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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 the Statute.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
at once communicated to the Government of the United States of America. In
accordance with paragraph 3 of that Article, all other States entitled to
appear before the Court were notified of the Application.
3. At the same time as the Application was filed, the Republic of Nicaragua
also filed a request for the indication of provisional measures under
Article 41 of the Statute. By an Order dated 10 May 1984, the Court rejected
a request made by the United States for removal of the case from the list,
indicated, pending its final decision in the proceedings, certain
provisional measures, and decided that, until the Court delivers its final
judgment in the case, it would keep the matters covered by the Order
continuously under review.
4. By the said Order of 10 May 1984, the Court further decided that the
written proceedings in the case should first be addressed to the questions
of the jurisdiction of the Court to entertain the dispute and of the
admissibility of the Application. By an Order dated 14 May 1984, the
President of the Court fixed 30 June 1984 as time-limit for the filing of a
Memorial by the Republic of Nicaragua and 17 August 1984 as time-limit for
the filing of a Counter-Memorial by the United States of America on the
questions of jurisdiction and admissibility and these pleadings were duly
filed within the time-limits fixed.
5. In its Memorial on jurisdiction and admissibility, the Republic of
Nicaragua contended that, in addition to the basis of jurisdiction relied on
in the Application, a Treaty of Friendship, Commerce and Navigation signed
by the Parties in 1956 provides an independent basis for jurisdiction under
Article 36, paragraph 1, of the Statute of the Court.
6. Since the Court did not include upon the bench a judge of Nicaraguan
nationality, Nicaragua, by a letter dated 3 August 1984, exercised its right
under Article 31, paragraph 2, of the Statute of the Court to choose a judge
ad hoc to sit in the case. The person so designated was Professor
Claude-Albert Colliard.
7. On 15 August 1984, two days before the closure of the written proceedings
on the questions of jurisdiction and admissibility, the Republic of El
Salvador filed a Declaration of Intervention in the case under Article 63 of
the Statute. Having been supplied with the written observations of the
Parties on the Declaration pursuant to Article 83 of the Rules of Court, the
Court, by an Order dated 4 October 1984, decided not to hold a hearing on
the Declaration of Intervention, and decided that that Declaration was
inadmissible inasmuch as it related to the phase of the proceedings then
current.
8. On 8-10 October and 15-18 October 1984 the Court held public hearings at
which it heard the argument of the Parties on the questions of the
jurisdiction of the Court to entertain the dispute and the admissibility of
the Application.
9. By a Judgment dated 26 November 1984, the Court found that it had
jurisdiction to entertain the Application on the basis of Article 36,
paragraphs 2 and 5, of the Statute of the Court; that it had jurisdiction to
entertain the Application in so far as it relates to a dispute concerning
the interpretation or application of the Treaty of Friendship, Commerce and
Navigation between the United States and Nicaragua of 21 January 1956, on
the basis of Article XXIV of that Treaty; that it had jurisdiction to
entertain the case; and that the Application was admissible.
10. By a letter dated 18 January 1985 the Agent of the United States
referred to the Court's Judgment of 26 November 1984 and informed the Court
as follows:
"the United States is constrained to conclude that the judgment of the Court
was clearly and manifestly erroneous as to both fact and law. The United
States remains firmly of the view, for the reasons given in its written and
oral pleadings that the Court is without jurisdiction to entertain the
dispute, and that the Nicaraguan application of 9 April 1984 is
inadmissible. Accordingly, it is my duty to inform you that the United
States intends not to participate in any further proceedings in connection
with this case, and reserves its rights in respect of any decision by the
Court regarding Nicaragua's claims."
11. By an Order dated 22 January 1985 the President of the Court, after
referring to the letter from the United States Agent, fixed 30 April 1985 as
time-limit for a Memorial of Nicaragua and 31 May 1985 as time-limit for a
Counter-Memorial of the United States of America on the merits of the
dispute. The Memorial of Nicaragua was filed within the time-limit so fixed;
no pleading was filed by the United States of America, nor did it make any
request for extension of the time-limit. In its Memorial, communicated to
the United States pursuant to Article 43 of the Statute of the Court,
Nicaragua invoked Article 53 of the Statute and called upon the Court to
decide the case despite the failure of the Respondent to appear and defend.
12. On 10 September 1985, immediately prior to the opening of the oral
proceedings, the Agent of Nicaragua submitted to the Court a number of
documents referred to as "Supplemental Annexes" to the Memorial of
Nicaragua. In application of Article 56 of the Rules of Court, these
documents were treated as "new documents" and copies were transmitted to the
United States of America, which did not lodge any objection to their
production.
13. On 12-13 and 16-20 September 1985 the Court held public hearings at
which it was addressed by the following representatives of Nicaragua: H.E.
Mr. Carlos Arguello Gomez, Hon. Abram Chayes, Mr. Paul S. Reichler, Mr. Ian
Brownlie, and Mr. Alain Pellet. The United States was not represented at the
hearing. The following witnesses were called by Nicaragua and gave evidence:
Commander Luis Carrion, Vice-Minister of the Interior of Nicaragua (examined
by Mr. Brownlie); Dr. David MacMichael, a former officer of the United
States Central Intelligence Agency (CIA) (examined by Mr. Chayes); Professor
Michael John Glennon (examined by Mr. Reichler); Father Jean Loison
(examined by Mr. Pellet); Mr. William Huper, Minister of Finance of
Nicaragua (examined by Mr. Arguello Gomez). Questions were put by Members of
the Court to the witnesses, as well as to the Agent and counsel of
Nicaragua, and replies were given either orally at the hearing or
subsequently in writing. On 14 October 1985 the Court requested Nicaragua to
make available certain further information and documents, and one Member of
the Court put a question to Nicaragua. The verbatim records of the hearings
and the information and documents supplied in response to these requests
were transmitted by the Registrar to the United States of America.
14. Pursuant to Article 53, paragraph 2, of the Rules of Court, the
pleadings and annexed documents were made accessible to the public by the
Court as from the date of opening of the oral proceedings.
15. In the course of the written proceedings, the following submissions were
presented on behalf of the Government of Nicaragua: in the Application:
"Nicaragua, reserving the right to supplement or to amend this Application
and subject to the presentation to the Court of the relevant evidence and
legal argument, requests the Court to adjudge and declare as follows:
(a) That the United States, in recruiting, training, arming, equipping,
financing, supplying and otherwise encouraging, supporting, aiding, and
directing military and paramilitary actions in and against Nicaragua, has
violated and is violating its express charter and treaty obligations to
Nicaragua, and in particular, its charter and treaty obligations under:
-- Article 2 (4) of the United Nations Charter;
-- Articles 18 and 20 of the Charter of the Organization of American States;
-- Article 8 of the Convention on Rights and Duties of States;
-- Article I, Third, of the Convention concerning the Duties and Rights of
States in the Event of Civil Strife.
(b) That the United States, in breach of its obligation under general and
customary international law, has violated and is violating the sovereignty
of Nicaragua by:
-- armed attacks against Nicaragua by air, land and sea;
-- incursions into Nicaraguan territorial waters;
-- aerial trespass into Nicaraguan airspace;
-- efforts by direct and indirect means to coerce and intimidate the
Government of Nicaragua.
(c) That the United States, in breach of its obligation under general and
customary international law, has used and is using force and the threat of
force against Nicaragua.
(d) That the United States, in breach of its obligation under general and
customary international law, has intervened and is intervening in the
internal affairs of Nicaragua.
(e) That the United States, in breach of its obligation under general and
customary international law, has infringed and is infringing the freedom of
the high seas and interrupting peaceful maritime commerce.
(f) That the United States, in breach of its obligation under general and
customary international law, has killed, wounded and kidnapped and is
killing, wounding and kidnapping citizens of Nicaragua.
(g) That, in view of its breaches of the foregoing legal obligations, the
United States is under a particular duty to cease and desist immediately:
from all use of force -- whether direct or indirect, overt or covert --
against Nicaragua, and from all threats of force against Nicaragua;
from all violations of the sovereignty, territorial integrity or political
independence of Nicaragua, including all intervention, direct or indirect,
in the internal affairs of Nicaragua;
from all support of any kind -- including the provision of training, arms,
ammunition, finances, supplies, assistance, direction or any other form of
support -- to any nation, group, organization, movement or individual
engaged or planning to engage in military or paramilitary actions in or
against Nicaragua;
from all efforts to restrict, block or endanger access to or from Nicaraguan
ports;
and from all killings, woundings and kidnappings of Nicaraguan citizens.
(h) That the United States has an obligation to pay Nicaragua, in its own
right and as parens patriae for the citizens of Nicaragua, reparations for
damages to person, property and the Nicaraguan economy caused by the
foregoing violations of international law in a sum to be determined by the
Court. Nicaragua reserves the right to introduce to the Court a precise
evaluation of the damages caused by the United States";
in the Memorial on the merits:
"The Republic of Nicaragua respectfully requests the Court to grant the
following relief:
First: the Court is requested to adjudge and declare that the United States
has violated the obligations of international law indicated in this
Memorial, and that in particular respects the United States is in continuing
violation of those obligations.
Second: the Court is requested to state in clear terms the obligation which
the United States bears to bring to an end the aforesaid breaches of
international law.
Third: the Court is requested to adjudge and declare that, in consequence of
the violations of international law indicated in this Memorial, compensation
is due to Nicaragua, both on its own behalf and in respect of wrongs
inflicted upon its nationals; and the Court is requested further to receive
evidence and to determine, in a subsequent phase of the present proceedings,
the quantum of damages to be assessed as the compensation due to the
Republic of Nicaragua.
Fourth: without prejudice to the foregoing request, the Court is requested
to award to the Republic of Nicaragua the sum of 370,200,000 United States
dollars, which sum constitutes the minimum valuation of the direct damages,
with the exception of damages for killing nationals of Nicaragua, resulting
from the violations of international law indicated in the substance of this
Memorial.
With reference to the fourth request, the Republic of Nicaragua reserves the
right to present evidence and argument, with the purpose of elaborating the
minimum (and in that sense provisional) valuation of direct damages and,
further, with the purpose of claiming compensation for the killing of
nationals of Nicaragua and consequential loss in accordance with the
principles of international law in respect of the violations of
international law generally, in a subsequent phase of the present
proceedings in case the Court accedes to the third request of the Republic
of Nicaragua."
16. At the conclusion of the last statement made on behalf of Nicaragua at
the hearing, the final submissions of Nicaragua were presented, which
submissions were identical to those contained in the Memorial on the merits
and set out above.
17. No pleadings on the merits having been filed by the United States of
America, which was also not represented at the oral proceedings of September
1985, no submissions on the merits were presented on its behalf.
18. The dispute before the Court between Nicaragua and the United States
concerns events in Nicaragua subsequent to the fall of the Government of
President Anastasio Somoza Debayle in Nicaragua in July 1979, and activities
of the Government of the United States in relation to Nicaragua since that
time. Following the departure of President Somoza, a Junta of National
Reconstruction and an 18-member government was installed by the body which
had led the armed opposition to President Somoza, the Frente Sandinista de
Liberacion Nacional (FSLN). That body had initially an extensive share in
the new government, described as a "democratic coalition", and as a result
of later resignations and reshuffles, became almost its sole component.
Certain opponents of the new Government, primarily supporters of the former
Somoza Government and in particular ex-members of the National Guard, formed
themselves into irregular military forces, and commenced a policy of armed
opposition, though initially on a limited scale.
19. The attitude of the United States Government to the "democratic
coalition government" was at first favourable; and a programme of economic
aid to Nicaragua was adopted. However by 1981 this attitude had changed.
United States aid to Nicaragua was suspended in January 1981 and terminated
in April 1981. According to the United States, the reason for this change of
attitude was reports of involvement of the Government of Nicaragua in
logistical support, including provision of arms, for guerrillas in El
Salvador. There was however no interruption in diplomatic relations, which
have continued to be maintained up to the present time. In September 1981,
according to testimony called by Nicaragua, it was decided to plan and
undertake activities directed against Nicaragua.
20. The armed opposition to the new Government in Nicaragua, which
originally comprised various movements, subsequently became organized into
two main groups: the Fuerza Democratica Nicaraguense (FDN) and the Alianza
Revolucionaria Democratica (ARDE). The first of these grew from 1981 onwards
into a trained fighting force, operating along the borders with Honduras;
the second, formed in 1982, operated along the borders with Costa Rica. The
precise extent to which, and manner in which, the United States Government
contributed to bringing about these developments will be studied more
closely later in the present Judgment. However, after an initial period in
which the "covert" operations of United States personnel and persons in
their pay were kept from becoming public knowledge, it was made clear, not
only in the United States press, but also in Congress and in official
statements by the President and high United States officials, that the
United States Government had been giving support to the contras, a term
employed to describe those fighting against the present Nicaraguan
Government. In 1983 budgetary legislation enacted by the United States
Congress made specific provision for funds to be used by United States
intelligence agencies for supporting "directly or indirectly, military or
paramilitary, operations in Nicaragua". According to Nicaragua, the contras
have caused it considerable material damage and widespread loss of life, and
have also committed such acts as killing of prisoners, indiscriminate
killing of civilians, torture, rape and kidnapping. It is contended by
Nicaragua that the United States Government is effectively in control of the
contras, that it devised their strategy and directed their tactics, and that
the purpose of that Government was, from the beginning, to overthrow the
Government of Nicaragua.
21. Nicaragua claims furthermore that certain military or paramilitary
operations against it were carried out, not by the contras, who at the time
claimed responsibility, but by persons in the pay of the United States
Government, and under the direct command of United States personnel, who
also participated to some extent in the operations. These operations will
also be more closely examined below in order to determine their legal
significance and the responsibility for them; they include the mining of
certain Nicaraguan ports in early 1984, and attacks on ports, oil
installations, a naval base, etc. Nicaragua has also complained of
overflights of its territory by United States aircraft, not only for
purposes of intelligence-gathering and supply to the contras in the field,
but also in order to intimidate the population.
22. In the economic field, Nicaragua claims that the United States has
withdrawn its own aid to Nicaragua, drastically reduced the quota for
imports of sugar from Nicaragua to the United States, and imposed a trade
embargo; it has also used its influence in the Inter-American Development
Bank and the International Bank for Reconstruction and Development to block
the provision of loans to Nicaragua.
23. As a matter of law, Nicaragua claims, inter alia, that the United States
has acted in violation of Article 2, paragraph 4, of the United Nations
Charter, and of a customary international law obligation to refrain from the
threat or use of force; that its actions amount to intervention in the
internal affairs of Nicaragua, in breach of the Charter of the Organization
of American States and of rules of customary international law forbidding
intervention; and that the United States has acted in violation of the
sovereignty of Nicaragua, and in violation of a number of other obligations
established in general customary international law and in the inter-American
system. The actions of the United States are also claimed by Nicaragua to be
such as to defeat the object and purpose of a Treaty of Friendship, Commerce
and Navigation concluded between the Parties in 1956, and to be in breach of
provisions of that Treaty.
24. As already noted, the United States has not filed any pleading on the
merits of the case, and was not represented at the hearings devoted thereto.
It did however make clear in its Counter-Memorial on the questions of
jurisdiction and admissibility that "by providing, upon request,
proportionate and appropriate assistance to third States not before the
Court" it claims to be acting in reliance on the inherent right of self-defence
"guaranteed... by Article 51 of the Charter" of the United Nations, that is
to say the right of collective self-defence.
25. Various elements of the present dispute have been brought before the
United Nations Security Council by Nicaragua, in April 1984 (as the Court
had occasion to note in its Order of 10 May 1984, and in its Judgment on
jurisdiction and admissibility of 26 November 1984, I.C.J. Reports 1984, p.
432, para. 91), and on a number of other occasions. The subject-matter of
the dispute also forms part of wider issues affecting Central America at
present being dealt with on a regional basis in the context of what is known
as the "Contadora Process" (I.C.J. Reports 1984, pp. 183-185, paras. 34-36;
pp. 438-441, paras. 102-108).
26. The position taken up by the Government of the United States of America
in the present proceedings, since the delivery of the Court's Judgment of 26
November 1984, as defined in the letter from the United States Agent dated
18 January 1985, brings into operation Article 53 of the Statute of the
Court, which provides that "Whenever one of the parties does not appear
before the Court, or fails to defend its case, the other party may call upon
the Court to decide in favour of its claim". Nicaragua, has, in its Memorial
and oral argument, invoked Article 53 and asked for a decision in favour of
its claim. A special feature of the present case is that the United States
only ceased to take part in the proceedings after a Judgment had been given
adverse to its contentions on jurisdiction and admissibility. Furthermore,
it stated when doing so "that the judgment of the Court was clearly and
manifestly erroneous as to both fact and law", that it "remains firmly of
the view . . . that the Court is without jurisdiction to entertain the
dispute" and that the United States "reserves its rights in respect of any
decision by the Court regarding Nicaragua's claims".
27. When a State named as party to proceedings before the Court decides not
to appear in the proceedings, or not to defend its case, the Court usually
expresses regret, because such a decision obviously has a negative impact on
the sound administration of justice (cf. Fisheries Jurisdiction, I.C.J.
Reports 1973, p. 7, para. 12; p. 54, para. 13; I.C.J. Reports 1974, p. 9,
para. 17; p. 181, para. 18; Nuclear Tests, I.C.J. Reports 1974, p. 257, para.
15; p. 461, para. 15; Aegean Sea Continental Shelf, I.C.J. Reports 1978, p.
7, para. 15; United States Diplomatic and Consular Staff in Tehran, I.C.J.
Reports 1980, p. 18, para. 33). In the present case, the Court regrets even
more deeply the decision of the respondent State not to participate in the
present phase of the proceedings, because this decision was made after the
United States had participated fully in the proceedings on the request for
provisional measures, and the proceedings on jurisdiction and admissibility.
Having taken part in the proceedings to argue that the Court lacked
jurisdiction, the United States thereby acknowledged that the Court had the
power to make a finding on its own jurisdiction to rule upon the merits. It
is not possible to argue that the Court had jurisdiction only to declare
that it lacked jurisdiction. In the normal course of events, for a party to
appear before a court entails acceptance of the possibility of the court's
finding against that party. Furthermore the Court is bound to emphasize that
the non-participation of a party in the proceedings at any stage of the case
cannot, in any circumstances, affect the validity of its judgment. Nor does
such validity depend upon the acceptance of that judgment by one party. The
fact that a State purports to "reserve its rights" in respect of a future
decision of the Court, after the Court has determined that it has
jurisdiction, is clearly of no effect on the validity of that decision.
Under Article 36, paragraph 6, of its Statute, the Court has jurisdiction to
determine any dispute as to its own jurisdiction, and its judgment on that
matter, as on the merits, is final and binding on the parties under Articles
59 and 60 of the Statute (cf. Corfu Channel, Judgment of 15 December 1949,
I.C.J. Reports 1949, p. 248).
28. When Article 53 of the Statute applies, the Court is bound to "satisfy
itself, not only that it has jurisdiction in accordance with Articles 36 and
37, but also that the claim" of the party appearing is well founded in fact
and law. In the present case, the Court has had the benefit of both Parties
pleading before it at the earlier stages of the procedure, those concerning
the request for the indication of provisional measures and to the questions
of jurisdiction and admissibility. By its Judgment of 26 November 1984, the
Court found, inter alia, that it had jurisdiction to entertain the case; it
must however take steps to "satisfy itself" that the claims of the Applicant
are "well founded in fact and law". The question of the application of
Article 53 has been dealt with by the Court in a number of previous cases,
referred to above, and the Court does not therefore find it necessary to
recapitulate the content of these decisions. The reasoning adopted to
dispose of the basic problems arising was essentially the same, although the
words used may have differed slightly from case to case. Certain points of
principle may however be restated here. A State which decides not to appear
must accept the consequences of its decision, the first of which is that the
case will continue without its participation; the State which has chosen not
to appear remains a party to the case, and is bound by the eventual judgment
in accordance with Article 59 of the Statute. There is however no question
of a judgment automatically in favour of the party appearing, since the
Court is required, as mentioned above, to "satisfy itself" that that party's
claim is well founded in fact and law.
29. The use of the term "satisfy itself" in the English text of the Statute
(and in the French text the term "s'assurer") implies that the Court must
attain the same degree of certainty as in any other case that the claim of
the party appearing is sound in law, and, so far as the nature of the case
permits, that the facts on which it is based are supported by convincing
evidence. For the purpose of deciding whether the claim is well founded in
law, the principle jura novit curia signifies that the Court is not solely
dependent on the argument of the parties before it with respect to the
applicable law (cf. "Lotus", P.C.I.J., Series A, No. 10, p. 31), so that the
absence of one party has less impact. As the Court observed in the Fisheries
Jurisdiction cases:
"The Court . . ., as an international judicial organ, is deemed to take
judicial notice of international law, and is therefore required in a case
falling under Article 53 of the Statute, as in any other case, to consider
on its own initiative all rules of international law which may be relevant
to the settlement of the dispute. It being the duty of the Court itself to
ascertain and apply the relevant law in the given circumstances of the case,
the burden of establishing or proving rules of international law cannot be
imposed upon any of the parties, for the law lies within the judicial
knowledge of the Court." (I.C.J. Reports 1974, p. 9, para. 17; p. 181, para.
18.)
Nevertheless the views of the parties to a case as to the law applicable to
their dispute are very material, particularly, as will be explained below
(paragraphs 184 and 185), when those views are concordant. In the present
case, the burden laid upon the Court is therefore somewhat lightened by the
fact that the United States participated in the earlier phases of the case,
when it submitted certain arguments on the law which have a bearing also on
the merits.
30. As to the facts of the case, in principle the Court is not bound to
confine its consideration to the material formally submitted to it by the
parties (cf. Brazilian Loans, P.C.I.J., Series A, No. 20/21, p. 124; Nuclear
Tests, I.C.J. Reports 1974, pp. 263-264, paras. 31, 32). Nevertheless, the
Court cannot by its own enquiries entirely make up for the absence of one of
the Parties; that absence, in a case of this kind involving extensive
questions of fact, must necessarily limit the extent to which the Court is
informed of the facts. It would furthermore be an over-simplification to
conclude that the only detrimental consequence of the absence of a party is
the lack of opportunity to submit argument and evidence in support of its
own case. Proceedings before the Court call for vigilance by all. The absent
party also forfeits the opportunity to counter the factual allegations of
its opponent. It is of course for the party appearing to prove the
allegations it makes, yet as the Court has held:
"While Article 53 thus obliges the Court to consider the submissions of the
Party which appears, it does not compel the Court to examine their accuracy
in all their details; for this might in certain unopposed cases prove
impossible in practice." (Corfu Channel, I.C.J. Reports 1949, p. 248.)
31. While these are the guiding principles, the experience of previous cases
in which one party has decided not to appear shows that something more is
involved. Though formally absent from the proceedings, the party in question
frequently submits to the Court letters and documents, in ways and by means
not contemplated by the Rules. The Court has thus to strike a balance. On
the one hand, it is valuable for the Court to know the views of both parties
in whatever form those views may have been expressed. Further, as the Court
noted in 1974, where one party is not appearing "it is especially incumbent
upon the Court to satisfy itself that it is in possession of all the
available facts" (Nuclear Tests, I.C.J. Reports 1974, p. 263, para. 31; p.
468, para. 32). On the other hand, the Court has to emphasize that the
equality of the parties to the dispute must remain the basic principle for
the Court. The intention of Article 53 was that in a case of non-appearance
neither party should be placed at a disadvantage; therefore the party which
declines to appear cannot be permitted to profit from its absence, since
this would amount to placing the party appearing at a disadvantage. The
provisions of the Statute and Rules of Court concerning the presentation of
pleadings and evidence are designed to secure a proper administration of
justice, and a fair and equal opportunity for each party to comment on its
opponent's contentions. The treatment to be given by the Court to
communications or material emanating from the absent party must be
determined by the weight to be given to these different considerations, and
is not susceptible of rigid definition in the form of a precise general
rule. The vigilance which the Court can exercise when aided by the presence
of both parties to the proceedings has a counterpart in the special care it
has to devote to the proper administration of justice in a case in which
only one party is present.
32. Before proceeding further, the Court considers it appropriate to deal
with a preliminary question, relating to what may be referred to as the
justiciability of the dispute submitted to it by Nicaragua. In its
Counter-Memorial on jurisdiction and admissibility the United States
advanced a number of arguments why the claim should be treated as
inadmissible: inter alia, again according to the United States, that a claim
of unlawful use of armed force is a matter committed by the United Nations
Charter and by practice to the exclusive competence of other organs, in
particular the Security Council; and that an "ongoing armed conflict"
involving the use of armed force contrary to the Charter is one with which a
court cannot deal effectively without overstepping proper judicial bounds.
These arguments were examined by the Court in its Judgment of 26 November
1984, and rejected. No further arguments of this nature have been submitted
to the Court by the United States, which has not participated in the
subsequent proceedings. However the examination of the merits which the
Court has now carried out shows the existence of circumstances as a result
of which, it might be argued, the dispute, or that part of it which relates
to the questions of use of force and collective self-defence, would be non-justiciable.
33. In the first place, it has been suggested that the present dispute
should be declared non-justiciable, because it does not fall into the
category of "legal disputes" within the meaning of Article 36, paragraph 2,
of the Statute. It is true that the jurisdiction of the Court under that
provision is limited to "legal disputes" concerning any of the matters
enumerated in the text. The question whether a given dispute between two
States is or is not a "legal dispute" for the purposes of this provision may
itself be a matter in dispute between those two States; and if so, that
dispute is to be settled by the decision of the Court in accordance with
paragraph 6 of Article 36. In the present case, however, this particular
point does not appear to be in dispute between the Parties. The United
States, during the proceedings devoted to questions of jurisdiction and
admissibility, advanced a number of grounds why the Court should find that
it had no jurisdiction, or that the claim was not admissible. It relied
inter alia on proviso (c) to its own declaration of acceptance of
jurisdiction under Article 36, paragraph 2, without ever advancing the more
radical argument that the whole declaration was inapplicable because the
dispute brought before the Court by Nicaragua was not a "legal dispute"
within the meaning of that paragraph. As a matter of admissibility, the
United States objected to the application of Article 36, paragraph 2, not
because the dispute was not a "legal dispute", but because of the express
allocation of such matters as the subject of Nicaragua's claims to the
political organs under the United Nations Charter, an argument rejected by
the Court in its Judgment of 26 November 1984 (I.C.J. Reports 1984, pp.
431-436). Similarly, while the United States contended that the nature of
the judicial function precludes its application to the substance of
Nicaragua's allegations in this case -- an argument which the Court was
again unable to uphold (ibid., pp. 436-438) --, it was careful to emphasize
that this did not mean that it was arguing that international law was not
relevant or controlling in a dispute of this kind. In short, the Court can
see no indication whatsoever that, even in the view of the United States,
the present dispute falls outside the category of "legal disputes" to which
Article 36, paragraph 2, of the Statute applies. It must therefore proceed
to examine the specific claims of Nicaragua in the light of the
international law applicable.
34. There can be no doubt that the issues of the use of force and collective
self-defence raised in the present proceedings are issues which are
regulated both by customary international law and by treaties, in particular
the United Nations Charter. Yet it is also suggested that, for another
reason, the questions of this kind which arise in the present case are not
justiciable, that they fall outside the limits of the kind of questions a
court can deal with. It is suggested that the plea of collective self-defence
which has been advanced by the United States as a justification for its
actions with regard to Nicaragua requires the Court to determine whether the
United States was legally justified in adjudging itself under a necessity,
because its own security was in jeopardy, to use force in response to
foreign intervention in El Salvador. Such a determination, it is said,
involves a pronouncement on political and military matters, not a question
of a kind that a court can usefully attempt to answer.
35. As will be further explained below, in the circumstances of the dispute
now before the Court, what is in issue is the purported exercise by the
United States of a right of collective self-defence in response to an armed
attack on another State. The possible lawfulness of a response to the
imminent threat of an armed attack which has not yet taken place has not
been raised. The Court has therefore to determine first whether such attack
has occurred, and if so whether the measures allegedly taken in self-defence
were a legally appropriate reaction as a matter of collective self-defence.
To resolve the first of these questions, the Court does not have to
determine whether the United States, or the State which may have been under
attack, was faced with a necessity of reacting. Nor does its examination, if
it determines that an armed attack did occur, of issues relating to the
collective character of the self-defence and the kind of reaction,
necessarily involve it in any evaluation of military considerations.
Accordingly the Court can at this stage confine itself to a finding that, in
the circumstances of the present case, the issues raised of collective self-defence
are issues which it has competence, and is equipped, to determine.
36. By its Judgment of 26 November 1984, the Court found that it had
jurisdiction to entertain the present case, first on the basis of the United
States declaration of acceptance of jurisdiction, under the optional clause
of Article 36, paragraph 2, of the Statute, deposited on 26 August 1946 and
secondly on the basis of Article XXIV of a Treaty of Friendship, Commerce
and Navigation between the Parties, signed at Managua on 21 January 1956.
The Court notes that since the institution of the present proceedings, both
bases of jurisdiction have been terminated. On 1 May 1985 the United States
gave written notice to the Government of Nicaragua to terminate the Treaty,
in accordance with Article XXV, paragraph 3, thereof; that notice expired,
and thus terminated the treaty relationship, on 1 May 1986. On 7 October
1985 the United States deposited with the Secretary-General of the United
Nations a notice terminating the declaration under the optional clause, in
accordance with the terms of that declaration, and that notice expired on 7
April 1986. These circumstances do not however affect the jurisdiction of
the Court under Article 36, paragraph 2, of the Statute, or its jurisdiction
under Article XXIV, paragraph 2, of the Treaty to determine "any dispute
between the Parties as to the interpretation or application" of the Treaty.
As the Court pointed out in the Nottebohm case:
"When an Application is filed at a time when the law in force between the
parties entails the compulsory jurisdiction of the Court... the filing of
the Application is merely the condition required to enable the clause of
compulsory jurisdiction to produce its effects in respect of the claim
advanced in the Application. Once this condition has been satisfied, the
Court must deal with the claim; it has jurisdiction to deal with all its
aspects, whether they relate to jurisdiction, to admissibility or to the
merits. An extrinsic fact such as the subsequent lapse of the Declaration
[or, as in the present case also, the Treaty containing a compromissory
clause], by reason of the expiry of the period or by denunciation, cannot
deprive the Court of the jurisdiction already established." (I.C.J. Reports
1953, p. 123.)
37. In the Judgment of 26 November 1984 the Court however also declared that
one objection advanced by the United States, that concerning the exclusion
from the United States acceptance of jurisdiction under the optional clause
of "disputes arising under a multilateral treaty", raised "a question
concerning matters of substance relating to the merits of the case", and
concluded:
"That being so, and since the procedural technique formerly available of
joinder of preliminary objections to the merits has been done away with
since the 1972 revision of the Rules of Court, the Court has no choice but
to avail itself of Article 79, paragraph 7, of the present Rules of Court,
and declare that the objection based on the multilateral treaty reservation
of the United States Declaration of Acceptance does not possess, in the
circumstances of the case, an exclusively preliminary character, and that
consequently it does not constitute an obstacle for the Court to entertain
the proceedings instituted by Nicaragua under the Application of 9 April
1984." (I.C.J. Reports 1984, pp. 425-426, para. 76.)
38. The present case is the first in which the Court has had occasion to
exercise the power first provided for in the 1972 Rules of Court to declare
that a preliminary objection "does not possess, in the circumstances of the
case, an exclusively preliminary character". It may therefore be appropriate
to take this opportunity to comment briefly on the rationale of this
provision of the Rules, in the light of the problems to which the handling
of preliminary objections has given rise. In exercising its rule-making
power under Article 30 of the Statute, and generally in approaching the
complex issues which may be raised by the determination of appropriate
procedures for the settlement of disputes, the Court has kept in view an
approach defined by the Permanent Court of International Justice. That Court
found that it was at liberty to adopt
"the principle which it considers best calculated to ensure the
administration of justice, most suited to procedure before an international
tribunal and most in conformity with the fundamental principles of
international law" (Mavrommatis Palestine Concessions, P.C.I.J., Series A,
No. 2, p. 16).
39. Under the Rules of Court dating back to 1936 (which on this point
reflected still earlier practice), the Court had the power to join an
objection to the merits "whenever the interests of the good administration
of justice require it" (Panevezys-Saldutiskis Railway, P.C.I.J., Series A/B,
No. 75, p. 56), and in particular where the Court, if it were to decide on
the objection, "would run the risk of adjudicating on questions which
appertain to the merits of the case or of prejudging their solution"
(ibid.). If this power was exercised, there was always a risk, namely that
the Court would ultimately decide the case on the preliminary objection,
after requiring the parties fully to plead the merits, -- and this did in
fact occur (Barcelona Traction, Light and Power Company, Limited, Second
Phase, I.C.J. Reports 1970, p. 3). The result was regarded in some quarters
as an unnecessary prolongation of an expensive and time-consuming procedure.
40. Taking into account the wide range of issues which might be presented as
preliminary objections, the question which the Court faced was whether to
revise the Rules so as to exclude for the future the possibility of joinder
to the merits, so that every objection would have to be resolved at the
preliminary stage, or to seek a solution which would be more flexible. The
solution of considering all preliminary objections immediately and rejecting
all possibility of a joinder to the merits had many advocates and presented
many advantages. In the Panevezys-Saldutiskis Railway case, the Permanent
Court defined a preliminary objection as one
"submitted for the purpose of excluding an examination by the Court of the
merits of the case, and being one upon which the Court can give a decision
without in any way adjudicating upon the merits" (P.C.I.J., Series A/B, No.
76, p. 22).
If this view is accepted then of course every preliminary objection should
be dealt with immediately without touching the merits, or involving parties
in argument of the merits of the case. To find out, for instance, whether
there is a dispute between the parties or whether the Court has
jurisdiction, does not normally require an analysis of the merits of the
case. However that does not solve all questions of preliminary objections,
which may, as experience has shown, be to some extent bound up with the
merits. The final solution adopted in 1972, and maintained in the 1978
Rules, concerning preliminary objections is the following: the Court is to
give its decision
"by which it shall either uphold the objection, reject it, or declare that
the objection does not possess, in the circumstances of the case, an
exclusively preliminary character. If the Court rejects the objection, or
declares that it does not possess an exclusively preliminary character, it
shall fix time-limits for the further proceedings." (Art. 79, para. 7.)
41. While the variety of issues raised by preliminary objections cannot
possibly be foreseen, practice has shown that there are certain kinds of
preliminary objections which can be disposed of by the Court at an early
stage without examination of the merits. Above all, it is clear that a
question of jurisdiction is one which requires decision at the preliminary
stage of the proceedings. The new rule enumerates the objections
contemplated as follows:
"Any objection by the respondent to the jurisdiction of the Court or to the
admissibility of the application, or other objection the decision upon which
is requested before any further proceedings on the merits . . ." (Art. 79,
para. 1.)
It thus presents one clear advantage: that it qualifies certain objections
as preliminary, making it quite clear that when they are exclusively of that
character they will have to be decided upon immediately, but if they are
not, especially when the character of the objections is not exclusively
preliminary because they contain both preliminary aspects and other aspects
relating to the merits, they will have to be dealt with at the stage of the
merits. This approach also tends to discourage the unnecessary prolongation
of proceedings at the jurisdictional stage.
42. The Court must thus now rule upon the consequences of the United States
multilateral treaty reservation for the decision which it has to give. It
will be recalled that the United States acceptance of jurisdiction deposited
on 26 August 1946 contains a proviso excluding from its application:
"disputes arising under a multilateral treaty, unless (1) all parties to the
treaty affected by the decision are also parties to the case before the
Court, or (2) the United States of America specially agrees to
jurisdiction".
The 1984 Judgment included pronouncements on certain aspects of that
reservation, but the Court then took the view that it was neither necessary
nor possible, at the jurisdictional stage of the proceedings, for it to take
a position on all the problems posed by the reservation.
