INTERNATIONALCOOFJUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
CASE CONCERNING MILITARY AND
PARAMILITARYACTIVITIESIN AND
AGAINST NICARAGUA
(NICARAGUA iUNITED STATESOF AMERICA)
VOLUME III
COUR INTERNATIODEJUSTICE
MÉMOIRES.PLAIDOIRIESET DOCUMENTS
AFFAIRE DES ACTIVITÉS MILITAIRES
ET PARAMILITAIRESAU NICARAGUA
ET CONTRE CELUI-CI
(NICARAGUA CÉTATS-UNISD'AMERIQUE)
VOLUME III Abbreviated reference:
1.C J. Plearlings,Militury and PururnilitaryAclivi1ie.sin und ugainst Nicuraguu
(Nicuragua v. UnitedStates of Arnericcl),Vol. III
Référencaebrkgé :e
C.I.J. Mémoires,Activilémiliraires etparurniIitairesau Nicarugua
etconrrecelui-ci (Nicriraguac. Efars-Unisd'Amérique).Vol. 1I
Salesnumber
ISSN 0074-4433 No de vente:
ISBN 92-1-070825-3 CASECONC'kKNINGMILIT,\Ri' AKI) PARAMILITARI'
~----ITIESIN ANI) AGAIUST NICAKAGUA
(NICARAGUA v.UNITED STATESOF AMERICA)
AFFAIRE DES ACTIVITÉSMILITAIRESET PARAMILITAIRES
AU NICARAGUA ET CONTRECELUI-CI
(NICARAGUA C.ÉTATS-UNISD'AMÉRIQUE) INTERNATIONAL COURTOF JUSTICE
PLEADINGS,ORALARGUMENTS, DOCUMENTS
CASE CONCERNING MILITARYAND
PARAMILITARY ACTIVITIES IN AND
AGAINST NICARAGUA
(NICARAGUA v. UNITED SOFAMERICA)
VOLUME II1
COUR INTERNATIONALE DEJUSTICE
MEMOIRES,PLAIDOIRIESET DOCUMENTS
AFFAIRE DES ACTIVITÉSMILITAIRES
ET PARAMILITAIRESAU NICARAGUA
ET CONTRE CELUI-CI
(NICARAGUA c. ETATS-UNISD'AMÉRIQUE)
VOLUME III The case concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), entered on the Court's
General List on 9 April 1984 under number 70, was the subject of Judgments
delivered on 26November 1984(Military and ParamilitaryActivities inandagainst
Nicaragua (Nicaragua v. UnitedStates of America), Jurisdiction andAdmissibility,
Judgmenr, ICJ Reports 1984, p. 392) and 27 lune 1986 (Military and
Paramilitary Activities in and againsi Nicaragua (Nicaragua v. United States of
America), Judgment, 1.C.J Reports 1986, p. 14). Following the discontinuance
hy the applicant Government, the case was removed from the List hy an Order
of the Court on 26 September 1991 (Military and Paramilitary Activities in and
against Nicaragua(Nicaragua v. UnitedStates of America). Orderof26 September
1991, 1C J Reports 1991, p. 47).
The pleadings and oral arguments in the case are being puhlished in thefollow-
ing order :
Volume 1.Application instituting proceedings; request for the indication of pro-
visional measures and consequent proceedings; Memorial of Nicaragua
(Jurisdiction and Admissibility).
Volume II. Counter-Memorial of the United States of America (Jurisdiction and
Admissibility); Declaration of Intervention by El Salvador and observations
thereon by Nicaragua and the United States of Amenca.
Volume III. Oral arguments on jurisdiction and admissibility; exhibits and docu-
ments submitted by Nicaragua and the United States of America in connection
with the oral procedure on jurisdiction and admissibility.
Volume IV. Memorial of Nicaragua (Merits); supplemental documents.
Volume V. Oral arguments on the merits; Memorial of Nicaragua (Compensa-
tion); correspondence.
In interna1 references bold Roman numerals refer to volumes of this edition;
if they are immediately followed by a page reference, this relates to the new
pagination of the volume in question. On the other hand, the page numbers which
are preceded or followed by a reference to one of the pleadings only relate to
the original pagination of the document in question, which, if appropriate, is
represented in this edition by figureswithin square brackets on the inner margin
of the relevant pages.
Neither the typography nor the presentation mdy be used for the purpose of
interpreting the texts reproduced.
L'affaire des Activitésmilitaires et paramilitaires au Nicaragua et contre celui-
ci (Nicaragua c. Etats-Unis d'Amérique), inscrite au rôle général de laCour sous
le numéro 70 le 9 avril 1984,a fait l'objet d'arrêtsrendus le 29 novembre 1984
(Activitésmilitaires etparamilitaires au Nicaraguaet contre celui-ci(Nicaragua c.
Etats-Unis d'Amérique),compétence el recevabilité,arrêt,CIJ Recueil 1984,
p. 392) et le 27 juin 1986 (Activitésmilitaires et paramilitaires au Nicaragua et
contre celui-ci (Nicaragua c. Erats-Unis d'Amérique),arrêt, C.I.J. Recuei1 l 986,
p. 14). A la suite du désistementdu gouvernement demandeur, elle a étérayéedu rôle par ordonnance de la Cour du 6 septembre 1991 (Activités militaireet
paramilitairesau Nicaragua et contre celui-ci(Nicaragua c. Etats-UnCId'Amé-
rique),ordonnancedu26 septembre1991, CI. J. Recueil1991, p. 47).
Les piècesde procédure écrite etles plaidoiries relatives à cette affaire sont
publiéesdans l'ordre suivant:
Volume 1. Reouête introductived'instance: demande de mesures conservatoires
ci procr'dure y rcl;iti,e, mr'inoiredu Nissrsgua (r.<~rnpr:ienccet re:evabilitej.
Volume II. Ccintrc-rnimoirr Je. I.tni d'AniCrique i~oinpitcnrc ci
rcce\ahilitC): dcclaraiion d'intervention d'El Sdiva&>r et ohcri,ai~ons du
Nicarae-a et des Etats~ ~is d'Amériauesur cette déclarati~---.-.~~.
Volume III. Procédure orale surlesquestions de compétenceet recevabilité;docu-
ments déposéspar le Nicaragua et les Etats-Unis d'Amérique aux finsde la
urocédure~ral~relative à la com~étenceet à la recevabil~ ~ ~ ~ ~ ~ ~
vilurne IV. Mémoiredu ~icaragua (fond); documents additionnels.
Volume V. Procédure surle fond; mémoiredu Nicaragua (ré~aration);corres-
pondance.
S'agissant des renvois, les ch'ifïresromains gras indiquent le volume de la pré-
sente édition: s'ils sont immédiatement suivisDar une référencede uape, ce.te-
rcfcrcnw reni,oie i Id nouvelIr'pagination du !olumc conccrn6. En rcv~n:he. lei
nuniiros de pdge qui ne \tint prCcr:JI:,i~u>ui\i.;que de la seule indicdiion d'une
piècede procédurevisent la pagination originale du document en question, qui,
en tant quede besoin, est reproduite entre crochets sur le bord intérieur despages
concernées.
Ni la typographie ni la présentation ne sauraient être utiliséesaux fins de
l'interprétation des textes reproduits. CONTENTS -TABLE DES MATIÈRES
Oral Arguments on Jurisdiction and Admissibility - Plaidoiries sur la
compétenceet la recevabilité
OPENING OF THE ORALPROCEI:DING S............
STATEMEN BTMR. ARGUELLG OOMEZ (NICARAGUA ........
ARGUMEN OF PRO~SORCI~AYF(S NICARAGUA) .........
Nicaragua must be deemed to have accepted the compulsoryjurisdiction
of the Court by virtue of Article 36, paragraph 5, of the Statute of
the Court ....................
The original understanding of Article 36, paragraph 5, with special
reference to the situation in the United Stat........
The jurispmdence of the Court ..............
The practice under Article 36 (5) .............
The firstYearbook of the International Court of Justice....
The case of the Arbitral Award Made by rhe King of Spain on
23 December1906 .................
Opinions of publicists ................
United States practice ................
ARGUMEN OF PRO~SORBROWNLI (NICARAGUA) ........
Introduction: the procedural content............
The conduct of the Parties: recognition of the validity of Nicaragua's
declaration ....................
Consent to be hound as evidenced by consent ........
The legal relevance of formal defects in agreements and declarations
The evidence of Nicaragua's consent to the compulsory jurisdiction of
the Court ....................
The series of important public documents .........
The general opinion of States..............
The general opinion of puhlicists ............
Synthesis of the evidence ...............
Conclusion: Nicaragua's consentto he bound as evidencedby conduct
The note of 6 April 1984cannot modify or terminate the United States
declaration of 1946 .................
The note of 6 April 1984regarded as a purported termination of the
United States declaration and the substitution of a new declaration
The note of 6 Aoril 1984reearded as a.~ur.orted modification of the
United ~tatesdeclaration ..............
The legal nature of declarations............
The non-existence of a right of unilateral modification of declar-
ations of acceptance: as a question of general pnncipl...
1. The principle stated ..............
2. The evidence of State practic........... 3. The opinion of publicists (doctr. . . . . . . . .
4. tions refuted 1. . . . . . . . . . . . . . . .ility of declara-
The invalidity of the burported modification in accordance with the
express tenns of the United States declaration . . . . .
General conclusion concerning the note of 6 April . .4 . . .
The United States note 6fApril1984 and the issue of recipro. .y
The United States assertion that Nicaragua's declaration is inherently
terminable . . . . . . . . . . . . . . . . . . .
The unfounded thesis that Nicaragua has no1 accepted the "same"
obligation as the United State. . . . . . . . . . . .
The thesis that the United States benefits from the right of immediate
termination which (il is said) is implicit in the declaration of
Nicaragua . . . . . . . . . . . . . . . . . . .
The lo-ical dilliculties att-ndine the United States conceotion of
reciprocity . . . . . . . . . . . . . . . . . . .
General conclusion on reciprocit. . . . . . . . . . . .
General conclusion. . . . . . . . . . . . . . . .
ARGUMEN OF PRO~~SSO CRHAYES (NICARAGUA) . . . . . . . . .
ARGUMEN OF MR. RBICRLB(R NICARAGUA . ). . . . . . . . . .
El Salvador, Honduras and Costa Rica are not indispensable parties
The Vandenberg Amendment does not preclude jurisdiction in the
absence of these three Stat. . . . . . . . . . . . . .
ARGUMEN TP PROFESSO BROWNLI(E NICARAGUA) . . . . . . . .
The Multilateral Treaty Reservation has no applic.ti. . . . .
PLA~IRIE DE M. F%LLI% (TICARAGUA ) . . . . . . . . . . .
L'admissibilitéde la requé. . . . . . . . . . . . . . .
1.La «justiciabilité» du li. . . . . . . . . . . . .
II. En rendant son arrêt,la Cour exercera des fonctions proprement
judiciaire. . . . . . . . . . . . . . . . . . .
a) Les arréts de la Cour, donc, ont pour vocation de fixer les
droits des partàel'avenir. . . . . . . . . . . .
b) L'arrétde la Cour pourra et devra êtreexépar les parties
III. L'existence de négociations parallèlesne fait pas obàtlale
juridiction de la Co. . . . . . . . . . . . . . .
a) Les négociations menées dans le cadre du processus de
Contadora . . . . . . . . . . . . . . . . .
h) La compétence parallèle desorganes politiques des Nations
Unies . . . . . . . . . . . . . . . . . . .
ARGUME~ TF PROFESSO CRHAYE(SNICARAGUA) . . . . . . . . .
The legal issues raised by Nicaragua's application are not committed to
the exclusivecompetence of the Security Counc. . . . . . .
STATEMEN BTMR. ARG~ELLO GOMEZ(NICARAGUA .) . . . . . .
Submissions on behalf of the Government of Nicaragua. . . . Nicaragua's pre-Charter status: its non-acceptance of the Permanent
Court's compulsory jurisdicti. . . . . . . . . . . . .
The entw into force of the United Nations Charter did not subject
~icaraéua to the com~ulsorv iurisdiction of the Court
The necessity of foundi& juritdktion on the Statute of the C.urt
Nicaragua's conduct over the past 40 years creates an estoppel barring
its present effort to invoke the Court's compulsory jurisdiction
Conclusion . . . . . . . . . . . . . . . . . . . . .
ARGUMEN OF MR. NORTON (UNITEDSTATE OF AMERICA .) . . . . .
The Multilateral Treaty Resewation to the United States declaration
precludes the Court's exerciseof jurisdiction over Nicaragua's claims
ARGUMENT OF PROFESSO RCDOUGAL (UNITEDSTATE SFAMERICA) . .
The Court lacks jurisdiction because the United States n6tApril
1984 temporarily suspends Nicaragua's claims from the scope of the
United States consent to the Court's iurisdic. . . . . . .
1. Declarations under Article 36 (2) argeneriscomponents of
the Court's adjudicative process . . . . . . . . . .
II. The 6 Avril note was a valid modification of the United States
1946~eilaration with immediate effec. . . . . . . . .
III. Reciprocity requires that the 6 April note he deemed effectiveas
against Nicaragua, whatever its status omnes . . . . .
IV. The 6 April note is valid under United States law and hence
effectivewithout questionder international law. . . . .
V. The most fundamental policies in the common interest of al1
States require an adjudicative process based upon shared consent
ARGUMENT OF PROFESSO SOHN(UNITED STATE SF AMERICA ) . . . .
The application is inadmissible hecause it relates to matters which fall
within the competence of the Security Coun. . . . . . . .
ARGUMEN OF PROFESSO RWRE(UNITED STATE OSFAMERICA) . . . .
Inadmissibility of the reques. . . . . . . . . . . . . .
The legal rights and sovereign equality of third States not before the
Court . . . . . . . . . . . . . . . . . . . . .
The Court should not interfere with regional efforts to bring ongoing
hostilities to an en. . . . . . . . . . . . . . . .
The Court should not interfere with decisions of the Secunty Council
or regional arrangements under Chapter VI11of the Charte. .
The Court, as the principal judicial organ of the United Nations,
should respect the inherent limitations of the judicial process
Conclusion . . . . . . . . . . . . . . . . . . . . .XII CONTENTS - TABLE DESMATIÈRES
ARGUMEN TF MR. REICHLE( NICARAGUA ...........
Refutation of some new arguments about the Vandenberg Amendment
STATEMENT BY MR.ARGÜELLG OOMEZ (NICARAGUA .)......
STATEMENTB MYR.ROBINSO(N UNITEDSTATE OSFAMERICA) .....
ARGUMEN TF MR. NORTON (UNITED STATE SF AMERICA ).....
The Multilateral Treaty Reservation ............
STATEMEN BYTMR. ROBINSO(N UNITED STATE OSFAMERICA) .....
READING OF THE JUDGMENT
Exhibits and DocumentsSubmitted by Nicaragua and the United States of
America in Connection with the Oral F'rocedureon Jurisdiction and
Admissibilit- Documents déposés par leNicaragua et les Etats-Unis
d'Amériqueaux finsde la procédureorale relative a la compétenceet a la
recevabilité
Exhihifssubmirredby Nicaragua
Exhibit A. Reports of Nicaragua's acceptanceof Contadora Treaty and
the United States reaction...............
1. "Nicaranuans Sav Thev Would Sien Prooosed Treat,,~ New Yo~ ~
Times,23 septekber 1984 .. -.. '. ........ 295
2. "US Official Discounts Pledge by Nicaragua", New York Times,
24 September 1984 ................ 295
3. "US Urges Allies to Reject Contadora Plan", WashingtonPosf,
30 September 1984 ................ 295
4. "W. Europcans to Aid Central Americans". WashinptonPosf.
30 Sentember 1984 ............ '. .. ~ ~
5. "~atin Peace Plan: Wby the US Balks", New York Times,
3 October 1984 .................
6. "US Version of Contadora Draft Dis~uted". Washin~.tonPosr.
3 October 1984 ................. "
Exhibit B. Documents from the papers of Manley O. Hudson, Langdell
Law Library, Harvard Law School, regarding King of Spain case .
1. Letter to Estehan Mendoza, Minister of Foreign Relations,
Honduras, from Manley O. Hudson, Harvard University,
Cambridge, Massachusetts, dated 12August 1955 .....
2. Letter to Manley O. Hudson from Esteban Mendoza of 4 January
1956(dated 4 January 1955) ............
3. Letter to Manley O. Hudson from Esteban Mendoza, dated 9 May
1956 .....................
4. Letter to Esteban Mendoza from Manley O. Hudson, dated 9 May
1956 .....................
5. Letter to Esteban Mendoza from Manlev O. Hudson. dated
7. Letter-to Esteban Mendoza from Manley O. Hudson, dated
23 May 1956 .................. 8. Letter to Esteban Mendoza from Manlev O. Hudson. dated 1June
1956 .....................
9. Letter to Manley O. Hudson from Esteban Mendoza, dated 4June
1956 .....................
10. Letter to Manley O. Hudson from Esteban Mendoza, dated 6June
1956 .....................
II. Letter to Manley O. Hudson from Judge Jorge Fidel Duron,
dated 24 August 1957 ...............
12. Letter to Manley O. Hudson from Jorge Fidel Duron, dated
13September 1957 ................
13. Memorandum on stationery of the Honduran Embassy, dated
4 June 1958 ..................
14. Letter to Charles De Visscher from Manley O. Hudson, dated
4 June 1958 ..................
15. Letter to Ramon Cmz from Manley O. Hudson, dated 4 June
1958 .....................
16. Letter to Manley O. Hudson from Ramon Cruz, dated II June
1958 .....................
Exhibir C Excerpts from legal opinions of Suzanne Bastid, dated
3 August 1956, and Charles Rousseau, dated 21 June 1956, on the
matter of the boundary between Nicaragua and Honduras ....
Exhibit D. List of United States Federal Court decisions citing treaties
in force .....................
Exhibit E. Treaty lists referred to in the speech of Professor Brownlie
Exhibir F Congressional Record, I August 1946(p. 10618) ....
Addirionaldocuments submittedby Nicurogua
Liste des traités et accordsde la France, en vigueur au 1" janvier 1982,
par Marcel F. Surbiguet et Denys Wibaux, Paris, direction des
journaux officiels,1982,pp. III-V and 368-369 ........
Vertrageder Bundesrepublik Deutschland, Erganzungsband, Verzeichnis
und Stand der Verrrüge, 1, Heransgegeben vom Auswartigen AMT,
Carl Heymanns Verlag KG, Bonn, Koln, Berlin, pp. 41 and 44 . .
SverigesOverenskommelser med Frammande Makter, 1947,Stockholm,
1948,Kumgl. Boktryckeriet, P. A. Morstedt & Soner, pp. 199-200
Tractatenblad van het Koninkrijk der Nederlanden,jaargang 1956No. 1,
A. Tirel, Overeenkomsrinzakr de oprichtingvan eenInternationale
Commissievoor deInremutionaleOpsporingsdienst,me Btijlage;Bonn,
6juni !955,p. 45 ..................
Documents submitreb dy the United Statesof America
1. 7 September 1984 Draft "Contadora Act for Peace and Co-
operation in Central America (Revised)". UnofficialEnglish trans-
lation of Spanish original ..............
2. Joint communique of the ministerial meeting of San José,Costa
Rica, 29 September 1984,as contained in cable San Jose 7633 . .
3. "Exposicion del Senor Ministro de Relaciones Exteriores al
Honorable Congreso Nacional pidiendo la aprobacion de la Carta
de las Naciones Unidas, el Estatuto de la Corte Internacional de
Justicia y los Acuerdos ProvisionalesConcertados por los Gobiernos
Participantes en la Conferencia de las Naciones Unidas sobre Organizacion Internacional (Managua, D.N., 2 de Julio de 1945)",
in Republica de Nicaragua, Memoria Presenradaal Honorable
CongresoNacional Pur el Secrelariode Estado en el Despachode
Relaciones Exleriores.1945 ("Statement of the Minister of Foreign
Relations to the National Congress requesting the Approval of the
United Nations Charter, the Statute of the International Court of
Justice, and the Provisional Agreements Concluded hy the
Governments Participating in the United Nations Conference on
International Organization" (Managua, 2 July 1945) in Republic of
Nicaragua, Memorial Presentedro rhe Narional Congressby the
Secreraryof Srarein ihe OBce of ForeignRelations,1945) (English
translation of pages139-142provided) ..........
4. Letter from Manley O. Hudson, Harvard University, Cambridge,
Massachusetts, to Esteban Mendoza, Minister of Foreign Rela-
tions, Honduras, dated 14November 1955 ........
5. Letter from Manley O. Hudson 10Esteban Mendoza of 16Decemher
1955with attached aide-mémoire ............
6. Letter from Manley O. Hudson to Esteban Mendoza of 20 De-
cember 1955(without attachment) ...........
7. Letter from Manlev O. Hudson Io Esteban Mendoza of 16Januarv
1956 .....................
8. Letter from Esteban Mendoza to Manley O. Hudson of 10February
1956(Soanish with Enelish translation of II Februarv 1956) . .
9. I.ette;f;om Manley 0.kudson to Esteban Mendoza of 17Fébruary
1956 .....................
IO. Letter from Esteban Mendoza to Manley O. Hudson of 2 May 1956
(Spanish and English) ................
II. Letter from Manlev O. Hudson to Estehan Mendoza of 7 Mav
1956 .....................
12. Letter from Esteban Mendoza to Manlev O. Hudson of 26 Mav
1956(Spanish and English) ..............
13. Letter from Manley O. Hudson to Esteban Mendoza of 31 May
1956 .....................
14. Letter from Manley O. Hudson 10 Esteban Mendoza of 26 June
1956 .....................
15. Letter from Manley O. Hudson Io Esteban Mendoza of 23 August
1956 .....................
16. Letter from Jorge Fidel Duron to Manley O. Hudson of 30 April
1957 .....................
17. Letter from Ramon E. Cruz to Manley O. Hudson of 25 June 1957
18. Telegram from United States Embassy Tegucigalpato Secretary of
State of 19March 1957 ...............
19. Letter from Whiting Willauer, United States Amhassador to
Honduras, to R. R. Rubottom, Acting Assistant Secretary of State
for Inter-Amencan Alïairs, of 19 March 1957 .......
20. Memorandum from the Department of State, Office of the Legal
Adviser, 10 December 1946, transmitting memorandum entitled
"Reference to International Court of Justice of Disputes under
Trusteeship Agreementfor Japanese Mandated Islands", 6December
1946 ..................... CONTENTS - TABLE DES MATIERES
21. "President's Power to Give Notice of Termination of US-ROC
Mutual Defense Treaty", memorandum for the Secretary of State
from the Legal Adviser, Department of State, 15 December 1978,
as reproduced inTreaty Termination, Hearings before the Committee
on Foreign Relations, United States Senate, Ninety-sixth Congress,
First Session, 9, 10,and II April 1979 ..........
22. Statement of Abram Chayes, Harvard University, Cambridge, Massa-
chusetts, Treaty Termination, Hearings before the Committee on
Foreign Relations, United States Senate, Ninety-sixth Congress,
First Session, 9, 10 and II April 1979,pp. 306-312 ......
23. Questions Io and answers by Abram Chayes, Treaty Termination,
Hearings hefore the Committee on Foreign Relations, United States
-~~~~~ .~inetv~~,~th Coneress",First Session. 9. 10 .nd'11 Avril
1979,pp. 327-333 .................
24. Statement of Lawrence A. Hammond, Deputy Assistant Attorney
General. Deoartment of Justice.Treatv Termination. Hearines before
the ~ommitiee on Foreign ~e1;tions:~nited ~tates ~enate;~inet~-
sixth Congress, First Session, 9, 10 and 11Apnl 1979,pp. 192-196
25. Questions Io and answers from the Legal Adviser and the
Denartment of State. Treatv Termination. Hearines before the
- ~ - ~ ~ ~
Ciimmiitec <in I.'oreignKcl:itii~n\.liniicd Stsic, Scnatc. N~net!-sixth
Cungrcss. tirhi Sc>\i<>n9,. I(Id~id1I April 1979.pp. 197-2llX . .
26. Kclércncc to Internaii~~ndlCourt iii Justice of ,liwutcs unilcr
Trusteeship Agreement for Japanese Mandated Islands
Certification ............... ORAL ARGUMENTS ON JURISDICTION AND
ADMISSIBILITY
MINUTESOFTHE PUBLICSlTTlNGS
heldar rhePeacePalace.The Hague,/rom 8 Io 18 Ocroberand26 November1984,
Presidenriaspresiding
PROCÈS-VERBAUXDESAUDIENCESPUBLIQUES
tenuesauPalaisdela Paix. à La Hoye, du8 au 18ocrohreel le26 novembre1984.
souslaprésideeed. Elias,Président SIXTH PUBLIC SITïING (8X 84,3 p.m.)
Present: President ELIAS; Vice-PresidenrSETTE-CAMARA J;dges LACAS,
Monozov, NAGIINI>R SINCII,RUDA,MOSLBR O,UA,ACO,EL-KHANIS ,CHWEBEL,
Sin ROBERTJBNNINGS ,R LACAARKIÈRB M,BAYII,BI!I>JAOUIJudge ad hoc
COLLIA~U ;egistraTonnes BenNinvsz.
Alsopresenr.
For rhe Governmenrof Nicaragua:
H.E. Mr. Carlos Argüello Gbmez, Ambassador, as Agen1and Counsel;
Mr. lan Brownlie, Q.C., F.B.A., Chichcle Professor of Public International
Law in the University of Oxford; Fellow of All Souls College, Oxford,
Hon. Abram Chayes, Felix Frankfurter Profcssor of Law, Harvard Law
School; Fellow, American Academy of Arts and Sciences,
Mr. Alain Pellet, Professor ai the University of Paris-Nord and the Institut
d'études politiquesde Paris,
Mr. Paul S. Reichler, Reichler and Appelbaum, Washington, D.C.; Member
of the Bar of the Uniied States Supreme Court; Member of the Bar of the
District of Columbia,s CoiinselandAdvocotes;
Mr. Augusto Zamora Rodriguez, Legal Adviser 10 the Foreign Ministry of
the Repuhlic of Nicaragua,
Miss Judith C. Appelbaum, Reichler and Appelbaum, Washington, D.C.;
Member of the Bar of the District of Columbia and the Siate of California,
Mr. Paul W. Khan, Reichler and Appelbaum, Washington, D.C., Member of
the Bar of the District of Columbias Counsel.
For theGovernmenr of the UnitedStatesof America:
Hon. Davis R. Robinson, Legal Adviser, United States Department of State,
as Agentand Counsel;
Mr. Daniel W. McGovern, Principal Deputy Legal Adviser, United States
Department of State,
Mr. Patrick M. Norton, Assistant Legal Adviser, United States Department
of State,s Deputy-Agents and Counsel;
Mr. Ted A. Borek, Assistant LegalAdviser, United States Dcpartment of State,
Mr. Myres S. McDougal, Sterling Professor of Law Emeritus, Yale University,
Yale Law School, New Haven, Connecticut; Distinguished Visiting Professor of
Law, New York Law School, New York, New York,
Mr. John Norton Moore, Walter L. Brown Professor of Law, University of
Virginia School of Law, Charlottesville. Virginia,
Mr. Fred L. Morrison, Professor of Law, the Law School of the University of
Minnesota, Minneapolis, Minnesota,
Mr. Stefan A. Riesenfeld, Professor of Law, University of California School
of Law, Berkeley, California, and Hastings College of the Law, San Francisco,
California,4 MlLlTARY ANI)PARAMlLlTARY ACTIVITIES
MF. Louis B. Sohn, Woodrufl Professor of International Law, University of
Georgia School of Law, Athens, Georgia; BernisProfessor of International Law
Emeritus, Harvard Law School, Cambridge, Massachusetts, os Counsel;
Ms Frances A. Armstrong, Attorney-Adviscr, Office of the Legal Adviser,
United States Department of State,
Mr. Michael J. Danaher, Member of the Bar of the State of California,
Ms Joan E. Donoghue, Attorney-Adviser, Officeof the Legal Adviser, United
States Department of State,
Ms Mary W. Ennis, Attorney-Adviser, Oflice of the Legal Adviser, United
States Department of State,
Mr. Peter M. Olson, Attorney-Adviser, Office of the Legal Adviser, United
States Department of State,
Mr. Jonathan B. Schwartz, Attorney-Adviser, Office of the Legal Adviser,
United States Department of State,
Ms Jamison M. Selhy, Attorney-Adviser, Officeof the Legal Adviser, United
States Department of State,
Mr. George Taft, Attorney-Adviser, Officeof the Legal Adviser, United States
Department of State,
Ms Gayle R. Teicher, Attorney-Adviser, Office of the Legal Adviser, United
States Department of State, as Arrorney-Advisers. OPENING OF THE ORAL PROCEEDINGS
The PRESIDENT: The Court rneets today to hear the oral arguments of the
Parties in the case concerning Militury und ParamilitaryAcfiviiies in and against
Nicaragua brought by the Republic of Nicaragua against the United States
of America.
The Application of Nicaragua was filedon 9 April 1984 instituting proceedings
against the United States in respect of a dispute concerning responsihility for
Miliiary and ParamiliiaryAciivities in and againsiNicaragua.
By an Order dated 10 May 1984', the Court decided, inter alia, that the
written proceedings should first he 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= time-lirnits were fixed for the filing of a
Mernorial by the Repuhlic of Nicaragua and a Counter-Memonal hy the United
States of America, and those pleadings were duly filed within the tirne-limits
fixed. The written proceedings heing thus closed, the case is ready for hearing
on the issues of the jurisdiction of the Court to entertain the dispute and the
adrnissibility of the Application.
Since the Court includes upon the bench a judge of United States nationality,
but no judge of Nicaraguan nationality, the Repuhlic of Nicaragua has exercised
its right under Article 31, paragraph 2, of the Statute of the Court to choose a
judge ad hoc.The person chosen is Professor Claude-Albert Colliard, of French
nationality. Professor Colliard was formerly a Professor of the Faculty of Law
and Econornic Scienceof Pans, Deputy Director of the Institute of Comparative
Law, and founder of the Centre for Study and Research in International Law.
He has taken part in nurnerous international activities, as member or chairman
of the French delegation, or as consultant to international organizdtions.
Under Articles 31 and 20 of the Statute of the Court. a iud.e -d hoc, before
i;ihinp up hi5dutics. hils Io niakca iolcmn dc:l:ir;iiion in opcn court ihat hc iiiII
cxcrcisc his porrer, inipart~all) .ind ciinsiicnlioiisly I nom cal1upon Profcb.;or
Colli.irJ to rnjkc ihdt Jeillirlitii)n. N'ould ihorc prrvrnt plcssc stand.
Professor COLLIARD :Je déclaresolennellement que je remplirai mes devoirs
et exercerai mes attributions de juge en tout honneur et dévouement,en pleine
et parfaite impartialité eten toute conscience.
The PRESIDENT: Please he seated. I place on record the solernn declaration
made by Judge Colliard, and declare him duly installed as Judge ad hocin the
case concerning Miliiary and ParamiliiaryAciivities in andagainst Nicaragua.
On 15 August 1984 the Repuhlic of El Salvador filed in the Registry of the
Court a Declaration of Intervention' under Article 63 of the Statute. In accor-
dance with the Rules of Court, the Parties to the case were invited to give their
observations on this declaration.
By a letter dated 10 September 1984the Republic of El Salvador requested a
hearing on the question of ils Declaration of Intervention.
' I.C.J.Reports 1984,p. 169.
"1,bipp. 451-462.6 MILITARY AND PARAMILITARY ACTIVITLES
On 4 Octoher 1984, the Court made an Order' on the Declaration of
Intervention of El Salvador; and 1 shall now read the operative clauses of
that Order.
"The Court, by 9 votes to 6, decidens ot to hold a hearing on the
Declaration of Intervention of the Repuhlic of El Salvador."
Those in favour of that decision were myself, Vice-President Sette-Camara,
Judges Lachs, Morozov, Nagendra Singh, Oda, El-Khani, Mhaye and Bedjaoui.
Judges Ruda, Mosler, Ago, Schwebel, Sir Robert Jennings and de Lacharrière
voted against. The Order continues: the Court
"/d/rc~<I thai sihs Di~laration of Intcn~eniiùn 01' ihc Kcpuhlic of El
Salvada~ris inadmissible inasniush as ilrclatev IO the currcnt pharc olthe
proceeding~hroughi by Nicaragua Iigdinsi ihc United Si.iics ,>iAmericIi".
That decision was adopted by 14 votes to 1, the judge voting against heing
Judge Schwebel. Judge Colliard did no1 take part in the decisions set out in
~ ~ ~ - - ~ ----
Judges Nagendra Singh, Oda and Bedjaoui appended separate opinions to the
Order, and Judges Ruda, Mosler, Ago, Sir Robert Jennings and de Lacharriére
appended ajoint separate opinion. Judge Schwebelappended a dissenting opinion
to the Order.
Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court has
decided that copies of the pleadings on the questions of jurisdiction and
admissihility, and the documents annexed, will k made accessible to the public
with effectfrom the opening of the present oral proceedings. Copies thereof have
also heen made available to the Government of El Salvador.
On 5Octokr 1984the Agent of Nicaragua transmitted to the Court a numher
of new documents to which it is intended Io refer during the present oral
proceedings. In accordance with Article 56 of the Rules of Court, copies thereof
were forthwitb transmitted IO the Agent of the United States.
By agreement between the Parties, approved hy the Court, the Agent in
Counsel for the Republic of Nicaragua will address the Court. STATEMENT BYMR. ARGÜELLO GOMEZ
AGENT l'OR THE GOVCRNMEPITOF NICARAGUA
Mr. ARGÜELLO GOMEZ: MI. President. Members of the Court. Mav it ~~
please the Court.
Nicaragua submits that it kas fullydemonstrated that the Court hasjurisdiction
in this case and that Nicaraeua's Aoolication is comoletelv admissible.~I~ the
lirsi plciccNicaragua has accepied ihe compulsriry jurlsdictlon , iiiihc Codri As
:Vir.aragu;i'sMeniorial of 30 Junc dciiiiiri~irdtes,and a5 Proiesior Chayc, UIII
furihcr bhow this afternoun, undrr the terms of Ariicle 36 (5, of ihc Siaiuir oi
ihe Court Nicaragua's declaraiion <if 1929 opcraied io hind Nicaragua to ihis
Court's jurisdiction whcn Nicaragua raiificd the Charier of thc Linilcd Nations
in 1946.
As Aeent for mv Go,ernment. 1 wish to make one thine oerfectlv clear. ~ ~ ~ ~~ ~ ~
NicaraGa has always believed thai il was bound by the ~ourt'~j;risdict;on and
has always acted in a manner consistent with that helief.
It has been said hv the United States. in an attemot to contradict this
fundamental point, that Nicaragua never completed its internal process of
ratification of thc Statute of the Permanent Court of International Justicc. At
the hearing on interim measures ofprotection, 1placed mysclfon record affirming
that, hased on my knowledge as a Nicaraguan lawyer, former Minister of Justice
and Agent of Nicaragua in these proceedings the Statute of the Permanent Court
of International Justice was ratified by the Nicaraguan Government - 1reiterate
that affirmation today.
The Constitution of Nicaragua descnbed by the United States as in force in
the 1930s was in fact never in force. Ils title clearly states "Constitution Non
Nata de 1911" or. in translation. "Unborn Constitution of 1911". For oractical
purposes, and to avoid introducing more documents, we can accept as <alidlyin
force Articles 100and IO1of that Constitution because they are worded in the
same way in the Constitution that was actually in force during the relevant time
period. Those Articles clearly indicate that if the President did no1 object to the
law within 10days after having receivedit from Congress, the law was considered
ratified, and the President should puhlish il. Publication of a law in Nicaragua
can be effected hy any method, written or oral. Whether then-President Sacasa
ever puhlished it in the usual - but no1 obligatory - way in the Cucetu is of
no legalconsequence. Its publication according to the Nicaraguan system is even
confirmed by the fact that the United States State Department got a copy. The
fact that in 1939 Nicaragua sent a telegram to the Lcague of Nations advising
that the instruments of ratification would he sent opportunely is further evidence
that the internal ratification process was completed.
Il has been said by the United States that the instruments of ratification were
never sent hy Nicaragua. Unfortunately, we have very scanty records in
Nicaragua. At this point, 1 cannot certify the facts one way or the other. In Our
research of this aiïair, we investigated the Yearhooks published hy the Ministry
of Foreign Aiiairs of Nicaragua. These were regular yearly publications. But 1
found no trace of a Ycarbook for 1939 in Nicaragua in the Government
collections. The Library of Congress of the United States has those volumes but
we were told no copy of a 1939 Yearbook was on the shclves - in fact, we
don't know if it exists. If the instruments of ratification were sent - and thereWashington stated that Nicaragua was not subject to the Court's jurisdiction.
The document is plainly incompetent as evidence and, in any event, does not
reflect any such statement hy the Nicaraguan Ambassador. As the document
itself reveals, it was the United States representative at that meeting who made
reference to Nicaragua's acceptance of the compulsory jurisdiction, not the
Nicaraeuan Ambassador. The Nicaraeuan Amba-sador. referrin- 10 the entire
prohlem of tinding an appropriale resoluiiun uith Ilondurai, is reported only as
having said that an agrccmeni bctueen thc lu,) countnei would have icihc
rcachrd tu uvcrconie this dilli~~uli).B . yseleciivequoiaiion the Uniied States trirs
1,)make itappear thai ihr.Ambasrador's rcputcd remark related Io the compul-
iory lurisdiciion question. An) ruch reference i, immediatcly dispellcd upon
reading the entire document.
Finally there is this lawsuit initiated by Nicaragua. Nicaragua's Application
asserts that Nicaragua is bound by the compulsory jurisdiction of the Court.
Nicaragua has thus done everything one might expect from a State that is and
c~~siders itself bound bv comoulsorv >u>isdiction. One. it has never orotested ils
inclusion inthe list of States accepting compulsory jurisdiction that has appeared
in every relevant official publication. Two, it has appeared as Respondent in a
casewhere iurisdiction wasasserted in vart on the hasis of Nicararuàs acceptance
of compul~oryjurisdiction and it acqGiescedin that assertion. ~iree, it has filed
an Application asserting jurisdiction based on its declaration accepting compul-
sory Jürisdiction.
Given al1these events. if the Aonl..ant and the Resoondent chaneed olaces-.
thai iiiil the Lnitcd ~iater uerc iuing Nicdragu~,ci>ul~anyune duubt what the
result would be if Niraraguÿ ~ittenipied ii)den) jurisdtction ha\eJ iin ils apparent
omission in the 1930s IO deposii in the Registry of the expired Pcmianenl Couri
oi Inicrnaiional Jusiice 11, instrulileni of ratifiraiion of ihc now cliinzt i'rotoçoi
of Signature of ihe Statuie oithr Court'! I seriously doubt ihat Nicaragua ci>uld
find any recognized international lawyer to even make such an argument on
ils behalf.
Before this case,not even the United States Department of State helievedNica-
ragua's acceptance of compulsory jurisdiction was in any way invalid. This
is shown bv two facts. First. the unbroken listine of Nicararua be"nr so bo-nd
b) ihr.compulsory jurisdiilii>n iliihe Ciluri. u,iihout Iimitdiion in dl1ediiions iii
ihc authorit~ti\e Stair Dcpirtnient puhliiaiions Tr<.<ir!cei I.;~rcr.Second, the
letier frum Sccretarv of State Shulir of 6 Avril 1984,ihe iole purnosr ul'which
was to prevent Nicaragua from maintaining-this suit. Why shodd such a drastic
measure as this letter have been taken if the United States believed Nicaragua
was not subject to compulsoryjurisdiction?
The letter of Secretary of State Shultz is truly disappointing, especially when
compared with the Memorandum of John Poster Dulles, who later also served
as Secretary of State, dated 10 July 1946, and concerning acceptance hy the
United States of the compulsory jurisdiction of the International Court of Justice.
Mr. Dulles wrote:
"The United States, since ils formation, has led in promoting a reign of
law and justice as between nations. In order to continue that leadership, we
should now accept the jurisdiction of the I.C.J. If the United States, which
has the material power to impose ils will widely in the world, agrees 10
submit to the impartial adjudication of its legalcontroversies, that willinau-
gurate a new and profoundly significant international advance. Conversely,
a failure to take that step would be interpreted as an election on our part
to rely on power rather than reason."10 MILITARY AND PARAMI1,ITARY ACTIVITIFS
In 1984,we have another Secretary of State sending notice to the world that
in disputes with any Central American State, the United States Government
tends to rely on power rather than reason for the next Iwo years.
