
treaties are pleaded and in which all parties to the treaties affected by
the decision are not also parties to the case. It is plain from Nicaragua's
pleadings that Honduras, Costa Rica and El Salvador will necessarily be
affected by the decision in the case. They are not parties. The Court evades
applying the reservation by holdings which conflict with any reasonable
interpretation of its terms and object. However, it is not clear that all of
Nicaragua's claims should be barred, since it invokes customary
international law, which may not be pre-empted on all relevant counts by
the terms of the treaties on which Nicaragua relies. (Paras. 67-90.)
While failing to apply the Vandenberg Reservation, the Court does apply
another provision of the United States Declaration, that requiring it to
give six months' notice of its termination. The Court might be able to
justify so doing if it equally applied the Vandenberg Reservation and other
elements of the United States Declaration.
A considerable case can be made out for the contention that, in view of [p
561] State practice concerning the Optional Clause, all declarants are
entitled to terminate or modify their declarations at any time with
immediate effect. But even if that case is not accepted, and if the United
States rather is held to its six months' notice proviso, it does not follow
that its notification of April 1984 purporting to modify its declaration is
ineffective vis-a-vis Nicaragua. It may be ineffective erga omnes. But since
Nicaragua, by the intendment of its unconditional declaration of 1929, at
any time could terminate (or modify) that declaration with immediate effect,
reciprocally the United States could terminate (or modify) its declaration
with immediate effect. The jurisprudence of the Court in respect of
reciprocity furnishes support for this approach, as do precedents of
termination of acceptances of the Court's jurisdiction. Moreover, the
Indonesian case demonstrates that the United Nations and the Court accepted
Indonesian withdrawal from the Organization and from the Statute on 24
hours' notice, which indicates that such withdrawal from declarations made
under the Statute is permissible. (Paras. 91-116.)
Finally, the Court does not have jurisdiction over the United States in
respect of the claims contained in Nicaragua's Application which alleges
acts of aggression and intervention by the United States on the basis of
the Parties' bilateral Treaty of Friendship, Commerce and Navigation. That
Treaty is a purely commercial agreement, whose terms do not relate to the
use or misuse of force in international relations. Moreover, Nicaragua
failed to comply with the procedural prerequisites of invocation of the
Court's jurisdiction under the Treaty. (Paras. 117-134.)
I. Introduction
1. The Application in this case is without precedent in the history of the
International Court of Justice and the Permanent Court of International
Justice. It is unprecedented in its substance, because never before has a
State come to the Court requesting it to adjudge and declare that another
State has the duty to cease and desist immediately from the use of force
against it. It is procedurally unprecedented as well, and not, of course,
because the defendant, the United States, challenges the jurisdiction of the
Court, for that is the characteristic response of States summoned to this
Court as Defendants. It is procedurally without precedent because the
standing of the Applicant, of Nicaragua itself to maintain suit in reliance
upon the Court's compulsory jurisdiction under the Optional Clause is at
issue; because the United States purports to have modified the scope of its
adherence to the Court's compulsory jurisdiction under the Optional Clause
on which Nicaragua relies before the filing of Nicaragua's Application, so
as to exclude the very class of case brought; and because the United States
further pleads a reservation to the terms of its adherence to [p 562] the
Court's compulsory jurisdiction of a kind which the Court earlier has not
had cause to adjudge. Thus the Court has been faced with multiple
preliminary objections to its jurisdiction and to the admissibility of the
case which it has never passed upon before in the course of its long and
complex history of jurisdictional controversy. The response of the Court to
these objections necessarily is of exceptional importance, not only because
of the significance of the case but because the issues of jurisdiction and
admissibility which it raises have profound implications for the nature and
extent of the Court's jurisdiction and for the character of the Court as the
principal judicial organ of the United Nations.
2. I regret to be obliged to dissent from the Judgment, of the Court, which
I find to be in error on the principal questions of jurisdiction which the
case poses. In view of my conclusion that the Court lacks jurisdiction to
adjudicate upon the merits of the case, I have not found it necessary to set
out my views on questions of admissibility, one or more of which, not
possessing, in the words of Article 79, paragraph 7, of the Rules of Court,
"in the circumstances of the case, an exclusively preliminary character",
may in any event arise at the stage of the merits. Nevertheless, the Court's
Judgment required a separate vote on the admissibility of the Application.
While I do not agree with all of the Court's holdings on admissibility, at
the present stage I do not find the contentions of the United States
concerning the inadmissibility of the case to be convincing. Accordingly, I
have joined the Court in voting that the Application is admissible, by which
I mean that, if the Court had jurisdiction - as in my view it does not - the
case currently would appear to be admissible. I so conclude without
prejudice to any consideration of questions of admissibility which may arise
at the stage of the merits of the case.
II. Questions of Jurisdiction
A. The Jurisdictional Issues
3. The jurisdictional issues in the case turn, first, on whether Nicaragua
has standing to file an Application relying, as it does, on its alleged
acceptance of the compulsory jurisdiction of the Court under Article 36 of
the Statute, by which, Nicaragua has made clear, it means by operation of
Article 36, paragraph 5, of the Statute; second, if it has such standing, on
whether the terms of United States adherence to the Court's compulsory
jurisdiction under the Optional Clause in force on the day on which
Nicaragua filed its Application afford the Court jurisdiction over the
parties and the claims made; and third, on whether, in any event, the Court
has jurisdiction over some or all of Nicaragua's claims by reason of the
fact that Nicaragua and the United States are party to a bilateral Treaty of
Friendship, Commerce and Navigation of 1956, which provides for submission
of disputes as to the interpretation or application of the Treaty, [p 563]
not satisfactorily adjusted by diplomacy, to the Court. Each of these three
large issues in turn subsumes a number of questions, which will be stated
and dealt with in their turn.
B. The Question of Whether Nicaragua Has Standing to Maintain Claims under
the Optional Clause
1. The essence of Nicaragua's claims of standing
4. Nicaragua in its Application refers to the declarations made by Nicaragua
and by the United States "accepting the jurisdiction of the Court as
provided for in Article 36 of the Statute of the International Court of
Justice ..." (introduction) and says no more than: "Both the United States
and Nicaragua have accepted the compulsory jurisdiction of the Court under
Article 36 of the Statute of the Court" (para. 13). While the United States
filed a declaration under Article 36, paragraph 2, on 14 August 1946, which
the United States (and Nicaragua) treat as valid and generally in force,
Nicaragua has never filed a declaration under Article 36, paragraph 2, of
the Statute. It relies on a declaration filed with the Secretary-General of
the League of Nations on 24 September 1929, unconditionally accepting the
jurisdiction of the Permanent Court of Interna-tional Justice without limit
of time, and on the effect of Article 36, paragraph 5, of the Statute,
which reads as follows:
"Declarations made under Article 36 of the Statute of the Permanent Court
of International Justice and which are still in force shall be deemed, as
between the parties to the present Statute, to be acceptances of the
compulsory jurisdiction of the International Court of Justice for the period
which they still have to run and in accordance with their terms."
The rationale of that reliance is summarized by Nicaragua in its Memorial as
follows:
"11. Nicaragua meets the conditions of the Article. It ratified the United
Nations Charter on 6 September 1945 and became an Original Member of the
United Nations on 24 October 1945, when the Charter came into force. Under
Article 93 (1) of the Charter, it automatically became a party to the
Statute of the Court on the same date. On that date, its declaration of 24
September 1929, accepting the compulsory jurisdiction of the Permanent Court
without condition, was in effect. Being of unlimited duration, it had not
expired. Thus, when the Charter and Statute entered into force, that
declaration was, by the terms of Article 36 (5), 'deemed, as between the
parties to the present [p 564] Statute, to be [an] acceptance[] of the
compulsory jurisdiction' of this Court.
12. The result follows from the language of Article 36 (5) and from its
purpose to maintain to the maximum extent the actual and potential
jurisdiction of the Permanent Court for the newly established International
Court of Justice. The construction is confirmed by the jurisprudence of the
Court and by its practice, as well as by the unbroken practice of the
parties to this proceeding and other States over a period of more than 30
years, and by the substantially uniform opinion of the most highly qualified
publicists."
2. The essence of the United States denial of Nicaragua's standing
5. The United States maintains that Nicaragua lacks standing to maintain
its claims, because it has not adhered to the jurisdiction of the Court
under the Optional Clause. Not only has it not done so under Article 36,
paragraph 2; it has not done so by operation of Article 36, paragraph 5,
because the declaration which Nicaragua made on 24 September 1929 accepting
the jurisdiction of the Permanent Court of International Justice never came
into force by reason of Nicaragua's failure to deposit its instrument of
ratification of the Protocol of Signature of the Statute of that Court. That
deposit was a necessary condition of bringing its declaration into force.
Since the declaration - as officially attested by the Registry of the
Permanent Court of International Justice and the Secretariat of the League
of Nations - never came into force, it was never (contrary to the Nicaraguan
Memorial, para. 11) "in effect"; "it had not expired" only because it had
never been inspired. A declaration never in force could not "be deemed" to
be an acceptance of the compulsory jurisdiction of this Court "for the
period which" it "still" has "to run", because, since the Nicaraguan
Declaration never began to run at all, it has no period in which still to
run. The United States maintains that Nicaragua never accepted "nor intended
to accept" any obligation under the Protocol of Signature of the Permanent
Court. "Nicaragua's adherence to the Charter and subsequent conduct cannot
constitute compliance with the requirements of the present Court's Statute
for acceptance of compulsory jurisdiction" (Counter-Memorial, para. 31).
3. A State could not become party to the Optional Clause of the Statute of
the Permanent Court of International Justice without being party to its
Statute
6. On 13 December 1920, the Assembly of the League of Nations by resolution
unanimously declared its approval of the draft Statute of the Permanent
Court of International Justice "for adoption in the form of a [p 565]
Protocol duly ratified..." (P. C.I.J., Series D, No. 1, p. 4). On 16
December 1920, Members of the League signed a Protocol of Signature by which
they declared "their acceptance of the adjoined Statute" of the Court. The
Protocol provided:
"The present Protocol... is subject to ratification. Each Power shall send
its ratification to the Secretary-General of the League of Nations; the
latter shall take the necessary steps to notify such ratification to the
other signatory Powers. The ratification shall be deposited in the archives
of the Secretary of the League of Nations." (Ibid., p. 5, emphasis
supplied.)
The Protocol of Signature had two parts. Section "A" contained the text of
the Protocol itself, part of which has just been quoted. Section "B" of the
Protocol of Signature read as follows:
"B. optional clause
The undersigned, being duly authorized thereto, further declare, on behalf
of their Government that, from this date, they accept as compulsory ipso
facto and without special convention, the jurisdiction of the Court in
conformity with Article 36, paragraph 2, of the Statute of the Court, under
the following conditions:" (Ibid., p. 6.)
Thereafter, the text of the Statute followed (ibid., pp. 7 ff.)
.
7. Thus it will be observed that the Protocol of Signature, in a single
instrument, comprised both the Protocol itself and the form of declarations
by which States could adhere to the Optional Clause. When a State signed a
declaration under the Optional Clause, it signed one section of the Protocol
of Signature, but that declaration did not take effect - it did not bind the
State making it to the Court's compulsory jurisdiction under the Optional
Clause - unless or until that State had ratified the Protocol of Signature
of which the declaration was a part. Article 36, paragraph 2, of the Statute
itself provided that a State could make a declaration accepting the Optional
Clause "either when signing or ratifying the Protocol to which the present
Statute is adjoined, or at a later moment . ..". But it was recognized
throughout the life of the Permanent Court that a State could not become a
party to the Statute unless it became a party to the Protocol; and it could
not become a party to the Optional Clause which was a part of the Protocol
unless it became party to the Protocol. Those conclusions were officially
affirmed more than once by the Legal Adviser of the League of Nations in
communications to various States and with specific reference to Nicaragua
(see the Counter-Memorial of the United States, Anns. 4, 6,12, 23). As
Manley O. Hudson put it in The Permanent Court of International Justice
(1934), page 388:
"Clearly, the 'optional clause' does not stand on any independent basis; it
is only a suggested form of the declaration which Article 36 permits to be
made at the time of signing or ratifying the Protocol of [p 566] Signature
or at a later moment. It is entirely subsidiary to the Protocol of
Signature; a State cannot become a party to the optional clause unless it
has become or becomes a party also to the Protocol of Signature, and a State
which is not effectively a party to the latter does not make a binding
declaration by merely signing the 'optional clause' even without
conditions."
4. Nicaragua never became party to the Protocol of Signature of the
Permanent Court or to its Statute and hence never was party to the Optional
Clause
8. On 24 September 1929, Nicaragua's authorized representative made a
declaration under the Optional Clause in the following terms:
"On behalf of the Republic of Nicaragua I recognize as compulsory
unconditionally the jurisdiction of the Permanent Court of International
Justice." (I.C.J. Yearbook 1982-1983, p. 79 ; Registry's translation from
the French.)
It had not by that date ratified and deposited its instrument of
ratification of the Protocol of Signature of the Court's Statute and so was
not, on making a declaration under the Optional Clause, a party either to
the Statute or to the Optional Clause. On 29 November 1939, Nicaragua, by
telegram, notified the Secretariat of the League of Nations that it had
ratified the Protocol of Signature and that the instrument of ratification
was to follow. In fact, the instrument appears never to have been sent and
certainly never was received by the League of Nations.
9. At the hearings on provisional measures in this case, Nicaragua
endeavoured to give the impression that it had ratified the Protocol and had
sent, or might have sent, the instrument of ratification, maintaining that,
as the Order of the Court of 10 May 1984, at paragraph 19, recounts, "There
are quite obvious reasons why this ratification may not have reached Geneva
at the time". At the hearings at the current stage of the proceedings, the
Agent of Nicaragua indicated that the instrument of ratification, if sent,
may have been lost at sea during the Second World War (Hearing of 8 October
1984). In its Memorial, Nicaragua acknowledges that it never deposited the
instrument of ratification to the Protocol of Signature (e.g., at para. 44,
- "The footnote shows that Nicaragua's failure to deposit its instrument of
ratification of the Protocol of Signature of the Permanent Court was well
known" as well as Annex 1, which declares that "no evidence" has been
uncovered indicating that the instrument of ratification "was forwarded to
Geneva"). Moreover, Nicaragua was officially and specifically informed by
the Acting Legal Adviser of the League of Nations, by letter of 16 September
1942, that the League had never received the instrument of ratification of
the Protocol of Signature, "the deposit of which is necessary to bring the
obligation effectively into [p 567] being. Perhaps that instrument was lost
on the way" (League of Nations Archives, File No. 3C/17664/1589, published
in the United States Counter-Memorial, Ann. 26; translation by this Court's
Registry).
10. Thus the last Yearbook of the Court published before the Second World
War, the Fifteenth Annual Report (June 15th 1938-June 15th 1939), in
recording the facts respecting "the Optional Clause annexed to the Statute
of the Court" (at p. 37), provides a list of 53 "States which had signed the
Optional Clause" (at p. 39). Nicaragua is among them. It further provides a
list entitled: "The following had signed ... but had not ratified the
Protocol of Signature of the Statute" (ibid., p. 40). Nicaragua is among
three States so listed. It finally provides a list of 39 "States bound by
the Clause" on 15 June 1939 (ibid.). Nicaragua is not on that list. It was
this Yearbook to which the delegates at the San Francisco Conference on
International Organization could have had recourse when they amended and
adopted what was the Statute of the Permanent Court to transform it into the
Statute of the International Court of Justice. The Sixteenth Report (June
15th 1939-December 31st 1945), published after the San Francisco Conference,
records, with respect to "The special protocol, annexed to the 'Protocol of
Signature of the Statute'... known as the 'Optional Clause' " similar data.
There is a list of States which had signed the Optional Clause "but had not
ratified the Protocol of Signature of the Statute" and Nicaragua is on that
list (p. 50). There is a list of "States bound by the Clause" and Nicaragua
is not on that list (ibid.). A footnote to the entry concerning Nicaragua,
however, refers to page 331, where the following information is recorded:
"3. Protocol of signature of the statute of the court
Geneva, December 16th, 1920
According to a telegram dated November 29th, 1939, addressed to the League
of Nations, Nicaragua had ratified the Protocol, and the instrument of
ratification was to follow. The latter however has not yet been deposited."
11. The publication of these entries in the same Yearbook demonstrates the
continuing conclusion, which the law of treaties and the provisions of the
Protocol dictated and of which Nicaragua had been officially informed, that
the sending of a telegram announcing ratification of the Protocol coupled
with failure to deposit the instrument of ratification of the Protocol with
the Secretary-General of the League, could not constitute Nicaragua a party
to the Protocol, to the Statute or to the Optional Clause of the Court. It
is incontestable that, in the consistent interpretation of the Registry of
the Court as well as the Secretariat of the League which had mandatory
depositary functions in respect of the Protocol, Nicaragua never became
party to the Protocol ; hence, never party to the Statute; [p 568] hence,
never party to the Optional Clause of the Statute, by which Statute and
Clause Nicaragua never was in the definitive term officially employed -
"bound".
12. The conclusion that Nicaragua was never bound was in accordance with the
jurisprudence of the Court. Thus, in the case relating to the Territorial
Jurisdiction of the International Commission of the River Oder, P.C.I.J.,
Series A, No. 23, the question arose of the effect of the Barcelona
Convention of 20 April 1921 relating to the regime of navigable waterways of
international concern. The Court observed that that Convention contained
provisions
"differing in no way from the clauses generally inserted in international
conventions of this natur ; such provisions clearly make the coming into
force of the Convention as regards each of the Parties depend upon
ratification" (at p. 21).
Thus the Court in respect of a convention which, just as the Court's
Protocol of Signature provided, specified that it is "subject to
ratification", whose instrument of ratification "shall be transmitted to the
Secretary-General of the League of Nations, who will notify the receipt" to
other signatories, held that a convention which a State had not ratified had
not come "into force" for it. Appraising this and other cases, Dr. Hans Blix
concluded that,
"what the courts have established with increasing clarity is merely that in
law the procedure of ratification is not a ceremonial formality but an act
by which a State becomes bound by a treaty" ("The Requirement of
Ratification", British Year Book of International Law 1953 (1954), pp. 352,
370).
Dr. Blix observed that
"there is no doubt that if an international agreement expressly stipulates
for entry into force by signature or ratification or some other manner, the
prescribed procedure must be complied with" (ibid., p. 352).
The reason is that: "Parties to international compacts must know when they
become irrevocably bound by the compacts." (Ibid., p. 356.) That
contemporary international law on this question is what the Court in the
Territorial Jurisdiction of the International Commission of the River Oder
case held it to be is demonstrated by the terms of Article 14 of the Vienna
Convention on the Law of Treaties, which provides that:
"1. The consent of a State to be bound by a treaty is expressed by
ratification when :
(a) the treaty provides for such consent to be expressed by means of
ratification ; ..."
[p 569]
Article 16 of the Vienna Convention further provides that instruments of
ratification
"establish the consent of a State to be bound by a treaty upon:
(a) their exchange between the contracting States;
(b) their deposit with the depositary; or
(c) their notification to the contracting States or to the depositary, if so
agreed".
In the case before the Court, it could not be clearer that it was never
agreed that notification by Nicaragua would suffice. On the contrary,
deposit of the instrument of ratification was required by the Protocol of
Signature and insisted upon by the depositary who, in default of deposit,
notified Nicaragua that it was not bound.
13. However, while it cannot be denied - and Nicaragua itself does not deny
- that its Declaration of 1929 never bound it to the compulsory jurisdiction
of the Permanent Court of International Justice (and this fact is repeatedly
recognized by the Court in today's Judgment), Nicaragua maintains that the
matter does not rest there. While it did not do so at the stage of
provisional measures, it now contends that its ratification of the United
Nations Charter and its appended Statute of this Court was sufficient to
give life to a declaration which otherwise had been and remained
inoperative. The Court, in its Order of 10 May 1984, and I, in my dissent to
that Order, were prepared to consider that argument as affording a possible
basis for the Court's jurisdiction in this case. But while the Court now
accepts that argument as affording a definitive basis of jurisdiction, on
analysis which the time afforded at the stage of provisional measures did
not admit, I have concluded that that argument is utterly inadequate. Nor do
I accept the allied argument that the conduct of this Court and its Registry
and of the United Nations, and of Nicaragua and other States, endows
Nicaragua with a standing and the Court with a jurisdiction which the
operation of the provisions of Article 36, paragraph 5, does not engender.
5. The effect of Article 36, paragraph 5, of this Court's Statute on a
declaration which was not binding under the Statute of the Permanent Court
14. Nicaragua concedes that its 1929 Declaration, at the time immediately
prior to its ratification of the United Nations Charter, lacked "binding
force" (Nicaraguan Memorial, para. 178, E). The Court, in paragraph 26 of
today's Judgment, holds that "the declaration made by Nicaragua in 1929 had
not acquired binding force prior to such effect as Article 36, paragraph 5,
of the Statute of the International Court of Justice might [p 570] produce".
The critical question accordingly is: despite the acknowledged fact that
Nicaragua's 1929 Declaration lacked binding force, is it a declaration
which, in the terms and meaning of Article 36, paragraph 5, of the Statute,
was "made under Article 36 of the Statute of the Permanent Court of
International Justice and which" is "still in force"?
15. Nicaragua maintains that Article 36, paragraph 5:
"does not speak of parties to the Statute of the Permanent Court but of
declarations accepting its jurisdiction. Such a declaration made by a State
not a party to the Statute and that by its terms had not expired was a
declaration 'in force'... it 'remained in an imperfect but not invalid
state'; ... The effect of Article 36 (5), in the case of Nicaragua, was to
make its ratification of the Statute of this Court... the equivalent of
ratification of the old Statute - the act that perfected the declaration...
That is the significance of the use of the language 'deemed... to be
acceptances of the compulsory jurisdiction of the International Court of
Justice ...' " (Memorial, paras. 13, 14.)
Does this imaginative construction of Article 36, paragraph 5, withstand
analysis?