43. It regarded this as not necessary because, in its Application, Nicaragua
had not confined its claims to breaches of multilateral treaties but had
also invoked a number of principles of "general and customary international
law", as well as the bilateral Treaty of Friendship, Commerce and Navigation
of 1956. These principles remained binding as such, although they were also
enshrined in treaty law provisions. Consequently, since the case had not
been referred to the Court solely on the basis of multilateral treaties, it
was not necessary for the Court, in order to consider the merits of
Nicaragua's claim, to decide the scope of the reservation in question: "the
claim . . . would not in any event be barred by the multilateral treaty
reservation" (I.C.J. Reports 1984, p. 425, para. 73). Moreover, it was not
found possible for the reservation to be definitively dealt with at the
jurisdictional stage of the proceedings. To make a judgment on the scope of
the reservation would have meant giving a definitive interpretation of the
term "affected" in that reservation. In its 1984 Judgment, the Court held
that the term "affected" applied not to multilateral treaties, but to the
parties to such treaties. The Court added that if those parties wished to
protect their interests "in so far as these are not already protected by
Article 59 of the Statute", they "would have the choice of either
instituting proceedings or intervening" during the merits phase. But at all
events, according to the Court, "the determination of the States 'affected'
could not be left to the parties but must be made by the Court" (I.C.J.
Reports 1984, p. 425, para. 75). This process could however not be carried
out at the stage of the proceedings in which the Court then found itself;
"it is only when the general lines of the judgment to be given become
clear", the Court said, "that the States 'affected' could be identified"
(ibid.). The Court thus concluded that this was "a question concerning
matters of substance relating to the merits of the case" (ibid., para. 76).
Since "the question of what States may be 'affected' by the decision on the
merits is not in itself a jurisdictional problem", the Court found that it
"has no choice but to avail itself of Article 79, paragraph 7, of the
present Rules of Court, and declare that the objection based on the
multilateral treaty reservation . . . does not possess, in the circumstances
of the case, an exclusively preliminary character" (ibid., para. 76).
44. Now that the Court has considered the substance of the dispute, it
becomes both possible and necessary for it to rule upon the points related
to the United States reservation which were not settled in 1984. It is
necessary because the Court's jurisdiction, as it has frequently recalled,
is based on the consent of States, expressed in a variety of ways including
declarations made under Article 36, paragraph 2, of the Statute. It is the
declaration made by the United States under that Article which defines the
categories of dispute for which the United States consents to the Court's
jurisdiction. If therefore that declaration, because of a reservation
contained in it, excludes from the disputes for which it accepts the Court's
jurisdiction certain disputes arising under multilateral treaties, the Court
must take that fact into account. The final decision on this point, which it
was not possible to take at the jurisdictional stage, can and must be taken
by the Court now when coming to its decision on the merits. If this were not
so, the Court would not have decided whether or not the objection was
well-founded, either at the jurisdictional stage, because it did not possess
an exclusively preliminary character, or at the merits stage, because it did
to some degree have such a character. It is now possible to resolve the
question of the application of the reservation because, in the light of the
Court's full examination of the facts of the case and the law, the
implications of the argument of collective self-defence raised by the United
States have become clear.
45. The reservation in question is not necessarily a bar to the United
States accepting the Court's jurisdiction whenever a third State which may
be affected by the decision is not a party to the proceedings. According to
the actual text of the reservation, the United States can always disregard
this fact if it "specially agrees to jurisdiction". Besides, apart from this
possibility, as the Court recently observed: "in principle a State may
validly waive an objection to jurisdiction which it might otherwise have
been entitled to raise" (I.C.J. Reports 1985, p. 216, para. 43). But it is
clear that the fact that the United States, having refused to participate at
the merits stage, did not have an opportunity to press again at that stage
the argument which, in the jurisdictional phase, it founded on its
multilateral treaty reservation cannot be tantamount to a waiver of the
argument drawn from the reservation. Unless unequivocally waived, the
reservation constitutes a limitation on the extent of the jurisdiction
voluntarily accepted by the United States; and, as the Court observed in the
Aegean Sea Continental Shelf case,
"It would not discharge its duty under Article 53 of the Statute if it were
to leave out of its consideration a reservation, the invocation of which by
the Respondent was properly brought to its notice earlier in the
proceedings." (I.C.J. Reports 1978, p. 20, para. 47.)
The United States has not in the present phase submitted to the Court any
arguments whatever, either on the merits proper or on the question -- not
exclusively preliminary -- of the multilateral treaty reservation. The Court
cannot therefore consider that the United States has waived the reservation
or no longer ascribes to it the scope which the United States attributed to
it when last stating its position on this matter before the Court. This
conclusion is the more decisive inasmuch as a respondent's non-participation
requires the Court, as stated for example in the Fisheries Jurisdiction
cases, to exercise "particular circumspection and . . . special care" (I.C.J.
Reports 1974, p. 10, para. 17, and p. 181, para. 18).
46. It has also been suggested that the United States may have waived the
multilateral treaty reservation by its conduct of its case at the
jurisdictional stage, or more generally by asserting collective self-defence
in accordance with the United Nations Charter as justification for its
activities vis-a-vis Nicaragua. There is no doubt that the United States,
during its participation in the proceedings, insisted that the law
applicable to the dispute was to be found in multilateral treaties,
particularly the United Nations Charter and the Charter of the Organization
of American States; indeed, it went so far as to contend that such treaties
supervene and subsume customary law on the subject. It is however one thing
for a State to advance a contention that the law applicable to a given
dispute derives from a specified source; it is quite another for that State
to consent to the Court's having jurisdiction to entertain that dispute, and
thus to apply that law to the dispute. The whole purpose of the United
States argument as to the applicability of the United Nations and
Organization of American States Charters was to convince the Court that the
present dispute is one "arising under" those treaties, and hence one which
is excluded from jurisdiction by the multilateral treaty reservation in the
United States declaration of acceptance of jurisdiction. It is impossible to
interpret the attitude of the United States as consenting to the Court's
applying multilateral treaty law to resolve the dispute, when what the
United States was arguing was that, for the very reason that the dispute
"arises under" multilateral treaties, no consent to its determination by the
Court has ever been given. The Court was fully aware, when it gave its 1984
Judgment, that the United States regarded the law of the two Charters as
applicable to the dispute; it did not then regard that approach as a waiver,
nor can it do so now. The Court is therefore bound to ascertain whether its
jurisdiction is limited by virtue of the reservation in question.
47. In order to fulfil this obligation, the Court is now in a position to
ascertain whether any third States, parties to multilateral treaties invoked
by Nicaragua in support of its claims, would be "affected" by the Judgment,
and are not parties to the proceedings leading up to it. The multilateral
treaties discussed in this connection at the stage of the proceedings
devoted to jurisdiction were four in number: the Charter of the United
Nations, the Charter of the Organization of American States, the Montevideo
Convention on the Rights and Duties of States of 26 December 1933, and the
Havana Convention on the Rights and Duties of States in the Event of Civil
Strife of 20 February 1928 (cf. I.C.J. Reports 1984, p. 422, para. 68).
However, Nicaragua has not placed any particular reliance on the latter two
treaties in the present proceedings; and in reply to a question by a Member
of the Court on the point, the Nicaraguan Agent stated that while Nicaragua
had not abandoned its claims under these two conventions, it believed "that
the duties and obligations established by these conventions have been
subsumed in the Organization of American States Charter". The Court
therefore considers that it will be sufficient to examine the position under
the two Charters, leaving aside the possibility that the dispute might be
regarded as "arising" under either or both of the other two conventions.
48. The argument of the Parties at the jurisdictional stage was addressed
primarily to the impact of the multilateral treaty reservation on
Nicaragua's claim that the United States has used force against it in breach
of the United Nations Charter and of the Charter of the Organization of
American States, and the Court will first examine this aspect of the matter.
According to the views presented by the United States during the
jurisdictional phase, the States which would be "affected" by the Court's
judgment were El Salvador, Honduras and Costa Rica. Clearly, even if only
one of these States is found to be "affected", the United States reservation
takes full effect. The Court will for convenience first take the case of El
Salvador, as there are certain special features in the position of this
State. It is primarily for the benefit of El Salvador, and to help it to
respond to an alleged armed attack by Nicaragua, that the United States
claims to be exercising a right of collective self-defence, which it regards
as a justification of its own conduct towards Nicaragua. Moreover, El
Salvador, confirming this assertion by the United States, told the Court in
the Declaration of Intervention which it submitted on 15 August 1984 that it
considered itself the victim of an armed attack by Nicaragua, and that it
had asked the United States to exercise for its benefit the right of
collective self-defence. Consequently, in order to rule upon Nicaragua's
complaint against the United States, the Court would have to decide whether
any justification for certain United States activities in and against
Nicaragua can be found in the right of collective self-defence which may, it
is alleged, be exercised in response to an armed attack by Nicaragua on El
Salvador. Furthermore, reserving for the present the question of the content
of the applicable customary international law, the right of self-defence is
of course enshrined in the United Nations Charter, so that the dispute is,
to this extent, a dispute "arising under a multilateral treaty" to which the
United States, Nicaragua and El Salvador are parties.
49. As regards the Charter of the Organization of American States, the Court
notes that Nicaragua bases two distinct claims upon this multilateral
treaty: it is contended, first, that the use of force by the United States
against Nicaragua in violation of the United Nations Charter is equally a
violation of Articles 20 and 21 of the Organization of American States
Charter, and secondly that the actions it complains of constitute
intervention in the internal and external affairs of Nicaragua in violation
of Article 18 of the Organization of American States Charter. The Court will
first refer to the claim of use of force alleged to be contrary to Articles
20 and 21. Article 21 of the Organization of American States Charter
provides:
"The American States bind themselves in their international relations not to
have recourse to the use of force, except in the case of self-defense in
accordance with existing treaties or in fulfillment thereof."
Nicaragua argues that the provisions of the Organization of American States
Charter prohibiting the use of force are "coterminous with the stipulations
of the United Nations Charter", and that therefore the violations by the
United States of its obligations under the United Nations Charter also, and
without more, constitute violations of Articles 20 and 21 of the
Organization of American States Charter.
50. Both Article 51 of the United Nations Charter and Article 21 of the
Organization of American States Charter refer to self-defence as an
exception to the principle of the prohibition of the use of force. Unlike
the United Nations Charter, the Organization of American States Charter does
not use the expression "collective self-defence", but refers to the case of
"self-defence in accordance with existing treaties or in fulfillment
thereof", one such treaty being the United Nations Charter. Furthermore it
is evident that if actions of the United States complied with all
requirements of the United Nations Charter so as to constitute the exercise
of the right of collective self-defence, it could not be argued that they
could nevertheless constitute a violation of Article 21 of the Organization
of American States Charter. It therefore follows that the situation of El
Salvador with regard to the assertion by the United States of the right of
collective self-defence is the same under the Organization of American
States Charter as it is under the United Nations Charter.
51. In its Judgment of 26 November 1984, the Court recalled that Nicaragua's
Application, according to that State, does not cast doubt on El Salvador's
right to receive aid, military or otherwise, from the United States (I.C.J.
Reports 1984, p. 430, para. 86). However, this refers to the direct aid
provided to the Government of El Salvador on its territory in order to help
it combat the insurrection with which it is faced, not to any indirect aid
which might be contributed to this combat by certain United States
activities in and against Nicaragua. The Court has to consider the
consequences of a rejection of the United States justification of its
actions as the exercise of the right of collective self-defence for the sake
of El Salvador, in accordance with the United Nations Charter. A judgment to
that effect would declare contrary to treaty-law the indirect aid which the
United States Government considers itself entitled to give the Government of
El Salvador in the form of activities in and against Nicaragua. The Court
would of course refrain from any finding on whether El Salvador could
lawfully exercise the right of individual self-defence; but El Salvador
would still be affected by the Court's decision on the lawfulness of resort
by the United States to collective self-defence. If the Court found that no
armed attack had occurred, then not only would action by the United States
in purported exercise of the right of collective self-defence prove to be
unjustified, but so also would any action which El Salvador might take or
might have taken on the asserted ground of individual self-defence.
52. It could be argued that the Court, if it found that the situation does
not permit the exercise by El Salvador of its right of self-defence, would
not be "affecting" that right itself but the application of it by El
Salvador in the circumstances of the present case. However, it should be
recalled that the condition of the application of the multilateral treaty
reservation is not that the "right" of a State be affected, but that the
State itself be "affected" -- a broader criterion. Furthermore whether the
relations between Nicaragua and El Salvador can be qualified as relations
between an attacker State and a victim State which is exercising its right
of self-defence, would appear to be a question in dispute between those two
States. But El Salvador has not submitted this dispute to the Court; it
therefore has a right to have the Court refrain from ruling upon a dispute
which it has not submitted to it. Thus, the decision of the Court in this
case would affect this right of El Salvador and consequently this State
itself.
53. Nor is it only in the case of a decision of the Court rejecting the
United States claim to be acting in self-defence that El Salvador would be
"affected" by the decision. The multilateral treaty reservation does not
require, as a condition for the exclusion of a dispute from the jurisdiction
of the Court, that a State party to the relevant treaty be "adversely" or
"prejudicially" affected by the decision, even though this is clearly the
case primarily in view. In other situations in which the position of a State
not before the Court is under consideration (cf. Monetary Gold Removed from
Rome in 1943, I.C.J. Reports 1954, p. 32; Continental Shelf (Libyan Arab
Jamahiriya/Malta), Application to Intervene, Judgment, I.C.J. Reports 1984,
p. 20, para. 31) it is clearly impossible to argue that that State may be
differently treated if the Court's decision will not necessarily be adverse
to the interests of the absent State, but could be favourable to those
interests. The multilateral treaty reservation bars any decision that would
"affect" a third State party to the relevant treaty. Here also, it is not
necessary to determine whether the decision will "affect" that State
unfavourably or otherwise; the condition of the reservation is met if the
State will necessarily be "affected", in one way or the other.
54. There may of course be circumstances in which the Court, having examined
the merits of the case, concludes that no third State could be "affected" by
the decision: for example, as pointed out in the 1984 Judgment, if the
relevant claim is rejected on the facts (I.C.J. Reports 1984, p. 425, para.
75). If the Court were to conclude in the present case, for example, that
the evidence was not sufficient for a finding that the United States had
used force against Nicaragua, the question of justification on the grounds
of self-defence would not arise, and there would be no possibility of El
Salvador being "affected" by the decision. In 1984 the Court could not, on
the material available to it, exclude the possibility of such a finding
being reached after fuller study of the case, and could not therefore
conclude at once that El Salvador would necessarily be "affected" by the
eventual decision. It was thus this possibility which prevented the
objection based on the reservation from having an exclusively preliminary
character.
55. As indicated in paragraph 49 above, there remains the claim of Nicaragua
that the United States has intervened in the internal and external affairs
of Nicaragua in violation of Article 18 of the Organization of American
States Charter. That Article provides:
"No State or group of States has the right to intervene, directly or
indirectly, for any reason whatever, in the internal or external affairs of
any other State. The foregoing principle prohibits not only armed force but
also any other form of interference or attempted threat against the
personality of the State or against its political, economic, and cultural
elements." The potential link, recognized by this text, between intervention
and the use of armed force, is actual in the present case, where the same
activities attributed to the United States are complained of under both
counts, and the response of the United States is the same to each complaint
-- that it has acted in self-defence. The Court has to consider what would
be the impact, for the States identified by the United States as likely to
be "affected", of a decision whereby the Court would decline to rule on the
alleged violation of Article 21 of the Organization of American States
Charter, concerning the use of force, but passed judgment on the alleged
violation of Article 18. The Court will not here enter into the question
whether self-defence may justify an intervention involving armed force, so
that it has to be treated as not constituting a breach either of the
principle of non-use of force or of that of non-intervention. At the same
time, it concludes that in the particular circumstances of this case, it is
impossible to say that a ruling on the alleged breach by the United States
of Article 18 of the Organization of American States Charter would not
"affect" El Salvador.
56. The Court therefore finds that El Salvador, a party to the United
Nations Charter and to the Charter of the Organization of American States,
is a State which would be "affected" by the decision which the Court would
have to take on the claims by Nicaragua that the United States has violated
Article 2, paragraph 4, of the United Nations Charter and Articles 18, 20
and 21 of the Organization of American States Charter. Accordingly, the
Court, which under Article 53 of the Statute has to be "satisfied" that it
has jurisdiction to decide each of the claims it is asked to uphold,
concludes that the jurisdiction conferred upon it by the United States
declaration of acceptance of jurisdiction under Article 36, paragraph 2, of
the Statute does not permit the Court to entertain these claims. It should
however be recalled that, as will be explained further below, the effect of
the reservation in question is confined to barring the applicability of the
United Nations Charter and Organization of American States Charter as
multilateral treaty law, and has no further impact on the sources of
international law which Article 38 of the Statute requires the Court to
apply.
57. One of the Court's chief difficulties in the present case has been the
determination of the facts relevant to the dispute. First of all, there is
marked disagreement between the Parties not only on the interpretation of
the facts, but even on the existence or nature of at least some of them.
Secondly, the respondent State has not appeared during the present merits
phase of the proceedings, thus depriving the Court of the benefit of its
complete and fully argued statement regarding the facts. The Court's task
was therefore necessarily more difficult, and it has had to pay particular
heed, as said above, to the proper application of Article 53 of its Statute.
Thirdly, there is the secrecy in which some of the conduct attributed to one
or other of the Parties has been carried on. This makes it more difficult
for the Court not only to decide on the imputability of the facts, but also
to establish what are the facts. Sometimes there is no question, in the
sense that it does not appear to be disputed, that an act was done, but
there are conflicting reports, or a lack of evidence, as to who did it. The
problem is then not the legal process of imputing the act to a particular
State for the purpose of establishing responsibility, but the prior process
of tracing material proof of the identity of the perpetrator. The occurrence
of the act itself may however have been shrouded in secrecy. In the latter
case, the Court has had to endeavour first to establish what actually
happened, before entering on the next stage of considering whether the act
(if proven) was imputable to the State to which it has been attributed.
58. A further aspect of this case is that the conflict to which it relates
has continued and is continuing. It has therefore been necessary for the
Court to decide, for the purpose of its definition of the factual situation,
what period of time, beginning from the genesis of the dispute, should be
taken into consideration. The Court holds that general principles as to the
judicial process require that the facts on which its Judgment is based
should be those occurring up to the close of the oral proceedings on the
merits of the case. While the Court is of course very well aware, from
reports in the international press, of the developments in Central America
since that date, it cannot, as explained below (paragraphs 62 and 63), treat
such reports as evidence, nor has it had the benefit of the comments or
argument of either of the Parties on such reports. As the Court recalled in
the Nuclear Tests cases, where facts, apparently of such a nature as
materially to affect its decision, came to its attention after the close of
the hearings:
"It would no doubt have been possible for the Court, had it considered that
the interests of justice so required, to have afforded the Parties the
opportunity, e.g., by reopening the oral proceedings, of addressing to the
Court comments on the statements made since the close of those proceedings."
(I.C.J. Reports 1974, p. 264, para. 33; p. 468, para. 34.)
Neither Party has requested such action by the Court; and since the reports
to which reference has been made do not suggest any profound modification of
the situation of which the Court is seised, but rather its intensification
in certain respects, the Court has seen no need to reopen the hearings.
59. The Court is bound by the relevant provisions of its Statute and its
Rules relating to the system of evidence, provisions devised to guarantee
the sound administration of justice, while respecting the equality of the
parties. The presentation of evidence is governed by specific rules relating
to, for instance, the observance of time-limits, the communication of
evidence to the other party, the submission of observations on it by that
party, and the various forms of challenge by each party of the other's
evidence. The absence of one of the parties restricts this procedure to some
extent. The Court is careful, even where both parties appear, to give each
of them the same opportunities and chances to produce their evidence; when
the situation is complicated by the non-appearance of one of them, then a
fortiori the Court regards it as essential to guarantee as perfect equality
as possible between the parties. Article 53 of the Statute therefore obliges
the Court to employ whatever means and resources may enable it to satisfy
itself whether the submissions of the applicant State are well-founded in
fact and law, and simultaneously to safeguard the essential principles of
the sound administration of justice.
60. The Court should now indicate how these requirements have to be met in
this case so that it can properly fulfil its task under that Article of its
Statute. In so doing, it is not unaware that its role is not a passive one;
and that, within the limits of its Statute and Rules, it has freedom in
estimating the value of the various elements of evidence, though it is clear
that general principles of judicial procedure necessarily govern the
determination of what can be regarded as proved.
61. In this context, the Court has the power, under Article 50 of its
Statute, to entrust "any individual, body, bureau, commission or other
organization that it may select, with the task of carrying out an enquiry or
giving an expert opinion", and such a body could be a group of judges
selected from among those sitting in the case. In the present case, however,
the Court felt it was unlikely that an enquiry of this kind would be
practical or desirable, particularly since such a body, if it was properly
to perform its task, might have found it necessary to go not only to the
applicant State, but also to several other neighbouring countries, and even
to the respondent State, which had refused to appear before the Court.
62. At all events, in the present case the Court has before it documentary
material of various kinds from various sources. A large number of documents
have been supplied in the form of reports in press articles, and some also
in the form of extracts from books. Whether these were produced by the
applicant State, or by the absent Party before it ceased to appear in the
proceedings, the Court has been careful to treat them with great caution;
even if they seem to meet high standards of objectivity, the Court regards
them not as evidence capable of proving facts, but as material which can
nevertheless contribute, in some circumstances, to corroborating the
existence of a fact, i.e., as illustrative material additional to other
sources of evidence.
63. However, although it is perfectly proper that press information should
not be treated in itself as evidence for judicial purposes, public knowledge
of a fact may nevertheless be established by means of these sources of
information, and the Court can attach a certain amount of weight to such
public knowledge. In the case of United States Diplomatic and Consular Staff
in Tehran, the Court referred to facts which "are, for the most part,
matters of public knowledge which have received extensive coverage in the
world press and in radio and television broadcasts from Iran and other
countries" (I.C.J. Reports 1980, p. 9, para. 12). On the basis of
information, including press and broadcast material, which was "wholly
consistent and concordant as to the main facts and circumstances of the
case", the Court was able to declare that it was satisfied that the
allegations of fact were well-founded (ibid., p. 10, para. 13). The Court
has however to show particular caution in this area. Widespread reports of a
fact may prove on closer examination to derive from a single source, and
such reports, however numerous, will in such case have no greater value as
evidence than the original source. It is with this important reservation
that the newspaper reports supplied to the Court should be examined in order
to assess the facts of the case, and in particular to ascertain whether such
facts were matters of public knowledge.
64. The material before the Court also includes statements by
representatives of States, sometimes at the highest political level. Some of
these statements were made before official organs of the State or of an
international or regional organization, and appear in the official records
of those bodies. Others, made during press conferences or interviews, were
reported by the local or international press. The Court takes the view that
statements of this kind, emanating from high-ranking official political
figures, sometimes indeed of the highest rank, are of particular probative
value when they acknowledge facts or conduct unfavourable to the State
represented by the person who made them. They may then be construed as a
form of admission.
65. However, it is natural also that the Court should treat such statements
with caution, whether the official statement was made by an authority of the
Respondent or of the Applicant. Neither Article 53 of the Statute, nor any
other ground, could justify a selective approach, which would have
undermined the consistency of the Court's methods and its elementary, duty
to ensure equality between the Parties. The Court must take account of the
manner in which the statements were made public; evidently, it cannot treat
them as having the same value irrespective of whether the text is to be
found in an official national or international publication, or in a book or
newspaper. It must also take note whether the text of the official statement
in question appeared in the language used by the author or on the basis of a
translation (cf. I.C.J. Reports 1980, p. 10, para. 13). It may also be
relevant whether or not such a statement was brought to the Court's
knowledge by official communications filed in conformity with the relevant
requirements of the Statute and Rules of Court. Furthermore, the Court has
inevitably had sometimes to interpret the statements, to ascertain precisely
to what degree they constituted acknowledgments of a fact.
66. At the hearings in this case, the applicant State called five witnesses
to give oral evidence, and the evidence of a further witness was offered in
the form of an affidavit "subscribed and sworn" in the United States,
District of Columbia, according to the formal requirements in force in that
place. A similar affidavit, sworn by the United States Secretary of State,
was annexed to the Counter-Memorial of the United States on the questions of
jurisdiction and admissibility. One of the witnesses presented by the
applicant State was a national of the respondent State, formerly in the
employ of a government agency the activity of which is of a confidential
kind, and his testimony was kept strictly within certain limits; the witness
was evidently concerned not to contravene the legislation of his country of
origin. In addition, annexed to the Nicaraguan Memorial on the merits were
two declarations, entitled "affidavits", in the English language, by which
the authors "certify and declare" certain facts, each with a notarial
certificate in Spanish appended, whereby a Nicaraguan notary authenticates
the signature to the document. Similar declarations had been filed by
Nicaragua along with its earlier request for the indication of provisional
measures.
67. As regards the evidence of witnesses, the failure of the respondent
State to appear in the merits phase of these proceedings has resulted in two
particular disadvantages. First, the absence of the United States meant that
the evidence of the witnesses presented by the Applicant at the hearings was
not tested by cross-examination; however, those witnesses were subjected to
extensive questioning from the bench. Secondly, the Respondent did not
itself present any witnesses of its own. This latter disadvantage merely
represents one aspect, and a relatively secondary one, of the more general
disadvantage caused by the non-appearance of the Respondent.
68. The Court has not treated as evidence any part of the testimony given
which was not a statement of fact, but a mere expression of opinion as to
the probability or otherwise of the existence of such facts, not directly
known to the witness. Testimony of this kind, which may be highly
subjective, cannot take the place of evidence. An opinion expressed by a
witness is a mere personal and subjective evaluation of a possibility, which
has yet to be shown to correspond to a fact; it may, in conjunction with
other material, assist the Court in determining a question of fact, but is
not proof in itself. Nor is testimony of matters not within the direct
knowledge of the witness, but known to him only from hearsay, of much
weight; as the Court observed in relation to a particular witness in the
Corfu Channel case:
"The statements attributed by the witness . . . to third parties, of which
the Court has received no personal and direct confirmation, can be regarded
only as allegations falling short of conclusive evidence." (I.C.J. Reports
1949, pp. 16-17.)
69. The Court has had to attach considerable significance to the
declarations made by the responsible authorities of the States concerned in
view of the difficulties which it has had to face in determining the facts.
Nevertheless, the Court was still bound to subject these declarations to the
necessary critical scrutiny. A distinctive feature of the present case was
that two of the witnesses called to give oral evidence on behalf of
Nicaragua were members of the Nicaraguan Government, the Vice-Minister of
the Interior (Commander Carrion), and the Minister of Finance (Mr. Huper).
The Vice-Minister of the Interior was also the author of one of the two
declarations annexed to the Nicaraguan Memorial on the merits, the author of
the other being the Minister for Foreign Affairs. On the United States side,
an affidavit was filed sworn by the Secretary of State. These declarations
at ministerial level on each side were irreconcilable as to their statement
of certain facts. In the view of the Court, this evidence is of such a
nature as to be placed in a special category. In the general practice of
courts, two forms of testimony which are regarded as prima facie of superior
credibility are, first the evidence of a disinterested witness -- one who is
not a party to the proceedings and stands to gain or lose nothing from its
outcome -- and secondly so much of the evidence of a party as is against its
own interest. Indeed the latter approach was invoked in this case by counsel
for Nicaragua.
70. A member of the government of a State engaged, not merely in
international litigation, but in litigation relating to armed conflict, will
probably tend to identify himself with the interests of his country, and to
be anxious when giving evidence to say nothing which could prove adverse to
its cause. The Court thus considers that it can certainly retain such parts
of the evidence given by Ministers, orally or in writing, as may be regarded
as contrary to the interests or contentions of the State to which the
witness owes allegiance, or as relating to matters not controverted. For the
rest, while in no way impugning the honour or veracity of the Ministers of
either Party who have given evidence, the Court considers that the special
circumstances of this case require it to treat such evidence with great
reserve. The Court believes this approach to be the more justified in view
of the need to respect the equality of the parties in a case where one of
them is no longer appearing; but this should not be taken to mean that the
non-appearing party enjoys a priori a presumption in its favour.
71. However, before outlining the limits of the probative effect of
declarations by the authorities of the States concerned, the Court would
recall that such declarations may involve legal effects, some of which it
has defined in previous decisions (Nuclear Tests, United States Diplomatic
and Consular Staff in Tehran cases). Among the legal effects which such
declarations may have is that they may be regarded as evidence of the truth
of facts, as evidence that such facts are attributable to the States the
authorities of which are the authors of these declarations and, to a lesser
degree, as evidence for the legal qualification of these facts. The Court is
here concerned with the significance of the official declarations as
evidence of specific facts and of their imputability to the States in
question.
72. The declarations to which the Court considers it may refer are not
limited to those made in the pleadings and the oral argument addressed to it
in the successive stages of the case, nor are they limited to statements
made by the Parties. Clearly the Court is entitled to refer, not only to the
Nicaraguan pleadings and oral argument, but to the pleadings and oral
argument submitted to it by the United States before it withdrew from
participation in the proceedings, and to the Declaration of Intervention of
El Salvador in the proceedings. It is equally clear that the Court may take
account of public declarations to which either Party has specifically drawn
attention, and the text, or a report, of which has been filed as documentary
evidence. But the Court considers that, in its quest for the truth, it may
also take note of statements of representatives of the Parties (or of other
States) in international organizations, as well as the resolutions adopted
or discussed by such organizations, in so far as factually relevant, whether
or not such material has been drawn to its attention by a Party.
73. In addition, the Court is aware of the existence and the contents of a
publication of the United States State Department entitled "Revolution
Beyond Our Borders", Sandinista Intervention in Central America intended to
justify the policy of the United States towards Nicaragua. This publication
was issued in September 1985, and on 6 November 1985 was circulated as an
official document of the United Nations General Assembly and the Security
Council, at the request of the United States (A/40/858; S/17612); Nicaragua
had circulated in reply a letter to the Secretary-General, annexing inter
alia an extract from its Memorial on the Merits and an extract from the
verbatim records of the hearings in the case (A/40/907; S/17639). The United
States publication was not submitted to the Court in any formal manner
contemplated by the Statute and Rules of Court, though on 13 September 1985
the United States Information Office in The Hague sent copies to an official
of the Registry to be made available to anyone at the Court interested in
the subject. The representatives of Nicaragua before the Court during the
hearings were aware of the existence of this publication, since it was
referred to in a question put to the Agent of Nicaragua by a Member of the
Court. They did not attempt to refute before the Court what was said in that
publication, pointing out that materials of this kind "do not constitute
evidence in this case", and going on to suggest that it "cannot properly be
considered by the Court". The Court however considers that, in view of the
special circumstances of this case, it may, within limits, make use of
information in such a publication.
74. In connection with the question of proof of facts, the Court notes that
Nicaragua has relied on an alleged implied admission by the United States.
It has drawn attention to the invocation of collective self-defence by the
United States, and contended that "the use of the justification of
collective self-defence constitutes a major admission of direct and
substantial United States involvement in the military and paramilitary
operations" directed against Nicaragua. The Court would observe that the
normal purpose of an invocation of self-defence is to justify conduct which
would otherwise be wrongful. If advanced as a justification in itself, not
coupled with a denial of the conduct alleged, it may well imply both an
admission of that conduct, and of the wrongfulness of that conduct in the
absence of the justification of self-defence. This reasoning would do away
with any difficulty in establishing the facts, which would have been the
subject of an implicit overall admission by the United States, simply
through its attempt to justify them by the right of self-defence. However,
in the present case the United States has not listed the facts or described
the measures which it claims to have taken in self-defence; nor has it taken
the stand that it is responsible for all the activities of which Nicaragua
accuses it but such activities were justified by the right of self-defence.
Since it has not done this, the United States cannot be taken to have
admitted all the activities, or any of them; the recourse to the right of
self-defence thus does not make possible a firm and complete definition of
admitted facts. The Court thus cannot consider reliance on self-defence to
be an implicit general admission on the part of the United States; but it is
certainly a recognition as to the imputability of some of the activities
complained of.
75. Before examining the complaint of Nicaragua against the United States
that the United States is responsible for the military capacity, if not the
very existence, of the contra forces, the Court will first deal with events
which, in the submission of Nicaragua, involve the responsibility of the
United States in a more direct manner. These are the mining of Nicaraguan
ports or waters in early 1984; and certain attacks on, in particular,
Nicaraguan port and oil installations in late 1983 and early 1984. It is the
contention of Nicaragua that these were not acts committed by members of the
contras with the assistance and support of United States agencies. Those
directly concerned in the acts were, it is claimed, not Nicaraguan nationals
or other members of the FDN or ARDE, but either United States military
personnel or persons of the nationality of unidentified Latin American
countries, paid by, and acting on the direct instructions of, United States
military or intelligence personnel. (These persons were apparently referred
to in the vocabulary of the CIA as "UCLAs" -- "Unilaterally Controlled
Latino Assets", and this acronym will be used, purely for convenience, in
what follows.) Furthermore, Nicaragua contends that such United States
personnel, while they may have refrained from themselves entering Nicaraguan
territory or recognized territorial waters, directed the operations and gave
very close logistic, intelligence and practical support. A further complaint
by Nicaragua which does not relate to contra activity is that of overflights
of Nicaraguan territory and territorial waters by United States military
aircraft. These complaints will now be examined.
76. On 25 February 1984, two Nicaraguan fishing vessels struck mines in the
Nicaraguan port of El Bluff, on the Atlantic coast. On 1 March 1984 the
Dutch dredger Geoponte, and on 7 March 1984 the Panamanian vessel Los
Caraibes were damaged by mines at Corinto. On 20 March 1984 the Soviet
tanker Lugansk was damaged by a mine in Puerto Sandino. Further vessels were
damaged or destroyed by mines in Corinto on 28, 29 and 30 March. The period
for which the mines effectively closed or restricted access to the ports was
some two months. Nicaragua claims that a total of 12 vessels or fishing
boats were destroyed or damaged by mines, that 14 people were wounded and
two people killed. The exact position of the mines -- whether they were in
Nicaraguan internal waters or in its territorial sea -- has not been made
clear to the Court: some reports indicate that those at Corinto were not in
the docks but in the access channel, or in the bay where ships wait for a
berth. Nor is there any direct evidence of the size and nature of the mines;
the witness Commander Carrion explained that the Nicaraguan authorities were
never able to capture an unexploded mine. According to press reports, the
mines were laid on the sea-bed and triggered either by contact,
acoustically, magnetically or by water pressure; they were said to be small,
causing a noisy explosion, but unlikely to sink a ship. Other reports
mention mines of varying size, some up to 300 pounds of explosives. Press
reports quote United States administration officials as saying that mines
were constructed by the CIA with the help of a United States Navy
Laboratory.
77. According to a report in Lloyds List and Shipping Gazette,
responsibility for mining was claimed on 2 March 1984 by the ARDE. On the
other hand, according to an affidavit by Mr. Edgar Chamorro, a former
political leader of the FDN, he was instructed by a CIA official to issue a
press release over the clandestine radio on 5 January 1984, claiming that
the FDN had mined several Nicaraguan harbours. He also stated that the FDN
in fact played no role in the mining of the harbours, but did not state who
was responsible. According to a press report, the contras announced on 8
January 1984, that they were mining all Nicaraguan ports, and warning all
ships to stay away from them; but according to the same report, nobody paid
much attention to this announcement. It does not appear that the United
States Government itself issued any warning or notification to other States
of the existence and location of the mines.
78. It was announced in the United States Senate on 10 April 1984 that the
Director of the CIA had informed the Senate Select Committee on Intelligence
that President Reagan had approved a CIA plan for the mining of Nicaraguan
ports; press reports state that the plan was approved in December 1983, but
according to a member of that Committee, such approval was given in February
1984. On 10 April 1984, the United States Senate voted that
"it is the sense of the Congress that no funds . . . shall be obligated or
expended for the purpose of planning, directing, executing or supporting the
mining of the ports or territorial waters of Nicaragua".
During a televised interview on 28 May 1984, of which the official
transcript has been produced by Nicaragua, President Reagan, when questioned
about the mining of ports, said "Those were homemade mines . . . that
couldn't sink a ship. They were planted in those harbors . . . by the
Nicaraguan rebels." According to press reports quoting sources in the United
States administration, the laying of mines was effected from speed boats,
not by members of the ARDE or FDN, but by the "UCLAs". The mother ships used
for the operation were operated, it is said, by United States nationals;
they are reported to have remained outside the 12-mile limit of Nicaraguan
territorial waters recognized by the United States. Other less sophisticated
mines may, it appears, have been laid in ports and in Lake Nicaragua by
contras operating separately; a Nicaraguan military official was quoted in
the press as stating that "most" of the mining activity was directed by the
United States.