The United States says that the right place to deal with this prohlem is
Contadors. How hollow those words ring now. The most significant progress in
the Contadora process was achieved after the Court's 10May Order. After that
date, Nicaragua and Costa Rica signed the first concrete agreement Io emerge
from that process, dealing with the border situation. After that date, the four
Contadora countries. in consultation with the five Central American States.
prescnicd the Jraft of a fiwl pcacc agreement. On 22 Seplember, Nicaragua
formally iommunicatcd ils asceptance of ihç pr.accagreemcnr and ils inicniion
to signand ratify il. One wouldthink, given the pious representations made hy
the United States to this Court, the United States would have applauded this
action as did the Foreign Ministers of the entire European Economic Community
who met in Central America a few days later. Instead, the United States bitterly
criticized Nicaragua for ils action and look immediate steps to torpedo the
Contador;~peace initiative. These actions by the United StatesGovernment have
been amply reported in the world press and we have introduced them in Court
for the record. Prohahly, one headline from the Washingron Posr of 30 September
summarizrs this. 1 quote: "US Urges Allies to Reject Contadora Plan." There
is certainly tortuous reasoning involved in any argument that resort to this
Palace of Peace could impcde peace in Central America.
If it were necessary to prove the obvious, this case proves that the use of legal
remedy is only conducive to peaceful settlements.
The United States contends that this case should no1go fonvard in the absence
of El Salvador. Costa Rica and Honduras. hecause accordine to the United
States. iheir righis are somehuw ini,oli,ed here This ~snoi truc. Nicaragua's
Application raiscr aiiubaiiiins only againsl the United Siales and seekh rcdrejs
onlv from the Ilnitcd States. I'hcrc are no cl.iimb sr-inlt and no relief rodgh.
frok any other State.
The United States attempts to make il appear as though Nicaragua is trying
to prevent theother Central American Statesfrom receivingmilitary or economic
assistance from the United States. It is no1 true. Nicaragua's Application seeks
no such thing. All Nicaragua seeks is an end to the illegal United States mining
of Nicaraguan ports, and an end to the illegal United States support for the
mercenary army - created, financed and directed hy the United States - that
is conducting military and paramilitary attacks against my country in a self-
proçlaimed effort to overthrow my Government. Nicaragua seeks an order
preventing the United States from providing any support, either directly or
indirectly, to these forces.
Surely none of the other Central American States has the right to have the
United States mine Our ports or engage a mercenary army 10carry out military
and paramilitary attacks against Nicaragua and overthrow OurGovernment.
Mr. President and Mcmhers of the Court, at present we are engaged in a
hearing of a decidedly technical legalnature. For this reason, 1cannot dwell on
the very tragic circumstances that have originated this case and that have not
abated since its inception.
Nonetheless, in compliance with the Order of 10 May of this year in which
you decided to keep the matters covered by that Order continuously under
review, Imust inform you very briefly that the illegal use of forceby the United
States against Nicaragua has increased enormously sincc the date of the Order.
More than 1,000 Nicaraguans have been killed, wounded or maimed sincc
that time. Cities, towns and economic targets have been hit constantly hy themercenary army financed and directed hy the United States. The United States
Senate, at the urging of the Reagan Administration, voted to appropriate another
28,000,000 United States dollars for the illegal war ta he carried on at least
through 30 September 1985.
President Elias has reauested hoth Parties to he concise. 10centre exclusivelv
on the legal questions of jurisdiction avoiding repetitive & political argumentS.
For this reason, 1will only hriefly address Part II of the United States Counter-
Mernorial
From a strictly legal point of view we reiterate Our position that the fact of
the concurrence of negotiations does not enervate the jurisdiction of this Court,
as was clearly stated in the hostages' case.
From a practical point of view, 1 can add at this point in lime with the
experience of the pas1 months, that the legal reasoning contained in the Court's
decisions ta allow legal remedy ta run parallel to negotiations has not proven a
hindrance in the case at hand. If it were necessary to insist on the obvious, this
clrie. 1rcprdt. pro\cs that thc us? oi legal rcmedy 1sonly conducive to pcaseiul
settlemcntj '1hc ,ucccsi or failure of the United States aitempts IO dcstroy Con.
tadora in no way undermines this truth.
This section of the United States Counter-Memorial pretends to justify the
illegal attacks of the United States against Nicaragua in the supposed armed
attacks of Nicaragua against its neighhours. This point kas already heen amply
discussed in the oral hearings on the interim measures ofprotection and therefore
- wi~ ~~ ~ ~ ~~ ~~ ~ ~~~ial of these accusations which in anv case we will amnlv . .
address in the merits phase of these proceedings.
At present, 1 will only point to the self-evident fact that the United States has
hases; radar stations, ipy planes, spy ships, the amies of El Salvador and
Honduras at ils service, constant manŒuvres in the Central American area
involving thousands of men; and with al1 this in nearly four years il has not
heen able to orove one sinele case of armed traffic from Nicaragua for example
to El ~alvador. Nicaragua with very modest means has downedplanes traceahle
ta the CIA, it has satisfactory proof of United States attacks against Nicaragua.
Recentlv El Salvador reauested a sui aeneris intervention in these proceedings.
~ic~rae-~ made no obiectconsto the iniervention. The road to narticinate in the
following of these proceedings is still open to El ~alvador. Nicaragua
reiterates that it has no objection to participation of El Salvador if itfulfils the
normal legal reauirements.
In fact,Nica&ua has no objection to participation of other States. Nicaragua
believes that respect for international law requires a State to appear in court
when it is accusid by another State, not seek or invent formalistic pretexts to
avoid the court in order to resort to armed force instead.
The United States Government States that Nicaragua is sending weapons,
among others to the Frente Farahundo Marti of El Salvador. To Say that
Nicaragua is not doing so would he putting one word against another in this
phase, and it is sometimes forgotten hy the public in general that the burden of
proof is on the accuser. 1must point out that a court of justice does not forget
where the burden of proof lies. That is why Nicaragua has no fedr for El
Salvador's participation and that is very clearly why the United States fears to
be brought before this highest of trihunals.
Mr. President, Members of the Court, we are faced with a case in which the
lives and well-being of thousands of people literally hang in the balance of the
scales of this Court of peace. Nicaragua is seeking sanctuary in this Palace of
Peace. Nicaragua should not be turned away from sanctuary based on some
îiirnsy legal formalities that have heen formulated ud hoc hy the United States12 MlLlTARYAND PARAMlLlTARYACnVlTlES
Governrnent for these proceedings. Up to the time of presenting Ourcase no one
in the world questioned Nicaragua's right topresent itself hefore this tribunal.
1wish 10thank you, MI. President, Members of the Court, for your attention.
In the following presentation Professor Chayes will give a brief outline of the
way wehave divided the different expositions. Now 1ask the Court to recognize
Professor Chayes. ARGUMENT OF PROFESSOR CHAYES
COUNSEL FORTHE GOVERNME NFTNICARAGUA
Professor CHAYES: Mr. President, Members of the Court. May it please the
Court. Ambassador Argüello has laid before you the larger context of this
litigation. We turn now more directly to the matters before the Court in these
oral proceedings which tendto be somewhat more dry, technical and professional.
The Court in its Order indicating provisional measures decided that "The
written ~roceedines shall first be addressed to the auestions of the iurisdiction
of the court to entertain the dispute and the admiisibility of the ~b~lication"
(Order of 10May 1984,para. 41 D). That is what is before us now. My colleagues
and 1have divided this presentation among us.
Today 1 shall maintain that, by virtue of the operation of Article 36 (5), of
the Statute of the Court, properly interpreted, Nicaragua must be deemed to
have accepted the compulsory jurisdiction of the International Court of Justice.
My colleague, Professor Brownlie, with whomIam personally deeply privileged
to appear in this proceeding, will then argue two propositions:
First, that the conduct of the Parties to this case supported by the conduct of
other parties to theStatute of the Court and the opinion of the most qualified
scholars over the past 38 years establish as an independent basis ofjurisdiction,
that Nicaragua has submitted to the compulsory jurisdiction of this Court.
And - the second ooint to he addressed bv Professor Brownlie - the letter
oi'6 April 1984 frein 'Sccretaryof State ~h-liz IO thc Se<rr.tar>-Gcncral<IIihc
Cniicd Naiiuns mas inelTcciiveIo irrminatc or dltcr ihe drclaratinn oi the Uniied
States of 14Augusi 1946accepting ihs c~impuls~ryjurisdistion of ihe Coort.
Thereafter, Mr. Paul Reichler will show that the third rexwation to the
United States declaration, the so-called "Vandenberg Reservation", cannot he
properly invoked in this case to defeat the jurisdiction of the Court.
On the questions of admissihility, Professor Alain Pellet of the University of
Paris, with whom it is also a distinct honour to be associated, will play the
leading role. But it is too early to burden the Court with the exact division of
responsihilities among us.
Let us turn now to Article 36 (5). We have before us a quintessentially legal
prohlem, of the kind that lawyers and judges spend most of their livesresolving.
We are faced with a text. Our task is to discover the truc meaning of that text
- in the light of its langudge, its purpose and the usage of those who have had
to attribute meaning to it heretofore.
Let me first read the text. In the course of the nextew days we will al1come
to know it very well.
Article 36(5) provides: "Declarations . . " 1stress that fist word. Nicaragua
attaches great importance to that word. It is what Article 36 (5) is al1about:
declaraiions.
"Declarations made under Article 36 of the Statute of the Permanent
Court of International Justice and which are still in force shall be deemed,14 MILITARY AND PARAMILITARY ACTIVITIES
as between the parties to the present Statute, to be acceptances of the
compulsory jurisdiction ofthe International Court of Justice for the period
which they still haveto run and in accordance with their terms."
Nicaragua made such a declaration under Article 36 of the Statute of the
Permanent Court of lnternational Justice on 24 September 1929.The terms of
that declaration were as follows:
"On behalf of the Republic of Nicaragua 1 recognise as obligatory
unconditionally the jurisdiction of the Permanent Court of lnternational
Justice."
The declaration was without limit of time. Thus, it "had not yet expired" and
was "still in force" when the Statute of the lnternational Court of Justice came
into elïect on 24 October 1945.Nicaragua had already become a party to the
Statute of the Court, when itratified the United Nations Charter on 6 September
1945.All the conditions of Article 36 (5) are thus met and Nicaragua mus1 be
"deemed, as between the parties to the present Statute, to have accepted the
compulsory jurisdiction of the International Court of Justice . . .".
One is tempted to say Q.E.D. and sit down at this point.
But the United States professes to find a dilïerent meaning in the text of the
Article. They say it is the "plain meaning" ofthe language. They take ten pages
of the Counter-Memorial in attempting to establish the asserted "plain meaning".
however, so it cannot be as plain as al1that.
In brief, the position of the United States is that "still in force" means
"binding" and that "binding" means "made by a State that was a party to the
Statute of the Permanent Court".
It will not have escaped the Court that these words - "binding" and "made
by a State that was a party to the Statute of the Permanent Court" - are not
to be found in the tex1 of Article 36 (5). Nevertheless, the United States
asserts that :
"accordine to the plain meanine of the words . . .Article 36 (5) an~lies
only to declaration; binding the ldeclarantto accept compulsoryj;hsd~~tion
of the Permanent Court" (II, Counter-Memorial, para. 79 (argument
heading)).
To this, the first response is "If that is what the draftsmen of the Statute
meant, why didn't they say so?' There is a very simple way of expressing that
thoueht. As the United States has nointed out. those wh. drafied the Statute~~ ~ ~~ ~ ~~ ~
wereudistinguishedscholars of the C'ourtand practitionershefore it. They were
versed in its jurisprudence and understood the requirements of careful and precise
expression. ~he draftsmen knew very wellhow to Say"accepted the compulsory
jurisdiction". In fact, they did say it in the las1clause of Article 36 (5). They did
not regard the expression as colloquial or otherwiseinappropriate for the Statute.
If they had wished to achieve the result contended for by the United States,
Article 36 (5) would have read as follows:
"States bound to accept the compulsory jurisdiction of the Permanent
Court of International Justice under Article 36 of the Statute shall be
deemed as between the parties to the present Statute, to have accepted the
compulsory jurisdiction of the lnternational Court of Justice in accordance
withthe tehs of their declarations."
That is a simple and direct form of words, the plain meaning of which truly iv
what the United States asserts as to the much dilïerent language actually chosen
hy the draftsmen of the Statute. ARGUMENTOP PROI.FSSOR CHAYES 15
The grammatical suhject and the semantic focus of the language of the real
Article 36 (5) is "Dec1arati0n.smade under Article 36 of the Statute of the
Permanent Court . . .".This, on the face of it suggests that the concern of the
draftsmen was with declarations previously made rather than with the status of
the parties who made them.
If there is any possible ambiguity about the words "still in force" it is resolved
by reference to the French text of the Article. That is why, a moment ago, 1
stressed that the declaration of Nicaragua, made under the Statute of the
Permanent Court "had not yet expired" and so "was still in force" at the critical
moment. The Court will recognize a reference to the French text which 1 will
now read with apologies to the French-speaking justices and any other French
speakers in the audience: "Les declarations faites en application de l'article 36
du Statut de la Cour permanente de Justice internationale pour une duréequi
n'est pas encore expirée . . ."
"Pour une duréeaui n'est vas encore exoirée . ." There is surelv no ambia-.tv
about the niuning of ihat phrdic: "for a peri<~d1h:it har ni>[)ci c~pircd" And
ihrrc is no dciubi thai ihc English tel \\,L\uppii\cd to mcan lhc smic ihing as
ihe French The wriineni r>ortiunof the ~rocccdings i~iCommitier IV of the
San Francisco conference in this point arediscussefin the threejudges' dissent
in the Aeriul Incident of 27 Jidy 1955 case (I.C.J. Reports 1959, p. 162) and in
the Memorial (1, at paras. 16-18),
The Counter-Memorial refers also to the Russian. Soanish and Chinese ver-
sions of the Article (II, Counter-Memorial, para. 78). ~;dge Hudson, writing in
Octoher 1945,noted that "As the text . . of the new Statute consists of versions
in five languages . .. a more complicated situation may arise as discrepancies
reveal themselves". He goes on to Say,however, that "English and French were
employed as the working languages in drafting . . .the new Statute, and this
fact may still give these versions some primacy for purposes of interpretation"
(Hudson, "The New World Court", 24 Foreign Ajfoirs 1, 83 (October 1945)).
Professor Rosenne made this same point in his speech IOthe Court in the Aerial
lncidenr case (I.C.J. Pleadings, p. 464). And see the joint dissenting opinion in
the Aerial Incident case (I.C.J. Reporrs 1959, p. 161).
The United States professes to find great comfort for its "plain meaning"
argument in its asserted inahility to find anyone else who reads the Article the
way Nicaragua does. 1quote from their Counter-Memorial:
"As far as the United States has heen able to ascertain, no one has ever
advocated the interpretation of Article 36 (5) that Nicaragua advances in
its Memorial." (II, Counter-Memonal, para. 59.)
The United States, apparently, did not look very far. If il had consulted its
own Observations on the Preliminary Objections of Bulgana filedwith this Court
in the Aerial Inciden1case, it would have found an argument that Nicaragua
could well adopt as a fair statement of its own. 1 refer you to 1.C.J. Pleadings,
AerMiIIncidentof27 July 1955,pages 311-322.It is perhaps worth a fewmoments
to review the highlights of the United States argument in that case to bring out
how closely it comports with that of Nicaragua here.
The critical paragraph in the United States argument appears at page 319.
The United States had to recognize of course, that aftcr the dissolution of the
Permanent Court (or at least after Bulgaria formally recognized the dissolution
wben it signed the Treaty of Peace) Bulgaria could no longer be "bound" by its
acceptance of that Court's jurisdiction. If Article 36 (5) were to be construed as
the United States now contends it should be - that is to extend "only to
declarations binding the declarant to accept the compulsory jurisdiction of the16 MlLlTARYAND PARAMILITARYACTlVlTlES
Permanent Court" (II, Counter-Memorial, para. 79) - it could not apply to
Bulgaria. Thus, the United States argued, just as Nicaragua does here, that the
decisivequestion under Article 36 (5) is the duration of the declaration. Here 1
am quoting from their Observations:
"The intended and eiïective meaning of the words 'still in force' is to be
seen in the French text of the provision: 'pour une durée qui n'est pas
encore expirée.'The declarations referred to in Article 36, paragraph 5, were
those made for a duration not yet expired. As applied to the Bulgarian
declaration of 1921, the import of Article 36, paragraph 5, is clear: when
Bulgaria became a party to the Statute of the Court, no period had come
10 an end within which the Bulgarian declaration was limited; for as we
have seen, the declaration of 1921 was without limit of time." (I.C.J.
Pleadings, Aerial Incident of 27 July 1955,p. 319.)
The very same words could he spoken of the declaration of Nicaragua. Indeed,
that is the position of Nicaragua in this case.
The United States argument continues:
"The words 'still in force'and 'pour une duréequi n'est pas expirée' were
used in Article 36, paragraph 5, to distinguish declarations made for periods
of time not yet expired from declarations which, according to their own
lems, had come to an end." (Ibid., p. 320.)
Again, this is the very position advanced here by Nicaragua.
The United States continues:
"To hold, in construing this paragraph, that the Bulgarian declaration of
1921 is not covered, on technical and conce~tual rrounds. would be to
defeat the constructivepurposes of the provisions of the new Statute" (Ibid)
To which 1would say "Amen".
It is remarkable how the elaboration of the United States argument in the
Aerial Incident case parallels that of Nicaragua here. The purpose of Article
36 (5) is defined in identical terms: "10 prevent retrogression with respect to
international jurisdiction simply because a new International Court of Justice
was taking the place of the old Permanent Court" (ibid.; compare Nicaragua's
Memorial, 1,paras. 22, 23). There is the same reference to the French text as
authoritative, thesame interpretation of the drafting history of the Statute, the
same emphasis on the analogous eiïect and purpose of Article 37 of the new
Statute. Indeed, the United States in 1960 relied on the very paragraph of the
very article byJudge Hudson that Nicaragua has cited in this case for its listing
of Nicaragua as bound by thejurisdiction of the newCourt. (See I.C.J. Pleadings,
Aerial Incident of27 July 1955, p. 316, citing Hudson, "The Twenty-fourth Year
of the World Court", 40 AJIL 34 (1946); compare Memorial, para. 52.)
Although the United States Observations in Aerial Incident notes in passing
that Bulgaria ratified the Statute of the Permanent Court, it makes no particular
point of that fact (I.C.J. Pleadings, p. 312).
That is whollv natural. The United States oosition in the Aerial Incident case
nus lhat the deilaration continucd in forcs evrn though tiulgaria u,~snu! bound
by the cornpulsory jurisdic~ion. To have laid any u,eighi on the signifisiinceof
the prior r3iilisaiion uould hii\,e undercut the Ilnitcd Suirs araumcnt that it is
the Ïems of the declaration that count, not the status of theParty as subject
to the jurisdiction of the Court.
It cannot be said that the construction of Article 36(5) contended for by the
United States in the Aerial Incident case and hy Nicaragua here was rejected hy ARGUMENT OF PROFFSOR CHAYES 17
the Court in its decision in that case. The case United Statesv.Bulyuriu was
never decided by the Court. It was withdrawn by the United States in 1960
under Article 69 of the Rules of Court(1.CJ. Reports1960, p. 146).
Thus, the Court did not pass directly on the United Statesargument. Although
both lsracl and the United Kingdom, in companion cases, urged that the Court
had jurisdiction over Bulgaria, neither of them advanced the interpretation of
Article 36 (5) that was put forward by the United States in ils Memorial. Indeed,
the United States in this case recognizes that "as Agent for Israel in Aerial
Incident case, Professor Rosenne never suggested this theory" (II, Counter-
Memorial, para. 145, p. 45, note 3). The Court itself disposed of the question
before it iAerial Incidenon a different ground: that once the Permanent Court
had heendissolved,there wasno longer any "object" ofthe Bulgariandeclaralion,
and therefore that the declaration must be regarded as lapsed despite ils terms.
Of course, there was no such lapse as to Nicaragua, which ratified the Statute
of this Court when ils declaration had not expired and before the dissolution of
the Permanent Court. These points are elaborated in the Memorial (1) al
paragraphs 33-36 and 1need not rcpcat them here.
The point thus remains that the interpretation of Article 36 (5) for which
Nicaragua contends here, and for which the United States was unable to find
any support in the literature or previous jurisprudence of the Court, was the
very position taken by the United States when il last addressed the issue in this
forum in 1960.
THEORIGINAU LNDERSTANDING OP ARTICL3 B6(5), WlTH SPECIAR LEFERENC TE
THE SITUATIO IN THIIUNITED STATES
The historical, juridical and political context in which the current Statute was
drafted re-enforces the construction of Article 36 (5) that emerges from the text.
The dominatinr ideas oreoccu~vine the draftsmen. as the court ohserved in
BarceIonu~rucLn, ~igh~andt'&e;~om~<rn~, Limiied, werecontinuity with the
Permanent Court and preservation of itsjurisprudence, includingespeciallysuch
progress toward extending itsjurisdiction as had been made during ils existence.
Within this broad context. the draftsmen faced certain concrete oroblems. to
which the decisions they made were concrete and specific responses.
The first question facina Cornmittee IV at San Francisco was whether to
continue with the old CouÏt and the old Statute with necessaryrevisions, or to
replace them both. "The first alternative", Judge Hudson tells us, "had com-
mended itself to a large part of the legal profession" ("The New World Court",
24 ForeignAfuirs, 75, 76, Octoher 1945).
A basic problem faced hy the draftsmen, however, wasthat they did not think
it was either possible or desirable to make changes in the old Statute without
the consent of al1the parties. Of thesc parties to the old Statute, some 15were
neutral or enemy States not represented at San Francisco. The effort Io secure
their consent would at a minimum have caused delay, and might have raised
other complications as well. Thus, again in the words of Judge Hudson, "ln
choosing the second alternative", that is a new court, "the Conference at San
Francisco was moved hy political rather than juristic considerati(Ibid) But,
he went on, "The creation of a new Court was, in reality, little more than a
rechristening and a reorientation of the old one(Ibid.,p. 77.) Similarly, "The
Statute of the new Court is substantially the same as the one drawn up in 1920
and revisedin 1929." (Ibid.)This account of the decision to opt for a new court
at San Francisco is confirmed, at least for the United States audience, hy a18 MlLlTARY AND PARAMILITARY ACTlVlTlliS
detailed article of Judge Jessup, who was Assistant on Judicial Organization to
the United States delegation at San Francisco (sec Jessup. "The International
Court of Justice of the United Nations", XXI Foreign Policy Reports, pp. 154,
160-161, 15 August 1945). Judge Jessup also points out that "While the Court
is a 'newcourt' it is in a very real sense only a 'revisedone', the successor of the
old." (Ihid., p. 161.)
In the same vein, the Rapporteur for Committee IV/I at San Francisco
reportcd :
"The creation of the new Court will not break the chain of continuity
with the past. Not only will the Statute of the new Court be based upon the
Statute of the old Court, but this fact will be expressly set down in the
Charter. In general, the new Court will have the same organization as the
old and the provisions concerning jurisdiction will follow very closely those
in the old Statute . . To make possible the use of precedents under the old
Statute the same numbering of the Articles has been followed in the
new Statute.
In a sense, therefore, the new Court may be looked upon as the successor
to the old Court which is replaced. The succession will be explicitly
contemplated in some of the provisions of the new Statute, notably in
Article 36, paragraph 4 [which later became paragraph 51, and Article 37.
Hence, continuity in the progressive development of the judicial process will
be amply safeguarded. (UNCIO, Commission IV. doc. 913, IV/1/74 (1).
12June 1945,p. 4.)
If the draftsmen and the United States advisers thought they were doing little
more than "rcchristening and reorienting" the Permanent Court, it would hardly
come as a surprise to them to think that ratification of the "revised" Statute
should perform the same function as ratification of ils predecessor in perfecting
Nicaragua's unexpired declaration.
The second major decision of the Conference was on the question of truc
compulsory jurisdiction. On this point, there is no doubt that the majority of
the jurists on Committee IV would have preferred that solution, that is true
compulsory jurisdiction. But their political masters would not permit it. As a
"compromise", it was agreed that such progress as had been made in extending
the jurisdiction of the Court - whether by declarations under the optional
clause or in jurisdictional clauses of treaties- would be carried fonvard to thc
new Court. This decision was, of course, consistent with the general notion that
the new Court was to be as much as possible a continuation of the old.
It thus appears that Article 36 (5) and Article 37 were in the nature of
technical amendments, necessitated only by the prior decision, taken on ex-
traneous political grounds, to crcatc what was in form a new court rather than
retain the old. Their function was to continue the situation as il had existed
under the Permanent Court and to preserve the jurisdictional gains that had
been achieved.
i4'hcn itcame IO Jraliing Article 36 15). houcter. ;inothr.r problciii iirubc,\
blankci proiSisiontranbferring u11Jcclaralioni made unilcr ihc old Staiutc mighi
have been construed as reviving a number of declarations that had alreidy
exnired. To do so would have been not to continue the existine situation. but to
change il, not to preservejurisdiction but to expand it. And it Guld by ni means
be assumed that the declarants of these expired declarations, cven if represented
at the Conference, would consent to their kesurrection.
Seen in this light, the modifying phrase in Article 36 (5) - "which are still in
force" or "made for a period which has not yet cxpired" - has only one ARGUMENT OP PROFFSSOR CHAYES 19
function :it is designed to exclude declarations that had already expired. It has
no hearing whatsoever on a declaration like Nicaragua's that had not expired.
To carry forward Nicaragua's unexpired declaration would no1 change the
existing situation or expand the pre-existing jurisdiction. On the contrary,
Nicaragua was in exactly the same situation under the new Statute, as drafted,
as it was under the old. In either case, ratification of the Statute of the Court
would perfectits declaration.
That the modifying phrase in Article 36 (5) was directed exclusivelyat expired
declarations is borne out hy a number of sources.
Consider the exchange between the British and Australian delegates in the
debate in Committce IV/I on Article 36 (5). The British represenlative spoke in
favour of "the compromise". He thought that some 40 States would therehy
become automatically subject to the Court's jurisdiction. (UNCIO IV, doc. 759,
IV/1/59,2 June 1945,p. 248.)The Australian representative, Dr. Evatt, corrected
this estimate:
"He desired, however, to cal1 attention to the fact that not forty but
about twenty States would be automatically bound as a result of the
compromise. In this connection he pointed out that of the fifty-one States
that have adhered to the optional clause, three had ccasedto he independent
States, seventeen werenot represented at the conference and about ten of
the declarations of other States had expired." (Ibid.,p. 249.)
Similarly, Judge Jessup, in a contemporaneous article in the AmericunJournu1
ofInternuiional Law, wrote of Article 36 (5):
"This important provision was insertedas a part of the attempt to avoid
breaking the 'chain of continuity' with the past . . .It was cstimated at the
Conference that about twenty such declarations would hecome immediately
applicable to the new Court, others having lapsed or having been made by
States not original parties to the new Statute." ("Acceptance by the United
States of the Optional Clause of the International Court of Justice", 89
AJlL 745, 749, n. 7 (1945)).
Nicaragua's declaration had not "lapsed" and Nicaragua wus an original party
to the new Statute. Thus it Pallswithin neither of the categories mentioned by
Judge Jessup or Dr. Evatt.
As a final note, this same reading is the one given hy the dissenters in the
Aeriul Incident case:
"WCconsider that the words 'which are still in force', when read inthe
context of the whole paragraph, can only mean, and are intended to mean,
the exclusion ofsome fourteen declarations of acceptance of the compulsory
jurisdiction of the Permanent Court which had already expired and the
inclusion, irrespective of the continuance or dissolution of the Permanent
Court, of al1 the declarations the duration of whicb has not expired."
(1.C.J. Reports1959, p. 161.)
All the evidence agrces: the phrase "which are still in force" or "for a period
which has not yet expired" is directed and directed only at expired declarations.
It is not concemed with unexpired declarations that, for some reason or another,
had not been perfected. If the United States wishes to exclude Nicaragua from
the operation of Article 36 (5). it mus1find some othcr way Io do so.
While we arc talking about the original understanding in the United States,
on which the Counter-Memorial lays some stress, 1 should add that the record
in the United States Senate at the time of the United States adherence to the20 MILITARYAND PARAMILITARYACTIVITIES
opilonal clause ir, Iikcwi~e.not 3s clcar iis ihe Ci~unter.McniorinluuulJ h;ive il
It is truc thai Mr. Fahy. thc Legd AJviser, prercntcd in hi.. te\iimony n lis1of
19States co\.crcd bv Ariirlr. 36 15 tanJ that Iist Jid not incliidc I\'ic;iraeus. His
enumeration is repeated in the ~ènateReport. Buta statement by Judge Hudson,
included in the record of the hearings, listed Nicaragua as falling within Article
36 (5). (Heuringsbejorea Subcommitteeof the Cummitteeon Foreign Relations
of the United States Senafeun S. Res. 196. 77th Conrress.2nd Serîion. 1946.
6.91 (deposited with the Registrar of the Court by the ~fited States)). Morsover;
Judge Hackworth, who was Legdl Adviser al the lime of the San Francisco
Conference. stated in a smech also read into the record that 20 States were
involved. (lbid.,p. 19.) S; too did comments of Judge Jessup (ibid.,p. 92) and
Professor Quincy Wright (ibid.,p. 42).
It seems clear that the action of the Committee in recommending and the
Senate in advising and consenting to the United States declaration cannot have
been based on or influencedhy any firm understanding of the number or dames
of the countries aflected hy the operation of Article 36 (5). Mr. Fahy's lis1
appears to have been based on the las1 Yearbuok of the Permanent Court, which,
as we know, lists Nicaragua as not subject to the compulsoryjurisdiction. When,
in the very next year, the State Department, through Mr. Denys Myers of the
Legal Adviscr's Office,made its first çdreful study of the matter, it concluded
that Nicaragua had accepted the compulsory jurisdiction of the Iniernational
Court of Justice, and so stated publicly (1,Memorial, para. 81).
The United States, as we shall see, has not retreated from that conclusion in
40 years, until the beginning of this proceeding.
1want to spend a few moments on the jurisprudence of the Court.
The two principal cases in which the Court bas previously considered the
ooeration of Article 36 (5) and Article 37. the transitional ~rovisions of its
~iatute, are Aerial ~ncideitand Barcelona~roction. They are dkcussed at length
in the Memorial and Counter-Memorial and there is no need to recapitulate that
discussion here.
In candour, it must be admitted that there is an clement of question-begging
in any effort to apply the language of the opinions in those cases directlyto the
situation now before the Court. In neither of the cases did the Court focus
expressly on the qucstion here presented : the effectof the transition on a decla-
ration made under the Statute of the Permanent Court that was by its terms
unlimited but that never came into effect with respect to the Permanent Court
because the ratification of its Statute by the declarant was somehow incomplete.
Thus both Parties are able to seize upon passages in the opinions where the
language supports their respective positions. In such a competitive battle of
quotations the result is always something of a stand-off.
In order to determine the truc bearing of those decisions on the present case,
therefore, we must look beyond the snippets of language to the underlying
rationale. There are three major opinions to be considered: (1) The majority
opinion in Aerial Incident; (2) the three-judge dissent in that case; and (3) the
opinion of this Court in BarcelonaTraclion. The first of these, the majority opi-
nion in Aerial Incident,really has no significanceat al1for the present dispute.
The Court held only that the declaration of Bulgaria, made under the Statute of
the Permanent Court, was not "in force", within the meaning of Article 36 (5),
when Bulgaria became a Member of the United Nations in 1955. This was ARGUMENTOP PROrnSSO RHAYES 21
hecause the declaration "lapsed" when the Permanent Court was dissolved in
1946. That result followed whether or not Bulgaria had ratified the Statute of
the Permanent Court and was not affected by the fact of ratification vel non.
Nothing in the opinion, either in holding or in considered obirerdicfum,excludes
or iseven faintly inconsistent with the position here taken hy Nicaragua: namely,
that its declaration was "in force" within the meaning of Article 36 (5) when
Nicaragua hecame an Original Member of the United Nations in 1945.The only
qualification the Aerial Incideni decision establishes for the operation of Article
36 (5) is that the declarant must have heen an Original Memher of the United
Nations, and of course Nicaragua meets that requirement.
The matter is differcnt with the dissenters. They were proceeding on a theory
of the scope and operation of Article 36 (5). And that theory is inconsistent
with the position of the United States in the present case. The theory embodies
the two general principles already shown to have animated the draftsmen of the
Article, and they were equally stressed by the dissenters: First, that the function
and purpose of Article 36 (5) along with Article 37 was to ensure continuity
hetween th~ ~ ~ ~ou~ ~and the new. And second. that these Iwo Articles were
designed to preserve to the maximum extent the state of affairs with
reswct to compulsory iurisdiction that existed under the Permanent Court iust
hefore il went Out ofexistence.
Thus, the dissenters emphasized that :
"the establishment of the lnternational Court of Justice and the dissolution
of the Permanent Court . . .were closely linked by the common intention
to ensure, as far as possible, the continuity of administration of inter-
national justice".
They continue :
"While various considerations urged the dissolution of the Permanent
Court and the creation of the lnternational Court of Justice, there was
"eneral am"ement as to the suhstantial identitv of these two oreans. In
particular, every eiTortwas made to secure continuity in the administration
of international justice." (I.C.J. Reporrs 1959, p. 158.)
Further, the dissenters confirm that:
"a study of the records of the Confcrence shows that a determination to
secure the continuity of the two Courts was closely linked with the question
of compulsory jurisdiction of the new Court in a manner which is directly
relevant to the interpretation of paragraph 5 of Article 36" (ihid., p. 159).
Indeed, even the majority in the Aerial Incirlenrcase acknowledged that :
"the clear intention which inspired Article 36, paragraph 5, was to continue
in being something that was in existence, to preserve existing acceptances,
to avoid that the creation of a new Court should frustrate oroe.es- alreadv
achieved" (ihid.,p. 145).
1have alreadv shown that the combination of these two nrincinles - continuitv
with the old court and preserving "progress already achieGed" 2 lead ineluctabl;
to the conclusion that Article 36 (5) covers the Nicaraguan declaration. And as
one would expect, the di~senters~hrase their conclusion in jus1 such ternis. 1
quote their conclusion :
"Accordingly, we reach the conclusion that, having regard both to the
ordinary meaning of their language and their context, the words 'whichare
still in force'refer fo fhcdeclaralions rhemselves,namely, to a period of time,22 MILIiARY AND PARAMlLlTA RCTlVlTlES
limitcd or unlimited. whichhas not exoired reeardless of anv oros~ective or
astu~l date of the dis~olutionoi the ~~rm~ncnï~ourt. S<ilong as ihe pcriod
of tinieoidcclarationr made under Article 36ofthc Statutc of the Permanent
Court still has to run at the lime when the declarant State concerned hecame
a party to theStatute of the International Court of Justice, those declarations
fall within the purview of Article 36, paragraph 5, of the new Statute and
'shall be deemed to be acceptances of the compulsory jurisdiction of the
International Court for the period which they still have to run and in
accordance with their terms'." (I.C.J. Reporrs1959, pp. 164-165(emphasis
added).)
1invitr the Court IO cuniidrr c~rcfullythis passage. which i\expressly Iabclled
"conclusi<>n"and rci>re,ents the carclLIIy u,riehcil u,ords of the .Arr;ulInridenr
dirscnters. Thcrc is "ut a word in itabo"t the'declarant Siate hcing "bound" tu
asicpt the iompul,ury jurisdistion ni the Pirmancnt Ciiuri or ha\ing r.itilicd 11s
Statute. These notions are absent from the dissenting opinion forthe same reason
thev were absent from the United States Memorial in the Aerial Incident case:
hei<iu.cthe position bcingmaintaincd isihiit Rulgdriair suhleit to ihcconipulsury
juri~diction oi the Intrrnatii~nal Court wcn though il ir»OI bound by the
compulsory jurisdiction of the Permanent Court.
That is why, to re-emphasize the language of the dissent, and 1quote again:
"The words still in force refer to the declarations themselves,to a period of time
limited or unlimited which has expired." But why, one asks, does one spcnd so
much lime on the Aerial lncidenr dissent? The majority after al1did not accept
these views. It evidences no such large and generous conception of the compul-
sory jurisdiction of the Court. Its approach, in the words of the United States
Observations in that case, was "technical and conceptual", such as would "defeat
the constructive purpose of revision of the new Statute".
Fortunately, the Court has no1 adhered to any such niggardly vision in
suhsequent cases dealing with the transition from the Permanent Court Io the
International Court of Justice. It is true. of course. that neither the Temoleof
~ ~ , z
Preah Vihear decision nor ~arcelona raiti ieoxnresklyovermles Aerial Incidenr,
but the holding in that case has been confined to ils facts. The underlyina
rationale in boih the later cases adopts wboleheartedly the principles espoused
by the dissenters in Aerial Incrdenr.
In Barcelona Tracrion as the Court knows, it was held that a clause in a 1927
treaty between Spain and Belgium, providing for jurisdiction in the Permanent
Court, was effectiveto vest jurisdiction in the present Court, under Article 37 of
the Statute, after Spain hecame a memher of the United Nations in 1955. In
contras1 to the Bulgarian case, the lapse of nine years after the dissolution of
the Permanent Court was found not to vitiate the iurisdictional claim.
Onc ni:,) spcculatc un the reiions why the Court reson~idr.rcdtlic undcrl)ing
prinsipleï governing the ion\tru;tion roithe tranritional .irticlcs Therc secm.
litile doubi. Cor example, thai in Hurrelo~taliarfam ihe Court sau ihat 11.:
anoroach to these oro;isions was a matter of wide sienificance. rather than a
nairow and limited'point, as the majority seemed to Zsume in ~erial Incidenr.
Nevertheless, the net effect isclear. Barcelona Tracrion says Dr. Rosenne in his
authoritative work,
"reached conclusions which may he regarded as reversing the principles
applied in 1959in the Aerial lncidenr case, and there is littlc doubt that in
doing so the Court was influenced by significant considerations of public
policy, since it recognized that, whatever it might be, its decision would he
liahle to have far-reaching eflects contrary to the position in the 1959case". ARGUMENTOF PROFFSOR CHAYES 23
Judge Tanaka makes the same point even more directly in his separate opinion
in BorcelonaTraction. He criticizes the Court for not facing up to this issue
squarely and overruling its Aerial Incident decision. But, he goes on to say :
.'I he Court'><ipinion.alihough il rciis on rhe dirrïrïnce bciuecn the tuo
pr<>visi<ins15 noi limitcd ti>point, pcculi;<r t<iihc interpreiation ,IFArticle
37. II, ïrsenii:il rc;i,un c;hï mi<r<rrr»<r,irrindapplicd tu ihc ~nierprïiaiiirn
of Article 36, paragraph 5. Furthermore, 1 assume the Court's opinion is,
in its fundamental reasoning, not very far from that of the Joint Dissenting
Opinion in the Aeriol Incident case. The above-cited passage from the
Court's reasoning may be regarded as precisely the antithesis or refutation
of what was declared in the essential part of the reasoning in the Judgment
in the Aerial Incident case.
1consider that the Court's emphasis on the difference between Article36,
paragraph 5, and Article 37 is more apparent than real. The Court has been
careful not to deal directly with the 1959 Judgment, but the viewpoint
adopted by the Court in 1959 is substantially overruled by the present
Judgment." (ICJ. Reporls1964, p. 77.)
That is ludge Tanaka speaking in BorcelonaTraction.
In the light of the principles firmly established in BorcelonaTraction -
principles mandating a broad and hospitable interpretation of the transitional
provisions of the Statute - there is little doubt that Article 36 (5) must be
construed to cover Nicaragua's unexpireddeclaration.
1 tum now to the matter of the practice of the Parties and other relevant
actors with respect to the Nicaraguan declaration. This practice is significant on
the question of jurisdiction in two somewhat different ways.
In the first place, it is evidence of the correct interpretation of Article 36 (5).
It is this aspect of the practice that 1treat in the next part of my argument. And
1will show that it fully supports the interpretation of Article 36 (5) asserted by
Nicaragua in this case, namely that Nicaragua is deemed to have accepted the
compulsory jurisdiction of the Court by the operation of that Article, properly
applied.
But practice has another dimension. It constitutes conduct of the parties, and
as such can provide an entirely independent basis for legal obligation. It is this
aspect that will be developed in detail hy Professor Brownliewhen he addresses
the Court.
1shall not review the extensive summary of the practice under Article 36 (5)
that is set forth in the Memorial (1) at paragraphs 20 to 83. However, there are
certain matters as to which, it seems IO me, the United States kas not been
altogether exact in its exposition and characterization. As to these matters, 1feel
some obligation to correct the record. The items 1will touch on are four:
(1) The practice of the Court, particularly the first Yearbook of the Court.
(2) The case of the Arbilral Awardofthe King O/ Spain.
(3) The writings of publicists - in particular, Judge Hudson.
(4) The practice of the United States.
The Courfadjourned/rom4.26p.m. fo 4.42p.m.24 MILITARYAND PARAMILITARYACTIVITIES
Mr. President and Members of the Court, when we recessed 1 was just
beginning my discussionof the practice under Article 36 (5). and 1want to turn
your attention first to the Yearbooksof the Court and particularly the first
Yeurhookof the lnternational Court of Justice.
1. TheFirsiYearhook of ihelniernationalCouriofJusiice
It is an indisputable fact that every Yearhookof the lnternational Court of
Justice, from 1946-1947to date, has listed Nicaragua among the States that have
accepted thecompulsoryjurisdiction of the Court. Professor Rrownlie,tomorrow,
will develop the legal significanceof that unhroken course of conduct.