16. In the first place, it is beyond dispute that, in the understanding of
international law, "in force" means, and equates with, "bound". One need
look no further than the provisions of the Vienna Convention on the Law of
Treaties, Articles 2(1) (b), 24,25 and 84. Article 24 in particular makes it
crystal clear that a "treaty enters into force as soon as consent to be
bound by the treaty has been established ...". As the late Sir Humphrey
Waldock put it, in his capacity of Special Rapporteur of the International
Law Commission on the law of treaties, "the basic rule" is that "the entry
into force of the treaty automatically makes it binding upon the parties"
(Yearbook of the International Law Commission, 1962, Vol. II, p. 71). It is
undeniable that an instrument of ratification establishing Nicaragua's
consent to be bound by the Statute of the Permanent Court was never received
by the depositary; rather, its failure to become so bound was established by
the depositary, the Secretary-General of the League of Nations, and by that
Court's Registry ; consequently, the Statute of the Permanent Court never
entered into force for it. The question which then arises is: despite that
conclusion of fact and law, did its declaration accepting the jurisdiction
of the Permanent Court enter into force?
17. To answer that question requires a review of the drafting history of
Article 36, paragraph 5, and of the meaning attached to that article by
those who were concerned with its acceptance, and, as well, of the
judgments of this Court interpreting Article 36, paragraph 5. It also
requires a consideration of the effect of the treatment of Nicaragua's
Declaration of [p 571] 1929 in the Yearbooks of the two Courts, the Reports
of this Court to the General Assembly, and elsewhere, and of the conduct of
the Parties.
6. The intentions of the drafters of Article 36, paragraph 5
18. In the eyes of the drafters of the Statute of the Court, what was
Article 36, paragraph 5, designed to achieve? The Committee of Jurists
which, in preparation for the San Francisco Conference, met in Washington
on 14 April 1945, had before it the following observation of the United
Kingdom:
"One question which will arise in connection with Article 36, is what action
should be taken concerning the existing acceptances of the 'optional
clause', by which a number of countries have, subject to certain
reservations, bound themselves to accept the jurisdiction of the Court as
obligatory. Should these acceptances be regarded as having automatically
come to an end or should some provision be made for continuing them in force
with perhaps a provision by which those concerned could revise or denounce
them." (Documents of the United Nations Conference on International
Organization, San Francisco, 1945, Vol. XIV, p. 318; emphasis supplied.)
In response, the subcommittee took a straightforward position:
"The subcommittee calls attention to the fact that many nations have
heretofore accepted compulsory jurisdiction under the 'optional clause'. The
subcommittee believes that provision should be made at the San Francisco
Conference for a special agreement for continuing these acceptances in force
for the purpose of this Statute." (Ibid., p. 289; emphasis supplied.)
Let us apply these seminal statements of the purpose of what came to be
Article 36, paragraph 5, to the facts and question at issue. The intention
of the drafters of Article 36, paragraph 5, in addressing existing
acceptances under the Optional Clause by which States were "bound", was to
deal with the fact that "many nations have heretofore accepted compulsory
jurisdiction under the 'Optional Clause' ". It was clear that Nicaragua was
not among such nations. It was clear by, inter alia, the terms of the
Yearbook of the Permanent Court, which listed Nicaragua as a State which was
not bound by compulsory jurisdiction under the Optional Clause (supra, para.
11). Moreover, the Committee of Jurists contemplated that what came to be
Article 36, paragraph 5, would be tantamount to a special agreement
"continuing these acceptances in force for the purpose of this Statute".
That phrase imports that declarations, to be continued in force, were in
force. Nicaragua's was not.
19. In pursuance of this purpose of the Committee of Jurists, a Report of 31
May 1945 to Commission IV (Judicial Organization) of the San Francisco
Conference proposed to add to Article 36 of the Statute the following
provision:[p 572]
"Declarations made under Article 36 of the Statute of the Permanent Court
of International Justice and which are still in force shall be deemed as
between the parties to the present Statute to have been made under this
Article and shall continue to apply, in accordance with their terms."
(Documents of the United Nations Conference on International Organization,
Vol. XIII, p. 558.)
With reference to a text of this substance, the British representative at
San Francisco three days earlier had said:
"If the Committee decides to retain the optional clause, it could provide
for the continuing validity of existing adherences to it. Since forty
members of the United Nations are bound by it, compulsory jurisdiction would
to this extent be a reality." (Ibid., p. 227 ; emphasis supplied.)
Thus it appears that what was sought was the "continuing validity" of
adherences by which States were "bound" under the Statute of the Permanent
Court. At that juncture, the corresponding French text of what came to be
Article 36, paragraph 5, read:
"Les declarations encore en vigueur, faites en application de l'article 36
du Statut de la Cour permanente de Justice internationale seront
considerees, en ce qui concerne les rapports reciproques des parties au
present Statut, comme ayant ete faites en application du present article, et
continueront ΰ s'appliquer, conformement aux conditions qu'elles stipulent."
(Ibid., p. 565.)
Thereafter, on 5 June 1945, the French representative proposed the
following alternative wording:
"Les declarations faites en application de l'article 36 du Statut de la Cour
permanente de Justice internationale pour une duree qui n'est pas encore
expiree seront considerees, dans les rapports entre parties au present
Statut, comme comportant acceptation de la juridiction obligatoire de la
Cour internationale de Justice pour la duree et dans les conditions
exprimees par ces declarations." (Ibid., p. 486.)
The "Proposals by the Delegation of France Relating to Article 36 of the
Statute of the International Court of Justice" which have just been
reproduced in their French version were duplicated in the English text
proposed by France as follows:
"Declarations made under Article 36 of the Statute of the Permanent Court
of International Justice and which are still in force shall be deemed, as
between the parties to the present Statute, as including acceptance of
compulsory jurisdiction of the International Court of Justice for the time
and under the conditions expressed in these declarations." (Ibid., p. 485.)
The French representative, who thus proposed (on the point at issue in the
[p 573] instant case) to maintain the English text unchanged, on 7 June 1945
understandably explained his proposed recasting of the French text only of
Article 36, paragraph 5 - then numbered as Article 36, paragraph 4 as
follows:
"The French Representative stated that the changes suggested by him in
paragraph (4) were not substantive ones, but were intended to improve the
phraseology." (Ibid, pp. 284, 290.)
The Committee at the meeting of 7 June thereupon unanimously adopted the
text of Article 36, paragraph 5, in the terms in which they appear in the
Statute (ibid., p. 284). The relevant report of 9 June 1945 observes:
"In a sense... the new Court may be looked upon as the successor to the old
Court which is replaced. The succession will be explicitly contemplated in
some of the provisions of the new Statute, notably in Article 36, paragraph
4, and Article 37. Hence, continuity in the progressive development of the
judicial process will be amply safeguarded.
A new paragraph 4 [now 5] was inserted to preserve declarations made under
Article 36 of the old Statute for periods of time which have not expired,
and to make these declarations applicable to the jurisdiction of the new
Court." (Ibid, pp. 307, 314, 328.)
The French text of that latter passage reads:
"On a insere un nouveau paragraphe 4 afin de maintenir les declarations
formulees d'aprθs l'article 36 de l'ancien Statut pour des periodes qui
n'ont pas encore expire et pour rendre ces declarations applicables ΰ la
juridiction de la nouvelle Cour." (Ibid., p. 348.)
Thereafter, the text of Article 36, paragraph 5, remained unchanged. Little
further light is shed upon its meaning by the San Francisco travaux
preparatoires.
20. However, the illumination provided by the San Francisco proceedings is
bright enough. For it is clear that the new paragraph, as the San Francisco
records state, "was inserted to preserve declarations made under Article 36
of the old Statute for periods of time which have not expired, and to make
these declarations applicable to the jurisdiction of the new Court"
(emphasis supplied). The purpose of Article 36, paragraph 5, was not to
invest nugatory declarations which were never in effect with initial force,
it was "to preserve" declarations in force under the Permanent Court for the
new Court - declarations by which States were, as the Committee of Jurists
put it, "bound".
21. Moreover, the French text of Article 36, paragraph 5, was designed, and
was clearly stated by its author to be, substantively identical to the [p
574] English. Indeed, France itself apparently proposed to maintain the
English text as it was, and this was accepted. Article 36, paragraph 5, was
initially a British proposal. France proposed a revised text which it
indicated was substantively the same as the English. The motivations of the
French amendment are not altogether clear. The Court appears to believe that
its purpose was, by the operation of Article 36, paragraph 5, to maintain in
force not only declarations of the Permanent Court which were in force, but
to give effect to declarations which had been made but which never had come
into force. It seems likelier that the French amendment may have been
stimulated by the perception that the phrase in English, "and which are
still in force" initially translated "encore en vigueur" (a phrase which,
as the Nicaraguan Memorial points out at paragraph 17 is characteristic of
treaty usage but not declarations which are "unilateral acts") would be
more precisely translated if "still in force" were rendered "pour une duree
qui n'est pas encore expiree" because the latter phrase emphasized the
continuing validity of declarations which had not yet expired. But that
change did not change the meaning of the English text so as to embrace
declarations which had never come into force, because a declaration of a
duration which has not yet expired must nevertheless be a declaration which
initially was "inspired". The French text may well have been meant to make
the clearer that declarations in force under the Permanent Court's Statute
which have not by their terms expired should be "preserved" (as it was put
in the English text of the rapporteur's report) or "maintained" ("afin de
maintenir") as it was put in the French, but there is no indication of the
French amendment being designed to give life to a declaration which had
never come into force. The Nicaraguan Memorial argues, in paragraph 48, that
there was in fact only one such declaration, that of Nicaragua. Can it be
plausibly maintained that the object of the French amendment was to give
force for the first time to Nicaragua's 1929 Declaration ? Or may it be more
plausibly argued that France had French, rather than Nicaraguan, interests
in view ?
22. The true clue to the object of the French delegation in proposing its
amendment to the French text of Article 36, paragraph 5, may be found in the
joint dissent of three judges of this Court in the Aerial Incident case, the
probative passage from which is quoted below at paragraph 34. That passage
infers that France moved its amendment in order to make clear beyond a doubt
that Article 36, paragraph 5, did not embrace declarations of a duration
which had expired. France's declaration was precisely of that character. On
the day in San Francisco on which France moved its amendment, there was no
French Declaration still in force which had been made under Article 36 of
the Statute of the Permanent Court. There was no French Declaration "en
application de l'article 36 du Statut de la Cour permanente de Justice
internationale pour une duree qui n'est pas encore expiree", for the
pertinent reason that the last French Declaration under the Permanent
Court's Statute had been renewed for five years, from 25 [p 575] April 1936
(P.C.I.J., Fifteenth Annual Report, p. 221). Accordingly it had expired in
1941. Apparently France did not wish the possibility to remain of its being
revived by the operation of Article 36, paragraph 5, and to make that point
still clearer it was clear in the English text and the original French but
not so precisely and fully expressed in the original French as it was by the
terms of the French amendment France moved its amendment. This
explanation, while not certain, surely is far more plausible and probable
- than that advanced by Nicaragua and accepted by the Court.
23. While it is clear that the intention at San Francisco in drafting
Article 36, paragraph 5, was to preserve declarations under the Statute of
the Permanent Court which were in force, the French text of the Article is,
with some strain, capable of the broader interpretation which the Court
gives it, namely, that it is meant to give force to declarations which by
their own terms had not expired (even if they never had come into force).
The French text is also more than capable of supporting the narrower
interpretation set out in the preceding paragraphs, which is fully
consistent with the English text; and, since the original English text
remained unchanged, since it was indeed apparently accepted by the French
delegation itself as the correct English version of its own amendment, and
since the French representative declared that his amendment was not
substantive, there is every reason to conclude that France itself attached
the narrower inter-pretation to what it described as an amendment designed
"to improve the phraseology". But let us assume, arguendo, what has not been
and cannot be shown, namely, that the broader meaning is the meaning which
France meant to attach to Article 36, paragraph 5. Under the law of
treaties, where two authoritative texts in two languages differ, which is to
be taken as governing ? Article 33, paragraph 4, of the Vienna Convention on
the Law of Treaties provides that,
"when a comparison of the authentic texts discloses a difference of
meaning..., the meaning which best reconciles the texts, having regard to
the object and purpose of the treaty, shall be adopted".
Now it has been shown that the object and purpose of Article 36, paragraph
5, of the Statute was to "continue" or to "preserve" declarations made under
the Optional Clause of the Statute of the Permanent Court by which States
party to that Statute were "bound" (supra, para. 18). That is, the object
and purpose are expressed by the narrower interpretation only. Moreover, if
one takes the narrower ground which is held by the English text, it is also
quite reasonably understood to be held by the French text; that is to say,
both texts can be "best reconciled" on this narrower ground. But if one
ascribes the broader interpretation to the French text, then one must leave
the English text - not to speak of the texts in the three other [p 576]
authentic languages, the Spanish of which was attached to Nicaragua's
ratification out of account. For it is undeniable that the meaning which
attaches to the English text, and to the Spanish, Russian and Chinese texts,
is that Article 36, paragraph 5, encompasses only declarations which are
"still" in force, a term which surely imports that such declarations came
into force in the first place. Accordingly, by dint of application of the
rules of the law of treaties governing interpretation of different language
texts, it is not possible to sustain the contention that Article 36,
paragraph 5, was meant to give force to ineffective declarations.
24. In sum, the San Francisco proceedings do not support two key contentions
of Nicaragua in respect of Article 36, paragraph 5: the purpose of that
provision was not, as Nicaragua's Memorial contends, "to maintain to the
maximum extent the actual and potential jurisdiction of the Permanent Court"
but only its actual jurisdiction; and that purpose is expressed as precisely
by the French text, which must on this issue be read consistently with the
English to relate only to declarations which were in force under the Statute
of the Permanent Court, i.e., declarations which bound the declarant States,
of which Nicaragua was not one.
7. The United States understanding of Article 36, paragraph 5, on ratifying
the Statute and adopting its declaration under Article 36, paragraph 2
25. The United States, in ratifying the Statute, and in adhering to the
Optional Clause, interpreted Article 36, paragraph 5, as embracing only
those declarations which were in force under the Statute of the Permanent
Court. The United States further appears to have understood that Article 36,
paragraph 5, did not embrace Nicaragua's Declaration of 1929. These
conclusions are supported by the following passages from the United States
Counter-Memorial:
"79. The United States understanding, both at the San Francisco Conference
and in making its own declaration for the new Court under Article 36 (2),
was also that Article 36 (5) applied only to declarations in force for the
Permanent Court. The United States specifically understood that Nicaragua
was not one of those States that would be deemed to have accepted this
Court's compulsory jurisdiction for purposes of reciprocity under Article 36
(2).
80. The United States delegation to the San Francisco Conference reported
the proceedings to the President on 26 June 1945, and a copy of this report
was submitted to the Senate on 9 July 1945. The Report described Article 36
(5) as 'maintaining in force with respect to the new Court, declarations
made under the old Statute whereby many states [p 577] accepted the
compulsory jurisdiction of the old Court'. Report to the President, at p.
124 (italics added).
81. Green H. Hackworth, the principal legal adviser to the U.S. delegation
at San Francisco and later a member of this Court, described Article 36 (5)
in similar terms. In testimony before the Senate Foreign Relations Committee
in 1945 as it considered United States membership in the United Nations,
Judge Hackworth explained that Article 36 (5) was intended to address the
concern that
'states that had accepted compulsory jurisdiction under the present Court
[the Permanent Court] would no longer be bound by their acceptance if a new
Court were set up. That was taken care of by a provision in the Statute in
article 36, that those states which had accepted compulsory jurisdiction for
the Permanent Court of International Justice would now substitute the
proposed International Court under the same terms.' Report to the President,
at p. 338 (italics added).
82. In the Senate hearings the following year on whether the United States
should accept the Court's compulsory jurisdiction, this understanding was
made even more explicit. Charles Fahy, then Legal Adviser to the Department
of State, and, as Solicitor General of the United States, formerly a member
of the United States delegation to San Francisco, told the Senate Foreign
Relations Committee that the proposed United States declaration would be
made only on condition of reciprocity:
'As to particular states I think the situation as you point out is clear,
that this resolution makes our declaration reciprocal; that is, only with
respect to states which accepted similar jurisdiction. Declarations of the
following 19 states thus came into force: Australia, Bolivia, Brazil,
Canada, Colombia, Denmark, Dominican Republic, Haiti, India, Iran,
Luxembourg, Netherlands, New Zealand, Norway, Panama, El Salvador, South
Africa, United Kingdom, Uruguay ...' {Hearings before a Subcommittee of the
Committee on Foreign Relations of the United States Senate on S. Res. 196,
77th Cong., 2d Sess. July 11, 1946, pp. 141-142.)
83. The second paragraph quoted here, which listed 'the 19 [States] ...
whose declarations continue in force', described the class of States which
by virtue of Article 36 (5) could satisfy the requirement of reciprocity in
the proposed United States declaration. Nicaragua was not included among
these States ...
84. In its Report approving the proposal for a United States [p 578]
declaration under article 36 (2), the Senate Foreign Relations Committee
also adopted this view of Article 36 (5). The Report stated:
'The San Francisco Conference added an additional paragraph to article 36 of
the statute, according to which declarations accepting the jurisdiction of
the old Court, and remaining in force, are deemed to remain in force as
among the parties to the present statute for such period as they still have
to run. Nineteen declarations are currently in force under this provision.'
(Report of the Senate Committee on Foreign Relations on Compulsory
Jurisdiction of the International Court of Justice, S. Rept. No. 1835, 79th
Cong., 2d Sess. at p. 105 (25 July 1946) (italics added).)
85. In sum, the United States delegation to San Francisco, the Department of
State, and the Senate all understood (a) that Article 36 (5) applied only to
declarations that were in force under the Permanent Court's Statute as of
the date of adherence to this Court's Statute and (2) that Nicaragua's
declaration did not fall within this category."
8. The Court's interpretation of Article 36, paragraph 5
26. Article 36, paragraph 5, has been directly interpreted or incidentally
addressed, in four prior judgments of this Court. None of them support
Nicaragua's thesis that its ratification of the Statute of this Court - or
relevant conduct - operated to perfect and give legal force to its
Decla-ration of 1929. Rather, the terms and tenor of those judgments
indicate the contrary.
27. The principal judgment in point was given in the case concerning the
Aerial Incident of 27 July 1955 (Israel v. Bulgaria), Preliminary
Objections, Judgment, I.C.J. Reports 1959, page 127. Israel relied on
Bulgaria's Declaration of 29 July 1921, which had come into force under the
Statute of the Permanent Court (ibid., p. 129). Bulgaria objected that
Article 36, paragraph 5, was inapplicable to it (ibid., p. 131). The Court
found for Bulgaria on the ground that, by the time that it joined the United
Nations in 1955 and became party to the Court's Statute, the Permanent Court
had ceased to exist and a declaration in force vis-ΰ-vis that Court could
not be revived to apply to this Court. In so holding, the Court declared:
"Article 36, paragraph 5, considered in its application to States
signatories of the Statute, effects a simple operation: it transforms their
acceptance of the compulsory jurisdiction of the Permanent Court into an
acceptance of the compulsory jurisdiction of the International Court of
Justice." (Ibid., p. 137; emphasis supplied.)[p 579]
It continued:
"Article 36, paragraph 5, governed the transfer from one Court to the other
of still-existing declarations; in so doing, it maintained an existing
obligation while modifying its subject-matter." (I.C.J. Reports 1959, p.
138; emphasis supplied.)
The Court further explained the meaning of Article 36, paragraph 5, in these
terms:
"Consent to the transfer to the International Court of Justice of a
declaration accepting the jurisdiction of the Permanent Court may be
regarded as effectively given by a State which, having been represented at
the San Francisco Conference, signed and ratified the Charter and thereby
accepted the Statute in which Article 36, paragraph 5, appears ...
The declarations to which Article 36, paragraph 5, refers created for the
States which had made them the obligation to recognize the jurisdiction of
the Permanent Court of International Justice. At the time when the new
Statute was drawn up, it was anticipated and events confirmed this that
the Permanent Court would shortly disappear and these undertakings
consequently lapse. It was sought to provide for this situation, to avoid,
as far as it was possible, such a result by substituting for the compulsory
jurisdiction of the Permanent Court, which was to come to an end, the
compulsory jurisdiction of the International Court of Justice. This was the
purpose of Article 36, paragraph 5. This provision effected, as between the
States to which it applied, the transfer to the new Court of the compulsory
jurisdiction of the old. It thereby laid upon the States to which it applied
an obligation, the obligation to recognize, ipso facto and without special
agreement, the jurisdiction of the new Court. This constituted a new
obligation which was, doubtless, no more onerous than the obligation which
was to disappear but it was nevertheless a new obligation." (Ibid., pp.
142-143; emphasis supplied.)
28. These quotations demonstrate that the Aerial Incident case strikingly
and decisively cuts against Nicaragua's thesis. If, as the Court there said,
the purpose of Article 36, paragraph 5, is to transform "acceptance of the
compulsory jurisdiction of the Permanent Court into an acceptance of the
compulsory jurisdiction" of this Court, then Nicaragua is excluded by the
fact that it never accepted the former's compulsory jurisdiction. When this
Court speaks of "acceptance of" its compulsory jurisdiction, it means
"binding itself to" this Court's jurisdiction. Can it be seriously
maintained that what the Court means when it speaks of "acceptance" of its
compulsory jurisdiction, or "acceptance" of the Permanent Court's
jurisdiction, is something less, such as non-acceptance? Thus, when the
Court says, as it did in the Aerial Incident case, that Article 36,
paragraph 5, effects a simple [p 580] operation: it "transforms ...
acceptance of the compulsory jurisdiction of the Permanent Court into an
acceptance of the compulsory jurisdiction of" this Court, the Court could
only have meant that Article 36, paragraph 5, exclusively referred to
declarations made under the Statute of the Permanent Court which accepted,
that is, bound the declarant to, that Court's compulsory jurisdiction. If,
as the Court in Aerial Incident held, Article 36, paragraph 5, "maintained
an existing obligation", there must have been an obligation in existence.
But Nicaragua had no obligation in existence in respect of the Permanent
Court's jurisdiction, and it has acknowledged that fact. If, again, as the
Court says, the declarations to which Article 36, paragraph 5, refers
created "the obligation to recognize the jurisdiction of the Permanent
Court..." then Nicaragua is outside the reach of that provision since it
never undertook an obligation to recognize the jurisdiction of that Court.