79. According to Nicaragua, vessels of Dutch, Panamanian, Soviet, Liberian
and Japanese registry, and one (Homin) of unidentified registry, were
damaged by mines, though the damage to the Homin has also been attributed by
Nicaragua rather to gunfire from minelaying vessels. Other sources mention
damage to a British or a Cuban vessel. No direct evidence is available to
the Court of any diplomatic protests by a State whose vessel had been
damaged; according to press reports, the Soviet Government accused the
United States of being responsible for the mining, and the British
Government indicated to the United States that it deeply deplored the
mining, as a matter of principle. Nicaragua has also submitted evidence to
show that the mining of the ports caused a rise in marine insurance rates
for cargo to and from Nicaragua, and that some shipping companies stopped
sending vessels to Nicaraguan ports.
80. On this basis, the Court finds it established that, on a date in late
1983 or early 1984, the President of the United States authorized a United
States government agency to lay mines in Nicaraguan ports; that in early
1984 mines were laid in or close to the ports of El Bluff, Corinto and
Puerto Sandino, either in Nicaraguan internal waters or in its territorial
sea or both, by persons in the pay and acting on the instructions of that
agency, under the supervision and with the logistic support of United States
agents; that neither before the laying of the mines, nor subsequently, did
the United States Government issue any public and official warning to
international shipping of the existence and location of the mines; and that
personal and material injury was caused by the explosion of the mines, which
also created risks causing a rise in marine insurance rates.
81. The operations which Nicaragua attributes to the direct action of United
States personnel or "UCLAs", in addition to the mining of ports, are
apparently the following:
(i) 8 September 1983: an attack was made on Sandino international airport in
Managua by a Cessna aircraft, which was shot down;
(ii) 13 September 1983: an underwater oil pipeline and part of the oil
terminal at Puerto Sandino were blown up;
(iii) 2 October 1983: an attack was made on oil storage facilities at
Benjamin Zeledon on the Atlantic coast, causing the loss of a large quantity
of fuel;
(iv) 10 October 1983: an attack was made by air and sea on the port of
Corinto, involving the destruction of five oil storage tanks, the loss of
millions of gallons of fuel, and the evacuation of large numbers of the
local population;
(v) 14 October 1983: the underwater oil pipeline at Puerto Sandino was again
blown up;
(vi) 4/5 January 1984: an attack was made by speedboats and helicopters
using rockets against the Potosi Naval Base;
(vii) 24/25 February 1984: an incident at El Bluff listed under this date
appears to be the mine explosion already mentioned in paragraph 76;
(viii) 7 March 1984: an attack was made on oil and storage facility at San
Juan del Sur by speedboats and helicopters;
(ix) 28/30 March 1984: clashes occurred at Puerto Sandino between
speedboats, in the course of minelaying operations, and Nicaraguan patrol
boats; intervention by a helicopter in support of the speedboats;
(x) 9 April 1984: a helicopter allegedly launched from a mother ship in
international waters provided fire support for an ARDE attack on San Juan
del Norte.
82. At the time these incidents occurred, they were considered to be acts of
the contras, with no greater degree of United States support than the many
other military and paramilitary activities of the contras. The declaration
of Commander Carrion lists the incidents numbered (i), (ii), (iv) and (vi)
above in the catalogue of activities of "mercenaries", without
distinguishing these items from the rest; it does not mention items (iii),
(v) and (vii) to (x). According to a report in the New York Times (13
October 1983), the Nicaraguan Government, after the attack on Corinto (item
(iv) above) protested to the United States Ambassador in Managua at the aid
given by the United States to the contras, and addressed a diplomatic note
in the same sense to the United States Secretary of State. The Nicaraguan
Memorial does not mention such a protest, and the Court has not been
supplied with the text of any such note.
83. On 19 October 1983, thus nine days after the attack on Corinto, a
question was put to President Reagan at a press conference. Nicaragua has
supplied the Court with the official transcript which, so far as relevant,
reads as follows:
"Question: Mr. President, regarding the recent rebel attacks on a Nicaraguan
oil depot, is it proper for the CIA to be involved in planning such attacks
and supplying equipment for air raids ? And do the American people have a
right to be informed about any CIA role?
The President: I think covert actions have been a part of government and a
part of government's responsibilities for as long as there has been a
government. I'm not going to comment on what, if any, connection such
activities might have had with what has been going on, or with some of the
specific operations down there.
But I do believe in the right of a country when it believes that its
interests are best served to practice covert activity and then, while your
people may have a right to know, you can't let your people know without
letting the wrong people know, those that are in opposition to what you're
doing."
Nicaragua presents this as one of a series of admissions "that the United
States was habitually and systematically giving aid to mercenaries carrying
out military operations against the Government of Nicaragua". In the view of
the Court, the President's refusal to comment on the connection between
covert activities and "what has been going on, or with some of the specific
operations down there" can, in its context, be treated as an admission that
the United States had something to do with the Corinto attack, but not
necessarily that United States personnel were directly involved.
84. The evidence available to the Court to show that the attacks listed
above occurred, and that they were the work of United States personnel or "UCLAs",
other than press reports, is as follows. In his declaration, Commander
Carrion lists items (i), (ii), (iv) and (vi), and in his oral evidence
before the Court he mentioned items (ii) and (iv). Items (vi) to (x) were
listed in what was said to be a classified CIA internal memorandum or
report, excerpts from which were published in the Wall Street Journal on 6
March 1985; according to the newspaper, "intelligence and congressional
officials" had confirmed the authenticity of the document. So far as the
Court is aware, no denial of the report was made by the United States
administration. The affidavit of the former FDN leader Edgar Chamorro states
that items (ii), (iv) and (vi) were the work of UCLAs despatched from a CIA
"mother ship", though the FDN was told by the CIA to claim responsibility.
It is not however clear what the source of Mr. Chamorro's information was;
since there is no suggestion that he participated in the operation (he
states that the FDN "had nothing whatsoever to do" with it), his evidence is
probably strictly hearsay, and at the date of his affidavit, the same
allegations had been published in the press. Although he did not leave the
FDN until the end of 1984, he makes no mention of the attacks listed above
of January to April 1984.
85. The Court considers that it should eliminate from further consideration
under this heading the following items:
-- the attack of 8 September 1983 on Managua airport (item (i)): this was
claimed by the ARDE; a press report is to the effect that the ARDE purchased
the aircraft from the CIA, but there is no evidence of CIA planning, or the
involvement of any United States personnel or UCLAs;
-- the attack on Benjamin Zeledon on 2 October 1983 (item (iii)): there is
no evidence of the involvement of United States personnel or UCLAs;
-- the incident of 24-25 February 1984 (item vii), already dealt with under
the heading of the mining of ports.
86. On the other hand the Court finds the remaining incidents listed in
paragraph 81 to be established. The general pattern followed by these
attacks appears to the Court, on the basis of that evidence and of press
reports quoting United States administration sources, to have been as
follows. A "mother ship" was supplied (apparently leased) by the CIA;
whether it was of United States registry does not appear. Speedboats, guns
and ammunition were supplied by the United States administration, and the
actual attacks were carried out by "UCLAs". Helicopters piloted by
Nicaraguans and others piloted by United States nationals were also involved
on some occasions. According to one report the pilots were United States
civilians under contract to the CIA. Although it is not proved that any
United States military personnel took a direct part in the operations,
agents of the United States participated in the planning, direction, support
and execution of the operations. The execution was the task rather of the "UCLAs",
while United States nationals participated in the planning, direction and
support. The imputability to the United States of these attacks appears
therefore to the Court to be established.
87. Nicaragua complains of infringement of its airspace by United States
military aircraft. Apart from a minor incident on 11 January 1984 involving
a helicopter, as to which, according to a press report, it was conceded by
the United States that it was possible that the aircraft violated Nicaraguan
airspace, this claim refers to overflights by aircraft at high altitude for
intelligence reconnaissance purposes, or aircraft for supply purposes to the
contras in the field, and aircraft producing "sonic booms". The Nicaraguan
Memorial also mentions low-level reconnaissance flights by aircraft piloted
by United States personnel in 1983, but the press report cited affords no
evidence that these flights, along the Honduran border, involved any
invasion of airspace. In addition Nicaragua has made a particular complaint
of the activities of a United States SR-71 plane between 7 and 11 November
1984, which is said to have flown low over several Nicaraguan cities
"producing loud sonic booms and shattering glass windows, to exert
psychological pressure on the Nicaraguan Government and population".
88. The evidence available of these overflights is as follows. During the
proceedings on jurisdiction and admissibility, the United States Government
deposited with the Court a "Background Paper" published in July 1984,
incorporating eight aerial photographs of ports, camps, an airfield, etc.,
in Nicaragua, said to have been taken between November 1981 and June 1984.
According to a press report, Nicaragua made a diplomatic protest to the
United States in March 1982 regarding overflights, but the text of such
protest has not been produced. In the course of a Security Council debate on
25 March 1982, the United States representative said that
"It is true that once we became aware of Nicaragua's intentions and actions,
the United States Government undertook overflights to safeguard our own
security and that of other States which are threatened by the Sandinista
Government",
and continued
"These overflights, conducted by unarmed, high-flying planes, for the
express and sole purpose of verifying reports of Nicaraguan intervention,
are no threat to regional peace and stability; quite the contrary."
(S/PV.2335, p. 48, emphasis added.)
The use of the present tense may be taken to imply that the overflights were
continuing at the time of the debate. Press reports of 12 November 1984
confirm the occurrence of sonic booms at that period, and report the
statement of Nicaraguan Defence Ministry officials that the plane
responsible was a United States SR-71.
89. The claim that sonic booms were caused by United States aircraft in
November 1984 rests on assertions by Nicaraguan Defence Ministry officials,
reported in the United States press; the Court is not however aware of any
specific denial of these flights by the United States Government. On 9
November 1984 the representative of Nicaragua in the Security Council
asserted that United States SR-71 aircraft violated Nicaraguan airspace on 7
and 9 November 1984; he did not specifically mention sonic booms in this
respect (though he did refer to an earlier flight by a similar aircraft, on
31 October 1984, as having been "accompanied by loud explosions" (S/PV.
2562, pp. 8-10)). The United States representative in the Security Council
did not comment on the specific incidents complained of by Nicaragua but
simply said that "the allegation which is being advanced against the United
States" was "without foundation" (ibid., p. 28).
90. As to low-level reconnaissance flights by United States aircraft, or
flights to supply the contras in the field, Nicaragua does not appear to
have offered any more specific evidence of these; and it has supplied
evidence that United States agencies made a number of planes available to
the contras themselves for use for supply and low-level reconnaissance
purposes. According to Commander Carrion, these planes were supplied after
late 1982, and prior to the contras receiving the aircraft, they had to
return at frequent intervals to their basecamps for supplies, from which it
may be inferred that there were at that time no systematic overflights by
United States planes for supply purposes.
91. The Court concludes that, as regards the high-altitude overflights for
reconnaissance purposes, the statement admitting them made in the Security
Council is limited to the period up to March 1982. However, not only is it
entitled to take into account that the interest of the United States in
"verifying reports of Nicaraguan intervention" -- the justification offered
in the Security Council for these flights -- has not ceased or diminished
since 1982, but the photographs attached to the 1984 Background Paper are
evidence of at least sporadic overflights subsequently. It sees no reason
therefore to doubt the assertion of Nicaragua that such flights have
continued. The Court finds that the incidents of overflights causing "sonic
booms" in November 1984 are to some extent a matter of public knowledge. As
to overflights of aircraft for supply purposes, it appears from Nicaragua's
evidence that these were carried out generally, if not exclusively, by the
contras themselves, though using aircraft supplied to them by the United
States. Whatever other responsibility the United States may have incurred in
this latter respect, the only violations of Nicaraguan airspace which the
Court finds imputable to the United States on the basis of the evidence
before it are first of all, the high-altitude reconnaissance flights, and
secondly the low-altitude flights of 7 to 11 November 1984, complained of as
causing "sonic booms".
92. One other aspect of activity directly carried out by the United States
in relation to Nicaragua has to be mentioned here, since Nicaragua has
attached a certain significance to it. Nicaragua claims that the United
States has on a number of occasions carried out military manoeuvres jointly
with Honduras on Honduran territory near the Honduras/Nicaragua frontier; it
alleges that much of the military equipment flown in to Honduras for the
joint manoeuvres was turned over to the contras when the manoeuvres ended,
and that the manoeuvres themselves formed part of a general and sustained
policy of force intended to intimidate the Government of Nicaragua into
accepting the political demands of the United States Government. The
manoeuvres in question are stated to have been carried out in autumn 1982;
February 1983 ("Ahuas Tara I"); August 1983 ("Ahuas Tara II"), during which
American warships were, it is said, sent to patrol the waters off both
Nicaragua's coasts; November 1984, when there were troop movements in
Honduras and deployment of warships off the Atlantic coast of Nicaragua;
February 1985 ("Ahuas Tara III"); March 1985 ("Universal Trek '85"); June
1985, paratrooper exercises. As evidence of these manoeuvres having taken
place, Nicaragua has offered newspaper reports; since there was no secrecy
about the holding of the manoeuvres, the Court considers that it may treat
the matter as one of public knowledge, and as such, sufficiently
established.
93. The Court must now examine in more detail the genesis, development and
activities of the contra force, and the role of the United States in
relation to it, in order to determine the legal significance of the conduct
of the United States in this respect. According to Nicaragua, the United
States "conceived, created and organized a mercenary army, the contra
force". However, there is evidence to show that some armed opposition to the
Government of Nicaragua existed in 1979-1980, even before any interference
or support by the United States. Nicaragua dates the beginning of the
activity of the United States to "shortly after" 9 March 1981, when, it was
said, the President of the United States made a formal presidential finding
authorizing the CIA to undertake "covert activities" directed against
Nicaragua. According to the testimony of Commander Carrion, who stated that
the "organized military and paramilitary activities" began in December 1981,
there were Nicaraguan "anti-government forces" prior to that date,
consisting of
"just a few small bands very poorly armed, scattered along the northern
border of Nicaragua and . . . composed mainly of ex-members of the Somoza's
National Guard. They did not have any military effectiveness and what they
mainly did was rustling cattle and killing some civilians near the
borderlines."
These bands had existed in one form or another since the fall of the Somoza
government: the affidavit of Mr. Edgar Chamorro refers to "the ex-National
Guardsmen who had fled to Honduras when the Somoza government fell and had
been conducting sporadic raids on Nicaraguan border positions ever since".
According to the Nicaraguan Memorial, the CIA initially conducted military
and paramilitary activities against Nicaragua soon after the presidential
finding of 9 March 1981, "through the existing armed bands"; these
activities consisted of "raids on civilian settlements, local militia
outposts and army patrols". The weapons used were those of the former
National Guard. In the absence of evidence, the Court is unable to assess
the military effectiveness of these bands at that time; but their existence
is in effect admitted by the Nicaraguan Government.
94. According to the affidavit of Mr. Chamorro, there was also a political
opposition to the Nicaraguan Government, established outside Nicaragua, from
the end of 1979 onward, and in August 1981 this grouping merged with an
armed opposition force called the 15th of September Legion, which had itself
incorporated the previously disparate armed opposition bands, through
mergers arranged by the CIA. It was thus that the FDN is said to have come
into being. The other major armed opposition group, the ARDE, was formed in
1982 by Alfonso Robelo Callejas, a former member of the original 1979 Junta
and Eden Pastora Gomez, a Sandinista military commander, leader of the FRS
(Sandino Revolutionary Front) and later Vice-Minister in the Sandinista
government. Nicaragua has not alleged that the United States was involved in
the formation of this body. Even on the face of the evidence offered by the
Applicant, therefore, the Court is unable to find that the United States
created an armed opposition in Nicaragua. However, according to press
articles citing official sources close to the United States Congress, the
size of the contra force increased dramatically once United States financial
and other assistance became available: from an initial body of 500 men
(plus, according to some reports, 1,000 Miskito Indians) in December 1981,
the force grew to 1,000 in February 1982, 1,500 in August 1982, 4,000 in
December 1982, 5,500 in February 1983, 8,000 in June 1983 and 12,000 in
November 1983. When (as explained below) United States aid other than
"humanitarian assistance" was cut off in September 1984, the size of the
force was reported to be over 10,000 men.
95. The financing by the United States of the aid to the contras was
initially undisclosed, but subsequently became the subject of specific
legislative provisions and ultimately the stake in a conflict between the
legislative and executive organs of the United States. Initial activities in
1981 seem to have been financed out of the funds available to the CIA for
"covert" action; according to subsequent press reports quoted by Nicaragua,
$ 19.5 million was allocated to these activities. Subsequently, again
according to press sources, a further $ 19 million was approved in late 1981
for the purpose of the CIA plan for military and paramilitary operations
authorized by National Security Decision Directive 17. The budgetary
arrangements for funding subsequent operations up to the end of 1983 have
not been made clear, though a press report refers to the United States
Congress as having approved "about $ 20 million" for the fiscal year to 30
September 1983, and from a Report of the Permanent Select Committee on
Intelligence of the House of Representatives (hereinafter called the
"Intelligence Committee") it appears that the covert programme was funded by
the Intelligence Authorization Act relating to that fiscal year, and by the
Defense Appropriations Act, which had been amended by the House of
Representatives so as to prohibit "assistance for the purpose of
overthrowing the Government of Nicaragua". In May 1983, this Committee
approved a proposal to amend the Act in question so as to prohibit United
States support for military or paramilitary operations in Nicaragua. The
proposal was designed to have substituted for these operations the provision
of open security assistance to any friendly Central American country so as
to prevent the transfer of military equipment from or through Cuba or
Nicaragua. This proposal was adopted by the House of Representatives, but
the Senate did not concur; the executive in the meantime presented a request
for $ 45 million for the operations in Nicaragua for the fiscal year to 30
September 1984. Again conflicting decisions emerged from the Senate and
House of Representatives, but ultimately a compromise was reached. In
November 1983, legislation was adopted, coming into force on 8 December
1983, containing the following provision:
"During fiscal year 1984, not more than $ 24,000,000 of the funds available
to the Central Intelligence Agency, the Department of Defense, or any other
agency or entity of the United States involved in intelligence activities
may be obligated or expended for the purpose or which would have the effect
of supporting, directly or indirectly, military or paramilitary operations
in Nicaragua by any nation, group, organization, movement, or individual."
(Intelligence Authorization Act 1984, Section 108.)
96. In March 1984, the United States Congress was asked for a supplemental
appropriation of $ 21 million "to continue certain activities of the Central
Intelligence Agency which the President has determined are important to the
national security of the United States", i.e., for further support for the
contras. The Senate approved the supplemental appropriation, but the House
of Representatives did not. In the Senate, two amendments which were
proposed but not accepted were: to prohibit the funds appropriated from
being provided to any individual or group known to have as one of its
intentions the violent overthrow of any Central American government; and to
prohibit the funds being used for acts of terrorism in or against Nicaragua.
In June 1984, the Senate took up consideration of the executive's request
for $ 28 million for the activities in Nicaragua for the fiscal year 1985.
When the Senate and the House of Representatives again reached conflicting
decisions, a compromise provision was included in the Continuing
Appropriations Act 1985 (Section 8066). While in principle prohibiting the
use of funds during the fiscal year to 30 September 1985
"for the purpose or which would have the effect of supporting, directly or
indirectly, military or paramilitary operations in Nicaragua by any nation,
group, organization, movement or individual",
the Act provided $ 14 million for that purpose if the President submitted a
report to Congress after 28 February 1985 justifying such an appropriation,
and both Chambers of Congress voted affirmatively to approve it. Such a
report was submitted on 10 April 1985; it defined United States objectives
toward Nicaragua in the following terms:
"United States policy toward Nicaragua since the Sandinistas' ascent to
power has consistently sought to achieve changes in Nicaraguan government
policy and behavior. We have not sought to overthrow the Nicaraguan
Government nor to force on Nicaragua a specific system of government."
The changes sought were stated to be:
"-- termination of all forms of Nicaraguan support for insurgencies or
subversion in neighboring countries;
-- reduction of Nicaragua's expanded military/security apparatus to restore
military balance in the region;
-- severance of Nicaragua's military and security ties to the Soviet Bloc
and Cuba and the return to those countries of their military and security
advisers now in Nicaragua; and
-- implementation of Sandinista commitment to the Organization of American
States to political pluralism, human rights, free elections, non-alignment,
and a mixed economy."
At the same time the President of the United States, in a press conference,
referred to an offer of a cease-fire in Nicaragua made by the opponents of
the Nicaraguan Government on 1 March 1984, and pledged that the $ 14 million
appropriation, if approved, would not be used for arms or munitions, but for
"food, clothing and medicine and other support for survival" during the
period "while the cease-fire offer is on the table". On 23 and 24 April
1985, the Senate voted for, and the House of Representatives against, the $
14 million appropriation.
97. In June 1985, the United States Congress was asked to approve the
appropriation of $ 38 million to fund military or paramilitary activities
against Nicaragua during the fiscal years 1985 and 1986 (ending 30 September
1986). This appropriation was approved by the Senate on 7 June 1985. The
House of Representatives, however, adopted a proposal for an appropriation
of $ 27 million, but solely for humanitarian assistance to the contras, and
administration of the funds was to be taken out of the hands of the CIA and
the Department of Defense. The relevant legislation, as ultimately agreed by
the Senate and House of Representatives after submission to a Conference
Committee, provided
"$ 27,000,000 for humanitarian assistance to the Nicaraguan democratic
resistance. Such assistance shall be provided in such department or agency
of the United States as the President shall designate, except the Central
Intelligence Agency or the Department of Defense . . .
As used in this subsection, the term 'humanitarian assistance' means the
provision of food, clothing, medicine, and other humanitarian assistance,
and it does not include the provision of weapons, weapons systems,
ammunition, or other equipment, vehicles, or material which can be used to
inflict serious bodily harm or death."
The Joint Explanatory Statement of the Conference Committee noted that while
the legislation adopted
"does proscribe these two agencies [CIA and DOD] from administering the
funds and from providing any military training or advice to the democratic
resistance . . . none of the prohibitions on the provision of military or
paramilitary assistance to the democratic resistance prevents the sharing of
intelligence information with the democratic resistance".
In the House of Representatives, it was stated that an assurance had been
given by the National Security Council and the White House that
"neither the [CIA] reserve for contingencies nor any other funds available
[would] be used for any material assistance other than that authorized . . .
for humanitarian assistance for the Nicaraguan democratic resistance, unless
authorized by a future act of Congress".
Finance for supporting the military and paramilitary activities of the
contras was thus available from the budget of the United States Government
from some time in 1981 until 30 September 1984; and finance limited to
"humanitarian assistance" has been available since that date from the same
source and remains authorized until 30 September 1986.
98. It further appears, particularly since the restriction just mentioned
was imposed, that financial and other assistance has been supplied from
private sources in the United States, with the knowledge of the Government.
So far as this was earmarked for "humanitarian assistance", it was actively
encouraged by the United States President. According to press reports, the
State Department made it known in September 1984 that the administration had
decided "not to discourage" private American citizens and foreign
governments from supporting the contras. The Court notes that this statement
was prompted by an incident which indicated that some private assistance of
a military nature was being provided.
99. The Court finds at all events that from 1981 until 30 September 1984 the
United States Government was providing funds for military and paramilitary
activities by the contras in Nicaragua, and thereafter for "humanitarian
assistance". The most direct evidence of the specific purposes to which it
was intended that these funds should be put was given by the oral testimony
of a witness called by Nicaragua: Mr. David MacMichael, formerly in the
employment of the CIA as a Senior Estimates Officer with the Analytic Group
of the National Intelligence Council. He informed the Court that in 1981 he
participated in that capacity in discussion of a plan relating to Nicaragua,
excerpts from which were subsequently published in the Washington Post, and
he confirmed that, with the exception of a detail (here omitted), these
excerpts gave an accurate account of the plan, the purposes of which they
described as follows:
"Covert operations under the CIA proposal, according to the NSC records, are
intended to:
'Build popular support in Central America and Nicaragua for an opposition
front that would be nationalistic, anti-Cuban and anti-Somoza.
Support the opposition front through formation and training of action teams
to collect intelligence and engage in paramilitary and political operations
in Nicaragua and elsewhere.
Work primarily through non-Americans'
to achieve these covert objectives . . ."
100. Evidence of how the funds appropriated were spent, during the period up
to autumn 1984, has been provided in the affidavit of the former FDN leader,
Mr. Chamorro; in that affidavit he gives considerable detail as to the
assistance given to the FDN. The Court does not however possess any
comparable direct evidence as to support for the ARDE, though press reports
suggest that such suppport may have been given at some stages. Mr. Chamorro
states that in 1981 former National Guardsmen in exile were offered regular
salaries from the CIA, and that from then on arms (FAL and AK-47 assault
rifles and mortars), ammunition, equipment and food were supplied by the
CIA. When he worked full time for the FDN, he himself received a salary, as
did the other FDN directors. There was also a budget from CIA funds for
communications, assistance to Nicaraguan refugees or family members of FDN
combatants, and a military and logistics budget; however, the latter was not
large since all arms, munitions and military equipment, including uniforms,
boots and radio equipment, were acquired and delivered by the CIA.
101. According to Mr. Chamorro, training was at the outset provided by
Argentine military officers, paid by the CIA, gradually replaced by CIA
personnel. The training given was in
"guerrilla warfare, sabotage, demolitions, and in the use of a variety of
weapons, including assault rifles, machine guns, mortars, grenade launchers,
and explosives, such as Claymore mines . . . also . . . in field
communications, and the CIA taught us how to use certain sophisticated codes
that the Nicaraguan Government forces would not be able to decipher".
The CIA also supplied the FDN with intelligence, particularly as to
Nicaraguan troop movements, derived from radio and telephonic interception,
code-breaking, and surveillance by aircraft and satellites. Mr Chamorro also
refers to aircraft being supplied by the CIA; from press reports it appears
that those were comparatively small aircraft suitable for reconnaissance and
a certain amount of supply-dropping, not for offensive operations.
Helicopters with Nicaraguan crews are reported to have taken part in certain
operations of the "UCLAs" (see paragraph 86 above), but there is nothing to
show whether these belonged to the contras or were lent by United States
agencies.
102. It appears to be recognized by Nicaragua that, with the exception of
some of the operations listed in paragraph 81 above, operations on
Nicaraguan territory were carried out by the contras alone, all United
States trainers or advisers remaining on the other side of the frontier, or
in international waters. It is however claimed by Nicaragua that the United
States Government has devised the strategy and directed the tactics of the
contra force, and provided direct combat support for its military
operations.
103. In support of the claim that the United States devised the strategy and
directed the tactics of the contras, counsel for Nicaragua referred to the
successive stages of the United States legislative authorization for funding
the contras (outlined in paragraphs 95 to 97 above), and observed that every
offensive by the contras was preceded by a new infusion of funds from the
United States. From this, it is argued, the conclusion follows that the
timing of each of those offensives was determined by the United States. In
the sense that an offensive could not be launched until the funds were
available, that may well be so; but, in the Court's view, it does not follow
that each provision of funds by the United States was made in order to set
in motion a particular offensive, and that that offensive was planned by the
United States.
104. The evidence in support of the assertion that the United States devised
the strategy and directed the tactics of the contras appears to the Court to
be as follows. There is considerable material in press reports of statements
by FDN officials indicating participation of CIA advisers in planning and
the discussion of strategy or tactics, confirmed by the affidavit of Mr.
Chamorro. Mr. Chamorro attributes virtually a power of command to the CIA
operatives: he refers to them as having "ordered" or "instructed" the FDN to
take various action. The specific instances of influence of United States
agents on strategy or tactics which he gives are as follows: the CIA, he
says, was at the end of 1982 "urging" the FDN to launch an offensive
designed to take and hold Nicaraguan territory. After the failure of that
offensive, the CIA told the FDN to move its men back into Nicaragua and keep
fighting. The CIA in 1983 gave a tactical directive not to destroy farms and
crops, and in 1984 gave a directive to the opposite effect. In 1983, the CIA
again indicated that they wanted the FDN to launch an offensive to seize and
hold Nicaraguan territory. In this respect, attention should also be drawn
to the statement of Mr. Chamorro (paragraph 101 above) that the CIA supplied
the FDN with intelligence, particularly as to Nicaraguan troop movements,
and small aircraft suitable for reconnaissance and a certain amount of
supply-dropping. Emphasis has been placed, by Mr. Chamorro, by Commander
Carrion, and by counsel for Nicaragua, on the impact on contra tactics of
the availability of intelligence assistance and, still more important,
supply aircraft.
105. It has been contended by Nicaragua that in 1983 a "new strategy" for
contra operations in and against Nicaragua was adopted at the highest level
of the United States Government. From the evidence offered in support of
this, it appears to the Court however that there was, around this time, a
change in contra strategy, and a new policy by the United States
administration of more overt support for the contras, culminating in the
express legislative authorization in the Department of Defense
Appropriations Act, 1984, section 775, and the Intelligence Authorization
Act for Fiscal Year 1984, section 108. The new contra strategy was said to
be to attack "economic targets like electrical plants and storage
facilities" and fighting in the cities.
106. In the light of the evidence and material available to it, the Court is
not satisfied that all the operations launched by the contra force, at every
stage of the conflict, reflected strategy and tactics wholly devised by the
United States. However, it is in the Court's view established that the
support of the United States authorities for the activities of the contras
took various forms over the years, such as logistic support, the supply of
information on the location and movements of the Sandinista troops, the use
of sophisticated methods of communication, the deployment of field
broadcasting networks, radar coverage, etc. The Court finds it clear that a
number of military and paramilitary operations by this force were decided
and planned, if not actually by United States advisers, then at least in
close collaboration with them, and on the basis of the intelligence and
logistic support which the United States was able to offer, particularly the
supply aircraft provided to the contras by the United States.
107. To sum up, despite the secrecy which surrounded it, at least initially,
the financial support given by the Government of the United States to the
military and paramilitary activities of the contras in Nicaragua is a fully
established fact. The legislative and executive bodies of the respondent
State have moreover, subsequent to the controversy which has been sparked
off in the United States, openly admitted the nature, volume and frequency
of this support. Indeed, they clearly take responsibility for it, this
government aid having now become the major element of United States foreign
policy in the region. As to the ways in which such financial support has
been translated into practical assistance, the Court has been able to reach
a general finding.
108. Despite the large quantity of documentary evidence and testimony which
it has examined, the Court has not been able to satisfy itself that the
respondent State "created" the contra force in Nicaragua. It seems certain
that members of the former Somoza National Guard, together with civilian
opponents to the Sandinista regime, withdrew from Nicaragua soon after that
regime was installed in Managua, and sought to continue their struggle
against it, even if in a disorganized way and with limited and ineffectual
resources, before the Respondent took advantage of the existence of these
opponents and incorporated this fact into its policies vis-a-vis the regime
of the Applicant. Nor does the evidence warrant a finding that the United
States gave "direct and critical combat support", at least if that form of
words is taken to mean that this support was tantamount to direct
intervention by the United States combat forces, or that all contra
operations reflected strategy and tactics wholly devised by the United
States. On the other hand, the Court holds it established that the United
States authorities largely financed, trained, equipped, armed and organized
the FDN.
109. What the Court has to determine at this point is whether or not the
relationship of the contras to the United States Government was so much one
of dependence on the one side and control on the other that it would be
right to equate the contras, for legal purposes, with an organ of the United
States Government, or as acting on behalf of that Government. Here it is
relevant to note that in May 1983 the assessment of the Intelligence
Committee, in the Report referred to in paragraph 95 above, was that the
contras "constitute[d] an independent force" and that the "only element of
control that could be exercised by the United States" was "cessation of
aid". Paradoxically this assessment serves to underline, a contrario, the
potential for control inherent in the degree of the contras dependence on
aid. Yet despite the heavy subsidies and other support provided to them by
the United States, there is no clear evidence of the United States having
actually exercised such a degree of control in all fields as to justify
treating the contras as acting on its behalf.
110. So far as the potential control constituted by the possibility of
cessation of United States military aid is concerned, it may be noted that
after 1 October 1984 such aid was no longer authorized, though the sharing
of intelligence, and the provision of "humanitarian assistance" as defined
in the above-cited legislation (paragraph 97) may continue. Yet, according
to Nicaragua's own case, and according to press reports, contra activity has
continued. In sum, the evidence available to the Court indicates that the
various forms of assistance provided to the contras by the United States
have been crucial to the pursuit of their activities, but is insufficient to
demonstrate their complete dependence on United States aid. On the other
hand, it indicates that in the initial years of United States assistance the
contra force was so dependent. However, whether the United States Government
at any stage devised the strategy and directed the tactics of the contras
depends on the extent to which the United States made use of the potential
for control inherent in that dependence. The Court already indicated that it
has insufficient evidence to reach a finding on this point. It is a fortiori
unable to determine that the contra force may be equated for legal purposes
with the forces of the United States. This conclusion, however, does not of
course suffice to resolve the entire question of the responsibility incurred
by the United States through its assistance to the contras.
111. In the view of the Court it is established that the contra force has,
at least at one period, been so dependent on the United States that it could
not conduct its crucial or most significant military and paramilitary
activities without the multi-faceted support of the United States. This
finding is fundamental in the present case. Nevertheless, adequate direct
proof that all or the great majority of contra activities during that period
received this support has not been, and indeed probably could not be,
advanced in every respect. It will suffice the Court to stress that a degree
of control by the United States Government, as described above, is inherent
in the position in which the contra force finds itself in relation to that
Government.
112. To show the existence of this control, the Applicant argued before the
Court that the political leaders of the contra force had been selected,
installed and paid by the United States; it also argued that the purpose
herein was both to guarantee United States control over this force, and to
excite sympathy for the Government's policy within Congress and among the
public in the United States. According to the affidavit of Mr. Chamorro, who
was directly concerned, when the FDN was formed "the name of the
organization, the members of the political junta, and the members of the
general staff were all chosen or approved by the CIA"; later the CIA asked
that a particular person be made head of the political directorate of the
FDN, and this was done. However, the question of the selection, installation
and payment of the leaders of the contra force is merely one aspect among
others of the degree of dependency of that force. This partial dependency on
the United States authorities, the exact extent of which the Court cannot
establish, may certainly be inferred inter alia from the fact that the
leaders were selected by the United States. But it may also be inferred from
other factors, some of which have been examined by the Court, such as the
organization, training and equipping of the force, the planning of
operations, the choosing of targets and the operational support provided.
113. The question of the degree of control of the contras by the United
States Government is relevant to the claim of Nicaragua attributing
responsibility to the United States for activities of the contras whereby
the United States has, it is alleged, violated an obligation of
international law not to kill, wound or kidnap citizens of Nicaragua. The
activities in question are said to represent a tactic which includes "the
spreading of terror and danger to non-combatants as an end in itself with no
attempt to observe humanitarian standards and no reference to the concept of
military necessity". In support of this, Nicaragua has catalogued numerous
incidents, attributed to "CIA-trained mercenaries" or "mercenary forces", of
kidnapping, assassination, torture, rape, killing of prisoners, and killing
of civilians not dictated by military necessity. The declaration of
Commander Carrion annexed to the Memorial lists the first such incident in
December 1981, and continues up to the end of 1984. Two of the witnesses
called by Nicaragua (Father Loison and Mr. Glennon) gave oral evidence as to
events of this kind. By way of examples of evidence to provide "direct proof
of the tactics adopted by the contras under United States guidance and
control", the Memorial of Nicaragua offers a statement, reported in the
press, by the ex-FDN leader Mr. Edgar Chamorro, repeated in the latter's
affidavit, of assassinations in Nicaraguan villages; the alleged existence
of a classified Defence Intelligence Agency report of July 1982, reported in
the New York Times on 21 October 1984, disclosing that the contras were
carrying out assassinations; and the preparation by the CIA in 1983 of a
manual of psychological warfare. At the hearings, reliance was also placed
on the affidavit of Mr. Chamorro.