Roth the Memorial and the Counter-Memorial, however, recognize that, in
the interpretation of Article 36 (5), great weight must he accorded to the actions
of the Registrar of thè'new Court in compiling the very first Yeurbookof the
Court. His actions at that time are especially significantbecause they reflect the
contemporaneous understanding of the meaning of the Statute.
The Counter-Memorial (II) says, at paragraph 127: "taken as a whole, the
first Yearbookdid no!treat Nicaragua as a State bound to the Court's compulsory
jurisdiction by reason ofits 1929declaration." 1mus1say 1find that statement
simply astonishing. Nicaragua is listed as subject to the compulsory jurisdiction
of the Court in that first Yearbooknot once, but three differentlimes. The entries
are set out in detail at paragraphs 41-45 of the Memorial (1).
The United States treatment of the first Yearbookis remarkahle in another
way. It appears under the heading in the Counter-Memorial (II): "Article 36 (5)
Has Been Applied Only to States that Had Accepted the Permanent Court's
Compulsory Jurisdiction". Yet the Counter-Memorial recognizes at the outset,
as it must, that the Yearbookdidapply Article 36 (5) to a State, Nicaragua, that
the United States asserts did not accept the compulsory jurisdiction of the
Permanent Court. And recall, not once, but in three separate places. And at
page 111, in the first Yearbook,it is stated expresslywith regard to Nicaragua:
"Declaration made under Article 36 of the Permanent Court and deemed to be
still in force. (Article 36 (5) of the Statute of the Permanent Court)."
The Counter-Memorial asserts that Nicaragua's declaration waslegally iden-
tical with 20 other declarations of States that had not accepted the jurisdiction
of the Permanent Court and were not listed bythe Registrar as bound to accept
the jurisdiction of this Court (II, Counter-Memorial, para. 86). With deference,
that simply begsthe question. The very point at issue iswhether the Registrar's
distinction hetween Nicaragua and the other 20 is wellfonnded in law. Assertion
will not establish the point. Examination of the facts will.
Nicaragua's Memorialshows the basis on which each ofthe declarations in
question wereproperly distinguished from that of Nicaragua (1, Memorial, para.
48). The Counter-Memorial (II, para. 86) does not contest the great bulk of
those instances. Let us turn to the remaining two - Turkey and Costa Rica -
on which the United States claim of "legal identity" must finally rest.
The Counter-Memorial. like the Memorial, recognizes that the treatment of
Turkey and Costa Rica in moving from the last Yeurhookof the Permanent
Court to the first Yeurhookof the present Court is crucial in determining the
interpretation of Article 36 (5) on which the Registrar was acting. (Counter-
Memorial, paras. 89-92; Memorial, para. 48.) The three States were listed
together in the las1 Yearhookof the old Court as States that signed the Optional
Clause "without condition as to ratification but had not ratified the Protocol of
Signature of the Statute" (P.C.I.J. Yeurhook 1939-1945, p. 50). ARGUMENT OF PROFFSSORCHAYES 25
In its Memorial, Nicaragua States:
"The declaration of Turkey, for a definite term, had expired; that of
Costa Rica was considered extinguished when Costa Rica withdrew from
the League of Nations and renounced ils obligations thereunder, including
its declaration under the Optional Clause." (1, Memorial, para. 48.)
The United States, however, asserts that the status of these two States "under
the Permanent Court was essentially identical to Nicaragua's" (II, Counter-
Memorial, para. 89). The contention is that the failure to treat Nicaragua in the
same way as the other two - that is to deny its standing under Article 36 (5)
of the present Statute - must be attrihuted to some error or confusion on the
part of the Registrar. The United States is mistaken. Careful analysis of the
situation of the cwucuuiitries in question shows that they wereproperly classified
by the Registrar as not falling within the purview of Article 36 (5).
Asto Costa Rica, the United Statesasks why,ifits declaration was extinguished
when it withdrew from the League, should not Nicaragua's havesuffered the
same fate when it withdrew from the League in 1938? The answer is simple.
Under Article 35 of the Statute of the Permanent Court, the Court was open
only "to Memhers of the League and also to States mentioned in the Annex to
the Covenant". The Annex includes signatories of the peace treaty and States
invited to accede to the Covenant. Nicarayua, as a signatory to the peace treaty,
was "mentioned in the Annex". Costa Rica was not. Thus, after Costa Rica with-
drew from the League, the Court was no longer open to il, and ils declaration,
though in terms unlimited, was infact a nullity. When the Statute of the present
Court came into effectin 1945, there was iiothing with respect to Costa Rica for
Article 36 (5) to operate on.
Nicaragua, however, was a signatory to the peace treaty, and was "mentioned
in the Annex", and so, even after it withdrew from the League, the Court under
the terms of Article 35 of its Statute was stillopen to it. Nicaragua understood
that its withdrawal from the League did not affect its declaration under the
Optional Clause, hecause in Novemher 1939,after the withdrawal, it sent the
telegram to the Registrar of the Court notifying him of its ratification of the
Protocol. Thus, unlike Costa Rica, its declaration remained operative despite its
withdrawal from the League, needing only the ratification of the Statute of the
Court to perfect it. This requirement, as Nicaragua's Memorial shows, was
supplied hy the deposit of a formal instrument of ratification of the Statute of
the present Court and the operation of Article 36 (5) of its Statute (1,
Memorial, para. 49).
Turkey made a declaration in 1936for a term of fiveyears. The United States
argues that under the practice of the Permanent Court, such declarations began
to run from the date when the acceptance of jurisdiction became fully effective,
not the date of the declaration. Thus, says the United States, at the time the
Statute of the present Court came into force, the Turkish declaration still had
fiveyears Io run, and, on Nicaragua's theory, it should have been hrought into
effect by Turkey's ratification of the United Nations Charter (II, Counter-
Mernorial, paras. 91-98).
It is hy no means clear that the practice of the Permanent Court was what the
United States claims it was, or that the explanation of any such practice is the
one proffered by the United States. But in any event, as the Counter-Memorial
admits, the practice was no1followedwhere "the declaration specifiedothewise"
(II, Counter-Memorial, para. 92). The Turkish declaration, made on 12 March
1936, did so specify. It recognized the Court's jurisdiction "for a period of five
years, in any of the disputes enumerated in the said Article 36 (2). arising after26 MILITARYANI> PARAMILITARY ACTIVITIES
the signature of the present declaration" (P.C.1.J. Yearbook1935-1936,p. 335).
Bythe terms of the declaration, therefore, the five-year periodhegan to run from
the date of signature. Thus, as Nicaragua stated in its Memonal, the Turkish
declaration had expired by ils terms when Turkey joined the United Nations. It
was therefore properly classified by the Registrar of the present Court as not
coming within the scope of Article 36 (5). Indeed, the United States itself
recognized, in itsMemorial in the Aerial Incidentcase, that the declaration of
Turkey had expired according to ils terms before Turkey ratified the United
Nations Charter. (I.C.J. Pleadings,p. 320.)Seealso Judge Hudson's article, "The
Twenty-Sixth Year of the World Court" (42 AJIL, p. IO), where he says: "The
Turkish declaration of March 12, 1936,had expired according to ils terms."
The statement in Nicaragua's Memorialthus gains additional strength from
the analysis of the two asserted counter-examples, Turkey and Nicaragua, put
fonvard by the United States. In Our Memorial we said:
"The care and deliheration of the compilers of the Yearbookis confirmed
by a detailed comparison of the treatment given in the las1 Yearbookof
the Permanent Court and the first Yearbookof the present Court to other
States that had made declarations under the Optional Clause." (1,
Memorial, para. 48.)
Nicaragua stands on that statement.
2. TheCaseofrheArbitral AwardMadebythe hg of Spainon 23December1906
Now 1would like to turn to the case of the ArbitralAwardof the KingofSpain.
The United States asserts that, with respectto the ArbitralAword Made by the
King ofSpaincase, decided by the Court in 1960:
"Nicaragua, Honduras and the United States al1helieved and acted on
the premise that Nicaragua's 1929declaration was not a hinding acceptance
of the present Court's jurisdiction." (II, Counter-Memorial. para. 113.)
As 1shall show, that statement is incorrect as to al1three countries. The error
is apparent on the face of the documents the United States submitted to the
Court (II, Counter-Memorial, Anns. 34-37). It emerges even more clearly, in
some aswcts, from documents that were available to the United States. that it
must haie reviewed in preparing its Counter-Memorial, but that it chose not to
discloseto the Court.
With the Court's permission, 1 will now examine this documentation in
detail. First :
The complete answerto the United Statescontention with respectto Honduras
- remember the contention is that Honduras at al1times helievedand acted on~ ~ ~
ilic premi.e ihat N\li:ar~gua'sde:liirliti<iuw niit hinding - ii iound iia letter
froni Jorge I'idel Duron. Foreign Minister of Ilondurar. 10 JuJgc Hudson. dlited
13Scpiemher 1957 You ii,iIlindit in our kxhihit H. item 12t~,lii,.... 305-307)
This ietter is found in the same fileof Judge ~udson's papers as the documenis
presented to the Court in Annexes 35-37 of the Counter-Memorial (II). For
some reason the United States thought it unnecessary to present this document
to the Court. The Duron letter States:
"Dr. Cruz [the Honduran Agent] and 1 want to insist that the Solemn
Agreement of July 21, 1957[the compromis] only reinforces and fortifies28 MILITARY AND PARAMILITARY ACTIVlTlES
"Dr. Davila . . and 1are of the opinion that with these documents [they
were the Gaceta entriesl we have a sure basis on which to establish the
juri\dicti<>nand compcicn2y of ihc Inicrliatiulial C'uilrl<ifJustiic tu rcroltc
ihc pziiiion uhi~h Huniliiras isio prcseni .ig.iinst iïic~rng~a."
That is item 3 of our Exhihit B (infra. DD.297-298) and further corresoondence.
including Judge Hudson's objectio& ai2 e en dora r'sponses, may béfound in
Exhihit B, items 7-10 (infra, pp. 300-303).
Now, why then, if Honduras was convinced that Nicaracua had submitted to
the compul~oryjurisdiction of the Court, did Honduras &t move promptly to
hring its case against Nicaragua by Application, instead of waiting for the
compromis in the Washington Agreement of 21 July 1957? The United States
professes to find such hesitation inexplicable. It says, "the only reasonable in-
ference to he drawn . . .is that responsible officials within Honduras did not
believeNicaragua would appear in the absence of a special agreement conferring
jurisdiction on the Court" (Counter-Mernorial, Ann. 34, 11, p. 220). But the
reason is quite clear: Honduras was concerned about the terms of reference
under which the dispute would he submitted for adjudication. Its position was
that the King's award was valid. The onlv remainin~oDenissue was the execution
uVthe :iwarJ. IldiJ nui nani Io iakc ;iny rtcp to;$:i;d adjudic.ition ihat might
impl! douht, i1rquc\iioni üboiii the validity ,iftlic a\v.irJIiivds cunccrned ihai
a plcnar) ,ubiiitss~oliin a11iiiiiun b;iscd (in ~\riiil?O (2) \i<rulJ cdrr, ,uch ;in
implication.
Nicaragua, on the other hand, took the position that the award was nul1and
void. It insisted that any judicial proceedings must he structured in a way that
permitted it to raise the question of validity velnon.
There is nothing arcane or obscure about this explanation. It appears on the
face of the documentation submitted by the United States. A despatch from
the United States Emhassy in Nicaragua dated 24 January 1956 sets forth the
positions of the two countries with admirable clarity:
"Honduras contends that the Award is a 'perfect, binding and perpetual
Treaty' and that the only question remaining is that of where the border
runs under the Award. Accordinn to the Honduran Foreien Ministe-'s re-
poricd staieiiiciits, as rcporizJ h) the Deparinieni (ihc Si;,ic I>cp;iriiiicni]
and Tcgucig.ilpa [the t.mh.irs) iiiIlondur.is]. Iloii<liiriii.ii,i,p,,rri, rh,.
I!irer~iiirriinuktrr i>IJus!,i.,<.r<enr<.tirheh<r~rr rhurrhr ,lit<ir<l i.irlr,l.
Nicaragua's position is that thcaward is null . . .Consequentlyit cannot
accepl Honduras' position ofgoing to the International Court on the basis
that ir is validFor Nicaragua, the dispute presently is not as to where the
undefined border may lie but whether the Arbitral Award of the King of
Spain is valid or null." (Counter-Memorial, Ann. 34, App. 1, 11, p. 236
(emphasis added).)
The despatch concludes that the positions of the two countries are "irrecon-
cilable". It goes on to suggest a solution that foreshadows the compromise
ultimately reached in the Washington Agreement: an agreed submission that
would permit each party to maintain its position before the Court "without any
so-called loss of dienitv hv Honduras" Iihid 1
-,, , ,
This same theme appears again and again in the diplomatic materials. It was
certainly well understood by the United States officialsconcerned. Consider. for
example, Foreign Ministe; Mendoza's conversation with Assistant ~ecre'ttar~
Holldnd of 19 December 1955, at the very beginning of this affair. This is the
very talk in which Dr. Mendoza is reported as expressing doubts about ARGUMIZW OF PROFESSORCHAYES 29
Ni?JrJgua's acceptance II!ihc cunipulsory luriidiction He g<>cslin IO cxplain.
hiiuçver. the truc ruson for lionduras', hcsitanc) Io invokc the Court
"Dr. Mendoza was emphatic that the dispute could not be referred to the
ICJ [Dr. Mendoza is the Honduran Foreign Minister] on the basis that the
latter should determine whether or not the award of the King of Spain was
valid. Since the Niçaraguans maintained that the award was nuIl and void
this procedure would of course he agreeable to them. On the other hand,
were the Hondurans to agree to such a proposition it would indicate that
they had some doubt as to the validity of the award and the Hondurans
had none." (Counter-Memorial, Ann. 34, App. F, II, pp. 232-233.)
Similarly, an instruction from the Department of State to the Emhassy in
Managua concerning possible resolution of the dispute by the International
Court of Justice States:
"The Ilonduran rcprebcntaii\,cshave made II clcarthït Hiinduras uould
noi he willing IIIbubmit ihe que\tii>noiihc i,~iIidiiyif ihe dccision rcndered
hs ihe Kinr: ui Siidin in IYllhsincc they mainiain thcrc isno queriion hui
that the deision (svalid. They do not w?shto weaken theirposiiion hy even
suggestingthat this isa matter for decision hy the Court." (Ann. 34, App. H,
of the Counter-Memorial.)
Of course, a plenary action hy Honduras under Article 36 (2) would haveput
in issuethe validity ofthe award as a matter of affirmativepleadinghy Honduras.
Honduras would also hcar the burden of proof on the issue. This was the very
thing Honduras did no1 want to do. For other examples in the Appendices to
Annex 34, illustrating this point, seeAppendix C, II, pages 229-230; Appendix J,
page 237; Appendix K, page 237; Appendix M, page 241 ; Appendix O, pages
243-244; Appendix P. page 247 (Nicaragua "cannot aecept the assertion that
the only solution to the matter in conformity with international law is execution
of the arbitral award"); and Appendix S. All of them contain clear slatements
of the terms of reference problem.
Of course, Honduras recognized that once the case go1 10 the Court, on
whatever hasis, Nicaragua would be able to argue that the Award was invalid.
Honduras simply did not want to be in the position of itself seeming to raise the
validity issue.The point may seem to be of little practical signifieance.But il is
just such questions of "dignity" and "face" that are the stuif of diplomacy.
Indeed. it was iust such considerations that led Io the submission of the case of
~in~uiers and'~crehos by a special agreement, although France and England
were both undoubtedly subject to the compulsory jurisdiction (ICJ Reports
1953,p. 47).
The Washington Agreement emhodied the kind of formula for which the
parties had been searching.The two Governments agreed Io suhmit to the Court
"the dispute existing betweenthem with respect to the Arbitral Award handed
down bv His Maiestv the Kine of Silain on 23 December 1906 . . .". The
~~reeméntrecites2théunderstanding that each party "shall present such faeets
of the matter in disagreement as it deems pertinent". The "dispute" is not further
defined or characterized, so that each party can maintain ils own position.
Indeed, each party appended to the Agreement an Annex setting out ils position
in full. You can see the Agreement and the Annexes in the pleadings to the King
of Spain decision (1.C.J. Pleadings,Arbilral AwardMade by theKingof Spainon
23 December1906. Vol.1.DD.27-30).
lishiiuld hi.n.ited ihat ~;'d~eIiuJbi>n'\corrcrponden;~ rcvcalsanothcr reaion
\ihy the .lc\ iccoitheco~~ipr~~nrrsisiiinien~ l~irlfto Hondura,. I'orcignMinistcr30 MILITARY AND PARAMILITARY ACTIVITIES
Duron states that the "Special Agreement was signed at the insistence of Dr.
Luis Quintanilla". Dr. Quintanilla was then the Mexican representative to the
OAS Council - an important person for hoth Honduras and Nicaragua -
and was also the Vice-President of the Ad Hoc Committce that ovcrsaw the
negotiations for the settlemcnt. Dr. Quintanilla thought "that such a pact gave
it more force in guaranteeing the execution of the Court's decision by virtue of
the intervention of the Organization of American States". That is again the letter
1quoted earlier (Exhibit B. item 12, infra, p. 306, para. 3).
In sum, the assertion that "Honduras helieved . . .and acted on the premise
that Nicaragua's 1929declaration wss no1 a binding acceptance of thc prescnt
Court's jurisdiction" that is the Unitzd States assertion (II, Countcr-Memorial,
para. 113) is palpably incorrect. Thcre may have heen doubts at some limes.
And certainly the theory on which Honduras maintained that jurisdiction existed
is not the theory advanced here by Nicaragua. But as to the fact of the Honduran
position, there can hc no doubt whatsoever: Honduras asserted from the out-
set that Nicaragua was suhject to the compulsory jurisdiction of the Court; it
insisted that this title ofjurisdiction should be reliedon in the case to be broug;t
and it tuasrelied on in the Application and Memorial ultimately filed.The reason
Honduras did not proceed earlier or solely in reliance on Article 36 (2) wds not
lack ofconfidence in the legal position, but the political and diplomatic difficulties
such a course might entail.
Nicaragua
The documents submitted by the United States do not show any denial by
Nicaragua that it is suhject to the jurisdiction of the Court. On the contrary,
although they reflect a good deal of diplomatic manŒuvring, they arc rcplctc
with expressions of Nicaragua's willingness to have the dispute settlcd in this
manner. For exarnple, the United States Embassy in Managua reports that
"Oscar Sevilla Sacasa, the Foreign Minister, reaffirmed on May 27, 1955,
Nicaragua's willineness to submit to the lnternational Court of Justice the
of the un'definedsector of the Nicaraguan-Honduran border" (II,
Counter-Memorial, Ann. 34, App. 1).
And again
"Amhassador Sevilla Sacasa indicated that his Governmcnt was definitely
interested in presenting the matter to the International Court on a hasis
which would not reflect on the dignity of either of the participants" (ihid,
APP. H).
Again, the problem seems to be the terms of reference. This appears most
clearly in the very conversation cited hy the United States as an admission
by Nicaragua that it is not suhjcct to the compulsory jurisdiction (II, Counter-
Memorial, para. 116). On close examination of the report of thdt conversation,
it shows nothing of the kind. The document referred to is Appcndix K to
Annex 34ofthe United StatesCounter-Memorial (II), and if any of the Members
of the Court have the Annexes before them, they might wish to follow along on
i~. ~~,wa~.of n.eliminarv.2.t should be noted that this is an infornial interna1
record <>l'ci~n\ercationbeiu,cen Anib~ssiidor Sr.\iIla Sacasil and MI. Ncuhegin.
a rathcr junior c>fficrrin lhe State Dcpdrtmcni 21 the lime. prcpared hy LI Cnile~l
States ~ÿrticioani. orobablv Mr. Sewhcein him,elf. iiir the file,.r\> Anibarsad<ir
~r~üeio ha; already pointed out, it Ys no1 a statement of the Nicaraguan
Government. In any case, to see the real import of this so-called "admission" ARGUMENT OF PROFTSSORCHAYIIS 31
attributed to the Nicaraguan Ambassador, the entire context of the statement
~~~~-~e-~x~ ~ ~ ~~ ~ ~~ ~
With the Court's permission, 1will read the entire relevant passage from the
record of conversation. It begins with Mr. Newbegin'sreview of the situation as
regards submission to the court in exactly the terms 1have discussedabove, and
this is a rather long passage, so 1 ask the Court to bcar with me:
.'Iti>IJthc Anihas-aJ.ir thdi the IIoriJur:<n*felt thdi ilic bcsi rtic:inaai
setiling the Ji,puic iii~ulJ he through rckrcncc IO the Intcrnlititinal Court
of Ju,tice The onl, rcscri:ition the Ht,nJuranh h:id in ihir conneciion ii:ir
the question of teks of reference, namely, the Hondurans did not wish to
refer to the Court the question of whether or not the Award of the King of
Spain in 1906was valid. They recognized thai once the question was referred
to the Court the matter of the award would undoubtedly be passed on by
the Court and they had no objection to ihis. It was purely a matter of terms
of reference. The Hondurans would not agree to submitting the case to the
Court on the basis of merely determining the validity of the award. If they
did this they felt that that act itself would indicate that they had some
question of ils validity while in fact they had none. They recognized at the
same time that Nicaragua would wish the mattcr referred to the Court on
exactly that basis since Nicaragua was maintaining that the award was nuIl
and void and acfordingly the boundary linc was still a matter of dispute.
The Hondurans had suggested that either Honduras or Nicaragua could
make a complaint to the Court that the other was occupyingcertain territory
or some other grounds of complaint might be found. Alternatively, they
could find some lems of reference on which they would both agree but
which would require a decision by the Court. Reference was made Io the
fact that the matter had not been nreviouslv referredto the Court because
Nicaraguli h:iJ nc\cr agrecil 10 \~hmit 1,)compulsory juridlcilun.
Anib.issador Sci,~llsSaz~r~indi.:<teJ ihat an agreenicnt hctuccn the tuo
c<,untricrivo~ldha\,e Io he rc;iclicd Ir?overcumc this ditficulty."
The Counter-Memorial (II, para. 116), and not only the Counter-Memorial
but the much larger Memorandum - an II- or 12-pageMcmorandum discussing
this matter (Ann. 34. 11,p. 224) - quotc only one sentence from MI.Newbegin's
presentation - only rhelusrsentencerefcrrinyro Nicuru~uu'succeptunce of the
compulsory jlrri.sdicrioIf you quote only that sentence and then Ambassador
Sevilla Sacasa's reply, it is made to appear that his remark was a direct response
to the assertion that Nicaragua had not accepted compulsory jurisdiction. 1
submit that read in ils full context the remark is at besi ambiguous. The much
more likelv readine is that the difficultv to which the Ambassador referred was
the difficuity thai \;as the main subjeciof the conversation, that is the difficulty
over the terms of reference. His comment can be convcrted into an admission
that Nicaragua had no1 submitied only by the kind of relentlessly selective
quotation that the United States has chosen to employ.
The United States further asserts that in the case itsclf:
"Nicaragua objected strongly Io the invocation of Article 36 (2).
According to Nicaragua, the Court's iurisdiction over the case rests exclu-
sively onihe ~ashington Agreement.-Nicaragua also argued that the case
did not fall within Article 36, paragraph 2 (c). which Honduras had cited."
(II, Counter-Memorial. para. 119.)
,\g:iin the UniteJ Siatc~~iatcmcr~~ IS niislc.iiling.The Unitcd States ciici ui io
p,igc, 131.132of Vol~mcI iiithe l1li.iid~jgin the King id Spurficabs. Page 13132 MILITARY AND PARAMILITARYACI'IVITIFS
contains no jurisdictional objection a1 al1 - it only insists that the "actual
dispute submitted to the Court was defined by the OAS resolution of 5 July
1957", and not by the Honduran statement appended thereto, in which Article
36 is mentioned.
On page 132 the Nicaraguan Menlorial challenges the Honduran invocation
of Article 36 (2) (c). But the Hondurdns do not mention that Article in the
jurisdictional averments of their Plcadings, but rather in the Conclusions section
of their Application (I.C.J. Pleudings.Arbirral AniardMode by rhcKing ofSpain
on 23 Derember1906, Vol. 1,p. IO).As to this, Nicaragua asserted, in linc with
the position it had maintained al1along, that there was no dispute falling within
the terms of Article 36 (2) (c) :
"There is no dispute about the realify of the existence of any îact which
if established, would constitute the breach of an international obligation.
There is no dispute as to the reality of Nicaragua's exercise of sovereignty
over a part of the territory in licigation; there is a disagreement about the
cxistence of any obligation of Nicaragua Io execute a pretended arbitral
award . .." (1,Nicaraguan Mernorial, p. 132).
So we sce that on pages 131-132, Nicaragua is arguing about the terms of
refcrenk- again. There is simply nothing in al1this that constitutes an objection
to jurisdiction under Article 36 (2). Still less is it a denial thdt Nicaragua has
submitted to the Court's iurisdiction under that Article.
Sic~r;igu;i'struc hçlir<in ihr. prcniiscs was 3llciicd hy an<~ihcrcircumsi;ince.
In ihc summïr of 1956. 5i months artcr Ilonduras had gonc to Judge IluJs<in.
Siciirariua 3155 consulied disiineuishcd counscl ;ibout ihc st;itus <iithc King of
Spain3;~ward and about whatcourse il should pursue to vindicate its righG in
that matter. After an extensive search, the archival copies of the Spanish
translations of these extensive consultations have been discovered in Managua.
They have heendeposited with the Registrdr in accordance with Rule 50 (2) of
the Rules of Court.
In cach consultation, the jurisdictional discussion is only a small part of a
much larger opinion dealing with the ultimate validity of the Arbitral Award
and the remedies available to Nicaragua. WChave ohtained a photocopy of the
relevant portions of Madame Bastid's opinion in the original French from
Maddmc Bastid herself. And we have supplied both the Spanish and an English
translation of the relevant portions of Professor Charles Rousseau's opinion.
Those arc before the Court as Exhibit C in this proceeding (infra.pp. 309-313).
Professor Rousseau delivered his opinion first, in lune 1956. He recites the
well-known facts of Nicaragua's failure Io deposit the instrument of ratification
and states that this raises a question about the validity ofNicaragua's adherence
to the Optional Clause. But he does no1stop to resolve the question. He regards
it as "an ambiguity that it is convenient to remove as quickly as possible" by
filing a new decldration. (That is ai Exhibit C, Professor Rousseau's Opinion,
infro,pp. 313.) And, of course, when Professor Rousseau came to answer that
question in his treatise, he ranged himself with the vast majority who list
Nicaragua asbound hy the compulsoryjurisdiction (Rousseau, Droii iniernarional
ntzhlic.tV (Paris. 1988),,.o. ~ ~).
~adame Èastid, however, who filed her opinion two months later in August
analysed the issue fully and asserted unequivocally that Nicaragua was bound:
"Dans ces conditions on peut soutenir que la déclaration faite par le
Nicaragua rentre bien dans la cadre prévupar I'alinia5de l'article36 actuel.
Telleest d'ailleurs la solutionqui résultede l'Annuaire de la Cour . . Sans34 .MII,ITARYAND PARn.UIL1TARY ACTIVITIBS
the United States Annexes were going forward. Most of the Annexes submitted
hy the United States reveal on their face that they were circulated to the Office
of the Legal Adviser. This is indicated sometimes hy the rnarking "L" along the
left hand margin or sornetirnes hy the written notation "L-2" at the top. Some
are marked "L/ARA2' indicating that they went to the section of the Office of
the Lcgal Adviser dealing with American Republic Afiirs. (Annexes J and M
to the United States Exhibit are so marked.) The most important, including
Judge Hudson's memorandurn, went to "LIARA Miss Whiteman". (See Anns.
F, G, H, K.) She was then the Assistant Legal Adviser in charge of that section
and is also the author of Whiiemn's Digest, the authoritative compendium of
United States practice on matters of international law. The LcgalAdviser'sOffice
and its Treaty AiTaairs Section are the compilers of Trearies in Force.
We are left with an interestine auestion: If. as the Counter-Memorial asserts.
the United States "believed" that'~icaragua'had not accepted the compulsor~
iurisdiction, and if this helief was shared hy the State Department lawyers who
were the experts in the matter and who ha-daii the facts~beforethem,-why did
they lis1Nicaragua as bound, in the first volume of Treaiie.~ in Force, which they
were at that very moment compiling?
To surn up, the United States assertion that "Honduras, Nicaragua and the
United States bclievedand acted on the prernisethat Nicaragua's 1929declaration
was not a binding acceptance of the present Court's jurisdiction" turns out, upon
careful examination of the documentation, most of il supplied by the United
States. to be auite simnlv wrone. Honduras consistentlv maintained the contrarv.
Nicdr:tgu>n&r '.coili;med th;! 111)h;iJ noi ar..eptid the Court'\ conipulbo;)
~uri~~istion"and h:id clitcgorical ;idvice froni its oivn ver? disiinguished Ioreign
,\dviscr thai iiwas hirunil. Ar for the lJniieJ Sixte. ilkepi il>oun rounhel in
di..,,..nnr itniong the par~ic\. hut when itcarne tirnc Io take ;inultiiial piisiiiun
in iis new pubhciltion lri.<ii~i,.n h~rr.r..t rcrnrdrJ Nir~r;tgu;i a>>ubjeci ti>the
Optional Clausejurisdiction.
3. OpinionsofPublicists
The United States concedes, as it must, that the vas1 majority of publicists
have accepted that Nicaragua is subject to the compulsory jurisdiction of the
Court. A lis1of 13such authorities is round in paragraph 167of Our Memorial.
The United States counters with Dr. Engel. And we concede that Dr. Engel
does indeed argue that Nicaragua was not within the operation of Article 36 (5)
(1, Mernorial, para. 69).
But the United Statesputs most of its emphasis on the writings of Dr. Rosenne
and of Judge Hudson, and 1would liketo spend a little more tirne on them.
As to Dr. Rosenne, the United States makes much of asserted qualifications
and douhts he expressed with respect to Nicaragua. It is certainly true that
Professor Rosenne has progressively distanced himself from personal responsi-
bility for al1jurisdictional listings in the successive editions of his book. The
Counter-Memorial (para. 145, 11,p. 45, note 1) quotes the disclaimer, in the
1965 publication, The Luw und Pruciice of ihe Court. But that disclaimer is
applicable to al1listings. Ir reflectsno special concern about Nicaragua. Similarly,
the minor changes in the headings of the footnotes in the various editions of The
WurldCourr are quoted at length in the Counter-Mernorial (para. 145, note 1).
If they reiiect any change at al1in Dr. Rosenne's confidencelevel, they too are
not directed at Nicaraeua but aonlv eenerallv to the States listed in the note.
.. , -
The Count~.r-Memoriilquoies 2 passage ir<>m7Iri. 7i!>t?lir<.ri.IIr/li.J~<rt,</i.,!
u/tlii, Ir~!ernuiio~iC'oar! iq'Jl,.rr!rc(incideniiilly s,iihout indicliiing th:it ihc pas- ARGUMENT 01'PROFFASOR CHAYES 35
sage occurs in a footnote). The passage contains the traditional recital about
Nicaragua's deposit of theinstrument of ratification (para. 144).Butthe Counter-
Memorial does no1refer to the Appendix Tablesin the samemonograph, entitled :
"Declarations Accepting Compulsory Jurisdiction hy States Parties to thc Pro-
tocol of Signature of the Statute of the Permanent Court of International Justice
and the Statute of the International Court of Justice" (The Time Fuctor . ..,
p. 76). There, the declaration of Nicaragua is listed as "entering into force" in
"24.9.29" with "duration", "unlimited" and "exclusions", "nil". The only entry
in the "remarks" column is a reference to the King of Spain case (ihid., p.81).
This unqualified listing was made with full knowledge of the facts about the
deposit of the instrument of ratification recited infootnote 1 at page 19of the
same volume, already referred to. Indeed, il may not be amiss to point out, in
connection with the propcr interpretation of Article 36(5), that, in this table,
Dr. Rosenne records the Nicaraguan declaration as "entering into force" on
24 September 1929. So maybe it was "in force" also when the present Court
came in10existencc.
Al1this is mostly cavilling.The main point is that Dr. Rosenne, with whatever
degree of scholarly fastidiousness he thought appropriate, invariahly listcd
Nicaragua among States that are subject to the compulsory jurisdiction of
this Court.
The Counter-Mernorial reservesits biggestguns TorJudge Manley O. Hudson.
Not once, but in two separate places, it includes a detailed analysis of the views
of Judge Hudson and particularly of his representation of Honduras in the King
of Spuin case (II. Counter-Memorial, paras. 114-115, 139-143). Let us rcview
this analysis.
To hegin with, one fact is beyond dispute, and is no1disputed. Judge Hudson,
like Dr. Rosenne. in everv ~ublication concernine the comoulsorv iurisdiction of
the Court from 1948to h:s iast one in 1957,listed-~icaragud.am&g thecountries
that had submitted to the compulsory jurisdiction. In fact, as already noted, a
statement prepared hy Judgc Hudson and presented to the Senate Committee
considering the United States suhmission to thc compulsory jurisdiction in 1946
lists Nicaragua among those States submitting io the compulsory jurisdiction of
this Court. (Ileurings on International Court of Jusrice, Senute Committcc on
ForeignRelutions, 79thCongress,2nd Session(1946). p. 91.)
The Counter-Memorial States with reference to the opinion Judge Hudson
prepared for Honduras in the King Spain case: "Judge Hudson concluded
that 'Nicaraz-a . . .is not bound bv the second pa.aer-.h of Article 36 of the
Statutc of ihc Intcrnÿiion~l Ciiurt of Justice'" (Counicr.Mcmori~I. para. 142).
\Vith reipïri. thi,IS:iniisitatement or ihc concluiiiin of Judgc Iludwn's upinion.
That opinion ariDcarsaï Anncx 37 ,ifihc Counicr-Mcnioriÿl. and wain I uould
ask those ~em'bérsof the Court who have the Annexes hefore the; to follow it
along with me. The Counter-Memorial cites for this proposition paragraph 36
of the Hudson opinion. As will he seen in a moment, paragraph 36 does not
embody Judgc Hudson's "conclusion". The conclusion appears at the end of the
opinion where you would expect il to appear, in paragraph 40 (Ann. 37, 11,
p. 265). It says: "the writer would no1 be surprised if the Coun should say that
Nicaragua is not hound to suhmit to ils jurisdiction". Indeed, the conclusion
was soRened by the excision of the words "in the least" from the penultimate
draft. The Court will understand thai experienced professional lawyers are not
often surprised by what courts may do.
Paragraph 36, on which the United States relies, is contained in the earlier,
tactical part of the opinion (Ann. 37, 11,p. 264). 11followsa paragraph in which
Judge Hudson says that the Court has no1pronounced on the question whether38 MILITARYAND PARAMII.ITARYACTIVITIBS
last annual article on the Court, in 1957, when he was in full possession of al1
the relevant facts. The Counter-Memorial suggests that this renewed expres-
sion of an opinion Judge Hudson had held and published al1his life was done
"perhaps out of deference to his client Honduras" (para. 143). If the Court will
permit a personal expression, for me, it is most regrettable that the United States
should have found it necessary to cast this aspersion on this distinguished inter-
national jurist and scholar.
4. UnitedSiaresPractice
Now finally 1 want to talk about United States practice. It remains only to
consider the subsequent practice of the United States since 1948,when, on the
basis of a careful study by Mr. Denys Myers of the Legal Adviser's Treaty
Affairs StaK, a list was prepared of States subject Io the compulsory jurisdiction
of the Court. Presumably, the study was precipitated by the declaration of the
United States the previous year. Nicaragua was included on the list (1,
Memorial, para. 81).
As we know, from that day to this, Nicaragua has always appeared in whatever
officialpublic record the United States has maintained of States so bound (ibid.,
paras. 81-82). From 1956,when the State Department first published Treariesin
Force to the present, Nicaragua has been listed in that publication as accepting
the compulsory jurisdiction ol the Court (ihid, para. 80).
The United States is uncharacteristically modest about the significance to be
attributed to this annual publication. The Counter-Memorial states:
"Trearies in Force should not be considered authoritative or admissible
evidence of the text or parties to a multilateral treaty for which the United
States is not depositary; that role is reserved for other publications, none
of which has ever listed States accepting this Court's compulsory jurisdic-
tion." (II, Counter-Memorial, para. 146.)
To begin with, no such disclaimer appears in the publication itself. It recites
on its cover page that it is "Compiled by the Treaty AKairs StaK, Office of the
Legal Adviser, Department of State". The foreword (which has appeared in
substantially the same lorm since the first publication in 1956)states:
"This publication contains a list of treaties and other international
agreements to which the United States has become a party and which are
carried on the records of the Department of State as being in force on
January 1 [of the ycar of publication]. It includes those treaties and other
agreements which on that date had not expired by their terms or had not
been denounced by the parties, replaced or superseded by other agreements,
or otherwise definitelv terminated." (Treatiesin Force.A Lisr of Treariesand
Other International Agreementsin Fi~rceon Jonuary 1. 1983, US Dept. of
State Publication 9351, 1983.)
The foreword also contains a section entitled "Status of Treaties and Other
Agreements", which qualifies the accuracy ol the compilation in two respects
and two respects only. First :
"the Department kas not undertaken to pass upon the question of the extent
to which a state of war between the United States and any foreign country
has aKected the operation of treaty provisions".
That is one qualification, "state of war". Second:
"ln the case of new countnes, the absence of a listing for the country, or ARGUMENT OP PROPTSSOR CHAYES 39
the absence of any particular trcaty, should not be regarded as an ahsolute
determination that a certain trcaty or certain treaties are not in force."
(Treaties in Force.. ..,1983.)
These are the only reservations or caveats expressed as to the accuracy of the
"determinations" - that's the State Department's word - the determinations
recorded in Treariesin Force. There is certainly no distinction made as to "a
multilateral treaty for which the United States is not a depository", as the
Counter-Mernorial suggests.
The Counter-Memorid refers to two publications, Treaties and Other Inter-
national A~reements,"TIAS" we cal1il in the United States, and UnitedStares
Treuliesund OrherInternolionalAgreemenrs,"UST", we cal1it, as the authori-
tative publications for the "text or parties" to such treaties (Counter-Memorial.
para. 146, and note 4). It is true that those publications are the official
sources for the texts of treaties and agreements to which the United
States becarne a party in the year of publication. They also contain infor-
mation concernine thu formalities of United States rati~ ~ ~ ~ ~ ~ ~ ~ ~ ~atv a,d~ ~~~ ~
a lis1of original signatories.
But neither TlAS nor UST discloses what States are parties to such treaties
or indeed whether a particular trcaty is still in force, evenas to the United States.
These publications could not perform those functions, since they consist only of
a chronological reproduction of the texts of treaties and agreements that the
United States entered into in a particular year. Thus, the Counter-Memorial is
simply wrong to suggest that TlAS and UST are the officialsource, or any kind
of a source, of the parties to treaties to which the United States kas adhered. It
is true that neither TIAS nor UST "has ever listed States accepting this Court's
compulsory jurisdiction" (II, Counter-Memorial, para. 146). But that is because
they have never listed the parties to any treaty whatsoever. That function is
performed by Treariesin Force.
It is not surorisin~. then. that Treariesin Force is routinelv cited bv United
States courts as evid&cing that a particular treaty is in force or that a iarticular
State is a party to il. 1willmention only a fewinstances from the olficialreports
of Supreme Court decisions.
The most recent is VolkswagenwerkA.C. v. Falzon, decided in 1983. There
the court cited Treatiesin Forceas the sole evidence for the proposition that the
United States and the Federal Republic of Germany are currently parties to the
Convention on Takine of Evidence Abroad in Civil or Commercial Matters -
and 1 do not think tKat is a treaty of which the United States is a depositary
(103 S. Ct. 1810, 1983).
In United Srutes v. First Narionul City Bank, Justice Harlan in dissent used
Treatiesin Forceas the sole evidencefor the fact that there was no subsisting tax
treaty between the United States and Uruguay (379 US 378, p. 396,n. 16, 1965).
In United Stares v. California, the United States cited Treaties in Force as
authority that the Convention on the Territorial Sea and the Contiguous Zone
was approved by the Senate and ratified by the President of the United States
(381 US 139, p. 165,n. 32, 1965). There is a rnatrer for which they could have
referred to UST, but didn't, and that again is a multilateral treaty for which the
United States is not the depositary.