If the purpose of Article 36, paragraph 5, was, as the Court says, "to
substitute" for the compulsory jurisdiction of the Permanent Court the
compulsory jurisdiction of this Court, Nicaragua is excluded by reason of
not having effectively adhered to the compulsory jurisdiction of the
Permanent Court. If its purpose, as the Court says, was to "transfer to the
new Court... the compulsory jurisdiction of the old", then Nicaragua fails
by reason of its failure to adhere to that older jurisdiction.
29. The Court added:
"the clear intention which inspired Article 36, paragraph 5, was to continue
in being something which was in existence, to preserve existing acceptances,
to avoid that the creation of a new Court should frustrate progress already
achieved; it is not permissible to substitute for this intention to
preserve, to secure continuity, an intention to restore legal force to
undertakings which have expired: it is one thing to preserve an existing
undertaking by changing its subject-matter; it is quite another to revive an
undertaking which has already been extinguished" (I.C.J. Reports 1959, p.
145).
Thus the Court emphasized preservation, continuity. It excluded reviving an
undertaking which has already been extinguished. How then can Article 36,
paragraph 5, be interpreted to give life to an undertaking which never came
into force at all?
30. In view of these holdings of the Court in the Aerial Incident case, it
is remarkable to find that the Court's Order of 10 May 1984 relies on this
case and some of these very passages (it cites p. 142 of the Judgment) to
conclude that the absence of Nicaragua's "effective ratification" of the
Permanent Court's Protocol of Signature may not have excluded the operation
of Article 36, paragraph 5, that it may not have prevented the transfer to
the present Court of its 1929 Declaration "as a result of the [p 581]
consent" thereto of Nicaragua by its acceptance of this Court's Statute
including Article 36, paragraph 5 (Order of 10 May 1984, I.C.J. Reports
1984, p. 179, para. 25). Since the Court's holdings in the Aerial Incident
case run counter to the thrust of the Court's Order of 10 May 1984, one is
entitled to ask: on what basis does the Court there rely upon and
specifically cite the Aerial Incident Judgment? Moreover, today's Judgment,
while endeavouring to distinguish the facts at bar in the Aerial Incident
case from the instant case, renews (with a suggestive lack of vigour) its
reliance upon the Judgment in the Aerial Incident case and so gives fresh
point to this question. The most one can do in Nicaragua's support is to
take out of context a few passages, notably, as the Court does, a single
sentence found on page 142 of the Judgment:
"Consent to the transfer to the International Court of Justice of a
declaration accepting the jurisdiction of the Permanent Court may be
regarded as effectively given by a State which, having been represented at
the San Francisco Conference, signed and ratified the Charter and thereby
accepted the Statute in which Article 36, paragraph 5, appears."
But it is absolutely clear that, by this, the Court meant a declaration
accepting the jurisdiction of the Permanent Court which was in force under
the Statute of that Court. Why? Not only because Article 36, paragraph 5,
says so in those terms, but because the Court says so, and on the very same
page:
"The declarations to which Article 36, paragraph 5, refers, created for the
States which had made them the obligation to recognize the jurisdiction of
the Permanent Court of International Justice." (I.C.J. Reports 1959, pp.
142-143.)
Now it is admitted on all sides, including that of Nicaragua, that its
Declaration of 1929 never imposed on Nicaragua "the obligation to recognize
the jurisdiction of the Permanent Court of International Justice".
31. In this regard, it is instructive to observe that counsel for Nicaragua
have conceded that the Court's Judgment in the Aerial Incident case does not
support Nicaragua's thesis. That is to say, Nicaragua's own counsel have in
effect concluded that any reliance by this Court in this case on the
Judgment in that case would be misplaced. Thus Professor Chayes declared
that:
"the majority opinion in Aerial Incident really has no significance at all
for the present dispute ... Nothing in the opinion, either in holding or in
considered obiter dictum, excludes or is even faintly inconsistent with the
position taken by Nicaragua: namely, that its declaration was 'in force'
within the meaning of Article 36 (5) when Nica-[p582]ragua became an
original Member of the United Nations in 1945." (Hearing of 8 October 1984.)
Now Professor Chayes is plainly wrong in arguing that nothing in the
majority opinion "is even faintly inconsistent" with the position taken by
Nicaragua : that has been shown by the foregoing quotations from the Court's
Judgment. But that is beside the immediate point, which is : was and is the
Court justified in relying on or citing the Court's Judgment in the Aerial
Incident case as support for the Article 36, paragraph 5, thesis that is
made out in Nicaragua's favour ? Nicaragua's distinguished counsel
recognizes that it was and is not justified when he affirms that that
opinion has "no significance at all for the present dispute ...".
32. Professor Chayes continues that, "The matter is different with the
dissenters" (ibid.). He points out that the joint dissenting opinion in the
Aerial Incident case of Judges Sir Hersch Lauterpacht, Wellington Koo and
Sir Percy Spender maintained that the purpose of Article 36, paragraph 5,
was "to ensure continuity between the old Court and the new" and "to
preserve to the greatest extent possible... the state of affairs with
respect to compulsory jurisdiction that existed under the Permanent
Court..." (ibid.). In this, he is quite right. But for the reasons set out
above, this does not advance his case.
33. The joint dissenting opinion held :
"The formal and, in effect, insignificant changes in the Statute of the new
Court were not to be permitted to stand in the way of the then existing
compulsory jurisdiction of the Permanent Court being taken over by the
International Court. It was specifically contemplated that the continuity of
the two Courts should be given expression by recognizing the continuity of
the compulsory jurisdiction at that time existing." (I.C.J. Reports 1959, p.
159.)
Thus the dissenters affirmed that the intention of Article 36, paragraph 5,
was to do no more than transfer "the then existing compulsory jurisdiction
of the Permanent Court" (by which Nicaragua had never accepted to be bound).
They further recalled that Article 36, paragraph 5, stemmed from a British
proposal to "provide for the continuing validity of existing adherences" to
the compulsory jurisdiction of the Permanent Court (ibid., p. 160).
Nicaragua had no such adherence. The object of Article 36, paragraph 5, as
the dissenters saw it, was that none of the "existing declarations of
acceptance" should disappear with the dissolution of the Permanent Court ;
what was sought was "the maintenance of the entire group of declarations of
acceptances which were still in force..." (ibid.). That object, however,
would exclude Nicaragua, whose declaration was not and never had been in
force.
34. The joint dissenters proceeded to interpret the phrase of Article 36,
paragraph 5, "which are still in force" as only meaning the exclusion of [p
583] some 14 declarations of acceptance which "had already expired" and the
inclusion, irrespective of the dissolution of the Permanent Court, of "all
the declarations the duration of which has not expired" (I. C.J. Reports
1959, p. 161). They cited the French text in support of that conclusion
(ibid, pp. 161-162), stating:
"At the Conference of San Francisco there were present a number of States
that had in the past made Declarations of Acceptance which, not having been
renewed, had lapsed and were therefore no longer in force. This applied, for
instance, to the Declarations of China, Egypt, Ethiopia, France, Greece,
Peru, Turkey and Yugoslavia. It was clearly necessary, by inserting the
expression 'which are still in force', to exclude those States from the
operation of paragraph 5. That interpretation is supported by the French
text which is as authoritative as the English text and which is even more
clear and indisputable than the latter. The words pour une duree qui n'est
pas encore expiree' (for a duration which has not yet expired) must be
regarded as determining the true meaning of the English text in question.
The fact that the Chinese, Russian and Spanish texts of that paragraph
approximate to the English text does not invalidate or weaken the obvious
meaning of the French text. Those three texts were translated from the
English version, whereas the French text was that of one of the two official
working languages adopted at the San Francisco Conference. However, while
the French text removes any doubt whatsoever as to the meaning of these
words, there is in effect no reasonable doubt about them also so far as the
English text is concerned. There is no question here of giving preference to
the French text. Both texts have the same meaning. The French text is no
more than an accurate translation of the English text as generally
understood. Or, rather, in so far as it appears that the final version was
first formulated in the French language, the English text is no more than an
accurate translation from the French." (Ibid., pp. 161-162 ; emphasis
supplied.)
They observed that the phrase "in force" as found elsewhere in the Statute,
refers to the element of time (ibid., p. 163). They also pointed out that,
"Retroactive operation of a provision ought not to be assumed without good
cause ..." (ibid., p. 164). Article 36, paragraph 5, did not lapse on the
dissolution of the Permanent Court ; it was rather designed to render that
dissolution irrelevant in the matter of the transfer of declarations. They
then concluded, in the passage on which counsel for Nicaragua place great
emphasis, that the words, "which are still in force" refer "to the
declara-tions themselves ..." (ibid.).
"So long as the period of time of declarations made under Article 36 of the
Statute of the Permanent Court still has to run at the time when the
declarant State concerned becomes a party to the Statute of the
International Court of Justice, those declarations fall within the purview
of Article 36, paragraph 5, of the new Statute and 'shall be [p 584] deemed
to be acceptances of the compulsory jurisdiction of the International Court
for the period which they still have to run and in accordance with their
terms'." (Ibid., pp. 164-165.)
But and this is critical to and destructive of Nicaragua's construction
there is no indication whatsoever in this passage (or elsewhere in their
opinion) that, in saying this, the dissenters viewed a declaration which
had, unlike Bulgaria's, never come into force at all to have a period of
time in which still to run
.
35. It should be added that, at a much later point in the joint dissenting
opinion, the three distinguished dissenters took up the contention of a few
of their colleagues that Article 36, paragraph 5, refers only to
declarations which contain a time-limit of their validity, and thus does not
embrace declarations, such as that of Bulgaria, whose duration was
unlimited. In rebutting that contention, they said:
"Moreover, if the interpretation contended for had been adopted by the Court
in the present case, its result would be to invalidate, as from the date of
the Judgment of the Court, the existing declarations of a number of States
such as Colombia, Haiti, Nicaragua and Uruguay." (Ibid, p. 193.)
Nicaragua can derive comfort from that quotation. But there is no reason to
conclude that, in including it, the dissenters had investigated whether
Nicaragua's 1929 Declaration, listed in the Court's Yearbook, actually had
ever come into force.
36. In sum, while Nicaragua arguably may find a measure of support in
selected passages of the joint dissent in the Aerial Incident case, that
support is very limited. Moreover, the dissenters were speaking for
themselves as dissenters, not for the Court. Counsel for Nicaragua
appreciate that, but maintain that the Temple of Preah Vihear case and
Barcelona Traction "wholeheartedly" adopt the principles espoused by the
dissenters in Aerial Incident (Hearing of 8 October 1984). Let us turn to
those cases, but first consider whether, as Nicaraguan counsel contend,
United States arguments in a companion Aerial Incident case lend support to
Nicaragua's thesis.
37. Counsel for Nicaragua argued that, in the proceedings which the United
States brought against Bulgaria in connection with the latter's shooting
down of an Israeli civil aircraft on which there were passengers of United
States nationality, the United States espoused the very interpre-tation of
Article 36, paragraph 5, for which Nicaragua now argues (Hearing of 8
October 1984). It is true that the United States argument in that case
parallels the argument of the joint dissenters in Aerial Incident. However,
the United States expressly affirmed that the declaration of Bulgaria there
at issue came into force in 1921 (as did the United Kingdom [p 585] in
another companion case)FN1. (I.C.J. Pleadings, Aerial Incident of 27 July
1955 (Israel v. Bulgaria; United States of America v. Bulgaria; United
Kingdom v. Bulgaria), p. 312.) The United States construction of Article 36,
paragraph 5, was based, inter alia, on "acceptance of the jurisdiction of
the Permanent Court" (ibid., pp. 317-318). That was one obligation; Article
36, paragraph 5, entailed "a new and additional obligation ..." (ibid., p.
318). The United States relied on the San Francisco negotiating history to
establish that the purpose of Article 36, paragraph 5, was "to preserve"
declarations (ibid., pp. 319-320). Article 36, paragraph 5, was included "to
prevent retrogression with respect to international judicial jurisdiction
..." (ibid., p. 320) - but the United States gave no hint of construing
Article 36, paragraph 5, so as to expand that jurisdiction by giving life to
a declaration which had never come into force. Article 36, paragraph 5, was
meant, the United States argued, "not to lose the effectiveness of
declarations made under the optional clause of the old Statute" (ibid), but
it does not follow that it was intended to validate declarations which had
not come into effect. Thus, it is clear that these United States arguments
give no nourishment to the Nicaraguan thesis, because they all addressed the
situation which is not Nicaragua's but was Bulgaria's in which the
declarant State had ratified the Protocol of Signature and therefore had
brought its declaration under the Optional Clause into force.
---------------------------------------------------------------------------------------------------------------------
FN1
The British Memorial puts the matter precisely :
"Bulgaria's acceptance of the compulsory jurisdiction of the Court is
unconditional, and was made on July 29, 1921, when the instrument of
Bulgaria's ratification of the Protocol of Signature of the Permanent Court
of International Justice was deposited, and became effective as to the
jurisdiction of the International Court of Justice by virtue of... Article
36 (5) of the Statute of the Court, on the date of Bulgaria's admission to
membership of the United Nations." (I.C.J. Pleadings referred to above, p.
331.)
--------------------------------------------------------------------------------------------------------------------
38. The next significant reference to Article 36, paragraph 5, in the
Court's jurisprudence was that of Judge Philip C. Jessup, in his separate
opinion in the South West Africa (Ethiopia v. South Africa, Liberia v. South
Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, pages 319,
415:
"It was clearly the intention in the drafting of the Statute of the
International Court of Justice to preserve for the new Court just as much as
possible of the jurisdiction which appertained to the old Court. For this
purpose, Article 36 (5) provided for the transfer of the obligations assumed
by States which made declarations under Article 36 of the old Statute, and
Article 37 provided for a similar transfer where a 'treaty or convention'
had contained a provision for the jurisdiction of the Permanent Court."[p
586]
Again, there is the emphasis on preservation of the jurisdiction which
"appertained to the old Court". Judge Jessup clearly was speaking of, as he
specifies, "the obligations assumed by States which made declarations under
Article 36 of the old Statute", of a jurisdiction which was effective and in
force, not a jurisdiction to be brought initially into effect by operation
of Article 36, paragraph 5.
39. Nicaraguan counsel suggested that the three major opinions to be
considered by the Court in reaching the current Judgment are those of (a)
the Court in Aerial Incident; (b) the joint dissent in that case; and (c)
Barcelona Traction. Nicaraguan counsel views Barcelona Traction as in
effect, though not in terms, overturning the Court's judgment in Aerial
Incident and as accepting the dissenters' rationale in that case (Hearing of
8 October 1984). However, in Barcelona Traction, the Court, in interpreting
Article 37, decidedly did not overrule Aerial Incident; and, even if it had,
it would have thereby lent no support to Nicaragua's thesis, not only
because the joint dissenting opinion in Aerial Incident lends it so little,
but because both the Court and Judge Tanaka in his separate opinion in
Barcelona Traction emphasized that the purpose of Article 37, like Article
36, paragraph 5, was to maintain continuity between the jurisdiction given
to the Permanent Court and that given to the new Court. Thus the Court
stressed that Article 37 was "not intended to create any new obligatory
jurisdiction that had not existed before ...". Rather the point was
"preserving the existing conventional jurisdiction ..." (Barcelona
Traction, Light and Power Company, Limited, Preliminary Objections,
Judgment, I.C.J. Reports 1964, pp. 6, 34). In Barcelona Traction, the treaty
at issue affording jurisdiction to the Permanent Court had come into force.
Thus the analogy is with Bulgaria's initially effective adherence to the
Permanent Court's compulsory jurisdiction in Aerial Incident, it is not
with Nicaragua's initially ineffective adherence in the current case. And
why, by the way, does Nicaragua try to make so much of Barcelona Traction
when on analysis it offers it so little? Essentially because Nicaragua
contends that it overrules the Court's Judgment in Aerial Incident.
Nicaragua's exposition of Barcelona Traction, while lending scant support to
its position, thus underscores how dubious is such reliance of the Court as
there is upon the Aerial Incident case. If the Aerial Incident Judgment
lends support to Nicaragua's theory, why should Nicaragua argue that
Barcelona Traction overruled the Court's Judgment in Aerial Incident?
40. Let us finally advert to the case concerning the Temple of Preah Vihear,
Preliminary Objections, Judgment, I.C.J. Reports 1961, page 17. In its Order
of 10 May 1984, the Court relied on this case as well (without specifying
any page or passage) to support its conclusion that the absence [p 587] of
Nicaragua's effective ratification of the Protocol of Signature might not
have excluded the operation of Article 36, paragraph 5. In today's
Judgment, the Court cites the Temple case anew, apparently with regard to
the alleged reality of Nicaragua's consent to be bound by the Court's
compulsory jurisdiction. In the Temple case, the Court held that the
intention of Article 36, paragraph 5, was to provide a means whereby,
"within certain limits, existing declarations in acceptance of the
compulsory jurisdiction of the Permanent Court of International Justice
would become ipso jure transformed into acceptances of the compulsory
jurisdiction of the present Court..." (at p. 25; see also, p. 28; emphasis
supplied).
That is not a holding which helps Nicaragua, since its declaration did not
accept the compulsory jurisdiction of the Permanent Court. Once again it may
be observed that when the Court speaks of "acceptances" of this Court's
compulsory jurisdiction, and, in the same sentence, speaks of declarations
"in acceptance" of the compulsory jurisdiction of the Permanent Court, it
incontestably interprets Article 36, paragraph 5, to refer only to
declarations which bound the declarants in both Courts. The Court does not
assign one meaning to the term "accept" in this Court, and another meaning
to that term in the Permanent Court, and in the same sentence. Furthermore,
in the Temple case, the Court reaffirmed the rationale of its Judgment in
the Aerial Incident case. It observed that Thailand in the Temple case
endeavoured to apply that rationale in its favour, maintaining that its
Declaration of 1940 had lapsed with the dissolution of the Permanent Court
and could not have been renewed by a later declaration of 1950 which
purported to renew it. It held that Thailand's 1950 Declaration, which was
meant to be an effective acceptance of this Court's compulsory jurisdiction
under the Optional Clause, was a new and independent instrument not made
under Article 36, paragraph 5, not only because that provision did not
contemplate the making of new declarations but because it was concerned with
the preservation of declarations for the period which they still had to
run. Thus the Court treated Thailand's 1950 Declaration as intended to be
made under Article 36, paragraph 2, and effective as such. The Court
expressly put aside questions of revival of lapsed or spent instruments and
questions of error, for in the Temple case the Court concluded that there
was no factor which impaired the reality of the consent which Thailand
intended to give in 1950. The Court observed that, in the case of
declarations under the Optional Clause of this Court, the "only formality
required" is the deposit of the acceptance with the Secretary-General of the
United Nations. The Court accordingly concluded that Thailand's acceptance
could not be defeated by some defect which did not involve "a mandatory
legal requirement" (ibid., p. 34). Thus the Court, in the Temple case,
interpreted as a "mandatory legal requirement" that act which is most
closely analogous to the act which Nicaragua failed to perform in this case,
deposit of its instrument of [p 588] ratification of the Protocol of
Signature of the Permanent Court with the League Secretary-General.
9. The listings in the Yearbooks of the Court
41. While it is not disputed that the responsible officials of the League of
Nations and the Registry of the Permanent Court did not regard Nicaragua as
party to the Court's compulsory jurisdiction by reason of its 1929
Declaration, the Yearbooks of this Court are not so clear, as was amply
expounded in the pleadings of the Parties.
42. Those pleadings and the facts which they interpret need not be fully
recapitulated. The essential points that may be derived from them appear to
be the following:
- The Yearbooks of this Court, from the outset of the life of this Court to
the present day, have listed Nicaragua as party to the Court's compulsory
jurisdiction. For example, the first Yearbook so lists Nicaragua, with a
footnote stating :
"Declaration made under Article 36 of the Statute of the Permanent Court
and deemed to be still in force (Article 36, paragraph 5, of the Statute of
the present Court)." (Yearbook 1946-1947, p. 111.)
- However, those Yearbooks have always contained, in terms or
refer-entially, a footnote. In the first Yearbook, that footnote to the text
of Nicaragua's 1929 Declaration refers to the telegram of 20 November 1939
informing the League that Nicaragua's instrument of ratification of the
Protocol of Signature of the Court's Statute was to follow, concluding:
"Notification concerning the deposit of the said instrument has not,
however, been received in the Registry." (Ibid., p. 210.) Beginning with
the Yearbook 1955-1956, the footnote has concluded: "It does not appear,
however, that the instrument of ratification was ever received by the League
of Nations." (At p. 218.)
- The footnote's inclusion is incompatible with the thesis that Nicaragua's
ratification of the United Nations Charter and Statute of this Court and the
consequent operation of Article 36, paragraph 5, were sufficient to bring
into effect a declaration which otherwise was ineffective to bind Nicaragua
to the compulsory jurisdiction of the Permanent Court. Why? Nicaragua claims
that the operation of Article 36, paragraph 5, combined with the existence
of its 1929 Declaration which was not binding on it, and its ratification of
the Charter and the Court's Statute which is binding on it, was and is
sufficient to give life to its 1929 Declaration. Let us assume that that is
so. What then is the point of the footnote? According to Nicaragua, [p 589]
it makes no difference at all whether its instrument of ratification of the
Permanent Court's Protocol was or was not received, because, even if not
received, Nicaragua became party to this Court's compulsory jurisdiction by
operation of Article 36, paragraph 5, upon its ratification of the Charter.
It maintains that its being so listed in the Yearbook so shows. But why then
should the Registry have said anything at all about non-receipt of the
instrument of ratification since it was absolutely irrelevant, on
Nicaragua's argument, to the operation of Article 36, paragraph 5 ? Clearly
only because the Registry did not think that it was irrelevant. Rather, it
thought that possible non-receipt was wholly relevant ; and it thought that
it warned States about the uncertainty in Nicaragua's position by including
the footnote. When the first Yearbook (and immediately succeeding
Yearbooks) were composed, it was not definitively established whether or
not the Secretariat of the League had received the instrument of
ratification which Nicaragua in 1939 affirmed it would send ; it was only
later that it was established not only that this Court's Registry had not
been notified of such deposit, but that in fact deposit never had been made.