114. In this respect, the Court notes that according to Nicaragua, the
contras are no more than bands of mercenaries which have been recruited,
organized, paid and commanded by the Government of the United States. This
would mean that they have no real autonomy in relation to that Government.
Consequently, any offences which they have committed would be imputable to
the Government of the United States, like those of any other forces placed
under the latter's command. In the view of Nicaragua, "stricto sensu, the
military and paramilitary attacks launched by the United States against
Nicaragua do not constitute a case of civil strife. They are essentially the
acts of the United States." If such a finding of the imputability of the
acts of the contras to the United States were to be made, no question would
arise of mere complicity in those acts, or of incitement of the contras to
commit them.
115. The Court has taken the view (paragraph 110 above) that United States
participation, even if preponderant or decisive, in the financing,
organizing, training, supplying and equipping of the contras, the selection
of its military or paramilitary targets, and the planning of the whole of
its operation, is still insufficient in itself, on the basis of the evidence
in the possession of the Court, for the purpose of attributing to the United
States the acts committed by the contras in the course of their military or
paramilitary operations in Nicaragua. All the forms of United States
participation mentioned above, and even the general control by the
respondent State over a force with a high degree of dependency on it, would
not in themselves mean, without further evidence, that the United States
directed or enforced the perpetration of the acts contrary to human rights
and humanitarian law alleged by the applicant State. Such acts could well be
committed by members of the contras without the control of the United
States. For this conduct to give rise to legal responsibility of the United
States, it would in principle have to be proved that that State had
effective control of the military or paramilitary operations in the course
of which the alleged violations were committed.
116. The Court does not consider that the assistance given by the United
States to the contras warrants the conclusion that these forces are subject
to the United States to such an extent that any acts they have committed are
imputable to that State. It takes the view that the contras remain
responsible for their acts, and that the United States is not responsible
for the acts of the contras, but for its own conduct vis-a-vis Nicaragua,
including conduct related to the acts of the contras. What the Court has to
investigate is not the complaints relating to alleged violations of
humanitarian law by the contras, regarded by Nicaragua as imputable to the
United States, but rather unlawful acts for which the United States may be
responsible directly in connection with the activities of the contras. The
lawfulness or otherwise of such acts of the United States is a question
different from the violations of humanitarian law of which the contras may
or may not have been guilty. It is for this reason that the Court does not
have to determine whether the violations of humanitarian law attributed to
the contras were in fact committed by them. At the same time, the question
whether the United States Government was, or must have been, aware at the
relevant time that allegations of breaches of humanitarian law were being
made against the contras is relevant to an assessment of the lawfulness of
the action of the United States. In this respect, the material facts are
primarily those connected with the issue in 1983 of a manual of
psychological operations.
117. Nicaragua has in fact produced in evidence before the Court two
publications which it claims were prepared by the CIA and supplied to the
contras in 1983. The first of these, in Spanish, is entitled "Operaciones
sicologicas en guerra de guerrillas" (Psychological Operations in Guerrilla
Warfare), by "Tayacan"; the certified copy supplied to the Court carries no
publisher's name or date. In its Preface, the publication is described as
"a manual for the training of guerrillas in psychological operations, and
its application to the concrete case of the Christian and democratic crusade
being waged in Nicaragua by the Freedom Commandos".
The second is entitled the Freedom Fighter's Manual, with the subtitle
"Practical guide to liberating Nicaragua from oppression and misery by
paralyzing the military-industrial complex of the traitorous marxist state
without having to use special tools and with minimal risk for the
combatant". The text is printed in English and Spanish, and illustrated with
simple drawings: it consists of guidance for elementary sabotage techniques.
The only indications available to the Court of its authorship are reports in
the New York Times, quoting a United States Congressman and Mr. Edgar
Chamorro as attributing the book to the CIA. Since the evidence linking the
Freedom Fighter's Manual to the CIA is no more than newspaper reports the
Court will not treat its publication as an act imputable to the United
States Government for the purposes of the present case.
118. The Court will therefore concentrate its attention on the other manual,
that on "Psychological Operations". That this latter manual was prepared by
the CIA appears to be clearly established: a report published in January
1985 by the Intelligence Committee contains a specific statement to that
effect. It appears from this report that the manual was printed in several
editions; only one has been produced and it is of that text that the Court
will take account. The manual is devoted to techniques for winning the minds
of the population, defined as including the guerrilla troops, the enemy
troops and the civilian population. In general, such parts of the manual as
are devoted to military rather than political and ideological matters are
not in conflict with general humanitarian law; but there are marked
exceptions. A section on "Implicit and Explicit Terror", while emphasizing
that "the guerrillas should be careful not to become an explicit terror,
because this would result in a loss of popular support", and stressing the
need for good conduct toward the population, also includes directions to
destroy military or police installations, cut lines of communication, kidnap
officials of the Sandinista government, etc. Reference is made to the
possibility that "it should be necessary . . . to fire on a citizen who was
trying to leave the town", to be justified by the risk of his informing the
enemy. Furthermore, a section on "Selective Use of Violence for
Propagandistic Effects" begins with the words:
"It is possible to neutralize carefully selected and planned targets, such
as court judges, mesta judges, police and State Security officials, CDS
chiefs, etc. For psychological purposes it is necessary to take extreme
precautions, and it is absolutely necessary to gather together the
population affected, so that they will be present, take part in the act, and
formulate accusations against the oppressor."
In a later section on "Control of mass concentrations and meetings", the
following guidance is given (inter alia):
"If possible, professional criminals will be hired to carry out specific
selective 'jobs'.
. . . .
Specific tasks will be assigned to others, in order to create a 'martyr' for
the cause, taking the demonstrators to a confrontation with the authorities,
in order to bring about uprisings or shootings, which will cause the death
of one or more persons, who would become the martyrs, a situation that
should be made use of immediately against the regime, in order to create
greater conflicts."
119. According to the affidavit of Mr. Chamorro, about 2,000 copies of the
manual were distributed to members of the FDN, but in those copies Mr.
Chamorro had arranged for the pages containing the last two passages quoted
above to be torn out and replaced by expurgated pages. According to some
press reports, another edition of 3,000 copies was printed (though according
to one report Mr. Chamorro said that he knew of no other edition), of which
however only some 100 are said to have reached Nicaragua, attached to
balloons. He was quoted in a press report as saying that the manual was used
to train "dozens of guerrilla leaders" for some six months from December
1983 to May 1984. In another report he is quoted as saying that "people did
not read it" and that most of the copies were used in a special course on
psychological warfare for middle-level commanders. In his affidavit, Mr.
Chamorro reports that the attitude of some unit commanders, in contrast to
that recommended in the manual, was that "the best way to win the loyalty of
the civilian population was to intimidate it" -- by murders, mutilations,
etc. -- "and make it fearful of us".
120. A question examined by the Intelligence Committee was whether the
preparation of the manual was a contravention of United States legislation
and executive orders; inter alia, it examined whether the advice on
"neutralizing" local officials contravened Executive Order 12333. This
Executive Order, re-enacting earlier directives, was issued by President
Reagan in December 1981; it provides that
"2.11. No person employed by or acting on behalf of the United States
Government shall engage in or conspire to engage in, assassination.
2.12. No agency of the Intelligence Community shall participate in or
request any person to undertake activities forbidden by this Order." (US
Code, Congressional and Administrative News, 97th Congress, First Session,
1981, p. B.114.)
The manual was written, according to press reports, by "a low-level contract
employee" of the CIA; the Report of the Intelligence Committee concluded:
"The Committee believes that the manual has caused embarrassment to the
United States and should never have been released in any of its various
forms. Specific actions it describes are repugnant to American values.
The original purpose of the manual was to provide training to moderate FDN
behavior in the field. Yet, the Committee believes that the manual was
written, edited, distributed and used without adequate supervision. No one
but its author paid much attention to the manual. Most CIA officials learned
about it from news accounts.
The Committee was told that CIA officers should have reviewed the manual and
did not. The Committee was told that all CIA officers should have known
about the Executive Order's ban on assassination . . . but some did not. The
entire publication and distribution of the manual was marked within the
Agency by confusion about who had authority and responsibility for the
manual. The incident of the manual illustrates once again to a majority of
the Committee that the CIA did not have adequate command and control of the
entire Nicaraguan covert action . . .
CIA officials up the chain of command either never read the manual or were
never made aware of it. Negligence, not intent to violate the law, marked
the manual's history.
The Committee concluded that there was no intentional violation of Executive
Order 12333."
When the existence of the manual became known at the level of the United
States Congress, according to one press report, "the CIA urged rebels to
ignore all its recommendations and began trying to recall copies of the
document".
121. When the Intelligence Committee investigated the publication of the
psychological operations manual, the question of the behaviour of the
contras in Nicaragua became of considerable public interest in the United
States, and the subject of numerous press reports. Attention was thus drawn
to allegations of terrorist behaviour or atrocities said to have been
committed against civilians, which were later the subject of reports by
various investigating teams, copies of which have been supplied to the Court
by Nicaragua. According to the press, CIA officials presented to the
Intelligence Committee in 1984 evidence of such activity, and stated that
this was the reason why the manual was prepared, it being intended to
"moderate the rebels' behaviour". This report is confirmed by the finding of
the Intelligence Committee that "The original purpose of the manual was to
provide training to moderate FDN behaviour in the field". At the time the
manual was prepared, those responsible were aware of, at the least,
allegations of behaviour by the contras inconsistent with humanitarian law.
122. The Court concludes that in 1983 an agency of the United States
Government supplied to the FDN a manual on psychological guerrilla warfare
which, while expressly discouraging indiscriminate violence against
civilians, considered the possible necessity of shooting civilians who were
attempting to leave a town; and advised the "neutralization" for propaganda
purposes of local judges, officials or notables after the semblance of trial
in the presence of the population. The text supplied to the contras also
advised the use of professional criminals to perform unspecified "jobs", and
the use of provocation at mass demonstrations to produce violence on the
part of the authorities so as to make "martyrs".
123. Nicaragua has complained to the Court of certain measures of an
economic nature taken against it by the Government of the United States,
beginning with the cessation of economic aid in April 1981, which it regards
as an indirect form of intervention in its internal affairs. According to
information published by the United States Government, it provided more than
$ 100 million in economic aid to Nicaragua between July 1979 and January
1981; however, concern in the United States Congress about certain
activities attributed to the Nicaraguan Government led to a requirement
that, before disbursing assistance to Nicaragua, the President certify that
Nicaragua was not "aiding, abetting or supporting acts of violence or
terrorism in other countries" (Special Central American Assistance Act,
1979, Sec. 536 (g)). Such a certification was given in September 1980 (45
Federal Register 62779), to the effect that
"on the basis of an evaluation of the available evidence, that the
Government of Nicaragua 'has not co-operated with or harbors any
international terrorist organization or is aiding, abetting or supporting
acts of violence or terrorism in other countries'".
An official White House press release of the same date stated that
"The certification is based upon a careful consideration and evaluation of
all the relevant evidence provided by the intelligence community and by our
Embassies in the field... Our intelligence agencies as well as our Embassies
in Nicaragua and neighboring countries were fully consulted, and the diverse
information and opinions from all sources were carefully weighed."
On 1 April 1981 however a determination was made to the effect that the
United States could no longer certify that Nicaragua was not engaged in
support for "terrorism" abroad, and economic assistance, which had been
suspended in January 1981, was thereby terminated. According to the
Nicaraguan Minister of Finance, this also affected loans previously
contracted, and its economic impact was more than $ 36 million per annum.
Nicaragua also claims that, at the multilateral level, the United States has
acted in the Bank for International Reconstruction and Development and the
Inter-American Development Bank to oppose or block loans to Nicaragua.
124. On 23 September 1983, the President of the United States made a
proclamation modifying the system of quotas for United States imports of
sugar, the effect of which was to reduce the quota attributed to Nicaragua
by 90 per cent. The Nicaraguan Finance Minister assessed the economic impact
of the measure at between $ 15 and $ 18 million, due to the preferential
system of prices that sugar has in the market of the United States.
125. On 1 May 1985, the President of the United States made an Executive
Order, which contained a finding that "the policies and actions of the
Government of Nicaragua constitute an unusual and extraordinary threat to
the national security and foreign policy of the United States" and declared
a "national emergency". According to the President's message to Congress,
this emergency situation had been created by "the Nicaraguan Government's
aggressive activities in Central America". The Executive Order declared a
total trade embargo on Nicaragua, prohibiting all imports from and exports
to that country, barring Nicaraguan vessels from United States ports and
excluding Nicaraguan aircraft from air transportation to and from the United
States.
126. The Court has before it, in the Counter-Memorial on jurisdiction and
admissibility filed by the United States, the assertion that the United
States, pursuant to the inherent right of individual and collective self-defence,
and in accordance with the Inter-American Treaty of Reciprocal Assistance,
has responded to requests from El Salvador, Honduras and Costa Rica, for
assistance in their self-defence against aggression by Nicaragua. The Court
has therefore to ascertain, so far as possible, the facts on which this
claim is or may be based, in order to determine whether collective self-defence
constitutes a justification of the activities of the United States here
complained of. Furthermore, it has been suggested that, as a result of
certain assurances given by the Nicaraguan "Junta of the Government of
National Reconstruction" in 1979, the Government of Nicaragua is bound by
international obligations as regards matters which would otherwise be
matters of purely domestic policy, that it is in breach of those
obligations, and that such breach might justify the action of the United
States. The Court will therefore examine the facts underlying this
suggestion also.
127. Nicaragua claims that the references made by the United States to the
justification of collective self-defence are merely "pretexts" for the
activities of the United States. It has alleged that the true motive for the
conduct of the United States is unrelated to the support which it accuses
Nicaragua of giving to the armed opposition in El Salvador, and that the
real objectives of United States policy are to impose its will upon
Nicaragua and force it to comply with United States demands. In the Court's
view, however, if Nicaragua has been giving support to the armed opposition
in El Salvador, and if this constitutes an armed attack on El Salvador and
the other appropriate conditions are met, collective self-defence could be
legally invoked by the United States, even though there may be the
possibility of an additional motive, one perhaps even more decisive for the
United States, drawn from the political orientation of the present
Nicaraguan Government. The existence of an additional motive, other than
that officially proclaimed by the United States, could not deprive the
latter of its right to resort to collective self-defence. The conclusion to
be drawn is that special caution is called for in considering the
allegations of the United States concerning conduct by Nicaragua which may
provide a sufficient basis for self-defence.
128. In its Counter-Memorial on jurisdiction and admissibility, the United
States claims that Nicaragua has "promoted and supported guerrilla violence
in neighboring countries", particularly in El Salvador; and has openly
conducted cross-border military attacks on its neighbours, Honduras and
Costa Rica. In support of this, it annexed to the Memorial an affidavit by
Secretary of State George P. Shultz. In his affidavit, Mr. Shultz declares,
inter alia, that:
"The United States has abundant evidence that the Government of Nicaragua
has actively supported armed groups engaged in military and paramilitary
activities in and against El Salvador, providing such groups with sites in
Nicaragua for communications facilities, command and control headquarters,
training and logistics support. The Government of Nicaragua is directly
engaged with these armed groups in planning ongoing military and
paramilitary activities conducted in and against El Salvador. The Government
of Nicaragua also participates directly in the procurement, and
transshipment through Nicaraguan territory, of large quantities of
ammunition, supplies and weapons for the armed groups conducting military
and paramilitary activities in and against El Salvador.
In addition to this support for armed groups operating in and against El
Salvador, the Government of Nicaragua has engaged in similar support, albeit
on a smaller scale, for armed groups engaged, or which have sought to
engage, in military or paramilitary activities in and against the Republic
of Costa Rica, the Republic of Honduras, and the Republic of Guatemala. The
regular military forces of Nicaragua have engaged in several direct attacks
on Honduran and Costa Rican territory, causing casualties among the armed
forces and civilian populations of those States."
In connection with this declaration, the Court would recall the observations
it has already made (paragraphs 69 and 70) as to the evidential value of
declarations by ministers of the government of a State engaged in litigation
concerning an armed conflict.
129. In addition, the United States has quoted Presidents Magana and Duarte
of El Salvador, press reports, and United States Government publications.
With reference to the claim as to cross-border military attacks, the United
States has quoted a statement of the Permanent Representative of Honduras to
the Security Council, and diplomatic protests by the Governments of Honduras
and Costa Rica to the Government of Nicaragua. In the subsequent United
States Government publication "Revolution Beyond Our Borders", referred to
in paragraph 73 above, these claims are brought up to date with further
descriptive detail. Quoting "Honduran government records", this publication
asserts that there were 35 border incursions by the Sandinista People's Army
in 1981 and 68 in 1982.
130. In its pleading at the jurisdictional stage, the United States asserted
the justification of collective self-defence in relation to alleged attacks
on El Salvador, Honduras and Costa Rica. It is clear from the material laid
before the Court by Nicaragua that, outside the context of the present
judicial proceedings, the United States administration has laid the greatest
stress on the question of arms supply and other forms of support to
opponents of the Government in El Salvador. In 1983, on the proposal of the
Intelligence Committee, the covert programme of assistance to the contras
"was to be directed only at the interdiction of arms to El Salvador".
Nicaragua's other neighbours have not been lost sight of, but the emphasis
has continued to be on El Salvador: the United States Continuing
Appropriations Act 1985, Section 8066 (b) (1) (A), provides for aid for the
military or paramilitary activities in Nicaragua to be resumed if the
President reports inter alia that
"the Government of Nicaragua is providing material or monetary support to
anti-government forces engaged in military or paramilitary operations in El
Salvador or other Central American countries".
131. In the proceedings on the merits, Nicaragua has addressed itself
primarily to refuting the claim that it has been supplying arms and other
assistance to the opponents of the Government of El Salvador; it has not
specifically referred to the allegations of attacks on Honduras or Costa
Rica. In this it is responding to what is, as noted above, the principal
justification announced by the United States for its conduct. In
ascertaining whether the conditions for the exercise by the United States of
the right of collective self-defence are satisfied, the Court will
accordingly first consider the activities of Nicaragua in relation to El
Salvador, as established by the evidence and material available to the
Court. It will then consider whether Nicaragua's conduct in relation to
Honduras or Costa Rica may justify the exercise of that right; in that
respect it will examine only the allegations of direct cross-border attacks,
since the affidavit of Mr. Shultz claims only that there was support by the
provision of arms and supplies for military and paramilitary activities "on
a smaller scale" in those countries than in El Salvador.
132. In its Declaration of Intervention dated 15 August 1984, the Government
of El Salvador stated that: "The reality is that we are the victims of
aggression and armed attack from Nicaragua and have been since at least
1980." (Para. IV.) The statements of fact in that Declaration are backed by
a declaration by the Acting Minister for Foreign Affairs of El Salvador,
similar in form to the declarations by Nicaraguan Ministers annexed to its
pleadings. The Declaration of Intervention asserts that "terrorists" seeking
the overthrow of the Government of El Salvador were "directed, armed,
supplied and trained by Nicaragua" (para. III); that Nicaragua provided
"houses, hideouts and communication facilities" (para. VI), and training
centres managed by Cuban and Nicaraguan military personnel (para. VII). On
the question of arms supply, the Declaration states that
"Although the quantities of arms and supplies, and the routes used, vary,
there has been a continuing flow of arms, ammunition, medicines, and
clothing from Nicaragua to our country." (Para. VIII.)
133. In its observations, dated 10 September 1984, on the Declaration of
Intervention of El Salvador, Nicaragua stated as follows:
"The Declaration includes a series of paragraphs alleging activities by
Nicaragua that El Salvador terms an 'armed attack'. The Court should know
that this is the first time El Salvador has asserted it is under armed
attack from Nicaragua. None of these allegations, which are properly
addressed to the merits phase of the case, is supported by proof or evidence
of any kind. Nicaragua denies each and every one of them, and stands behind
the affidavit of its Foreign Minister, Father Miguel d'Escoto Brockmann, in
which the Foreign Minister affirms that the Government of Nicaragua has not
supplied arms or other materials of war to groups fighting against the
Government of El Salvador or provided financial support, training or
training facilities to such groups or their members."
134. Reference has also to be made to the testimony of one of the witnesses
called by Nicaragua. Mr. David MacMichael (paragraph 99 above) said in
evidence that he was in the full time employment of the CIA from March 1981
to April 1983, working for the most part on Inter-American affairs. During
his examination by counsel for Nicaragua, he stated as follows:
"[Question:] In your opinion, if the Government of Nicaragua was sending
arms to rebels in El Salvador, could it do so without detection by United
States intelligence-gathering capabilities? [Answer:] In any significant
manner over this long period of time I do not believe they could have done
so.
Q.: And there was in fact no such detection during the period that you
served in the Central Intelligence Agency?
A.: No.
Q.: In your opinion, if arms in significant quantities were being sent from
Nicaraguan territory to the rebels in El Salvador -- with or without the
Government's knowledge or consent -- could these shipments have been
accomplished without detection by United States intelligence capabilities?
A.: If you say in significant quantities over any reasonable period of time,
no I do not believe so.
Q.: And there was in fact no such detection during your period of service
with the Agency?
A.: No.
Q.: Mr. MacMichael, up to this point we have been talking about the period
when you were employed by the CIA -- 6 March 1981 to 3 April 1983. Now let
me ask you without limit of time: did you see any evidence of arms going to
the Salvadorian rebels from Nicaragua at any time?
A.: Yes, I did.
Q.: When was that?
A.: Late 1980 to very early 1981."
Mr. MacMichael indicated the sources of the evidence he was referring to,
and his examination continued:
"[Question:] Does the evidence establish that the Government of Nicaragua
was involved during this period? [Answer:] No, it does not establish it, but
I could not rule it out."
135. After counsel for Nicaragua had completed his examination of the
witness, Mr. MacMichael was questioned from the bench, and in this context
he stated (inter alia) as follows:
"[Question:] Thus if the Government of Nicaragua had shipped arms to El
Salvador before March 1981, for example in 1980 and early 1981, in order to
arm the big January offensive of the insurgents in El Salvador, you would
not be in a position to know that; is that correct? [Answer:] I think I have
testified, your honour, that I reviewed the immediate past intelligence
material at that time, that dealt with that period, and I have stated today
that there was credible evidence and that on the basis of my reading of it I
could not rule out a finding that the Nicaraguan Government had been
involved during that period.
Q.: Would you rule it 'in'?
A.: I prefer to stay with my answer that I could not rule it out, but to
answer you as directly as I can my inclination would be more towards ruling
'in' than ruling 'out'.
. . . .
Q.: I understand you to be saying, Mr. MacMichael, that you believe that it
could be taken as a fact that at least in late 1980/early 1981 the
Nicaraguan Government was involved in the supply of arms to the Salvadorian
insurgency. Is that the conclusion I can draw from your remarks ?
A.: I hate to have it appear that you are drawing this from me like a nail
out of a block of wood but, yes, that is my opinion."
In short, the Court notes that the evidence of a witness called by Nicaragua
in order to negate the allegation of the United States that the Government
of Nicaragua had been engaged in the supply of arms to the armed opposition
in El Salvador only partly contradicted that allegation.
136. Some confirmation of the situation in 1981 is afforded by an internal
Nicaraguan Government report, made available by the Government of Nicaragua
in response to a request by the Court, of a meeting held in Managua on 12
August 1981 between Commander Ortega, Coordinator of the Junta of the
Government of Nicaragua and Mr. Enders, Assistant Secretary of State for
Inter-American Affairs of the United States. According to this report, the
question of the flow of "arms, munitions and other forms of military aid" to
El Salvador, was raised by Mr. Enders as one of the "major problems" (problemas
principales). At one point he is reported to have said:
"On your part, you could take the necessary steps to ensure that the flow of
arms to El Salvador is again halted as in March of this year. We do not seek
to involve ourselves in deciding how and with whom this object should be
achieved, but we may well monitor the results."
Later in the course of the discussion, the following exchange is recorded:
"[Ortega:] As for the flow of arms to El Salvador, what must be stated is
that as far as we have been informed by you, efforts have been made to stop
it; however, I want to make clear that there is a great desire here to
collaborate with the Salvadorian people, also among members of our armed
forces, although our Junta and the National Directorate have a decision that
activities of this kind should not be permitted. We would ask you to give us
reports about that flow to help us control it. [Enders:] You have succeeded
in doing so in the past and I believe you can do so now. We are not in a
position to supply you with intelligence reports. We would compromise our
sources, and our nations have not yet reached the necessary level to
exchange intelligence reports."
137. As regards the question, raised in this discussion, of the picture
given by United States intelligence sources, further evidence is afforded by
the 1983 Report of the Intelligence Committee (paragraphs 95, 109 above). In
that Report, dated 13 May 1983, it was stated that
"The Committee has regularly reviewed voluminous intelligence material on
Nicaraguan and Cuban support for leftist insurgencies since the 1979
Sandinista victory in Nicaragua."
The Committee continued:
"At the time of the filing of this report, the Committee believes that the
intelligence available to it continues to support the following judgments
with certainty:
A major portion of the arms and other material sent by Cuba and other
communist countries to the Salvadorian insurgents transits Nicaragua with
the permission and assistance of the Sandinistas.
The Salvadorian insurgents rely on the use of sites in Nicaragua, some of
which are located in Managua itself, for communications,
command-and-control, and for the logistics to conduct their financial,
material and propaganda activities.
The Sandinista leadership sanctions and directly facilitates all of the
above functions.
Nicaragua provides a range of other support activities, including secure
transit of insurgents to and from Cuba, and assistance to the insurgents in
planning their activities in El Salvador.
In addition, Nicaragua and Cuba have provided -- and appear to continue
providing -- training to the Salvadorian insurgents."
The Court is not aware of the contents of any analogous report of a body
with access to United States intelligence material covering a more recent
period. It notes however that the Resolution adopted by the United States
Congress on 29 July 1985 recorded the expectation of Congress from the
Government of Nicaragua of:
"the end to Sandinista support for insurgencies in other countries in the
region, including the cessation of military supplies to the rebel forces
fighting the democratically elected government in El Salvador".
138. In its Declaration of Intervention, El Salvador alleges that
"Nicaraguan officials have publicly admitted their direct involvement in
waging war on us" (para. IX). It asserts that the Foreign Minister of
Nicaragua admitted such support at a meeting of the Foreign Ministers of the
Contadora Group in July 1983. Setting this against the declaration by the
Nicaraguan Foreign Minister annexed to the Nicaraguan Memorial, denying any
involvement of the Nicaraguan Government in the provision of arms or other
supplies to the opposition in El Salvador, and in view of the fact that the
Court has not been informed of the exact words of the alleged admission, or
with any corroborative testimony from others present at the meeting, the
Court cannot regard as conclusive the assertion in the Declaration of
Intervention. Similarly, the public statement attributed by the Declaration
of Intervention (para. XIII) to Commander Ortega, referring to "the fact of
continuing support to the Salvadorian guerrillas" cannot, even assuming it
to be accurately quoted, be relied on as proof that that support (which, in
the form of political support, is openly admitted by the Nicaraguan
Government) takes any specific material form, such as the supply of arms.
139. The Court has taken note of four draft treaties prepared by Nicaragua
in 1983, and submitted as an official proposal within the framework of the
Contadora process, the text of which was supplied to the Court with the
Nicaraguan Application. These treaties, intended to be "subscribed to by all
nations that desire to contribute to the peaceful solution of the present
armed conflict in the Republic of El Salvador" (p. 58), contained the
following provisions:
"Article One
The High Contracting Parties promise to not offer and, should such be the
case, to suspend military assistance and training and the supply and
trafficking of arms, munitions and military, equipment that may be made
directly to the contending forces or indirectly through third States.
Article Two
The High Contracting Parties promise to adopt in their respective
territories whatever measures may be necessary to impede all supply and
trafficking of arms, munitions and military equipment and military
assistance to and training of the contending forces in the Republic of El
Salvador." (P. 60.)
In the Introduction to its proposal the Nicaraguan Government stated that it
was ready to enter into an agreement of this kind immediately, even if only
with the United States, "in order that the Government of that country cease
justifying its interventionist policy in El Salvador on the basis of
supposed actions by Nicaragua" (p. 58).
140. When filing its Counter-Memorial on the questions of jurisdiction and
admissibility, the United States deposited a number of documents in the
Registry of the Court, two of which are relevant to the questions here under
examination. The first is a publication of the United States Department of
State dated 23 February 1981, entitled Communist Interference in El
Salvador, reproducing a number of documents (in Spanish with English
translation) stated to have been among documents in "two particularly
important document caches . . . recovered from the Communist Party of El
Salvador (PCS) in November 1980 and the People's Revolutionary Army (ERP) in
January 1981". A summary of the documents is also to be found in an
attachment to the 1983 Report of the Intelligence Committee, filed by
Nicaragua. The second is a "Background Paper" published by the United States
Department of State and Department of Defense in July 1984, entitled
Nicaragua's Military Build-Up and Support for Central American Subversion.
141. The full significance of the documents reproduced in the first of these
publications, which are "written using cryptic language and abbreviations",
is not readily apparent, without further assistance from United States
experts, who might have been called as witnesses had the United States
appeared in the proceedings. For example, there are frequent references to
"Lagos" which, according to the United States, is a code-name for Nicaragua;
but without such assistance the Court cannot judge whether this
interpretation is correct. There is also however some specific reference in
an undated document to aid to the armed opposition "which all would pass
through Nicaragua" -- no code-name being here employed -- which the Court
must take into account for what it is worth.
142. The second document, the Background Paper, is stated to be based on
"Sandinista documents, press reports, and interviews with captured
guerrillas and defectors" as well as information from "intelligence
sources"; specific intelligence reports are not cited "because of the
potential consequences of revealing sources and methods". The only material
evidence included is a number of aerial photographs (already referred to in
paragraph 88 above), and a map said to have been captured in a guerrilla
camp in El Salvador, showing arms transport routes; this map does not appear
of itself to indicate that arms enter El Salvador from Nicaraguan territory.
143. The Court's attention has also been drawn to various press reports of
statements by diplomats, by leaders of the armed opposition in El Salvador,
or defectors from it, supporting the view that Nicaragua was involved in the
arms supply. As the Court has already explained, it regards press reports
not as evidence capable of proving facts, but considers that they can
nevertheless contribute, in some circumstances, to corroborating the
existence of a particular fact (paragraph 62 above). The press reports here
referred to will therefore be taken into account only to that extent.
144. In an interview published in English in the New York Times Magazine on
28 April 1985, and in Spanish in ABC, Madrid, on 12 May 1985 given by Daniel
Ortega Saavedra, President of the Junta of Nicaragua, he is reported to have
said:
"We've said that we're willing to send home the Cubans, the Russians, the
rest of the advisers. We're willing to stop the movement of military aid, or
any other kind of aid, through Nicaragua to El Salvador, and we're willing
to accept international verification. In return, we're asking for one thing:
that they don't attack us, that the United States stop arming and financing
. . . the gangs that kill our people, burn our crops and force us to divert
enormous human and economic resources into war when we desperately need them
for development." ("Hemos dicho que estamos dispuestos a sacar a los cubanos,
sovieticos y demas asesores; a suspender todo transito por nuestro
territorio de ayuda militar u otra a los salvadorenos, bajo verificacion
internacional. Hemos dicho que lo unico que pedimos es que no nos agredan y
que Estados Unidos no arme y financie . . . a las bandas que entran a
matarnos, a quemar las cosechas, y que nos obligan a distraer enormes
recursos humanos y economicos que nos hacen una falta angustiosa para el
desarrollo.")
The Court has to consider whether this press report can be treated as
evidence of an admission by the Nicaraguan Head of State that the Nicaraguan
Government is in a position to stop the movement of military or other aid
through Nicaraguan territory to El Salvador; and whether it can be deduced
from this (in conjunction with other material) that the Nicaraguan
Government is responsible for the supply or transit of such aid.
145. Clearly the remarks attributed to President Ortega raise questions as
to his meaning, namely as to what exactly the Nicaraguan Government was
offering to stop. According to Nicaragua's own evidence, President Ortega
had offered during the meeting of 12 August 1981 to stop the arms flow if
the United States would supply the necessary information to enable the
Nicaraguan Government to track it down; it may in fact be the interview of
12 August 1981 that President Ortega was referring to when he spoke of what
had been said to the United States Government. At all events, against the
background of the firm denial by the Nicaraguan Government of complicity in
an arms flow to El Salvador, the Court cannot regard remarks of this kind as
an admission that that Government was in fact doing what it had already
officially denied and continued subsequently to deny publicly.
146. Reference was made during the hearings to the testimony of defectors
from Nicaragua or from the armed opposition in El Salvador; the Court has no
such direct testimony before it. The only material available in this respect
is press reports, some of which were annexed to the United States
Counter-Memorial on the questions of jurisdiction and admissibility. With
appropriate reservations, the Court has to consider what the weight is of
such material, which includes allegations of arms supply and of the training
of Salvadoreans at a base near Managua. While the Court is not prepared
totally to discount this material, it cannot find that it is of any great
weight in itself. Still less can statements attributed in the press to
unidentified diplomats stationed in Managua be regarded as evidence that the
Nicaraguan Government was continuing to supply aid to the opposition in El
Salvador.
147. The evidence or material offered by Nicaragua in connection with the
allegation of arms supply has to be assessed bearing in mind the fact that,
in responding to that allegation, Nicaragua has to prove a negative. Annexed
to the Memorial was a declaration dated 21 April 1984 of Miguel d'Escoto
Brockmann, the Foreign Minister of Nicaragua. In this respect the Court has,
as in the case of the affidavit of the United States Secretary of State, to
recall the observations it has already made (paragraphs 69 and 70) as to the
evidential value of such declarations. In the declaration, the Foreign
Minister states that the allegations made by the United States, that the
Nicaraguan Government "is sending arms, ammunition, communications equipment
and medical supplies to rebels conducting a civil war against the Government
of El Salvador, are false". He continues:
"In truth, my government is not engaged, and has not been engaged, in the
provision of arms or other supplies to either of the factions engaged in the
civil war in El Salvador . . . Since my government came to power on July 19,
1979, its policy and practice has been to prevent our national territory
from being used as a conduit for arms or other military supplies intended
for other governments or rebel groups. In fact, on numerous occasions the
security forces of my government have intercepted clandestine arms
shipments, apparently destined for El Salvador, and confiscated them."
The Foreign Minister explains the geographical difficulty of patrolling
Nicaragua's frontiers:
"Nicaragua's frontier with Honduras, to the north, is 530 kilometers long.
Most of it is characterized by rugged mountains, or remote and dense
jungles. Most of this border area is inaccessible by motorized land
transport and simply impossible to patrol. To the south, Nicaragua's border
with Costa Rica extends for 220 kilometers. This area is also characterized
by dense and remote jungles and is also virtually inaccessible by land
transport. As a small underdeveloped country with extremely limited
resources, and with no modern or sophisticated detection equipment, it is
not easy for us to seal off our borders to all unwanted and illegal
traffic."
He then points out the complication of the presence of the contras along the
northern and southern borders, and describes efforts by Nicaragua to obtain
verifiable international agreements for halting all arms traffic in the
region.
148. Before turning to the evidence offered by Nicaragua at the hearings,
the Court would note that the action of the United States Government itself,
on the basis of its own intelligence reports, does not suggest that arms
supply to El Salvador from the territory of Nicaragua was continuous from
July 1979, when the new regime took power in Managua, and the early months
of 1981. The presidential Determination of 12 September 1980, for the
purposes of the Special Central American Assistance Act 1979, quoted in
paragraph 123 above, officially certified that the Government of Nicaragua
was not aiding, abetting or supporting acts of violence or terrorism in
other countries, and the press release of the same date emphasized the
"careful consideration and evaluation of all the relevant evidence provided
by the intelligence community and by our Embassies in the field" for the
purposes of the Determination. The 1983 Report of the Intelligence
Committee, on the other hand, referring to its regular review of
intelligence since "the 1979 Sandinista victory in Nicaragua", found that
the intelligence available to it in May 1983 supported "with certainty" the
judgment that arms and material supplied to "the Salvadorian insurgents
transits Nicaragua with the permission and assistance of the Sandinistas"
(see paragraph 137 above).