In Roth v. UnircdSrates, the Supreme Court relied on the very first edition of
Treatiesin Forceas evidence that over 50 States are parties to the Agreement for
the Suppression of the Circulation of Obscene Publications, again, a multilateral
treaty for which i doubt the United States is the depositary (354 US 476, p. 485,
n. 15, 1957).40 MILlTARY AND PARAMlLlTARY ACTlVlTlES
1will not burden the Court with further instances. We have compiled a list of
some 16 cases decided by Federal Courts of Appeals and District Courts in
recent years in which Treafiesin Forcehas been cited as authoritative evidence
for the status of or parties to treaties to which the United States is a Party. The
treaties referred to ranee from the United Nations and OAS Charters to the
~ ~ ~ ~ ~ ~ ~ ~ ~~ ~ ~~~-
Convention for the ~roïeçtiiin of Indusirial Property Io Bilsierdl Air Transport
Service Agrccmcnt,. And the Stîies in\,olvcd range lrom Angola and lceland 16,
Cînîda and thç IJnirrd Kinrdom. 'I'h3ilirt of ciiiitions annrars ai F.chibii D. ~~~~~~-~~ -
and 1 am informed that the réportsof the United States co;;ts to which it refer;
are available in the Library of the Court.
Indeed. in its own Counter-Memorial. in this case. the United States cites
Trearies in Force for the proposition that certain central American States are
parties to the United Nations Charter, the OAS Charter, etc., although there is
a curious introductory sentence qualifying the footnote, that 1am cohdent has
never before appeared in a bnef filed by an attorney representing the United
States (II, Counter-Memorial, para. 279, note 1).
But whether or not Trealies in Force is to be regarded as conclusive on the
legal status of anv of the matters recorded in it. it surelv does reoresent the
o6cial position of the United States ~overnment'as of thédate of publication,
as to the status and parties of the treaties and agreements listed therein. As such,
it is appropriate evidence of the practice of the~United States with resDectto its
tr~at~ohligations.
The officialposition of the United States - its unbroken practice as evidenced
hy Trealies in Force and predecessor publications since it adhered to the com-
pulsory jurisdiction of the Court in 1946 - is that Nicaragua has accepted
the compulsory jurisdiction of the Court under Article 36 (2) and (5).
Mr. President, Members of the Court, that concludes my presentation.
1suhmit, on behalf of Nicaragua, that under Article 36 (5) of the Statute of
the Court - properly interpreted in the light of its text, the lravauxpr¶toires,
the jurisprudence of the Court and the practice under the Article - Nicaragua
"must be deemed . . . to have accepted the compulsory jurisdiction of the
International Court of Justice . . .".
The Cour1rose ai 6p.m SEVENTH PUBLIC SIïTING (9 X 84, IOam.)
Presenr: [See sitting of 8 X 84.1
ARGUMENT OF PROFESSOR BROWNLIE
COUNSBLFOR THE GOVLIRNMENTOP NICARAGUA
Professor BROWNLIE: Mr. President, Members of the Court. May il please
the Court.
At this stage in the oral presentation of Nicaragua's casemy purpose is to
maintain and develop the following propositions.
First, the application of the provisions of Article36 (5) of the Statute of the
Court to Nicaragua's declaration of 24 September 1929 and the consequent
status of that acceptance as a valid acceptance of the jurisdiction of thisCourt
have been recognized and confinned as a result of the conduct of the Parties
over a oenod of 38 vears.
~ ~c ~, ~ ~
Sccund. the status of Nicaragua's declaration ul'1929as a valid acceptance coi
the iurirdietii)n of thc Court ha, bccn rcci>gni~edand conlirmed b, the conduct
of tkird States and in a seriesof importan<public documents.
Third, the United States letter of 6 April 1984 was an invalid attempt to
modify or teminate the existing United States declaration, which has been
neither vaned nor terminated and remains in force.
Fourth, in the alternative, if the United States letter of 6 Apnl 1984had the
eKectof tenninating the United States declaration, that termination could only
take eiTectsix months after notice.
Fifth. the viewesnoused bv the United States to the eflect that the declaration
of ~ica;;i~ua i, icrminiibleu'ithi>u~noriiednJ that conrequcntly the principle of
rcciprosity ïpplics in ordcr to j-.tify unilateral moditiration of the Ijnitcd States
deciaration has no legal basis.
Sixth and last, it follows that hoth the declaration of the United States and
that of Nicaragua were valid declarations recognizingas compulsory thejurisdic-
tion of the Court at the date of the Application.
Mr. President, before entering the issues of jurisdiction as such, 1would like
to refer brieflyto the procedural context.
The present phase of the case clearly falls within Article 79 of the Rules of
Court, which concerns preliminary objections. Paragraph 6 of Article 79 pro-
vides that :
"in order to enable the Court to determine itsjurisdiction at the preliminary
stage of the proceedings, the Court, whenever necessary, may request the
parties to argue al1questions of law and fact, and to adduce al1evidence
which hear on the issue".42 MILITARY AND PARAMILITARY ACTIVITIES
Now the United States Counter-Memorial (paras. Y and 28) asserts that Nica-
ragua, as Applicant, "bears the hurden of demonstrating that the Court has
jurisdiction and that its claims are admissible".
That assertion as to the hurden oforoof in this case iswithout anv iustification.
No such justification exists in the p;ovisions of the Statute, eithe; cnArticle 43
or elsewhere. No such justification enists in the Rules of Court. Moreover, the
assertion has no relation to what may be called the anatomy of the issues before
the Court.
Without labouring the procedural issue too rnuch, 1 would offer two suh-
missions to the Court on the question of the burden of proof.
The first submission is this. At the most, the procedural position is not less
favourable to Nicaragua than it was, for example, to Carnbodia in the Temple
of Preah Vihrur Case.There the Court decided that, although "from the formal
standpoint", Cambodia was the plaintiff, both Camhodia and Thailand had
based their respective claims on a series of facts and contentions which wereput
forward by one party or the other. Consequently, in the words of the Court,
"the burden of proof in respect of these will of course lie on the Party asserting
or putting them forward" (ICJ Reports 1962, pp. 15-16). In my contention the
situation in the present proceedings is analogous. In this conception, of course,
there would he no presumption either for or against the existence ofjurisdiction.
But Mr. President, that first submission is by way of a concession, and there
is another possible view, which is no less attractive and forms the basis of my
second submission on the burden of proof, which is offered in the alternative.
The second submission is this. On the evidence available, both the United
States and Nicaragua have declarations in force which recognizedthe cornpulsory
jurisdiction of the Court within the provisions of Article 36 of the Statute. Thus
prima facie both Parties to these proceedings are within the system of the
Optional Clause and it isthe State which seeksto deny the existenceofjurisdiction
which has the general burden of proof on that issue.
In relation to both these submissions. two points are of particular relevance.
In the first place, the critical date for certain purposes is the date of the
Application, 9 April 1984. Until these proceedings the United States had not
sought to question the validity of the Nicaraguan declaration. Indeed, as late as
6 April, the date of the attempt to modify the terms of the United States
declaration. the United States clearlv assumed that an AD..icationbv Nicaragu-
presented a real danger of proceedings on the merits, since, if the Nicaraguan
declaration were an evident nullity, there would have been no real point to the
letter of 6 A~ril seekine.to avoid the suit.
Secondly. ihe efictii'cncss oi thc deciar~tion of I*;icsragasiJ deil;ir.ition in
iorce for the purposc, oi ,\rticlc 36. pdr;ignph 5. oiihr St3tuleISevid~'nicdh)
3 jeries of public do.wments 2nd by the conduci i>fthe Parties. Thc appli;atii>n
of Article 36, paragraph 5, to a pdrticular declaration cannot be established on
any other hasis since there is no pre-ordained process of certification of
declarations for thispurpose. In consequence, if a series, a pattern, of important
public documents, readily available to the parties, or for which one or other
party is responsible, indicates the validity of the declaration of the applicant
State, there must arise a presumption oflegality, which creates a burden of proof
for the respondent State.
In the absence of such a process of certification, the evidence of the effectiveness
of the declaration of Nicaragua for the purposes of Article 36, paragraph 5, of
the Statute inevitahly consists of the large mass of public papers covenng a span
of 38 years, together with the general opinion of States and of authoritative
writers. ARGUMENT OP PROFESSOR BROWLIE 43
With that preamble behind me, MI. President, 1 shall turn to the argument
that the validity of Nicaragua's recognition of the compulsory jurisdiction of the
Court finds an independent hasis in the conduct of the Parties.
This argument consists of four interlocking propositions.
First, Nicaragua's conduct over a period of 38 years unequivocally constitutes
consent to he hound hy the compulsory jurisdiction of the Court by way of a
recognition of the Application of Article 36, paragraph 5, of the Stdtute to the
Nicaraguan declaration of 1929.
Second, likewise the conduct of the United States over a period of 38 years
unequivocally constitutes recognition of the essential validity of the declaration
of Nicaragua of 1929as an acceptance of the compulsory jurisdiction as a result
of the Application of Article 36, paragraph 5, of the Statute.
Third, as a consequence it was recognized hy both Parties that any forma1
defect in Nicaragua's ratification of the Protocol of Signature of the Statute of
the Permanent Court did not in any way affectthe essential validity ofNicaragua's
consent to the compulsory jurisdiction of the Court.
Fourth, the essential validity of the Nicaraguan declaration as an acceptance
of the com~ulsorv iurisdiction is confirmed by the evidence of a long series of
public doc;menti, by the general opinion of States and hy the gened opinion
of qualified publicists.
ConsentIoBeBoundas Evidencedby Consent
Mr. President, it may assist the Court if 1 first of al1address an issue raised
by each of these propositions, namely whether consent which is in some sense
implied or informal can constitute consent for the purposes of Article 36 of the
Statute. It may be recalled that the United States Counter-Memorial (II, paras.
152.156) contends that conduct of the Parties "cannot satisfy the mandatory
legal requirements" of the relevant provisions of the Statute (ibid, para. 154).
However, the only mandatory requirement which the Court has insisted upon
is the existence of a real consent to the compulsory jurisdiction: 1 refer to the
Templeof Preuh Viheurcase, Preliminary Objections(ICJ. Reports 1961,p. 30).
Mr. President, in this case and in international law terms generally, the
reference to "conduct of the Parties" involves either a process of interpretation
in light of suhsequent practice or a process of informal, and in some sense an
imolied. consent. In the doctrine of Drivate law svstems there is no essential
dikerence hetween express and implied consent, or between express and implied
promises. Apart from the case of mandatory requirements of form, in general
doctrine an informal or implied promise is just as real, just as important, as an
express promise. The focus is normally upon intention, and the only practical
difference hetween express and implied promises lies in the realm of evidence.
Moreover, express provisions mdy be suhject to serious amhiguities and to the
vice of error and reference may then be made to the conduct of the parties, the
course of dealing, the customs of the market, and so forth, in order to solve
the problem of interpretation, or to discover the intention of the parties by
reference to evidence outside the express terms of the contract.
The Court has always approached the process of discovering the intention
of States in relation to acceptance of its jurisdiction in a practical way and
within the normal framework of legal technique. Indeed, the Court has in cer-
tain respects shown considerahle flexihility, particularly in the sphere of forum44 MILITARY AND PARAMILITARY ACTIVITIES
prorogatum and 1 refer, for example, ta the Corfu Clzannel case (I.C.J. Reporrs
1947-1948, pp. 27-28).
There can he little douht that the Court will act upon consent given by
implication (cf.Monetury Cold Removed from Romein 1943 case, 1.C.J. Reports
1954, p. 32). And in the Templeof Preah Vihear case, Preliminary Objections
(LCJ. Reports1961, p. 17). the Court had some very interesting observations ta
make about the question of formalities with particular reference ta the issue of
comoulsorv iurisdiction. The oassaee concerned is rather lone but with vour
permission, MI. President, 1would liketa quote il since it is rather material. In
the words of the Court:
"The Court wishes to refer ta the argument presented on behalf of
Thailand that, in legal transactions, just as the deed without the intent is
not enough, sa equally the willwithout the deed does not sufficeto constitute
a valid legal transaction. It should be noted here that there was certainly no
will on Thailand's part in 1950ta accept the compulsory jurisdiction of the
former Permanent Court. This does not of course bv itself mean that the
1950Declaration constituted an acceptance in relation to the present Court.
Nevertheless the sheer impossibility that, in 1950, any acceptance could
either have been intended, or couldin fact have operatid, as an acceptance
relative ta the Permanent Court isa factor ta be home in mind in considering
the eKectof the 1950Declaration.
As regards the question of forms and formalities, as distinct from
intentions, the Court considers that, to citeexamples drawn from the field
of private law, there are cases where, for the protection of the inierested
parties, or for reasons of public policy, or on other grounds, the law
prescrihes as mandatory certain formalities which, hence, become essential
for the validity of certain transactions, such as for instance testamentdry
dispositions; and another example, amongst many possible ones, would he
that of a marriage ceremony. But the position in the cases just mentioned
(wills, marriage, etc.) arises because of the existence in those cases of
mandatory requirements of law as to forms and formalities. Where, on the
other hand, as is generally the case in international law, which places the
principal emphasis on the intentions of the parties, the law prescribes no
particular form, parties are freeta choose what fonn they please provided
their intention clearly results from it.
It is this last position which obtains in the case of acceptances of the
compulsory jurisdiction of the Court. The only fonnality required is the
deposit of the acceptance with the Secretary-General of the United Nations
under paragraph 4 of Article 36 of the Statute. This fomality was ac-
comulished bv Thailand. For the rest - as reeards form - oaraeraoh 2
ui ~.riislc 36 kr.rely pro\,ides ihai States p~rtic;ti> thc Staiiiie 'm;iyai <iny
lime Jeclare iha~ ihcy reiogni/c a, compulhi>ry the j.irisJiiiioof ihc
Couri'. tic Ihr. prcL.iseCorln.in4 Isnyuapc in uhi:h thcv do ilil1,lcii i.i
them, and there is no suggestion thaï aiy particular fokm is required, or
that any declarations not in such form will he invalid."
Thus the judgments in the Templeof Preah Viheor case.
In that case the Court in factaffirmedthe existence of jurisdiction on the hasis
of a declaration which Thailand was herself seeking to disown and which
purported to be a renewal - in 1950 - of the previous declaration - of 1940
- which, of course, related to the jurisdiction of the Permanent Court. Thus
both as a question of principle and as a matter of judicial practice, the consent
of a State ta the compulsory jurisdiction for the purposes of Article 36 of the ARGUMENT OF PROFESSORBROWNI.IE 45
Statute can be established on the basis of an implied or informal consent evi-
denced by the conduct of the Applicant Statc and in other ways.
TheLegulRelewnceofFormo1DefeclsinAgreemenrs andBeclarulions
Mr. President, with your permission 1 shall examine the legal relevance of
~-~~~~~~~~e~t~ ~~ aeree"ents and declaration~ ~ ~St~tes a little further. more
especially because in the present case the United States has placed considerahle
reliance uoon the fact that the instrument of ratification of the Protocol of
Signature -of the Statute of the Permanent Court appears not to have been
deposited. This ohviously constitutes a defect of form and is not a matter of the
essential validity ofthe declaration of Nicaragua.
In the Vienna Convention on the Law of Treaties the issue of ratification is
classified as an aspect of the "means of expressing consent to be hound by a
trcaty" (see Arts. 2, 11, 14 and 16 of the Vienna Convention). The authorities
which are set out in the Memorial of Nicaragua (1), paragraph 87, provide
strong confirmation that the conclusion of treaties is a mattcr of formal validity.
It is thus clear that the process of ratification is a matter entirely of the
mechanics of expressing consent and the expression ofconsent can be perfected
by other means. It follows that the conduct of the party concerned is itself a
means of expressing consent, or of afirming consent, to be bound and thus
eradicates the original defect in the form of the expression of consent.
The propriety of this analysis is amply confirmcd by the Judgment of the
Court in the Templeof Preah Vihear case, PrelinlinuryObjecrions . he matenal
passage isof relevance not least hecause the context consists of the provisions
of Article 36 of the Statute and the reasoning lies at the heart of the Court's
decisionon the issueofjurisdiction. The keypassageisas follows.TheCourt says :
"To sum UD. when a country has evinced as clearlv as Thailand did in
1950.anJ iniccd h) itr cc>nïi\t'nt.~ititud: o\cr many j,car,. .~nintention to
suhmii itreli 10 the ~onipul\or) ~1rirJiriio~iof uh31 .'on\lilule<l .ilIhc linic
the nrincival inrernatioiiÿl tribun~il.ihr.Couri 2oulJ noi ~iccepttlie plu th;it
this'inteniion had been defeated and nullified by some defect not involving
any flawin the consent given, unlessit could be shown that this defectwas
so fundamental that it vitiated the instrument by failingto conform to some
mandatory legal requirement. The Court does not consider that this was the
case and it is the dutv of the Court no! to allow the clear nurnose of a oartv
lo~bedefeated by reason of possible defeçts which, in the &nerai coitexi,
in no way affected the substance of the matter, and did not cause the instru-
ment to ;un counter to anv mandatorv reauirement of law.
The Court therefore considers thai th; reference in the Declaration of
1950to paragraph 4 of Article 36 ofthe Statute gave the Declaration, for
reasons already given, the charactcr of an acceptance under paragraph 2 of
~h~t Article. Such an acceotance could onlv have been an acceotance in
relation the prewni Cuuri. Thc rcmainder of ihc I>eïlaraii<)nmurt be
siinsirucd in the Iighi i~fthxi airdin;il CJCIJ .nd in the gcncral contexi ol'ihe
1)eclaration . . ."(1.C'J Ri,p<,rr.<IL(>/, p.34 )
Mr. President, it is difficult to think of any reason why this analysis should
not apply, murarismutandis, to the acceptance of jurisdiction by virtue of the
provisions of Article 36, paragraph 5, of the Statutc. This passage from the
Judgment in the Temple~fPreah Yihear case, and those that preceded it(ibid.,
pp. 30-34), are concerned with an important question of general principle -
that the parties "are freeto choosewhat form they please provided their intention46 WILITARYAND PARAMII.ITARY ACTlVlTlES
clearly results from it"(ICJ. Reporrs1961, p. 31), and the Court was referring
to declarations accepting the compulsory jurisdiction as examples of a wide
category of legal transactions (ibid).
The Court was clearly interested in an eilèctiveand practical conccpt of con-
sent and this appears from the following passage from the Judgment :
"The Court cannot, however, see in the present case any Factor which
could, as it were ex post and retroactively, impair the reality of the consent
Thailand admits and affirms she fully intended to give in 1950.There was
in any case a real consent in 1950,whether or no1 it was cmbodied in a
legally effective instmment - and it could not have heen consent to the
compulsory jurisdiction of the Permanent Court, which Thailand well knew
no longer existed." (Ibid.,p.30.)
At this point,1 can present my first conclusion to the Court.
As a matter of legal principlc. the consent of a State to the compulsory
jurisdiction of the Court mÿy be evidenccd by conduct and a formÿl defect in
the expression of consent will not be allowed to defeat the intention of the
declarant State. It is the reality of the consent which counts. International law
prescribes no particular form, and the parties are "free to choose what form they
please provided their intention clearly results from it" as it was put in tTemple
of Preah Viheor case (ibid.,p. 31).
Mr. President, 1 can now turn to the particular elements in the evidence of
Nicaragua's consent to the compulsory jurisdiction. In brief, the evidenceconsists
of a series of important public documents generally available to Governments,
including the Yearbook of the Court since its first issue in 1946, the general
opinion of States, and the general opinion of qualified publicists of the various
nations.
At the least. these elements have their own evidential sienificance and thev
confirm the inierpretation of Article 36, paragraph 5, of thekatute, expounded
by my leorned colleague Professor Chayes. However, these elements may be seen
in a diflerent wrsoective. The sheer auantitv. varietv, and wrsistenceover the
years, of thesi exiressions of opinion haveput ~o&rnments on notice of the
prevailing view. including the view heldby the Registiy of the Court.
There was thus a settled general opinion according to which Nicaragua's
declaration of 1929was in force in accordance with the provisions of Article 36,
paragraph 5, of the Statute. Neither Nicaragua nor any other declarant has
expressed any objections to the inclusion of the declaration in the Yearbook, and
the absence of any reservation on the part of the original declarant or on the
part of othcr declarants or on the part of other parties to the Statute, has the
legal consequences :
eirherthat the consent first expressed in 1929was confirmed;
or that the consent of Nicaragua to the compulsory jurisdiction may be implied;
in eiihercase as a result of the conduct of Nicaragua over a period of 38 years.
And, of course, there may be little or no practical diflerence between the two
interoretations of thefacts.
M'ha1isclr..ir,Ur Preiidcni. isihat the ii,nsent of ?iic;ir:lgu~.as implicd ironi
hcrcunduci in fari of the gencral opinion conccrning ihe riatus of hcr dcclaration ARGUMENT OF PROFESSOR BROWNLLE 47
rs :a valid :iczcptanrc01'ihc compulrory juri\Jiiiion of the prcwnt Couri. pro-
i,iJc. s titl01jurisdirii<)n indepcndenily i~fihr titlc uf jurisit~ctionhascd upon
ihc opcrsiion uf Article 36. pltragr;iph 5. and cx:imincd \vitlicharacicristic
lucidity hy my colleague Professor Chayes.
Before addressing the evidence directly, there are two other considerations
which provide a necessary preface to the materials themselves.
The first consideration relates to the provision of Article 36, paragraph 5,
which came into force as a part of the Statute in 1945.These provisions provide
a background to the specificevidence of Nicaragua's consent, since il is reason-
able to assume that the Government of Nicaragua, like the officiaisof other
governments and the oficials of the Regisrry of the Court, considered that the
declaration of 1929was in force consequent upon the operation of Article 36,
paragraph 5. Thus there was, so to speak, a tradition created, a background of
presumed validity in respectof Nicaragua's declaration, which filsquite naturally
with and explains the attitudc of consent adopted hy Nicaragua for a period of
nearly four decades.
The second consideration which prefaces the evidence is closely related to the
first. There was no spccial procedurc for the application of the provisions of
Article 36, paragraph 5, and thus there could be no form of consent availahle to
a State whose dcclaration appeared in the Yearbookof the new Court other than
approbation and acceptance by conduct.
Indeed, inclusion in authoritative sources, and, in particular, the Yeurhookof
the Court, was the nearest thing to a process of certification that Article 36,
paragraph 5, was applicable to a particular declaration.
TheScriesojlmporloni PublicDocuments
Mr. President, 1shall now hegin my review of the extensive xries of public
documents which instructed the world at large that the declaration of Nicaragua
constituted an acceptance of the compulso~ jurisdiction of the new Court as a
consequence of the operation of Article 36, paragraph 5.
In truth the three evidential sources, the public documents, the general opinion
of States, and the cxpert opinion of qualified publicists, interact and in strict
loeic there is no reason to cive orioritv to anv one of the three sources. However.
f; practical purposes the iuhl;c documents ihould be looked at first, since thcrf
can he little doubt that it is the documents which were the first to set the tone.
It is not my intention to reproduce the precise references whichappear in the
Memorial addresscd to the Court on behalf of Nicaragua, and cross-references
will be provided in the verbatim record for the convenience of the Court.
TheYearbook ofrhe Cour!1446 Io1983
It is natural to look first at the Ycurhookof the Court from 1946to the present
day. As Professor Chayes has already indicated to the Court, the first Yearbook
of the new Court, that of 1946-1947,records in three separate places that the
declaration of Nicaragua was "deemed to be still in force" bv virtue of Article
36. p:iragr.iph S. 01'thc Staiuic. Morco\.cr. [hi, .igniliwnt dsrcs,nient i~iihc
\t;itur of the dccl;iniii,aar aczonipltnicJ hy a footnotc uhich rcciirdcrlthc iact
thtit the dcriorii (if the instrument <ifratiticatiiiithe Protocol of Sicnaiurc oi
the ~tatute'of the Permanent Court had not been notified to the ~egiytr~.
Thus from the very heginning the possibility of the existenceof a formal defect
in the context of the old Statute was recorded, but clearly not considered48 MILITARYAND PARAMILITARYACIlVlTlES
either to afect the essential validityof the declaration of 1929or to preclude the
operation of Article 36, paragraph 5.
The declaration of Nicaragua has heen included in al1 the Yearhooksof the
Court since 1946, a period of 38 years. The footnote which appeared in the
Yearhookof 1946-1947(at p. 210) is not repeated in the subsequent issues until
the Yearhook 1936.1957. There the following footnote appears at page 218 :
"According to a telegram dated November 29th, 1939,addressed to the
League of Nations, Nicaragua had ratified the Protocol of Signature of the
Statute of the Permanent Court of lnternational Justice (December 16th.
1920),and the instrument of ratification was to follow. II does not appear,
however, that the instrument of ratification was ever receivedby the League
of Nations."
The final sentence of this footnote is a variation of the footnote appearing in
1946but the change appears to be a mere question of wording.
The Yearhookssince the issue for 1956-1957have contained the declaration
with this version of the footnote. It is to be noted that the footnote involves
nothing more than a record of factual data and no legal conclusion is adduced.
The issue of ratification is not characterized in any manner or form. Moreover,
whilst il may seem rather obvious, the footnote is not there by itself, but il is
appended to the declaration of Nicaragua which is always included, either by
reference hackto the Yearhook 1946-1947 or tentually.
From the Yearhookfor 1956.1957until the preseni the relevant section of the
Yearbookkas been introduced with a form of words referring to the operation
of Article 36, paragraph 5. This form of words has varied over the years, but
no1significantly.
Thus the introduction to the second part of the Yearhookfor 1956.1957
contains the following:
"By virtue of paragraph 5 of Article 36, declarations made under Article
36 of the Statute of the Permanent Court of International Justice which are
still in force shall he deemed, as between the Parties to the Statute of the
lnternational Court of Justice, to he acceptances of the compulsoryjurisdic-
tion of the latter Court for the period which they still have to run and in
accordance with their terms. Accordingly, the texts of declarations made
under the Statute of the Permanent Court which have not expired are also
given below." (P. 207.)
Since the Yearbookfor 1972-1973the same form of words kas been used.The
same passage has been in a rather slightly diferent form:
"ln view of the provisions of Article 36,paragraph 5, of the Statute of
the lnternational Court of Justice, the present section also contains the
lents of declarations made under the Statute of the Permanent Court of
International Justice which have not lapsed or heen withdrdwn. There are
now eight such declarations."
These statements do, of course, involve assertions of the legal status of the
declarations concerned. However, in the Yearhookfor 1956-1957the statement
introducing the texts of declarations includes the following proviso:
"The text of declarations set out in this Chapter are reproduced for
conveniencc of reference only. The inclusion of a declaration made by any
State should not be regarded as an indication of the viewentertained hy the
Registry or, aforriori, hy the Court, regarding the nature, scope or validity
of the instrument in question." (P. 207.) ARGUMENT OF PROFESSORBROWNLIE 49
This proviso (with slight variations) appeared in subsequent editions of the
Yearbook, including the latest edition (Yearbook1982-1983, p.50). The eiiect of
the proviso would, so to speak, be neutral, since it would apply hoth to the
declaration of Nicaragua and to thc footnote so far as that might he said to
have any legal significance.
At any rate, the general issue can now be addressed: what is the evidential
significance of inclusion of the declaration in the Yearbook, assuming ji>r ihe
presenr that there is no proviso?
Mr. President, the most authentic public record of the acceptances of the
compulsory jurisdiction of the Court mus1 surely he the Yearbook. This is a
public document in every sense and is published by the Registry of the Court.
The foreword hy the Registrar indicates that the Yearbook is published on the
instructions of the Court: (Yearbook1982-1983. D.v). The same foreword also
siaies ihat 'Ihc li.urho<.kii'prcp<irïdby ihe f<cgi\ir) ~iidin ni> uay inwlvcs rhc
rerporisibility of the Court" The relc\,anic OCthe ikurhook hr presenr purposcs
ih that OCa vubli; document eninnaiinc l'romthe auihi~riivwhiih is res~unsihlc
for mainlainine a record o~ ~~formalion on matters such as acceotances of
jurisdiction. ~he appearance of a declaration in the ~earbook puts'the States
concerned. and varticularlv other declarant States, on notice of a leea- status
auo as oerceived bv the ~éeisu ,.
Thc in~.lusi,~ntiscLepraricesriidiniaincd by viriue oi the proti~inns <~i'Ari~cle
36,paragr~ph 5. w<~ulJno1 bc noilficd 16)States indi\idually and ihc appelirance
of the lirrt Ycvrrhuu kf ihr nrw Court. thai Il)r 1946.1947.w\>ulJconstiiuie th?
firrt auihoritativr noiification of rhe siatus of Nicaragua's declarïtion ol 1929
vir-;i-visthe Statutc ol'the new Court. Thc source of the inl'orniationu,ould also
he authentic, given the duties of the Registrar described in Article 26 of the
Rules of Court. In particular, paragraph 1of Article 26 stipulates that :
"The Registrar, in the discharge of his functions, shall:
. . .
(m) ensure that information concerning the Court and its activities is made
accessible to governments, the highest national courts of justice,
professional and learned societies, legal faculties and schools of Iaw,
and public information media."
Mr. President it simply does not make sense to deny evidential value to the
data and documentation in the Yearbook. In evidential terms the Yearbook kas
the following characteristics which conduce to the credit and reliability of the
information contained therein :
First, it is a form of expert opinion evidence.
Second, it is a public document which is generally available and open Io
scrutiny: and thus it may be expected that over the years the information it
contains would be subject to review and monitoring by interested States, who
could make representations to the Registrar in respect of apparen- ~rrors or
omissions.
Third. it mav be exoected to be relied uoon bv States and in that sense il is
held oui as a Areful and official record of hokation concerning the Court by
the Registrar, whose duty il is to make such information availahle.
Mr. President, the fact that the Court is not in any legal sense bound by the
contents of the Yearbook is not to he confused with the probative valuc of
the contents.50 MlLlTARY AND PARAMILITARYACTIVITIES
The Yearbook is surely the normal and reliable source for information as to
the application of Article 36, paragraph 5, to particular declarations. It is the
considered opinion of the Registry, and though no1 conclusive, that opinion
must carrv considerahle weirht. more esoeciallv if il remains consistent over a
long periid of years. -~~~.~~ . ~-~
MF.President, in accordance with the general principlesof the law of evidence
the persistent pattern of date concerningthe declaration of Nicaragua appearing
in theYeorbook over a period of 38years creates a presumption that the accuracy
and reliability of the information that that declaration remained operative.
The existence of the proviso in certain issues of the Yearbook, 1 would
respectfully submit, does not suhtantially change the evidential picture. The
proviso has the result that the Registry may revise or even contradict the
information in the Yeorbook. However, the information is on its face accurate
and fit to be relied upon by govnnments and their advisers. The evidential
significance of a pattern of information which remains substantially the same
over a period of 38 years must be coiisiderahle.
The significance of the proviso can be illustrated by reference to the practice
of government agencies in placing provisos on maps and charts puhlished by
them. It is understood hy lawyers generally that such provisos do not reduce the
evidential value, as expert opinion evidence, of the maps and charts, in the
context of disputes between third parties.
Mr. President, the United StatesCounter-Memorial (II, paras. 131-132) relies
upon the proviso, although only as a basis for the mild statement at paragraph
132 that "the Yearbook has never asserted that its listing is authoritative or
final". But of course, the United States pleading also relies heavily upon the
footnote to the Nicaraguan declaration and, even if that footnote has the
significance attrihuted to it by Our distinguished opponents, the proviso mus1
ddmage both the declaration and the footnote. In this respect, the United States
argument is remarkably inconsistent.
Reports of the Iniernotional Courr of Justice tuthe United NationsGeneral
Assembly
Mr. President, 1shall now move from the Yeorbook of the Court to the other
public documents which evidence the status of the Nicaraguan declaration as a
valid acceptance of the Court's compulsory jurisdiction, and first of al1 to the
Reports which the Court has made annually to the General Assembly, beginning
with the Report for 1967-1968.
Each Report in a series covering a penod of 16 years includes Nicaragua in
the list of "States recognizing the jurisdiction of the Court as compulsory". No
reference ismade to the issue of ratification of the Protocol of Signature of the
Statute of the Permanent Court (1, Nicaraguan Memorial, para. 59).
The Reports are signed by the President of the Court and published as a part
of the officialrecords of the sessions ofthe General Assembly. They do not carry
any proviso, and the contents must he regarded as authentic. The Reports
emanate directly from the Court itself, are public in every sense, being widely
available to member States and others, and are rendered hy virtue of the
accountability which the Court has, suhject to the requirements of judicial
independence, by virtue ofils status as "the principal judicial organ of the United
Nations". The probative value of these Reports is considerable, Mr. President,
and they were given appropriate exposure in the Memorial submitted by Nica-
ragua on 30 lune. It is pcrhaps signifiant that the United States Counter-
Memorial maintains a discreet silence in face ofsuch important evidence. ARGUMENT OP PROFESSOR BROWNL~E 51
Documentsemanaiing/rom the Secreiary-Generalof the United Nations
Mr. President. mv review of the relevant ~uhlic documents now advances to
ihnsc dosumcnis c&ïnaiing from ihe Scirei;ry-Gcneral ol ihc Ilnited Nïiions.
In his second Annual Kepori ro the Ciencral A\i,mhly (Gcncral Assçmbly.
O/licl<ilRri.oril1947.SUDP. Ka) ..A,315). ihs Sr'crciïry-Cirncralincludrd Nia-
ragua within a list introdyced hy the'followingwords: -
"The followine"States. havine under Article 36 of the Statute of the
Pr'rmancniCouri of lnicr'nation~ Jurtics nid.1~Jc;lar;itions uhich hdvc noi
Seicxpircd acccpiing ihc compulsory juriuiisiiim 01 that Ci>uri.arc dccmcd,
in accordanis with Article 36 of the Siaiuic of the Intr.rniitional Cour1 of
Justice, to have accepted the compulsory jurisdiction of the International
Court of Justice under the sarne conditions."
No reference was made to the question of the ratification of the Protocol of
Signature.
Since 1949,the Secretary-Generalofthe United Nations has published annually
a volume entitledSiynatures.Rutificutions.Acceplances,Accessions,etc., concern-
ing theMultiluteral ConventionsandAgreementsin respectof whichthe Secretary-
Generolacts os Deposilary. The first issue, for 1949,contains a table of States
under the heading "States Whose Declarations Were Made Under Article 36of
the Statute of the Permanent Court of International Justice and Deerned to Be
Stillin Force" (on. 18-22).Nicaraeua is included in the list. There is no footnote
to the listing. Théinformation is qtated to he derived from the Yearbook of the
Court for 1947-1948.
This treatment of the declaration of Nicaragua continued until the issue
for 1959.Thereafle~~.~ fo~ ~ote (as in the Yearbook of the Court) became a
regularappearance: see the volume for the period ending 31 ~ecémber 1982
(ST/LEG/SER.E/Z, New York, 1983,pp. 24-25). Thus the Nicaraguan declar-
ation was schedulcd as "deemed to he still in force" from 1949until the present
day. (For details: 1,Nicaraguan Mernorial, para. 62.)
As the Statute of the Court requires, the Secretary-General has the function
of de~ositarv in resDectof declarations made under Anicle 36 of the Statute and
in an; rase ihc iri:ili) and analt>goiisinformati(8npiiblishcil undcr the auspiccs
of ihc Sesreldry-Gcnertl has an obvious auihcnticiiy iiiiis own
Oiher United Naiions and Cuurrpublicorions
Mr. President, the extended family of public documents has other members of
which two stand out. The lirst is the Yeurbwk ofthe United Naliom. The Year-
book of the Unired Nations for 1946-1947(p. 611) under the heading of "States
accepting Compulrory Jurisdiction", includes Nicaragua, and states that the
"declaration took eiïect on Novernher 29, 1939 when the Nicaraguan
Governrnent notified the Secretary-General of the League of Nations of
Nicaragua's ratificationof the Protocol of Signature of the Statute of the
Permanent Court".
This statement does not appear in suhsequent issues. In the Yearbook for 1948-
1949(p. 151), Nicaragua is included in the list of States accepting compulsory
jurisdiction witha footnote referringto the application of Article36, paragraph 5.
The same treatment appears in the following Yearbook for 1950 (pp. 123-124).
The Yearbooks from 1951 to 1980(inclusive) include Nicaragua in the list of
acceptances without any footnote. (1, Nicaraguan Mernorial,para. 63.) ARGLiMENT OF PROFESSOR BROWNLLE 53
the Court with a footnote indicatinp,the "Etats reconnaissant comme obliaatoire
la jurisdiction de la Cour internaconale de justice". Nicaragua is included in
exactly the same form as the other declarants in the list. The list is a publication
of the French Foreign Ministry.
Nicaragua also appears, without any qualification, as a declarant State in the
collection of treaties and treaty information published by the Foreign Ministry
of the German Federal Republic (Vol. III, p. A600-44) published in 1979;in the
Swedish treaty list puhlished in 1948; and in the Dutch treaty list puhlished
in 1956.
Thus five representative treaty lists include Nicaragua's declaration wiih no
expression of doubt. Moreover, the German publication expressly and without
qualification records the fact (ibid., p. ,4600-41, at p. A600-44) that the Nica-
raguan Declaration is still valid as an acceptance of jurisdiction by virtue of
Article 36, paragraph 5, of the Statute.
Not al1States. of course. make treatv lists available in officialoublications and
the treaty information souks of the fiGeStates 1havechronic~edsurel~constitute
a reasonable sample of the viewsof States generally.
The GeneralOpinionof Publicisfs
From the general opinion of States 1 turn now to the general opinion of
oublicists. and this comnletes the triloav of the forms of evidenceconfirmine the
;alidity of the declaratihn of ~icara~;;. The viewsof individual publicistshave
been examined by my colleague Professor Chayes and it is therefore only neces-
sary for me Io make a brief reference to the publicists in order to c-omplete
my record of the cornplementary forms of evidence. In any case the general
opinion of publicists, that is, of authoritative writers, hlends with the other
sources in practice, and there is thus a synthesis to be made of the sources.
Synthesis1yfheevidence
Such a synthesis of public documents and official works of rcference, the
general opinion of States and the general opinion of publicists, is one which
directly reflects the experience ofgovernments and of their legal advisers.
It is a synthesis which can be demonstrated very simply by looking at the
hypothetical foreign ministry legal adviser who wishes to know what the
jurisdictional picture is and who has access to a good working collection of
books. Apart from a treaty list, if one were available, what would he take down
from the shelf? The obvious possibilitiesare the following:
1. The latest edition of the Secretary-General's compendium of Multilateral
Treaties.
I'hc I)r.il~r.ttion of Nicaragua is lijied v,iihout ;Ifoc>tnoie.
2 The laicri cditisn i>lihr. I.niicd States ollici;ilpiiblic;iiic>. ieulrc<rtk<,r<<,.
Thc Dcclaraii<~nis IistcJ .ic.iin. \i,ith ns rcscrv.iii<inor Iooinoie
.~ -~~~m~ ~ ~ ~~~ ~edition-of the Yeurbookof the Court.
The Declaration is included with the footnote.
4. The most recent Yearbookofrhe UnitedNarions
The Declaration is listed without a footnote.
Thus far. Mr. President, the lezal adviser has taken down oîiicial vuhlications.
But supposing hc wcrc iu relbr 1: non-officialsiandard sources. Whai would he
iind'! The most ohvious suurcc in English ivould he Opprnhi,~?~'I,~ireniuri<inul
lu~t,.edited by Sir Ilerxh I.auierpar.ht. In the scienih edition uf Volume II. the54 MILITARYAND PARAMILITARYACTIVITIES
declaration of Nicaragua is referred to as one of "a erowinp. numhcr of
;icccpranws which arc no1aiiiimpanied by rc,ervationi" (p- M. notc 3) ,\gain.
ifheiurnsd tu Proi>\r<>Or 'Conncll'sI>irirnurionu/un.secondedition. VolumeII.
he would find Nicar:iaua Iistcd as a decl;ir;int Sid(p. 1080.noic 561. with no
qualification. ~eferenceto the monograph hy the lndiG expert, ~rofessbrAnand,
on the CompulsoryJurisdicrion rf rhe International Courtof Jusrice (London,
1961,p. 54, note 61) would produce the same result.
If the legal adviser were francophone he would no douht turn to the treaties
by Professor Rousseau. In VolumeV of his treaties, published in 1983, he would
find Nicarag~t listed as having a vÿlid declaration, and no qualification is
expresscd hy the author (Droir iniernurionolpublic,V, p. 455).
Thus in seven verystandard sources, whether officialor non-olficial, whether
of the United Nations or United States provenance, whether anglophone or
francophone, the legaladviser receivesthe same impression.The essentialvalidity
of the declaration of Nicaragua is undoubtedly generally recognized, and it is
what common lawyerscal1a matter of general repute.
Conclusion:Nicaragua'sConsenltu BeBoundasEvidcncedhy Conduci
Mr. President, my review of the three forms of evidence - the public
documents, the general opinion of States, and the general opinion of publicists
- is now complete, and at this point 1 can hegin to draw this part of my
argument Io a conclusion.
The issue to he addressed is the legalsignificanceof the conduct of Nicaragua
in respect of the declaration of 1929as an acceptance of the compulsory juris-
diction of the new Court.
The preciseissueis whether Nicaragua has validlyconsented Io the compulsory
jurisdiction for the purposes of Article 36. Such consent may he implied from
the conduct of Nicaragua herself and, in particular, her failure to make any
reservation in face of the persistent inclusion of Nicaragua as a declarant State
in the public documents.