43. Now let us turn to the second Yearbook. That Yearbook omits the
footnote, but, on page 127, it refers to the prior Yearbook in which
Nicaragua's declaration - and the footnote - are found. But it contains
more of interest and probative value, namely, the text of the Pact of
Bogota. By the terms of Article XXXI of that Pact, "In conformity with
Article 36, paragraph 2, of the Statute of the International Court of
Justice", the Parties accept compulsory jurisdiction unconditionally under
that Article in relation to any other American State, in the precise terms
of the Optional Clause. Under Article XXXII of the Pact of Bogota, moreover,
whenever the conciliation or arbitration procedures prescribed by the Pact
do not lead to a solution, either party to a dispute shall be entitled to
have recourse to the International Court of Justice and, "The Court shall
have general compulsory jurisdiction in accordance with Article 36,
paragraph 1, of the said Statute". A reservation to the Pact of Bogota by
Nicaragua is found at page 143 of that Yearbook, which states that
Nicaragua's acceptance of the foregoing may not prejudice its position in
respect of any arbitral decision which it has attacked. Thus Nicaragua
generally accepted the Court's compulsory jurisdiction under Article 36,
paragraph 2, vis-ΰ-vis any other American State, and under Article 36,
paragraph 1, as well, subject to this reservation, which obviously related
to the King of Spain's contested arbitral award of 1906. This may suggest
that Nicaragua did not regard itself otherwise as being bound to the Court's
compulsory jurisdiction by reason of the operation of Article 36, paragraph
5. Why? Because otherwise Nicaragua's reservation to the Pact of Bogota
makes little sense. Why should Nicaragua make this reservation to the
Court's compulsory jurisdiction under Article 36, paragraph 2, and Article
36, paragraph 1 (and to [p 590] the other means of pacific settlement
provided for in the Pact of Bogota), if otherwise Nicaragua was bound, and
believed itself to be bound, by the Court's compulsory jurisdiction under
Article 36, paragraph 5, in terms which omitted the reservation? Nothing in
the 1929 Declaration hints at that reservation. It should be noted,
moreover, that, in the King of Spain case which is discussed below,
Nicaragua invoked its reservation to the Pact of Bogota (I.C.J. Pleadings,
Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v.
Nicaragua), Vol. I, pp. 132-133). Thus the content of the Yearbook 1947-1948
itself gives ground for questioning whether Nicaragua regarded itself as
bound by the force of operation of Article 36, paragraph 5.
44. The footnote of the Yearbook of 1946-1947, which was incorporated by
reference in subsequent editions, was revived and revised with the Yearbook
for 1955-1956, and maintained in all subsequent Yearbooks, in the following
terms:
"According to a telegram dated November 29th, 1939, addressed to the League
of Nations, Nicaragua had ratified the Protocol of Signature of the Statute
of the Permanent Court of International Justice (December 16th, 1920), and
the instrument of ratification was to follow. It does not appear, however,
that the instrument of ratification was ever received by the League of
Nations." (P. 195.)
The reintroduction of a footnote apparently stemmed from correspondence
among the then Registrar, Julio Lτpez-Olivβn, Judge Hudson, and the Director
of the European Headquarters of the United Nations, Adriaan Pelt, which was
not brought to the attention of the Court at the time it deliberated upon
provisional measures and issued its Order of 10 May 1984. This
correspondence is in the Court's archives ; some of it was found by the
United States and by Nicaragua in Judge Hudson's papers at Harvard Law
School. That correspondence is enlightening. The published elements of it
demonstrate that:
(a) Judge Hudson believed that Nicaragua's ratification of the Charter did
not subject it to the Court's compulsory jurisdiction in the event of the
League's not having received the instrument of ratification;
(b) Nicaragua's instrument of ratification was never received by the
Secretariat of the League of Nations;
(c) the Registrar concluded that Nicaragua was not bound by this Court's
compulsory jurisdiction by reason of the operation of Article 36, paragraph
5.
Thus his letter to Judge Hudson of 2 September 1955 concludes:
"I do not think one could disagree with the view you express when [p 591]
you say that it would be difficult to regard Nicaragua's ratification of the
Charter of the United Nations as affecting that State's acceptance of the
compulsory jurisdiction. If the Declaration of September 24th, 1929, was in
fact ineffective by reason of failure to ratify the Protocol of Signature, I
think it is impossible to say that Nicaragua's ratification of the Charter
could make it effective and therefore bring into play Article 36, paragraph
5, of the Statute of the present Court."
45. The opinion of the then Registrar, Sr. Lopez-Olivan, is of particular
interest. Lopez-Olivan was the last Registrar of the Permanent Court, and
obviously was familiar with its workings and the processes of adherence to
its compulsory jurisdiction. He was a member of the delegation (together
with the Court's President and Judge Hudson) which represented the Permanent
Court of International Justice at the San Francisco Conference (see
P.C.I.J., Sixteenth Report, p. 12). And he later served as this Court's
second Registrar. Thus there is every reason to presume that he was fully
familiar with the intentions of the drafters of Article 36, paragraph 5, and
that he was in a unique position to interpret the result of the failure of
Nicaragua to transmit to the League its instrument of ratification of the
Protocol of Signature. Moreover, his interpretation manifested cautiously
but still manifested in the revised footnote inserted in the Yearbook
1955-1956 and thereafter - is entitled to the greater weight in the light of
the fact that, when the Court itself subsequently came to interpret Article
36, paragraph 5, it interpreted it in ways wholly consistent with the
interpretation of Lopez-Olivan. The Registrar understandably did not take it
upon himself in 1955 to delete Nicaragua's declaration from the Yearbook, an
act which would have been particularly delicate at a time when litigation
between Nicaragua and Honduras over the arbitral award of the King of Spain
loomed and when it was uncertain what the jurisdictional basis of such
litigation might be. He contented himself with reintroducing and revising
the footnote which was sufficient to place on guard any reader interested
in the question of whether Nicaragua was effectively a party to the Court's
compulsory jurisdiction. He left it to the Court to draw legal conclusions
from the facts so presented.
46. But the Registrar did take one further step. With the Yearbook
1956-1957, Sr. Lopez-Olivan introduced the following caveat in presenting
the Yearbook's recital of declarations made under Article 36 (including
Nicaragua's):
"The texts of declarations set out in this Chapter are reproduced for
convience of reference only. The inclusion of a declaration made by any
State should not be regarded as an indication of the view entertained by
the Registry or, a fortiori, by the Court, regarding the nature, scope or
validity of the instrument in question." (At p. 207.)[p 592]
It cannot be shown that the inclusion of this new proviso was stimulated by
the uncertain status of Nicaragua's declaration, but it is a sensible
speculation. Whatever the origins of the provision, which appears in
subsequent Yearbooks, it serves to place the listing of Nicaragua in the
Yearbook in its appropriate context.
47. The Court's Yearbooks are instructive in a further aspect as well. At
page 188 of the Yearbook 1955-1956 one finds the following in bold letters:
"List of States which recognize the compulsory jurisdiction of the
International Court of Justice or which are still bound by their
declarations accepting the compulsory jurisdiction of the Permanent Court of
International Justice." (Emphasis supplied.) Nicaragua is listed
thereunder, together with the reintroduced footnote. The meaning to be
attached to this heading, Nicaragua and the Court appear to maintain, is
that "still bound" means in Nicaragua's unique case - "never bound" by the
Permanent Court's jurisdiction but bound by this Court's jurisdiction. Does
Nicaragua - or the Court - treat the French text of the Yearbook more
seriously? The French Yearbook for 1955-1956, at page 182, provides a "Liste
analytique des Etats qui reconnaissent comme obligatoire la juridiction de
la Cour internationale de Justice ou qui sont encore lies par leur
acceptation de la juridiction de la Cour permanente de Justice
internationale." (Emphasis supplied.) How can the meaning which this phrase
of the Yearbook "encore lies" - imports to Article 36, paragraph 5, be
reconciled with the meaning which the Court attributes to the French text of
Article 36, paragraph 5? The Court at paragraph 30 of its Judgment in the
instant case finds it significant that the English text of Article 36,
paragraph 5, does not specify that declarations must be "binding". Then what
explanation can the Court offer for the terms of this heading of the
Yearbook which specifies "still bound" as the meaning of Article 36,
paragraph 5? As noted, these questions are not posed by the terminology of
this issue of the Yearbook only. For example, the Yearbook 1946-1947
containing the first version of the footnote similarly contains, at page
221, a "List of States which have recognized the compulsory jurisdiction of
the International Court of Justice or which are still bound by their
acceptance of the Optional Clause of the Statute of the Permanent Court of
International Justice ...".
10. Listings in Reports of the Court to the General Assembly
48. Since 1968, the Court has submitted a brief annual report to the General
Assembly of the United Nations. That report has included a list of States
bound by the Court's compulsory jurisdiction. Nicaragua always has been
included in that list. Does that fact establish as a matter of law that
Nicaragua is party to the Court's compulsory jurisdiction, and does it estop
the Court from holding that it is not? [p 593]
49. In adopting the Court's Reports to the General Assembly, the judges of
the Court do not investigate the facts that lie behind a list of States
which are presented as having accepted the Court's compulsory jurisdiction.
That list is submitted by the Registry and is routinely accepted by the
Court. How routinely is demonstrated by the Report of the International
Court of Justice, 1 August 1982-31 July 1983 (A/38/4), which, at page 1,
contains the following entry:
"8. There are now 47 States which recognize (a number of them with
reservations) the jurisdiction of the Court as compulsory in accordance with
declarations filed under Article 36, paragraph 2, of the Statute. They are :
Australia, Austria, Barbados, Belgium, Botswana, Canada, Colombia, Costa
Rica, Democratic Kampuchea, Denmark, Dominican Republic, Egypt, El Salvador,
Finland, Gambia, Haiti, Honduras, India, Israel, Japan, Kenya, Liberia,
Liechtenstein, Luxembourg, Malawi, Malta, Mauritius, Mexico, Netherlands,
New Zealand, Nicaragua, Nigeria, Norway, Pakistan, Panama, Philippines,
Portugal, Somalia, Sudan, Swaziland, Sweden, Switzerland, Togo, Uganda,
United Kingdom of Great Britain and Northern Ireland, United States of
America and Uruguay. The texts of the declarations filed by these States
appear in Chapter IV, Section II, of I.C.J. Yearbook 1982-1983."
It will be observed that Nicaragua is thus listed as a State which has filed
a declaration "under Article 36, paragraph 2, of the Statute". When this
Court speaks of "the Statute", it speaks of its Statute. But the fact is
that Nicaragua has never filed a declaration under Article 36, paragraph 2,
of the Court's Statute. It does not claim that it has. Rather, it claims
that it is bound to the Court's compulsory jurisdiction by reason of a
declaration filed under the Statute of the Permanent Court and by the
operation of Article 36, paragraph 5, of this Court's Statute. But that is
not what the aforesaid Report says. Can it be maintained that, although what
the Report says is inaccurate, it nevertheless has become the law because it
is contained in a Report to the General Assembly?
50. In the Report of the International Court of Justice, 1 August 198331
July 1984 (A/39/4), the following entry is found:
"7. There are now 47 States which recognize (a number of them with
reservations) the jurisdiction of the Court as compulsory in accordance with
declarations filed under Article 36, paragraphs 2 and 5, of the Statute.
They are: Australia, Austria, Barbados, Belgium, Botswana, Canada, Colombia,
Costa Rica, Democratic Kampuchea, Denmark, Dominican Republic, Egypt, El
Salvador, Finland, Gambia, Haiti, Honduras, India, Israel, Japan, Kenya,
Liberia, Liechtenstein, Luxembourg, Malawi, Malta, Mauritius, Mexico,
Netherlands, [p 594] New Zealand, Nicaragua, Nigeria, Norway, Pakistan,
Panama, Philippines, Portugal, Somalia, Sudan, Swaziland, Sweden,
Switzerland, Togo, Uganda, United Kingdom of Great Britian and Northern
Ireland, United States of America and Uruguay. The texts of the declarations
filed by these States appear in Chapter IV, Section II, of I.C.J. Yearbook
1983-1984."
Thus the error which was published in last year's Report has been dealt with
in this year's Report, as is understandable in view of the fact that that
Report was written and adopted well after the commencement of proceedings
in the current case. However, the error of stating that Nicaragua has
recognized the compulsory jurisdiction of this Court under Article 36,
paragraph 2, is found in the Reports of the Court to the General Assembly in
all reports from 1 August 1973 through that of 1983, that is, in 9 reports
out of the 16 rendered to the General Assembly to date.
51. Thus, it is demonstrable and demonstrated that when the Court
provides information in an administrative capacity, not only may it err and
repeatedly err, but that it cannot be thought to be making a judgment in law
or of legal effect. There is an obvious difference between the
administrative acts and the judicial acts of the Court. The administrative
acts of the Court and particularly inconsistent acts of this character
cannot reasonably be taken as either establishing the law or estopping the
Court from holding what the law is. Indeed, if the current Report of the
Court were to be treated as dispositive, what would be the point of the
Court's receiving extensive memorials, having substantial hearings and
writing a judgment on the very issue? It could rather treat what otherwise
is a question of considerable complexity as perfectly simple, as one
resolved not by last year's Report but by this year's.
52. In sum, while the reader on the run may have gained the impression from
the Court's Yearbooks and Reports that Nicaragua is bound to the Court's
compulsory jurisdiction, if not under Article 36, paragraph 2, then by
operation of Article 36, paragraph 5, that is not a lawyerlike conclusion
which follows from a careful analysis of the relevant documentation, and
still less of the relevant law. Nor is it a conclusion which follows from
the annually published collection of Signatures, Ratifications, Acceptances,
Accessions, etc., concerning the Multilateral-Conventions, and Agreements in
respect of which the Secretary-General acts as Depositary, to which the
Court, in paragraph 36 of its Judgment, also ascribes "particular weight".
Those reports state that, "All data and footnotes concerning these
declarations" of acceptance of the Court's jurisdiction are reprinted from
the Court's Yearbook, and, when that Yearbook runs the footnote to
Nicaragua's declaration, so does the derivative volume of the
Secretary-General. See, e.g., Multilateral Treaties Deposited with the
Secretary-General, Status as at 31 December 1982, pages 24 and 27, note 54.
[p 595]
11. The conduct of the Parties
53. Nicaragua argues that, in any event, its Declaration of 1929 is
effective to confer jurisdiction on the Court in the present proceeding "for
an entirely separate and independent reason", namely:
"(i) Nicaragua's conduct over the past 38 years unequivocally manifests its
consent to be bound by the Court's compulsory jurisdiction. Such an
expression of consent overcomes any formal defect in Nicaragua's
ratification of the Protocol of Signature.
(ii) The conduct of the United States during the past 38 years, like the
conduct of the other States that have declared their acceptance of the
Court's compulsory jurisdiction, constitutes an acceptance of and
acquiescence in the effectiveness of Nicaragua's 1929 declaration and a
waiver of any formal defect in Nicaragua's ratification of the Protocol of
Signature." (Nicaraguan Memorial, para. 85.)
54. That contention is unpersuasive for two reasons. First, the conduct in
question actually is ambiguous not unequivocal, and it cannot on the part of
the United States reasonably be interpreted to constitute acquiescence in
the effectiveness of Nicaragua's 1929 Declaration. Second, even if the
course of the Parties' conduct were more consistent and more favourable to
Nicaragua's position than it is, it is implausible to argue that a State may
become party to the Optional Clause of the Statute not by the deposit of a
declaration with the Secretary-General of the United Nations pursuant to
Article 36, paragraphs 2 and 4, not by the operation of Article 36,
paragraph 5, but by conduct extraneous to those provisions. The ambiguities
of Nicaragua's behaviour by no means establish the reality of its consent;
if Nicaragua had wished to ensure that its consent were real, it needed
merely to file a declaration under Article 36, paragraphs 2 and 4. But in
any event, the deposit of an instrument of ratification is no mere optional
formality; as pointed out in paragraph 12 of this opinion, where a treaty
exclusively provides for that means of ratification (as did the Protocol of
Signature) no other is permitted; in the words of the Temple of Preah Vihear
case, it was, like deposit of a declaration is under this Court's Article
36, paragraph 4, "a mandatory legal requirement".
55. Since, despite the foregoing considerations, the Court nevertheless
gives weight to what it appears to find as a sufficiently consistent course
of conduct of those concerned, comment on that conduct is in order.
56. It is of course true that the Court's Yearbooks and Reports (and those
of the Secretary-General and national authorities) listed Nicaragua as party
to the Court's compulsory jurisdiction. Much is made of the fact that such
listings were never protested. But what does the lack of protest [p 596]
indicate? Arguably, on Nicaragua's part, an intent to be bound; and
arguably, on Nicaragua's part by reason of its failure to challenge or
otherwise react to the footnote - an intent not to be bound. As for the
United States, and third States generally, since they did not have
litigation with Nicaragua actively in view, they had no reason to protest
what, on analysis, might have been seen as a questionable listing.
57. Moreover, Nicaragua's conduct in and in connection with the King of
Spain case strongly suggests that Nicaragua was not seen to be bound by the
Court's compulsory jurisdiction, by itself, by Honduras or by the United
States. Honduras was anxious to bring Nicaragua before the Court in the hope
that the Court would uphold the King of Spain's arbitral award of 1906 which
awarded to Honduras territory of which Nicaragua had remained in occupation.
Honduras engaged Manley O. Hudson as its leading counsel. That was what
prompted him to make the inquiry of the Registrar which led to the
re-introduction of the footnote in the Yearbook 1955-1956. In the light of
his correspondence with the Registrar, Hudson was confirmed in his view
that, if Honduras invoked its own submission to the Court's compulsory
jurisdiction and Nicaragua's declaration of 1929, it was unlikely that the
Court would find that it had jurisdiction over Nicaragua. Thus Honduras
sought the good offices of the United States in order to persuade Nicaragua
to conclude a special agreement submitting the case to the Court. In that
connection, Honduras sent to the United States a memorandum of 15 June 1955
which declared:
"Nicaragua has refused until now to recognize the compulsory jurisdiction of
the International Court of Justice so that the Court could take cognizance
of and resolve the case which Honduras has considered filing against
Nicaragua. Nicaragua has suggested that the two countries sign a kind of
special protocol to submit the problem to the Court so that it could declare
whether or not the award is valid." (United States Counter-Memorial, Ann.
34, p. 2.)
Thereafter, in a conversation of 21 December 1955 between Nicaragua's
Ambassador to the United States, Guillermo Sevilla-Sacasa, and officials of
the Department of State, it was said, according to a memorandum of
conversation then drawn up which the United States has submitted in
evidence, that:
"Reference was made to the fact that the matter had not been previously
referred to the Court because Nicaragua had never agreed to submit to
compulsory jurisdiction.
Ambassador Sevilla-Sacasa indicated that an agreement between the two
countries would have to be reached to overcome this difficulty." (Ibid., p.
4 and App. K thereto at p. 2.)
[p 597]
The problem was finally taken to the Organization of American States, which
succeeded in persuading Nicaragua and Honduras to conclude a special
agreement submitting the case to the Court. Nevertheless, there are
indications that Honduras remained uncertain whether Nicaragua would in fact
appear. (See, for example, the repeated statements in the Honduran
Application seeking a judgment "whether the Government of Nicaragua appears
or not" (I.C.J. Pleadings, Arbitral Award Made by the King of Spain on 23
December 1906, Vol. I (e.g., at p. 10).) Perhaps this explains why Honduras
did not exclusively rely on the terms of the special agreement; it also made
the claim that Nicaragua's telegram to the League was tantamount to
ratification and that Nicaragua thus was bound under the Optional Clause by
operation of Article 36, paragraph 5 (ibid., pp. 8-9). More than that, it
was in Honduras' interest to seek to establish jurisdiction in this way,
since it could then make a claim for damages for unlawful occupation of its
territory which the terms of the special agreement did not admit.
58. Conversely, it was not in Nicaragua's interest in the King of Spain case
to accept Honduras' argument that it was bound by operation of Article 36,
paragraph 5, since then it might have been held liable for damages. That may
be why it carefully refrained from doing what it could so easily and
plausibly have done: squarely stated to the Court that it agreed with
Honduras that it was bound to the Court's compulsory jurisdiction by reason
of its 1929 Declaration and the operation of Article 36, paragraph 5. In
fact, what Nicaragua said was the following:
"It goes without saying that the competence of the International Court of
Justice to settle this dispute meets with no contradiction from Nicaragua.
It was, moreover, expressly admitted by both Parties in the Agreement of
June 21st and 22nd, 1957,... reproduced in the Resolution of the
Organization of American States, ... Nicaragua agrees with Honduras... in
ascribing to that instrument the character of a special agreement.
2. The Court will also note that, with the agreement of the Parties, the
present dispute is defined in the said Resolution and in the various
documents as a dispute 'existing between them with respect to the Arbitral
Award handed down by His Majesty the King of Spain on December 23rd, 1906'
and not as concerning a claim for the execution of the decision or for
denunciation of its breach.
It is true that the Honduran Foreign Minister, in a Declaration annexed to
the Agreement of July 21st, 1957 ... expressed his explicit wish that the
Arbitral Award ... be carried out and its view that 'Nicaragua's failure to
comply with that arbitral decision constitutes, under Article 36 of the
Statute of the International Court of Justice (?) and, in accordance with
the principles of international law, a breach of an international
obligation'.
But Nicaragua at the same time expressed the equally clear intention of
answering the claim of Honduras, not only 'opposing the [p 598] exceptions
that it considers appropriate in order to impugn the validity of the
Arbitral Award of December 23rd, 1906, and its compulsory force', but also
'invoking all those rights that may be in its interest', maintaining in
particular 'that its boundaries with Honduras continue in the same legal
status as before the issuance of the above-mentioned Arbitral Award' ...
It was expressly understood in the Agreement of July 21st, 1957, that each
Government 'in the exercise of its sovereignty and in accordance with the
procedures underlined in this instrument, shall present the matter in this
Agreement as it deems pertinent'.