149. During the oral proceedings Nicaragua offered the testimony of Mr.
MacMichael, already reviewed above (paragraphs 134 and 135) from a different
aspect. The witness, who was well placed to judge the situation from United
States intelligence, stated that there was no detection by United States
intelligence capabilities of arms traffic from Nicaraguan territory to El
Salvador during the period of his service (March 1981 to April 1983). He was
questioned also as to his opinion, in the light of official statements and
press reports, on the situation after he left the CIA and ceased to have
access to intelligence material, but the Court considers it can attach
little weight to statements of opinion of this kind (cf. paragraph 68
above).
150. In weighing up the evidence summarized above, the Court has to
determine also the significance of the context of, or background to, certain
statements or indications. That background includes, first, the ideological
similarity between two movements, the Sandinista movement in Nicaragua and
the armed opposition to the present government in El Salvador; secondly the
consequent political interest of Nicaragua in the weakening or overthrow of
the government in power in El Salvador; and finally, the sympathy displayed
in Nicaragua, including among members of the army, towards the armed
opposition in El Salvador. At the meeting of 12 August 1981 (paragraph 136
above), for example, Commander Ortega told the United States representative,
Mr. Enders, that "we are interested in seeing the guerrillas in El Salvador
and Guatemala triumph . . .", and that "there is a great desire here to
collaborate with the Salvadorian people . . .". Against this background,
various indications which, taken alone, cannot constitute either evidence or
even a strong presumption of aid being given by Nicaragua to the armed
opposition in El Salvador, do at least require to be examined meticulously
on the basis that it is probable that they are significant.
151. It is in this light, for example, that one indirect piece of evidence
acquires particular importance. From the record of the meeting of 12 August
1981 in Managua, mentioned in the preceding paragraph, it emerges that the
Nicaraguan authorities may have immediately taken steps, at the request of
the United States, to bring to a halt or prevent various forms of support to
the armed opposition in El Salvador. The United States representative is
there reported to have referred to steps taken by the Government of
Nicaragua in March 1981 to halt the flow of arms to El Salvador, and his
statement to that effect was not contradicted. According to a New York Times
report (17 September 1985) Commander Ortega stated that around this time
measures were taken to prevent an airstrip in Nicaragua from continuing to
be used for this type of activities. This, in the Court's opinion, is an
admission of certain facts, such as the existence of an airstrip designed to
handle small aircraft, probably for the transport of weapons, the likely
destination being El Salvador, even if the Court has not received concrete
proof of such transport. The promptness with which the Nicaraguan
authorities closed off this channel is a strong indication that it was in
fact being used, or had been used for such a purpose.
152. The Court finds, in short, that support for the armed opposition in El
Salvador from Nicaraguan territory was a fact up to the early months of
1981. While the Court does not possess full proof that there was aid, or as
to its exact nature, its scale and its continuance until the early months of
1981, it cannot overlook a number of concordant indications, many of which
were provided moreover by Nicaragua itself, from which it can reasonably
infer the provision of a certain amount of aid from Nicaraguan territory.
The Court has already explained (paragraphs 64, 69 and 70) the precise
degree to which it intended to take account, as regards factual evidence, of
statements by members of the governments of the States concerned, including
those of Nicaragua. It will not return to this point.
153. After the early months of 1981, evidence of military aid from or
through Nicaragua remains very weak. This is so despite the deployment by
the United States in the region of extensive technical resources for
tracking, monitoring and intercepting air, sea and land traffic, described
in evidence by Mr. MacMichael and its use of a range of intelligence and
information sources in a political context where, moreover, the Government
had declared and recognized surveillance of Nicaragua as a "high priority".
The Court cannot of course conclude from this that no trans-border traffic
in arms existed, although it does not seem particularly unreasonable to
believe that traffic of this kind, had it been persistent and on a
significant scale, must inevitably have been discovered, in view of the
magnitude of the resources used for that purpose. The Court merely takes
note that the allegations of arms-trafficking are not solidly established;
it has not, in any event, been able to satisfy itself that any continuing
flow on a significant scale took place after the early months of 1981.
154. In this connection, it was claimed in the Declaration of Intervention
by El Salvador that there was a "continuing flow of arms, ammunition,
medicines, and clothing from Nicaragua to our country" (para. VIII), and El
Salvador also affirmed the existence of "land infiltration routes between
Nicaragua and El Salvador". Had evidence of this become available, it is not
apparent why El Salvador, given full knowledge of an arms-flow and the
routes used, could not have put an end to the traffic, either by itself or
with the assistance of the United States, which has deployed such powerful
resources. There is no doubt that the United States and El Salvador are
making considerable effort to prevent any infiltration of weapons and any
form of support to the armed opposition in El Salvador from the direction of
Nicaragua. So far as the Court has been informed, however, they have not
succeeded in tracing and intercepting this infiltration and these various
forms of support. Consequently, it can only interpret the lack of evidence
of the transborder arms-flow in one of the following two ways: either this
flow exists, but is neither as frequent nor as considerable as alleged by
the respondent State; or it is being carried on without the knowledge, and
against the will, of a government which would rather put a stop to it. If
this latter conclusion is at all valid with regard to El Salvador and the
United States it must therefore be at least equally valid with regard to
Nicaragua.
155. Secondly, even supposing it well established that military aid is
reaching the armed opposition in El Salvador from the territory of
Nicaragua, it still remains to be proved that this aid is imputable to the
authorities of the latter country. Indeed, the applicant State has in no way
sought to conceal the possibility of weapons en route to the armed
opposition in El Salvador crossing its territory but it denies that this is
the result of any deliberate official policy on its part. As the Court
observed in 1949:
"it cannot be concluded from the mere fact of the control exercised by a
State over its territory and waters that that State necessarily knew, or
ought to have known, of any unlawful act perpetrated therein, nor yet that
it necessarily knew, or should have known, the authors. This fact, by itself
and apart from other circumstances, neither involves prima facie
responsibility nor shifts the burden of proof." (Corfu Channel, I.C.J.
Reports 1949, p. 18.)
Here it is relevant to bear in mind that there is reportedly a strong will
for collaboration and mutual support between important elements of the
populations of both El Salvador and Nicaragua, not least among certain
members of the armed forces in Nicaragua. The Court sees no reason to
dismiss these considerations, especially since El Salvador itself recognizes
the existence in Nicaraguan coastal areas of "traditional smugglers"
(Declaration, para. VIII, H), because Nicaragua is accused not so much of
delivering weapons itself as of allowing them to transit through its
territory; and finally because evidence has been provided, in the report of
the meeting of 12 August 1981 referred to in paragraph 136 above, of a
degree of co-operation between the United States and Nicaragua for the
purpose of putting a stop to these arms deliveries. The continuation of this
cooperation does not seem to have depended solely on the Government of
Nicaragua, for the Government of the United States, which in 1981 again
raised with it the question of this traffic, this time refused to provide
the Nicaraguan authorities, as it had on previous occasions, with the
specific information and details that would have enabled them to call a halt
to it. Since the Government of the United States has justified its refusal
by claiming that any disclosure would jeopardize its sources of information,
the Court has no means of assessing the reality or cogency of the undivulged
evidence which the United States claimed to possess.
156. In passing, the Court would remark that, if this evidence really
existed, the United States could be expected to have taken advantage of it
in order to forestall or disrupt the traffic observed; it could presumably
for example arrange for the deployment of a strong patrol force in El
Salvador and Honduras, along the frontiers of these States with Nicaragua.
It is difficult to accept that it should have continued to carry out
military and paramilitary activities against Nicaragua if their only purpose
was, as alleged, to serve as a riposte in the exercise of the right of
collective self-defence. If, on the other hand, this evidence does not
exist, that, as the Court has pointed out, implies that the arms traffic is
so insignificant and casual that it escapes detection even by the
sophisticated techniques employed for the purpose, and that, a fortiori, it
could also have been carried on unbeknown to the Government of Nicaragua, as
that Government claims. These two conclusions mutually support each other.
157. This second hypothesis would provide the Court with a further reason
for taking Nicaragua's affirmation into consideration, in that, if the flow
of arms is in fact reaching El Salvador without either Honduras or El
Salvador or the United States succeeding in preventing it, it would clearly
be unreasonable to demand of the Government of Nicaragua a higher degree of
diligence than is achieved by even the combined efforts of the other three
States. In particular, when Nicaragua is blamed for allowing consignments of
arms to cross its territory, this is tantamount, where El Salvador is
concerned, to an admission of its inability to stem the flow. This is
revealing as to the predicament of any government, including that of
Nicaragua, faced with this arms traffic: its determination to put a stop to
it would be likely to fail. More especially, to the extent that some of this
aid is said to be successfully routed through Honduras, this accusation
against Nicaragua would also signify that Honduras, which is not suspected
of seeking to assist the armed opposition in El Salvador, is providing
involuntary proof that it is by no means certain that Nicaragua can combat
this clandestine traffic any better than Honduras. As the means at the
disposal of the governments in the region are roughly comparable, the
geographical obstacles, and the intrinsic character of any clandestine arms
traffic, simply show that this traffic may be carried on successfully
without any complicity from governmental authorities, and even when they
seek to put a stop to it. Finally, if it is true that the exceptionally
extensive resources deployed by the United States have been powerless to
prevent this traffic from keeping the Salvadorian armed opposition supplied,
this suggests even more clearly how powerless Nicaragua must be with the
much smaller resources at its disposal for subduing this traffic if it takes
place on its territory and the authorities endeavour to put a stop to it.
158. Confining itself to the regional States concerned, the Court
accordingly considers that it is scarcely possible for Nicaragua's
responsibility for an arms traffic taking place on its territory to be
automatically assumed while the opposite assumption is adopted with regard
to its neighbours in respect of similar traffic. Having regard to the
circumstances characterizing this part of Central America, the Court
considers it more realistic, and consistent with the probabilities, to
recognize that an activity of that nature, if on a limited scale, may very
well be pursued unbeknown to the territorial government.
159. It may be objected that the Nicaraguan authorities are alleged to have
declared on various occasions that military assistance to the armed
opposition in El Salvador was part of their official policy. The Court has
already indicated that it is unable to give weight to alleged statements to
that effect of which there is insufficient evidence. In the report of the
diplomatic talks held on 12 August 1981 at Managua, Commander Ortega did not
in any sense promise to cease sending arms, but, on the contrary, said on
the one hand that Nicaragua had taken immediate steps to put a stop to it
once precise information had been given and, on the other hand, expressed
inability to take such steps where Nicaragua was not provided with
information enabling that traffic to be located. The Court would further
observe that the four draft treaties submitted by Nicaragua within the
Contadora process in 1983 (quoted in paragraph 139 above) do not constitute
an admission by Nicaragua of the supply of assistance to the armed
opposition in El Salvador, but simply make provision for the future in the
context of the inter-American system, in which a State is prohibited from
assisting the armed opposition within another State.
160. On the basis of the foregoing, the Court is satisfied that, between
July 1979, the date of the fall of the Somoza regime in Nicaragua, and the
early months of 1981, an intermittent flow of arms was routed via the
territory of Nicaragua to the armed opposition in El Salvador. On the other
hand, the evidence is insufficient to satisfy the Court that, since the
early months of 1981, assistance has continued to reach the Salvadorian
armed opposition from the territory of Nicaragua on any significant scale,
or that the Government of Nicaragua was responsible for any flow of arms at
either period.
161. The Court therefore turns to the claim that Nicaragua has been
responsible for cross-border military attacks on Honduras and Costa Rica.
The United States annexed to its Counter-Memorial on jurisdiction, inter
alia, a document entitled "Resume of Sandinista Aggression in Honduran
Territory in 1982" issued by the Press and Information Officer of the
Honduran Ministry of Foreign Relations on 23 August 1982. That document
listed 35 incidents said to involve violations of Honduran territory,
territorial waters or airspace, attacks on and harassment of the Honduran
population or Honduran patrols, between 30 January 1982 and 21 August 1982.
Also attached to the Counter-Memorial were copies of diplomatic Notes from
Honduras to Nicaragua protesting at other incidents stated to have occurred
in June/July 1983 and July 1984. The Court has no information as to whether
Nicaragua replied to these communications, and if so in what terms.
162. With regard to Costa Rica, the United States has supplied the text of
diplomatic Notes of protest from Costa Rica to Nicaragua concerning
incidents in September 1983, February 1984 and April 1984, and a Note from
Costa Rica to the Foreign Ministers of Colombia, Mexico, Panama and
Venezuela, referring to an incident of 29 April 1984, and requesting the
sending of a mission of observers. Again, the Court has no information as to
the contemporary reaction of Nicaragua to these allegations; from press
reports it appears that the matter was later amicably settled.
163. As the Court has already observed (paragraphs 130 to 131 above), both
the Parties have addressed themselves primarily to the question of aid by
the Government of Nicaragua to the armed opposition in El Salvador, and the
question of aggression directed against Honduras and Costa Rica has fallen
somewhat into the background. Nevertheless the allegation that such
aggression affords a basis for the exercise by the United States of the
right of collective self-defence remains on the record; and the Court has to
note that Nicaragua has not taken the opportunity during the proceedings of
expressly refuting the assertion that it has made cross-border military
attacks on the territory of those two States. At the opening of the hearings
in 1984 on the questions of jurisdiction and admissibility, the Agent of
Nicaragua referred to the "supposed armed attacks of Nicaragua against its
neighbours", and proceeded to "reiterate our denial of these accusations
which in any case we will amply address in the merits phase of these
proceedings". However, the declaration of the Nicaraguan Foreign Minister
annexed to the Memorial on the merits filed on 30 April 1985, while
repudiating the accusation of support for the armed opposition in El
Salvador, did not refer at all to the allegation of border incidents
involving Honduras and Costa Rica.
164. The Court, while not as fully informed on the question as it would wish
to be, therefore considers as established the fact that certain trans-border
military incursions into the territory of Honduras and Costa Rica are
imputable to the Government of Nicaragua. The Court is also aware of the
fact that the FDN operates along the Nicaraguan border with Honduras, and
the ARDE operates along the border with Costa Rica.
165. In view of the assertion by the United States that it has acted in
exercise of the right of collective self-defence for the protection of El
Salvador, Honduras and Costa Rica, the Court has also to consider the
evidence available on the question whether those States, or any of them,
made a request for such protection. In its Counter-Memorial on jurisdiction
and admissibility, the United States informed the Court that
"El Salvador, Honduras, and Costa Rica have each sought outside assistance,
principally from the United States, in their self-defense against
Nicaragua's aggression. Pursuant to the inherent right of individual and
collective self-defense, and in accordance with the terms of the
Inter-American Treaty of Reciprocal Assistance, the United States has
responded to these requests."
No indication has however been given of the dates on which such requests for
assistance were made. The affidavit of Mr. Shultz, Secretary of State, dated
14 August 1984 and annexed to the United States Counter-Memorial on
jurisdiction and admissibility, while asserting that the United States is
acting in accord with the provisions of the United Nations Charter, and
pursuant to the inherent right of self defence, makes no express mention of
any request for assistance by the three States named. El Salvador, in its
Declaration of Intervention in the present proceedings of 15 August 1984,
stated that, faced with Nicaraguan aggression,
"we have been called upon to defend ourselves, but our own economic and
military capability is not sufficient to face any international apparatus
that has unlimited resources at its disposal, and we have, therefore,
requested support and assistance from abroad. It is our natural, inherent
right under Article 51 of the Charter of the United Nations to have recourse
to individual and collective acts of self-defence. It was with this in mind
that President Duarte, during a recent visit to the United States and in
discussions with United States congressmen, reiterated the importance of
this assistance for our defence from the United States and the democratic
nations of the world." (Para. XII.)
Again, no dates are given, but the Declaration continues "This was also done
by the Revolutionary Junta of Government and the Government of President
Magana", i.e., between October 1979 and December 1980, and between April
1982 and June 1984.
166. The Court however notes that according to the report, supplied by the
Agent of Nicaragua, of the meeting on 12 August 1981 between President
Ortega of Nicaragua and Mr. Enders, the latter is reported to have referred
to action which the United States might take
"if the arms race in Central America is built up to such a point that some
of your [sc. Nicaragua's] neighbours in Central America seek protection from
us under the Inter-American Treaty [of Reciprocal Assistance]".
This remark might be thought to carry the implication that no such request
had yet been made. Admittedly, the report of the meeting is a unilateral
one, and its accuracy cannot be assumed as against the United States. In
conjunction with the lack of direct evidence of a formal request for
assistance from any of the three States concerned to the United States, the
Court considers that this report is not entirely without significance.
167. Certain events which occurred at the time of the fall of the regime of
President Somoza have next to be mentioned, since reliance has been placed
on them to support a contention that the present Government of Nicaragua is
in violation of certain alleged assurances given by its immediate
predecessor, the Government of National Reconstruction, in 1979. From the
documents made available to the Court, at its request, by Nicaragua, it
appears that what occurred was as follows. On 23 June 1979, the Seventeenth
Meeting of Consultation of Ministers of Foreign Affairs of the Organization
of American States adopted by majority, over the negative vote of, inter
alios, the representative of the Somoza government of Nicaragua, a
resolution on the subject of Nicaragua. By that resolution after declaring
that "the solution of the serious problem is exclusively within the
jurisdiction of the people of Nicaragua", the Meeting of Consultation
declared
"That in the view of the Seventeenth Meeting of Consultation of Ministers of
Foreign Affairs this solution should be arrived at on the basis of the
following:
1. Immediate and definitive replacement of the Somoza regime.
2. Installation in Nicaraguan territory of a democratic government, the
composition of which should include the principal representative groups
which oppose the Somoza regime and which reflects the free will of the
people of Nicaragua.
3. Guarantee of the respect for human rights of all Nicaraguans without
exception.
4. The holding of free elections as soon as possible, that will lead to the
establishment of a truly democratic government that guarantees peace,
freedom, and justice."
On 12 July 1979, the five members of the Nicaraguan "Junta of the Government
of National Reconstruction" sent from Costa Rica a telegram to the
Secretary-General of the Organization of American States, communicating the
"Plan of the Government of National Reconstruction to Secure Peace". The
telegram explained that the plan had been developed on the basis of the
Resolution of the Seventeenth Meeting of Consultation; in connection with
that plan, the Junta members stated that they wished to "ratify" (ratificar)
some of the "goals that have inspired their government". These included,
first
"our firm intention to establish full observance of human rights in our
country in accordance with the United Nations Universal Declaration of the
Rights of Man [sic], and the Charter on Human Rights of the Organization of
American States";
the Inter-American Commission on Human Rights was invited "to visit our
country as soon as we are installed in our national territory". A further
goal was
"the plan to call the first free elections our country has known in this
century, so that Nicaraguans can elect their representatives to the city
councils and to a constituent assembly, and later elect the country's
highest authorities".
The Plan to Secure Peace provided for the Government of National
Reconstruction, as soon as established, to decree a Fundamental Statute and
an Organic Law, and implement the Program of the Government of National
Reconstruction. Drafts of these texts were appended to the Plan; they were
enacted into law on 20 July 1979 and 21 August 1979.
168. In this connection, the Court notes that, since thus announcing its
objectives in 1979, the Nicaraguan Government has in fact ratified a number
of international instruments on human rights. At the invitation of the
Government of Nicaragua, the Inter-American Commission on Human Rights
visited Nicaragua and compiled two reports (OEA/Ser.L/ V/11.53 and 62). A
state of emergency was declared by the Nicaraguan Government (and notified
to the United Nations Secretary-General) in July 1979, and was re-declared
or extended on a number of subsequent occasions. On 4 November 1984,
presidential and legislative elections were held, in the presence of foreign
observers; seven political parties took part in the election, while three
parties abstained from taking part on the ground that the conditions were
unsatisfactory.
169. The view of the United States as to the legal effect of these events is
reflected in, for example, a Report submitted to Congress by President
Reagan on 10 April 1985 in connection with finance for the contras. It was
there stated that one of the changes which the United States was seeking
from the Nicaraguan Government was:
"implementation of Sandinista commitment to the Organization of American
States to political pluralism, human rights, free elections, non-alignment,
and a mixed economy".
A fuller statement of those views is contained in a formal finding by
Congress on 29 July 1985, to the following effect:
"(A) the Government of National Reconstruction of Nicaragua formally
accepted the June 23, 1979, resolution as a basis for resolving the
Nicaraguan conflict in its 'Plan to Achieve Peace' which was submitted to
the Organization of American States on July 12, 1979;
(B) the June 23, 1979, resolution and its acceptance by the Government of
National Reconstruction of Nicaragua was the formal basis for the removal of
the Somoza regime and the installation of the Government of National
Reconstruction;
(C) the Government of National Reconstruction, now known as the Government
of Nicaragua and controlled by the Frente Sandinista (the FSLN), has
flagrantly violated the provisions of the June 23, 1979, resolution, the
rights of the Nicaraguan people, and the security of the nations in the
region, in that it --
(i) no longer includes the democratic members of the Government of National
Reconstruction in the political process;
(ii) is not a government freely elected under conditions of freedom of the
press, assembly, and organization, and is not recognized as freely elected
by its neighbors, Costa Rica, Honduras, and El Salvador;
(iii) has taken significant steps towards establishing a totalitarian
Communist dictatorship, including the formation of FSLN neighborhood watch
committees and the enactment of laws that violate human rights and grant
undue executive power;
(iv) has committed atrocities against its citizens as documented in reports
by the Inter-American Commission on Human Rights of the Organization of
American States;
(v) has aligned itself with the Soviet Union and Soviet allies, including
the German Democratic Republic, Bulgaria, Libya, and the Palestine
Liberation Organization;
(vi) has committed and refuses to cease aggression in the form of armed
subversion against its neighbors in violation of the Charter of the United
Nations, the Charter of the Organization of American States, the
Inter-American Treaty of Reciprocal Assistance, and the 1965 United Nations
General Assembly Declaration on Intervention; and
(vii) has built up an army beyond the needs of immediate self-defense, at
the expense of the needs of the Nicaraguan people and about which the
nations of the region have expressed deepest concern.'"
170. The resolution goes on to note the belief expressed by Costa Rica, El
Salvador and Honduras that
"their peace and freedom is not safe so long as the Government of Nicaragua
excludes from power most of Nicaragua's political leadership and is
controlled by a small sectarian party, without regard to the will of the
majority of Nicaraguans"
and adds that
"the United States, given its role in the installation of the current
Government of Nicaragua, has a special responsibility regarding the
implementation of the commitments made by that Government in 1979,
especially to those who fought against Somoza to bring democracy to
Nicaragua with United States support".
Among the findings as to the "Resolution of the Conflict" is the statement
that the Congress
"supports the Nicaraguan democratic resistance in its efforts to peacefully
resolve the Nicaraguan conflict and to achieve the fulfillment of the
Government of Nicaragua's solemn commitments to the Nicaraguan people, the
United States, and the Organization of American States".
From the transcripts of speeches and press conferences supplied to the Court
by Nicaragua, it is clear that the resolution of Congress expresses a view
shared by the President of the United States, who is constitutionally
responsible for the foreign policy of the United States.
171. The question whether the alleged violations by the Nicaraguan
Government of the 1979 Resolution of the Organization of American States
Meeting of Consultation, listed in paragraph 169, are relied on by the
United States Government as legal justifications of its conduct towards
Nicaragua, or merely as political arguments, will be examined later in the
present Judgment. It may however be observed that the resolution clearly
links United States support for the contras to the breaches of what the
United States regards as the "solemn commitments" of the Government of
Nicaragua.
172. The Court has now to turn its attention to the question of the law
applicable to the present dispute. In formulating its view on the
significance of the United States multilateral treaty reservation, the Court
has reached the conclusion that it must refrain from applying the
multilateral treaties invoked by Nicaragua in support of its claims, without
prejudice either to other treaties or to the other sources of law enumerated
in Article 38 of the Statute. The first stage in its determination of the
law actually to be applied to this dispute is to ascertain the consequences
of the exclusion of the applicability of the multilateral treaties for the
definition of the content of the customary international law which remains
applicable.
173. According to the United States, these consequences are extremely
wide-ranging. The United States has argued that:
"Just as Nicaragua's claims allegedly based on 'customary and general
international law' cannot be determined without recourse to the United
Nations Charter as the principal source of that law, they also cannot be
determined without reference to the 'particular international law'
established by multilateral conventions in force among the parties."
The United States contends that the only general and customary international
law on which Nicaragua can base its claims is that of the Charter: in
particular, the Court could not, it is said, consider the lawfulness of an
alleged use of armed force without referring to the "principal source of the
relevant international law", namely, Article 2, paragraph 4, of the United
Nations Charter. In brief, in a more general sense "the provisions of the
United Nations Charter relevant here subsume and supervene related
principles of customary and general international law". The United States
concludes that "since the multilateral treaty reservation bars adjudication
of claims based on those treaties, it bars all of Nicaragua's claims". Thus
the effect of the reservation in question is not, it is said, merely to
prevent the Court from deciding upon Nicaragua's claims by applying the
multilateral treaties in question; it further prevents it from applying in
its decision any rule of customary international law the content of which is
also the subject of a provision in those multilateral treaties.
174. In its Judgment of 26 November 1984, the Court has already commented
briefly on this line of argument. Contrary to the views advanced by the
United States, it affirmed that it
"cannot dismiss the claims of Nicaragua under principles of customary and
general international law, simply because such principles have been
enshrined in the texts of the conventions relied upon by Nicaragua. The fact
that the above-mentioned principles, recognized as such, have been codified
or embodied in multilateral conventions does not mean that they cease to
exist and to apply as principles of customary law, even as regards countries
that are parties to such conventions. Principles such as those of the
non-use of force, nonintervention, respect for the independence and
territorial integrity of States, and the freedom of navigation, continue to
be binding as part of customary international law, despite the operation of
provisions of conventional law in which they have been incorporated."
(I.C.J. Reports 1984, p. 424, para. 73.)
Now that the Court has reached the stage of a decision on the merits, it
must develop and refine upon these initial remarks. The Court would observe
that, according to the United States argument, it should refrain from
applying the rules of customary international law because they have been
"subsumed" and "supervened" by those of international treaty law, and
especially those of the United Nations Charter. Thus the United States
apparently takes the view that the existence of principles in the United
Nations Charter precludes the possibility that similar rules might exist
independently in customary international law, either because existing
customary rules had been incorporated into the Charter, or because the
Charter influenced the later adoption of customary rules with a
corresponding content.
175. The Court does not consider that, in the areas of law relevant to the
present dispute, it can be claimed that all the customary rules which may be
invoked have a content exactly identical to that of the rules contained in
the treaties which cannot be applied by virtue of the United States
reservation. On a number of points, the areas governed by the two sources of
law do not exactly overlap, and the substantive rules in which they are
framed are not identical in content. But in addition, even if a treaty norm
and a customary norm relevant to the present dispute were to have exactly
the same content, this would not be a reason for the Court to take the view
that the operation of the treaty process must necessarily deprive the
customary norm of its separate applicability. Nor can the multilateral
treaty reservation be interpreted as meaning that, once applicable to a
given dispute, it would exclude the application of any rule of customary
international law the content of which was the same as, or analogous to,
that of the treaty-law rule which had caused the reservation to become
effective.
176. As regards the suggestion that the areas covered by the two sources of
law are identical, the Court observes that the United Nations Charter, the
convention to which most of the United States argument is directed, by no
means covers the whole area of the regulation of the use of force in
international relations. On one essential point, this treaty itself refers
to pre-existing customary international law; this reference to customary law
is contained in the actual text of Article 51, which mentions the "inherent
right" (in the French text the "droit naturel") of individual or collective
self-defence, which "nothing in the present Charter shall impair" and which
applies in the event of an armed attack. The Court therefore finds that
Article 51 of the Charter is only meaningful on the basis that there is a
"natural" or "inherent" right of self-defence, and it is hard to see how
this can be other than of a customary nature, even if its present content
has been confirmed and influenced by the Charter. Moreover the Charter,
having itself recognized the existence of this right, does not go on to
regulate directly all aspects of its content. For example, it does not
contain any specific rule whereby self-defence would warrant only measures
which are proportional to the armed attack and necessary to respond to it, a
rule well established in customary international law. Moreover, a definition
of the "armed attack" which, if found to exist, authorizes the exercise of
the "inherent right" of self-defence, is not provided in the Charter, and is
not part of treaty law. It cannot therefore be held that Article 51 is a
provision which "subsumes and supervenes" customary international law. It
rather demonstrates that in the field in question, the importance of which
for the present dispute need hardly be stressed, customary international law
continues to exist alongside treaty law. The areas governed by the two
sources of law thus do not overlap exactly, and the rules do not have the
same content. This could also be demonstrated for other subjects, in
particular for the principle of non-intervention.
177. But as observed above (paragraph 175), even if the customary norm and
the treaty norm were to have exactly the same content, this would not be a
reason for the Court to hold that the incorporation of the customary norm
into treaty-law must deprive the customary norm of its applicability as
distinct from that of the treaty norm. The existence of identical rules in
international treaty law and customary law has been clearly recognized by
the Court in the North Sea Continental Shelf cases. To a large extent, those
cases turned on the question whether a rule enshrined in a treaty also
existed as a customary rule, either because the treaty had merely codified
the custom, or caused it to "crystallize", or because it had influenced its
subsequent adoption. The Court found that this identity of content in treaty
law and in customary international law did not exist in the case of the rule
invoked, which appeared in one article of the treaty, but did not suggest
that such identity was debarred as a matter of principle: on the contrary,
it considered it to be clear that certain other articles of the treaty in
question "were... regarded as reflecting, or as crystallizing, received or
at least emergent rules of customary international law" (I.C.J. Reports
1969, p. 39, para. 63). More generally, there are no grounds for holding
that when customary international law is comprised of rules identical to
those of treaty law, the latter "supervenes" the former, so that the
customary international law has no further existence of its own.
178. There are a number of reasons for considering that, even if two norms
belonging to two sources of international law appear identical in content,
and even if the States in question are bound by these rules both on the
level of treaty-law and on that of customary international law, these norms
retain a separate existence. This is so from the standpoint of their
applicability. In a legal dispute affecting two States, one of them may
argue that the applicability of a treaty rule to its own conduct depends on
the other State's conduct in respect of the application of other rules, on
other subjects, also included in the same treaty. For example, if a State
exercises its right to terminate or suspend the operation of a treaty on the
ground of the violation by the other party of a "provision essential to the
accomplishment of the object or purpose of the treaty" (in the words of Art.
60, para. 3 (b), of the Vienna Convention on the Law of Treaties), it is
exempted, vis-a-vis the other State, from a rule of treaty-law because of
the breach by that other State of a different rule of treaty-law. But if the
two rules in question also exist as rules of customary international law,
the failure of the one State to apply the one rule does not justify the
other State in declining to apply the other rule. Rules which are identical
in treaty law and in customary international law are also distinguishable by
reference to the methods of interpretation and application. A State may
accept a rule contained in a treaty not simply because it favours the
application of the rule itself, but also because the treaty establishes what
that State regards as desirable institutions or mechanisms to ensure
implementation of the rule. Thus, if that rule parallels a rule of customary
international law, two rules of the same content are subject to separate
treatment as regards the organs competent to verify their implementation,
depending on whether they are customary rules or treaty rules. The present
dispute illustrates this point.
179. It will therefore be clear that customary international law continues
to exist and to apply, separately from international treaty law, even where
the two categories of law have an identical content. Consequently, in
ascertaining the content of the customary international law applicable to
the present dispute, the Court must satisfy itself that the Parties are
bound by the customary rules in question; but the Court is in no way bound
to uphold these rules only in so far as they differ from the treaty rules
which it is prevented by the United States reservation from applying in the
present dispute.
180. The United States however presented a further argument, during the
proceedings devoted to the question of jurisdiction and admissibility, in
support of its contention that the multilateral treaty reservation debars
the Court from considering the Nicaraguan claims based on customary
international law. The United States observed that the multilateral treaties
in question contain legal standards specifically agreed between the Parties
to govern their mutual rights and obligations, and that the conduct of the
Parties will continue to be governed by these treaties, irrespective of what
the Court may decide on the customary law issue, because of the principle of
pacta sunt servanda. Accordingly, in the contention of the United States,
the Court cannot properly adjudicate the mutual rights and obligations of
the two States when reference to their treaty rights and obligations is
barred; the Court would be adjudicating those rights and obligations by
standards other than those to which the Parties have agreed to conduct
themselves in their actual international relations.
181. The question raised by this argument is whether the provisions of the
multilateral treaties in question, particularly the United Nations Charter,
diverge from the relevant rules of customary international law to such an
extent that a judgment of the Court as to the rights and obligations of the
parties under customary law, disregarding the content of the multilateral
treaties binding on the parties, would be a wholly academic exercise, and
not "susceptible of any compliance or execution whatever" (Northern
Cameroons, I.C.J. Reports 1963, p. 37). The Court does not consider that
this is the case. As already noted, on the question of the use of force, the
United States itself argues for a complete identity of the relevant rules of
customary international law with the provisions of the Charter. The Court
has not accepted this extreme contention, having found that on a number of
points the areas governed by the two sources of law do not exactly overlap,
and the substantive rules in which they are framed are not identical in
content (paragraph 174 above). However, so far from having constituted a
marked departure from a customary international law which still exists
unmodified, the Charter gave expression in this field to principles already
present in customary international law, and that law has in the subsequent
four decades developed under the influence of the Charter, to such an extent
that a number of rules contained in the Charter have acquired a status
independent of it. The essential consideration is that both the Charter and
the customary international law flow from a common fundamental principle
outlawing the use of force in international relations. The differences which
may exist between the specific content of each are not, in the Court's view,
such as to cause a judgment confined to the field of customary international
law to be ineffective or inappropriate, or a judgment not susceptible of
compliance or execution.
182. The Court concludes that it should exercise the jurisdiction conferred
upon it by the United States declaration of acceptance under Article 36,
paragraph 2, of the Statute, to determine the claims of Nicaragua based upon
customary international law notwithstanding the exclusion from its
jurisdiction of disputes "arising under" the United Nations and Organization
of American States Charters.
183. In view of this conclusion, the Court has next to consider what are the
rules of customary international law applicable to the present dispute. For
this purpose, it has to direct its attention to the practice and opinio
juris of States; as the Court recently observed,
"It is of course axiomatic that the material of customary international law
is to be looked for primarily in the actual practice and opinio juris of
States, even though multilateral conventions may have an important role to
play in recording and defining rules deriving from custom, or indeed in
developing them." (Continental Shelf (Libyan Arab Jamahiriya/Malta), I.C.J.
Reports 1985, pp. 29-30, para. 27.)
In this respect the Court must not lose sight of the Charter of the United
Nations and that of the Organization of American States, notwithstanding the
operation of the multilateral treaty reservation. Although the Court has no
jurisdiction to determine whether the conduct of the United States
constitutes a breach of those conventions, it can and must take them into
account in ascertaining the content of the customary international law which
the United States is also alleged to have infringed.
184. The Court notes that there is in fact evidence, to be examined below,
of a considerable degree of agreement between the Parties as to the content
of the customary international law relating to the non-use of force and
non-intervention. This concurrence of their views does not however dispense
the Court from having itself to ascertain what rules of customary
international law are applicable. The mere fact that States declare their
recognition of certain rules is not sufficient for the Court to consider
these as being part of customary international law, and as applicable as
such to those States. Bound as it is by Article 38 of its Statute to apply,
inter alia, international custom "as evidence of a general practice accepted
as law", the Court may not disregard the essential role played by general
practice. Where two States agree to incorporate a particular rule in a
treaty, their agreement suffices to make that rule a legal one, binding upon
them; but in the field of customary international law, the shared view of
the Parties as to the content of what they regard as the rule is not enough.
The Court must satisfy itself that the existence of the rule in the opinio
juris of States is confirmed by practice.
185. In the present dispute, the Court, while exercising its jurisdiction
only in respect of the application of the customary rules of non-use of
force and non-intervention, cannot disregard the fact that the Parties are
bound by these rules as a matter of treaty law and of customary
international law. Furthermore, in the present case, apart from the treaty
commitments binding the Parties to the rules in question, there are various
instances of their having expressed recognition of the validity thereof as
customary international law in other ways. It is therefore in the light of
this "subjective element" -- the expression used by the Court in its 1969
Judgment in the North Sea Continental Shelf cases (I.C.J. Reports 1969, p.