A central feature of the case is the general reputation to the efict that the
declaration of 1929 was a valid acceptance of the compulsory jurisdiction. In
faceofthisconcurrence of sources.the eeneralooinion of States. and authoritative
publiiisis. Nicariigua did not makç any complaint or rcx,rvation Insirad. hoth
in the KI~X~JSpui~i casr anil in these proieeding\. she appcared as a piriy to
orocccdinrs initiated on the basir i>fthe deçlaraiion ~(~niainedin the Yc?irho<,k
of the coiri.
As 1have already stressed, a consent which is implied has as much reality and
validity as any other consent, provided there is evidence ofintention.
The evidence of intention is clear. Since the declaration of 1929was always
included in the pertinent sources, and since no additional procedure was called
for in respect ofthe provisions of Article 36,paragraph 5, the only other evidence
of Nicaragua's acceptance of jurisdiction would necessarily take one of three
forms :
Firsr:Nicaragua's silencein face of the inclusion ofher declaration in public
documents over a ~nod of 38 years.
Second: Nicaragua's appearance, unprotesting, as a Respondent: and this
happened in the Kingof Spain case.
Third: Nicaragua's making an Application to the Court as it has in these
proceedings. ARGUMENT OP PROFESSOR BROWNLIE 55
Mr. President, the evidence of intention to accept the compulsory jurisdiction
is there. In the words of the Court in the Templeof Preah Vihearcase, Nicaragua
has "evinced as clearly as Thailand did in 1950, and indeed hy its consistent
attitude over many years, an intention to submit itself to the compulsory
jurisdiction" (I.C.J. Reports 1961, p. 34), and in my respectful suhmission the
Court should now allow that intention to he defeated by a possible defect which
does not affect the substance of the matter.
The conclusion that Nicaragua has consented to the compulsory jurisdiction
would accord with and reflect the general opinion of States and experts and
would tbus represent the reasonahle expectations of Governments and their
advisers. The recognition of Nicaragua's declaration as a valid acceptance of
jurisdiction has been a part of the usual course of dealing in the international
community. Indeed, the United States attempt to modify its declaration (in the
note of 6 April) would have no raison d'êtrebut for the existence of a valid
Nicaraguan declaration.
On the hasis of the evidenceof Nicaraeua's consent,as shown hv her conduct. 1
can now indicate the legal implications,60th in respect of ~icaragua's consent as
such,and in respectof the conductofthe partiesto the Statute of theCourt generally.
The legal implications are twofold.
In the first place the conduct of the parties to the Statute of the Court,
including Nicaragua and the United States, confirms the essential validity of the
declaration of Nicaragua for the purposes of Article 36, paragraph 5, of the
Statute. The suhseauent conduct of the uarties to the svstem of consensual
ohligaiionr i~>iistiiuieiih) thc 0prioii.ÇI~U,~ ünil thc invrlictinE Jeil~r~rion~
pr<i\idcsa rcliahlc h~\ihl;>rthe re,uluiia~nnoi {inl) <il'qiiertionï<~l'intrrprct;iti,>n
as such but also questions concerning the continüance in force of legal
instruments: and this role is referred to bv writers of authoritv. includine Lord
McNair andcharles De Visscher(references: 1,Nicaraguan ~iiorial, 96).
It may be recalled that in the Nuclear Tests case the ioint dissenting opinion
offour Judees relied uvon the wracticeof the varties as e;idence on the ~ariicular
issue of theucontinuan& in forAeof the ~eneral Act of 1928(1.C.J. ~ekrts 1974,
pp. 340-345,paras. 60-70).
And in the present case the practice of the Parties has confirmed the essential
validitv of the declaration of Nicaraeu- for the . .noses of Article 36 of
the statute.
So much for the first legal implication.
The second legal implication of the evidence of Nicaragua's consent as
evidenced by her conduct is more decisive. That consent, hased upon conduct
over a period of 38 years since 1945,provides an independent title of jurisdiction
separate from the jurisdictional title hased upon Article 36, paragraph 5, of
the Statute.
Nicaragua has hy her conduct, her consistent attitude over a period of 38
years, accepted the jurisdiction of the Court by recognizing the declaration
included in the Yearbookof the Court as a valid instrument.
With your permission, Mr. President, 1may refer once again to the Judgment
in the merits phase of the Templeof Preah Vïnear case (ICJ Reporls 1962,
p.6). The principle of recognition or agreement hy conduct was stated and
efiectively applied hy the Court in that case. The key passages relate ta the
famous Annex 1 map which, it may he remembered, lacked any formal status
when it was produced hy the French element of the Mixed Commission, but
which was shown to and given currency hy the Thai authorities on various
occasions from 1908 until 1958, when a reservation was first made. The Court
stated the principle in the following passages:56 MILITARYAND PARAMILITARY ACTIVITIE!
"lt has been contended on behalf of Thailand that this communication
of the maps hy the French authorities was, so to speak, ex parte, and that
no formal acknowledgment of it was either requested of, or given by,
Thailand. In fact, as will be seen presently, an acknowledgment hy conduct
was undoubtedly made in a very definite way; but even if it were othenuise,
it is clear that the circumstances were such as called for some reaction,
within a reasonahle penod, on the part of the Siamese authorities, if they
wished to disagree with the map or had any serious question to raise in
regard to it. They did not do so, either then or for many years, and thercby
must he held to have acquiesced. Quitacet consentirevidetursiloquidebuisset
ac potuisset." (I.C.J. Reports 1962,p. 23.)
And in another passage:
"The Court however considers that Tbailand in 1908.1909did accept the
Annex 1map as representing the outcome of the work of delimitation, and
hence recognized the line on that rnap as heing the frontier line, the eiïect
of which is to situate Preah Vihear in Cambodian territory. The Court
considers further that, looked at as a whole, Thailand's subsequent conduct
confirms and bears out her original acceptance, and that Thailand's acts on
the ground do not sufficeto negative this. Both Parties, by their conduct,
recognized the line and therehy in effect agreed to regard it as heing the
frontier line." (Ibid, pp. 32-33.)
The example of that case is, 1 suhmit, of considerahle interest for present
purposes. In the first place the Court was concerned with the highly important
question of title to territory.
Secondly, the conduct involved not merely a waiver of a formal defect, but
much more, since the Annex 1 map lacked legal status altogether apart from
the proîcss of Thai acknowledgment and recognition. Indeed, the contents of
the map were affected by error, since the line on the map did not coincide with
the escarpment as required by treaty. Thus the process of acceptance, recognition
or adoption was applied to problems extending well beyond that of formal
validity. The Court evaluated the conduct of Thailand in terms of the language
of agreement and acceptance (1C.J. Reports 1962, pp. 22-33). In particular, the
Court stated: "Both parties, by their conduct, recognized the line and therehy
in effect agreed to regard it as heing the frontier line." (Ibid., p. 33.) And then
again: "The Court considers that the acceptance of the Annex 1 map by the
parties caused the map to enter the treaty settlement and to become an integral
part of it." (Ibid.)
As Professor Cahier has shown in an excellent study published in 1968, the
conduct of States has been prominent in many cases involving weighty issues
such as title to territory or the modification of treaties. 1 refer to the essay
published by Professor Cahier in the volume of essays in honour of Paul
Guggenheim puhlished in 1968("Le comportement des Etats comme source de
droits et d'obligations", in En Hommage à Paul Guggenheim,Geneva, 1968,
pp. 237-265). There seems to be no good reason why the relevant principles
should not apply to the acceptance of the Court's compulsory jurisdiction.
In sum, Mr. President, Nicaragua kas consented to the compulsoryjurisdiction
of the Court by the recognition and acceptance of the declaration published in
the Yearbuokof the Court (eithertextuallyor byreference)for a period of 38years.
Provided the consent of Nicaragua has heen established, the attitude of the
United States towards Nicaragua's declaration is not necessarily decisive, since
of course it is the Court which determines the jurisdictional issue. However, the
United States attitude on this occasion is of legal significancebecause, in face of ARGUMENT OF PROPESSOR BROWNLIE 57
the general opinion of States and the seriesof public documents acknowledging
the validity of Nicaragua's declaration, the United States has remained silent.
Moreover, the United States has expressly recognized the validity of the
declaration for a period of 28years by listingNicaragua in the appropriate place
in the official publication, Treaties in Force, frorn 1955 until the most reccnt
edition in 1983.Of course, inclusion of an instrument creating legal obligations
in an oîlicial treaty list constitutes evidence of the views of that State as the
continuance in force of the instrument concerned: 1 refer to the Nuckar Tests
case (I.C.J. Reports 1974, p. 340, para. 61 (joint dissenting opinion of Judges
Onyeama, Dillard, Jiménezde Aréchagaand Sir Humphrey Waldock)). And it
may be recalled that in the Arbitral Awardcase the Court regarded publication
in the Ojïcial Gazette of Nicaragua as evidence of acceptance by Nicaragua of
the Award (1.CJ Reports 1960,p. 213).
This consistent pattern of United States conduct over a very long period
constitutes unequivocal recognitionof the essential validity ofthe declaration of
Nicaragua and, as a consequence, the United States is precluded from raising
any question as to the application of Article 36, paragraph 5, and the validity of
the declaration.
The principle of recognition is familiar, of course. It was applied, for example,
in the King of Spain case itself (I.C.J. Reports 1960, p. 192), where the Court
stated that:
"Nicaragua, by expressdeclaration and byconduct, recognizedthe Award
as valid and it is no longer open to Nicaragua to go back upon that recog-
nition and to challenge the validity of the Award." (Ibid., p. 213.)
As a further legal consequence of the conduct of the Parties in the present
case, both Nicaragua and the United States have recognized that any defect in
the process of ratification of the Protocol of Signature of the pre-1945 Statute
does not affect the essential validity of Nicaragua'sconsent to the compulsory
jurisdiction of the Court by virtuc of the provisions of Article36, paragraph 5,
of the Statute of the present Court.
Mr. President, this concludes the phase of the arguments of Professor Chayes
and myself on the legal bases of the consent of Nicaragua to the jurisdiction of
the Court.
It is Oursubmission that the relevant legal principles, and the materials which
evidence the conduct of the Parties, demonstrate beyond any reasonable doubt
the full validity of the declaration of Nicaragua both by virtue of the provisions
of Article 36, paragraph 5, of the Statute and hy virtue of the consent of
Nicaragua evidenced by her conduct, by the conduct of the United States, hy
the general opinion oistates, and hy the general opinion of qualified publicists.
And at this point, MI. President, the argument must shift to the other necessary
element ofjurisdiction, the declaration of the United States.
The Uniicd St~tesconiends that the Court la~.k$ lurisdiction as a ionscquenee
of the notc to ihr Secrci;irs-Gcnctal datcd 6 ,\pril 19S3and rigncd by ihe Seire-
Varyof State.
It may be helpful if 1 read the text of the Note:
"1 have the honor on behalf of the Government of the United States of
America to refer to the Declsration of my Government of August 26, 1946,58 MILITARY AND PARAMILITARY ACiIVITIES
concerning theacceptance by the United States of America of the compulsory
iurisdiction of the International Court of Justice. and to state that the
aforesaid Declaration shall not apply to disputes wiih any Central American
State or arising out of or related to events in Central America, any of which
disputes shall be settled in such manner as the parties Io them may agree.
Notwithstanding the ternis of the aforesaid Declaration, this proviso shall
take effect immediately and shall remain in force for two years, so as to
foster the continuing regional dispute settlement process which seeks a
negotiated solution to the interrelated political, economic and security
prohlems of Central America."
The note was supplemented a few days later by a Departmental Statement of
8 Aoril 1984. which has an~A~oendix entitled "Examoles of Modification of ~ ~
Acïfpi;ince of Compuisory ~uri;tiiciion IO Avoid ~djudi'csllon". ,I.I~;iexi oi the
5iaiemcnt can hc found in ihc annexes olihc Memorial of Nicaragua (1, Ann II,
Exhibit C). In the oral hearines relatine to interim measures I had occasion to
point out lhe inaccuracies which charac&ze the Appendix to the Departmental
Statement (1, pp. 73-74) and there is no need for repetition here.
The United States argues that the note of 6 Avril constiiutes a modification
of ihc Cnited Siaies deAaraiion acctpting ihe cii~puls~w ~urisiliciion.
In rïqn>nse the applicant Siaie put> I;>niard the iollouing propo,iiions
First: The note of 6 April is ineffectivehecause international law provides no
basis for unilateral modification of declarations under Article 36 of the Statute.
Second: In the alternative, the note may he construed as a purported
termination of the United Statesdeclaration of 1946,and in efiectthe substitution
of a new declaration, and such an attempt at termination is likewiseineffective.
TheNote of6 April1984 Regarded as a Purported Termination ofrhe United
Stores DeclarationandtheSubstitutionofa New Declararion
Mr. President, it will be convenient for the development of my argument if 1
deal iirst of al1with the view that the United States note of 6 April constitutes
a purported termination of the United States declaration of 1946,and in efiect
the substitution of a new declaration.
This position mus1 be more or less hypothetical, since the preferred view of
Nicaragua is that the note constitutes an attempt at modification rather than
termination. Moreover, even if, which is not admitted, the note did have the
effect of terminating the original declaration in accordancc with its terms, such
termination could only take efect six months after notice, and the declaration
of 1946therefore remained in force at the date of the Application.
In any event, the United States note has certain aspects which are suggestive
of a termination and these are instructive, sincethey help Io point up the oddities
of the initiativetaken on 6 April. Two of these factors indicative of termination
may be meniioned. The first factor is the termination of jurisdiction ratione
personae which efiectively abolishes, e.r nunc and whether for a period of two
vears or not. the entire ambit of iurisdiction as a~ainst certain States. That. Mr.
~resident, isdificult to see as a matter of modi&ation, and to characteri& the
exerciseas a "suspension" ofjurisdiction does not, perhaps, change the substance
of the matter.
In the second place, certain evidence suggests that the real intention was to
withdraw the declaration of 1946 and to suhstitute a new acceptance of
jurisdiction consisting of the original instrument together with the contents of the note of 6 April. Thus al1 the precedents invoked in the Departmental
Statement involved withdrawal of the declaration followed by the making of a
new declaration (1, Memorial, Ann. II, Exhibit C).
In any case, Mr. President, whether the note be classified as a purported
modification or a purported termination, is a more or less academic question,
because in either event the initiative could not be effective indepriving the Court
of jurisdiction. The United States kas not reserved a right of modification at
all, and a unilateral modification simply kas no legal validity. And, so far as
termination goes, the temination was not in accordance with the express terms
of the declaration of 1946.
TheNore of6 April1984 Regardedasa PurporredModificationojrhe United
SraresDeclararion
Mr. President, 1 now corne to the substance of this part of the argument,
which is the legal validity of the unilateral modification or termination of a
dcclaration accepting compulsory jurisdiction. In addressing the question 1 shall
make two assumptions.
The first is that modification or termination within the terms of a valid dec-
laration is legally effective; and the second is that the reservation of a right to
modify a declaration is compatible with the Statute of the Court.
Thelegalnature of declararions
The legal character of the obligations arising from the making of declarations
within the provisions of Article 36, paragraph 2, of the Statute is beyond doubt.
However, the precise characteristics of those obligations are the subject of a
certain amount of academic dehate and my distinguished opponents seek Io
extract some advantage from that debate.
The United States contention is as follows: the declarations are "unilateral
instruments". They are not subject to the law of treaties. Moreover, and 1quote
from the Counter-Memorial :
"Modern State practice under the Optional Clause, the opinions of this
Court, and the opinions of leading publicists, al1indicate that declarations
become binding hetween any two declarant States only when the Court is
seized by the filingofan Application." (II, United States Counter-Memorial.
para. 339.)
That, Mr. President, is the United States position on modification, and before
1turn to the views of the Ap~licant State on these matters. 1 find it necessarv to
rnake some general observaG8nson the modusoperandi, th& is to say, the genkral
approach to legal materials evinced by the United States written pleading (a1II,
paras. 337-401 ).
Leaving aside for the moment the precise argumentation, the approach is fluid
and confused in the extreme. The United States denies that the law of treatics is
applicable roui court, and yet, it would appear, accepts that legal obligations of
some type are involved. But the hasis of those obligations is left awfully obscure.
Reference is mad~ ~~~"modern S~~te oractice". but the o,actice~ ~duced is ~ ~
either irrelevant or represents a small minority of declarants.
Reference is made to "the opinion of this Court", but the evidence does not
measure up 10 this assertion and, indeed, this is admitted subsequently, when
the Counter-Mernorial remarks that : "the issue previously has not been expressly
decided by the Court . .."(II, para. 401).60 MlLlTARY AND PARAMILITARYACTIViiE.5
And lastly reference is made to "the opinions of leading publicists", and yet
the vast mai, + . of oubiicists contradict the United States oosition either ex-
pressly or by implication.
In short, the United States Counter-Memorial leavesthe declarations of States
under the Optionÿl Clause in a legal wasteiand and adopts a position as to the
legality of unilateral modification which is contrary to legal principle and which
receives no substantial support either from State practice or the opinions of
leading publicists.
So much for the United States position on the question. 1now turn to the
viewof the Applicant State. It is Nicaragua's position that the interlocking decla-
rations generate obligations which are not strictly speaking treaties but consti-
tute legal obligations of a consensual character governed by international law
and subject to principles of interpretation essentially but no1 in al1 respects
similar to the principles of treaty interpretation.
The fact that the owration of the obligations generated by the declaration is
contineent uoon the makine of an ~oolication b; another declarant is oerfectlv
compGible with the consensual natureof the obligation s.bligations ihich are
contingent upon the act of one Party or even of some external event are familiar
to theieeal svstems of the world
W.
The coroll;iry of ihc ionsensutil ndiure of the s).tciut J~vlaraiioiir. evidcnccd
hy Stale praciicc and by d<ictrinr..ir ihc priniiplc thaia Jiu.lar~iioii can imly bc
modified~orterminated eiiher in accordance with ils own terms, or if there is a
ground of termination arising from the general principles of the law of treaties
(which are applicable according to the practice of States and the prevailing doc-
trine).
If I may stop there for a moment, Mr. President, and look at the position in
a clear light, free of the fog of verbiage and citation whicb clings to the subject
of jurisdiction.
In viewof the United States, a declaration is not only subject to modifications
but does nat even become binding between two declarant States until the filing
of an Application. The logic behind this supposition is fatally flawed. The
contingency - the fact that a declaration only becomes engaged vis-à-vis a
particular State when the Court is seizedof a case - has no necessaryconnection
with the question of obligation or of revocability.
In the conception of the United States the declarations made under the
Optional Clause are no more than revoçable options until they are picked up,
so to speak, hy an Application.
Now it is, of course, quite possible for obligations to be revocable but
nonetheless legal, but it is inherently unlikely, Mr. President, that significant
obligations of a public character should be freely revocable. Indeed, the wording
of the provisions of the Statute simply does not fit obligations of such a friable
character. For the actual language of Article 36, paragraph 2, is to be recalled :
"The States parties to the present Statute may at any lime declare that
they recognizeas compulsoryipsofacto and without special agreement, in
relation IO uny orherSiare accepringrhesumeobligation, the jurisdiction of
the Court in al1legal disputes . . ."(Emphasis added.)
And Article 36, paragraph 5, refers to "acceptances of the compulsory
jurisdiction". The flexibilityor, in the phrase used by the United States Counter-
Memorial (II, para. 401), "the necessary adaptability" of the Optional Clause
system, is supplied by the freedom which States have to choose to make
declarations or not to make them. to make them conditionally or unconditionally,
and so forth. ARGUMENT OF PROFESSOR BROWNLIE 61
lronically the United States position seeks to limit the principle of choice,
since it literally does no1 allow States to make choices which are not freely
revocable, and il assumes that extreme revocability is the optimum for States.
Reality and common sense Say otherwise. In the first place, some 27 States
have expressly reserved either the right of modification and101 the right of
termination and those and other reservations made by States would seem to be
otiose if the United States argument in these proceedings be correct.
Secondly, the United States declaration of 1946itself provides an example of
an acceptance of jurisdiction which was carefully and deliherately designed to
prevenl a withdrawal of the obligation inthe faceof a threatened legalproceeding
(CongressionalRecords,Senate, August 1946, p. 10707).
Mr. President, 1am drawing near to the end of my examination of the legal
nature of the obligations arising from declarations made under Article 36. There
seemsto be no great profit in rehearsing the materials set forth in the Nicaraguan
Memorial (1, paras. 108-114).
The authoritative sources there quoted point very strongly indeed to the con-
clusion that legal obligations arise at the lime the declaration is made and not
ldter.
The Court made the point with the utmost clarity in the case concerning
Right of Passage over lndian Territory, Preliminary Objecrions,where the Court
insisted that
"the contractual relation between the Partics and the compulsoryjurisdiction
of the Court resulting therefrom are established, 'ipsoJacro and without
special agreement', by the fact of the making of the Declaration" (1.C.J.
Reports 1957,p. 146).
And again from the Righi of Passage case Judgment :
"A State accepting the jurisdiction of the Court must enpect that an
Application may be filed against it before the Court by a new Declarant
State on the same day on which that State dcposits with the Secretary-
General its Declaration of Acceptance. For il is on that very day that the
consensual bond, which is the basis of the Optional Clause, cornes into
being between the States concerned." (lbid.)
Authoritative writers express the same opinion.
Sir Gerald Fitzmaurice descnbed declarations as "unilateral in form" but
"contractual in substance" and, again, as "basically contractual in nature"
(Britisl~YearBook of International Law, Vol. 33(1957). para. 203, pp. 230-232).
Similarly, Sir Hersch Lauterpacht, who was already a Judge of this Court,
characterized the position in these words:
"Undouhtedly, the declarations under Article 36 (2) of the Statute, made
as they are at different tirnes and by diferent States, are not in al1respects
exactly like a treaty. But they are essentially a treaty. By their very terms
they connote a reciprocity of rights and obligations although - as the
result of practice rather than of the language of Article 36 (2) - il is for
every declaring State to determine, through reservations, in a manncr con-
sistent with the Statute of the Court, what shall be the content of those
reciprocal rightsand obligations. Admittedly, ilmay not beeasy Io determine
when and by means of what analytical construction there takes place, in
such circumstances, the 'meeting of minds' required for the creation of a
treaty obligation. However, the situation is not essentially dissimilar from
that re~resentedby accessionto a treaty." (TheDcvelopmenlofInternariona1
Law by the International Courl, London, 1958,pp. 345-346.)62 MILITARY AND PARAMILITARY ACTIVITIFS
Lastly, one inay quote Charles de Visscher,who stated the point in the clearesi
possible terms:
"Le systèmede la clause facultative s'analyse en uncomplexe de conven-
tions bilatéralesissues de déclarations unilatérales aui se rencontrent. cette
~-~~~.~~.~.e,ant .our e~fe~ ~e faire naitre successivementun lien consensuel
entre les Etats déclarants à compter du lour du dépotde leurs déclarations
resvectives." (Problèmesd'inferpréroiionjudiciaire en droit inrernari~nal
pblic, Paris, 1'963,p. 199.)
As it is put in the Report of the Senate Committee on Foreign Relations:
"The force and effect of the Declaration is that of a treaty, binding the
United States to those States which have or may in the future deposit similar
Declarations . . .While the Declaration cdn hardly he considercd a treaty
in the strictsense of that lem, the nature of the obligations assumed hy the
contracting parties are such that no action less solemn or less formal than
that required for treaties should be contemplated." (Nicaraguan Memorial,
Ann. II, Exhihit D, 1, p. 442 -p. 320.)
These expressions of opinion make no reference to a general revocabiliiy of
declarations but stress their contractual nature and, in particular, the fact that
the obligation crystallizes at the lime of the deposit of the declarations of
acceptance. And il goes without sdying that ihey arc, al1three of the opinions 1
quoted, opinions of very considerahle authority.
Mr. President, 1 shall turn next to the closely related but more specificquestion
of the validity of the United States note of 6 April as an attempt to modify the
lems of the declaration of 1946.
This 1shall address in two stages.
Firsl: 1shall advance the proposition that there is no unilateral nght of modi-
fication of declarations made under the Optional Clause.
Second: 1 shall demonstrate that the purported unilateral modification of
6 April is in any case invalid by virtue of the express terms of the United States
declaration of 1946.
The non-exi.~ienc f a right of unilateralmodificurion ,$ declarationsof occep-
lance:asa questiono/generalprinciple
1. Theprincipleslared
The major proposition on which this part of my argument is based is, quite
simply, that there is no unilateral right to modify declarations unless this kas
been exoresslv reserved. This vro~osition can be iustifiedas a matter of vrinciole.
and IIkrei\,&subsiantial iuppo;i both l'rom~iitc priiciicc and frdm doctrine.
The points of principlc h~ve alrclidy heen jr.bcforc the Court in my ïcidress
and they can be summarired by saying that the declarant State has the freedom
of choiëe open to any person enterLnginto an agreement. This freedom of choice
operates at the lime the declaration is made and the declarant locks on to
the system of the Optional Clause. The declarant is free to reserve the right to
modify, to fix lime-limits, and so forth. But there is no automatic revocability.
As a matter of general principle, such a revocability would beanomalous, and
the language of Article 36 of the Statute, as 1have already pointed out, militatcs
strongly against the hypothesis of revocability.
As in the law of contract, so with the consensual obligationshere in question,
the freedom of choice is exercised al the lime of making the contract, and that ARGUMENT of PROFXSOR BROWNLIE 63
freedom includes the choice to make non-revocable obligations. The United
States Counter-Memorial presents a highly artificial and limited concept of free-
dom of choice (II, para. 357), and confuses contractual freedom with a concept
of mandatory revocability.
These considerations of principle and legal logic are, not very surprisingly,
reflectedin the appropriate legal sources, and these will now be examined.
2. Theevidence ofSlalepructice
Ir is convenient to look first at the evidenceof State practice. On behalf of the
United States it is contended that the practice of States "demonstrates that
declarations are, accordingly, inherently modifiableup to the date the Application
is filed" (II, United States Counter-Memorial, para. 339). In the view of
Nicaragua that conclusion is not justified by the evidence and a suhstantial
preponderance of State practice supports the view that termination and modifi-
cation of declarations can only take place in compliance with the principles of
the law of treaties, which are generally recognized as being applicable by way
of analogy.
Before 1 turn to the evidence as if is presented in the United States written
pleading, it will be helpful if 1 point to the dominant feature of the evidence
overall, which is the fact that 15 States have expressly reservedthe right to
modify their declarations with immediate eiTect,and 22 have expressly reserved
the right to terminate on notice. Thesc data are recorded in the United States
Counter-Memorial (II, paras. 362-364).Thus. the total numher of States to have
made either one or both of these reservations is 27. Now the United States
asserts that declarations are inherently modifiable, but how can this he so when
27 States out of a total of 47 existine declarants have exoresslv reserved either
the right ,iI'tcriiiin;iiiun. or thc righi of m<diti;~tion. or hoth oj'those rights?
ï'hat. Mr. Prcsident,15the b;ickgrounJ :igainst aliirh thr ciiJr.n~.eotl'crb!
the UnitcJ Statez Co~nter-Memoridl III. r>dr.i..362-3741muit he exaniined
In the (irst place, a number of palp~bly'irrelevantandeven self-contradiçtory
points are made in the United States pleading. Thus the incidence of express
reservation of rights of termination or modification is pointed out, although this
evidence cannot estahlish an inherent right of modification (II, paras. 362-364).
Again, examples are given which show that States have exercised rights of
termination or modification expressly reserved withthe intention of avoiding
prospective adjudication (II, paras. 365-366). But it is not explained why this
material is relevant to the issue of the existence of an inherent right of
modification. Indeed, it is observed that "none of the actions discussed supra
provoked protests by other States" (II, para. 366). That is understandable of
course, since there would he no legal basis for making such protests.
Eventually, the United States Counter-Memorial (II, paras. 367-374) moves
on to fiveinstancesof State practice in which States have purported to modify or
terminate declarationsin the absence of an express reservation otfhe right to do so.
These instances will he examined in chronological order.
A. Colombia (1936)
The first case offered in the Counter-Mcmorial is that of Colombia, which had
made a declaration in 1932 which did not reserve a right of modification or64 MILITARYAND PAPAMILITARYACTIVITIES
termination (see Collecrionof Texrs, 4th ed., Series D, No. 6, p. 54). In 1936this
declaration was modified by the introduction of a clause which allowed the
acceptance to apply only to disputes arising out of facts subsequent to 6 January
1932 (see ThirreenrhAnnual Reoori. P.C.I.J. 1936-1937.DD. 276-277). The fol-
lowingyear Colombia deposited'a niw declaration incorpokating the modification
of 1936(see the LCJ Yeurbook1982-1983, p. 61).
However, wben the contents of the Colomhian letter dated 27 August 1936Io
the Secretary-General of the League are studied, it becomes clear that the text
of the declaration of 1932had failed 10convey the true intention of the declar-
ant State and the exercise was acceptrd on al1sides as the unconiroversial pro-
cess of correctine a textual error (TliirteenlhAnnualReoorl. P.C.I.J. 1936-1937.
pp. 276-2771,And it is this whichexplains why none 'ofthe writers secs fit 1:
refer to the action of Colombia as an instance of unilateral modification.
B. Paraguay (1938)
The second instance adduced by the United States is the purported withdrawal
by Paraguay in 1938 of a declaratioii which had been made without lirnit of
tirne. The explanations oflered for this action were twofold: the fact that
Paraguay had ceased to be a Member of the League of Nations and, secondly,
the facl that ils acceptance was not made for any stated period (kague of
Nations, Oficiul Journul, 19th Ass., pp. 650-652(1938)).
Following the notification of the Secretary-General of the League of the
purported withdrawal - which took the form of a decree - Bolivia notified
the Secretary-General of her "most formal reservations as to the legal value of
the decree" (Ffieenrh AnnualReport.P.C.I.J. 1938-1939, p. 227).
At the same time Bolivia requested that her reservations should be communi-
cated to other siendtories of the Statute. In resoonse five other States~ma~ ~ ~
reservations in general tems as to the legal ekcts of Paraguay's purported
withdrawal ofher declaration (ibid.).Of these fiveStates, two - the Netherlands
and Czechoslovakia - expressly stated that they regarded the question as being
governed by the law relating to the termination of treaties (see also League of
Nations, Ojjïcial Journul, 1938,pp. 686-687, 1180-1182; ibid, 1939,p. 235).
MI. President, it is difficult to see what profit this episode gives the United
States in the present case. The opinion of publicists writing at the iime was that
the Paraguayan move lacked legaljustification.
Thus, for example, Alexander Fachiri, a well-known commentator on the
Permanent Court, wrote that none of the reasons put forward by Paraguay for
her action "kas any validity in law" (British Year Book of IniernurionalLaw,
Vol. 20(1939), p. 52, al p. 57).
Moreovcr, the general opinion of publicists has been to the ekct that the
validity of the purported withdrawal depended upon the general principles of
the law of treaties.
Thus Fachiri, already quoted, writing in 1939.
So also Oppenheim's Iniernalii~nalLaw (Vol. 11,7th ed., by Sir Hersch Lauter-
pacht, 1952,p. 61, note 2).
A similar view was expressed by Sir Humphrey Waldock, in the British Yeur
Book oflnrernarional Law (Vol. 32 (1955-1956). p. 244 at p. 261) where he is
commenting on the Paraguayan notice of withdrawal. In his words:
"The reservations of Bolivia and the other five States in 1938 and the
cautious attitude of the Registry in regard to the Paraguayan notice of
cancellation are believed to have been well founded. A State which, having ARGUMENTOF PROESSOR BROWNLIE 65
the right to make its declaration only 'for a certain time', chooses to make
it without time-limit, is in a position analogous to that of a State which has
entered into a hilateral treaty of indefinite duration. If two States hoth have
declarations without time-limit, their position vis-à-vis each other seems
clearly to he that of parties to a bilateral treaty of indefinite duration, and
any right which either State may have to put an end to their mutual
obligation to accept the compulsory jurisdiction of the Court under the
Optional Clause can only derive from the general law concerning the
termination of treaties. The agreement hetween the two States, which is
constituted hy their parallel acceptances of the Optional Clause, contains
no reference to a right arbitrarily to terminate their mutual obligation under
the Clause simply hy giving notice to the Secretary-General. Nor can such
a right he implied in Article 36 of the Statute, paragraph 3 of which clearly
contemplates an indefinite commitment unless provision for a time-limit is
made when a State makes its declaration."
Secalso flng:l. (;cr>r~<~rr,1i<,MJ<iur,iolV,>lumc 10 ( 1951 1(p. 11ot pp. 53-59),
Itrnsv bc noicd. in ion.4u\i<>n,thdi the Kcgisir) of ihc ncu <:ouri rn;iini:iincJ
ihc original P:irscu~\.in dc?ldr.iiisri oi 1Y33in the lit.>ion.r.iiiie dccl:ir;iti<>nr
under ïhe optional clause with the following footnote:
"On May 27th, 1938,Paraguay sent the Secretary-General of the League
of Nations the text of a decree announcing ..e withdrawal of its declaration
of aicepunir., \vhichhad bccn nwde iinronJitionslly l'heSeircior?-<iincr.iI
cir~ul:iicJ copics<il'tlii~<~rnrnuniraiiun IO Siilles pilrlir\ to the Pruiu.'oI JI
Sienature of-the Statute of the Permanent Couri of International Justice
and to the Memhers of the League of Nations. Express and formal reser-
vations on the subject of this denunciation were received from a numher
of States (see Series E, No. 15, p. 227, Publicationsof ihe PermanentCourt
of InternationalJustice).''(I.C.J. Yearbook 1946-1947,p. 211.)
However, from the Yearbook 1959-1960 onwards, the declaration has been
omitted. The United States Counter-Memorial (II, para. 369) seeks to give a
certain significanceto this omission and it statesthat "there has heen no objection
to the removal of Paraguay from the Yeorbook"(ibid). Mr. President, 1 have
no douht that it will not have escaoed the Court's notice that on this occasion
m) JisiinguirhcJ c>pp<>nen;ii,re prcparcd 1.1allini thdt the incluston or iiiiiir\i<>n
ui Dc<ldrriiiin>in the K,urliir,kui the Couri nia! hc rcl~\.~iii
C. Australia, Canada, France, India, New Zealand, South Africa and the
United Kingdom (1939)
The third instance involves the action of France, the United Kingdom, and
five other Commonwealth States, in September 1939, when they notified the
Secretary-General of the League that they would 'hot regard their acceptances
of the Optional Clause as covering disputes arising out of events occurriug during
the present hostilities" (seeLeague of Nations, Oficial Journal,1939,pp. 407-410;
ibid., 1940,p. 44).
None of the States concerned had resewed the right of modification and 11
neutral States promptly made reservations in general terms in respect of the legal
efïect of the action of the belligerents (League of Nations, Oficial Journal,1939,
p. 410 ;ibid., 1940,pp. 45-47).
The entire episode militates against the United States thesis that there is a
right of unilateral modification within the system of the optional clause. The
reaction of eleven neutral States clearly indicates a high level of controversy.66 MILITARY AND PARAMlLlTARY ACTIVITIFS
It is strange to see that the United States Counter-Memorial (II, para. 370) is
able to state that "these actions [that is, of the belligerent States] have heen
approved consistently by subsequent commentators".
Mr. President, in fact, the reaction of authoritative opinion was othenvise.
Thus Waldock has this to say:
"The lee-timacv ofterminatine a-, declaration otherwise than in accord-
ance with ils terms must, on principle, hinge upon the rules governing the
termination of treatics. This is borne out by the fact that when France, the
United Kingdom, and other ~ommonweaith States notified the Secretas..
General of the League in September 1939that they would 'not regard their
acceptances of the Optional Clause as covering disputes arising out of events
occurnng during the present hostilities', they formulated the grounds on
which they justified their action in a manner strongly to imply that they
were invoking the doctrine of rebus sicstantihiis. At the date in question the
declarations of these States were valid for fixed periods which had not yet
ex.ired..and thev clearlv did not consider themselves to have the rieht
unilatrrally IO iermin:itr or var) thcir dcclaraiions cxcepi on priniiplcs
analogoui to ihorc governing ihc icrmination or variation of trcliiic~."
And Waldock finishesthat passage by saying:
"Even so, a number of neutral States made reservations in regard to the
legal eilect of the action taken by these States." (Brirish YearBookof Inter-
narional Laiv, Vol.32 (1955-l956), p. 244 at p. 265.)
The same view, in a succinct form, appears in Oppenheim'slnrernarional Law,
(Vol. Il, 7th ed. 1952,p. 61, note 2), where the view - presumably that of the
editor. Sir Hersch Lauteroacht - is stated that: "in eeneral. unilateral termin-
ation of the obligations of the Optloniil Clause must~bc rcgardcd as subjcct Io
ionditions govcrning the icrminaiion of trcaties"
The disiinguished Dutih Iau,)er. Professor Ver/ijl. has dcscrihcd the rcscrtaiion
adi,anccd hy France anil ihc i~thcrhclli~crenisar "Jcvoid of IcglilclTcci": I reièr
to hi5 Inrrrnurii~nulLoir in Ili~ioricitlI'~r.~pi,i.. olumc VI11.197h.page 411
'fhc reartion iiithe hizhl) qualifieil puhlieists 1hsi,c quotcd w;is ihui one or
douht and disaoo..val. ~oreover. and more imnortantiv. the eeneral ooinion
\iristh.it the issiicOCun,latcr.il tcr~iriatiori wiij po\crbyd prin;~plcr~i1'~cncr;il
inicrnaii<in.ilIaw reliiing io the terminati<mof trr.atics. IIii \igniiir;int thai in
1935ihc seten bclliacrcnt Siaics iusiificd thcir v;iriaiion of iheir ilc~l.ir;itionson
grounds which wereclearly drawi from the law of treaties.
D. El Salvador(1973)
In the fourth instance the Counter-Memorial (II. n,ra..3711 refers to the
rcplarr~mcni hy El E1,aJi)r in 1977 i>f ils Jcrlaraiion of 19?1 wiih a ncw
Jeclïrïtion (1CJ Y~urhool, IYY2.lYY3.p. 61 j.In rcsponsc. Iiondur;is addrejsed
;inote io ihc Sccretarv-Ccncral. datcd 21 June 1974.in whiih ii was staicd thai
"a declaration not containing a time-limit cannot be denounced, modified or
hroadened unless the right to do so is expressly reserved in the original dec-
laration" (see Rosenne, Bocumenrson rhe Infernariunal Courr ofJusrice, 2nd ed.,
1979,p. 361 at p. 363). In a note dated 6 September 1974the Government of El
Salvador disputed this view of the law (ihid, p. 365). ARGUUENT OF PROFESSORBROWNLIE 67
The fifth case of a modification or termination invoked by the Counter-
Memorial (II,para. 372) is the lsraeli notification of two particular modifications
of its declaration of 17 October 1956 (I.C.J. Yearbook1982-1983, p. 69), in a
letter to the Secretary-General dated 28 February of this year. The original
declaration provided for termination on notice but made no reference to modi-
fication.
Conclusion on Starepractice
That concludes my reviewof the State practice adduced hy the United States
to prove that declarations are "inherently modifiable". It is a very poor crop.
The Colomhian action of 1936is generallyaccepted as the correction of an error
in the expression of consent. In two cases the general public reaction wasthat
the withdrawal or modification was invalid in the absence of an express reser-
vation and that any possihility of legal excuse could only be found, if at all,
within the principles of treaty law. This was the general opinion in response to
the action of Paraguay in 1938,and the action of the helligerent States in 1939.
This leaves only two cases in play: El Salvador in 1973 and lsrael in 1984.
The action of El Salvador has heen challeneed in anv case hv Honduras. These
two remaining instances are unimpressive and hardly constitute a consistent
practice. Moreover, these two instances do not hegin to outweigh the evidence
that no lessthan 27 declarants have expresslyrcscrkd a right toterminate or to
modify or hoth of these. If the general opinion of States was that declarations
were "inherently modifiable", as the United States contends, 27 declarants out
of a total of 47 would not have chosen to make such express reservations.
There is a final observation to he made which is prompted hy the way in
which the United States Counter-Memorial relies on the rare cases of the
inclusion of new or modified declarations, such as that of El Salvador, in the
Yearbook of the Court Counter-Memorial. .1. .ara. 271). If inclusion in
the )i<irh<.o1s;idniiiicil lu hav;iccrlain probaiive value in respcii of v-lidiiy
thcn n3Iurîily thlsapprsi13iion nlust bc applic~bl10 the inclus~onof N~wragu~'s
Declaration in the Yearbook over a verylong period
3. Theopinionofpublicists(doctrine)
The position of revocahility adopted by the United States is massively con-
tradicted by the viewsof qualified publicists with the distinguished exception of
Rosenne, The Laiv and Practiceof the Internaiional Court, 1965, 1 (pp. 410-
411). and with some deeree of anoroval from Shihata. The Poiver of the
lnre~narionoC l ourt ro ~errrmineIrs 0ivn Jirrisdictio(1965'~.167). In anicase,
Rosenne's opinion is expresxd more or less in passiny, -nd there is very little
supporting reasoning.