3. We should add that it may be only by inadvertence that Honduras
presented the first claim set forth in its submissions as coming within the
category of disputes covered by Article 36, 2 (c), of the Statute of the
International Court of Justice. The present dispute in no way concerns the
existence of any fact which, if established, would constitute a breach of an
international obligation. There is in this case no dispute as to the
existence of the exercise of Nicaraguan sover-eignty over part of the
disputed territory; on the other hand, there is a disagreement over the
existence of an obligation upon Nicaragua to agree to execute an alleged
Arbitral Award against which it has for years formulated much serious and
detailed criticism, expressing readiness from the outset to acquiesce in the
opinion of arbiters in this matter.
4. Similarly, Nicaragua can only express surprise that Honduras should have
invoked Article VI of the Pact of Bogota, ratified by the two Parties to the
present dispute and according to which the procedures provided in that Pact
'may not be applied to matters already settled by arrangement between the
Parties or by arbitral award'.
For it is well known that Nicaragua, when signing the said Treaty, made an
explicit reservation reading as follows:
'The Nicaraguan Delegation, on giving its approval to the American Treaty
on Pacific Settlement (Pact of Bogota), wishes to record expressly that no
provisions contained in the said Treaty may prejudice any position assumed
by the Government of Nicaragua with respect to arbitral decisions the
validity of which it has contested on the basis of the principles of
international law, which clearly permit arbitral decisions to be attacked
when they are adjudged to be null or invalidated. Consequently, the
signature of the Nicaraguan Delegation to the Treaty in question cannot be
alleged as an acceptance of any arbitral decisions that Nicaragua has
contested and the validity of which is not certain.'[p 599]
It is true that, according to the Resolution of the Organization of American
States of July 5th, 1957, mentioned above, Nicaragua's agreement to the
method of settlement proposed implied its abandonment of the reservation
attached to the Bogota Pact, but obviously that abandonment was motivated
solely by the assured conviction that the whole of the dispute was going to
be submitted to the International Court of Justice and that it would be at
variance with the undoubted intention of the Parties to interpret it as a
recognition of the validity of the Award of December 23rd, 1906, or as
waiving the assertion of Nicaragua's complaints before the Court.
In these circumstances and subject to what may be said on this matter in the
Reply, Nicaragua will say no more on this question of jurisdiction." (I.C.J.
Pleadings, Arbitral Award Made by the King of Spain on 23 December 1906,
Vol. I, pp. 131-133. The translation from the French is the Registry's.)
59. It follows that, in the one case before the instant case in which the
question of whether Nicaragua was bound under the Optional Clause was
explicitly raised, Nicaragua remained significantly silent. It did not
answer that question positively; it did not answer it directly; rather it
contented itself with answers which channelled the case away from the
Optional Clause and towards exclusive reliance on the special agreement.
That is hardly the conduct of a State which harbours and manifests the
belief that it is bound under the Optional Clause.
60. There are other events as well which weaken Nicaragua's claim of
consistent conduct showing that it was, and believed itself to have been,
bound under the Optional Clause. Notably, after San Francisco, the
Nicaraguan Foreign Minister made a substantial report to Nicaragua's
Congress on the Conference, the Charter and the Statute of the Court. He
spoke about the attachment of Latin American States to the compulsory
jurisdiction of the Court. But he said not a word which even hinted that he
regarded Nicaragua as bound by that compulsory jurisdiction.
61. It is suggested by the Court that, if Nicaragua were a defendant in this
Court, and sought to deny its recognition of the Court's compulsory
jurisdiction in reliance on Article 36, paragraph 5, the Court would
probably reject that argument; and that, accordingly, since it would hold
Nicaragua to what it sees as the appearance of its being bound under the
Optional Clause, it should hold the United States to that appearance in this
case. In my view, that does not follow. As the Court indicated in the
Anglo-Iranian Oil Co. case (Judgment, I.C.J. Reports 1952, pp. 93, 105107),
the declarant State in making a declaration under the Optional Clause has a
special knowledge of its own situation and intentions. Nicaragua is
chargeable with knowing not only the equivocations referred to in preceding
paragraphs, but, above all, of the footnotes and what they implied. There is
ample indication that, all along, Nicaragua might have known of the
possibility of its maintaining that it was not bound, despite [p 600] the
Yearbook and other publications apparently holding it out as bound. Thus the
Court should not countenance Nicaragua having it both ways: being able to
plead that it is bound under the Optional Clause, as in this case, but
avoiding such a plea, as in the King of Spain case. However, were the United
States bringing an application against Nicaragua, these considerations
might well not impair the reliance of the United States on the appearance of
Nicaragua being bound because, in view of Nicaragua's having taken no
public, clear and unambiguous step to correct an appearance of being bound,
Nicaragua cannot be heard to deny the truth of an appearance in which it so
long acquiesced. In short, Nicaragua may well be in no position to deny,
after almost 40 years, what it has tolerated despite the ambiguities of
which it had special knowledge. But the United States and other States were
and are not in the same knowledgeable position (even if the United States
may be said in the 1950s to have had some knowledge of the situation); they
were not charged with a like duty of sensitivity to Nicaragua's position;
and thus they could rely on appearances which Nicaragua peculiarly knew, or
should have known, to be questionable.
12. Conclusion
62. In light of the foregoing facts and analysis, it is concluded that
Nicaragua manifestly is without standing to maintain suit before this Court
on the basis of the contention that it is party to the Court's
com-pulsoryjurisdiction by operation of Article 36, paragraph 5, of the
Statute, or on the basis of conduct. In view of that conclusion, Nicaragua's
Application, in so far as it relies - and it largely and essentially relies
- on Article 36, paragraph 2, and Article 36, paragraph 5, should have been
dismissed.
C. The Question of Whether the Court Has Jurisdiction over the United
States
1. Jurisdiction under the Optional Clause
63. Nevertheless let us assume, contrary to what I believe to be manifest,
that Nicaragua is party to the compulsory jurisdiction of the Court. Is the
United States subject in this case to the Court's compulsory jurisdiction
under its declaration of 26 August 1946? That question gives rise to the
following subsidiary questions:
- Is the United States declaration of 26 August 1946 valid?
-If it is valid, does its Vandenberg multilateral treaty reservation to the
Court's compulsory jurisdiction operate so as to exclude all or some of
Nicaragua's claims?
[p 601]
- If it is valid, does the United States Note of 6 April 1984 - the "1984
notification" operate to exclude Nicaragua's claims?
(i) The Connally Reservation
64. It is well known that Judge Lauterpacht, in his dissenting opinion in
the Interhandelcase (Judgment, I.C.J. Reports 1959, pp. 6, 95), concluded
that the United States Declaration of 26 August 1946 is invalid by reason of
its incorporation of the automatic, self-judging proviso known as the
"Connally Reservation". The United States thereby reserved from the Court's
jurisdiction:
"(b) disputes with regard to matters which are essentially within the
domestic jurisdiction of the United States of America as determined by the
United States of America".
He reached a similar conclusion earlier in respect of a French self-judging
reservation in the case of Certain Norwegian Loans (Judgment, I.C.J. Reports
1957, p. 34). Judge Lauterpacht in the Interhandel case summarized his
position in these terms:
"(a) the reservation in question, while constituting an essential part of
the Declaration of Acceptance, is contrary to paragraph 6 of Article 36 of
the Statute of the Court; it cannot, accordingly, be acted upon by the
Court; which means that it is invalid;
(b) that, irrespective of its inconsistency with the Statute, that
reservation by effectively conferring upon the Government of the United
States the right to determine with finality whether in any particular case
it is under an obligation to accept the jurisdiction of the Court, deprives
the Declaration of Acceptance of the character of a legal instrument,
cognizable before a judicial tribunal, expressing legal rights and
obligations;
(c) that reservation, being an essential part of the Declaration of
Acceptance, cannot be separated from it so as to remove from the Declaration
the vitiating element of inconsistency with the Statute and of the absence
of a legal obligation. The Government of the United States, not having in
law become a party, through the purported Declaration of Acceptance, to the
system of the Optional Clause of Article 36 (2) of the Statute, cannot
invoke it as an applicant; neither can it be cited before the Court as
defendant by reference to its Declaration of Acceptance." (I.C.J. Reports
1959, pp. 101-102.)
65. In testimony before the Senate Committee on Foreign Relations in 1960,I
agreed with Judge Lauterpacht's position (Compulsory Jurisdiction,
International Court of Justice, Hearings before the Committee on Foreign
Relations, United States Senate, Eighty-Sixth Congress, Second Session, on
S. Res. 94, 1960, pp. 191, 202-203). I continue to see great force in it,
while appreciating the argument that, since declarations incorporating self
[p 602] judging provisions apparently have been treated as valid, certainly
by the declarants, for many years, the passage of time may have rendered
Judge Lauterpacht's analysis less compelling today than it was when made.
Were his position to be applied to the instant case, the result would be
that there is no valid adherence by the United States to the Optional Clause
in existence and that, accordingly, in so far as Nicaragua relies on that
adherence, its Application must be dismissed.
66. However, I do not rest my conclusions in this case on that basis,
essentially but not exclusively for the reason that the United States itself
has treated its adherence to the Court's jurisdiction by means of its
Declaration of 26 August 1946 as valid in this case and otherwise. I say
this without prejudice to my position in such subsequent pleadings in this
case as there may be which are relevant, taking note, in that connection, of
the following statement which is found as note 1 to page 9 of the United
States Counter-Memorial:
"On the basis of Nicaragua's pleadings to date, the United States has
determined not to invoke proviso 'b' to the United States 1946 declaration
(the so-called 'Connally Reservation'). This determination is without
prejudice to the rights of the United States under that proviso in relation
to any subsequent pleadings, proceedings, or cases before this Court."
Moreover, for other reasons, in any event I conclude that Nicaragua cannot
maintain its claims against the United States in reliance upon its
Declaration of 26 August 1946.
(ii) The Vandenberg (Multilateral Treaty) Reservation
67. The Vandenberg Reservation-or multilateral treaty reservation-to the
United States adherence to the Court's compulsory jurisdiction of 14 August
1946 withholds from the jurisdiction of the Court:
"(c) disputes arising under a multilateral treaty, unless (1) all parties to
the treaty affected by the decision are also parties to the case before the
Court, or (2) the United States of America specially agrees to
jurisdiction".
The United States maintains that, since Nicaragua essentially bases its
Application on alleged violation by the United States of its treaty
obligations under the United Nations Charter, the Charter of the
Organization of American States and two other inter-American treaties, the
Court is bound to give effect to this exception from its jurisdiction. It
contends that, in view of Nicaraguan claims that El Salvador, Honduras and
Costa Rica are acting in concert with the United States, and in view of the
factual situation obtaining in Central America which is rooted in Nicaraguan
acts of sub-[p 603] version and aggression against its neighbours, those
States will necessarily be "affected" by any judgment which the Court
renders on the merits of Nicaragua's claims. While acknowledging that
Nicaragua requests judgment for alleged violations of customary
international law as well as treaty law, the United States argues that
Nicaragua's claims are so integrally and essentially governed by the
specific treaty provisions which it invokes that the Court cannot decide
upon the merits of those claims while excluding those treaty provisions;
Nicaragua's claims of violation of customary international law are no more
than paraphrases of these preclusive treaty standards. Nicaragua maintains
that the multilateral treaties reservation is mere surplusage; that the
records of Senate debate indicate that it was addressed to a non-existent
problem; and that in any event, even if the reservation were to be applied,
it could not debar its claims under customary international law, which it
contends, exists on the points at issue quite apart from the treaty
provisions on which it has relied. (A much fuller summary of the Parties'
contentions in this regard is found in paras. 68-71 of the Court's
Judgment.)
68. In disposing of the multilateral treaty reservation, the Court arrives
at the following conclusions:
(a) El Salvador, Honduras and Costa Rica, being bound by the Court's
compulsory jurisdiction, are free to institute proceedings against
Nicaragua if they should find that they might be affected by the future
decision of the Court. Moreover, they are free to resort to the incidental
procedure of intervention. Thus there is no question of their needing the
protection of the multilateral treaties reservation.
(b) It is for the Court to determine which are the States "affected" within
the meaning of the reservation. But it is "only when the general lines of
the judgment to be given have come clear that the States 'affected' could be
identified. By way of example we may take the hypothesis that if the Court
were to decide to reject the Application of Nicaragua on the facts, there
would be no third States that could claim to be affected."
(c) The question of which States are affected is a matter of substance
relating to the merits of the case, "obviously" not a jurisdictional
problem. The Court must therefore avail itself of Article 79, paragraph 7,
of the Rules of Court and declare that the objection based on the
reservation "does not possess, in the circumstances of the case, an
exclusively preliminary character" and that consequently it does not
constitute an obstacle for the Court to consider the merits of Nicaragua's
Application. At the same time, the Court holds, the Rules of Court as
revised have done away with the procedural technique formerly available of
joinder of preliminary objections to the merits.
(d) Moreover, the reservation could not bar adjudication by the Court of [p
604]all Nicaragua's claims, since those claims embrace principles of
customary international law. The fact that such principles have been
codified or embodied in multilateral conventions does not mean that they
have ceased to exist as customary international law.
69. In my view, conclusions (a), (b) and (c) are misconceived. Conclusion
(d) raises substantial and difficult questions which are discussed below. My
reasons for so maintaining are the following:
70. With respect to (a), it may be observed that the multilateral treaties
reservation excludes from the scope of United States submission to the
Court's compulsory jurisdiction disputes arising under a multilateral treaty
unless "all parties to the treaty affected by the decision are also parties
to the case before the Court" (emphasis supplied). The only Parties now
before the Court are Nicaragua and the United States. The fact that third
States affected by the decision might, if they choose, institute
proceedings in separate cases against Nicaragua, or might seek to intervene
in the current case, is beside the point of the reservation. It may be that
those States, or some of them, will choose not to institute proceedings
against Nicaragua none have to date and that is their perfect right.
Equally, it is unknown whether they will seek to intervene (a process which,
as Orders of the Court rendered in recent times in respect of attempted
interventions of Malta, Italy and El Salvador demonstrate, is in any event
problematical). But what is determinative, in application rather than
evasion of the multilateral treaty reservation is the answer to a simple
question of fact: are all parties to the multilateral treaties at issue
affected by the decision also parties to the case before the Court?
Obviously, now, they are not. The United States has not specially agreed to
jurisdiction. Thus the reservation, which by its nature was meant to take
effect at the jurisdictional phase of the proceedings, applies, and must be
applied. But what is less obvious is which are the parties "affected".
71. In respect to (b), the Court rightly holds that it is for the Court to
determine which are the States "affected" within the meaning of the
reservation. But the Court concludes that it is only "when the general lines
of the judgment to be given have become clear" that the States "affected"
could be identified. It goes without saying that, if that identification can
be made only at that late stage, after the parties have been required fully
to brief and argue the merits, the reservation could not fully serve the
purposes of a jurisdictional bar which it was designed to serve. The
Court's inference accordingly is that the reservation is incapable of
application at a jurisdictional stage of the proceedings. In my view, such
an interpretation of the multilateral treaty reservation is unacceptable. It
is not the function of the Court to interpret the reservations of States to
their adherences to the Court's compulsory jurisdiction so as to lead, if
not "to a result which is manifestly absurd or unreasonable" (Vienna
Convention on the Law of [p 605] Treaties, Art. 32), then to a result which
denies a reservation its obvious object. Rather, the Court is obliged, in
accordance with its consistent jurisprudence, to give effect to "the close
and necessary link that always exists between a jurisdictional clause and
reservations to it" (Aegean Sea Continental Shelf, Judgment, I.C.J. Reports
1978, p. 33). It is not free to sever that link by an interpretation of a
reservation which deprives it of its point. Moreover, the Court's
interpretation is inconsonant with the terms of the Court's Statute and
inconsistent with the pleadings of the Parties in this case.
72. The Court's interpretation of the multilateral treaty reservation is
inconsonant with the terms of Article 62 of its Statute, which provides:
"1. Should a State consider that it has an interest of a legal nature which
may be affected by the decision in the case, it may submit a request to the
Court to be permitted to intervene.
2. It shall be for the Court to decide upon this request."
It will be observed that Article 62, like the multilateral treaty
reservation, employs the verb "to affect" in its past participle,
"affected". In one sense, Article 62 is more narrowly cast than the
reservation, because it is confined to "an interest of a legal nature which
may be affected", whereas the reservation speaks of parties to the treaty
"affected by the decision" -which admits of being affected not only legally
but politically, economically, militarily, and otherwise. In another sense,
Article 62 is more broadly cast, because it covers cases in which a State's
legal interest "may be" affected, whereas the reservation simply states:
"affected". But what is instructive in answering the immediate question are
two facts relating to Article 62: first, it provides Statutory demonstration
of the use of the very term "affected" to which the Court in this case finds
itself unable to give operative significance at this stage of the
proceedings. And second, in the history of the interpretation of Article 62
by the Permanent Court and this Court, it has never before been suggested,
still less held by the Court, that Article 62 could not be applied because
it was only after the general lines of the judgment to be given have become
clear that the Court could determine whether a State actually has an
interest that may be or is affected by the judgment.
73. The Court's interpretation of the multilateral treaties reservation is
inconsistent with the pleadings of the Parties in the case; which themselves
quite clearly demonstrate which are the States whose interests are to be
affected by the Court's judgment on the merits. The pleadings of Nicaragua
are particularly probative, for it is Nicaragua's Application and its
precise claims in which it sets out what the Court is requested to adjudge
and declare which frame the issues of the case. Nicaragua, while making its
claims against the United States alone, has made it clear that other Central
American States in addition to itself are involved in the dispute. The very
[p 606] first numbered paragraph of its Application claims that the United
States has installed more than "10,000 mercenaries... in more than ten base
camps in Honduras along the border with Nicaragua ...". This accusation is
elaborated in Annex A to the Nicaraguan Application, in its introductory
paragraphs and in numbered paragraphs 1,2,5,6,7,8,9,10,11,13,14, 17, 20, 22
and 23. Nicaragua has also alleged that there are 2,000 United
States-supported "mercenaries" operating against it from Costa Rica
(affidavit of Nicaraguan Foreign Minister d'Escoto Brockmann, Exhibit II,
para. 5, submitted during the oral proceedings on provisional measures) and
that the Government of Costa Rica is acting in concert with the United
States (affidavit of Luis Carrion, Exhibit I, para. 4, also submitted at the
stage of provisional measures). Moreover, in the recent oral argument in
this phase of the proceedings, the Agent of Nicaragua alleged that, in this
dispute, the United States has bases, radar stations, spy planes, spy ships
the armies of El Salvador and Honduras at its service..." (Hearing of 8
October 1984); that is to say, Nicaragua has alleged that the United States
acts in concert with Honduras and El Salvador. It is accordingly plain that,
if the pleadings of Nicaragua are to be accepted for these purposes as
accurate, and if Nicaragua were in a decision of the Court to be accorded
the remedies which it seeks, Honduras, Costa Rica and El Salvador
necessarily would be "affected" by the Court's decision. Point (g) of what
Nicaragua in its Application (at para. 26) requests the Court to adjudge and
declare makes this particularly clear. Nicaragua requests that the Court
hold that the United States
"is under a particular duty to cease and desist immediately ... from all
support of any kind including the provision of training, arms, ammunition,
finances, supplies, assistance, direction or any other form of support to
any nation... engaged or planning to engage in military or paramilitary
actions in or against Nicaragua ..."
It is a fact that the United States is heavily engaged in supporting
Honduras and El Salvador with training, arms, finances, etc. Nicaragua
itself in its Application and pleadings alleges that Honduras and El
Salvador are engaged in military or paramilitary actions in or against
Nicaragua, in concert with the United States. Honduras and El Salvador, in
their communications to the Court, maintain that actually it is Nicaragua
which has engaged and is engaging in a variety of acts of direct and
indirect aggression against them, including armed attacks. (See the letter
of 18 April 1984 from the Government of Honduras to the Secretary-General of
the United Nations containing observations on the then pending request for
provisional measures, as well as the Court's Order of 10 May 1984, my
dissenting opinion, p. 199; and see El Salvador's Declaration of
Intervention of 15 August 1984, in which it alleges, inter alia, that it
"considers itself under the pressure of an effective armed attack on the
part of Nicaragua ...". It there protested "the aggression of which it is a
victim [p 607] through subversion directed by Nicaragua ...". It claimed
that, "Nicaragua has been converted into a base from which the terrorists
seek the overthrow of the popularly elected Government of our nation. They
are directed, armed, supplied and trained by Nicaragua ..." (at paras. I and
III).) In short, Nicaragua seeks a judgment from the Court requiring the
United States to cease and desist from actions which Nicaragua claims are
unlawfully directed against Nicaragua, with the assistance of Honduras,
Costa Rica and El Salvador, whereas the United States, Honduras and El
Salvador claim that these very actions are conducted in collective
self-defence against Nicaraguan acts of aggression. The judgment which the
Court reaches on this critical point accordingly must "affect" not only the
United States but Honduras and El Salvador, and in view of Nicaragua's
allegations - Costa Rica as well. If the Court takes the facts as alleged in
Nicaragua's pleadings as true which the Court is entitled to do for
purposes of deciding whether Nicaragua presents a cause of action over which
the Court has jurisdiction or which is admissible then it necessarily
follows that Honduras, Costa Rica and El Salvador must be affected by a
decision of the Court in this case, whatever that decision turns out to be.
Nicaragua's Agent indeed maintained that Nicaragua has no objection "to a
participation of El Salvador" in this case, indeed, "no objection to a
participation of other States" (Hearing of 8 October 1984). This suggests
that Nicaragua itself has recognized that, at least within the compass of
Article 63, El Salvador, Honduras and Costa Rica will be "affected" by any
decision of the Court in this case. El Salvador itself has sought to
intervene under Article 63 of the Statute; the Court has inferred in its
Order of 4 October 1984 the propriety of such intervention on the merrits;
and Honduras and Costa Rica, while not seeking to intervene, have also sent
communications to the Court or to the Secretary-General which demonstrate
their concern about how adjudication of this case would affect them.