44) -- that the Court has to appraise the relevant practice.
186. It is not to be expected that in the practice of States the application
of the rules in question should have been perfect, in the sense that States
should have refrained, with complete consistency, from the use of force or
from intervention in each other's internal affairs. The Court does not
consider that, for a rule to be established as customary, the corresponding
practice must be in absolutely rigorous conformity with the rule. In order
to deduce the existence of customary rules, the Court deems it sufficient
that the conduct of States should, in general, be consistent with such
rules, and that instances of State conduct inconsistent with a given rule
should generally have been treated as breaches of that rule, not as
indications of the recognition of a new rule. If a State acts in a way prima
facie incompatible with a recognized rule, but defends its conduct by
appealing to exceptions or justifications contained within the rule itself,
then whether or not the State's conduct is in fact justifiable on that
basis, the significance of that attitude is to confirm rather than to weaken
the rule.
187. The Court must therefore determine, first, the substance of the
customary rules relating to the use of force in international relations,
applicable to the dispute submitted to it. The United States has argued
that, on this crucial question of the lawfulness of the use of force in
inter-State relations, the rules of general and customary international law,
and those of the United Nations Charter, are in fact identical. In its view
this identity is so complete that, as explained above (paragraph 173), it
constitutes an argument to prevent the Court from applying this customary
law, because it is indistinguishable from the multilateral treaty law which
it may not apply. In its Counter-Memorial on jurisdiction and admissibility
the United States asserts that "Article 2 (4) of the Charter is customary
and general international law". It quotes with approval an observation by
the International Law Commission to the effect that
"the great majority of international lawyers today unhesitatingly hold that
Article 2, paragraph 4, together with other provisions of the Charter,
authoritatively declares the modern customary law regarding the threat or
use of force" (ILC Yearbook, 1966, Vol. II, p. 247).
The United States points out that Nicaragua has endorsed this view, since
one of its counsel asserted that "indeed it is generally considered by
publicists that Article 2, paragraph 4, of the United Nations Charter is in
this respect an embodiment of existing general principles of international
law". And the United States concludes:
"In sum, the provisions of Article 2 (4) with respect to the lawfulness of
the use of force are 'modern customary law' (International Law Commission,
loc. cit.) and the 'embodiment of general principles of international law'
(counsel for Nicaragua, Hearing of 25 April 1984, morning, loc. cit.). There
is no other "customary and general international law' on which Nicaragua can
rest its claims."
"It is, in short, inconceivable that this Court could consider the
lawfulness of an alleged use of armed force without referring to the
principal source of the relevant international law -- Article 2 (4) of the
United Nations Charter."
As for Nicaragua, the only noteworthy shade of difference in its view lies
in Nicaragua's belief that
"in certain cases the rule of customary law will not necessarily be
identical in content and mode of application to the conventional rule".
188. The Court thus finds that both Parties take the view that the
principles as to the use of force incorporated in the United Nations Charter
correspond, in essentials, to those found in customary international law.
The Parties thus both take the view that the fundamental principle in this
area is expressed in the terms employed in Article 2, paragraph 4, of the
United Nations Charter. They therefore accept a treaty-law obligation to
refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any State, or
in any other manner inconsistent with the purposes of the United Nations.
The Court has however to be satisfied that there exists in customary
international law an opinio juris as to the binding character of such
abstention. This opinio juris may, though with all due caution, be deduced
from, inter alia, the attitude of the Parties and the attitude of States
towards certain General Assembly resolutions, and particularly resolution
2625 (XXV) entitled "Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance
with the Charter of the United Nations". The effect of consent to the text
of such resolutions cannot be understood as merely that of a "reiteration or
elucidation" of the treaty commitment undertaken in the Charter. On the
contrary, it may be understood as an acceptance of the validity of the rule
or set of rules declared by the resolution by themselves. The principle of
non-use of force, for example, may thus be regarded as a principle of
customary international law, not as such conditioned by provisions relating
to collective security, or to the facilities or armed contingents to be
provided under Article 43 of the Charter. It would therefore seem apparent
that the attitude referred to expresses an opinio juris respecting such rule
(or set of rules), to be thenceforth treated separately from the provisions,
especially those of an institutional kind, to which it is subject on the
treaty-law plane of the Charter.
189. As regards the United States in particular, the weight of an expression
of opinio juris can similarly be attached to its support of the resolution
of the Sixth International Conference of American States condemning
aggression (18 February 1928) and ratification of the Montevideo Convention
on Rights and Duties of States (26 December 1933), Article 11 of which
imposes the obligation not to recognize territorial acquisitions or special
advantages which have been obtained by force. Also significant is United
States acceptance of the principle of the prohibition of the use of force
which is contained in the declaration on principles governing the mutual
relations of States participating in the Conference on Security and
Co-operation in Europe (Helsinki, 1 August 1975), whereby the participating
States undertake to "refrain in their mutual relations, as well as in their
international relations in general," (emphasis added) from the threat or use
of force. Acceptance of a text in these terms confirms the existence of an
opinio juris of the participating States prohibiting the use of force in
international relations.
190. A further confirmation of the validity as customary international law
of the principle of the prohibition of the use of force expressed in Article
2, paragraph 4, of the Charter of the United Nations may be found in the
fact that it is frequently referred to in statements by State
representatives as being not only a principle of customary international law
but also a fundamental or cardinal principle of such law. The International
Law Commission, in the course of its work on the codification of the law of
treaties, expressed the view that "the law of the Charter concerning the
prohibition of the use of force in itself constitutes a conspicuous example
of a rule in international law having the character of jus cogens"
(paragraph (1) of the commentary of the Commission to Article 50 of its
draft Articles on the Law of Treaties, ILC Yearbook, 1966-II, p. 247).
Nicaragua in its Memorial on the Merits submitted in the present case states
that the principle prohibiting the use of force embodied in Article 2,
paragraph 4, of the Charter of the United Nations "has come to be recognized
as jus cogens". The United States, in its Counter-Memorial on the questions
of jurisdiction and admissibility, found it material to quote the views of
scholars that this principle is a "universal norm", a "universal
international law", a "universally recognized principle of international
law", and a "principle of jus cogens".
191. As regards certain particular aspects of the principle in question, it
will be necessary to distinguish the most grave forms of the use of force
(those constituting an armed attack) from other less grave forms. In
determining the legal rule which applies to these latter forms, the Court
can again draw on the formulations contained in the Declaration on
Principles of International Law concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the United
Nations (General Assembly resolution 2625 (XXV), referred to above). As
already observed, the adoption by States of this text affords an indication
of their opinio juris as to customary international law on the question.
Alongside certain descriptions which may refer to aggression, this text
includes others which refer only to less grave forms of the use of force. In
particular, according to this resolution:
"Every State has the duty to refrain from the threat or use of force to
violate the existing international boundaries of another State or as a means
of solving international disputes, including territorial disputes and
problems concerning frontiers of States.
. . . .
States have a duty to refrain from acts of reprisal involving the use of
force.
. . . .
Every State has the duty to refrain from any forcible action which deprives
peoples referred to in the elaboration of the principle of equal rights and
self-determination of that right to self-determination and freedom and
independence.
Every State has the duty to refrain from organizing or encouraging the
organization of irregular forces or armed bands, including mercenaries, for
incursion into the territory of another State.
Every State has the duty to refrain from organizing, instigating, assisting
or participating in acts of civil strife or terrorist acts in another State
or acquiescing in organized activities within its territory directed towards
the commission of such acts, when the acts referred to in the present
paragraph involve a threat or use of force."
192. Moreover, in the part of this same resolution devoted to the principle
of non-intervention in matters within the national jurisdiction of States, a
very similar rule is found:
"Also, no State shall organize, assist, foment, finance, incite or tolerate
subversive, terrorist or armed activities directed towards the violent
overthrow of the regime of another State, or interfere in civil strife in
another State."
In the context of the inter-American system, this approach can be traced
back at least to 1928 (Convention on the Rights and Duties of States in the
Event of Civil Strife, Art. 1 (1)); it was confirmed by resolution 78
adopted by the General Assembly of the Organization of American States on 21
April 1972. The operative part of this resolution reads as follows:
"The General Assembly Resolves:
1. To reiterate solemnly the need for the member states of the Organization
to observe strictly the principles of nonintervention and self-determination
of peoples as a means of ensuring peaceful coexistence among them and to
refrain from committing any direct or indirect act that might constitute a
violation of those principles.
2. To reaffirm the obligation of those states to refrain from applying
economic, political, or any other type of measures to coerce another state
and obtain from it advantages of any kind.
3. Similarly, to reaffirm the obligation of these states to refrain from
organizing, supporting, promoting, financing, instigating, or tolerating
subversive, terrorist, or armed activities against another state and from
intervening in a civil war in another state or in its internal struggles."
193. The general rule prohibiting force allows for certain exceptions. In
view of the arguments advanced by the United States to justify the acts of
which it is accused by Nicaragua, the Court must express a view on the
content of the right of self-defence, and more particularly the right of
collective self-defence. First, with regard to the existence of this right,
it notes that in the language of Article 51 of the United Nations Charter,
the inherent right (or "droit naturel") which any State possesses in the
event of an armed attack, covers both collective and individual
self-defence. Thus, the Charter itself testifies to the existence of the
right of collective self-defence in customary international law. Moreover,
just as the wording of certain General Assembly declarations adopted by
States demonstrates their recognition of the principle of the prohibition of
force as definitely a matter of customary international law, some of the
wording in those declarations operates similarly in respect of the right of
self-defence (both collective and individual). Thus, in the declaration
quoted above on the Principles of International Law concerning Friendly
Relations and Cooperation among States in accordance with the Charter of the
United Nations, the reference to the prohibition of force is followed by a
paragraph stating that:
"nothing in the foregoing paragraphs shall be construed as enlarging or
diminishing in any way the scope of the provisions of the Charter concerning
cases in which the use of force is lawful".
This resolution demonstrates that the States represented in the General
Assembly regard the exception to the prohibition of force constituted by the
right of individual or collective self-defence as already a matter of
customary international law.
194. With regard to the characteristics governing the right of self-defence,
since the Parties consider the existence of this right to be established as
a matter of customary international law, they have concentrated on the
conditions governing its use. In view of the circumstances in which the
dispute has arisen, reliance is placed by the Parties only on the right of
self-defence in the case of an armed attack which has already occurred, and
the issue of the lawfulness of a response to the imminent threat of armed
attack has not been raised. Accordingly the Court expresses no view on that
issue. The Parties also agree in holding that whether the response to the
attack is lawful depends on observance of the criteria of the necessity and
the proportionality of the measures taken in self-defence. Since the
existence of the right of collective self-defence is established in
customary international law, the Court must define the specific conditions
which may have to be met for its exercise, in addition to the conditions of
necessity and proportionality to which the Parties have referred.
195. In the case of individual self-defence, the exercise of this right is
subject to the State concerned having been the victim of an armed attack.
Reliance on collective self-defence of course does not remove the need for
this. There appears now to be general agreement on the nature of the acts
which can be treated as constituting armed attacks. In particular, it may be
considered to be agreed that an armed attack must be understood as including
not merely action by regular armed forces across an international border,
but also "the sending by or on behalf of a State of armed bands, groups,
irregulars or mercenaries, which carry out acts of armed force against
another State of such gravity as to amount to" (inter alia) an actual armed
attack conducted by regular forces, "or its substantial involvement
therein". This description, contained in Article 3, paragraph (g), of the
Definition of Aggression annexed to General Assembly resolution 3314 (XXIX),
may be taken to reflect customary international law. The Court sees no
reason to deny that, in customary law, the prohibition of armed attacks may
apply to the sending by a State of armed bands to the territory of another
State, if such an operation, because of its scale and effects, would have
been classified as an armed attack rather than as a mere frontier incident
had it been carried out by regular armed forces. But the Court does not
believe that the concept of "armed attack" includes not only acts by armed
bands where such acts occur on a significant scale but also assistance to
rebels in the form of the provision of weapons or logistical or other
support. Such assistance may be regarded as a threat or use of force, or
amount to intervention in the internal or external affairs of other States.
It is also clear that it is the State which is the victim of an armed attack
which must form and declare the view that it has been so attacked. There is
no rule in customary international law permitting another State to exercise
the right of collective self-defence on the basis of its own assessment of
the situation. Where collective self-defence is invoked, it is to be
expected that the State for whose benefit this right is used will have
declared itself to be the victim of an armed attack.
196. The question remains whether the lawfulness of the use of collective
self-defence by the third State for the benefit of the attacked State also
depends on a request addressed by that State to the third State. A provision
of the Charter of the Organization of American States is here in point: and
while the Court has no jurisdiction to consider that instrument as
applicable to the dispute, it may examine it to ascertain what light it
throws on the content of customary international law. The Court notes that
the Organization of American States Charter includes, in Article 3 (f), the
principle that: "an act of aggression against one American State is an act
of aggression against all the other American States" and a provision in
Article 27 that:
"Every act of aggression by a State against the territorial integrity or the
inviolability of the territory or against the sovereignty or political
independence of an American State shall be considered an act of aggression
against the other American States."
197. Furthermore, by Article 3, paragraph 1, of the Inter-American Treaty of
Reciprocal Assistance, signed at Rio de Janeiro on 2 September 1947, the
High-Contracting Parties
"agree that an armed attack by any State against an American State shall be
considered as an attack against all the American States and, consequently,
each one of the said Contracting Parties undertakes to assist in meeting the
attack in the exercise of the inherent right of individual or collective
self-defence recognized by Article 51 of the Charter of the United Nations";
and under paragraph 2 of that Article,
"On the request of the State or States directly attacked and until the
decision of the Organ of Consultation of the Inter-American System, each one
of the Contracting Parties may determine the immediate measures which it may
individually take in fulfilment of the obligation contained in the preceding
paragraph and in accordance with the principle of continental solidarity."
(The 1947 Rio Treaty was modified by the 1975 Protocol of San Jose, Costa
Rica, but that Protocol is not yet in force.)
198. The Court observes that the Treaty of Rio de Janeiro provides that
measures of collective self-defence taken by each State are decided "on the
request of the State or States directly attacked". It is significant that
this requirement of a request on the part of the attacked State appears in
the treaty particularly devoted to these matters of mutual assistance; it is
not found in the more general text (the Charter of the Organization of
American States), but Article 28 of that Charter provides for the
application of the measures and procedures laid down in "the special
treaties on the subject".
199. At all events, the Court finds that in customary international law,
whether of a general kind or that particular to the inter-American legal
system, there is no rule permitting the exercise of collective self-defence
in the absence of a request by the State which regards itself as the victim
of an armed attack. The Court concludes that the requirement of a request by
the State which is the victim of the alleged attack is additional to the
requirement that such a State should have declared itself to have been
attacked.
200. At this point, the Court may consider whether in customary
international law there is any requirement corresponding to that found in
the treaty law of the United Nations Charter, by which the State claiming to
use the right of individual or collective self-defence must report to an
international body, empowered to determine the conformity with international
law of the measures which the State is seeking to justify on that basis.
Thus Article 51 of the United Nations Charter requires that measures taken
by States in exercise of this right of self-defence must be "immediately
reported" to the Security Council. As the Court has observed above
(paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in
customary international law, may well be so unencumbered with the conditions
and modalities surrounding it in the treaty. Whatever influence the Charter
may have had on customary international law in these matters, it is clear
that in customary international law it is not a condition of the lawfulness
of the use of force in self-defence that a procedure so closely dependent on
the content of a treaty commitment and of the institutions established by
it, should have been followed. On the other hand, if self-defence is
advanced as a justification for measures which would otherwise be in breach
both of the principle of customary international law and of that contained
in the Charter, it is to be expected that the conditions of the Charter
should be respected. Thus for the purpose of enquiry into the customary law
position, the absence of a report may be one of the factors indicating
whether the State in question was itself convinced that it was acting in
self-defence.
201. To justify certain activities involving the use of force, the United
States has relied solely on the exercise of its right of collective
self-defence. However the Court, having regard particularly to the
non-participation of the United States in the merits phase, considers that
it should enquire whether customary international law, applicable to the
present dispute, may contain other rules which may exclude the unlawfulness
of such activities. It does not, however, see any need to reopen the
question of the conditions governing the exercise of the right of individual
self-defence, which have already been examined in connection with collective
self-defence. On the other hand, the Court must enquire whether there is any
justification for the activities in question, to be found not in the right
of collective self-defence against an armed attack, but in the right to take
counter-measures in response to conduct of Nicaragua which is not alleged to
constitute an armed attack. It will examine this point in connection with an
analysis of the principle of non-intervention in customary international
law.
202. The principle of non-intervention involves the right of every sovereign
State to conduct its affairs without outside interference; though examples
of trespass against this principle are not infrequent, the Court considers
that it is part and parcel of customary international law. As the Court has
observed: "Between independent States, respect for territorial sovereignty
is an essential foundation of international relations" (I.C.J. Reports 1949,
p. 35), and international law requires political integrity also to be
respected. Expressions of an opinio juris regarding the existence of the
principle of non-intervention in customary international law are numerous
and not difficult to find. Of course, statements whereby States avow their
recognition of the principles of international law set forth in the United
Nations Charter cannot strictly be interpreted as applying to the principle
of non-intervention by States in the internal and external affairs of other
States, since this principle is not, as such, spelt out in the Charter. But
it was never intended that the Charter should embody written confirmation of
every essential principle of international law in force. The existence in
the opinio juris of States of the principle of non-intervention is backed by
established and substantial practice. It has moreover been presented as a
corollary of the principle of the sovereign equality of States. A particular
instance of this is General Assembly resolution 2625 (XXV), the Declaration
on the Principles of International Law concerning Friendly Relations and
Co-operation among States. In the Corfu Channel case, when a State claimed a
right of intervention in order to secure evidence in the territory of
another State for submission to an international tribunal (I.C.J. Reports
1949, p. 34), the Court observed that:
"the alleged right of intervention as the manifestation of a policy of
force, such as has, in the past, given rise to most serious abuses and such
as cannot, whatever be the present defects in international organization,
find a place in international law. Intervention is perhaps still less
admissible in the particular form it would take here; for, from the nature
of things, it would be reserved for the most powerful States, and might
easily lead to perverting the administration of international justice
itself." (I.C.J. Reports 1949, p. 35.)
203. The principle has since been reflected in numerous declarations adopted
by international organizations and conferences in which the United States
and Nicaragua have participated, e.g., General Assembly resolution 2131
(XX), the Declaration on the Inadmissibility of Intervention in the Domestic
Affairs of States and the Protection of their Independence and Sovereignty.
It is true that the United States, while it voted in favour of General
Assembly resolution 2131 (XX), also declared at the time of its adoption in
the First Committee that it considered the declaration in that resolution to
be "only a statement of political intention and not a formulation of law"
(Official Records of the General Assembly, Twentieth Session, First
Committee, A/C.1/SR.1423, p. 436). However, the essentials of resolution
2131 (XX) are repeated in the Declaration approved by resolution 2625 (XXV),
which set out principles which the General Assembly declared to be "basic
principles" of international law, and on the adoption of which no analogous
statement was made by the United States representative.
204. As regards inter-American relations, attention may be drawn to, for
example, the United States reservation to the Montevideo Convention on
Rights and Duties of States (26 December 1933), declaring the opposition of
the United States Government to "interference with the freedom, the
sovereignty or other internal affairs, or processes of the Governments of
other nations"; or the ratification by the United States of the Additional
Protocol relative to Non-Intervention (23 December 1936). Among more recent
texts, mention may be made of resolutions AG/RES.78 and AG/RES. 128 of the
General Assembly of the Organization of American States. In a different
context, the United States expressly accepted the principles set forth in
the declaration, to which reference has already been made, appearing in the
Final Act of the Conference on Security and Co-operation in Europe
(Helsinki, 1 August 1975), including an elaborate statement of the principle
of non-intervention; while these principles were presented as applying to
the mutual relations among the participating States, it can be inferred that
the text testifies to the existence, and the acceptance by the United
States, of a customary principle which has universal application.
205. Notwithstanding the multiplicity of declarations by States accepting
the principle of non-intervention, there remain two questions: first, what
is the exact content of the principle so accepted, and secondly, is the
practice sufficiently in conformity with it for this to be a rule of
customary international law ? As regards the first problem -- that of the
content of the principle of non-intervention -- the Court will define only
those aspects of the principle which appear to be relevant to the resolution
of the dispute. In this respect it notes that, in view of the generally
accepted formulations, the principle forbids all States or groups of States
to intervene directly or indirectly in internal or external affairs of other
States. A prohibited intervention must accordingly be one bearing on matters
in which each State is permitted, by the principle of State sovereignty, to
decide freely. One of these is the choice of a political, economic, social
and cultural system, and the formulation of foreign policy. Intervention is
wrongful when it uses methods of coercion in regard to such choices, which
must remain free ones. The element of coercion, which defines, and indeed
forms the very essence of, prohibited intervention, is particularly obvious
in the case of an intervention which uses force, either in the direct form
of military action, or in the indirect form of support for subversive or
terrorist armed activities within another State. As noted above (paragraph
191), General Assembly resolution 2625 (XXV) equates assistance of this kind
with the use of force by the assisting State when the acts committed in
another State "involve a threat or use of force". These forms of action are
therefore wrongful in the light of both the principle of non-use of force,
and that of non-intervention. In view of the nature of Nicaragua's
complaints against the United States, and those expressed by the United
States in regard to Nicaragua's conduct towards El Salvador, it is primarily
acts of intervention of this kind with which the Court is concerned in the
present case.
206. However, before reaching a conclusion on the nature of prohibited
intervention, the Court must be satisfied that State practice justifies it.
There have been in recent years a number of instances of foreign
intervention for the benefit of forces opposed to the government of another
State. The Court is not here concerned with the process of decolonization;
this question is not in issue in the present case. It has to consider
whether there might be indications of a practice illustrative of belief in a
kind of general right for States to intervene, directly or indirectly, with
or without armed force, in support of an internal opposition in another
State, whose cause appeared particularly worthy by reason of the political
and moral values with which it was identified. For such a general right to
come into existence would involve a fundamental modification of the
customary law principle of non-intervention.
207. In considering the instances of the conduct above described, the Court
has to emphasize that, as was observed in the North Sea Continental Shelf
cases, for a new customary rule to be formed, not only must the acts
concerned "amount to a settled practice", but they must be accompanied by
the opinio juris sive necessitatis. Either the States taking such action or
other States in a position to react to it. must have behaved so that their
conduct is
"evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it. The need for such a belief, i.e.,
the existence of a subjective element, is implicit in the very notion of the
opinio juris sive necessitatis." (I.C.J. Reports 1969, p. 44, para. 77.)
The Court has no jurisdiction to rule upon the conformity with international
law of any conduct of States not parties to the present dispute, or of
conduct of the Parties unconnected with the dispute; nor has it authority to
ascribe to States legal views which they do not themselves advance. The
significance for the Court of cases of State conduct prima facie
inconsistent with the principle of non-intervention lies in the nature of
the ground offered as justification. Reliance by a State on a novel right or
an unprecedented exception to the principle might, if shared in principle by
other States, tend towards a modification of customary international law. In
fact however the Court finds that States have not justified their conduct by
reference to a new right of intervention or a new exception to the principle
of its prohibition. The United States authorities have on some occasions
clearly stated their grounds for intervening in the affairs of a foreign
State for reasons connected with, for example, the domestic policies of that
country, its ideology, the level of its armaments, or the direction of its
foreign policy. But these were statements of international policy, and not
an assertion of rules of existing international law.
208. In particular, as regards the conduct towards Nicaragua which is the
subject of the present case, the United States has not claimed that its
intervention, which it justified in this way on the political level, was
also justified on the legal level, alleging the exercise of a new right of
intervention regarded by the United States as existing in such
circumstances. As mentioned above, the United States has, on the legal
plane, justified its intervention expressly and solely by reference to the
"classic" rules involved, namely, collective self-defence against an armed
attack. Nicaragua, for its part, has often expressed its solidarity and
sympathy with the opposition in various States, especially in El Salvador.
But Nicaragua too has not argued that this was a legal basis for an
intervention, let alone an intervention involving the use of force.
209. The Court therefore finds that no such general right of intervention,
in support of an opposition within another State, exists in contemporary
international law. The Court concludes that acts constituting a breach of
the customary principle of non-intervention will also, if they directly or
indirectly involve the use of force, constitute a breach of the principle of
non-use of force in international relations.
210. When dealing with the rule of the prohibition of the use of force, the
Court considered the exception to it constituted by the exercise of the
right of collective self-defence in the event of armed attack. Similarly, it
must now consider the following question: if one State acts towards another
State in breach of the principle of non-intervention, may a third State
lawfully take such action by way of counter-measures against the first State
as would otherwise constitute an intervention in its internal affairs ? A
right to act in this way in the case of intervention would be analogous to
the right of collective self-defence in the case of an armed attack, but
both the act which gives rise to the reaction, and that reaction itself,
would in principle be less grave. Since the Court is here dealing with a
dispute in which a wrongful use of force is alleged, it has primarily to
consider whether a State has a right to respond to intervention with
intervention going so far as to justify a use of force in reaction to
measures which do not constitute an armed attack but may nevertheless
involve a use of force. The question is itself undeniably relevant from the
theoretical viewpoint. However, since the Court is bound to confine its
decision to those points of law which are essential to the settlement of the
dispute before it, it is not for the Court here to determine what direct
reactions are lawfully open to a State which considers itself the victim of
another State's acts of intervention, possibly involving the use of force.
Hence it has not to determine whether, in the event of Nicaragua's having
committed any such acts against El Salvador, the latter was lawfully
entitled to take any particular counter-measure. It might however be
suggested that, in such a situation, the United States might have been
permitted to intervene in Nicaragua in the exercise of some right analogous
to the right of collective self-defence, one which might be resorted to in a
case of intervention short of armed attack.
211. The Court has recalled above (paragraphs 193 to 195) that for one State
to use force against another, on the ground that that State has committed a
wrongful act of force against a third State, is regarded as lawful, by way
of exception, only when the wrongful act provoking the response was an armed
attack. Thus the lawfulness of the use of force by a State in response to a
wrongful act of which it has not itself been the victim is not admitted when
this wrongful act is not an armed attack. In the view of the Court, under
international law in force today -- whether customary international law or
that of the United Nations system -- States do not have a right of
"collective" armed response to acts which do not constitute an "armed
attack". Furthermore, the Court has to recall that the United States itself
is relying on the "inherent right of self-defence" (paragraph 126 above),
but apparently does not claim that any such right exists as would, in
respect of intervention, operate in the same way as the right of collective
self-defence in respect of an armed attack. In the discharge of its duty
under Article 53 of the Statute, the Court has nevertheless had to consider
whether such a right might exist; but in doing so it may take note of the
absence of any such claim by the United States as an indication of opinio
juris.
212. The Court should now mention the principle of respect for State
sovereignty, which in international law is of course closely linked with the
principles of the prohibition of the use of force and of non-intervention.
The basic legal concept of State sovereignty in customary international law,
expressed in. inter alia, Article 2, paragraph 1, of the United Nations
Charter, extends to the internal waters and territorial sea of every State
and to the air space above its territory. As to superjacent air space, the
1944 Chicago Convention on Civil Aviation (Art. 1) reproduces the
established principle of the complete and exclusive sovereignty of a State
over the air space above its territory. That convention, in conjunction with
the 1958 Geneva Convention on the Territorial Sea, further specifies that
the sovereignty of the coastal State extends to the territorial sea and to
the air space above it, as does the United Nations Convention on the Law of
the Sea adopted on 10 December 1982. The Court has no doubt that these
prescriptions of treaty-law merely respond to firmly established and
longstanding tenets of customary international law.
213. The duty of every State to respect the territorial sovereignty of
others is to be considered for the appraisal to be made of the facts
relating to the mining which occurred along Nicaragua's coasts. The legal
rules in the light of which these acts of mining should be judged depend
upon where they took place. The laying of mines within the ports of another
State is governed by the law, relating to internal waters, which are subject
to the sovereignty of the coastal State. The position is similar as regards
mines placed in the territorial sea. It is therefore the sovereignty of the
coastal State which is affected in such cases. It is also by virtue of its
sovereignty that the coastal State may regulate access to its ports.
214. On the other hand, it is true that in order to enjoy access to ports,
foreign vessels possess a customary right of innocent passage in territorial
waters for the purposes of entering or leaving internal waters; Article 18,
paragraph 1 (b), of the United Nations Convention on the Law of the Sea of
10 December 1982, does no more than codify customary international law on
this point. Since freedom of navigation is guaranteed, first in the
exclusive economic zones which may exist beyond territorial waters (Art. 58
of the Convention), and secondly, beyond territorial waters and on the high
seas (Art. 87), it follows that any State which enjoys a right of access to
ports for its ships also enjoys all the freedom necessary for maritime
navigation. It may therefore be said that, if this right of access to the
port is hindered by the laying of mines by another State, what is infringed
is the freedom of communications and of maritime commerce. At all events, it
is certain that interference with navigation in these areas prejudices both
the sovereignty of the coastal State over its internal waters, and the right
of free access enjoyed by foreign ships.
215. The Court has noted above (paragraph 77 in fine) that the United States
did not issue any warning or notification of the presence of the mines which
had been laid in or near the ports of Nicaragua. Yet even in time of war,
the Convention relative to the laying of automatic submarine contact mines
of 18 October 1907 (the Hague Convention No. VIII) provides that "every
possible precaution must be taken for the security of peaceful shipping" and
belligerents are bound
"to notify the danger zones as soon as military exigencies permit, by a
notice addressed to ship owners, which must also be communicated to the
Governments through the diplomatic channel" (Art. 3).
Neutral Powers which lay mines off their own coasts must issue a similar
notification, in advance (Art. 4). It has already been made clear above that
in peacetime for one State to lay mines in the internal or territorial
waters of another is an unlawful act; but in addition, if a State lays mines
in any waters whatever in which the vessels of another State have rights of
access or passage, and fails to give any warning or notification whatsoever,
in disregard of the security of peaceful shipping, it commits a breach of
the principles of humanitarian law underlying the specific provisions of
Convention No. VIII of 1907. Those principles were expressed by the Court in
the Corfu Channel case as follows:
"certain general and well recognized principles, namely: elementary
considerations of humanity, even more exacting in peace than in war" (I.C.J.
Reports 1949, p. 22).
216. This last consideration leads the Court on to examination of the
international humanitarian law applicable to the dispute. Clearly, use of
force may in some circumstances raise questions of such law. Nicaragua has
in the present proceedings not expressly invoked the provisions of
international humanitarian law as such, even though, as noted above
(paragraph 113), it has complained of acts committed on its territory which
would appear to be breaches of the provisions of such law. In the
submissions in its Application it has expressly charged
"That the United States, in breach of its obligation under general and
customary international law, has killed, wounded and kidnapped and is
killing, wounding and kidnapping citizens of Nicaragua." (Application, 26
(f).)
The Court has already indicated (paragraph 115) that the evidence available
is insufficient for the purpose of attributing to the United States the acts
committed by the contras in the course of their military or paramilitary
operations in Nicaragua; accordingly, this submission has to be rejected.
The question however remains of the law applicable to the acts of the United
States in relation to the activities of the contras, in particular the
production and dissemination of the manual on psychological operations
described in paragraphs 117 to 122 above; as already explained (paragraph
116), this is a different question from that of the violations of
humanitarian law of which the contras may or may not have been guilty.
217. The Court observes that Nicaragua, which has invoked a number of
multilateral treaties, has refrained from making reference to the four
Geneva Conventions of 12 August 1949, to which both Nicaragua and the United
States are parties. Thus at the time when the Court was seised of the
dispute, that dispute could be considered not to "arise", to use the wording
of the United States multilateral treaty reservation, under any of these
Geneva Conventions. The Court did not therefore have to consider whether
that reservation might be a bar to the Court treating the relevant
provisions of these Conventions as applicable. However, if the Court were on
its own initiative to find it appropriate to apply these Conventions, as
such, for the settlement of the dispute, it could be argued that the Court
would be treating it as a dispute "arising" under them; on that basis, it
would have to consider whether any State party to those Conventions would be
"affected" by the decision, for the purposes of the United States
multilateral treaty reservation.
218. The Court however sees no need to take a position on that matter, since
in its view the conduct of the United States may be judged according to the
fundamental general principles of humanitarian law; in its view, the Geneva
Conventions are in some respects a development, and in other respects no
more than the expression, of such principles. It is significant in this
respect that, according to the terms of the Conventions, the denunciation of
one of them
"shall in no way impair the obligations which the Parties to the conflict
shall remain bound to fulfil by virtue of the principles of the law of
nations, as they result from the usages established among civilized peoples,
from the laws of humanity and the dictates of the public conscience"
(Convention I, Art. 63; Convention II, Art. 62; Convention III, Art. 142;
Convention IV, Art. 158).
Article 3 which is common to all four Geneva Conventions of 12 August 1949
defines certain rules to be applied in the armed conflicts of a
non-international character. There is no doubt that, in the event of
international armed conflicts, these rules also constitute a minimum
yardstick, in addition to the more elaborate rules which are also to apply
to international conflicts; and they are rules which, in the Court's
opinion, reflect what the Court in 1949 called "elementary considerations of
humanity" (Corfu Channel, Merits, I.C.J. Reports 1949, p. 22; paragraph 215
above). The Court may therefore find them applicable to the present dispute,
and is thus not required to decide what role the United States multilateral
treaty reservation might otherwise play in regard to the treaties in
question.
219. The conflict between the contras' forces and those of the Government of
Nicaragua is an armed conflict which is "not of an international character".
The acts of the contras towards the Nicaraguan Government are therefore
governed by the law applicable to conflicts of that character; whereas the
actions of the United States in and against Nicaragua fall under the legal
rules relating to international conflicts. Because the minimum rules
applicable to international and to non-international conflicts are
identical, there is no need to address the question whether those actions
must be looked at in the context of the rules which operate for the one or
for the other category of conflict. The relevant principles are to be looked
for in the provisions of Article 3 of each of the four Conventions of 12
August 1949, the text of which, identical in each Convention, expressly
refers to conflicts not having an international character.
220. The Court considers that there is an obligation on the United States
Government, in the terms of Article 1 of the Geneva Conventions, to
"respect" the Conventions and even "to ensure respect" for them "in all
circumstances", since such an obligation does not derive only from the
Conventions themselves, but from the general principles of humanitarian law
to which the Conventions merely give specific expression. The United States
is thus under an obligation not to encourage persons or groups engaged in
the conflict in Nicaragua to act in violation of the provisions of Article 3
common to the four 1949 Geneva Conventions, which reads as follows:
"In the case of armed conflict not of an international character occurring
in the territory of one of the High Contracting Parties, each Party to the
conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of
armed forces who have laid down their arms and those placed hors de combat
by sickness, wounds, detention, or any other cause, shall in all
circumstances be treated humanely, without any adverse distinction founded
on race, colour, religion or faith, sex, birth or wealth, or any other
similar criteria.
To this end, the following acts are and shall remain prohibited at any time
and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and degrading
treatment;
(d) the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court affording all
the judicial guarantees which are recognized as indispensable by civilized
peoples. (2) The wounded and sick shall be collected and cared for . . .
The Parties to the conflict should further endeavour to bring into force, by
means of special agreements, all or part of the other provisions of the
present Convention . . ."
221. In its Judgment of 26 November 1984, the Court concluded that, in so
far as the claims presented in Nicaragua's Application revealed the
existence of a dispute as to the interpretation or application of the
Articles of the 1956 Treaty of Friendship, Commerce and Navigation between
the Parties mentioned in paragraph 82 of that Judgment (that is, Arts. XIX,
XIV, XVII, XX, I), it had jurisdiction to deal with them under Article XXIV,
paragraph 2, of that Treaty. Having thus established its jurisdiction to
entertain the dispute between the Parties in respect of the interpretation
and application of the Treaty in question, the Court must determine the
meaning of the various provisions which are relevant for its judgment. In
this connection, the Court has in particular to ascertain the scope of
Article XXI, paragraphs 1 (c) and 1 (d), of the Treaty. According to that
clause
"the present Treaty shall not preclude the application of measures: . . . .