Mr. President, it is striking that in the many pages of the Counter-Memorial
devoted to the subject of modification, writers are quoted not infrequently but
not on theareciseissue of the le-.litv of the riaht of unilateral modification.
The vie& of writers can be presented as foliows:
The first group expressly rejects the right of modification unlessit has been
expressly reserved.This group includes:
Waldock (British YearBookof InternationalLaw, Vol.32 (1955-1956), p. 244 at
pp. 263-265); ARGUMENT OF PROFESSOR BROWNLIE 69
legal principle, andhy the preponderance of State practice, and hy the literature
can only he that there is no general or inherent right of revocahility or variation
of declarations.
Mr. President, at the end of the day, the validity of the thesis advanced by the
United States does not depend upon the answer Io the question "Are declarations
unilateral or consensual?' or the answer to the question "Does the law of treaties
apply?' The thesis of the United States involves suhjecting the system of the
Optional Clause to a régime of unspecifiedcharacteristics which need only satisfy
the entirely vague desiderata of "flexibility", the phrase which appears in the key
passages of the relevant part of the Counter-Memorial (II, paras. 355, 387 and
399). The legal régimeof the Optional Clause, MI. President, is not suhject to
the law of treaties as such, but it does remain subject to those essential legal
principles applicable to contractual relations. In this context, the right to modify
a declaration mus1 he reserved at the point of commitment, that is, when the
declaration is made and the system of the Optional Clause is entered. It is
absolutely clear that in the Right of Passage case, Preliminary Objections, the
Court regarded the point of cammitment as the date on which a State deposits
its declaration of acceptance (I.C.J. Reports1957, p. 146).
In simple tenns, it is because the system is built up of obligations which are
contractual rather than unilaterally revocable, that the jurisdiction accepted
by the declarant is recognized as compulsory in accordance with the tenns of
Article 36, paragraph 2. As Sir Hersch Lauterpacht saw the position in his
work puhlished in 1958 "the situation is not essentially dissimilar from that
represented hy accession to treaty" (TheDevelopmentof InternationalLaw by the
International Court, London, 1958, p. 346). And Sir Hersch then stated the ,
corollary. In his words:
"This being so, there may he some difficulty in accepting without qualifi-
cation a view - which is not the view of the Court - that declines to
apply to a unilateral declaration of acceptance of the undertaking of com-
pulsory judicial settlement the general principles ofinterpretation of treaties
and which attributes decisive significance to the meaning attached to it
by the individual declaring State. The Optional Clause of Article 36 (2)
of the Statute is actuallv and ~otentiallv the most imnortant source of the
jurisdiction of the couri and Eaution wkuld seem to Le indicated lest it be
reduced to a purely unilateral undertaking which is subject to a restrictive
interpretation divorced from the generally accepted canons of construction."
(The Developmentof InternationalLaw by the InternationalCourt, London,
1958,p. 346.)
Theinvalidityof thepurportedmodification inaccordancewiththeexpressterms of
the UnitedStates declaration
1 have now concluded my argument concerning the question of revocability
of declarations as a matter of general principle. It remains to establish that in
concret0 the changes intended hy the United States note of 6 April are incom-
patible with the terms of the United States declaration of 1946.This particular
operation is hased on the following premises.
First, the general principles oftreaty interpretation are applicable with certain
necessary modifications in the light of the unilateral provenance and drafting
of individual declarations as is pointed out in the Anglo-lranianOil Co. case
(1C.J. Re~orts1952. D. 105).
second: a 'approach to interpretation of individual declarations is to
seek evidence of the intention of the declarant at the time of depositing the70 MILITARYAND PARAMILITARYACTIVITIES
declaration by reference to other evidence extemal to the declaration itself as
was done in the Templeof Preah Vihear case (ICJ Reports1961, pp. 30-34).
Third, the expression of consent has its own contractual integrity and thus il
can only be varied either in accordance with ils own terms or as a consequence
of some applicable rule of law.
The intention of the United States at the time of rnaking the declaration mus1
be sought first of all, in accordance with the normal principles of interpretation,
within the declaration itself. This provides in unequivocal terms for termination
on the expiration of a period of sin months from the notice of termination.
No referenceis made to a power of modification, and the common sensc indica-
tor of intention must then be the maxim espressiouniusest exclusiualterius.
Moreover, the practice, generally adopted by States rnaking reservations shows
that States distinguish hetween the right of modification and the right of ter-
mination.
If reference be made to evidence external to the declaration itself, the in-
compatihility of the note and the original declaration is confirmed. Thus the
note of 6 April itself acknowledges this incompatibility, since it contains the
formula "notwithstanding the tenns of the aforesaid Declaration". Moreover,
when the United States Congress approved the appropriate advicc and consent
resolution the terms of the declaration were explained preciselyon the basis that
"the provision for 6 months' notice of termination after the 5-year period
has the effectof a renunciation of any intention to withdraw our obligation
in the faceof a threatened legalproceeding" (Reportof rheSenuteCommirfee.
Congressional Records, Senate, August 1946, p. 10707; Nicaraguan
Mernorial, Ann. II, Exhibit D, 1,p. 442 - pp. 315-316).
It is simply unthinkable that this objection should apply to avoiding litigation
by termination on notice but not to accomplishing the same purposc by modi-
fication on notice.
All the evidence points to a single conclusion: the Note of 6 April cannot
possibly be reconciled with the clear terms of the United States declaration of
1946.
Ceneralconclusion concernin~ rhenoieof 6 April1984
Mr. President, 1am now in a position to hring my arguments on the validity
of the United States note of 6 April - as an attempt to modify the United
States declaration - to a formal conclusion.
In the firstplace,the lawdoes not countenance a unilateral rightof rnodification
of declarations under the Optional Clause.
Secondly, the declaration of 1946 did no1 reserve a right to modify and thus
it invalidates the purported modification of 6 April hy virtue of ils express
provisions.
In any event, it is clear that the United States did not have much confidencc
in its assertion that there is an inherent right of unilateral modification and in
the result a case is developcd in a very cccentric form on the basis, more or less,
of reciprocity :although this case is itself closely related to the faulty premise of
inherent revocability.
And so, MI. President, it remains for me to refute the United States argument
based upon the concept of reciprocity, and this refutation will be the final seg- ARGUMENT OP PROFESSOR BROWNLIE 71
ment of that part of my address which concems the note of 6 April.
The argument of the United States Counter-Memorial contains the following
elements hased, or rather purporting to be based, upon reciprocity.
First, itis said that the concept of reciprocity represents wbat 1 would cal1a
vague and ambitious set of "fundamental principles of reciprocity, mutuality and
equality of States hefore the Court" (II, Counter-Memorial, para. 420).
Second. there is the assertion that Nicaraeua's declaration is inherentlv s,b~ ~~,~~~
1%)unilatcrïl tcrriiin;iti<iniir m.iJifiwtion (>hi</,p4r;i. 408).
Thfrd, il ir\aid ihat bccaii,~ 'licaragux'. iIr.cl:iraiion is rci~ir~hls, under ihr
rcrms IIA'rtlrlc 36 oitlis Statute. hi~:ir:icu.I 11.1lsioi rliicnteJ tiütll<lbli~iltion
as the United States (ibid, paras. 411.413). -
Fourth (and it would seem alternatively to the third element): on the ground
of reciprocity it is said that the United States may invoke the limitations upon
jurisdiction contained in other declarations; and therefore, "since Nicaragua's
declaration must he deemed to reserve implicitly the right of immediate termi-
nation, the United States is entitled to exercise such a right vis-à-vis Nicaragua"
(ibid. Dara. 416).
It is'fair to say, Mr. President, that this summary of the United States argu-
ment makes that argument appear much more coherent and much easier to
follow than it is in fact.
The UnitedStates Assertion that Nicaragua's Declarution Is Inherently Terminable
In the first dace. the United States oosition involves the assertion that the
declaration of Nicaragua is inherently sibject to unilateral termination or modi-
fication (ibid., paras. 406-410).
This assertion forms Dart of an argument based uDon several fallacies. but for
th: prcrcnt pciini, of criti:i,rinia!. bc <>il'creJI.n thc tirst pl.i<r..ilic Cnited
Siiirc,\,irwlhdt Jccldrdlinns:Irs;~l\!dy~ ~nhercnilyr:rniin;ihlcIwhicli nowIippc.irs
once again as part of the reci~rocity a.gum-nt) is fallacious and the Cous has
already heard me on that suhject.
The second point arises from the argument of the Counter-Memorial (II,
paras. 406-407) to the effect that the term "unconditionally" in the Nicaraguan
declaration has no meaning - apart from the context of paragraph 3 of Article
36 of the Statute - and therefore the declaration is "simply silent on duration".
The supposed result of this is that the declaration is "indefinite" in duration and
thus immediately terminable.
Mr. President. one can onlv admire the boldness of this reasonine. First of ~ ~ ~ ~
all, the term "unconditionally" isnot in issue. What isin issue is the interpretation
of the declaration as a text. The very general view is that declarations which
contain no provision for termination coniinue in force indefinitely (in contractual
terms), but may be terminable in so far as the principles of the law of treaties
might justify termination. The absence of a reference to a time-limit is always
construed as indicating that the declaration continues in force indefinitely.
Writers take this view of the declaration of Nicaragua, for example Hudson
in his book on the Permanent Court (Permanent Court of International Justice
1920-1942, 1943, p.472, para. 458). Rosenne, in his book on the time factor
(The Time Factor in the Jurisdiction of the International Court of Juslice, 1960,
pp. 19-20) and Briggs in his well-known lectures on the reservations to the
jurisdiction of the Court (Recueil des cours, Vol. 93 (1958-i), p. 229 at
pp. 271-272).
The fact is that publicists in general do not question the right of a State to
deposit a declaration of acceptance without limit of time. Thus, for example,72 MILITARYAND PARAMII.ITARY ACTIVITIES
Rousseau, Droit internarionalpublic (V, p. 412). And, of course, the view is
commonly expressed that there is no right of unilateral termination unless it has
been expressly reserved; this view may be found in O'Connell in his general
treatise (InrernarionalLaw, 2nd ed., II, p. 1082); in Oppenheim'sInternarional
Lnw, II, 7th ed., p. 61, note 2) and in Waldeck's article in British YearBook of
Inrernarionol Law, Vol.32 (1955-1956), page 244 al pages 263-265.
Apart from an express resewation, the question of the termination and
modification of declarations is governed by the pnnciples of the law of treaties
applicable to the consensual legal relations arising within the system of the
Optional Clause. This is the view held by the vas1 majority of authoritative
writers. And the position in terms of the law of treaties is clear. As Lord McNair
has said: "There is a general presumption against the existence of any right of
unilateral termination of a treaty" (Law of Trearies,1961, p.493). Such views
are entirely familiar. Thus Judge Jennings has written:
"not al1 treaties are intended to terminate after some period. Many are
made, and intended to he made, in terms of perpetuity. And, indeed, the
presumption must be, whereno term is contemplated hy the treaty expressly
or impliedly,that a perpetual agreement wasintended. Certainly the principle
of pacia sunrservandarequires that the law should lean against a right of
unilateral termination." (Recueil des cours, Vol. 121 (1967-Il), p. 237 at
p. 565.)
Mr. President. it is also clear that American viewson these matters were the
samc Indccd. the issue of uithdr;iu,lil wa, considercd in 1925 with plirtiiular
rcicrcnce 10 ;icccpianccuCthe juriidiciion of the PcrrnlineniCourt
In 1925Assistant Sccretar> of Statc OlJs wrute thc fullouine to Scn;itor I.cn-
root in connection with thé proposed adherence of the ~niied States to the
Permanent Court :
"There is no implied right in any one party to a treaty to withdraw
therefrom at will in the absence of specificprovisions for such withdrawal
by denunciation or othenvise or unless another party to the treaty has
violated it so substantiallv as to iustifv its termination. Whilst there can be
no quc,tion ihai the ~niied tat te ruhl~ h3v~ihc poucr to wiihdraw iroin
the Pcrrn;inentCouri 31an) timc. itildistinction hctwcen ihc piluer 1.)takc
such action iind the DrODriClY thcrcofçiin bc clearly Jrliwn I Cecl.rhercforc,
that to avoid the ooisibjlitv of future misunderstandinr. and ~articularlv to
sirrngihen thc reiard which should bc had for inicrnaiiondl igreenient< ;in
appropriatc rcscr\,aiion shiiuld hc incorporaicd in ihz rcioluiion hy u,h~ch
ihc Ilnitcd Siairs adheres ta>the Si3tute of thc Pem~ncni Court rwoenirine.
and reserving the right of the United States to withdraw from the ~&rt."'
This statement can be taken as a fair summary of the law of treaties more or
less at the time Nicaragua made her declaration. Moreover, this passage was
reprinted in Hackworth's Digest (V, p. 299); and appears also in Whiteman's
Digest (XII, p. 348).
The conclusion can only be that both as a matter of legal principle and
authoritative opinion the declaration of Nicaragua was made without limit of
time, and there can be no legal justification for the view that it is suhject to
unilateral modification. The materials adduced by the United States Counter-
Memorial (II, pp. 122-124)do not give any real support to the thcsis advanced
in that pleading. ARGUMENT OF PROFESSOR BROWNLIE 73
The UnfoundedThesisthat NicaraguaHas Nat Acceptedthe "Same"Obligationas
the UnitedStates
There is another proposition oiiered by the United States Counter-Memorial
(II, paras. 411-415)no less surprising than the revocability thesis.
The United States pleading Statesthat, since the declaration of Nicaragua does
not, likethe United States declaration, include a provision for sixmonths' notice,
it cannot be said that Nicaragua had accepted the "same" obligation as the
United States as required by Article 36 of the Statute.
Mr. President, it is not necessary to spend much time on this completely
baseless thesis, which is contradicted hy al1the authoritative writers, including
Hudson (op. cit., p. 465, para. 456), Shihata (op. cir., pp. 149-150), Verzijl (op.
cil., pp. 407-408) and Waldock (op. ci:., pp. 255-256).
This view is wholly subversive of the system of compulsory jurisdiction and is
inimical to the principle of reciprocity as understood by the Court hitherto. In
eiiect it involves a further insupportable attempt to rely upon a limitation in the
Respondent's own declaration, and thus it lies outside the amhit of the legal
concept of reciprocity.
TheThesisthat the UnitedStates BeneJïtsfrom the Rightof Immediate
Termination Which (It IsSaid) Is Implicitinthe Declarationof Nicaragua
The third argument advanced in the United States Counter-Memorial under
the general heading of reciprocity at least involves an acceptance of the normal
scheme of reciprocity. The argument on this occasion is: "since Nicaragua's
declaration must be deemed to reserve implicitly the right of immediate termin-
ation, the United States is entitled 10 exercise such a right vis-&vis Nicaragua"
on the hasis of reciprocity (II, Counter-Memorial, para. 416). The implication
of a right of immediate termination in Nicaragua's declaration is unjustified and
this thesis has been rejected already. The issue which it is still necessary to
confront is whether, as a matter of legal principle, reciprocity is applicable to
time-limits set by States for the duration and termination of declarations made
under the Optional Clause.
The general opinion in the literature has been that the principle of reciprocity
does not apply to time-limits set by States as to the duration and termination of
their declarations. The position is explained with great clarity by Rosenne in his
study of The TimeFactorpublished in 1960.As Rosenne puts the matter:
"the principle of reciprocity has no application whatsoever to the question
of the entry into force or termination of the title of jurisdiction - that is
to the simple element of time in the jurisdiction rationepersonae. For this
question, there must exist an element of mutuality, but this is not the same
as reciprocity in the technical sense in which that term is used in relation to
the compulsory jurisdiction. The entry into force and termination of the
mutual obligations are governed exclusively hy the general law of treaties
as regards conventional titles of jurisdiction, and (today) by Article 36,
paragraph 4, of the Statute as regards declarations accepting the compulsory
jurisdiction. In each case the Court has to he satisfied that when the
proceedings were commenced hoth parties were under the obligation to
accept the jurisdiction of the Court. That - the factor of mutuality - is
a sine quanonof the exerciseof the jurisdiction and has nothing to do with
reciprocity. When Article 36, paragraph 2, of the Statute speaks of 'any
other State accepting the same obligation', this must he interpreted as
referring to the obligation of judicial settlement in general terms, and not74 MlLlTARY AND PARAMILITARYACTlVlTllS
to the content or scope of that obligation. This inference may be regarded
as established bv the decision of the DresentCourt on the first. second and
fourth preliminary objections in the Right of Pussage case - decisions
reached by verylarge majorities." (Op.cil., p. 50.)
That is the view of Rosenne.
Very similar views are held hy Shihata (The Powerof rhe Internotionol Court
ro Derermine Irs Own Jurisdiciion, 1965, pp. 151-153); and by Briggs in his
lectures in The Hague course of 1958(Recueildes cours, Vol.93 (1958-I), p. 229
at o. 249). Moreover. those writers who state that the auestions of duration and
termination USdeclarations arc po\,crncd hy ihc principlcs of thc laiv ol' trclitics
impliiitly rrjcit the applicatiun ~~l'reciproriiy (il: Vcrzijl,Iniernuiionul bit.. VIII.
pp. 411-428).
It is certainly the case that some opinions have been expressed to the contrary.
Thus President Waldock in his article in the British Yeur Book of Internotionol
Luw argued for the application of the principle of reciprocity to time-limits
(Vol. 32 (1955-1956). p. 244 at pp. 278.279). and this viewis given rather tenta-
tive expression byO'Connel1in his general treatise (InrernotionalLaw, 2nd ed.,
il, p. 1082).
With al1due respect, the position adopted hy Waldock on this issue goes too
far. The assimilation of reservations and lime-limits which he urees is"~n~ound. ~ ~
The making of reservations is a contractual matter and involves the common
willof the parties, whereas thefixing of time-limits ofthe declarations themselves
is a matter govemed simply hy the Statute of the Court and the principles of the
lawof treaties. The confusion of these two issues byway of the idea of reciprocity
will have unfortunate consequences.
Moreover, President Waldock ex~ressedhis view hefore the Riaht of Pas.u~e .
caic ivai ilecidcd.and the relis.,ning 8f the Ju\lgnient cert;iinl) gnes noencour,ig&-
nient to hir point of vie\\ Kiither tht reterse. Thur hoth Kurinnc (<,p. il.. p. 50)
anJ Briu.- (. ..i'it.PD. 277.278)drau l'romth;itcase the inlcrcnie ihat rccipri)ciiy
does not apply to the-limits as such.
The conclusion justified hy the evidence is that reciprocity is ex hyporhesi
inapplicableto time-limitsas opposed to express reservations reservingthe power
to Varyor terminate declarations, and that in respect ofsuch express reservations
reciorocitv can onlv ,oer.te when a soecificact of variation or termination is ~ ~
notked by virtue of the express reseGation. And after all] this represents the
logic of the Judgment in the Righi o$Pussage case (I.C.J. Reports 1957,p. 144).
TheL~~gicuD lifticultiesAtiendingthe UnitedStutes C(~nception of Reciprocity
In the United States view reciprocity justifies reliance upon a hypothetical
limitation in the Nicaraguan declaration, that is the allegedright of modification
on notice. Asthe Counter-Memorial expressesthe matter:
"lt would he a 'gross inequality hetween States'to bind the United States
to a six-month notice provision when Nicaragua was not similarly bound.
1:undamcnt~I priniiplc-s of reciproriiy. muiu;<liiy.2nd equaliiy ;~l'Siaie,
hefore the Court require thai ihc United States nine of 6 April be rccogni7cd
as imnicdiatcly eficctirc vis-i-vis Nicariigw~:'(II. para 420).
These rather fine phrases are invoked to support a remarkably tortuous course
of reasonine. which is divorced from anv framework of leeal orinciole.
The unicd States is not invoking a skcific reservation gr limitatiAncontained
in the declaration of the Applicant, it is invoking an actually unexercised ARGUMENT OF PROFESSORBROWLIE 75
"inherent" rirht of termination which. it savs. attaches to al1 declarations.
including rhai oi Nic~ragua. But. 411. Prcïiilcni. on ihis rk:i,oning. the Unitcd
Sratc, noie ol'h April ilid no1rn;ittcr ;il 31sinx an inhcrcnt right oircvocahility
or mt>dificaiiondocc not necd to bc invokcd :rnl~iitlv. tho..h - it i,obviourl,
necessary to invoke the right in the actual proceedings.
If it be correct to say that there is an inherent right of revocability which is
potent even when not exercised, a Respondent State would he perfectly within
its rights in invoking the right to avoid jurisdiction by this constantly availahle
escape route, and todo so even after the filing of an Application. For the United
States argument is: "since Nicaragua's declaration mus1 be deemed to reserve
implicitly the right of immediate termination, the United States is entitled to
exercise such a right vis-à-visNicaragua" (II, Counter-Memorial, para. 416).
Thus, the United States position contains'two impressive novelties. First, it
involves, hy way of renvoi to the Applicant's declaration, reliance upon its own
reservation. Second. the oower to varv which the A~olicant..s said to have is
cquatcd with the aitual kxc.r;ise oi a powcr io vsry rkprk\enieil hy ihc Schulf
Ikiicr '1hi,. Mr Prcsidcnt. ij no1 the gcogr;tpliy si reciprocity but of ~hdtis.
Thir 1, noi an ariilici.iri<luirio ud i~hsar</io».ii ia rc;ilii~c ilcmonstration of
the results of the Respondent State's striving for flexibility.
The attempt Io utilize "inherent" or "implicit" rights of termination or modi-
fication which have not in fact been invoked rnust produce absurdity, since al1
res~ondent States could use such reasonine. And there is a further consideration.
c hé logic of the United States counter-~emorial would eRectivelydestroy the
seisin rule stated for example by the Court in the Ri~hhto- Pas~ape case. In the
words of the Judgment in this case:
"As Declarations, and their alterations, made under Article 36 must he
deposited with the Secretary-General, it followsthat, whena caseissubmitted
to the Court, it is always possible to ascertain what are, at that moment,
the reciprocal obligations of the parties in accordance with their respective
Declarations." (ICJ. Reporls 1957,p. 125at p. 143.)
Moreover, even whena right of termination or modification has been expressly
reserved, the respondent State can only benefit from its own actual act of ter-
mination or modification either in accordance with the terms of its declaration
or by virtue of an independent legal title. The United States argument would
render an express reservation of a right to terminate superfluous, since such a
right of termination can be, so to speak, "bounced back" off the declaration of
the applicant State. If this process can justify circumvention of an express
provision as to termination on notice, then afortiori it renders otiose an express
provision allowing for termination with immediate effect. All this is ironical, of
course, because the United States had in fact expressly forsworn precisely
the course of action adopted in the letter of 6 April, and in the Report of the
Senate Committee on Foreign Relations it is expressly stated that the provision
for six months' notice "has the effect of a renunciation of any intention to
withdraw our obligation in the faceof a threatened legdlproceeding" (Nicaraguan
Memorial, Ann. II, Exhihit D, 1,p. 422 - pp. 315-316).
The strange and unfortunate result of the logic of the Counter-Memorial is
that not only would declarations be freely revocable but they would always be
revocahle a1 the instance of the Respondent State after the filing of the Appli-
cation. That, Mr. President, is no1 flexibility, nor is it reciprocity or equality, it
is simply unworkahle.
What then is reciprocity within the meaning of Article 36, paragraph 2, of the
Statute? Saying that it is based upon equality does not help a great deal, since,78 MILITARY AND PARAMILITARY ACTIVITIES
Thus it is the substantive content of the declaration prior to the Application
which is the subiect of the réeimeof reciorocitv. The right to varv or teminate
irpart oiihi lirai contraciual stage. the li,r-~.<rJran.d iinoi siibje:t in rccipriiciiy.
I cdn nou mii\e on tri the ,cc.jnd >ignificantpoint iiiprin~iplc rüisiil hy the
aooliaition of the :<~nJitionof reLilirocit1tv tiriic-limiisin ihc <Iicl:irationoi an
applicant State. After the filing of an ~~~lication, it involves the respondent
State exercising,for example, a right of termination - or variation - on notice
when, in fact, that right has not been invoked hy the applicant State. In
consequence, the respondent State would always have a means of escaping
jurisdiction. It was precisely in respect of thistype of thesis that Briggsohserved:
"The fallacy of this argument lies in the fact that once the Court has
acouired iurisdiction. the subseauent termination of a Declaration hv notice
i>rixpir) i,irrcleiant '1hi\ is the .V<iri<.hr>hnruling, sihere the Court rd.
in pari: 'An cntrinsic Faet\uch as the ,ub\cquint Iapsc af the I)icli<ratitm,
by~reason of the expiry of the period or by denunciation, cannot deprive
the Court of the jurisdiction already estahlished' (LCJ. Reports 1953,
p. 123). And in the Right of Passage case, the Court after this statement,
added: 'That statement hy the Court must be deemed to apply hoth to total
denunciation, and to partial denunciation as contemplated in the Third
Portuguese Condition' (I.C.J. Reports 1957, p. 142). Thus the argument of
a right of termination on notice based on reciprocity is irrelevant and
ineffectual once the Court has acquired jurisdiction." (Recueil des cours,
Vol.93 (1958-I), pp. 276-277.)
The United States argument thus ultimately founders upon the very principle
upon which the concept of reciprocity is hased, that is, the contractual or con-
sensual principle. The measuring of the coincidence of the two declarations
must involve the invocation of reservations actually made by the applicant State
upto the time of the filingof the Application. This measunng cannot he applied
to a mere power to make reservations. To allow the Respondent to invoke such
a power in order to legitimate its own otherwise invalid act of variation or
termination would be beyond the limits of logic and sound policy. The curious
results of such a course would include the equating of a power to Vary (of the
Applicant) and an actual variation of the declaration of the Respondent. If that
can happen, it ceases to matter whether or not the Respondent has purported to
make a particular unilateral variation, since on the basis of reciprocity seen in
this unusual light there is a power of variation in any case.
Mr. President, 1 have now completed the argument relating to the United
States note of 6 April and the issue of reciprocity. It is inevitable that the argu-
~ ~ ~~~~~~d closelv confront a series of technical matters. and as 1 reach the
c.,nclucion cii 111ilddr:bi 1,)the CIourI. il uill hc appr~pr~dtc 10 ~lilndbxk frunl
the niaieriali dnd tu point out si>mç,II the Ik~rgec rlcrncnts in tlic picturi.
'lhe lirrt oi thoc Iarcer ilimenir i, ,urcl\ the !nr:nrion of the Siaies making
declarations of acceptalce. The position of ihe applicant State is based upon thé
plain meaning of tents and the integrity of those texts. In contrast, the United
States argument involves a convoluted process of reasoning which is aimed at
subverting the integrity of both the declaration of Nicaragua and that of the
United States. ARCUMBNT OP PROFESSOR BROWNLE 79
The text of the declaration of Nicaragua could not be clearer, and its very
clarity has been a source of embarrassment to my distinguished opponents. The
tex1of the United States declaration is bv comnarison lone and fairlv comolex.
II contains various elemcnti, al1 of which'wcrcihc subjcct $conridcrahle , ~ public
dehall, and ~.ommcntary.In p;irticular. ilincludcs ;i icry spmilii pr<ii,isionfor
rcrmination on six monihs' noticc Th13clear Drovison w~sintendcd to anticioaic
and to prevent precisely such an event as the note of 6 April. That note'is a
manifest contradiction of the terms of the United States declaration. The so-called
modification would involve an in personam termination of jurisdiction for two
vears and would deliberatelv ilout the ~rovision for six months' notice.
In consequence the unit& States is asking the Court to adopt positions which
cannot be reconciled withthe clearly expressed intentions of the declarant States
presently beforc it.
1 turn to the second of the larger elements in the picture, which is the concept
of freedom of choice. There is of course nothing unwholesome about freedom
of choice, but it must bc expressed withina framework of law, otherwise freedom
may become a slack and cynical voluntarism. It is the making of a declaration
which represents the freedom ofchoicc which States have; and they are permittcd
(within the Statute) to design the terms of their acceptance. The position of the
United States in this caseactuallv tends to frustrate the choices made hv the two
declarants. Thus it iscontended chat hoth declarantshave always had a hilateral
and inherent - and 1stress inherent - right of variation or termination. This
view nies in the face of the expressed inteniion of the declarants at the time of
depositing both the declarations. In the case of the United States declaration,
one can ask why a State should specify the period of notice of temination if it
has an inherent power of termination.
And so 1come to the third of the larger elements in the materials, which must
be the rule of law in international affairs.
Mr. President, 1 stand before the Court as advocate in contentious proceedings
and so, of course, 1have a partisan role. Moreover, it would be presumptuous
to speculate upon the views of the Court. But perhaps one may imagine a pro-
fessional international lawyer seeing this casefrom the outside.
He would surely sec the original United States declaration as standing for
and re~resentine. the rule of law in international affairs. Since - whilst that
dec~ar~tionis in-certain respects problematical - it nonetheless exists and it is
the result ofa carefully taken decision to commit the United States to the system
of the Optional Clause, and to do so on certain express tems.
And, MI. President, our colleague seeing this case from the outside would
certainly identify the note of 6 April and the forms of special pleading resting
upon it as being subversive of the rule of law in international affairs.
In mv submission. il follows that both the declaration of Nicaragua and the
declaraiion of the United States are not impaired by an inher&t right of
modification, and remain valid declarations recognizing the compulsory juri~d-c-
tion of the Court.
Mr. President, 1 thank the Court for their courtesy in the face of my long
address, and 1would ask you to recognize my colleague, Mr. Chayes. ARGUMENT OFPROFESSOR CHAYES
COUNSEL FOR THE GOVERNMENTOF NICARAGUA
Professor CHAYES: Mr. President, Members of the Court. May it please
the Court.
1rise tu make a few remarks about the position of the Shultz letter under the
United States Constitution. That was thought to be such a hallowed document
that evensu cousinly a foreigner as Professor Brownlieshould not lay hands on il.
Nicaragua's position on this point can he rapidly summarized. The declara-
tion of 14 August 1946 by which the United States accepted the compulsory
jurisdiction of the International Court of Justice was treated byal1concerned as
subject to the constitutional requirement of advice and consent of the United
States Senate. So were the attempts made to accept the compulsory jurisdiction
of the Permanent Court before 1946 and to alter the terms of the present
declaration since 1946. When 1 Say "al1 concerned that includes the President
then in office, the State Department and the Legal Adviser of the State
Department then in office. This much at least seems to be commun ground
between the parties.
What then is the United States position?
The United States first asserts that the Secretary ofState has apparent authority
tu bind the represented State (that is the United States) and so Secretary Shultz's
letter is effective without more. That appears in the Counter-Memorial (II,
paras. 422-426.) 1suppose that is trne enough if we are talking, as the Memorial
recites, about his authority tu make statements on "current affairs tu foreign
diplomatic representatives, and in particular to inform them as tu the attitude
which the government in whose name he speaks will adopt on a given question"
(II, Counter-Memorial, para. 423). And 1 suppose that it is also true that no
one would ask Mr. Shultz to produce full powers if he showed up for a signing
cerernony (ibid., para. 424). But J submit that any experienced diplomat and
most informed observers of foreign affairs are well aware that neither the
Secretary of State nor the President in whose name he acts kas plenary power
without legislative concurrence tu undertake or Vary major international obli-
gations of the United States.
The requirement of Senate approval of important international commitments
is a massive fact of contemoorv international relations. The absence of such
authority was, in the words Ofthc Vienna Convention on the Law of Treaties,
"manifest and concerned a rule of law of fundamental importance" (Art. 46 of
the Convention).
Second, says the United States, the declaration was not a treaty and was
therefore exempt from the constitutional requirement. We have heard a lot today
about the nature of declarations, but 1 think the Senate of the United States
understood the matter pretty well. The Senate Committee Report, in a passage
already read by Professor Brownlie, said this:
"While the declaration can hardly be considered a treaty in the strict
sense of the term, the nature of the obligations assumed hy the contracting
Parties are such that no action less solemn or less formal than that required
for treaties should he contemplated." (Ann. 11, Exhibit D, 1, p. 442 -
p. 320, Nicaraguan Memorial). ARGUMENT OF PROFESSOR CHAYES 81
Incidentally, a section of that Senate report entitled "The Constitutional Issues
Involved" contains an interesting discussion,fullyin accord with Nicaragua's posi-
tion here and endorsed by the theu Legal Adviser, Green Hackworth (II, p. 319).
The United States Counter-Memorial tells us that Senate approval was not
absolutely necessary. The same result could be achieved by a majority vote of
both Houses of Congress (II, Counter-Memorial, para. 248). That is true,
because as a matter of interna1 law, an Act of Congress adopting a treaty is
equivalent to Senate advice and consent. But it also remains true that the
declaration was beyond the power of the President or the Secretary of State to
make acting alone. As the Counter-Memorial says: "it was recognized that
Coneressional oarticioation was reauired" (ibid..nara. 266).
~éxt,the ~nited States says thai even ifthe Kesident cannot make a treaty,
or undertake an international obligation by himself, he can terminale one. 1am
prepared to say that that has alwais been the position of the State Department,
but it has come under a good deal of questioning lately in Congress and there
have been extensive hearings, on treaty termination in 1979,in connection with
President Carter's termination of the Treaty hetween the United States and the
Republic of China, excerpts from which you willfind in the Memorial, Annex II,
Exhibit E (Hearingson Treaty Terminationbefore the Committeeon Foreign
Relationsofthe UnitedStatesSenate, 96th Cong., 1stSess., 1979,1,pp. 442-444).
1think myself that the question is an open one under United States law, and
we are not likely to settle it here. 1 want to make only one point in this
connection. The United States Counter-Memorial says: "Nicaragua fails Io note
that this action" - that is, the termination hy President Carter of the Treaty
between the United States and the Republic of China - "was upheld hy the
United States courts against a challenge hy certain members of the Senate" (II,
para. 432). Again, 1 must say 1 am simply astonished. The case the Counter-
Memorial cites for that proposition is Goldwater v. Carrer (617 F. 2d 697 (D.C.
Cir. 1979), ibid.). That is an intermediate court decision. It was vacated and
remanded by the Supreme Court of the United States. That is to say, it is null,
and has no force as a precedent or a statement of the law. The Supreme Court
refused to decide this question and it said the Court of Appeals should have
refused to decide it also. So it vacated the Court of Appeals' decision.
Moreover, the dehate over the President's power to terminate treaties has
always been about whether he had power to terminate the treaty in accordance
with its terms. Goldwaterv. Carter concerned President Carter's action in giving,
on his own authority, the one-year notice for termination required hy the Treaty
of Alliance between the United States and the Reoublic of China. No one, until
ihc prcscni ('ounicr-\lr.niori;il. hiissiigt.csir.ilth~i ihe Prc\idchas I:tuful pmier
to tcrrnin:iir;iirr.*t) in Jctian:~ oiit\ tirm*. Il:rr.. ;is ue knoa. ih: iIr.cl313iii1n.
by its terms, required six months' notice of termination.
Let me by the way at this point reinforce Professor Brownlie's remarksas,to
the Senate's position regarding reciprocity.With respect to the six-months notice
provision, the Senate report says it "has the effect of a renunciation of any
intention to withdraw our obligation in the face of a threatened legalproceeding"
. . .renunciation of any intention to withdraw our obligation. (Memorial, Ann.
II, Exhihit D, 1, p. 442 - pp. 315-316). 1 suhmit that this renunciation of any
intention was ahsolute and unqualified.It would apply to the exerciseof reciprocal
rights of withdrawal as well as to anv other. This Court. 1 need not sav, has
p~c\~iously Counil\uch .i unilateral chprori<iii of inteliI,Ibr.c,>n:lu,i\r. r.viJr.nce
regardirig thc iiiicrprr.t.iiioiii a spe:iii< terni in a St;iie'j iLcl.ir;iiic>n.In ihr.
.Ir>~li>-lr<in,:dre ihc Court rclicd un a 1.1~.p>,,c.J bv the Ir.ini:in hl:ijlis in 1931
and held that the explanation of the Iranian declaration provided therein was a82 MII.ITARYAND PARAMILITARYACTlVlTlFS
"decisive confirmation of the intention of the Government of Iran at the time
when it accepted the compulsory jurisdiction of the Court". Well, at the time it
accepted the compulsory jurisdiction of the Court, the United States Senate
renounŒd any intention of withdrawing its obligation in the face of litigation.
Finally, the Counter-Memorial assimilates termination and modification, 1
suppose on some sort of view that the greater includes the lesser (II, para. 433).
Again, the Counter-Memorial has simply turned its back on the position that
the State Department and the Government of the United States has repeatedly
taken in the past, most reccntly in April 1979. Then the State Department,
through its Legal Adviser said the following, in formal written answers, to
questions put by the Senate Foreign Relations Committee in the hearings on
Treaty Termination :
"Question: Would you agree that the President is not able to alter the terms
of an existingtreaty inany significantwaywithout the consentof the Senate?
Answer: Yes .. .".
The State Department took the position hefore the Committee that the President
was without power to alter the terms in an existing treaty without the consent
of the Senate. The next question:
"Question: If the consent of the Senate is required in the case of a significant
amendment to a treaty, why is it not required in the case of the most
significant 'amendment' of al1 - complete temination of al1its terms?
Answer: Termination of a treaty, which ends an obligation of the United
States is not analogous to an amendment of a treaty which changes,
extends, or limitsan obligation of the United States. Assuming a significant
chanee in a leeallv bindine oblieation to another nation. it follows that
ihc ~Gnatc,huuld girc it5ad\ice and cunscni iu iuîh a chngî. Normall)
8 treiity [rcad "J~.claration")is changcd by anoihcr iredty [rcdd "Jcîlar-
;ition"l. althoueh ihe charurtcri~aiion of the aniendment ma\ hc dilTerent
(e.g., Protocol)r"
You will note, incidentally, that in 1979 the State Department admitted that
Senate approval was required for any amendment of a legally binding inter-
national obligation, whether it changes, extends or limiis an obligation of the
United States. So much for the Counter-Memorial's theory that a modification
which limitsobligations is somehow easier for the President to accomplish alone,
than one which expands obligations.
1apologize to the Court for reading this same exchange, which took place in
the Senate Committee, that was printed in the Memorial (Ann. II, Exhihit E, 1,
pp. 442-443). However, the United States has not answered it, or refuted it. It
has simply ignored it. And 1for one would like to know when and how, hetween
1979and the present, the constitutional powers of the President changed.
Mr. President, Members of the Court, 1 submit that the action by Secretary
Shultz - whether considered as an attempted termination of the 1946declaration
and the substitution of a new one, or as an attempted modification of the 1946
declaration - represents an attempted exercise of power manifestly without
legal authonty that should not he countenanced by this Court.
Now, Mr. President and Members of the Court, 1have a pleasant duty. 11is
with specialpleasure that Iask you to recognizeMI. Paul Reichler, of Washington
D.C., who 10 years ago was my student at Harvard. He has heen representing
Nicaragua's legalinterests in general for some time, but this ishis first appearance
in that capacity, or indeed in any capacity, before this tribunal. 1 ask that you
give the floor to MI. Rcichler. ARGUMENT OF MU. REICHLER
COUNSBLFOR THli GOVGRNMENTOF NICARAGUA
Mr. REICHLER: Mr. President, Members of the Court. May il please
the Court.
My purpose in appearing before the Court this afternoon is to address the
contention of the United States, set forth in ils Counter-Memorial, that these
proceedings mus1be terminated because of the absence of El Salvador, Honduras
and Costa Rica. Before commencing my address, however, 1wish 10 state that
it is a distinct honour and privilege for me to appear before this Court, and 1
am honoured as well 10appear in the Companyof the learned and dislinguished
jurists at both counsel tables.
The United StatesCounter-Memorial asserts two different grounds for termin-
ation of these proceedings due to the absence of the other Central American
States. First, the United Statesargues that the Vandenberg Amendment - the
third of the three reservations to its declaration of August 19-6 depnves the
Court ofjurisdiction ovcr Nicaragua's Application in the absence of those States.
Second, the United States argues that the three States are, to use the United
Statesterminology, "indispensable parties", and for that reason the Application
is inadmissible.
While in the normal course it would be preferable to address jurisdictional
arguments before those on admissibility, with the Court's permission 1 plan to
reverse the order, and demonstrate first that there is no merit to the United
States inadmissibilitv areument. and second that the Vandenbere Amendment
cannot be invoked iith; case 1'0preclude jurisdiction over any07 the claims in
Nicaragua's Application - neither the claims arising under general international
law no? the ciaims arisine under multilateral conventions.-l have chosen this
ordcr hccïusc. ai the conclusion of my reniarks.I willaïk ihc Couri in rccognirc
Professor Hri>wnliconcc agdin. u,ho willoller further ohicrvations on the United
Statcs contention that thc Vandenberfi Amenilment ~recludes ~urisdictionowr
Nicaragua's claims arisingunder generil internationaliaw. This order of address-
ing the arguments will allow continuity between my observations on the Van-
denberg Amendment and those of Professor Brownlie.