74. The conclusion to which the particulars of the pleadings of the Parties
lead is supported by the principles of international law. If Nicaragua's
charges are true if the acts against it which it alleges the United States
is taking or supporting are in fact taking place, if they are unlawful, and
if Honduras and Costa Rica are knowingly lending their territory and El
Salvador is lending its resources to the commission of these acts - then
Honduras, Costa Rica and El Salvador also stand in violation of their
international obligations. Indeed, even if the acts of Honduras, Costa Rica
and El Salvador themselves do not give rise to international responsibility,
then aid or assistance by Honduras, Costa Rica and El Salvador to the United
States for the commission of the acts of the United States constitutes an
internationally wrongful act on the part of those three States. These
elemental aspects of accepted international law are illustrated in the draft
articles on State Responsibility which my eminent colleague, Judge Ago,
prepared and which the International Law Commission has adopted. Article 27
of that draft provides:[p 608]
"Aid or Assistance by a State to Another State for the Commission of an
Internationally Wrongful Act
Aid or assistance by a State to another State, if it is established that it
is rendered for the commission of an internationally wrongful act, carried
out by the latter, itself constitutes an internationally wrongful act, even
if, taken alone, such aid or assistance would not constitute the breach of
an international obligation." (Yearbook of the International Law Commission
1978, Vol. II, Part Two, p. 99.)
The commentary to that article demonstrates how established are these
principles of international law in doctrine and practice (pp. 99-105). It
follows from these principles, and from the pleadings of Nicaragua, that, if
the Court should sustain Nicaragua's claims, Honduras, Costa Rica and El
Salvador necessarily will be affected by the Court's judgment in the case.
75. Nor is it persuasive to argue, as the Court does, that if it should
reject Nicaragua's Application, there would be no third States that could
claim to be affected by the judgment in the case. That is like saying that,
if in a national court, citizen "A" is indicted on charges of terrorism
involving the smuggling of narcotics and arms, and foreigners "B", "C" and
"D", who are situated abroad, are named in the charges as unindicted
co-conspirators, and if the court finds citizen "A" not guilty, then
foreigners "B", "C" and "D" are not affected by the judgment - not affected
legally, economically, morally or otherwise. Indeed, the case before this
Court is an a fortiori case, because, while in the hypothetical case, the
foreigners, not being within the territorial jurisdiction of the forum, are
not, or probably are not, subject to its law, in the case before this Court
the situation is fundamentally otherwise. While, by the terms of Article 59
of the Court's Statute, the decision of the Court has no binding force
except between the Parties and in respect of that particular case, and
while, in point of fact, the only Parties before the Court are Nicaragua and
the United States, nevertheless all States are subject to the same law to
which they are subject, international law. Thus the certainty of States
which are deeply implicated in the pleadings of the Applicant being
affected by the judgment of the Court in this case is the clearer.
76. Let us assume, however, contrary to the foregoing considerations, that
the Court is correct in a holding which had the effect of rendering the
multilateral treaty reservation of the United States inoperative, at any
rate in the jurisdictional phase of the proceedings in which it was designed
to operate. Let us assume that it is right in concluding that "it is only
when the general lines of the judgment to be given become clear that the
States 'affected' could be identified". What follows from that portentous
conclusion ? In the Court's view, apparently it follows, for this and other
reasons, that the multilateral treaty reservation "does not constitute an
obstacle for the Court to entertain the proceedings instituted by Nicaragua
...". My conclusion is the opposite.[p 609]
77. In his notable dissent in the Interhandel case, Judge Sir Hersch
Lauterpacht observed that:
"Invalidity, in the contemplation of the law, is nothing else than inherent
incapacity to produce legal results ...
The United States of America has accepted the obligations of Article 36 (2)
of the Statute on condition that in any particular case it is for the
Government of the United States of America, and not for the International
Court of Justice, to determine whether a matter is essentially within the
domestic jurisdiction of the United States of America. That condition,
covering as it does a potentially all-comprehensive category of disputes
relating to matters essentially within domestic jurisdiction, has replaced -
in addition to another wide reservation in the American Declaration of
Acceptance relating to the interpretation of multilateral treaties the
traditional formula requiring the consent of the Senate, or of the
Government of the United States of America, to the submission of any
particular dispute to the international tribunal. This Court, whose
jurisdiction is grounded solely and exclusively in the consent of the
defendant State, must respect that essential condition of the Declaration of
Acceptance.
Any decision of the Court which arrogates to it a competence denied to it by
the express terms of the jurisdictional instrument relied upon by the
parties disturbs the continuity of the established jurisprudence of the
Court. That jurisprudence has been based on the accepted principle of
international law that the jurisdiction of the Court is based invariably on
the consent of the parties, given in advance or in relation to a particular
dispute ... But the Court has not assumed jurisdiction - and cannot properly
do so - if jurisdiction is expressly denied to it." (Interhandel, Judgment,
I.C.J. Reports 1959, pp. 104, 107, 114-115.)
Judge Lauterpacht then considered the question whether, although the
Connally Reservation
"is invalid the Declaration of Acceptance may, apart from that
reservation, be treated as otherwise subsistent and given effect by the
Court. In the case concerning Certain Norwegian Loans I gave reasons in my
separate opinion - which must be read as forming part of the present Opinion
why that question must be answered in the negative. These reasons
included the general principle of law governing the subject, namely, the
principle that a condition which, having regard to the intention of the
party making it, is essential to and goes to the roots of the main
obligation, cannot be separated from it. This is not a mere [p 610]
refinement of private law, or of any municipal system thereof, but as all
general principles of law a maxim based on common sense and equity. A
party cannot be held to be bound by an obligation divested of a condition
without which that obligation would never have been undertaken." (Ibid., pp.
116-117.)
In his separate opinion in the Certain Norwegian Loans case, Judge
Lauterpacht, in discussing whether it was possible to sever a French
self-judging proviso from the French declaration accepting the compulsory
jurisdiction of the Court, concluded:
"The Court cannot properly uphold the validity of the Acceptance as a whole
and at the same time treat as non-existent any such far-reaching, articulate
and deliberate limitation of its jurisdiction. To do so would run counter to
the established practice of the Court -which, in turn, is in accordance with
a fundamental principle of international judicial settlement that the
Court will not uphold its jurisdiction unless the intention to confer it has
been proved beyond reasonable doubt. The Court certainly cannot assume
jurisdiction if there is a clearly expressed intention to deny it in
specified circumstances. This means that it would not be possible for the
Court to disregard that part of the reservation in question which claims for
the State concerned the right to determine its application. It is not
possible for the Court to do otherwise than to regard this particular part
of the reservation, so specifically formulated, as constituting an essential
and not severable part of the instrument of acceptance." (Case of Certain
Norwegian Loans, Judgment, I.C.J. Reports 1957, pp. 58-59.)
78. It cannot be maintained that the Senate of the United States attached
the same importance to the Vandenberg multilateral treaties Reservation as
it attached to the Connally Reservation. Indeed, the Senate debate in the
course of which the Vandenberg Reservation was added suggests that the
Senators concerned were under the impression that the objective which the
Vandenberg Reservation was meant to ensure was already written into the
Statute by the doctrine and practice of reciprocity. (See the Congressional
Record, Proceedings and Debates of the 79th Congress, Second Session, 1
August 1946, p. 10618.) They nevertheless added the Vandenberg Reservation
with a view to being "doubly assured" (ibid.) that the Court could not
entertain a dispute involving the United States arising under a multilateral
convention unless all parties to the treaty affected by the decision were
also parties to the case before the Court. That was the Senate's intention.
That intention is clearly reflected in the words of the reservation which
were incorporated into the text of the declaration. That is what proviso (c)
of the United States reservations to the Court's compulsory jurisdiction
says. While there may be room for questioning [p 611] whether the United
States was of the view that this proviso was essential to its declaration,
nevertheless I do not believe that the Court is free to disregard or sever
it on the ground of its relative unimportance. It is a safeguard which,
after deliberation, and in the absence of a recommendation supporting its
inclusion from the Department of State, the Senate of the United States
nevertheless decided to require. In my view, it accordingly follows that it
would not be appropriate for the Court to find that that reservation is
inherently inoperative at the stage at which it was designed to operate,
i.e., in a limited sense, invalid, by finding, as Judge Lauterpacht put it,
that is has "an inherent incapacity to produce legal results"; however, once
the Court so finds as it in effect does for present purposes in today's
judgment - it also follows that it must treat the whole of the United States
Declaration of 14 August 1946 as invalid. If for that reason the United
States declaration as a whole is invalid, then it cannot be invoked by
Nicaragua to sustain the jurisdiction of the Court.
79. As for (c), the Court's third reason for not giving effect to the
multilateral treaty reservation, it is difficult to express a definitive
view because of the compressed character of the Court's reasoning. After
holding - in my view, wrongly - that "obviously" the question of what
States may be "affected" is not a jurisdictional problem, the Court states,
first, that "the procedural technique formerly available of joinder of
preliminary objections to the merits has been done away with ..." and
second, that "the Court has no choice but to avail itself of Article 79,
paragraph 7, of the present Rules of Court", and
"declare that the objection based on the multilateral treaty reservation of
the United States Declaration of Acceptance does not possess, in the
circumstances of the case, an exclusively preliminary character, and that
consequently it does not constitute an obstacle for the Court to entertain
the proceedings instituted by Nicaragua under the Application of 9 April
1984" (Judgment, para. 76).
80. This holding of the Court may be understood in more than one way. It can
be interpreted as meaning that, since the United States objection based on
the reservation does not possess an exclusively preliminary character, it
does not constitute at this stage of the proceedings an obstacle for the
Court to entertain the case instituted by Nicaragua. From this it follows
that this United States objection, not possessing an "exclusively"
preliminary character, necessarily possesses some preliminary character, and
that that character will be addressed, as a preliminary and jurisdictional
question, at the stage of the merits, at which time the Parties can plead
further, inter alia, to the question of which States, if any, are to be
affected by any judgment which the Court may render on the merits of the
case. If this is what the Court means, while it would hardly constitute an
application of the multilateral treaty reservation as it must have been
intended that it would be applied - at the jurisdictional stage - otherwise
this would be a tenable holding.
[p 612]
81. However, the Court confounds this interpretation by holding that "the
procedural technique formerly available of joinder of the preliminary
objections to the merits has been done away with since the 1972 revision of
the Rules ...". By this, the Court appears to hold that, at the stage of the
merits, the United States preliminary objection based on the multilateral
treaty reservation may not be argued and may not be found to bar the claims,
or some of the claims, of Nicaragua. If this is indeed what the Court means
to say - and whatever it means, its words are subject to this construction -
then the Court will have sunk the multilateral treaty reservation without a
trace by use of a watertight device: on the one hand, by holding that, since
it is not of an exclusively preliminary character, it cannot be given effect
at the jurisdictional stage of the proceedings; on the other hand, by
holding that that preliminary objection cannot be taken up at the stage of
the merits, since the joinder of preliminary objections to the merits "has
been done away with". That would be an extraordinary procedure, which could
be used not only to vitiate this reservation but all sorts of reservations,
on the ground that they may not be applied by way of preliminary objection
since they are not of an exclusively preliminary character, and may not be
addressed at the stage of the merits, on the ground that the revised rules
exclude joining preliminary objections to the merits.
82. The pertinent passages of Article 79 of the Rules of Court on
"Preliminary Objections" read as follows:
"6. In order to enable the Court to determine its jurisdiction at the
preliminary stage of the proceedings, the Court, whenever necessary, may
request the parties to argue all questions of law and fact, and to adduce
all evidence, which bear on the issue.
7. After hearing the parties, the Court shall give its decision in the form
of a judgment, by which it shall either uphold the objection, reject it, or
declare that the objection does not possess, in the circumstances of the
case, an exclusively preliminary character. If the Court rejects the
objection or declares that it does not possess an exclusively preliminary
character, it shall fix time-limits for the further proceedings.
8. Any agreement between the parties that an objection submitted under
paragraph 1 of this Article be heard and determined within the framework of
the merits shall be given effect by the Court."
83. It is plain the Court may treat a preliminary objection in three ways :
(a) uphold it; (b) reject it; (c) "declare that the objection does not
possess, in the circumstances of the case, an exclusively preliminary
character". In that latter event, the Court shall fix time-limits for the
further proceedings, a provision which imports that, at those proceedings,
an objection which does not possess an exclusively preliminary character,
but therefore some preliminary character, will be taken up. I am unable to
see that paragraph 8 prejudices this interpretation; rather, it supplies an
[p 613] alternative route to the same terminus. I am confirmed in these
conclusions by an article which a former distinguished President of the
Court, Judge Eduardo Jimenez de Arechaga, wrote on "The Amendments to the
Rules of Procedure of the International Court of Justice" which was
published in the American Journal of International Law for January 1973,
Volume 67, page 1. Judge Jimenez de Arechaga observed that, in revising its
rules, there was majority recognition of the need to:
"(3) regulate preliminary objections so as to settle them as soon as
feasible and avoid the delay and expense involved in a double discussion of
the same question at both the preliminary stage and the stage of the merits"
(ibid.).
Accordingly, what is now paragraph 6 of Article 79 was introduced, with a
view towards inducing the Court to determine all preliminary objections at
the preliminary stage of the proceedings, if possible. Where, however, a
preliminary objection so relates to the merits that its argument at the
preliminary stage would entail arguing the whole of the case at that stage,
or where the Court does not find it necessary or desirable to require
the Parties at the preliminary stage to argue all questions of law and fact,
and to adduce all evidence, which bear upon the issue: "It would then be for
the Respondent to raise such a defense at the stage of the merits, if it so
wished." (Ibid, p. 17.)
84. Now in the instant case the Court has not invoked or applied paragraph 6
of Article 79 of its Rules. It has not requested the Parties to argue all
questions of law and fact, and to adduce all evidence, which bear upon the
issue of whether Honduras, Costa Rica and El Salvador are to be affected by
the Court's judgment in the case. If it had done so, it would have required,
if not the argument of the whole of the case, then the argument of the
essence of the defence to the case. That being so and having failed to
sustain the objection of the United States invoking the multilateral
treaties reservation on the pleadings, as, in my view, the Court should have
- it follows that, at the stage of the merits, the United States is free to
raise its defence based on that reservation in bar to the Court's proceeding
with the case. That, at any rate, is in my understanding of the Rules and of
what the Court's pertinent holding in this case should mean, but I am not
able to say that that is what the Court does mean.
85. Let us finally, in respect of the multilateral treaty reservation,
address point (d), the Court's holding that Nicaragua's claims embrace
customary as well as treaty law and to that extent are not debarred by the
reservation even if that reservation were to be applied.
86. Assuming application of the reservation, there are two possibilities.
The first would be to dismiss the case (except in so far as it may have a
bilateral treaty basis), on the ground that Nicaragua's claims are so
inte-[p 614] grally and essentially bound up with the treaty provisions on
which they rely that, if those provisions cannot be pleaded, there is no
case which the Court can consider. The second would be to retain the case in
so far as Nicaragua can make out a case divorced from the terms of those
treaties, a case which is based on customary international law. In its
Application, Nicaragua claims violation not only of the four treaties but of
"fundamental rules of general and customary international law..." (para.
14).
87. Nicaragua attempts to meet the United States reliance on the
reservation by arguing that, even if that proviso can be and is applied, it
leaves its claims under customary international law intact. It observes that
there is nothing to prevent a State from pleading simultaneously in
conventional and customary law. Some of its claims are exclusively cast in
terms of customary law. But in any event, Nicaragua argues, even if one were
to accept the United States contention that all of the Nicaraguan claims are
variations of the obligations encompassed by the provisions of Article 2,
paragraph 4, of the United Nations Charter, those provisions are
declaratory of international law; the obligations of Article 2, paragraph 4
-and corresponding and complementary obligations of the Charter of the
Oganization of American States exist in customary international law even
if those treaty provisions cannot be relied upon as such. In reply, the
United States argues that, on analysis, all of Nicaragua's claims
customary and treaty-based are in substance the same; the one set merely
paraphrases the other; and no relevant customary international law exists
apart from the treaties invoked by Nicaragua. Moreover, the United States
maintains, the Court cannot properly adjudicate the customary international
law claims which Nicaragua makes when the limitations contained in the
United States declaration preclude the Court from applying the specific,
governing legal standards to which the Parties have agreed in the treaties
in force between them.
88. In my view, there is a broad but not necessarily complete substantive
equivalence between the claims which Nicaragua makes under conventional and
under customary international law (as appears from a comparison of those
claims). Furthermore, contemporary international law governing the use of
force in international relations is essentially composed of Article 2,
paragraph 4, and Article 51 of the United Nations Charter. Are those
provisions also part of contemporary customary international law ? Article
2, paragraph 6, of the United Nations Charter provides:
"The Organization shall ensure that States which are not members [p 615] of
the United Nations act in accordance with these Principles so far as may be
necessary for the maintenance of international peace and security."
While there is little agreement on the scope of jus cogens, it is important
to recall that in the International Law Commission and at the Vienna
Conference on the Law of Treaties there was general agreement that, if jus
cogens has any agreed core, it is Article 2, paragraph 4. Moreover, Article
52 of the Vienna Convention on the Law of Treaties provides:
"A treaty is void if its conclusion has been procured by the threat or use
of force in violation of the principles of international law embodied in
the Charter of the United Nations."
That is not to say that Article 2, paragraph 4, and Article 51 of the
Charter occupy the whole field of the use of force in international
relations. It is not to say, for example, that necessarily there is no scope
to self-defence or to protection of nationals apart from Article 51 and
Article 2, paragraph 4. But it is to say that Article 2, paragraph 4, is the
supreme and pre-emptive statement of the law in the field which it does
occupy. Moreover, while Article 2, paragraph 4, had its antecedents in the
Covenant of the League of Nations, the Kellogg-Briand Pact, and the
Nuremberg principles and judgments, it is difficult to conclude that it was
merely a codification of customary international law; on the contrary, the
Charter was viewed at the time of its adoption as a revolutionary advance in
respect of the legality of the use of force and of resort to war in
international relations, and, if one speaks not of doctrine but of reality,
Article 2, paragraph 4, still represents more preachment than practice in
the affairs of States. Thus, I am inclined to think that it cannot simply be
said that customary international law, as it had evolved by 1945, equated
with the content of Article 2, paragraph 4; and it can even less be said
that, if Article 51 is removed, the bounds of self-defence in customary
international law equate with its terms. May it nevertheless be argued that,
as a result of the ratification of the United Nations Charter (including
Art. 2, para. 6) by virtually every State in the world, and by virtue of
general agreement that Article 2, paragraph 4, of that Charter is jus
cogens, the provisions of Article 2, paragraph 4, have been subsequently
imported into customary international law? Surely Switzerland, which has not
yet joined the United Nations, or Indonesia, which for a time withdrew from
the United Nations, were and are as bound by the prescriptions of Article 2,
paragraph 4, as are the States Members of the United Nations. That is a
powerful and probably correct argument, but it runs into the profound
difficulty that the practice of States does not demonstrate that Article 2,
paragraph 4, in fact reflects customary international law. Finally, since
Article 2, paragraph 4, and Article 51 (and variations upon their themes as
they appear in the OAS Charter) are the specific and governing legal
standards to which the Parties in this case have [p 616] agreed, I have some
difficulty in seeing how the Court can proceed to adjudicate Nicaragua's
claims if, by application of the multilateral treaty reservation, reliance
on those standards is excluded. Such adjudication would be an unreal,
artificial, highly constricted and yet unduly unconstrained process, in
which the Court could be confronted with profoundly sensitive questions,
such as: what is the scope of self-defence in international law if the
provisions of Article 51 are left entirely out of consideration?
89. Nevertheless, there are aspects of the instant case - such as freedom of
navigation on the high seas - on which customary international law
indisputably existed before the treaties on which Nicaragua relies came into
force. It is by no means clear that those treaties establish preclusive
legal standards governing that freedom, though they may do so with respect
to the use of force which impairs that freedom.
90. More than this, the question of to what extent the claims of Nicaragua
embody claims under customary international law which subsists or exists,
even if the treaties on which Nicaragua relies are left out of account, is a
delicate and complex question, which has not been fully argued by the
Parties. Aspects of it may relate to the merits of the case. In view of
these considerations, and of the fact that the haste with which the Court
has dealt with aspects of the current case, from the moment of its filing
through the issuance of today's Judgment, has not afforded me the time
sufficiently to consider this difficult question, I feel bound to reserve my
position upon it.
(iii) The "1984 notification" of the United States
91. It is clear that, if the Court were to give effect to the United States
Note of 6 April 1984 - the "1984 notification" - purporting to modify the
terms of its 1946 Declaration with immediate effect so as to exclude, for a
period of two years, "disputes with any Central American State or arising
out of or related to events in Central America", the claims of Nicaragua
would be debarred in so far as they rely on the United States declaration
accepting the Court's compulsory jurisdiction. The Court declines to give
such effect to the 1984 notification, on the following grounds:
(a) Whether the 1984 notification is classified as a termination or
modification of the 1946 Declaration does not matter, for it is intended to
secure a partial and temporary termination of the United States obligation
to subject itself to the Court's jurisdiction in the specified respects.
(b) Declarations accepting the Court's compulsory jurisdiction, while
unilateral, do not leave the declarant free to amend the scope and content
[p 617] of its commitments as it pleases. The principle of good faith
governs. Since the United States Declaration of 1946 formally and solemnly
provides that any change should take effect only after six months have
elapsed from the date of notice, the United States must be held to this
undertaking.
(c) The notion of reciprocity is concerned with the scope and substance of
commitments entered into under the Optional Clause, and not with the formal
conditions of their duration.
(d) Reciprocity cannot be invoked in order to excuse departure from the
terms of a State's own declaration; it can only take advantage of an express
restriction in the declaration of the other Party to the case. Thus the
United States cannot rely upon the claimed right of Nicaragua to revoke its
declaration at any time.
(e) Nicaragua in any event has not reserved such a right but, if it has that
right, it could only be exercised on reasonable notice. Thus, if the United
States may reciprocally invoke such a right, it also can do so only on
reasonable notice, which is absent in this case.
(f) Nor is it clear that a State can invoke considerations of reciprocity
before the Court is seised of a case.