(c) regulating the production of or traffic in arms, ammunition and
implements of war, or traffic in other materials carried on directly or
indirectly for the purpose of supplying a military establishment;
(d) necessary to fulfill the obligations of a Party for the maintenance or
restoration of international peace and security, or necessary to protect its
essential security interests".
In the Spanish text of the Treaty (equally authentic with the English text)
the last phrase is rendered as "sus intereses esenciales y seguridad".
222. This article cannot be interpreted as removing the present dispute as
to the scope of the Treaty from the Court's jurisdiction. Being itself an
article of the Treaty, it is covered by the provision in Article XXIV that
any dispute about the "interpretation or application" of the Treaty lies
within the Court's jurisdiction. Article XXI defines the instances in which
the Treaty itself provides for exceptions to the generality of its other
provisions, but it by no means removes the interpretation and application of
that article from the jurisdiction of the Court as contemplated in Article
XXIV. That the Court has jurisdiction to determine whether measures taken by
one of the Parties fall within such an exception, is also clear a contrario
from the fact that the text of Article XXI of the Treaty does not employ the
wording which was already to be found in Article XXI of the General
Agreement on Tariffs and Trade. This provision of GATT, contemplating
exceptions to the normal implementation of the General Agreement, stipulates
that the Agreement is not to be construed to prevent any contracting party
from taking any action which it "considers necessary for the protection of
its essential security interests", in such fields as nuclear fission, arms,
etc. The 1956 Treaty, on the contrary, speaks simply of "necessary"
measures, not of those considered by a party to be such.
223. The Court will therefore determine the substantial nature of the two
categories of measures contemplated by this Article and which are not barred
by the Treaty. No comment is required at this stage on subparagraph 1 (c) of
Article XXI. As to subparagraph 1 (d), clearly "measures . . . necessary to
fulfill the obligations of a Party for the maintenance or restoration of
international peace and security" must signify measures which the State in
question must take in performance of an international commitment of which
any evasion constitutes a breach. A commitment of this kind is accepted by
Members of the United Nations in respect of Security Council decisions taken
on the basis of Chapter VII of the United Nations Charter (Art. 25), or, for
members of the Organization of American States, in respect of decisions
taken by the Organ of Consultation of the Inter-American system, under
Articles 3 and 20 of the Inter-American Treaty of Reciprocal Assistance (Rio
de Janeiro, 1947). The Court does not believe that this provision of the
1956 Treaty can apply to the eventuality of the exercise of the right of
individual or collective self-defence.
224. On the other hand, action taken in self-defence, individual or
collective, might be considered as part of the wider category of measures
qualified in Article XXI as "necessary to protect" the "essential security
interests" of a party. In its Counter-Memorial on jurisdiction and
admissibility, the United States contended that: "Any possible doubts as to
the applicability of the FCN Treaty to Nicaragua's claims is dispelled by
Article XXI of the Treaty . . ." After quoting paragraph 1 (d) (set out in
paragraph 221 above), the Counter-Memorial continues:
"Article XXI has been described by the Senate Foreign Relations Committee as
containing 'the usual exceptions relating . . . to traffic in arms,
ammunition and implements of war and to measures for collective or
individual self-defense'."
It is difficult to deny that self-defence against an armed attack
corresponds to measures necessary to protect essential security interests.
But the concept of essential security interests certainly extends beyond the
concept of an armed attack, and has been subject to very broad
interpretations in the past. The Court has therefore to assess whether the
risk run by these "essential security interests" is reasonable, and
secondly, whether the measures presented as being designed to protect these
interests are not merely useful but "necessary".
225. Since Article XXI of the 1956 Treaty contains a power for each of the
parties to derogate from the other provisions of the Treaty, the possibility
of invoking the clauses of that Article must be considered once it is
apparent that certain forms of conduct by the United States would otherwise
be in conflict with the relevant provisions of the Treaty. The appraisal of
the conduct of the United States in the light of these relevant provisions
of the Treaty pertains to the application of the law rather than to its
interpretation, and the Court will therefore undertake this in the context
of its general evaluation of the facts established in relation to the
applicable law.
226. The Court, having outlined both the facts of the case as proved by the
evidence before it, and the general rules of international law which appear
to it to be in issue as a result of these facts, and the applicable
treaty-law, has now to appraise the facts in relation to the legal rules
applicable. In so far as acts of the Respondent may appear to constitute
violations of the relevant rules of law, the Court will then have to
determine whether there are present any circumstances excluding
unlawfulness, or whether such acts may be justified upon any other ground.
227. The Court will first appraise the facts in the light of the principle
of the non-use of force, examined in paragraphs 187 to 200 above. What is
unlawful, in accordance with that principle, is recourse to either the
threat or the use of force against the territorial integrity or political
independence of any State. For the most part, the complaints by Nicaragua
are of the actual use of force against it by the United States. Of the acts
which the Court has found imputable to the Government of the United States,
the following are relevant in this respect:
-- the laying of mines in Nicaraguan internal or territorial waters in early
1984 (paragraph 80 above);
-- certain attacks on Nicaraguan ports, oil installations and a naval base
(paragraphs 81 and 86 above).
These activities constitute infringements of the principle of the
prohibition of the use of force, defined earlier, unless they are justified
by circumstances which exclude their unlawfulness, a question now to be
examined. The Court has also found (paragraph 92) the existence of military
manoeuvres held by the United States near the Nicaraguan borders; and
Nicaragua has made some suggestion that this constituted a "threat of
force", which is equally forbidden by the principle of non-use of force. The
Court is however not satisfied that the manoeuvres complained of, in the
circumstances in which they were held, constituted on the part of the United
States a breach, as against Nicaragua, of the principle forbidding recourse
to the threat or use of force.
228. Nicaragua has also claimed that the United States has violated Article
2, paragraph 4, of the Charter, and has used force against Nicaragua in
breach of its obligation under customary international law in as much as it
has engaged in
"recruiting, training, arming, equipping, financing, supplying and otherwise
encouraging, supporting, aiding, and directing military and paramilitary
actions in and against Nicaragua" (Application, para. 26 (a) and (c)).
So far as the claim concerns breach of the Charter, it is excluded from the
Court's jurisdiction by the multilateral treaty reservation. As to the claim
that United States activities in relation to the contras constitute a breach
of the customary international law principle of the non-use of force, the
Court finds that, subject to the question whether the action of the United
States might be justified as an exercise of the right of self-defence, the
United States has committed a prima facie violation of that principle by its
assistance to the contras in Nicaragua, by "organizing or encouraging the
organization of irregular forces or armed bands . . . for incursion into the
territory of another State", and "participating in acts of civil strife . .
. in another State", in the terms of General Assembly resolution 2625 (XXV).
According to that resolution, participation of this kind is contrary to the
principle of the prohibition of the use of force when the acts of civil
strife referred to "involve a threat or use of force". In the view of the
Court, while the arming and training of the contras can certainly be said to
involve the threat or use of force against Nicaragua, this is not
necessarily so in respect of all the assistance given by the United States
Government. In particular, the Court considers that the mere supply of funds
to the contras, while undoubtedly an act of intervention in the internal
affairs of Nicaragua, as will be explained below, does not in itself amount
to a use of force.
229. The Court must thus consider whether, as the Respondent claims, the
acts in question of the United States are justified by the exercise of its
right of collective self-defence against an armed attack. The Court must
therefore establish whether the circumstances required for the exercise of
this right of self-defence are present and, if so, whether the steps taken
by the United States actually correspond to the requirements of
international law. For the Court to conclude that the United States was
lawfully exercising its right of collective self-defence, it must first find
that Nicaragua engaged in an armed attack against El Salvador, Honduras or
Costa Rica.
230. As regards El Salvador, the Court has found (paragraph 160 above) that
it is satisfied that between July 1979 and the early months of 1981, an
intermittent flow of arms was routed via the territory of Nicaragua to the
armed opposition in that country. The Court was not however satisfied that
assistance has reached the Salvadorian armed opposition, on a scale of any
significance, since the early months of 1981, or that the Government of
Nicaragua was responsible for any flow of arms at either period. Even
assuming that the supply of arms to the opposition in El Salvador could be
treated as imputable to the Government of Nicaragua, to justify invocation
of the right of collective self-defence in customary international law, it
would have to be equated with an armed attack by Nicaragua on El Salvador.
As stated above, the Court is unable to consider that, in customary
international law, the provision of arms to the opposition in another State
constitutes an armed attack on that State. Even at a time when the arms flow
was at its peak, and again assuming the participation of the Nicaraguan
Government, that would not constitute such armed attack.
231. Turning to Honduras and Costa Rica, the Court has also stated
(paragraph 164 above) that it should find established that certain
trans-border incursions into the territory of those two States, in 1982,
1983 and 1984, were imputable to the Government of Nicaragua. Very little
information is however available to the Court as to the circumstances of
these incursions or their possible motivations, which renders it difficult
to decide whether they may be treated for legal purposes as amounting,
singly or collectively, to an "armed attack" by Nicaragua on either or both
States. The Court notes that during the Security Council debate in
March/April 1984, the representative of Costa Rica made no accusation of an
armed attack, emphasizing merely his country's neutrality and support for
the Contadora process (S/PV.2529, pp. 13-23); the representative of Honduras
however stated that
"my country is the object of aggression made manifest through a number of
incidents by Nicaragua against our territorial integrity and civilian
population" (ibid., p. 37).
There are however other considerations which justify the Court in finding
that neither these incursions, nor the alleged supply of arms to the
opposition in El Salvador, may be relied on as justifying the exercise of
the right of collective self-defence.
232. The exercise of the right of collective self-defence presupposes that
an armed attack has occurred; and it is evident that it is the victim State,
being the most directly aware of that fact, which is likely to draw general
attention to its plight. It is also evident that if the victim State wishes
another State to come to its help in the exercise of the right of collective
self-defence, it will normally make an express request to that effect. Thus
in the present instance, the Court is entitled to take account, in judging
the asserted justification of the exercise of collective self-defence by the
United States, of the actual conduct of El Salvador, Honduras and Costa Rica
at the relevant time, as indicative of a belief by the State in question
that it was the victim of an armed attack by Nicaragua, and of the making of
a request by the victim State to the United States for help in the exercise
of collective self-defence.
233. The Court has seen no evidence that the conduct of those States was
consistent with such a situation, either at the time when the United States
first embarked on the activities which were allegedly justified by
self-defence, or indeed for a long period subsequently. So far as El
Salvador is concerned, it appears to the Court that while El Salvador did in
fact officially declare itself the victim of an armed attack, and did ask
for the United States to exercise its right of collective self-defence, this
occurred only on a date much later than the commencement of the United
States activities which were allegedly justified by this request. The Court
notes that on 3 April 1984, the representative of El Salvador before the
United Nations Security Council, while complaining of the "open foreign
intervention practised by Nicaragua in our internal affairs" (S/PV.2528, p.
58), refrained from stating that El Salvador had been subjected to armed
attack, and made no mention of the right of collective self-defence which it
had supposedly asked the United States to exercise. Nor was this mentioned
when El Salvador addressed a letter to the Court in April 1984, in
connection with Nicaragua's complaint against the United States. It was only
in its Declaration of Intervention filed on 15 August 1984, that El Salvador
referred to requests addressed at various dates to the United States for the
latter to exercise its right of collective self-defence (para. XII),
asserting on this occasion that it had been the victim of aggression from
Nicaragua "since at least 1980". In that Declaration, El Salvador affirmed
that initially it had "not wanted to present any accusation or allegation
[against Nicaragua] to any of the jurisdictions to which we have a right to
apply", since it sought "a solution of understanding and mutual respect"
(para. III).
234. As to Honduras and Costa Rica, they also were prompted by the
institution of proceedings in this case to address communications to the
Court; in neither of these is there mention of armed attack or collective
self-defence. As has already been noted (paragraph 231 above), Honduras in
the Security Council in 1984 asserted that Nicaragua had engaged in
aggression against it, but did not mention that a request had consequently
been made to the United States for assistance by way of collective
self-defence. On the contrary, the representative of Honduras emphasized
that the matter before the Security Council "is a Central American problem,
without exception, and it must be solved regionally" (S/PV.2529, p. 38),
i.e., through the Contadora process. The representative of Costa Rica also
made no reference to collective self-defence. Nor, it may be noted, did the
representative of the United States assert during that debate that it had
acted in response to requests for assistance in that context.
235. There is also an aspect of the conduct of the United States which the
Court is entitled to take into account as indicative of the view of that
State on the question of the existence of an armed attack. At no time, up to
the present, has the United States Government addressed to the Security
Council, in connection with the matters the subject of the present case, the
report which is required by Article 51 of the United Nations Charter in
respect of measures which a State believes itself bound to take when it
exercises the right of individual or collective self-defence. The Court,
whose decision has to be made on the basis of customary international law,
has already observed that in the context of that law, the reporting
obligation enshrined in Article 51 of the Charter of the United Nations does
not exist. It does not therefore treat the absence of a report on the part
of the United States as the breach of an undertaking forming part of the
customary international law applicable to the present dispute. But the Court
is justified in observing that this conduct of the United States hardly
conforms with the latter's avowed conviction that it was acting in the
context of collective self-defence as consecrated by Article 51 of the
Charter. This fact is all the more noteworthy because, in the Security
Council, the United States has itself taken the view that failure to observe
the requirement to make a report contradicted a State's claim to be acting
on the basis of collective self-defence (S/PV.2187).
236. Similarly, while no strict legal conclusion may be drawn from the date
of El Salvador's announcement that it was the victim of an armed attack, and
the date of its official request addressed to the United States concerning
the exercise of collective self-defence, those dates have a significance as
evidence of El Salvador's view of the situation. The declaration and the
request of El Salvador, made publicly for the first time in August 1984, do
not support the contention that in 1981 there was an armed attack capable of
serving as a legal foundation for United States activities which began in
the second half of that year. The States concerned did not behave as though
there were an armed attack at the time when the activities attributed by the
United States to Nicaragua, without actually constituting such an attack,
were nevertheless the most accentuated; they did so behave only at a time
when these facts fell furthest short of what would be required for the Court
to take the view that an armed attack existed on the part of Nicaragua
against El Salvador.
237. Since the Court has found that the condition sine qua non required for
the exercise of the right of collective self-defence by the United States is
not fulfilled in this case, the appraisal of the United States activities in
relation to the criteria of necessity and proportionality takes on a
different significance. As a result of this conclusion of the Court, even if
the United States activities in question had been carried on in strict
compliance with the canons of necessity and proportionality, they would not
thereby become lawful. If however they were not, this may constitute an
additional ground of wrongfulness. On the question of necessity, the Court
observes that the United States measures taken in December 1981 (or, at the
earliest, March of that year -- paragraph 93 above) cannot be said to
correspond to a "necessity" justifying the United States action against
Nicaragua on the basis of assistance given by Nicaragua to the armed
opposition in El Salvador. First, these measures were only taken, and began
to produce their effects, several months after the major offensive of the
armed opposition against the Government of El Salvador had been completely
repulsed (January 1981), and the actions of the opposition considerably
reduced in consequence. Thus it was possible to eliminate the main danger to
the Salvadorian Government without the United States embarking on activities
in and against Nicaragua. Accordingly, it cannot be held that these
activities were undertaken in the light of necessity. Whether or not the
assistance to the contras might meet the criterion of proportionality, the
Court cannot regard the United States activities summarized in paragraphs
80, 81 and 86, i.e., those relating to the mining of the Nicaraguan ports
and the attacks on ports, oil installations, etc., as satisfying that
criterion. Whatever uncertainty may exist as to the exact scale of the aid
received by the Salvadorian armed opposition from Nicaragua, it is clear
that these latter United States activities in question could not have been
proportionate to that aid. Finally on this point, the Court must also
observe that the reaction of the United States in the context of what it
regarded as self-defence was continued long after the period in which any
presumed armed attack by Nicaragua could reasonably be contemplated.
238. Accordingly, the Court concludes that the plea of collective
self-defence against an alleged armed attack on El Salvador, Honduras or
Costa Rica, advanced by the United States to justify its conduct toward
Nicaragua, cannot be upheld; and accordingly that the United States has
violated the principle prohibiting recourse to the threat or use of force by
the acts listed in paragraph 227 above, and by its assistance to the contras
to the extent that this assistance "involve[s] a threat or use of force"
(paragraph 228 above).
239. The Court comes now to the application in this case of the principle of
non-intervention in the internal affairs of States. It is argued by
Nicaragua that the "military and paramilitary activities aimed at the
government and people of Nicaragua" have two purposes:
"(a) The actual overthrow of the existing lawful government of Nicaragua and
its replacement by a government acceptable to the United States; and
(b) The substantial damaging of the economy, and the weakening of the
political system, in order to coerce the government of Nicaragua into the
acceptance of United States policies and political demands."
Nicaragua also contends that the various acts of an economic nature,
summarized in paragraphs 123 to 125 above, constitute a form of "indirect"
intervention in Nicaragua's internal affairs.
240. Nicaragua has laid much emphasis on the intentions it attributes to the
Government of the United States in giving aid and support to the contras. It
contends that the purpose of the policy of the United States and its actions
against Nicaragua in pursuance of this policy was, from the beginning, to
overthrow the Government of Nicaragua. In order to demonstrate this, it has
drawn attention to numerous statements by high officials of the United
States Government, in particular by President Reagan, expressing solidarity
and support for the contras, described on occasion as "freedom fighters",
and indicating that support for the contras would continue until the
Nicaraguan Government took certain action, desired by the United States
Government, amounting in effect to a surrender to the demands of the latter
Government. The official Report of the President of the United States to
Congress of 10 April 1985, quoted in paragraph 96 above, states that: "We
have not sought to overthrow the Nicaraguan Government nor to force on
Nicaragua a specific system of government." But it indicates also quite
openly that "United States policy toward Nicaragua" -- which includes the
support for the military and paramilitary activities of the contras which it
was the purpose of the Report to continue -- "has consistently sought to
achieve changes in Nicaraguan government policy and behavior".
241. The Court however does not consider it necessary to seek to establish
whether the intention of the United States to secure a change of
governmental policies in Nicaragua went so far as to be equated with an
endeavour to overthrow the Nicaraguan Government. It appears to the Court to
be clearly established first, that the United States intended, by its
support of the contras, to coerce the Government of Nicaragua in respect of
matters in which each State is permitted, by the principle of State
sovereignty, to decide freely (see paragraph 205 above); and secondly that
the intention of the contras themselves was to overthrow the present
Government of Nicaragua. The 1983 Report of the Intelligence Committee
refers to the contras' "openly acknowledged goal of overthrowing the
Sandinistas". Even if it be accepted, for the sake of argument, that the
objective of the United States in assisting the contras was solely to
interdict the supply of arms to the armed opposition in El Salvador, it
strains belief to suppose that a body formed in armed opposition to the
Government of Nicaragua, and calling itself the "Nicaraguan Democratic
Force", intended only to check Nicaraguan interference in El Salvador and
did not intend to achieve violent change of government in Nicaragua. The
Court considers that in international law, if one State, with a view to the
coercion of another State, supports and assists armed bands in that State
whose purpose is to overthrow the government of that State, that amounts to
an intervention by the one State in the internal affairs of the other,
whether or not the political objective of the State giving such support and
assistance is equally far-reaching. It is for this reason that the Court has
only examined the intentions of the United States Government so far as they
bear on the question of self-defence.
242. The Court therefore finds that the support given by the United States,
up to the end of September 1984, to the military and paramilitary activities
of the contras in Nicaragua, by financial support, training, supply of
weapons, intelligence and logistic support, constitutes a clear breach of
the principle of non-intervention. The Court has however taken note that,
with effect from the beginning of the United States governmental financial
year 1985, namely 1 October 1984, the United States Congress has restricted
the use of the funds appropriated for assistance to the contras to
"humanitarian assistance" (paragraph 97 above). There can be no doubt that
the provision of strictly humanitarian aid to persons or forces in another
country, whatever their political affiliations or objectives, cannot be
regarded as unlawful intervention, or as in any other way contrary to
international law. The characteristics of such aid were indicated in the
first and second of the fundamental principles declared by the Twentieth
International Conference of the Red Cross, that
"The Red Cross, born of a desire to bring assistance without discrimination
to the wounded on the battlefield, endeavours -- in its international and
national capacity -- to prevent and alleviate human suffering wherever it
may be found. Its purpose is to protect life and health and to ensure
respect for the human being. It promotes mutual understanding, friendship,
co-operation and lasting peace amongst all peoples"
and that
"It makes no discrimination as to nationality, race, religious beliefs,
class or political opinions. It endeavours only to relieve suffering, giving
priority to the most urgent cases of distress."
243. The United States legislation which limited aid to the contras to
humanitarian assistance however also defined what was meant by such
assistance, namely:
"the provision of food, clothing, medicine, and other humanitarian
assistance, and it does not include the provision of weapons, weapons
systems, ammunition, or other equipment, vehicles, or material which can be
used to inflict serious bodily harm or death" (paragraph 97 above).
It is also to be noted that, while the United States Congress has directed
that the CIA and Department of Defense are not to administer any of the
funds voted, it was understood that intelligence information might be
"shared" with the contras. Since the Court has no information as to the
interpretation in fact given to the Congress decision, or as to whether
intelligence information is in fact still being supplied to the contras, it
will limit itself to a declaration as to how the law applies in this
respect. An essential feature of truly humanitarian aid is that it is given
"without discrimination" of any kind. In the view of the Court, if the
provision of "humanitarian assistance" is to escape condemnation as an
intervention in the internal affairs of Nicaragua, not only must it be
limited to the purposes hallowed in the practice of the Red Cross, namely
"to prevent and alleviate human suffering", and "to protect life and health
and to ensure respect for the human being"; it must also, and above all, be
given without discrimination to all in need in Nicaragua, not merely to the
contras and their dependents.
244. As already noted, Nicaragua has also asserted that the United States is
responsible for an "indirect" form of intervention in its internal affairs
inasmuch as it has taken, to Nicaragua's disadvantage, certain action of an
economic nature. The Court's attention has been drawn in particular to the
cessation of economic aid in April 1981; the 90 per cent reduction in the
sugar quota for United States imports from Nicaragua in April 1981; and the
trade embargo adopted on 1 May 1985. While admitting in principle that some
of these actions were not unlawful in themselves, counsel for Nicaragua
argued that these measures of economic constraint add up to a systematic
violation of the principle of non-intervention.
245. The Court does not here have to concern itself with possible breaches
of such international economic instruments as the General Agreement on
Tariffs and Trade, referred to in passing by counsel for Nicaragua; any such
breaches would appear to fall outside the Court's jurisdiction, particularly
in view of the effect of the multilateral treaty reservation, nor has
Nicaragua seised the Court of any complaint of such breaches. The question
of the compatibility of the actions complained of with the 1956 Treaty of
Friendship, Commerce and Navigation will be examined below, in the context
of the Court's examination of the provisions of that Treaty. At this point,
the Court has merely to say that it is unable to regard such action on the
economic plane as is here complained of as a breach of the customary-law
principle of non-intervention.
246. Having concluded that the activities of the United States in relation
to the activities of the contras in Nicaragua constitute prima facie acts of
intervention, the Court must next consider whether they may nevertheless be
justified on some legal ground. As the Court has stated, the principle of
non-intervention derives from customary international law. It would
certainly lose its effectiveness as a principle of law if intervention were
to be justified by a mere request for assistance made by an opposition group
in another State -- supposing such a request to have actually been made by
an opposition to the regime in Nicaragua in this instance. Indeed, it is
difficult to see what would remain of the principle of non-intervention in
international law if intervention, which is already allowable at the request
of the government of a State, were also to be allowed at the request of the
opposition. This would permit any State to intervene at any moment in the
internal affairs of another State, whether at the request of the government
or at the request of its opposition. Such a situation does not in the
Court's view correspond to the present state of international law.
247. The Court has already indicated (paragraph 238) its conclusion that the
conduct of the United States towards Nicaragua cannot be justified by the
right of collective self-defence in response to an alleged armed attack on
one or other of Nicaragua's neighbours. So far as regards the allegations of
supply of arms by Nicaragua to the armed opposition in El Salvador, the
Court has indicated that while the concept of an armed attack includes the
despatch by one State of armed bands into the territory of another State,
the supply of arms and other support to such bands cannot be equated with
armed attack. Nevertheless, such activities may well constitute a breach of
the principle of the non-use of force and an intervention in the internal
affairs of a State, that is, a form of conduct which is certainly wrongful,
but is of lesser gravity than an armed attack. The Court must therefore
enquire now whether the activities of the United States towards Nicaragua
might be justified as a response to an intervention by that State in the
internal affairs of another State in Central America.
248. The United States admits that it is giving its support to the contras
in Nicaragua, but justifies this by claiming that that State is adopting
similar conduct by itself assisting the armed opposition in El Salvador, and
to a lesser extent in Honduras and Costa Rica, and has committed
trans-border attacks on those two States. The United States raises this
justification as one of self-defence; having rejected it on those terms, the
Court has nevertheless to consider whether it may be valid as action by way
of counter-measures in response to intervention. The Court has however to
find that the applicable law does not warrant such a justification.
249. On the legal level the Court cannot regard response to an intervention
by Nicaragua as such a justification. While an armed attack would give rise
to an entitlement to collective self-defence, a use of force of a lesser
degree of gravity cannot, as the Court has already observed (paragraph 211
above), produce any entitlement to take collective counter-measures
involving the use of force. The acts of which Nicaragua is accused, even
assuming them to have been established and imputable to that State, could
only have justified proportionate counter-measures on the part of the State
which had been the victim of these acts, namely El Salvador, Honduras or
Costa Rica. They could not justify counter-measures taken by a third State,
the United States, and particularly could not justify intervention involving
the use of force.
250. In the Application, Nicaragua further claims:
"That the United States, in breach of its obligation under general and
customary international law, has violated and is violating the sovereignty
of Nicaragua by:
-- armed attacks against Nicaragua by air, land and sea;
-- incursions into Nicaraguan territorial waters;
-- aerial trespass into Nicaraguan airspace; -- efforts by direct and
indirect means to coerce and intimidate the Government of Nicaragua." (Para.
26 (b).)
The Nicaraguan Memorial, however, enumerates under the heading of violations
of sovereignty only attacks on Nicaraguan territory, incursions into its
territorial sea, and overflights. The claim as to United States "efforts by
direct and indirect means to coerce and intimidate the Government of
Nicaragua" was presented in the Memorial under the heading of the threat or
use of force, which has already been dealt with above (paragraph 227).
Accordingly, that aspect of Nicaragua's claim will not be pursued further.
251. The effects of the principle of respect for territorial sovereignty
inevitably overlap with those of the principles of the prohibition of the
use of force and of non-intervention. Thus the assistance to the contras, as
well as the direct attacks on Nicaraguan ports, oil installations, etc.,
referred to in paragraphs 81 to 86 above, not only amount to an unlawful use
of force, but also constitute infringements of the territorial sovereignty
of Nicaragua, and incursions into its territorial and internal waters.
Similarly, the mining operations in the Nicaraguan ports not only constitute
breaches of the principle of the non-use of force, but also affect
Nicaragua's sovereignty over certain maritime expanses. The Court has in
fact found that these operations were carried on in Nicaragua's territorial
or internal waters or both (paragraph 80), and accordingly they constitute a
violation of Nicaragua's sovereignty. The principle of respect for
territorial sovereignty is also directly infringed by the unauthorized
overflight of a State's territory by aircraft belonging to or under the
control of the government of another State. The Court has found above that
such overflights were in fact made (paragraph 91 above).
252. These violations cannot be justified either by collective self-defence,
for which, as the Court has recognized, the necessary circumstances are
lacking, nor by any right of the United States to take counter-measures
involving the use of force in the event of intervention by Nicaragua in El
Salvador, since no such right exists under the applicable international law.
They cannot be justified by the activities in El Salvador attributed to the
Government of Nicaragua. The latter activities, assuming that they did in
fact occur, do not bring into effect any right belonging to the United
States which would justify the actions in question. Accordingly, such
actions constitute violations of Nicaragua's sovereignty under customary
international law.
253. At this point it will be convenient to refer to another aspect of the
legal implications of the mining of Nicaragua's ports. As the Court has
indicated in paragraph 214 above, where the vessels of one State enjoy a
right of access to ports of another State, if that right of access is
hindered by the laying of mines, this constitutes an infringement of the
freedom of communications and of maritime commerce. This is clearly the case
here. It is not for the Court to pass upon the rights of States which are
not parties to the case before it; but it is clear that interference with a
right of access to the ports of Nicaragua is likely to have an adverse
effect on Nicaragua's economy and its trading relations with any State whose
vessels enjoy the right of access to its ports. Accordingly, the Court
finds, in the context of the present proceedings between Nicaragua and the
United States, that the laying of mines in or near Nicaraguan ports
constituted an infringement, to Nicaragua's detriment, of the freedom of
communications and of maritime commerce.
254. The Court now turns to the question of the application of humanitarian
law to the activities of the United States complained of in this case.
Mention has already been made (paragraph 215 above) of the violations of
customary international law by reason of the failure to give notice of the
mining of the Nicaraguan ports, for which the Court has found the United
States directly responsible. Except as regards the mines, Nicaragua has not
however attributed any breach of humanitarian law to either United States
personnel or the "UCLAs", as distinct from the contras. The Applicant has
claimed that acts perpetrated by the contras constitute breaches of the
"fundamental norms protecting human rights"; it has not raised the question
of the law applicable in the event of conflict such as that between the
contras and the established Government. In effect, Nicaragua is accusing the
contras of violations both of the law of human rights and humanitarian law,
and is attributing responsibility for these acts to the United States. The
Court has however found (paragraphs 115, 216) that this submission of
Nicaragua cannot be upheld; but it has also found the United States
responsible for the publication and dissemination of the manual on
"Psychological Operations in Guerrilla Warfare" referred to in paragraphs
118 to 122 above.
255. The Court has also found (paragraphs 219 and 220 above) that general
principles of humanitarian law include a particular prohibition, accepted by
States, and extending to activities which occur in the context of armed
conflicts, whether international in character or not. By virtue of such
general principles, the United States is bound to refrain from encouragement
of persons or groups engaged in the conflict in Nicaragua to commit
violations of Article 3 which is common to all four Geneva Conventions of 12
August 1949. The question here does not of course relate to the definition
of the circumstances in which one State may be regarded as responsible for
acts carried out by another State, which probably do not include the
possibility of incitement. The Court takes note of the advice given in the
manual on psychological operations to "neutralize" certain "carefully
selected and planned targets", including judges, police officers, State
Security officials, etc., after the local population have been gathered in
order to "take part in the act and formulate accusations against the
oppressor". In the view of the Court, this must be regarded as contrary to
the prohibition in Article 3 of the Geneva Conventions, with respect to
non-combatants, of
"the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court, affording all
the judicial guarantees which are recognized as indispensable by civilized
peoples"
and probably also of the prohibition of "violence to life and person, in
particular murder to all kinds, . . .".
256. It is also appropriate to recall the circumstances in which the manual
of psychological operations was issued. When considering whether the
publication of such a manual, encouraging the commission of acts contrary to
general principles of humanitarian law, is unlawful, it is material to
consider whether that encouragement was offered to persons in circumstances
where the commission of such acts was likely or foreseeable. The Court has
however found (paragraph 121) that at the relevant time those responsible
for the issue of the manual were aware of, at the least, allegations that
the behaviour of the contras in the field was not consistent with
humanitarian law; it was in fact even claimed by the CIA that the purpose of
the manual was to "moderate" such behaviour. The publication and
dissemination of a manual in fact containing the advice quoted above must
therefore be regarded as an encouragement, which was likely to be effective,
to commit acts contrary to general principles of international humanitarian
law reflected in treaties.
257. The Court has noted above (paragraphs 169 and 170) the attitude of the
United States, as expressed in the finding of the Congress of 29 July 1985,
linking United States support to the contras with alleged breaches by the
Government of Nicaragua of its "solemn commitments to the Nicaraguan people,
the United States, and the Organization of American States". Those breaches
were stated to involve questions such as the composition of the government,
its political ideology and alignment, totalitarianism, human rights,
militarization and aggression. So far as the question of "aggression in the
form of armed subversion against its neighbours" is concerned, the Court has
already dealt with the claimed justification of collective self-defence in
response to armed attack, and will not return to that matter. It has also
disposed of the suggestion of a right to collective counter-measures in face
of an armed intervention. What is now in question is whether there is
anything in the conduct of Nicaragua which might legally warrant
counter-measures by the United States.
258. The questions as to which the Nicaraguan Government is said to have
entered into a commitment are questions of domestic policy. The Court would
not therefore normally consider it appropriate to engage in a verification
of the truth of assertions of this kind, even assuming that it was in a
position to do so. A State's domestic policy falls within its exclusive
jurisdiction, provided of course that it does not violate any obligation of
international law. Every State possesses a fundamental right to choose and
implement its own political, economic and social systems. Consequently,
there would normally be no need to make any enquiries, in a matter outside
the Court's jurisdiction, to ascertain in what sense and along what lines
Nicaragua has actually exercised its right.
259. However, the assertion of a commitment raises the question of the
possibility of a State binding itself by agreement in relation to a question
of domestic policy, such as that relating to the holding of free elections
on its territory. The Court cannot discover, within the range of subjects
open to international agreement, any obstacle or provision to hinder a State
from making a commitment of this kind. A State, which is free to decide upon
the principle and methods of popular consultation within its domestic order,
is sovereign for the purpose of accepting a limitation of its sovereignty in
this field. This is a conceivable situation for a State which is bound by
institutional links to a confederation of States, or indeed to an
international organization. Both Nicaragua and the United States are members
of the Organization of American States. The Charter of that Organization
however goes no further in the direction of an agreed limitation on
sovereignty of this kind than the provision in Article 3 (d) that
"The solidarity of the American States and the high aims which are sought
through it require the political organization of those States on the basis
of the effective exercise of representative democracy"; on the other hand,
it provides for the right of every State "to organize itself as it sees fit"
(Art. 12), and to "develop its cultural, political and economic life freely
and naturally" (Art. 16).
260. The Court has set out above the facts as to the events of 1979,
including the resolution of the XVIIth Meeting of Consultation of Ministers
for Foreign Affairs of the Organization of American States, and the
communications of 12 July 1979 from the Junta of the Government of National
Reconstruction of Nicaragua to the Secretary-General of the Organization,
accompanied by a "Plan to secure peace". The letter contained inter alia a
list of the objectives of the Nicaraguan Junta and stated in particular its
intention of installing the new regime by a peaceful, orderly transition and
of respecting human rights under the supervision of the Inter-American
Commission on Human Rights, which the Junta invited to visit Nicaragua "as
soon as we are installed". In this way, before its installation in Managua,
the new regime soothed apprehensions as desired and expressed its intention
of governing the country democratically.
261. However, the Court is unable to find anything in these documents,
whether the resolution or the communication accompanied by the "Plan to
secure peace", from which it can be inferred that any legal undertaking was
intended to exist. Moreover, the Junta made it plain in one of these
documents that its invitation to the Organization of American States to
supervise Nicaragua's political life should not be allowed to obscure the
fact that it was the Nicaraguans themselves who were to decide upon and
conduct the country's domestic policy. The resolution of 23 June 1979 also
declares that the solution of their problems is a matter "exclusively" for
the Nicaraguan people, while stating that that solution was to be based (in
Spanish, deberia inspirarse) on certain foundations which were put forward
merely as recommendations to the future government. This part of the
resolution is a mere statement which does not comprise any formal offer
which if accepted would constitute a promise in law, and hence a legal
obligation. Nor can the Court take the view that Nicaragua actually
undertook a commitment to organize free elections, and that this commitment
was of a legal nature. The Nicaraguan Junta of National Reconstruction
planned the holding of free elections as part of its political programme of
government, following the recommendation of the XVIIth Meeting of
Consultation of Foreign Ministers of the Organization of American States.
This was an essentially political pledge, made not only to the Organization,
but also to the people of Nicaragua, intended to be its first beneficiaries.
But the Court cannot find an instrument with legal force, whether unilateral
or synallagmatic, whereby Nicaragua has committed itself in respect of the
principle or methods of holding elections. The Organization of American
States Charter has already been mentioned, with its respect for the
political independence of the member States; in the field of domestic
policy, it goes no further than to list the social standards to the
application of which the Members "agree to dedicate every effort",
including:
"The incorporation and increasing participation of the marginal sectors of
the population, in both rural and urban areas, in the economic, social,
civic, cultural, and political life of the nation, in order to achieve the
full integration of the national community, acceleration of the process of
social mobility, and the consolidation of the democratic system." (Art. 43
(f).)