The United Statcs Counter-Mernorial, Part IV, Chapter 1,is captioned: "The
Nicaraguan Application 1sInadmissible Because Nicaragua Has Failed 10 Bring
Indispensable Parties Before the Court." The United States argues that El
Salvador, Honduras, and Costa Rica are indispensable parties and that, conse-
quently, allbwing this case to go forward in their absence would be contrary to
"the Court's own 'indispensable party' practice" (II, Counter-Memorial.
para. 274). At the outset, il mus1be asked: to what practice of the Court is the
United Sttatesreferring? The term "indispensable parties" is of course a feature
of American municipal law. The term is Familiar to Anrericait lawyers. But the
term appcars to be alien in this Court. Neither the Statute of the Court nor the
Rules of Court mention "indispensable parties" or contain anything resemhling
Rule 19 of the American Federal Rules of Civil Procedure. Nor does the
jurisprudence of the Court include any reference to the term "indispensable
parties" or to the concept as described in the United States Counter-Memorial.
The United States purports to find support for ils so-called "indispensable
parties" argument in the Moneiory Cold Rernoved from Rome in 1943case. In84 MILITARYAND PARAMILITARYA~IVITIFS
fact Monetor), Gold provides no support for the United States position. The
Court is, of course, fully familiar with that case and time need not be consumed
here by a repetition O-fthe exposition set out a1 paragraphs 239 to 249 of
Nicaragua's Memorial (1). 1wish only to read a single excerpt from the Court's
Judgment to demonstrate that the present case simply does not fit within the
principle enunciated in Monetory Gold. The Judgment states in relevant part:
"The first Suhmission in the Application [that is, the Application filed by
ltaly against France, the United Kingdom and the United States pursuant
to the compromis upon whichjurisdiction was based] centres around a claim
by ltaly against Albania, a claim to indemnification for an alleged wrong.
ltaly helicves that she possesses a right against Albania for the redress of
an international wrong which, according to Italy. Albania has committed
against her. In order, therefore, to determine whether ltaly is entitled Io
receivethe ~-.d. it is necessarv to determine whether Albania has committed
any international legal wroig against Italy, and whether she is under an
obligation to pay compensation to her; and, if so, to determine also the
amount of compensation. In order to decide such questions, it is necessary
to determine whether the Albanian law of Januarv 13th. 1945.was contrarv
1,)international Iau In thc dctermination of ih<bequestions - quc,tioni
rihi;h rclliiIO the lau,fulor unlawlul chaiacier of ccriain actions ut'Alban13
vis-à-visltaly - only two States, ltaly and Albania, are directly interested.
Togo into the merits of such questions would he to decidc a dispute hetween
ltaly and Albania." (1.C.J Reports 1954,p. 32.)
As this portion of the Judgment shows, Albania was not a mere third party
whose political or legal interests might have been aiïected by a decision on the
merits. Albania was in fact if not in name the real Respondent to Italy's first
submission. That submission consisted of, as the Court said, "a claim by ltaly
against Albania", requiring the Court to determine whether Albania had commit-
ted an international legal wrong against Italy. It was really a bilateral dispute
between these two States; and the Court described it in that way: "ltaly and
Alhania were the only Iwo States. .. directly interested."
Thus, in declining to exercisejurisdiction overthe first ltalian submission, the
Court was not defemng to an absent third pairy with allegedinierests in the legal
controversy between the Applicant and the Respondent. The Court declined to
proceed in the absence of the real Respondent. In the circumstances, and given
that Albania had not consented to the Court's iurisdiction. the ltalian submission
u.3~rendered in~dtiiisvablcby. to quote the ~o~tirt.'.ihe ii~cll.estahli~hcdprinciplc
.ilintern3ti~naI Iki\\embodied in the Court's Statute, ndnicly ihat the Couri ;an
only exercisejurisdiction ovcr a State with its consent."
The contrast with Nicaragua's Application against the United States is easily
drawn. Nicaragua asserts claims against the United States, and not against any
absent State. Relief is sought only from the United States. In order to adjudicate
Nicarae-a's claims. the Court mus1 determine onlv whether the United States
has commiited iniernational legal irrongs against Uicaragua This is plainly a
dispute hctuccn Nicaragua and the United States. Th? Uniicd States i\no! oiily
ihc namcd, but slsii thc rclil. Re~pi~nilent.The Court iinoi rcquired to cxcrcisc
jurisdiction over any absent tat te:
The United States attempts to portray this case as in part a dispute hetween
Nicaragua and Honduras. Noting that Nicaragua's Application alleges that
United States sponsored mercenary forces opcrate from Honduran territory in
conducting military and paramilitary attacks in and against Nicaragua, the
United States asserts : ARGUMENTOP MR. REICHLER 85
"It is well-settled that a State that permits its territory to be used for the
commission of internationally wrongful acts against another State itself
commits an internationally wrongful act for which it bears international
responsihility." (II, Counter-Memorial. para. 437.)
Nicaragua does not disagree with this statement of the law. But the fact remains
that Nicaragua's Application makes no legal claim against Honduras and seeks
no relief from Honduras. The Court is not called upon in this case to adjudicate
the lawfulness or unlawfulness of Honduras's conduct. The Court can adjudicate
Nicaragua's claims against the United Stateswithout adjudicating upon the legal
responsibility of Honduras.
In these circumstances Monerary Gold does not provide any basis for the
Court to decline to exerciseits jurisdiction. Monetary Golddoes not hold, as the
United States Counter-Memorial argues, that the Court mus1 defer whenever
the interests of absent States might be afiected by the Court's decision. The
Court itself articulated the proper test: "in the present case, Albania's legal
interest would not only he affected by a decision, but would form the very
suhject-matter of the decision" (1.C.J. Reports 1954, p. 33). It is not contended
by the United States, nor could it be, that the legal interests of El Salvador,
Honduras, or Costa Rica would form the very subject-matter of the Court's
decision in this case.
Moreover, upon close analysis, the posited interests of these States, that the
United States alleges might be aiTectedby a decision, are either non-existent or
plainly beyond the scope of any decision the Court could render in this case.
It is worth recalling in this regard that Nicaragua's Application claims that
the United States has violated international law by mining Nicaragua's ports
and hy conducting military and paramilitary attacks in and against Nicaragua
by means of a mercenary army created, armed, financed and directed by the
United States. Nicaragua seeks relief that would, in effect, require the United
States to crase and desist from these activities and compensate Nicaragua for
the damages it has incurred.
It need hardly be said that El Salvador, Honduras and Costa Rica do no1
have, either separately or jointly, a legal right to request that the United States
mine Nicaragua's ports, or carry out military and paramilitary activities in and
against Nicaragua. Nor has any of these States, in its communications with this
Court, claimed such a right or represented that it ever requested that the United
States engage in such activities against Nicaragua. Accordingly Nicaragua's
claims, as asserted in the Application, do not concern any real or asserted rights
of those States.
The concern expressed to the Court by El Salvador and Honduras - Costa
Rica has expressed no such concern - is simply that no action be taken by the
Court that would curtail their right to receive military and other assistance from
the United States. For example, El Salvador's Declaration of Intervention under
Article 63, filed on 15 August 1984, for al1 its allegations about Nicaraguan
activitv. does not reoresent that El Salvador has requested the United States to
~ ~ , ,
mine Nicaragua's ports or carry out military and paramilitary activities in and
against Nicaragua through mercenary forces or othenvise. El Salvador nowhere
siales that thesi particuls activitie- the suhject of this lawsui- are necessary
to its self-defence, or constitute a form of legitimate self-defence, nor could El
Salvador make such a statement. Rather, El Salvador's stated concern is that
there be no preclusion of the economic and military "support and assistance
from abroad", including the United States, it has requested in order 10 defend
itself. (Declaration of El Salvador,para. XII.) But Nicaragua's Application does86 MILITARYAND PARAMILITARYACTIVITIFS
not place in issueEl Salvador's rightto receivemilitary or economic assistance
from the United States or elsewhere. Such a nght will not be aiïected hy the
Court's decision even ifthe Court grants al1of the reliefrequested by Nicaragua.
Honduras's letter to the Court of 18 April 1984,suhmitted to the Court by
the United States as Exhibit III, Tab S, during the hearings on interim measures
of protection, similarly makes no reference to any legal right or request to the
United States concerning the mining of Nicaragua's ports or the carrying out of
military or paramilitary activities in and against Nicaragua. Honduras states in
its letter that i:
". . .views with concern the possibility that a decision by the Court could
aiïect the security of the people and the State of Honduras, which depends
to a largeextent on the bilateral and multilateral agreementson international
cooperation that are in force, published and duly registered withthe Office
of the Secretary-General of the United Nations . . ."(1, p. 309.)
1will read the last words again, since they are the words that the United States
excised whenit quoted from the Honduran letter at paragraph 286 ofits Counter-
Memorial (II):
". .. bilateral and multilateral agreementson international cooperation that
are in force, published and duly re.iste-ed with the Secretary-General of
the United ~ations, if such a decision attempted to limit thesi agreements
indirectly and unilaterally and thereby left my country defenseless".
The laneuaee"that the United States excised makes it clear that Honduras's
ionccrn. ;illrdst in so far ai Honduras itselr h~sc~pre>v<l itIO tliir (.'o~riir
thai thc Court's dc~isionnot alfcct sn) ui il>righis under agreemcni, registr'rr'd
with the Secretary-General. Certainly, no such agreemeni endows Honduras
with a right to have the United States engage in the activities complained of in
Nicaragua's Application,nor does Honduras so contend.
It is quite obvious that an adjudication of Nicaragua's claims against the
United States will no1lead the Court "indirectly or unilaterally" to "limit these
agreements" - quoting rrom the Honduran letter - and iherefore the Court's
decision will not aiïect the rights asserted hy Honduras in any way. Nicaragua's
Application does not cal1upon the Court to limit Honduras's right to receive
military and other assistance from the United States or any other State.
The United States would have the Court helieveotherwise. The United States
contends that Nicaragua's Application would aiïect "the right of States to
provide reasonahle and proportionate assistance 10friendly States" (II, Counter-
Memorial, para. 438). As purported supportfor this interpretation of Nicaragua's
Application (I), the United States points to paragraph 26 (g) of the Application
of 9 April 1984. The United States contends that paragraph 26 (g) asks the
Court to prohibit United States assistance to any nation engaged in military or
paramilitary actions in or against Nicaragua, and the United States further
contends that this would prohibit the United States [rom assisting El Salvador's
armed forces in taking military action in self-defenceagainst Nicaragua. This is
not a correct reading of the cited paragraph of the Application, and it is not
what Nicaragua has asked the Court to do.
The language of paragraph 26 (g) wasdeliberatelychosen. It tracks the precise
language enacted into law by the United States Congress in appropriating
$24 million expresslyfor military and paramilitary activitiesin and against Nica-
ragua during the 1984 fiscalyear. That law, the Defense Appropriations Act
of 1984.reads as follows: ARGUMENT OF MR. REICHLER 87
"During fiscalyear 1984,not more than $24,000,000of the funds availahle
to the Central IntelligenceAgency, the Department of Defense, or any other
agency or entity of ïhe ~niïed States involved in intelligence activiiy may
he obligated or expended for the purpose or which would have the efect of
supporting, directly or indirectly, military or paramilitary operations in
Nicaragua hy any nation, group, organization, movement or individual."
These are the very funds that Nicaragua alleges were used in fiscal 1984 to
finance the military and paramilitary activities of the United States against
Nicaragua. Paragraph 26 (g) is intended to prohibit the United States from
continuing to support such activities, in and against Nicaragua, either directly
or indirectly. Neither that paragraph nor any other part of Nicaragua's Ap-
plication seeks to inierfere with the provision of military or otber assistance
by the United States to El Salvador or any other State as long as this is not
done as a subterfuge, that is, to send money and goods to the mercenary forces
hy indirect means.
1would like to make one final point on the so-called "indispensable parties"
argument advanced by the United States. The United States contends that
the three Central American States are "indispensable" hecause, to quote from
paragraph 443 of the Counter-Memorial (II):
"Facts concerning the activities of third States and Nicaragua's actions
regarding those States may not be in the possession or control of a party
hefore the Court and cannot legitimately and fully be determined in the
absence of such States."
This argument is unpersuasive in the circumstances of this case. In the first
place, the Court has ample means at its disposal to ohtain factual matenal from
El Salvador, Honduras and Costa Rica ifthat becomesnecessary.Sec,for example,
Article44 of the Statute of the Court implemented through Article 66of the Rules
of Court. It should not be presumed that any of these States would refuse to
honour a proper request from the Court for factual material. It also should no1
be presumed that any of these States would spum a similar request from
the United States. After all. if, as the United States suggests, ils activities in
and against Nicaragua are being conducted for the benefit of these States, then
surely their interest lies in providing the United States with whatever factual
material they have that would help the United States justify its conduct in this
Court and avoid a judgment that could prevent it from continuing to act in their
benefit.
An "indispensablc parties rule" of the type described by the United States
may he appropriate in a municipal legal system, such as our American one,
where the courts have the power to adjudicate over persons and other entities
despite their lack of consent. But such a mle, as applied to an international
court, whose jurisdiction depends on the consent of States, would make it most
difficult for the court to conduct ils business. As the Court stated in ils Judgment
on Italy's Application to lntervene in the case concerning the ConrinenralShelf
(Libyan Arab Jamol~iriya/Mulra) :
"ln the absence ofcompulsory intervention, wherehy a third State could
be cited by the Court to come in as a party, it mus1he open to the Court,
indeed its duty, to give the fullest decision it may in the circumstances of
each case, unless of course, as in the case of theMonerary Cold Removed
from Romein 1943, the legal interest of the third State 'would not only he
affected by a decision, but would fom the very suhjcct-matter of a decision'88 MlLlTARYAND PARAMILITARYACiIVITIES
(1.C.J. Reporrs1954, p. 32), which is not the case here." (1 C.J. Reports
1984, p. 26.)
Nor, as shown, is it the case here. So much for the so-called "indispensable
parties rule".
1 will now turn to the Vandenberg Amendment and the United States con-
tention that it precludes jurisdiction over Nicaragua's Application hecause of
the absence of the same three Central American States previously mentioned.
The Vandenberg Amendment was barely touched upon in Nicaragua's Memo-
rial of 30 June 1984.At the lime, the United States had not specifiedwhether or
on what basis it intended to invoke that réservation in these proceedings.
At the hearing on interim measures of protection, last April, counsel
for the United Statesmade only one passing referenceto the VandenbergAmend-
ment, in effect stating that it reflected the same principle as the Monerary
Gold case (1, p. 86). Since Monetary Gold was discussed at some length in
Nicaragua's Memorial - and since, as 1have just discussed, the case provides
no suppori for the United States position on the absent parties - we gave scant
attention to the Vandenberg Amendment itself in our Memorial. Furthermore,
and quite frankly, because the Vandenberg Amendment reflects such enormous
confusion of thought, we did not presume that the United States would invoke
il in this case. This, therefore, is our first opportunity to address the United
States contentions concerning the reservation, and 1 will,with the Court's indul-
-ence. address the subiect in some detail.
A careful an~lysis,and in pariicular. an accurate prcsentxiion of ihc proces
lelidingIo the adoption oirhr. V~ndenbergAmcndmeni and 11.incorporaiion in
ihe Ijn~iedSiaie, dcclaration of 1946.demonsirairs ih~ithe Amendnicni cannoi
preclude jurisdiction over any part of Nicaragua's Application.
1 must admit, right at the heginning, that 1 find the tex1of the Amendment,
taken by itself, thoroughly confusing, as have the most eminently qualified pub-
licists for the pas138 years. To give some examples:
Professor Briggs wrote that "the language of the resewation hetrays such
confusion of thought that to this day no one is quite sure what it means" (Col-
lectedCoursesof the HagueAcademyofInlernaliona1Law, Vol.93, p. 307).
Professor Quincy Wright said that the "interpretation of the proviso . . is
certainly far from clear"(AmericanJournalofInfernolionalLaw, Vol.41, p. 446).
Judge Manley Hudson characterized the Amendment's originsas "a jumble
of ideas" and said that "the Senate had no clear intention in this connection"
(Americon BarAssocialionJournal, Vol.32, p. 386).
Professor Anand concluded that neither the Amendment's "meaning or its
implications were fully understood" hy the Senate (CompulsoryJurisdicrionof
theInrernarionalCourrofJusrice, p. 221).
A study of the text underscores these comments. The resewation purportedly
applies Io:
"disputes arising under a multilateral treaty unless (1) al1parties to the treaty
affected hy the decision are also parties to the case hefore the Court, or (2) the
United States speciallyagrees to the jurisdiction".
The second clause is obviously surplusage. If the United States specially agrees
to jurisdiction, then the jurisdictional hasis would be the special agreement, and
not the declaration. Neither the declaration itself nor any of the resewations
therein would come in10play. The clause is without effect.As we shall see from
the legislativehistory of the resewation, which 1shall come to in a fewmoments,
that is precisely what the Senate understood when it added the reservation to ARGUENT OF MR. REICHLER 89
the United States declaration. Not only the second clause of the reservation, but
the first clause as well, were regarded by the Senate as surplusage that effected
no substantive change in the terms of the United States declaration.
The first clause of the reservation, textually, is entirely opaque. It is
the principal cause of the confusion and consternation that surrounds the
reservation. What is meant hy the words "affected by the decision"? Does
"affected hy the decision" mean "bound by it"? If so, then the first clause, like
the second, is, in fact, pure surplusage, since, under Article 59 of the Statute of
the Court, only parties to the case can he bound by the decisions of the Court.
If a State can he deemed "affecter by a decision without being "bound" by it,
under what circumstances is it to be deemed "affected"? The text of the
reservation, taken by itself, provides no answers to these perplexing questions.
Indeed, if "affected means something otber than "bound", the clause would
appear to be hopelessly void for uncertainty. The Court would he well within its
rights in so deciding. The doctrine of voidness for uncertainty is common to
most legal systems and could he applied here hy the Court under Article 38 (c)
of the Court's Statute.
It has been suggested that the first clause of the reservation may operate to
preclude jurisdiction in cases arising under multinational conventions unless al1
parties to the convention are parties to the case. This possibility was expressed
by some of the same commentators previously cited, who feared the reservation
would operate to nullifythe declaration in virtually al1casesinvolvingmultilateral
conventions and advocated hefore the Senate that the reservation be struck from
the declaration. The United States Counter-Memorial rejects this harmful
interpretation of the Vandenberg Amendment, however (see para. 255, note Z),
and Nicaragua agrees.
As 1 will show, such an interpretation is manifestly inconsistent with the
intentions of those who conceived, drafted and enacted the reservation in 1946,
as reflected in the legislative history that led to its enactment. There is thus no
reason for the Court, at the urging of neiiher Party, to interpret the reservation
in such a manner as to vitiate the United States declaration in cases arising
under multilateral conventions, including, of course, those arising under the
Charter of the United Nations.
Because it is im~ossihle to ascertain the meaninr of the reservation from the
icxt alonc, ;i c.ircli.1 .inalysoi rlic Icgislliiivchirioryis rcquircd. ly~iriiinaicl),
rhçrc is a uell-ili~cumenisd.though hrici, olficial record ihat rcflccii ihc prcci,c
concerns to which the reservation was addressed. This record demonstrates that
the reservation is in fact nure surolus.ee aud that it does not im~ose anv
Iiiiiiiaiiiin <iniic:cptm-cdi c<mpiil,ory luri~rlicii<>nby the IJniicJ Si~icr. The
iponwr oi ihc Arncndnicni and thc gcntlcmlin ior whoiii ilii namcd - Sciinior
VanJcnhcrc - himsclf cx~laineJ on ilic flodr .>ith< Sciiaic. in i;>rmlill, pro-
posing the-~mendment: "~he situation defined in this suggested reseriâtion
is the situation which would exist without the reservation." The only other
Senator to comment on the Amendment, Senator Thomas, responded by stating :
"That is true." No other Senatorspoke about the reservation in the floor dehates.
Thus, the Senate may be taken to have understood that, in enacting the
Vandenherg Amendment, no substantive change in the United States declaration
accepting compulsory jurisdiction was intended or accomplished.
There is nothing terrihly unusual in this. It is not uncommon for a legislature
to enact a provision generally regarded as surplusage in order to accommodate
certain of its members who feel that additional safeguards or clarifications are
desirable. The legislative history of the Vandenberg Amendment corroborates
that this is precisely what happened.90 MILITARY AND PARAMILITARY ACTIVITIFS
The reservation was adopted in direct responseto the concern expressedby
John Foster Dulles, that acceptanceof the Court's compulsory jurisdiction might
expose the United States Io suits by States that had not themselves accepted
comnulsorv iurisdiction. This concern was. of course. totallv unfounded. Article
36 (5) OCihc Statuic of thc Court oiTercdcomplrte proicciion agiinsr \uch ruiis
by Iimiling ihe el~eciivcnessof a Siale's accepianr.coicompulsor). juri\diciion 10
"anv oiher Siaie acctniina ihe sanie ~~bliration" Hiit Dullr., ieared ihai Articlc
36 (2) had a loopholé thàt might have Gposed the United States to suit hy a
State that had not acceptedthe Court's compulsory jurisdiction where that State
was part of a group of Statessuing the United Statesin a multi-party case,and
one of the an..icants had acceotedcomoulsorv iuris, ,tion.
I>ulles'\ Car wenis. ai 6r,t blu>h. .ilniost impl.iu\~ble IO ;iny,>neIlimiliar uiih
ihe Çct~rt anil ils Siutuir. Il \eem, odd ihai ai e\pcriencr.J
1.iti)r.r Jnd Jiplomai
as he could rad Article Ih (2) as ;ill<)uing suiis againbt Staics tliat hdd acccpied
the compulwry jurisdlL'iii~n of the Ci>uri by Staics ihat had no1dicepied il.no
matier hou resiricied the circumrtanccs Ne\,erihelejs. the re~orJ lelivesno douhi
thai ihis u.38 hou. hc rcaJ Article 36 (2) or. at Icasi, hou hr. feli ihe lieu Couri
mieht nossiblv read il. The record consists of Dulles's own memorandum on the ~ ~ ~
suGeciwhich'has beensubmitted IO the Court asAnnex 106 tothe United States
Counter-Memorial (II); the report of Francis 0. Wilcox, assistantto the Senate
Foreien Relations ~okittee. oublished in the American Journalof Inrernofional
Law;-the official Report of the'senate Foreign Relations ~ommit;ee, Annex 107
to the Counter-Memorial (II); and the official record of the floor debate in the
United States Senate,which was not included as an Annex to the United States
Counter-Memorial, but which Nicaragua submitted at the commencement of
thesehearings as its Exhihit F. The Court will find upon a close review of these
sources that Dulles's fear about Article 36 (2) was exactly as 1 have stated and
the Vandenbere A-endment resulted directlv from his fear.
Dullr.\'r fedr a,sh set ,>ut in his hlemoranduni Co\cring ,\cccpt;ince hy ihe
UnitcJ St.iie\ of the Compuli,~r) JurisJi;ti<~n of the Intcrnation;il Couri <il'
Ju,ii;c (Ann ItMto ihs \:nileil St;iic.;Cuunicr-Memciriul. II). Ii i\8rorili rr.;iding
ihc rr.lii..int parin lull. ra1hr.r ih;in quoting froni 11 rr.le~ti\cl) ;is thc United
Siaie, ha, done nt p~ragrdph 257 OC the Ciiuntcr-Mr.mori.il
I>ulles'sstlitemr.ni aDpc.irsunder the hrddinr "H<~r~/~rc>~rrTi~ h"iri\\icniii:~iii.
Reciprocity among pases before the Court is ëxactlywhat ~ulles wasconcerned
about. Thus, he beginshis statement with the following recommendation: "luris-
diction should be compulsory only when al1 of the other parties to the dis-
pute have previously accepted the compulsory jurisdiction of the Court." This,
of course, was already assured by Article 36 (2), as we know. But Dulles was
worried that Article 36 (2) might not assure it in al1 circumstances. This is
reRectedin his next paragraph, which is labelled "Commenr":
"The Court Statute embodies the principle of reciprocity. It provides for
compulsory jurisdiction only 'in relation to any other state accepting the
same obligation' (art. 36 (2)). Oftentimes, however, disputes, particularly
under multilateral conventions, give rise to the same issue as against more
than one other nation .. ."
Now cornesthe part Dulles is worried about:
"Since the Court Statute usesthe sineular 'anv other state' Ihe is refer-
ring to Article 36 (2)] itmight bc desirable to make clear that'there is no
compulsory jurisdiction to submit to the Court merely becauseone of several
to such dispute is similarly bound, the others not having bound
themselvesto becorneparties before the Court and, consequently, not being ARGUMENT OF MR. WICHLER 91
suhject to the Charter provision (art. 94) requiring memhers to comply with
decisions of the Court in cases to which they are a party."
I>ull:s'~I;,ius on Ariirlc 36 (2)'s iisr' ol'thc \ingiiliir raihcr thdn the plural
cxpliiins hi, ihinking. ii r'\plsin. his sonfii,iun 1:<1irliis re;i\it 1.unl;iriiin.iic
ihst this is the pdriion (if his .;iatcmcnt that iscxciscd iroiii the I;niicd States
quotation of the statement at paragraph 257 of the Counter-Memonal (II).
Dulles was concerned that Article 36 (2) would have exposed the United
States to suit in any case where there was "any other state" - singular - suing
the United States that had accepted compulsory jurisdiction, and that as long
as this condition was satisfied (that is the presence in the case of one party
against the United States accepting compulsory junsdiction) other States, even
though not having accepted the compulsory jurisdiction of the Court, could join
in against the United States. Thus, his recommendation that "Jurisdiction should
he compulsory only when a// of the other parties to the dispute have accepted
the compulsory jurisdiction of the Court". This was the reciprocity (that
is the heading of this section of his Memorandum), that Dulles wanted to
guarantee.
Dulles plainly was not worried about suits in which al1of the parties before
the Court had made declarations accepting the compulsory jurisdiction of the
Court - which is the situation we have here. Rather, his concern was that a
party to a dispute hefore the Court might not have accepted the Court's com-
pulsory jurisdiction. Furthemore, Dulles clearly was not trouhled hy the
riehts or interests of absent third oarties. He was onlv orotectine the United
rat e he thought, from suits involvrngStates whichhad ioi acceptez compulsory
jurisdiction. He was concerned, hy his own definition, with reciprocity. He
referred to claims under multilateral conventions hecause it was in this context
that multi-party suits were most likely to arise.
Dulles's Memorandum was understood at the time precisely as 1 have
just described it. This is confirmed hy, among others, Francis O. Wilcox, the
assistant to the Senate Foreien-Relations Committee. to which Dulles's Memo-
rJnJum eas uli~msicly ruhniiticd. ImmeJiat:ly ailcr dcriribing ünil quoting
irdm ihc portisn ol'ihc Dulles hlcnii,r~nJuni th~t I ha\c juci e.\aiiilncil. \\'iliii
urotc in ihc ..l»irri,.iJ~i,irtii1.1Intc'rtidlriin~Ldii.(Vol. JO. ii.7141: "C'cr-
tainly the United States would nit want to place itself in a poSition bhere it
could be forced into court hy a state which had not itself accepted the terms of
Article 36."
This is in fact what Dulles was worried about, and Wilcox confirms it. He
understood it that way and the Senate Foreign Relations Committee understood
it that way.
Wilcox continues :
"ln reply to MI. Dulles' Memorandum MI. Charles Fahy, Legal Coun-
sellor of the Department of State, argued that under Article 36 the United
States would he hound only with regard to other States accepting the
same ohligation."
This was the reply of the Legal Adviser ta the State Department to MI. Dulles's
concern. His reolv, that under Article 36 the United States would he bound onlv
with regard to'ither States accepting the same obligation, proves again tha-t
Dulles's concern was whether the United States might he sued hy States that
had not accepted the obligation, and it led directly to the adoption of the
Vandenberg Amendment.
Continuing with Wilcox:92 MILITARYAND PARAMILITARYACTIYITIB
"He suggested [referring to Mr. Fahy, the Legal Adviser], however, that
if additional safeguards were desired it would be possible to insert an
amendment along the lines of the Vandenherg proposal cited ahove. This
suggestion was incorporated in the Report of the Foreign Relations
Committee and was later advanced hy Senator Vandenherg on the Senate
Floor."
Thus. ive wr thlit the Siatc Dcpartmcni'i IxgaI Adviscr undcrstood DuIlci'.;
conccrn in the way 1hai,c bccn dixussinp. Ilc al50 disagrrçil uith Dulles about
thc nced for a rescrvation. lie belicvcd.auitc correcilv. ihat Article12) alrcadv
assured the fullreciprocity Dulles wantei to guarantee: He proposed the iangua&
that resulted in the Vandenberg Amendment only as an "additional safeguard".
It should be noted, parenthetically, that Wilcox himself goes on to propose a
difïerent interpretation of the Vandenberg Amendment. But he does not pretend
that his proposed interpretation is at al1 responsive to Dulles's concerns or
supported in the legislative history. Wilcox is merely trying, like others before
and after him, to impute some sense to the text that would render it neither
destructive of the declaration nor superfluous.
Returning to the legislative history, theSenate Foreign Relations Committee
recommended enactment of the United States declaration acce~tine the Court's
conipul,ory jurisdiction tiirhuurihc Vandcnkrg Aniendment fhisWlis hccause.
lis theSiaie Depariment's Legal Advisrr had concluded. the protection alrcady
îflrirded by thc Statuic of the Court rrnilcreil I>ulles'sronccrn unfounded. Thç
cornmittee Report specificallystdted with regard to Dulles'sconcern that :
"The Committee considered that article 59of the Court Statute removed
al1cause for douht by providing: 'Thedecision of the Court has no binding
force except hetween the parties and in respect of that particular case."
(Senare Report 1835, 79th Congress, 2nd Session (1, p. 316), Ann. 107 to
the United States Counter-Memorial, II, p. 496).
The United States Counter-Memonal at paragraph 273, note 1, Statesthat:
"The United States Senate drafters were aware of the effect of Article 59
. . .and concluded that Article 59 was insufficient Io protect the nghts of
the United States in disputes arising under multilateral conventions."
That says just the opposile of the excerpt from the Senate Foreign Relations
Committee Report that 1jus1 read.
Despite the fact that the Sendte Foreign Relations Committee saw no basis 10,
and thus no needto respond to Dulles'sconcern, it added the following comment
in its report, again from Annex 107to the United States Counter-Mernorial (II):
"Mr. Dulles'sobjection might possibly be provided for hy another suhsection in
the firstDIOV~S~O~ of the resolution." There then followed the orecise laneuaee
ihai uas'lliicr ailupicd ïs the Vandenbcrg Amcndmcni. II was, by lis ou,nir&,
cxprcrsly intendcd IOaciummoddtc Dulles'sconccrn (u,c hlivc xcn uhai ihlit isj
and nothing more.
Senator Vandenherg himselfdescribed hisamendment as an effort to accommo-
date Dulles'sconcern. And heclearlydescribed Dulles'sconcern, as he understood
it, as relating to the possihility that in a "multilateral case" - those are the
words used by Senator Vandenberg, a "multilateral case" - the United States
might be bound to suhmit to the Court's jurisdiction notwithstanding the pre-
sence of other parties that had not accepted the jurisdiction. His statement on
this point, delivered in a colloquy with Senator Thomas, is quite revealing. As ARGUMENT OP MR. REICHLEX 93
reported in the Congres.siono1 Record of I August 1946,p. 10618, Exhibit F of
the exhibits that Nicaragua suhmitted at the outset of these hearings, the
Colloquy hetween Senators Thomas and Vandenberg is as follows:
"Mr Vandenberg:If the Senator will bear with me for a moment longer,
1 will Say that 1 think we are al1in agreement as to the objective we are
seeking: but of course, it is highly important that we should he sure we
have reached the objective. Mr. Dulles, who certainly is one of the gredt
friends of international iurisorudence. as the Senator knows. has raised a
question whether the language of theresolution [that is, the United States
declaration as it stood when it was pending hefore the Senate] might not
involve us in acceotine iurisdiction in a multilateral disoute in which some
one or more natiins had not accepted jurisdiction. It iSmy understanding
that it is the opinion of the Senator from Utah that if we confronted such
a situation we would not he hound to submit to compulsory jurisdiction in
a multilateral case if al1 of the other nations involved in the multilateral
situation had not themselves accepted compulsory jurisdiction. 1sthat so?
Mr Thomasof Utah: That is surely my understanding. 1think reciprocity
is complete. Al1 the parties to the case must stand on exactly the same
foundations, except that we may waive a right." (Infa, p. 317.)
Here again, the concern is, as Senator Thomas responds to Senator Vandenberg,
with full reciprocity among "al1the parties to the case".
Senator Vandenberg then reads into the record the language of his proposed
reservation - the Vandenbere A-endment - and States:"As 1understand the
Scn~tor frim 0i.1h. hc agrccr \iiih nic ihai ihc situ.~ii.iiidefincil in ihis suggcrtcd
rc.;r.rvation13ilie siiiiation ahi;h u<iuldcrisi uiihoui the re>crv~tioii."In oihcr
uoril5. ii~.hdnps nothin$ Senaic>rl'h.>ma,rcjponds "'l'bai 1,[rue . ." (i,z/ro,
o. 3171.
~hi; critical exchange on the Senate floor is not even mentioned or cited in
the United States Counter-Memorial. It is conspicuous by its absence.
That is the entire legislative history of the Vandenberg Amendment. It shows
that the Amendment was conceived, intended and enacted to deal with a specific
situation - a multi-party suit against the United States that included parties
that had not accepted the Court's compulsory jurisdiction. Its sole purpose was
to enable the United States to avoid adjudication in sucb a case. It was, of
course, superfluous - as Senators Vandenberg and Thomas, the Foreign
Relations Committee and the State Department's Legal Adviser al1concluded.
But, out of deference to John Foster Dulles - after all, he had been adviser to
the Department of State in relation to the Dumbarton Oaks proposdls and
adviser to the United States delegation at San Francisco - they agreed to add
the reservation to the United States declaration as an "additional safeguard".
This explains why the text is so confusing. It was drafted to cure a prohlem that
the drafters knew did not exist.
The Courtadjuurnedfrom 4.25 to 4.40 p.m.
There is. as we have seen. absolutelv nothine in the entire leeislative histom
of the events leading to the ekactment if the ~andenberg ~mendment to suggesi,
even remotely, that the reservation might apply to suits in which al1of the parties
have acceoted comoulsorv iurisdictioh Ouik ihe contrarv. The recommendation
in ~ulles's ~emoianduk bas that jurisdiction he com~ulsory over the United
States where al1of the other parties before the Court have likewise accepted it.94 MlLlTARY AND PARAMILITARY ACTIVITIES
Nor is there anything whatsoever in the legislative history to suggest - even
remotely - that the Amendment vas intended to protect the interests of absent
parties, parties other than the United States, that might be affected in some way
by the Court's decision. That never entered into the picture at all.
Now let us look at how the United States in this case interprets the Vanden-
berg Amendment. The United States argues in its Counter-Memorial that the
Amendment was intended to oermit the United States to avoid comnulsorv
jurisdiction even though al1the Parties to the casemay have acceptedjurisdiction
This can be done, the United States Counter-Memorial argues, whenever there
are States. not ~arties to the case. which mav have interestsin the litieation. The
I:nired Sidie, now S.?).ihxi the Vi<nde~ihcrg~n~cttd~~~ ui.~iiintendez io prote21
ihc L'niteJ Sidrer frrrm haiing it, inicrcsts adjudic~ied in ihr. .ibicnc- ol'<>ther
Stiiisr ihdt mixht ha\: intcresis IIIihc Iiti~ation, and io prote21ihc intiresi5 ol
such absent scates. Tliere is no su~~..t for this interoreiation anvwhe,e i~ ~he
leyslative history, as 1 have just shown.
The United States asserts at paragraph 258 of its Counter-Memorial (II) that:
"The drafters concluded that, in cases when al1 affected treaty parties
were not, and could not be brought by the United States, before the Court,
the United States itself should not consent to have its rights and obligations
adjudicated."
But there is no citation to the legislative history for this assertion. And it is
demonstrahly untrue. This was not Dulles's conclusion, as we have seen. Nor
was it the conclusion of Mr. Fahy, the State Department's Legal Adviser.
Nor of the Senate Foreign Relations Committee. Nor of Senator Vandenberg
or Thomas. All considered Dulles's concern unfounded. They supported the
Amendment as nothing more than an additional safeguard, that is, comforting
words.
At paragraph 260, the United States Counter-Memorial (II) States:
"The concern voiced hy MI. Dulles and by various members of the Senate
Foreign Relations Committee that adjudication in the absence of al1afiected
parties posed substantial risks for the United States was shared in the Senate
at large."
Again, there is no citation. And, again, this was not the concern voiced hy Dulles,
or the Senate Foreign Relations Committee, which recommended acceptance of
the declaration withour the Vandenberg Amendment. There was no mention
whatsoever of absent parties hy any of these people. So far as the Senate at large
is concerned, only two Senators commented on the rese~ation, neither of which
referred to absent parties or thought it limited the terms of the declaration in
any way.
At paragraph 270 of the Counter-Memorial (II), the United States contends
that the Vandenberg Amendment
"evolved from a longstanding United States ~ractice with resr>ectto inter-
national arbitration &nerally and wasdrafted i'nresponse to specificconcerns
as to how bilateral aspects of multilateral disputes might come before this
Court.''
The short and fully dispositive answer to this contention is that the legislative
history again is completely devoid of any reference, direct or indirect, to any
such long-standing practice or any such concerns as to the bilateral aspects of ARGUMENT OF MR. RElCllLER 95
multilateral disputes. There is nothing whatsoever tu suggest that Mr. Dulles,
Mr. Fahy, the Senate Foreign Relations Committee or Senator Vandenberg or
Thomas gave this any thought at all.
The "long-standing practice" referred to by the United States, we are told,
consists of the United States practice with respectto bilateral arhitration treaties,
ils experience concerning a decision by the Central American Court of Justice at
the beginning of this century, and a portion of the Senate debate on United
States membership in the Permanent Court of lnternational Justice. None of
these experiences is mentioned anywhere in the legislative history of the
Vandenbere Amendment. And. in anv event. it is hiehlv imorobable that anv of
these expe&nces would have led thé United ~tatesto conclude that it should
avoid international adjudication whenever there are absent parties with a possible
interest in the adiudication. as the United States now claims.
The bilateral tieaties refirred tu by the United States werejust that. Bilateral
treaties. Their purpose was tu resolvebilateral disputes. They werenever intended
as vehicles for resolvine multilateral disputes. Thus it is no surprise. and not at
al1 relevant here. that ïhev would exclude from arhitration ali claims affectinz
the rights or int,krestsof ihird States. By contrast, the International Court ouf
Justice enists tu adjudicate multilateral as well as bilateral disputes. There is no
reason tu presume that the United States would impose the sdme restrictions on
its submission of multilateral disputes to the Court as it would impose in the
altogether different context of bilateral arhitration treaties. Moreover, few if any
of these bilateral arbitration treaties, cited in the Counter-Memorial, ever resulted
in any arhitrations. And the standard clause excludingclaims involving the nghts
of third States was never, as far as we can tell, construed or even applied.
The case before the Central American Court of Justice - involving Nicaragua,
El Salvador and Costa Rica, ironically - is most unlikely tu have motivated
the Senate to enact the Vandenberg Amendment. A multilateral treaty reservation
could not have been a reaction tu the adjudication before that Court for the
simple rcason that even had the United States recognized the jurisdiction of that
Court, and even had it included a similar multilateral treaty reservation, that
reservation would have been without effectin the case cited by the United States.
First, the reservation is only effective if the United States is a party tu the
adjudication. It would not have prevented the Central American Court from
adjudicating those disputes between Nicaragua and Costa Rica and Nicaragua
and El Salvador hecause the United States was no1 a party. Second, the treaty
upon which the United States relied in making its objection and its criticism of
the adjudication by that Court - the Bryan-Chamorro Convention of 5 August
1914 - was in fact a bilateral treaty between the United States and Nicaragua.
It wds not even a multilateral treaty ;su, a~ain, the reservation would have had
no cflect.
fhc ihircl cxïmplc 01 "long5tanding priiitiie" we arc gi\cn 1s the Scnatc's
consi<Ierati<inLI( Unitcd Stdtes mcmhcr<hip in th', Slatute of ihr Perm=nenl
Court of Intcrnliiionill Justice Th13also would ncitIciid2n)onc tu Iiii\e propo\ed
anvthine resembline the Vandenbere Amendment. The United ~tates'reférsat
piiragrliph 263 of thc C,>unrcr-Memoriiil(II) io the Srnatc's con\idrrati<~n CI(;I
pro\,iso that ii<iuldhave pre\,enicd the Ctiuri lrom rendering iirüdiis<~ryiipin-
ion. ;ibscnt United St;itescunb~.nt.in .in\,<lisnuIrin shich thc Cnitcd Statci hsd
claims or interests. Merely tu sta~ethe enample is tu demonstrate its irrelevance.