92. I am essentially in agreement with point (a). I do not believe that it
can be persuasively argued that, since the United States Declaration of 1946
excludes termination on less than six months' notice, but not modification,
the United States may freely modify its declaration, at any rate in the
manner in which the 1984 notification purports to do. The Court is right to
hold that that notification is tantamount to a limited, suspensive
termination.
93. Point (b) of the Court's conclusions is not altogether self-evident, as
distinguished colleagues' opinions in this case show. Nevertheless, for my
part, and for the purposes of this case, I am prepared to accept it, subject
to one critical caveat which the Court's judgment does not meet: that the
principle of good faith interpretation be applied equally to all elements of
the United States declaration. The United States may quite reasonably be
held to the provision of no termination on less than six months' notice,
provided that the Court is held to respect for the multilateral treaty
reservation which that declaration embodies. The relevant report of the
Senate Committee on Foreign Relations tellingly provides as counsel for
Nicaragua stressed - that the six months' termination proviso "has the
effect of a renunciation of any intention to withdraw our obligation in the
face of a threatened legal proceeding" (79th Congress, 2nd Session, United
States Senate, Report No. 1835, p. 5). But that report also contains other
conditions respecting the United States declaration, which are set out
below. If all those conditions are respected, then it would be right to hold
the United States to that renunciation. But if those other conditions are
not respected - and the Court's Judgment does not respect them - on what [p
618] ground may the Court selectively choose the elements of the United
States declaration to which the United States is to be held?
94. I do not find myself in agreement with the holdings of the Court
summarized in points (c), (d), (e) and (f), though I recognize that those
holdings are not unfounded. Before setting out my conclusions on these
points, it will be convenient to place the United States Declaration of 1946
in its context, to show what were the intentions of the Government of the
United States in adopting it, and to contrast the situation as it obtained
in respect of the Optional Clause in 1946 with present reality.
95. When the declaration was under consideration in the United States
Senate, the Committee on Foreign Relations took care to describe the scope
of the jurisdiction to be conferred under the declaration as "carefully
defined and limited". In the first place, it said, there is "a general
limitation of jurisdiction to legal disputes". Then a "second major
limitation on the jurisdiction conferred arises from the condition of
reciprocity ... specified in the resolution ..." and in the language of the
Statute and by practice in pursuance of it. A third limitation is to
disputes arising in the future. Of this limitation and the effect of
reciprocity, the Senate Report declared that:
"any limitation imposed by a state in its grant of jurisdiction thereby also
becomes available to any other state with which it might become involved in
proceedings, even though the second state had not specifically imposed the
limitation. Thus, for example, if the United States limited its grant of
jurisdiction to cases 'hereafter arising' this country would be unable to
institute proceedings regarding earlier disputes, even though the defendant
state might not have interposed this reservation." (Report No. 1835, p. 5.)
Thus it will be observed that, when the United States filed its declaration
embracing "all legal disputes hereafter arising", subject to specified
limitations, it understood that reciprocity embraces temporal limitations.
A fourth limitation concerns freedom to entrust disputes to other tribunals.
A fifth limitation excludes matters essentially within the domestic
jurisdiction of the United States. The Report then declares:
"The resolution provides that the declaration should remain in force for a
period of 5 years and thereafter until 6 months following notice of
termination. The declaration might, therefore, remain in force indefinitely.
The provision for 6 months' notice of termination after the 5-year period
has the effect of a renunciation of any intention to withdraw our obligation
in the face of a threatened legal proceeding." (Ibid.)[p 619]
Consideration of the Report on the floor of the Senate emphasized that, by
adhering to the Court's compulsory jurisdiction in these terms, the United
States would vitally contribute to the general acceptance of the Court's
effective compulsory jurisdiction. A discordant and contentious note was
struck by Senator Connally's proposal on the floor to add his famous
reservation, which carried, over energetic opposition. But another
crippling reservation, which would have endeavoured to confine the sources
of law to be applied in cases to which the United States is party to
treaties, in the absence of prior agreement as to what are the applicable
sources of international law, was defeated. The Vandenberg Reservation was
easily accepted. The provision for six months' notice attracted no criticism
in floor debate.
96. In introducing the proposed declaration, the Senate Committee on Foreign
Relations recalled to the Senate that the Optional Clause in the days of the
Permanent Court had achieved at one time the acceptance of the very great
majority of the States then independent:
"Under this provision some 44 states, including 3 of the 5 states now
permanent members of the Security Council (Great Britain, France, and
China), at one time or another deposited declarations accepting this
jurisdiction." (Report No. 1835, p. 8.)
In 1946, declarations by which States reserved the right to terminate their
declarations on notice were few and to modify them at any time were unknown.
A term of years, together with a notice period, was the pattern which the
1928 General Act for the Pacific Settlement of International Disputes had
adopted, which a large number of States had followed, and which the United
States embraced. The unconditional declaration which was indefinite in
duration because it specified no term of years or notice period, of which
Nicaragua's 1929 Declaration is an example, was uncommon in 1946 and is
almost extinct today. The seven such declarations that still exist were made
in the optimistic if transient days of the League when it was believed that
universal and effective compulsory jurisdiction of the Court was burgeoning.
97. However, the contemporary situation is unlike that which prevailed in
1929 or 1946. Today, only 47 of the 162 States party to the Statute are
bound under the Optional Clause. Of the 47 declarations now in effect, only
19 are not expressly subject either to unilateral termination or to
modification on notice. The Soviet Union has never adhered to the Court's
compulsory jurisdiction under the Optional Clause; neither China nor France
currently adhere. The only Permanent Member of the Security Council party to
the Optional Clause other that the United States is the United Kingdom,
which has reserved "the right at any time ... and with effect from the
moment of ... notification, either to add to, amend or withdraw" any of its
extensive reservations, and this in a declaration which has been made "until
such time as notice may be given to terminate" it.[p 620] Many other leading
States, including Algeria, Argentina, Brazil, the Federal Republic of
Germany, Italy, Poland and the other States of Eastern Europe, Senegal, and
Syria do not adhere to the Optional Clause. Thus it is clear that the
expectations in the light of which the Senate gave its consent and the
President filed the declaration of the United States have not been
fulfilled.
98. Does it follow, in part because of the failure of these expectations,
that the United States is entitled to exercise what subsequent practice may
be said to have recognized to be an inherent right to terminate a
declaration on notice, despite the presence of a termination clause
providing for a period of notice? In my view, a considerable case can be
made out for that conclusion, as distinguished colleagues show in their
opinions. But in order to pass upon the 1984 notification of the United
States, it is not necessary, in my view, for the Court to take a position on
that question.
99. Nor is the Court required to take a position on the allied question of
whether declarations under the Optional Clause are subject to the
provisions of the law of treaties regulating the termination of treaties
or, rather, to a sui generis regime. The Court appears nevertheless to
incline towards the view that the law of treaties governs declarations, if
only by analogy. My own view is that the argument for a sui generis regime
is much stronger. That is because of the nature of declarations under the
Optional Clause -unilateral as they are, not subject to negotiation,
reservations to which are not subject to agreement. Their nature differs
substantially from that of treaties. The Court's treatment of such
declarations is suggestive, notably in the Anglo-Iranian Oil Co. case
(jurisdiction), Judgment, I.C.J. Reports 1952, pages 93, 105, where the
Court held:
"the text of the Iranian Declaration is not a treaty text resulting from
negotiations between two or more States. It is the result of unilateral
drafting by the Government of Iran ..."
The Court thus held that a rule of the interpretation of treaties for which
the United Kingdom argued did not govern the interpretation of the Iranian
Declaration (ibid., pp. 102-107). The Court has more than once described
declarations under the Optional Clause as "unilateral" (Certain Norwegian
Loans, Judgment, I.C.J. Reports 1957, pp. 9, 23; Barcelona Traction, Light
and Power Company, Limited, Preliminary Objections, Judgment, I.C.J. Reports
1964, pp. 6,29). But even if, contrary to this view, rules for the
termination or suspension of treaties were to be directly applied, or by
analogy were to be applied, to the legal effectiveness of the United States
suspension of elements of its 1946 Declaration, the United States still
would be able to argue, and with much reason, that a "fundamental change of
circumstances ... has occurred with regard to those existing at the time of
the conclusion" of the declaration within the [p 621]meaning of Article 62
of the Vienna Convention on the Law of Treaties. An essential basis of the
United States consent to be bound by its declaration, it may be maintained,
was its perception that that declaration would be one of a near universal
number of effective declarations. But the impact of non-adherence to the
Optional Clause by the large majority of States, including so many of the
more influential States, and the effect of the widespread making of
reservations permitting declarants to modify or terminate their declarations
at will, has been radically to transform the extent of the obligations still
to be performed by the United States under its declaration, should it not be
seen as retaining the unfettered right to modify or suspend it.
100. This is a substantial argument. Moreover, even if one does not resort
to rebus sic stantibus, there is another substantial argument for treating
declarations made under the Optional Clause as inherently terminable, even
if they are regarded as subject to the law of treaties on termination. It
was expressed by Sir Humphrey Waldock in his capacity as Special Rapporteur
of the International Law Commission on the Law of Treaties in the following
terms:
"It is only necessary to look at the texts of the large number of such
treaties collected in the United Nations publication 'Systematic Survey of
Treaties for the Pacific Settlement of International Disputes, 1928-48' to
see how almost invariably they are concluded either for a fixed term or for
renewable terms subject to a right of denunciation, or are made terminable
upon notice... If the proportion of instruments containing no provision
regarding their duration or termination is somewhat greater among
declarations under the 'optional clause' of the Statute of the International
Court of Justice (or of the Permanent Court), the general picture is the
same. Out of the thirty-seven declarations listed in the Court's Yearbook
for 1961-2, eight contain no statement as to their duration or termination,
and all the others are made for a limited period or made terminable upon
notice. It is true that in 1938, when Paraguay, which then had a declaration
of this kind, denounced it in a letter to the Secretary-General, six States
made reservations with regard to the denunciation ; and that the Paraguayan
declaration was retained in the list of optional clause acceptances in the
Yearbook of the Court until the year 1959-60, though with an explanatory
footnote mentioning the reservations. But the declaration has now been
removed from the list, ... Moreover, even before the Paraguayan
denunciation, Colombia had 'corrected' in 1937 an unlimited and
unconditional declaration of 1932 by restricting it to disputes arising out
of facts subsequent to 6 January 1932. Taken as a whole, State practice
under the optional clause, and especially the modern trend towards
Declarations terminable upon notice, seem only to reinforce the clear
conclusion to be drawn from treaties of arbitration, conciliation and
judicial settlement, that [p 622] Jhese treaties are regarded as essentially
of a terminable character." Yearbook of the International Law Commission,
1963, Vol. II, p. 68.)
In oral argument, the distinguished counsel of the United States, Professor
McDougal, further recalled that Waldock in the foregoing report had also
concluded that the constituent instruments of international organizations
are impliedly terminable upon notice (ibid., p. 69). A primary example which
Sir Humphrey cited as confirming the existence of a general presumption in
favour of a right of withdrawal in this class of treaty is the United
Nations Charter. Professor McDougal then submitted:
"It is familiar knowledge that the Statute of the Court, including its
component obligations, are now a part of the comprehensive United Nations
system. If the authors of the Charter in 1945 and the Special Rapporteur of
the International Law Commission in 1963 thought there was inherent power to
withdraw from the Charter itself, surely they thought that a modification or
termination of participation in the Optional Clause system was authorized."
(Hearing of 16 October 1984, morning.)
101. In view of the foregoing considerations, a considerable case can be
made out for viewing declarations under the Optional Clause as not governed
by the law of treaties, and as inherently terminable; or, in the
alternative, if governed by the law of treaties, then terminable as a
special class of treaty which by its nature is terminable; or, in any event,
terminable where a fundamental change of circumstances has occurred.
Nevertheless, in the present proceedings, I believe that the preferred
position is that every proviso of the United States 1946 Declaration is to
be given effect. The Court should have given effect to the multilateral
treaty reservation and to the intention that gave rise to it. If it had, it
would be right to give effect to the termination clause of the declaration
and to the intention that gave rise to it. However, where the Court finds
that it is unclear whether any States are affected, or could be affected,
under the multilateral treaty reservation, the Court, to be consistent,
could equally hold that it is unclear that the six months' termination
provision debars modification. Moreover, if the Court is to give effect to
these provisions of the United States Declaration of 1946, then it equally
must give effect to the reci-procity provision a provision, it should be
recalled, which was under-[p 623]stood by the United States Senate to
embrace temporal elements of the declaration under the Optional Clause.
102. The Declaration of 1929 by which Nicaragua now maintains that it is
bound provides: "On behalf of the Republic of Nicaragua I recognize as
compulsory unconditionally the jurisdiction of the Permanent Court of
International Justice." That declaration thus contains no limit of time; its
duration is indefinite. Does the declaration accordingly mean that
Nicaragua is bound to the Court's compulsory jurisdiction in perpetuity? Or
does "unconditionally" rather mean that Nicaragua has set no condition of
time, that the duration of its declaration is indefinite until such time as
it may set whatever limit it chooses to it?
103. To argue, in the abstract, that a State in accepting the Court's
compulsory jurisdiction unconditionally has accepted it in perpetuity, is
implausible. To argue, concretely, that a State which unconditionally
accepted the Court's jurisdiction in 1929 is bound in perpetuity even
vis-ΰ-vis States that have made declarations in which they have reserved the
right to modify or terminate at notice, or, indeed vis-a-vis that large
majority of States which have never adhered to the Optional Clause but could
at any time adhere with the profoundest restrictions simply with the purpose
of bringing suit against a State which has unconditionally adhered, and
thereafter terminate acceptance - is less plausible still. That obvious
conclusion is reinforced by the practice of States. The practice is not
large in the nature of the question. Nor is it unambiguous. But on balance
it establishes that a small number of States, such as Colombia and Paraguay,
have succeeded in freeing themselves of unconditional submissions to the
Court's compulsory jurisdiction. There are no cases in which States in that
position have been effectively held to their unconditional adherences. In
sum, as Shabtai Rosenne, writing in 1965, put it in The Law and Practice of
the International Court:
"it is sometimes argued that the essential objection to the unilateral
denunciation of a declaration accepting the compulsory jurisdiction, is that
these declarations are governed by the law of treaties which in principle
does not permit unilateral denunciation, with the possible exception
supplied by the doctrine of rebus sic stantibus. But... that view cannot
easily be reconciled with the picture which emerges from close analysis of
the jurisprudence on the compulsory jurisdiction ...
The question whether declarations of the type here being discussed can be
withdrawn or denounced must,... largely be relegated to the realm of theory.
Moreover, with the exception of a few not more than seven of the pre-War
declarations accepting the compulsory jurisdiction of the Permanent Court
which are now applicable to the[p 624] present Court by virtue of Article 36
(5) of the present Statute, States have developed the practice of protecting
themselves by inserting a reservation of the right to withdraw, and the
practical problem is now limited. As far as those seven declarations are
concerned, it is submitted that it would be singularly unreal to apply to
them an inflexible rule said to derive from the general law of treaties and
disallowing the right of unilateral denunciation. The dissolution of the
League of Nations and the Permanent Court and the far-reaching changes in
the international community and its organization which that dissolution
mirrors, are sufficient to allow those States to withdraw their
declarations made in those far off days when the compulsory jurisdiction
was [in] its infancy, and which are today applicable by virtue of Article 36
(5) of the Statute." (Vol. I, pp. 416-417; footnotes omitted.)
104. It follows that Nicaragua, if its 1929 Declaration binds it at all, is
free to terminate its acceptance. Is it free to do so at any time, or only
on "reasonable notice"? In the light of the practice in making declarations
adhering to the Optional Clause, so many of which permit termination or
modification not on "reasonable notice" or after a prescribed period but
immediately, the reasonable response to this reasonable question is that
Nicaragua has the right to terminate its declaration on immediate notice.
That conclusion is reinforced by the experience of withdrawal from
indefinite adherences to the Court's compulsory jurisdiction by States such
as Colombia and Paraguay, withdrawals which did not entail a period of
reasonable notice. (It strains the facts to suggest that, since some States
protested Paraguay's action, and its declaration was retained in the Court's
Yearbooks for some years, with a footnote, that is tantamount to imposition
of a period of reasonable notice on Paraguay's termination.)
105. The case of Indonesia is particularly instructive. On 31 December 1964,
Indonesia announced that it would withdraw from the United Nations as of 1
January 1965. It confirmed that decision in a communication of 20 January
1965 (doc. A/5857). The United Nations acquiesced in that decision.
Indonesian withdrawal, on 24 hours' notice, was given effect, legally and
practically. Indonesia ceased to be listed as a member of the Organization.
Indonesia was not assessed for any financial contributions for the whole of
1965 (see the Report of the Committee on Contributions, General Assembly,
Official Records: Twentieth Session, supplement No. 10 (A/6010), pp. 1, 2,
3). Subsequently, from September 1966, Indonesia resumed participation in
the United Nations, and it was agreed by all concerned that what had been
treated as Indonesia's legally effective withdrawal from the United Nations
would be regarded retroactively not as a withdrawal but "a cessation of
co-operation" (General Assembly, Twenty-First Session, Official Records,
1420th Plenary Meeting, pp. 1-2).[p 625] A payment of 10 per cent of the
amount for which Indonesia would have been assessed for its contributions to
the regular budget for the period of Indonesian withdrawal was agreed upon.
(Contributions of Indonesia for the years 1965 and 1966, Report of the
Secretary-General, doc. A/C.5/1097, pp. 1,2; and doc. A/6630, p. 3.)
106. Upon its withdrawal on 24 hours' notice from the United Nations,
Indonesian withdrawal from the Statute of the Court, an integral part of the
Charter, likewise had the same legal and temporal effect. This was reflected
in the Yearbooks of the Court. Thus the Yearbook 1964-1965, in listing the
States Members of the United Nations which ipso facto are parties to the
Statute, has a footnote after the entry respecting Indonesia (which embraced
1964) observing that Indonesia notified withdrawal as of 1 January 1965 (at
p. 27). The Yearbook 1965-1966, in listing the States Members of the United
Nations, and hence parties to the Statute, simply omits Indonesia (p. 26).
However, the Yearbook 1966-1967 states that, among the States Members of the
United Nations on 31 July 1967, was Indonesia (p. 29). There is no
indication that the Court, any more than the United Nations, imposed a
period of reasonable time upon the effectiveness of Indonesia's notice of
withdrawal. Now, if a State can withdraw from the Statute of the Court on 24
hours' notice, may not a State withdraw from a declaration accepting the
Court's compulsory jurisdiction under that Statute on 24 hours' notice?
107. If Nicaragua could have so acted with immediate effect, may the United
States reciprocally do so? The Court concludes that it may not, on two
grounds: first, that reciprocity does not apply to temporal reservations or
conditions but only to substantive reservations; and second, that, in any
event, the United States cannot invoke and have the benefit of a right which
Nicaragua has but which Nicaragua itself did not invoke before filing its
Application.
108. The second point may be summarily addressed. Clearly, if Nicaragua
itself - assuming it to have the right of unilateral termination of a
declaration which is assumed to be in force exercised that right before it
filed its Application, then it could not file an application based on the
Optional Clause with any colourable basis of jurisdiction. It would have
itself terminated the jurisdiction it proposed to invoke before invoking it.
109. The question of whether reciprocity applies to temporal conditions is a
more substantial question, on which authorities are divided. In my view,
there is no persuasive reason, a priori or having regard to the practice of
the Court, to exclude temporal conditions from the reach of reciprocity. I
so conclude for four reasons.
110. First, temporal conditions may be no less important than other
conditions. They may exclude jurisdiction just as surely as may substantive
reservations to the Court's compulsory jurisdiction. Since reciprocity is so
closely tied to considerations of mutuality and of the sovereign equality of
[p 626] States before the law and before the Court, I see no reason in
principle to exclude temporal conditions from the scope of application of
reciprocity.
111. Second, the Court has more than once entertained argument about the
application of reciprocity ratione temporis. It has never held that
reciprocity does not apply to temporal conditions. On the contrary, both
opposing States in these cases and the Court appear to have assumed that it
did or might. See, Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series
A/B, No. 74, page 22; Electricity Company of Sofia and Bulgaria, P.C.I.J.,
Judgment, 1939, Series A/B, No. 77, page 81; and the Anglo-Iranian Oil Co.
case, I.C.J. Reports 1952, pages 93, 103, and the analysis of those cases by
Waldock to this effect in "Decline of the Optional Clause", British Year
Book of International Law 1955-1956 (1957), Vol. XXXII, pages 258-261. See
also, case concerning Right of Passage over Indian Territory, Preliminary
Objections, Judgment, I.C.J. Reports 1957, pages 125, 143-144. As Helmut
Steinberger concluded in "The International Court of Justice", which is
found in the volume on Judicial Settlement of International Disputes (1974)
edited by Hermann Mosler and Rudolf Bernhardt:
"The Court in several cases has confirmed the wide operational scope of the
condition of reciprocity and stated that jurisdiction under the optional
clause is conferred on the Court 'only to the extent to which the two
declarations coincide in conferring it'. That goes for the jurisdiction
ratione temporis as well as for the jurisdiction ratione materiae." (At pp.
216-217; footnotes omitted.)
112. Third, the United States, in drafting its Declaration of 14 August
1946, made it clear that it did regard the safeguard of reciprocity as
applying to temporal conditions (supra, para. 95).
113. Fourth, the contrary result may produce inequality and inequity. As
Waldock so emphatically put it in his article on the "Decline of the
Optional Clause":
"There is,... another aspect of reciprocity in regard to time-limits which
seems to deserve attention, since it may well assume importance in view of
the increasing number of declarations which are immediately terminable on
notice to the Secretary-General. Reci-procity would seem to demand that in
any given pair of States each should have the same right as the other to
terminate the juridical bond existing between them under the Optional
Clause. This is so even in the ordinary case where State A's declaration is
without time-limit while State B's is for a period of five or ten years.