It is evident that provisions of this kind are far from being a commitment
as to the use of particular political mechanisms.
262. Moreover, even supposing that such a political pledge had had the force
of a legal commitment, it could not have justified the United States
insisting on the fulfilment of a commitment made not directly towards the
United States, but towards the Organization, the latter being alone
empowered to monitor its implementation. The Court can see no legal basis
for the "special responsibility regarding the implementation of the
commitments made" by the Nicaraguan Government which the United States
considers itself to have assumed in view of "its role in the installation of
the current Government of Nicaragua" (see paragraph 170 above). Moreover,
even supposing that the United States were entitled to act in lieu of the
Organization, it could hardly make use for the purpose of methods which the
Organization could not use itself; in particular, it could not be authorized
to use force in that event. Of its nature, a commitment like this is one of
a category which, if violated, cannot justify the use of force against a
sovereign State.
263. The finding of the United States Congress also expressed the view that
the Nicaraguan Government had taken "significant steps towards establishing
a totalitarian Communist dictatorship". However the regime in Nicaragua be
defined, adherence by a State to any particular doctrine does not constitute
a violation of customary international law; to hold otherwise would make
nonsense of the fundamental principle of State sovereignty, on which the
whole of international law rests, and the freedom of choice of the
political, social, economic and cultural system of a State. Consequently,
Nicaragua's domestic policy options, even assuming that they correspond to
the description given of them by the Congress finding, cannot justify on the
legal plane the various actions of the Respondent complained of. The Court
cannot contemplate the creation of a new rule opening up a right of
intervention by one State against another on the ground that the latter has
opted for some particular ideology or political system.
264. The Court has also emphasized the importance to be attached, in other
respects, to a text such as the Helsinki Final Act, or, on another level, to
General Assembly resolution 2625 (XXV) which, as its name indicates, is a
declaration on "Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance with the Charter of
the United Nations". Texts like these, in relation to which the Court has
pointed to the customary content of certain provisions such as the
principles of the non-use of force and non-intervention, envisage the
relations among States having different political, economic and social
systems on the basis of coexistence among their various ideologies; the
United States not only voiced no objection to their adoption, but took an
active part in bringing it about.
265. Similar considerations apply to the criticisms expressed by the United
States of the external policies and alliances of Nicaragua. Whatever the
impact of individual alliances on regional or international
political-military balances, the Court is only competent to consider such
questions from the standpoint of international law. From that aspect, it is
sufficient to say that State sovereignty evidently extends to the area of
its foreign policy, and that there is no rule of customary international law
to prevent a State from choosing and conducting a foreign policy in
co-ordination with that of another State.
266. The Court also notes that these justifications, advanced solely in a
political context which it is naturally not for the Court to appraise, were
not advanced as legal arguments. The respondent State has always confined
itself to the classic argument of self-defence, and has not attempted to
introduce a legal argument derived from a supposed rule of "ideological
intervention", which would have been a striking innovation. The Court would
recall that one of the accusations of the United States against Nicaragua is
violation of "the 1965 General Assembly Declaration on Intervention"
(paragraph 169 above), by its support for the armed opposition to the
Government in El Salvador. It is not aware of the United States having
officially abandoned reliance on this principle, substituting for it a new
principle "of ideological intervention", the definition of which would be
discretionary. As stated above (paragraph 29), the Court is not solely
dependent for its decision on the argument of the Parties before it with
respect to the applicable law: it is required to consider on its own
initiative all rules of international law which may be relevant to the
settlement of the dispute even if these rules have not been invoked by a
party. The Court is however not entitled to ascribe to States legal views
which they do not themselves formulate.
267. The Court also notes that Nicaragua is accused by the 1985 finding of
the United States Congress of violating human rights. This particular point
requires to be studied independently of the question of the existence of a
"legal commitment" by Nicaragua towards the Organization of American States
to respect these rights; the absence of such a commitment would not mean
that Nicaragua could with impunity violate human rights. However, where
human rights are protected by international conventions, that protection
takes the form of such arrangements for monitoring or ensuring respect for
human rights as are provided for in the conventions themselves. The
political pledge by Nicaragua was made in the context of the Organization of
American States, the organs of which were consequently entitled to monitor
its observance. The Court has noted above (paragraph 168) that the
Nicaraguan Government has since 1979 ratified a number of international
instruments on human rights, and one of these was the American Convention on
Human Rights (the Pact of San Jose, Costa Rica). The mechanisms provided for
therein have functioned. The Inter-American Commission on Human Rights in
fact took action and compiled two reports (OEA/Ser.L/V/11.53 and 62)
following visits by the Commission to Nicaragua at the Government's
invitation. Consequently, the Organization was in a position, if it so
wished, to take a decision on the basis of these reports.
268. In any event, while the United States might form its own appraisal of
the situation as to respect for human rights in Nicaragua, the use of force
could not be the appropriate method to monitor or ensure such respect. With
regard to the steps actually taken, the protection of human rights, a
strictly humanitarian objective, cannot be compatible with the mining of
ports, the destruction of oil installations, or again with the training,
arming and equipping of the contras. The Court concludes that the argument
derived from the preservation of human rights in Nicaragua cannot afford a
legal justification for the conduct of the United States, and cannot in any
event be reconciled with the legal strategy of the respondent State, which
is based on the right of collective self-defence.
269. The Court now turns to another factor which bears both upon domestic
policy and foreign policy. This is the militarization of Nicaragua, which
the United States deems excessive and such as to prove its aggressive
intent, and in which it finds another argument to justify its activities
with regard to Nicaragua. It is irrelevant and inappropriate, in the Court's
opinion, to pass upon this allegation of the United States, since in
international law there are no rules, other than such rules as may be
accepted by the State concerned, by treaty or otherwise, whereby the level
of armaments of a sovereign State can be limited, and this principle is
valid for all States without exception.
270. Having thus concluded its examination of the claims of Nicaragua based
on customary international law, the Court must now consider its claims based
on the Treaty of Friendship, Commerce and Navigation between the Parties,
signed at Managua on 21 January 1956; Article XXIV, paragraph 2, of that
Treaty provides for the jurisdiction of the Court for any dispute between
the Parties as to its interpretation or application. The first claim which
Nicaragua makes in relation to the Treaty is however one not based directly
on a specific provision thereof. Nicaragua has argued that the United
States, by its conduct in relation to Nicaragua, has deprived the Treaty of
its object and purpose, and emptied it of real content. For this purpose,
Nicaragua has relied on the existence of a legal obligation of States to
refrain from acts which would impede the due performance of any treaties
entered into by them. However, if there is a duty of a State not to impede
the due performance of a treaty to which it is a party, that is not a duty
imposed by the treaty itself. Nicaragua itself apparently contends that this
is a duty arising under customary international law independently of the
treaty, that it is implicit in the rule pacta sunt servanda. This claim
therefore does not in fact fall under the heading of possible breach by the
United States of the provisions of the 1956 Treaty, though it may involve
the interpretation or application thereof.
271. In view of the Court's finding in its 1984 Judgment that the Court has
jurisdiction both under the 1956 FCN Treaty and on the basis of the United
States acceptance of jurisdiction under the Optional Clause of Article 36,
paragraph 2, this poses no problem of jurisdiction in the present case. It
should however be emphasized that the Court does not consider that a
compromissory clause of the kind included in Article XXIV, paragraph 2, of
the 1956 FCN Treaty, providing for jurisdiction over disputes as to its
interpretation or application, would enable the Court to entertain a claim
alleging conduct depriving the treaty of its object and purpose. It is only
because in the present case the Court has found that it has jurisdiction,
apart from Article XXIV, over any legal dispute between the Parties
concerning any of the matters enumerated in Article 36, paragraph 2, of the
Statute, that it can proceed to examine Nicaragua's claim under this head.
However, as indicated in paragraph 221 above, the Court has first to
determine whether the actions of the United States complained of as breaches
of the 1956 FCN Treaty have to be regarded as "measures . . . necessary to
protect its essential security interests [sus intereses esenciales y
seguridad]", since Article XXI of the Treaty provides that "the present
Treaty shall not preclude the application of" such measures. The question
thus arises whether Article XXI similarly affords a defence to a claim under
customary international law based on allegation of conduct depriving the
Treaty of its object and purpose if such conduct can be shown to be
"measures . . . necessary to protect" essential security interests.
272. In the view of the Court, an act cannot be said to be one calculated to
deprive a treaty of its object and purpose, or to impede its due
performance, if the possibility of that act has been foreseen in the treaty
itself, and it has been expressly agreed that the treaty "shall not
preclude" the act, so that it will not constitute a breach of the express
terms of the treaty. Accordingly, the Court cannot entertain either the
claim of Nicaragua alleging conduct depriving the treaty of its object and
purpose, or its claims of breach of specific articles of the treaty, unless
it is first satisfied that the conduct complained of is not "measures . . .
necessary to protect" the essential security interests of the United States.
The Court will first proceed to examine whether the claims of Nicaragua in
relation to the Treaty appear to be well founded, and then determine whether
they are nevertheless justifiable by reference to Article XXI.
273. The argument that the United States has deprived the Treaty of its
object and purpose has a scope which is not very clearly defined, but it
appears that in Nicaragua's contention the Court could on this ground make a
blanket condemnation of the United States for all the activities of which
Nicaragua complains on more specific grounds. For Nicaragua, the Treaty is
"without doubt a treaty of friendship which imposes on the Parties the
obligation to conduct amicable relations with each other", and "Whatever the
exact dimensions of the legal norm of 'friendship' there can be no doubt of
a United States violation in this case". In other words, the Court is asked
to rule that a State which enters into a treaty of friendship binds itself,
for so long as the Treaty is in force, to abstain from any act toward the
other party which could be classified as an unfriendly act, even if such act
is not in itself the breach of an international obligation. Such a duty
might of course be expressly stipulated in a treaty, or might even emerge as
a necessary implication from the text; but as a matter of customary
international law, it is not clear that the existence of such a far-reaching
rule is evidenced in the practice of States. There must be a distinction,
even in the case of a treaty of friendship, between the broad category of
unfriendly acts, and the narrower category of acts tending to defeat the
object and purpose of the Treaty. That object and purpose is the effective
implementation of friendship in the specific fields provided for in the
Treaty, not friendship in a vague general sense.
274. The Court has in this respect to note that the Treaty itself provides
in Article XXIV, paragraph 1, as follows:
"Each Party shall accord sympathetic consideration to, and shall afford
adequate opportunity for consultation regarding, such representations as the
other Party may make with respect to any matter affecting the operation of
the present Treaty."
Nicaragua claims that the conduct of the United States is such as
drastically to "affect the operation" of the Treaty; but so far as the Court
is informed, no representations on the specific question have been made. The
Court has therefore first to be satisfied that a claim based on the 1956 FCN
Treaty is admissible even though no attempt has been made to use the
machinery of Article XXIV, paragraph 1, to resolve the dispute. In general,
treaty rules being lex specialis, it would not be appropriate that a State
should bring a claim based on a customary-law rule if it has by treaty
already provided means for settlement of such a claim. However, in the
present case, the operation of Article XXIV, paragraph 1, if it had been
invoked, would have been wholly artificial. While Nicaragua does allege that
certain activities of the United States were in breach of the 1956 FCN
Treaty, it has also claimed, and the Court has found, that they were
violations of customary international law. In the Court's view, it would
therefore be excessively formalistic to require Nicaragua first to exhaust
the procedure of Article XXIV, paragraph I, before bringing the matter to
the Court. In its 1984 Judgment the Court has already dealt with the
argument that Article XXIV, paragraph 2, of the Treaty required that the
dispute be "one not satisfactorily adjusted by diplomacy", and that this was
not the case in view of the absence of negotiations between the Parties. The
Court held that:
"it does not necessarily follow that, because a State has not expressly
referred in negotiations with another State to a particular treaty as having
been violated by conduct of that other State, it is debarred from invoking a
compromissory clause in that treaty" (I.C.J. Reports 1984, p. 428).
The point now at issue is different, since the claim of conduct impeding the
operation of the Treaty is not advanced on the basis of the compromissory
clause in the Treaty. The Court nevertheless considers that neither
paragraph of Article XXIV constitutes a bar to examination of Nicaragua's
claims.
275. In respect of the claim that the United States activities have been
such as to deprive the 1956 FCN Treaty of its object and purpose, the Court
has to make a distinction. It is unable to regard all the acts complained of
in that light; but it does consider that there are certain activities of the
United States which are such as to undermine the whole spirit of a bilateral
agreement directed to sponsoring friendship between the two States parties
to it. These are: the direct attacks on ports, oil installations, etc.,
referred to in paragraphs 81 to 86 above; and the mining of Nicaraguan
ports, mentioned in paragraph 80 above. Any action less calculated to serve
the purpose of "strengthening the bonds of peace and friendship
traditionally existing between" the Parties, stated in the Preamble of the
Treaty, could hardly be imagined.
276. While the acts of economic pressure summarized in paragraphs 123 to 125
above are less flagrantly in contradiction with the purpose of the Treaty,
the Court reaches a similar conclusion in respect of some of them. A State
is not bound to continue particular trade relations longer than it sees fit
to do so, in the absence of a treaty commitment or other specific legal
obligation; but where there exists such a commitment, of the kind implied in
a treaty of friendship and commerce, such an abrupt act of termination of
commercial intercourse as the general trade embargo of 1 May 1985 will
normally constitute a violation of the obligation not to defeat the object
and purpose of the treaty. The 90 per cent cut in the sugar import quota of
23 September 1983 does not on the other hand seem to the Court to go so far
as to constitute an act calculated to defeat the object and purpose of the
Treaty. The cessation of economic aid, the giving of which is more of a
unilateral and voluntary nature, could be regarded as such a violation only
in exceptional circumstances. The Court has also to note that, by the very
terms of the legislation authorizing such aid (the Special Central American
Assistance Act, 1979), of which the Government of Nicaragua must have been
aware, the continuance of aid was made subject to the appreciation of
Nicaragua's conduct by the President of the United States. As to the
opposition to the grant of loans from international institutions, the Court
cannot regard this as sufficiently linked with the 1956 FCN Treaty to
constitute an act directed to defeating its object and purpose.
277. Nicaragua claims that the United States is in breach of Article I of
the 1956 FCN Treaty, which provides that each Party is to accord "equitable
treatment" to the nationals of the other. Nicaragua suggests that whatever
meaning given to the expression "equitable treatment"
"it necessarily precludes the Government of the United States from . . .
killing, wounding or kidnapping citizens of Nicaragua, and, more generally
from threatening Nicaraguan citizens in the integrity of their persons or
the safety of their property".
It is Nicaragua's claim that the treatment of Nicaraguan citizens complained
of was inflicted by the United States or by forces controlled by the United
States. The Court is however not satisfied that the evidence available
demonstrates that the contras were "controlled" by the United States when
committing such acts. As the Court has indicated (paragraph 110 above), the
exact extent of the control resulting from the financial dependence of the
contras on the United States authorities cannot be established; and it has
not been able to conclude that the contras are subject to the United States
to such an extent that any acts they have committed are imputable to that
State (paragraph 115 above). Even if the provision for "equitable treatment"
in the Treaty is read as involving an obligation not to kill, wound or
kidnap Nicaraguan citizens in Nicaragua -- as to which the Court expresses
no opinion -- those acts of the contras performed in the course of their
military or paramilitary activities in Nicaragua are not conduct
attributable to the United States.
278. Secondly, Nicaragua claims that the United States has violated the
provisions of the Treaty relating to freedom of communication and commerce.
For the reasons indicated in paragraph 253 above, the Court must uphold the
contention that the mining of the Nicaraguan ports by the United States is
in manifest contradiction with the freedom of navigation and commerce
guaranteed by Article XIX, paragraph 1, of the 1956 Treaty; there remains
the question whether such action can be justified under Article XXI (see
paragraphs 280 to 282 below). In the commercial context of the Treaty.
Nicaragua's claim is justified not only as to the physical damage to its
vessels, but also the consequential damage to its trade and commerce.
Nicaragua however also contended that all the activities of the United
States in and against Nicaragua are "violative of the 1956 Treaty":
"Since the word 'commerce' in the 1956 Treaty must be understood in its
broadest sense, all of the activities by which the United States has
deliberately inflicted on Nicaragua physical damage and economic losses of
all types, violate the principle of freedom of commerce which the Treaty
establishes in very general terms."
It is clear that considerable economic loss and damage has been inflicted on
Nicaragua by the actions of the contras: apart from the economic impact of
acts directly attributable to the United States, such as the loss of fishing
boats blown up by mines, the Nicaraguan Minister of Finance estimated loss
of production in 1981-1984 due to inability to collect crops, etc., at some
US$ 300 million. However, as already noted (paragraph 277 above) the Court
has not found the relationship between the contras and the United States
Government to have been proved to be such that the United States is
responsible for all acts of the contras.
279. The trade embargo declared by the United States Government on 1 May
1985 has already been referred to in the context of Nicaragua's contentions
as to acts tending to defeat the object and purpose of the 1956 FCN Treaty.
The question also arises of its compatibility with the letter and the spirit
of Article XIX of the Treaty. That Article provides that "Between the
territories of the two Parties there shall be freedom of commerce and
navigation" (para. 1) and continues
"3. Vessels of either Party shall have liberty, on equal terms with vessels
of the other Party and on equal terms with vessels of any third country, to
come with their cargoes to all ports, places and waters of such other Party
open to foreign commerce and navigation..."
By the Executive Order dated 1 May 1985 the President of the United States
declared "1 hereby prohibit vessels of Nicaraguan registry from entering
into United States ports, and transactions relating thereto". The Court
notes that on the same day the United States gave notice to Nicaragua to
terminate the Treaty under Article XXV, paragraph 3, thereof; but that
Article requires "one year's written notice" for the termination to take
effect. The freedom of Nicaraguan vessels, under Article XIX, paragraph 3,
"to come with their cargoes to all ports, places and waters" of the United
States could not therefore be interfered with during that period of notice,
let alone terminated abruptly by the declaration of an embargo. The Court
accordingly finds that the embargo constituted a measure in contradiction
with Article XIX of the 1956 FCN Treaty.
280. The Court has thus found that the United States is in breach of a duty
not to deprive the 1956 FCN Treaty of its object and purpose, and has
committed acts which are in contradiction with the terms of the Treaty,
subject to the question whether the exceptions in Article XXI, paragraphs 1
(c) and 1 (d), concerning respectively "traffic in arms" and "measures...
necessary to fulfill" obligations "for the maintenance or restoration of
international peace and security" or necessary to protect the "essential
security interests" of a party, may be invoked to justify the acts
complained of. In its Counter-Memorial on jurisdiction and admissibility,
the United States relied on paragraph 1 (c) as showing the inapplicability
of the 1956 FCN Treaty to Nicaragua's claims. This paragraph appears however
to be relevant only in respect of the complaint of supply of arms to the
contras, and since the Court does not find that arms supply to be a breach
of the Treaty, or an act calculated to deprive it of its object and purpose,
paragraph 1 (c) does not need to be considered further. There remains the
question of the relationship of Article XXI, paragraph 1 (d), to the direct
attacks on ports, oil installations, etc.; the mining of Nicaraguan ports;
and the general trade embargo of 1 May 1985 (paragraphs 275 to 276 above).
281. In approaching this question, the Court has first to bear in mind the
chronological sequence of events. If the activities of the United States are
to be covered by Article XXI of the Treaty, they must have been, at the time
they were taken, measures necessary to protect its essential security
interests. Thus the finding of the President of the United States on 1 May
1985 that "the policies and actions of the Government of Nicaragua
constitute an unusual and extraordinary threat to the national security and
foreign policy of the United States", even if it be taken as sufficient
evidence that that was so, does not justify action by the United States
previous to that date.
282. Secondly, the Court emphasizes the importance of the word "necessary"
in Article XXI: the measures taken must not merely be such as tend to
protect the essential security interests of the party taking them, but must
be "necessary" for that purpose. Taking into account the whole situation of
the United States in relation to Central America, so far as the Court is
informed of it (and even assuming that the justification of self-defence,
which the Court has rejected on the legal level, had some validity on the
political level), the Court considers that the mining of Nicaraguan ports,
and the direct attacks on ports and oil installations, cannot possibly be
justified as "necessary" to protect the essential security interests of the
United States. As to the trade embargo, the Court has to note the express
justification for it given in the Presidential finding quoted in paragraph
125 above, and that the measure was one of an economic nature, thus one
which fell within the sphere of relations contemplated by the Treaty. But by
the terms of the Treaty itself, whether a measure is necessary to protect
the essential security interests of a party is not, as the Court has
emphasized (paragraph 222 above), purely a question for the subjective
judgment of the party; the text does not refer to what the party "considers
necessary" for that purpose. Since no evidence at all is available to show
how Nicaraguan policies had in fact become a threat to "essential security
interests" in May 1985, when those policies had been consistent, and
consistently criticized by the United States, for four years previously, the
Court is unable to find that the embargo was "necessary" to protect those
interests. Accordingly, Article XXI affords no defence for the United States
in respect of any of the actions here under consideration.
283. The third submission of Nicaragua in its Memorial on the merits, set
out in paragraph 15 above, requests the Court to adjudge and declare that
compensation is due to Nicaragua and
"to receive evidence and to determine, in a subsequent phase of the present
proceedings, the quantum of damages to be assessed as the compensation due
to the Republic of Nicaragua".
The fourth submission requests the Court to award to Nicaragua the sum of
370,200,000 United States dollars, "which sum constitutes the minimum
valuation of the direct damages" claimed by Nicaragua. In order to decide on
these submissions, the Court must satisfy itself that it possesses
jurisdiction to do so. In general, jurisdiction to determine the merits of a
dispute entails jurisdiction to determine reparation. More specifically, the
Court notes that in its declaration of acceptance of jurisdiction under the
Optional Clause of 26 August 1946, the United States expressly accepted the
Court's jurisdiction in respect of disputes concerning "the nature or extent
of the reparation to be made for the breach of an international obligation".
The corresponding declaration by which Nicaragua accepted the Court's
jurisdiction contains no restriction of the powers of the Court under
Article 36, paragraph 2 (d), of its Statute; Nicaragua has thus accepted the
"same obligation". Under the 1956 FCN Treaty, the Court has jurisdiction to
determine "any dispute between the Parties as to the interpretation or
application of the present Treaty" (Art. XXIV, para. 2); and as the
Permanent Court of International Justice stated in the case concerning the
Factory at Chorzow,
"Differences relating to reparations, which may be due by reason of failure
to apply a convention, are consequently differences relating to its
application." (Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No.
9, p. 21.)
284. The Court considers appropriate the request of Nicaragua for the nature
and amount of the reparation due to it to be determined in a subsequent
phase of the proceedings. While a certain amount of evidence has been
provided, for example, in the testimony of the Nicaraguan Minister of
Finance, of pecuniary loss sustained, this was based upon contentions as to
the responsibility of the United States which were more far-reaching than
the conclusions at which the Court has been able to arrive. The opportunity
should be afforded Nicaragua to demonstrate and prove exactly what injury
was suffered as a result of each action of the United States which the Court
has found contrary to international law. Nor should it be overlooked that,
while the United States has chosen not to appear or participate in the
present phase of the proceedings. Article 53 of the Statute does not debar
it from appearing to present its arguments on the question of reparation if
it so wishes. On the contrary, the principle of the equality of the Parties
requires that it be given that opportunity. It goes without saying, however,
that in the phase of the proceedings devoted to reparation, neither Party
may call in question such findings in the present Judgment as have become
res judicata.
285. There remains the request of Nicaragua (paragraph 15 above) for an
award, at the present stage of the proceedings, of $ 370,200,000 as the
"minimum (and in that sense provisional) valuation of direct damages". There
is no provision in the Statute of the Court either specifically empowering
the Court to make an interim award of this kind, or indeed debarring it from
doing so. In view of the final and binding character of the Court's
judgments, under Articles 59 and 60 of the Statute, it would however only be
appropriate to make an award of this kind, assuming that the Court possesses
the power to do so, in exceptional circumstances, and where the entitlement
of the State making the claim was already established with certainty and
precision. Furthermore, in a case in which the respondent State is not
appearing, so that its views on the matter are not known to the Court, the
Court should refrain from any unnecessary act which might prove an obstacle
to a negotiated settlement. It bears repeating that
"the judicial settlement of international disputes, with a view to which the
Court has been established, is simply an alternative to the direct and
friendly settlement of such disputes between the Parties; as consequently it
is for the Court to facilitate, so far as is compatible with its Statute,
such direct and friendly settlement..." (Free Zones of Upper Savoy and the
District of Gex, Order of 19 August 1929, P.C.I.J., Series A, No. 22, p.
13).
Accordingly, the Court does not consider that it can accede at this stage to
the request made in the Fourth Submission of Nicaragua.
286. By its Order of 10 May 1984, the Court indicated, pursuant to Article
41 of the Statute of the Court, the provisional measures which in its view
"ought to be taken to preserve the respective rights of either party",
pending the final decision in the present case. In connection with the first
such measure, namely that
"The United States of America should immediately cease and refrain from any
action restricting, blocking or endangering access to or from Nicaraguan
ports, and, in particular, the laying of mines",
the Court notes that no complaint has been made that any further action of
this kind has been taken.
287. On 25 June 1984, the Government of Nicaragua addressed a communication
to the Court referring to the Order indicating provisional measures,
informing the Court of what Nicaragua regarded as "the failure of the United
States to comply with that Order", and requesting the indication of further
measures. The action by the United States complained of consisted in the
fact that the United States was continuing "to sponsor and carry out
military and paramilitary activities in and against Nicaragua". By a letter
of 16 July 1984, the President of the Court informed the Agent of Nicaragua
that the Court considered that that request should await the outcome of the
proceedings on jurisdiction which were then pending before the Court. The
Government of Nicaragua has not reverted to the question.
288. The Court considers that it should re-emphasize, in the light of its
present findings, what was indicated in the Order of 10 May 1984:
"The right to sovereignty and to political independence possessed by the
Republic of Nicaragua, like any other State of the region or of the world,
should be fully respected and should not in any way be jeopardized by any
military and paramilitary activities which are prohibited by the principles
of international law, in particular the principle that States should refrain
in their international relations from the threat or use of force against the
territorial integrity or the political independence of any State, and the
principle concerning the duty not to intervene in matters within the
domestic jurisdiction of a State, principles embodied in the United Nations
Charter and the Charter of the Organization of American States."
289. Furthermore, the Court would draw attention to the further measures
indicated in its Order, namely that the Parties "should each of them ensure
that no action of any kind is taken which might aggravate or extend the
dispute submitted to the Court" and
"should each of them ensure that no action is taken which might prejudice
the rights of the other Party in respect of the carrying out of whatever
decision the Court may render in the case".
When the Court finds that the situation requires that measures of this kind
should be taken, it is incumbent on each party to take the Court's
indications seriously into account, and not to direct its conduct solely by
reference to what it believes to be its rights. Particularly is this so in a
situation of armed conflict where no reparation can efface the results of
conduct which the Court may rule to have been contrary to international law.
290. In the present Judgment, the Court has found that the Respondent has,
by its activities in relation to the Applicant, violated a number of
principles of customary international law. The Court has however also to
recall a further principle of international law, one which is complementary
to the principles of a prohibitive nature examined above, and respect for
which is essential in the world of today: the principle that the parties to
any dispute, particularly any dispute the continuance of which is likely to
endanger the maintenance of international peace and security, should seek a
solution by peaceful means. Enshrined in Article 33 of the United Nations
Charter, which also indicates a number of peaceful means which are
available, this principle has also the status of customary law. In the
present case, the Court has already taken note, in its Order indicating
provisional measures and in its Judgment on jurisdiction and admissibility
(I.C.J. Reports 1984, pp. 183-184, paras. 34 ff., pp. 438-441, paras. 102
ff.) of the diplomatic negotiation known as the Contadora Process, which
appears to the Court to correspond closely to the spirit of the principle
which the Court has here recalled.
291. In its Order indicating provisional measures, the Court took note of
the Contadora Process, and of the fact that it had been endorsed by the
United Nations Security Council and General Assembly (I.C.J. Reports 1984,
pp. 183-184, para. 34). During that phase of the proceedings as during the
phase devoted to jurisdiction and admissibility, both Nicaragua and the
United States have expressed full support for the Contadora Process, and
praised the results achieved so far. Therefore, the Court could not but take
cognizance of this effort, which merits full respect and consideration as a
unique contribution to the solution of the difficult situation in the
region. The Court is aware that considerable progress has been achieved on
the main objective of the process, namely agreement on texts relating to
arms control and reduction, exclusion of foreign military bases or military
interference and withdrawal of foreign advisers, prevention of arms traffic,
stopping the support of groups aiming at the destabilization of any of the
Governments concerned, guarantee of human rights and enforcement of
democratic processes, as well as on co-operation for the creation of a
mechanism for the verification of the agreements concerned. The work of the
Contadora Group may facilitate the delicate and difficult negotiations, in
accord with the letter and spirit of the United Nations Charter, that are
now required. The Court recalls to both Parties to the present case the need
to co-operate with the Contadora efforts in seeking a definitive and lasting
peace in Central America, in accordance with the principle of customary
international law that prescribes the peaceful settlement of international
disputes.
292. For these reasons,
THE COURT
(1) By eleven votes to four,
Decides that in adjudicating the dispute brought before it by the
Application filed by the Republic of Nicaragua on 9 April 1984, the Court is
required to apply the "multilateral treaty reservation" contained in proviso
(c) to the declaration of acceptance of jurisdiction made under Article 36,
paragraph 2, of the Statute of the Court by the Government of the United
States of America deposited on 26 August 1946;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges
Lachs, Oda, Ago, Schwebel, Sir Robert Jennings, Mbaye, Bedjaoui and Evensen;
Judge ad hoc Colliard;
AGAINST: Judges Ruda, Elias, Sette-Camara and Ni.
(2) By twelve votes to three,
Rejects the justification of collective self-defence maintained by the
United States of America in connection with the military and paramilitary
activities in and against Nicaragua the subject of this case;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges
Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evensen;
Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(3) By twelve votes to three,
Decides that the United States of America, by training, arming, equipping,
financing and supplying the contra forces or otherwise encouraging,
supporting and aiding military and paramilitary activities in and against
Nicaragua, has acted, against the Republic of Nicaragua, in breach of its
obligation under customary international law not to intervene in the affairs
of another State;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges
Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evensen;
Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(4) By twelve votes to three,
Decides that the United States of America, by certain attacks on Nicaraguan
territory in 1983-1984, namely attacks on Puerto Sandino on 13 September and
14 October 1983; an attack on Corinto on 10 October 1983; an attack on
Potosi Naval Base on 4/5 January 1984; an attack on San Juan del Sur on 7
March 1984; attacks on patrol boats at Puerto Sandino on 28 and 30 March
1984; and an attack on San Juan del Norte on 9 April 1984; and further by
those acts of intervention referred to in subparagraph (3) hereof which
involve the use of force, has acted, against the Republic of Nicaragua, in
breach of its obligation under customary international law not to use force
against another State;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges
Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evensen;
Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(5) By twelve votes to three,
Decides that the United States of America, by directing or authorizing
overflights of Nicaraguan territory, and by the acts imputable to the United
States referred to in subparagraph (4) hereof, has acted, against the
Republic of Nicaragua, in breach of its obligation under customary
international law not to violate the sovereignty of another State;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges
Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evensen;
Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(6) By twelve votes to three,
Decides that, by laying mines in the internal or territorial waters of the
Republic of Nicaragua during the first months of 1984, the United States of
America has acted, against the Republic of Nicaragua, in breach of its
obligations under customary international law not to use force against
another State, not to intervene in its affairs, not to violate its
sovereignty and not to interrupt peaceful maritime commerce;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges
Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evensen;
Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(7) By fourteen votes to one,
Decides that, by the acts referred to in subparagraph (6) hereof, the United
States of America has acted, against the Republic of Nicaragua, in breach of
its obligations under Article XIX of the Treaty of Friendship, Commerce and
Navigation between the United States of America and the Republic of
Nicaragua signed at Managua on 21 January 1956;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges
Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Sir Robert Jennings, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard; AGAINST: Judge Schwebel.
(8) By fourteen votes to one,
Decides that the United States of America, by failing to make known the
existence and location of the mines laid by it, referred to in subparagraph
(6) hereof, has acted in breach of its obligations under customary
international law in this respect;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges
Lachs, Ruda, Elias, Ago, Sette-Camara, Schwebel, Sir Robert Jennings, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judge Oda.
(9) By fourteen votes to one,
Finds that the United States of America, by producing in 1983 a manual
entitled Operaciones sicologicas en guerra de guerrillas, and disseminating
it to contra forces, has encouraged the commission by them of acts contrary
to general principles of humanitarian law; but does not find a basis for
concluding that any such acts which may have been committed are imputable to
the United States of America as acts of the United States of America;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges
Lachs, Ruda, Elias, Ago, Sette-Camara, Schwebel, Sir Robert Jennings, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judge Oda.
(10) By twelve votes to three,
Decides that the United States of America, by the attacks on Nicaraguan
territory referred to in subparagraph (4) hereof, and by declaring a general
embargo on trade with Nicaragua on 1 May 1985, has committed acts calculated
to deprive of its object and purpose the Treaty of Friendship, Commerce and
Navigation between the Parties signed at Managua on 21 January 1956;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges
Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evensen;
Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(11) By twelve votes to three,
Decides that the United States of America, by the attacks on Nicaraguan
territory referred to in subparagraph (4) hereof, and by declaring a general
embargo on trade with Nicaragua on 1 May 1985, has acted in breach of its
obligations under Article XIX of the Treaty of Friendship, Commerce and
Navigation between the Parties signed at Managua on 21 January 1956;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges
Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evensen;
Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(12) By twelve votes to three,
Decides that the United States of America is under a duty immediately to
cease and to refrain from all such acts as may constitute breaches of the
foregoing legal obligations;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges
Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evensen;
Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(13) By twelve votes to three,
Decides that the United States of America is under an obligation to make
reparation to the Republic of Nicaragua for all injury caused to Nicaragua
by the breaches of obligations under customary international law enumerated
above;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges
Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evensen;
Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(14) By fourteen votes to one, Decides that the United States of America is
under an obligation to make reparation to the Republic of Nicaragua for all
injury caused to Nicaragua by the breaches of the Treaty of Friendship.
Commerce and Navigation between the Parties signed at Managua on 21 January
1956;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges
Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Sir Robert Jennings, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judge Schwebel.
(15) By fourteen votes to one,
Decides that the form and amount of such reparation, failing agreement
between the Parties, will be settled by the Court, and reserves for this
purpose the subsequent procedure in the case;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges
Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Sir Robert Jennings, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judge Schwebel.
(16) Unanimously,
Recalls to both Parties their obligation to seek a solution to their
disputes by peaceful means in accordance with international law.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twenty-seventh day of June, one thousand nine
hundred and eighty-six, in three copies, one of which will be placed in the
archives of the Court and the others will be transmitted to the Government
of the Republic of Nicaragua and to the Government of the United States of
America, respectively.
(Signed) NAGENDRA SINGH,
President.
(Signed) Santiago TORRES BERNARDEZ,
Registrar.
President NAGENDRA SINGH, Judges LACHS, RUDA, ELIAS, AGO, SETTE-CAMARA and
NI append separate opinions to the Judgment of the Court.
Judges ODA, SCHWEBEL and Sir Robert JENNINGS append dissenting opinions to
the Judgment of the Court.
(Initialled) N.S.
(Initialled) S.T.B.
Separate opinion of
President Nagendra Singh
Separate opinion of
Judge Lachs
Separate opinion of
Judge Ruda
Separate opinion of
Judge Elias
Separate opinion of
Judge Ago
Separate opinion
of Judge Sette-Cama
Separate opinion of Judge
Ni
Dissenting opinion of
Judge Oda
Dissenting opinion
of Judge Schwebel
Dissenting opinion
of Judge Sir Robert Jennings |
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