State Β at the end of the period may choose whether to renew or to terminate
its obligations towards State A under the Optional Clause. State A may
reasonably contend that, while not retracting its general acceptance of the
Optional Clause, it also is entitled at the end of the period to choose
whether or not to continue its particular obligations towards State B. It is
one thing to hold that a unilateral declaration made without [p 627]
time-limit binds the State concerned indefinitely toward other States which
have made similar declarations. It is quite another thing to hold that such
a unilateral declaration is binding indefinitely towards other States which
have not undertaken the same commitment. The inequality in the positions of
the two States under the Optional Clause, if the principle of reciprocity is
not applied to time-limits, becomes absolutely inadmissible when State A's
declaration is without time-limit while that of State B is immediately
terminable on notice to the Secretary-General. It would be intolerable that
State B should always be able, merely by giving notice, to terminate at any
moment its liability to compulsory jurisdiction vis-a-vis State A, whilst
the latter remained perpetually bound to submit to the Court's jurisdiction
at the suit of State B. The Court has not yet had occasion to examine this
aspect of the operation of reciprocity in relation to time-limits. In the
light, however, of its interpretation of the condition of reciprocity in
regard to reservations, the Court, it is believed, must hold that under the
Optional Clause each State, with respect to any other State, has the same
right to terminate its acceptance of compulsory jurisdiction as is possessed
by that other State." (Loc. cit., pp. 278-279.)
114. It is no less clear that what is critical in the application of the
Optional Clause is that jurisdiction must subsist as of the date of seisin
of the Court. That is axiomatic, and is made the clearer by the Court's
Judgments in the Nottebohm case, Preliminary Objection, Judgment, I.C.J.
Reports 1953, pages 111, 122-123; and in the Right of Passage over Indian
Territory case, I.C.J. Reports 1957, pages 142-144.
115. Since the United States exercised its reciprocal right to modify or
partially suspend elements of its Declaration of 14 August 1946 by a Note
deposited with the Secretary-General of the United Nations on 6 April 1984,
since Nicaragua filed its Application in this case on 9 April 1984, and
since it is clear and is not disputed that the Application of Nicaragua
falls within the terms of the exclusions effected by the United States Note
of 6 April, it follows that the Court is without jurisdiction to entertain
the claims which Nicaragua makes, in so far as they are based on the
declarations of the Parties under Article 36, paragraph 2, and Article 36,
paragraph 5, of the Court's Statute.
116. It must be acknowledged that to take this broad view of reciprocity,
which would not give effect to the 1984 notification of the United States
erga omnes, but would regard the United States as having been empowered
reciprocally and immediately to terminate its declaration vis-ΰ-vis
Nicaragua, involves a construction of reciprocity which, being applied
before a case is filed in the Court, gives rise to complications. Once the
Court is seised of a case, the scope of the declarations of the parties can
be compared, but, before seisin, the situation is much more complex. In my
view, that is a drawback of my analysis but not a fatal drawback. After all,
[p 628] prior to this Court's advisory opinion on Reservations to the
Convention on the Prevention and Punishment of the Crime of Genocide, the
law governing the making of reservations to treaties was relatively clear
and simple. But in the interests of wider adherence to treaties, the Court
took a flexible approach to the making of reservations which, in return for
that ease of adherence, produces a most complicated pattern of treaty
relationships, which the Vienna Convention on the Law of Treaties has
adopted in the train of the Court's reasoning. I believe that, in the
interests of maintaining and widening the extent of adherences to the
Court's compulsory jurisdiction, the Court in this case should have taken a
similarly flexible approach towards the application of reciprocity to
declarations made under the Optional Clause.
2. Jurisdiction under the Treaty of Friendship, Commerce and Navigation
117. In its Application, the sole jurisdictional basis alleged by Nicaragua
is "the Declarations made by the Republic of Nicaragua and by the United
States of America accepting the jurisdiction of the Court as provided for
in Article 36 of the Statute ..." (introduction). Nevertheless, the
Nicaraguan Memorial, in paragraph 177, invokes "a complementary ground" of
the Court's jurisdiction, namely, the Treaty of Friendship, Commerce and
Navigation between the United States of America and the Republic of
Nicaragua, signed on 21 January 1956, which came into force in 1958 and
remains in force. This poses the threshold question: may a State which has
failed to cite a possible basis of jurisdiction in its Application rely
upon that basis thereafter?
118. Such answer as the Court's sparse jurisprudence on the question
contains suggests that it may not. The Court held, in the case of Certain
Norwegian Loans, Judgment, I.C.J. Reports 1957, pages 24-25, that, where an
Applicant, France, sought to introduce two treaties as bases for
jurisdiction which were not relied upon by it in its Application but only
invoked in the proceedings on preliminary objections, it could not do so.
The Court held that:
"If the French Government has intended to proceed upon that basis it would
expressly have so stated.
As already shown, the Application of the French Government is based clearly
and precisely on the Norwegian and French Declarations under Article 36,
paragraph 2, of the Statute. In these circumstances the Court would not be
justified in seeking a basis for its jurisdiction different from that which
the French Government itself set out in its Application and by reference to
which the case has been presented by both Parties to the Court." (Certain
Norwegian Loans, Judgment, I.C.J. Reports 1957, pp. 24-25.)
Equally, the Application of Nicaragua is based "clearly" if not so precisely
upon the United States and Nicaraguan Declarations under Article 36, [p 629]
paragraphs 2 and 5, of the Statute. If Nicaragua "had intended to proceed"
upon the basis of the Treaty with the United States, "it would expressly
have so stated". Accordingly, in "these circumstances" - which are not
unlike those in Certain Norwegian Loans "the Court would not be justified
in seeking a basis for its jurisdiction different from that which" the
Nicaraguan Government "itself set out in its Application and by reference to
which the case has been presented by both Parties to the Court". Therefore,
in so far as Nicaragua relies upon the Treaty to establish jurisdiction in
this case, there is ground for holding that its Application should be
dismissed.
119. However, the Court, for reasons that are not altogether clear, seems in
this case to have another understanding of the import of its holding in
Certain Norwegian Loans. It accordingly turns to a second preliminary
consideration which also presents a considerable jurisdictional barrier to
Nicaraguan invocation of the Treaty.
Article XXIV of the Treaty provides:
"1. Each Party shall accord sympathetic consideration to, and shall afford
adequate opportunity for consultation regarding, such representations as
the other Party may make with respect to any matter affecting the operation
of the present Treaty.
2. Any dispute between the Parties as to the interpretation or application
of the present Treaty, not satisfactorily adjusted by diplomacy, shall be
submitted to the International Court of Justice, unless the Parties agree to
settlement by some other pacific means."
Paragraph 2 of this Article permits either Party unilaterally to seise the
Court of a dispute over "the interpretation or application of the present
Treaty, not satisfactorily adjusted by diplomacy ...". In its Application in
United States Diplomatic and Consular Staff in Tehran, the United States
invoked an identical provision of its Treaty of Amity, Economic Relations
and Consular Rights with Iran, and the Court in its Judgment held that such
a clause provides for "a right of unilateral recourse to the Court" which
"establishes the jurisdiction of the Court as compulsory for such disputes"
unless the Parties agree to settlement by some other means (I.C.J. Reports
1980, p. 27). In that case, however, there was no question of initially
determining whether the dispute could or could not be satisfactorily
adjusted by diplomacy, since, as the Court observed, Iran refused to
negotiate. But, in the current case, not only have Nicaragua and the United
States engaged in direct negotiations between them, which are actively
continuing over their larger disputes, but Nicaragua does not allege that it
has ever claimed, before or during those negotiations or otherwise, that
there is any dispute between it and the United States over the
interpretation or application of the Treaty. Such claims for the first time
appear in the Nicaraguan Memorial. For its part, the United States denies
that there has been any effort to adjust by diplomacy any dispute with
Nicaragua [p 630] over the interpretation or application of the Treaty,
particularly because Nicaragua has not even made representations under the
Treaty that could give rise to a dispute. Nicaragua has not challenged these
United States allegations. There is no reason to suppose that Nicaragua
failed to invoke the Treaty because of an unwillingness to charge the United
States with violation of its international obligations. It rather appears
that it did not occur to Nicaragua - despite its allegations about the
conduct of the United States to which the Court alludes - that the actions
of which it was complaining were violations of this Treaty. In these
circumstances, it appears to follow that Nicaragua has not discharged the
procedural prerequisites for invocation of Article XXIV (2) of the Treaty.
For this reason as well, the Court should have held that the Treaty does not
furnish a basis of jurisdiction which sustains the Application of Nicaragua.
120. If, however, with the Court, we lightly vault these barriers rather
than demolish them, let us examine whether Nicaragua's invocation of the
Treaty is sufficient to establish any measure of the Court's jurisdiction
over the claims which Nicaragua's Application sets out. To what extent, if
at all, is the substance or are the provisions of the Treaty relevant to
Nicaragua's claims?
121. In its Application, Nicaragua claims that the United States has
breached
"express obligations under the Charter of the United Nations, the Charter of
the Organization of American States and other multilateral treaties, and has
violated fundamental rules of general and customary international law ..."
(para. 14).
Not a word is said, in terms or in substance, about violation of a bilateral
commercial treaty. Rather, the gravamen of Nicaragua's Application is that
the United States is "using military force against Nicaragua and intervening
in Nicaragua's internal affairs ..." (para. 1). However, in the precise
claims on which Nicaragua requests the Court to adjudge and declare, there
are two points that arguably may be said to bear upon the Treaty of
Friendship, Commerce and Navigation, though this is nowhere alleged in the
Application. Paragraph (e) reads:
"That the United States, in breach of its obligation under general and
customary international law, has infringed and is infringing the freedom of
the high seas and interrupting peaceful maritime commerce."[p 631]
(It will be observed that this claim does not relate to the Treaty, or any
treaty, but to customary international law.) And paragraph (g) concludes:
"That, in view of its breaches of the foregoing legal obligations, the
United States is under a particular duty to cease and desist immediately:
from all efforts to restrict, block or endanger access to or from Nicaraguan
ports."
122. The Treaty is one of a large number of similar treaties which the
United States has concluded. The purpose and scope of these "FCN" treaties
was summarized by a commentator who had a leading role in their negotiation
as follows:
"[FCN] treaties are not political in character. Rather, they are
fundamentally economic and legal. Moreover, though 'commerce' and
'navigation' complete the title and accurately describe part of their
content, their concern nowadays is only secondarily with foreign trade and
shipping. They are 'commercial' in the broadest sense of that term; and they
are above-all treaties of 'establishment', concerned with the protection of
persons, natural and juridical, and of the property and interests of such
persons. They define the treatment each country owes the nationals of the
other; their rights to engage in business and other activities within the
boundaries of the former; and the respect due them, their property and their
enterprises." (Herman Walker, "Modern Treaties of Friendship, Commerce and
Navigation", Minnesota Law Review, Vol. 42 (1958), p. 806.)
123. How does Nicaragua purport to link the grave and sweeping charges of
its Application with the commercial particularities of the Treaty? Nicaragua
proceeds in its Memorial not by establishing, demonstrating or even
indicating in any detail that its claims under its Application entail
violation by the United States of provisions of the Treaty. It rather
contents itself with "simply" identifying those provisions of the Treaty
which it claims are contravened. It concentrates such argument as it offers
on one clause of the Treaty. It submits that, "for example", Article XIX,
paragraph 1, provides: "1. Between the territories of the two Parties, there
shall be freedom of commerce and navigation." Nicaragua maintains that, "The
activities of the United States clearly violate this provision" (Nicaraguan
Memorial, para. 167). It contends:
"172. It is obvious that the military and paramilitary operations [p 632]
directed and maintained in and against Nicaragua by the United States
including the mining of Nicaraguan ports and territorial waters, as well as
attacks on Nicaragua's airports, and military operations that endanger and
limit trade and traffic on land are designed to paralyze the freedom of
commerce and navigation, thus defined and guaranteed in Article XIX (1) of
the Treaty."
124. Is this argument consistent with the purpose of Article XIX, paragraph
1, of the Treaty, as indeed of the Treaty as a whole? The Treaty as a whole
has nothing to do with the use of force in international relations, or
rights to be free of such use - and correspondingly, prima facie, little or
nothing to do with Nicaragua's claims in this case. It is a purely
commercial treaty "based in general upon the principles of national and
mostfavoured-nation treatment" (preamble). Article XIX, paragraph 1,
mirrors that commercial concern, as is clear when it is considered in the
context of the whole article of which it is part, which reads:
"1. Between the territories of the two Parties there shall be freedom of
commerce and navigation.
2. Vessels under the flag of either Party, and carrying the papers required
by its law in proof of nationality, shall be deemed to be vessels of that
Party both on the high seas and within the ports, places and waters of the
other Party.
3. Vessels of either Party shall have liberty, on equal terms with vessels
of the other Party and on equal terms with vessels of any third country, to
come with their cargoes to all ports, places and waters of such other Party
open to foreign commerce and navigation. Such vessels and cargoes shall in
all respects be accorded national treatment and most-favored-nation
treatment within the ports, places and waters of such other Party; but each
Party may reserve exclusive rights and privileges to its own vessels with
respect to the coasting trade, inland navigation and national fisheries.
4. Vessels of either Party shall be accorded national treatment and
most-favored-nation treatment by the other Party with respect to the right
to carry all products that may be carried by vessel to or from the
territories of such other Party; and such products shall be accorded
treatment no less favorable than that accorded like products carried in
vessels of such other Party, with respect to : (a) duties and charges of all
kinds, (b) the administration of the customs, and (c) bounties, drawbacks
and other privileges of this nature.[p 633]
5. Vessels of either Party that are in distress shall be permitted to take
refuge in the nearest port or haven of the other Party, and shall receive
friendly treatment and assistance.
6. The term 'vessels', as used herein, means all types of vessels, whether
privately owned or operated, or publicly owned or operated; but this term
does not, except with reference to paragraphs 2 and 5 of the present
Article, include fishing vessels or vessels of war."
It is difficult to see the relevance of such provisions to the claims of
unlawful use of force made by Nicaragua in its Application. The obligations
created for the United States by this article essentially relate to
treatment of Nicaraguan vessels in United States waters. It is only by
taking paragraph 1 of Article XIX out of the context of that article and of
the Treaty as a whole that one can argue that it is relevant to the claim of
mining of Nicaraguan ports. Is the Court justified in reaching out to make
that argument ? The jurisprudence of the Court suggests that it is not. The
Court rather in the past has held that : "It is not enough for the claimant
Government to establish a remote connection between the facts of the claim
and the Treaty" upon whose compromissory clause it relies (Amba-tielos,
Merits, Judgment, I.C.J. Reports 1953, p. 18).
125. The other articles which Nicaragua cites as contravened by activities
of the United States are Articles XIV, paragraph 2; XVII, paragraph 3 ; XIX,
paragraph 3 ; XX ; and I of the Treaty. These clauses provide:
Article XIV, paragraph 2:
"Neither Party shall impose restrictions or prohibitions on the importation
of any product of the other Party, or on the exportation of any product to
the territories of the other Party, unless the importation of the like
product of, or the exportation of the like product to, all third countries
is similarly restricted or prohibited."
Article XVII, paragraph 3
:
"Neither Party shall impose any measure of a discriminatory nature that
hinders or prevents the importer or exporter of products of either country
from obtaining marine insurance on such products in companies of either
Party."
Article XIX, paragraph 3:
"Vessels of either Party shall have liberty, on equal terms with vessels of
the other Party and on equal terms with vessels of any third [p 634]
country, to come with their cargoes to all ports, places and waters of such
other Party open to foreign commerce and navigation ..."
Article XX:
"There shall be freedom of transit through the territories of each Party by
the routes most convenient for international transit:
(a) for nationals of the other Party, together with their baggage;
(b) for other persons, together with their baggage, en route to or from the
territories of such other Party; and
(c) for products of any origin en route to or from the territories of such
other Party ..."
Nicaragua maintains - with respect to the foregoing articles - that the
military and paramilitary activities which it alleges are carried on by the
United States cannot be seen as "equitable treatment to the persons,
property and enterprises and other interests" of Nicaraguan nationals and
companies (Memorial, para. 174).
126. But the foregoing Treaty provisions on which Nicaragua relies without
pleading the facts that relate such reliance to the claims set out in its
Application concern the treatment of the nationals of one Party, or goods
or property of those nationals, or the vessels of one Party, in the
territory of the other Party. They concern marine insurance, free transit of
nationals, etc. It is obvious on their face that these provisions have no
relationship to the claims of direct and indirect aggression made out in
Nicaragua's Application. Article I of the Treaty, on which Nicaragua also
relies, and which provides that,
"Each Party shall at all times accord equitable treatment to the persons,
property, enterprises and other interests of nationals and companies of the
other Party",
sets out the broad principle of equitable treatment in the light of which
the Treaty's detailed operative provisions are to be read, but it does not
deal with problems of the use or misuse of force in international relations.
127. In addition to the foregoing articles of the Treaty, the Court also
takes account of "the references in the Preamble to peace and friendship".
The Preamble to the Treaty provides:
"The United States of America and the Republic of Nicaragua, desirous of
strengthening the bonds of peace and friendship traditionally existing
between them and of encouraging closer economic and cultural relations
between their peoples, and being cognizant of the contributions which may be
made towards these ends by arrangements encouraging mutually beneficial
investments, promoting [p 635] mutually advantageous commercial intercourse
and otherwise establishing mutual rights and privileges, have resolved to
conclude a Treaty of Friendship, Commerce and Navigation, based in general
upon the principles of national and of most-favored-nation treatment
unconditionally accorded,..."
Thus the preamble, if it were to be thought to have any legal effect,
emphasizes the commercial purposes of the Treaty. In any event, the
provisions of a preamble are not generally regarded as giving rise to legal
obligations as the terms of the body of a treaty do or may. The Vienna
Convention on the Law of Treaties provides that the preamble is part of the
context of a treaty and that a treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty
"in their context and in the light of its object and purpose" (Art. 32).
Having regard to the context of this treaty among a score of commercial FCN
treaties, and in the light of its commercial objects and purpose, the
Treaty's preambular reference to strengthening the bonds of peace and
friendship does not appear to provide an additional basis for relating the
claims set out in the Application of Nicaragua to the terms of the Treaty.
128. There is another provision of the Treaty which merits comment, because
it indicates that the Application of Nicaragua does not fall within the
scope of the Treaty. Article XXI (1) of the Treaty provides:
"1. The present Treaty shall not preclude the application of measures:
(c) regulating the production of or traffic in arms, ammunition and
implements of war, or traffic in other materials carried on directly or
indirectly for the purpose of supplying a military establishment;
(d) necessary to fulfill the obligations of a Party for the maintenance or
restoration of international peace and security, or necessary to protect its
essential security interests ; .. ."
Now it cannot be argued and Nicaragua did not argue, nor does the Court
hold - that, since the Treaty "shall not preclude the application of
measures" regulating the production of or traffic in arms, or measures which
are necessary to fulfil the obligations of a Party for the maintenance of
international peace and security or to protect its essential security
interests, these very exclusions entitle the Court to assume jurisdiction
over claims based on the Treaty that relate to traffic in arms or to the
maintenance of international peace and security or essential security
interests. It is clear that, where a treaty excludes from its regulated
reach certain areas, those areas do not fall within the jurisdictional scope
of the treaty.[p 636] That this preclusion clause is indeed an exclusion
clause is demonstrated not only by its terms but by its travaux
preparatoires, which were appended to the United States pleadings in the
case of United States Diplomatic and Consular Staff in Tehran. A list of a
score of Treaties of Friendship, Commerce and Navigation, including that
with Nicaragua, is found at page 233, which is followed by a "Memorandum on
Dispute Settlement Clause in Treaty of Friendship, Commerce and Navigation
with China" which contains the following paragraph:
"The compromissory clause ... is limited to questions of the interpretation
or application of this treaty; i.e., it is a special not a general
compromissory clause. It applies to a treaty on the negotiation of which
there is voluminous documentation indicating the intent of the parties. This
treaty deals with subjects which are common to a large number of treaties,
concluded over a long period of time by nearly all nations. Much of the
general subject-matter - and in some cases almost identical language - has
been adjudicated in the courts of this and other countries. The authorities
for the interpretation of this treaty are, therefore, to a considerable
extent established and well known. Furthermore, certain important subjects,
notably immigration, traffic in military supplies, and the 'essential
interests of the country in time of national emergency', are specifically
exceptedfrom the purview of the treaty. In view of the above, it is
difficult to conceive how Article XXVIII could result in this Government's
being impleaded in a matter in which it might be embarrassed." (At p. 235;
emphasis supplied.)
A second memorandum, entitled "Department of State Memorandum on Provisions
in Commercial Treaties relating to the International Court of Justice",
similarly concludes, first with respect to the scope of the jurisdiction
accorded to the Court under FCN treaties, and second with respect to
national security clauses:
"This paper [of the Department of State]... points out a number of the
features which in its view make the provision satisfactory... These include
the fact that the provision is limited to differences arising immediately
from the specific treaty concerned, that such treaties deal with familiar
subject-matter and are thoroughly documented in the records of the
negotiation, that an established body of interpretation already exists for
much of the subject-matter of such [p 637] treaties, and that such purely
domestic matters as immigration policy and military security are placed
outside the scope of such treaties by specific exceptions." (Ibid., p. 237;
emphasis supplied.)
Article XXI of the Treaty thus serves to indicate that the parties to the
Treaty acted to exclude from its scope the kind of claim ("restoration of
international peace and security" and protection of "essential security
interests") which Nicaragua seeks to base upon it.
129. Nevertheless, the Court concludes that:
"... it is quite clear for the Court that, on the basis alone of the Treaty
of Friendship, Commerce and Navigation of 1956, Nicaragua and the United
States of America are bound to accept the compulsory jurisdiction of this
Court over claims presented by the Application of Nicaragua in so far as
they imply violations of provisions of this treaty" (Judgment, para. 111).
The difficulty with that conclusion is that, on analysis, the claims
presented by this Application of Nicaragua imply no violations of that
Treaty. Not only does the Application fail to refer to the Treaty; it is
plain that the Treaty itself cannot plausibly be interpreted to afford the
Court jurisdiction "to entertain the Application filed by Nicaragua on 9
April 1984". It might furnish basis for another Application, but not for the
one before the Court.
(Signed) Stephen M. Schwebel.
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