The Unitcd States was concerned therc and then about its interests being
adjudicated in ifs absence. It was not concerned about suits in which it was a
party, which are the only suits in which thc multilateral treaty reservation could
have any applicability.96 MlLlTARY AND PAPAMILITARY ACTIVITIE?
Thus, neither the legislative history of the Vandenberg Amendment, nor the
so-called "Ionastandina United States ~ractice with reswct to international
arbitraiiim gc&rally" <upporis the intcrpretaiion of Ihc ~mçn<lmcnt positc<lby
rhe Ilniied Siairs in ils Cuunter-Mcrnun;il. 'lbcrc ir no baiii for belie\ing thi~i
the Amendment reflected concern over - as the United States now says -
adjudication of multilateral disputes in the absence of a State whose interests
could be affected - whatever that word means - by the Court's decision.
Furthermore, the interpretation now advanced by the United States would
establish a thoroughly unworkable standard and make the Vandenberg Amend-
ment even more confusing than it already is. Under what circumstances is a
State not a party to a case, deemed "affected" by the decision? Are there cer-
tain kinds of interests that mus1 he "aiiected" for the reservation to apply?
Must these interests be "aiiected" beyond a certain theoretical or de minimis
extent? If so, what is the standard? The Counter-Memorial is as silent as the
text of the reservation itself and leaves these questions unanswered precisely
because they are unanswerable. The United States interpretation of the reser-
vation is unsatisfactory for this reason - its construction of the amendment
into an even more unworkable problem - as well as the kackof foundation for
this interpretation in the legislativehistory or the so-called long-standing United
States nractice.
By contrast, Nicaragua's interpretation - that the Vandenberg Amendment
was intended to provide an additional safeguard to protect the United States
against suits involving States that have no; accepted the Court's compulsory
jurisdiction - has the advantage of being fully supported by the legislative
history, and of avoiding continuing - indeed, unending - problems over the
uncertainty of the reservation and its application to future disputes.
II mav be difficultfor some lawv,~s~t~ read a S~at~ ~ or a r~ ~ ~ ~ion or wo~ ~ ~ ~
of any iind and conclude that they are or should be deemed without meaning.
It innot an easy thing for a lawyer todo. But the legiskativehistory and common
sense tell us that thit is ~reckelv what oueht to-be done in the case of the
Vandenberg Amendment.'lt wa; designeduas an additional safeguard, as a
clarification, to address a problem which the drafters and the enactors of the
provision believed not to exist. And that explains in large degree why it appears
so confused and whv in fact it is surnlusaee.
What ;;erges clearestof al1isthat ihe ande en ~m enedm^ent was conceived,
drafted and enacted to avoid preiudice to the United States. It was not in any
way intended to protect the inierësts of other States, whether present in the cd&
or absent. Yet nowhere in its lengthy discussion of the Amendment does the
United States Counter-Memorial show how the United States could possibly be
prejudiced by adjudication of this case in the absence of El Salvador, Honduras
or Costa Rica. In my discussion of the United States "indispensable parties"
argument, 1showed how the interests of those States would not be prejudiced
by an adjudication of Nicaragua's claims. Nor, in fact, would the United States
be prejudiced in any way by an adjudication in the absence of these States. The
United Statesmakes a very weak attempt to address this problem and to present
two examples of possible prejudice. It suggests first that in the absence of El
Salvador, Honduras and Costa Rica, it may be denied access 10 facts and
documents in their possession (see the Counter-Memorial. II, para. 254). 1have
already addressed this argument. There is no reason to presume that the United
States would not have access to - or, through the Court be able to obtain -
facts and documents in the os sessionof those friendlv States. The United States
;ils0 suggesis.in ihr same pr;igraph 251or thr Co~nier-Slcmori,il (II). ihiii kt
c\?uld he prejudircd hchose 11uould bc bi>unJ b? 4 Jciisi.>n of ihe Couri ,itiilc ARGUMENT OP MR. REICHLER 97
the other Central American States would not. This is a strange argument, indeed.
If the Unitcd States were to prevail in this case, it certainly would not he
prejudiced hy the absence of any other States. On the contrary, it would he
henefited, in that Nicaragua would he hound hy the Judgment as well. If
Nicaragua were to prevail, and ohtain the relief it has requested, the United
States would certainly not be prejudiced hy the fact that El Salvador, Honduras
and Costa Rica would he heyond the scope of and not hound hy the Court's
Judgment. Indeed, it would he to the United States advantage that those States,
which the United States is purportedly trying to assist, remain free of the hinding
effect of the Court's Judgment against the United States. Accordingly, even if
the Vandenherg Amendment were addressed to concerns about absent parties in
disputes under multilateral conventions - which it is not - it could not defeat
jurisdiction here hecause the United States has not shown that it is prejudiced
hy the absence of any other States and in fact it is not and could not be
prejudiced by the absence of any other State.
MI. President, Members of the Court, 1have now completed my presentation.
Before calling upon my distinguished colleague, Professor Brownlie. to de-
monstrate why, in addition to the reasons 1 have discussed, the Vandenherg
Amendment cannot ao~lv .. .icara~ua's claims under eeneral international law.
I wish IO thdnk the C,iurt idr ;illoii~ngme the opporiunii) to sppr.ar hcrorc il
and 10 sraiz .ig.iiithai IIh~s indccd hc~.nxnIioii<>uranil .i privilcgc1i3;i~lJrçs>
this Court.
And now, 1 would like to ask you, Mr. President, to recognize Professor
Brownlie. ARCUMIIIIi OF PROFESSORBROWNLIE 99
international law and a breach of duties under some relevant hilateral treaty, of
the type known as Treaties of Establishment or Treaties of Friendship, Commerce
and Navigation. Indeed, in the Interhandelcase the Court may recall that the
Court tended to treat a treaty-based claim as actually subordinate to a claim
based on general international law, at least in terms of the application of the
local remedies rule (I CJ Reports 1959, pp. 28-29).
The argument of the United States focuses to a great extcnt upon the ambit
of Article 2, paragraph 4, of the United Nations Charter, and il relies upon the
assertion that Nicaragua's claims relate in certain ways to breaches of Article 2,
paragraph 4, in respect of the prohibition of the use or threat of force (II,
Counter-Memorial, para. 304 and paras. 317-319).
At this point in the argument the Counter-Mernorial appears to move in two
directions at once. In the first place, whilst the thinking is somewhat obscure,
the supposition is made that a claim whichcan he founded both upon provisions
of the United Nations Charter (or the OAS Charter) and uoon customarv law
principles outside those instruments is to he classifiedexclus~velyas based'upon
a multilateral treaty. This is a major non sequitur and involves the errors 1have
already indicated.
However, the United States argument also takes another course, by no means
compatible with the first, and thus it is stated that the provisions of the United
Nations Charter constitutccustomaryinternational law "with respectto questions
concerning the lawfulness of the use of force" (II, Counter-Memorial, para. 301
and paras. 313-319). Mr. President, there is no reason ta disagrce with that
assessment and it would be easy to add to the sources cited by the United
States pleading.
But of course the real question is to seewhat the consequences of this position
are. One of the consequences appears ta he that certain parts of the United
Nations Charter, as in the case of other multilateral treaties, are at one and the
same time both a multilateral treaty and a statement of customary or general
international law. Moreover, there are suhstantial grounds for thinking that the
provisions of Article 2, paragraph 4, are declaratory, and such a viewisexprcssed
in a hook once puhlished by myself (Inrernarional Low und the Use ofForceby
Srares, 1963, pp. 279-280). Of course 1hesitate to cite my own work, but there
are Iwo circumstances which perhaps justify citation on this occasion. In the first
place, that work has been cited for various propositions by my distinguished
opponents, and secondly it could hardly be said that that hook was written
apropos this case.
My submission is, Mr. Presidcnt, that the provisions in the Charter relating to
the use of force hv States. whilst the-.mav still rank as urovisions of a treatv for
certain purpoxr, are nom u,iihiii Ihe redlni or generlilintern;iliun;il law and thcir
applicatii)ii\ nui a question cxclusiicly ,iiinrerpreting a multilliteral trelity. Mi~re
csrrçi.illy15th15so. iiil hc ;içceptedthat thc m3Ierial r>ra\iiionsarc decl;ir~tury.
'ln suiport of this position, lihall with your penni;sion, Mr. President, quote
a passage of the well-known essay hy SirGerald Fitzmaurice (Symbolae Ver+,
1958,p. 153). In his words:
"If the treaty reflects (codifies) existing law, then, in applying it, the
parties merely conform to general law obligations already valid for them.
The treaty may state what these obligations are, or define the scope of them,
but it does not therehv alter their character as rules of reneral law to which
the parties would be khligcd to conform even in the albsenceof the treaty.
In so far as it might purport to do so, it would cease merely to codify and
would create - iot (foi reasons already given) new law, but merely new100 MILITARY AND PARAMILITARYACTIVITIES
particular obligations between or vis-à-vis particular parties. In the case of
an. .rovisions of a codificatoni character. it is clear that the treatv ieven
for th? p~rtics)declarcs bui Joo noi crcaic the law 11may (as hciu,ecn the
pxrtics) ircaic a neu hasis uf ribliydiion to ci>nform IO ihc Iaw. but &>er
not on that account become the foinal source of the law, even between the
parties- just as, if, in the domestic field, one man were to enter into a
contract with another, or subscribe to an undertaking to accord that other
certain rights that were in any case due to him under the general Iaw of the
country, the contract or undertaking would still no1constitute the source of
the law thus implemented, though it might be the source of an additional
or reinforced obligation to obey it."(SymbolaeVerzijl. 1958, p. 159.)
Mr. President, no doubt Fitzmaurice was thinking of codifying trcaties in a
general way, but the views expressedapply equally to the case of particular pro-
visions of a declaratory nature, such as the Charter provisions concerning the
use of force by States.
At this point, 1turn to a diferent development of the United States argument
concerning customary law. The premise of the development is the assumption
that the law relating to the use of force is subsumed in the United Nations
Charter and is therefore al1governed by a multilateral treaty. On the basis of
this premise the thesis is then presented that the various claims formulated in
the Application are al1caught by the same trap, because, so it is said, they are
al1encompassed within the concept of the "use of force" (II, Counter-Memorial,
para. 304).
Thus the United States argument states that the claims in relation to the
killing, wounding and kidnapping of citizens, and the infringemcnt of the free-
dom of the high seas, and indeed al1the customary law claims, are mere para-
phrases of claims based upon violation of Article 2, paragraph 4, of the United
Nations Charter.
This assertion is flawed in three quite separate respects.
Firsr:It ignores the normal technical liberty of Applicant States in framing
causes of action in the alternative.
Second: II assumes that al1 the facts referred to in the Application will fall
within the particular concept of the use of force contained in the Charter and
that of course is a large assumption - though that particular question is
formally reserved by Nicaragua at this stage in the proceedings.
Third: îhe areument ienores the obvious but im~ortant fact that. in the
normal practice 2 States and their international tribu8als. perfectly straightfor-
ward cases of State responsibility involviny violenceare formulated or recognized
without any reliance; and ceÏtainly ni exclusive reliance, either up& the
provisions of Article 2, paragraph 4, or upon the concept of the use of force as
such. A perusal of the pleadings in the CorJi Channel case, the UniredSfares
Diplomaficand ConsularSlaffin Tehran case, and many other such cases would
immediatelv show this to be true.
Ir1s;ipprupriaic IO iakc ihc tcry siniple c<iw<> unla\iful infringcmeni of ihc
frecJ<>mul'ilic high >car and the inicrrupiion of pcacrl'ul~iiariiinicconimcrcea.
a consequence ofthe setting of mines. ln ils ~p~lication Nicaragua employed
this cause of action as one which is wellrecognized by professional international
lawyers and wbich is clearly applicable to interference with vessels on the high
seas. Moreover, the cause of action employed is based also on the Judgment of
the Court in the Corfu Channel case. where reference is made to oblieauions
bascd on "certain general and wcll-rccogni7cdpriniiplcr", of which one was 'ihe
principlrul'ihc frccdom ofmarilimc communication" (1 C'.J R6,pori1949, p. 22). ARGUMENT OF PROIESSORBR0WNI.IE 101
In conclusion 1suhmit that the Multilateral Treaty Reservation, if indeed it
has anv relevance or validitv i, this~ ~ ~ ~ - ~ ~ ~ -aoo..cation 10 the claims ~~~-o-~
Nicaragua hased upon customary international law; and, in my further sub-
mission, the claims relatina to the ~rovisions of the United Nations Charter are
for Dresent ourooses also based uvon customarv international law. And in anv
c~rithc ~ln~ted'~tatcrciiunier-~imorial ha. rlparl) recogni~cdthai ihr chartir
pro\,isiiinhin question diiform p:irt of su>t<imar)Iau,.
I \ioiild thmk ,ou. Mr. Presidcnt 2nd Memhcrh oi the Court, 0nL.cmore ior
your patience and courtesy.
Mr. President, il is my pleasure to appear in this case with my French colleague
Professor Alain Pellet, and 1 now ask you to give him the floor. C0NSI:IL DU GOUVERNEMENT DU NICAWGUA
M. PELLET: Monsieur le Président, Messieursde la Cour, seprésenterdevant
vous pour la premièrefois est un honneur insigne, c'estaussi une épreuvetout à
fait redoutable.
L'honneur estsans doute .lus erand encore. et I'évreuveencore ~lusredoutable.
lorsqu'il s'agit d'unr alTaireprCrcntant I'imporiance de cellequi vous est ioumisc
aujoiird'hui. Cc ni'csi donc une raison ~uppl2meni;iircpour vous adresser iiius
mes remerciements pour l'honneur que vous me faitesen acceptantde m'entendre,
et oour vous demander toute votre induleence.
IIm'app~rtientdr r6futer certain, des argument>regroupis. de mani6rt quclquc
peu ariilisicllc J'aillc~r.,. ddnr la quairiCmc partir du ri)nirc-nicnioirc Jrs
Etats-Unis ii~nsacrCea 1.1~r6tcnJuc <inadmirsibilitco linuilnii~irhilii2,.de la
requête.
Lesobjections, qui, selon les Etats-Unis s'opposeraient i l'«admissibilité» -
terme très vague - de la requéte du Nicaragua, sont regroupées en quatre
chapitres.
M. Reichler a répondu aux objections soulevéesdans le chapitre premier et
relatives aux droits des Etats tiers qui, selon les Etats-Unis, seraient irrémédia-
blement anéctésDar l'arrêtaue la Cour sera conduite à rendre dans le nrésent
liiigc M ~ha~es're~rendra1; pdrole demïin pour rCïuir,rI'argumcnl relo; Ir,quel
reul Ic Conscil dc sc:curitédes iiatiiini Unies aurai1 conipetencc pour connaiire
du différend.
II m'incombe de traiter des autres arguments avancésdans cette quatrième
partie du contre-mémoire desEtats-Unis, et dont les principaux sont les sui-
vants:
i) «Principalorgane judiciaire)>des Nations Unies,la Cour, sielleseprononçait
au fond, romprait l'équilibredes compétencesprévuespar la Charte entre
les différentsorganes de l'organisation et, ce faisant, elle reviendrait au
surplus sur des décisionsqui, d'après les Etats-Unis, seraient d'ores et
-.,- -.7~~~--- ,
ii) la Cour s'écarterait des fonctionsproprement judiciaires que lui confère la
Charte. notamment du fait qu'elle ne pourrait avoir une vue exacte et
compl&e des faits pertinents ét que sa-décision ne saurait avoir d'effets
concrets;
iii) en outre, l'intervention de la Cour réduirait à néantleseffortsde négociation
entrepris dans le cadre régionalpar le groupe de Contadora qui devrait
constituer selon les Etats-Unis le cadre exclusif de règlement du différend
qui vous est soumis.
Avant de revenir sur chacun de ces ooints. il m'a Daru nécessaired'abor~~r le
pr<iblcnicgçnéraldc la aj~sticiahiiiié#,du litige.
J'ahorderai donc d'abord le problCmcdc Id <<ju~tisiahilit* Ju litigccn ~6néral
puis je m'inicrroger~i sur la queriion Je \3v111r SI.en rendant son arrci, la Cour
burtiraii Je rcs Ionciions propremciit ludiciaircs ci enfinj'exlimincr.tice que l'on
pourraii dppeler I'exccpii<inde ni.gociaii<~n\p:ir;illCle.: PLAIDOIRIE UR M. PELLET 103
1. LA «JUSTICIABILITÉ)> DU LITIGE
L'énumérationdes orincivaux areumen-s des Etats-Unis fait ressortir leur
caraeiCrc ertrëinement disparate Dans l'argumentation dnCricaine relative i
1.5inadniirrihilit,,(i~ru,l,>ir~r~h~liiev,la requéte,ioi,inent en eflètJes arguments
concernant la recevabilité strido~sensu - en ~articulier celui tiréde cequ. .'ai
appelé le <ndn-Cpuisemeni Jes nC&oiiaii<~np i :ir;illCles~#.d'autres Iirgunicnts
portent plut61 wr Id conipr'tcnccJc 12Cdur , en particulier celui ielon lequel
leJifcrcnd ne scr;iit pas viuridiuiie*: d'autre* argumcnis enfin sont rcl.iiiL ;ila
fonction mêmede la CO&, sa fonction judiciai;, dont il est prétendu que la
requêtedu Nicaragua la priverait.
Cette hétérogénéin t'a du reste probablement pas beaucoup de conséquences
concrètes.
Au-delà de ces différencesde oature, les arguments, regroupésquelque peu
artificiellement dans la quatrième partie du contre-mémoire des Etats-Unis,
présententsans aucun doute des points communs.
Traduisant le souci des Etats-Unis d'échapper à leurs juges - dont ils ont
cependant librement acceptéla juridiction -, ces arguments - qui semblent
tout droit empruntés à un dénombrementeffectuédans un article, que lesconseils
du Nicaraeua. au moins. oeuvent difficilement ienorer. Dubliéau British Year
Xook i>//tilrrll~lli»lu//.<iiven 1967et ciinwcriiI:i<jusiiaabilitc ljl~~lll'ldhi/ilj:
de, diiïirenJs (p. 123-143 J- \iseiiieii Lit i ressusciter la vieilleci <dinequerelle
relative a la &stinction 'entre Ics différends iusticiableset les difirends non
ju~tici~blcr,entre les dilTerend,j~ridique~cl les diili:rend\ politiques.
II serdit i<>uti F.iltpr.'somptucux. de nicip.irt. Je m'apcsantir si.r la p<)rir:c
d'une uucrelle qui a Titico~ler iani d'encre nisi, uuc l'on \oul;tit croire dériasrCe
~uisau'elle conititue la toile de fond de I'areuunentation américaine. il-oaraît
indispensable de rappeler quelques données fondamentales, dans la mesure au
moins ou elles peuvent avoir un intérêp tour la solution du présent litige.
Tous les arguments que j'ai énumérés il y a un instant tournent iutour de
l'idéeque le différend soumis à la haute juridiction par la République du
Nicaragua est trop sérieuxpour que la Cour puisse en connaître. De maximis
non curar praeror ...
En réalité.M. Lautemacht a bien montré. avec son talent et son autorité
habiiu:lr. que I'erprcsjion J'u iirdre juridique.^ (le inot lrgdl dans le iexte IinglIii.
de Sirtut J. en1plo)i:e dm\ la rlaii,e ~icultati~c iIc j~ridiction ~iblig~toirc,<sis
mercl~de,crintive t~rthese <lis~utes.IIs'.-rit ilc, aii'itrc caiCriiries iIe JifirenJ~
qui sont énumérées]and does not contain any additional or restrictive
qualification» (The Function Law in thr Infernalional Commrmily,Clarendon
Press, Oxford, 1933,p. 201 ;voir aussi p. 35).
Cette notion de ((différendsd'ordre iu,idi~u~.~été~r~io,~ée ~ ~~ ~ ~le Statut de
la Cour permanente de Justice internationale sur l'insistancedu baron Descamps,
président du comité des iuristes de 1920. dans un pur souci de continuité
ierminoloeiaue avec les conventions sur le rèelementoacifiaue des différendsde
1899et lk?. Et d'ailleurs cette expression ne retint pas l'aitention des diverses
instances chargéesd'élaborerle Statut de la Cour actuelle.
On est donc conduit à en donner une interprétation «minimaliste» qui semble
du reste entièrementconfortée par la jurispmdence de la Cour.
Dans son arrët du 24 mai 1980,relatif au Personneldiplornariqueer consulaire
des Erats-Unis à Téhérana,rrêtdont j'aurai souvent à faire mention devant vous,
la Cour a rappeléque:
«Les différends juridiques entre Etats souverains ont, par leur nature
méme,toutes chances de surgir dans des contextes politiques et ne repré-104 ACTIVITW MILITAIRESti PARAMILITAIRES
sentent souvent qu'un élémend t 'un différend politiqueplus vaste et existant
de longue date entre les Etats concernés.Nul [ajoute la Cour] n'a cependant
jamai~-~rétenduque parce qu'un difiérendjuridique soumis à la Cour ne
~o~stitue au.un ~ ~ r~~d'un différend ooli,iaue...a Cour ~oit se refuser à
rcsoudrc ddns i'intér~tdes paril-s les questions juridiqu~~qui les upposcni
1.;iCharie ri IcStatut ne liiuriiirsent aucun i<>ndcnicni(dit roujours la Cour1
i ictic conception de, ionciioni ou de la juridicii,~nde la Cour; \ila Cour.
cuntrairrmcnt i juri~prudcncc conitante. acccptaii une telle conception.
il cn resultcrait une rcitriction cunsidCr;iblc et inju,tifi~c de bon rüle cn
matiércde rcelcment pacifiquede.;Jitlërends intcrnlitionaux. >,(('1 J RPCU~I/
La rédaction retenue par la Cour dans cet arrêtrécentmontre bien que votre
haute juridiction n'a aucunement entendu innover, mais qu'elle a agi dans la
droite ligne de sa jurispmdence constante, aussi bien en matière consultative
qu'en matière contentieuse.
Pour s'en tenir a deux exemples, on peut noter d'une part que, reprenant la
.~~iti~~ au.elle avai~ ~ ~ ~ ~dans son av~~ consultatif relatif à la Namibie
(Condqur.nci,.\jurrdiquz pour le3.E<w1.r<Irlupri.>rnci3rotiritiiir,<I<1,4jrrqrrr du Sird
r.11.Vomihic Sud-Oi<r..> ut/ri<.,iin,~i<,n<ih.,lut ri'soh<ri,,n276 IV70, di<Ci.,o<.rl
d,, r6rririri ('J R<vuC.i1/971.o. 27 r1s Cour. dans I'alljirr.du SU/>SIL uI~idt~ntul.
a fait remarquer : .. ,.
«Certes, pour répondre aux questions, la Cour devra établir certains faits
avant de pouvoir en évaluer la portée juridique. Mais une question qui
présente à la fois des aspects de droit et de fait n'en est pas moins une
question juridique au sens de l'article 96, paragraphe 1, de la Charte et de
l'article 65,paragraphe 1, du Statut. » (C.I.J. Recueil 1975, p. 19, par. 17.)
D'autre part, dans l'affaire relative au Droii de pussage sur territoire indien, la
Cour s'est refusée àentreprendre, au stadedes exceptions préliminaires,l'examen
d'une objection que I'lnde avait cru pouvoir tirer du caractère prétendument non
juridique du différend (C.I.J. Recueil 1957,p. 150).
Du reste, il est constant que tant la Cour permanente que la Cour actuelle ont
eu, à de très nombreuses reprises, à connaitre d'affaires éminemment politiques
mettant en jeu des inter6ts considérables.On pourrait citer sans doute d'ailleurs
toute la jurisprudence de la Cour. 11suffit de penser, à cet égard,aux affairesdu
Vapeur Wimbledon, du Détroit de Corfou, du Droit de passage sur territoire
indien, du Sud-Ouest africain, de la Compéienceen matière de pécheries,du
Personnel diplomutiqueet consuluiredes Etais-Unis ù Téhéranb ,ien sûr, et, en ce
qui concerne les avis consultatifs, à ceux concernant l'Union douanièreaustro-
allemande, l'Admissiond'un Etat comme Membre des Nations Unies, Certaines
dipen~es des Nations Unies ou le Sahara occidental, etc. Suivant en cela la
jurisprudence traditionnelle des tribunaux arbitraux - je pense en particulier à
l'affairede I'Alubuma - la Cour, dans aucun de ces cas, n'a refuséd'exercer sa
juridiction au prétexteque le différendqui lui étaitsoumis ou les questions qui
lui étaientposéesétaient d'ordre politique ou que son arrét pourrait avoir une
incidence politique.
Cela constitue bien sûr une position de principe très générale, mais, de cette
position très générale, laCour a tirédes conséquences très concrètesdont deux
au moins doivent être,je crois, soulignées.
En premier lieu, la Cour considère qu'elle n'a point à s'arrêter auxmobiles
qui ont pu inspirer les demandes qui lui sont faites ainsi qu'ellel'a ditdans l'avis
relatif aux Condilionsde l'admissiond'un Eiai commeMembre des Nations Unies(C.I.J. Recueil1948, p. 61). Ainsi, dans l'affairerelative aCamerounseplenrrio-
nul, l'argumentation du Royaume-Uni relative aux motivations qui auraient été
sous-jacëntes à la requête formée par le Cameroun, et que l'onirouve dans la
série C.I.J. Mémoires aux pages 261 à 265et 281à 284, n'apas retenu I'attention
de la Cour. De même, enla présenteespèce, la haute juridiction ne saurait
s'arrêteraux allé-ations - du reste erronées. maisi., reviendrai - du contre-
mCmoireselon Icyucllrs la Kcpubliquc du Nicaragua tenterait dc tenir en échec
des décision\d'ores et déji prises par les iirgïnes <lesNations Cnies ou Jans le
cadre du groupe de Contadora (II[ p. 171et suiv.).
En second lieu, il résultede la jurisprudence de la Cour que si elle ne peut,
bien évidemment,se désintéresserdu contexte politique, économiqueet social
des questions qui lui sont soumises, ce contexte ne peut constituer en lui-même
l'objet du litige ainsi que cela a étéclairement précisépar la Cour permanente
de Justice internationale, notamment dans son arrêtdu 7 juin 1932relatif aux
Zonesfranchesde la Hauie-Savoieel du Paysde Gex (C.P.JI sCrieA/B no46,
p. 162)ou dans son avis consultatif du 23juillet 1926relatif à la Compétencd ee
I'OIT pour réglemenreraccessoiremenlte rruvail personneldu patron (C.P.J.1
sérieBn" 13, p. 23). Mais,à l'inverse,en aucune maniére,lecontexte économique
et social dans lequel se situe le différendne saurait empêcherla Cour de se
nrononcer sur les diErends dont elle est réeulièrementsaisie.
Ainsi, dans une lettre en date du 9 décem%re1979,le Gouvernement de I'lran
avait soutenu devant la Cour, ou plut6t «loin de la Cour»,que
«la soi-disant question des «otages de l'ambassade américaine à Téhéran »
...ne représentpait]qu'un élément marginae lt secondaire d'un prohléme
d'ensembledont ellene saurait êtreétudiée séparémee nttqui englobe entre
autres plus de vingt-cinq ans d'ingérencescontinuelles par les Etats-Unis
dans les affaires intérieuresde I'lra»;
et leGouvernement de I'lran avait par ailleurs,je cite à nouveau sa lettre,
«attir[e] I'attention de la Cour sur les racines profondes et l'essencemême
de la révolutionislamiquede I'lran. révolutionde toute une nation opprimée
contre les opprorcurs et leurs maitres. et doni l'examen des multiples.
rcpercujsions rclr:\e rs\enticllement et directemcnt Je la rouveraineténatio-
nalede l'Iran,>(ordonnance du 15JCirmhre 1979, CI J Rrcitril 1979. P. II.
al. 2 et 4).
Ainsi. dans cette affaire. I'lran invoauait clairement le contexte oour essaver
d'obtenjr que la Cour se refusât à eiaminer les questions juridiques qui -lui
avaient étésoumises par le Gouvernement des Etats-Unis d'Amérique.
En réponse à cettë argumentation, la Cour a considéréj,e cite l'ordonnance
15 décembre 1979, «qu'aucune disposition du Statut ou du Règlement
du
n'envisageque la Cour ne doive pas se saisir d'un aspect d'un difirend pour la
simpleraison que cediflërend comporterait d'autres aspects, siimportants soient-
ilsa (ibid.p. 15,par. 24), et la Cour a soulignéque:
«Si le Gouvernement de I'lran estimait que les activités allégué-dses
Iltais-Uni, rn Iran sont en rapport juridiquer:lri>ïi.cc I'ohjetde 1.1rcqui.te.
illui étaitIiiislhlcde dcvelopper i ic sujet sa propre ïrgunientation devant
la Cour, soit comme moyen de défensedans un contre-mémoire,soit par la
voied'une demandereconventionnelle. )(Personneldiplomaiique erconsulaire
desErars-Unisu TChérana .rrér,C.I.J. Recueil1980, p. 19-20,par. 39.)
Je me permets d'attirer l'attention de MM. les membres de la Cour sur le fait
que cctte dernière remarque implique du reste que, &ansl'esprit de la Cour, ils'agissait, entout état de cause, d'un problème concernant le fond mème du
différend,eten aucune manière lacompétence.
Comme le Gouvernement de I'lran en 1979.celui des Etats-Unis auiourd'hui
tente d'égarer laCour en mettant l'accent sur le contexte politique, économique
et social, dans lequcl, selon lui, sesituerait le différend,contàxla description
duquel ilconsacre une partie presque entièrede son contre-mémoire, la deuxième,
et sur lequel il revient assez longuement dans le chapitre V de la quatrième
partie, pour conclure que les graves problèmesde tous ordres qu'affrontent les
Etats d'Amérique centralesont interdépendants et qu'un prononcéjudiciaire
«would have the inevitable effect of rendering those issues, about which
Nicaragua has agreed to negotiate in the course of the Contadora context,
largely immune to furtber adjustment in the course of those negotiationsn
(Il, p. 175).
La Républiquedu Nicaragua ne méconnait certainement pasl'importance des
facteurs économiaues et sociaux et des ohénomènesd'oooressio..dans les
difficultésrencontréespar les Républiquescentraméricaines;elle éprouvecepen-
dant quelque difficultéà comprendre pourquoi et en quoi la solution juridique
des oioblèÏnessoumis à la Cour oouÏrait constituer d'une manière quelconque
un obstacle au règlement des priblèmes globaux qui en effet se poSent. C&te
argumentation, que les Etats-Unis avaient déjàinvoquée lorsde I'exarncnde
la demande en indication de mesures conservatoires formuléepar le Nicaragua,
a, du reste, été implicitement écartépear la Cour dans son ordonnance du
10mai 1984.
En réalitél,oin de constituerun obstacle aux négociations, la solution juridique
qui résulterade l'arrêtde la Cour constituera un guide tout à fait précieuxpour
les négociateurs - en admettant d'ailleurs quc les problèmes en cause soient
identiques, ce qui est extrèmement discutable, ainsique je tenterai de l'établir
tout à l'heure.
Conformément au dictum célèbrede la Cour dans I'aiiaire desDroirs de
minorirésen flaute-Silésie(écolesminoriraircsj:
«La juridiction de la Cour dépendde la volonté des Parties.La Cour est
toujours compétentedu moment où celles-ciacceptent sa juridiction, car il
n'y a aucun différendque les Etats admis à ester devant la Cour ne puissent
lui soumettre.» (C.P.J.I. sérieA n"15, p. 22.)
Ainïi,12jurisprudcncc Jc I:Cour confirmc plcincmcnt le, vuesqui avaitnl ele
cxprimees JI:$ 1930par \Ir llcrvh I;~uterp~chlJans son cours i I'i\sadr:micJc
droit international :
«En Fait, à moins d'accepter la doctrine que le droit international n'est
capable de réglerque les questions d'importance secondaire, il est difficile
de voir comment l'importance politiquedu problème estliée à la question
de la oossibilitéd'aboutir a son éeard à une décisioniuridiaue. » (({La
théorie' des différendnson justiciables en droit international»,~ecuecdes
coursde l'Académiededroirinrernarionalde La Haye (RCADI), 1930, t. 34,
Sir Hersch Lauterpacht a d'ailleurs reprisle mêmeraisonnement trois ans plus
tard dans son livre, que j'ai citétout à l'heure, The Functionsof LAWin lire
InrernarionalCommunirv.
D;s lors,sila Ji,tinctioii cnirr.Ic, JiITCrcndipoliiiques.d'une part. zlj~ridiqucs.
d'autre pari. a rC~llementun sens en droit positif- ce Jimi iin FUI Joutcr -. PLAIDOIRIE DE M. PELLET 107
celle-ci tient nonà l'objet du litige, mais bien aux méthodesde règlementqui
sont recherchées.C'estle terrain sur lequel se placent les Etats qui, seul,importe.
Comme l'a écrit Charles De Visscher. «il v a un différend.au sens iundiaue
du icrnie. qiur~l un Etai Cn<>ncu ene pr6ieiii<in qui5s hcurlr. sur 1: térrai>ii
droit i uiic r,inicslation iIc 1.1pxJ'iin;iiiirc Eta», CCCIdans ,on litre:l>pctrc
r<:<<,nt<iIIJrml ~r(,c~?Iurtdltl/ilCl,t<rIIII(~~~IU~IM~<leJu.irh.cIPcJ<~nk.1366.
p. 32).
C'est aussice qu'a écritHans Kelsen:
«The legal or non-legal, that is political, character of a dispute does not
depend on its substance, i.e., the suhject matter with respect to which the
parties are in conflict, but on the norms which are to be applied to it. The
dispute is legal if it is to be decided according to noms of positive law; it
is non-legal, i.e. political, if it isto be decided according to other nom.)>
(The Law of the UnitedNations, Stevens, Londres, 1950,p. 478.)
Des auteurs aussi divers que sir Hersch Lauterpacht (The Funclionof Law in
the InfernationalCommunity, préc.,p. 183), que M. Bruns (RCADI, 1937,t. 62,
p. 611), que M. Marten Bos (Lesconditions duprocèsendroitinternatiunalpublic,
Bihliotheca Visseriana, XIX, 1957, p. 59), que M. Charles Rousseau dans le
tome V de son traitéconsacré aux Rapportscon/lictuels (Sirey, 1983, p.254),que
M. Rosenne dans The Law and Practice of the Infernational Court (Sijthoff,
Leyden, 1965,p. 389), ou que Mm' Rosalyn Higgins dans un article publiédans
Internationaland ComparativeLaw Quarterly (~Policy Considerations and the
International Judicial Process», ICLO, 1968, p. 58 et 74), s'accordent sur ces
constatations qu'il n'y a pas de différendpolitique par nature ou de différend
juridique par nature, il y a des litiges que l'on veut réglersur le fondement du
droit, il y a des litiges que l'on ne demande pas à réglersur le fondement des
règlesde droit.
En fait, lorsqu'un Etat accepte, soit à priori, soàtposteriori, qu'un litige ou
une catégoriede litiges soient soumis au droit, il fait de ce litige ou de cette
catégorie delitiges un différendou une catégoriede différendsd'ordrejuridique.
II prend, pourrait-on dire, «le risque du droit» et il ne peut plusà partir de ce
moment-là, se réfugier derrièrele caractère prétendument«politique>) du diffé-
rend nour fuir devant I'a..lication de normes iur.diaues D.run tiers imvartial.
Dans l'affairequi vous est soumise, il ressort clairement, aussi bien de l'exposé
des motifs que des conclusions de la requête,que c'estbien une solutionjuridique
aui est recherchéevar la Ré~ubliauedu ~icararua.
S'appuyant sur des règle; de droit contenues dans les diverses catégoriesde
sources mentionnées à l'article 38 du Statut de la Cour, les différents éléments
des conclusions du Nicaragua coïncident, point par point, avec l'énumération
des différendsd'ordre juridique que fait l'article 36, paragraphe 2, du Statut.
Ceci a d'ailleurs été établp iar le mémoire du Nicaragua aux pages 103 et
suivantes (I), et les Etats-Unis ne l'ont pas contesté; il n'est donc pas utile de
s'yattarder.
Ni l'importance du différendqui oppose les Parties en litigeni lecontexte dans
lequel ce différendse développe nesauraient par conséquent faire obstacleau
règlement, par la Cour, du différendque le Nicaragua lui a soumis.
C'est aubénéfice de cette remaraue très eénérale.àlaauelle me narait conduire
p« inadmissibilit» de la requête.
A cette iin, je regrouperai ces arguments en deux grands thèmes108 ACTIVITÉS MILITAIRES ET PARAMILITAIRES
Dans un premier temps, j'examinerai les arguments selon lesquels l'arrêt que
la Cour est appeléeà rendre serait incompatible avec l'exercice des fonctions
juridiciaires incombant à la Cour et, dans un second temps, je m'attacherai à
établir que les négociations en cours, aussi bien au plan régional que dans le
cadre des Nations Unies, ne s'opposent en aucune manière àce que la Cour se
prononce sur le fond.
J'en viensdonc à la seconde partie de mon exposé.
Elle consisteraàtenter d'établir qu'enrendant son arrêtla Cour exercera des
fonctions proprement judiciaires.
II.EN RENDANT SON ARR~T LA COUR EXERCERADES FONCTIONS PROPREMENT
JUDICIAIRES
Les Etats-Unis consacrent le chapitre IV de la quatrième partie de leur contre-
mémoire(II) àtenter de montrer aue la voie iudiciairee«tDarnature inca~able»
(inherenth &capable) de résoudrédes conflits armésen cours (p. 166.169) et à
plusieurs reprises le contre-mémoire des Etats-Unis revient sur cette idée(p. 67
et suiv. et 156et suiv.).
Il est toutà fait exact. Monsieur le Président..a.e la Cour a le devoir de
conserver son caractère judiciaire. Mais, comme elle I'a rappelédans son arrêt
relatif auCameroun septeniriona (l .I.J. Recueil1963,p. 29)c'est àla Cour elle-
mêmeet non oas aux Dartiesau'il aoo..tient de veillerà I'inté-ritéde la fonction
judiciaire de la Cour. Les Etats-Unis s'étant aventuréssur cette voie malgré cette
mise en garde, la Républiquedu Nicaragua, sans entreprendre de se substituer à
la Cour de quelque manière que ce soit, pense néanmoins qu'elledoit donner
son sentiment sur lesdifférentspointsabordésàcet égarddans lecontre-mémoire.
Parce qu'il s'agiraitd'un conflit arméen cours, il serait inconcevable, selon les
Etats-Unis, que la Cour disposât des éléments de preuve indispensablespour
trancher le différendet, de toute manière, toujours selon les Etats-Unis, l'arrêt
que la Cour est appelée àrendre ne pourrait avoir d'effets pratiques.
En premier lieu donc, le contre-mémoire américainaffirmeque les Parties ne
pourraient fournir à la Cour les éléments depreuve nécessaires à la solution du
litigequi lui est soumis et qui concerne un conflit arméen cours, ceque le contre-
mémoire américain appelle souvent une situation «fluide». Les Etats-Unis
n'appuient leurdémonstration sur aucun texteet sebornent àévoquer, o contrario
d'ailleurs, les arrêtsrendus par la Cour internationale de Justice dans les affaires
relatives au Détroit de CorJou, d'une part, et au Personneldiplomatiqueet
consulairedesEtats-Unisà Téhéran d,'autre part.
En réalitéi,l ressort des développementsdu contre-mémoire(II, p. 166et suiv.)
que c'est moins la nature mêmedu différendqui est en cause que la volontéde
la Partie défenderessed'éclairerpleinement la Cour sur les activités qui luisont
reprochéesqui fait clairement défaut:
«None of the parties to such a conflict can be expected to be prepared
[écriventles Etats-Unis] to disclose to a court potentially probative infor-
mation that it determines that it must strictly control for reasons of national
security.» (II, contre-mémoire, p.166.)
Si, comme leur défensesemble en contenir l'aveu, les Etats-Unis entendent
priver la Cour des élémentsd'appréciationindispensables, celle-cidevra en tirer
les conséquencesqui s'imposent, comme l'y invitel'article 53 de son Statut aux
termes duquel :«Lorsqu'une des parties ne se présente pas,ou s'abstient defaire
valoir ses moyens, l'autre partie peut demander à la Cour de lui adjuger ses
conclusions». PLAIDOIRIE DE M. WLLET 109
Au demeurant, contrairement aux affirmations des Etats-Unis, le précédentdu
Détroit de Corfoumontre bien que, mêmedans des hypothèses où il s'agit d'un
différend concernant un conflit armé,la Cour exerce et complètement
ses fonctions judiciaires. Dans cette affaire, elle a refusé de fonder son arrêt sur
des faits qui ne lui semblaient pas suffisammentétablis; elle a, par exemple,
constaté que «les faits relatés descience personnelle», par l'un des témoins,ne
suffisaientpas«à faire la démonstration que le Gouvernement du Royaume-Uni
[croyait] pouvoir y trouver» (C.I.J.Recueil 1949, p. 14) et elle a refuséaussi de
s'arrêter à certaines nconjectures~ du Gouvernement albanais qui n'étaient
((appuyéessur aucune preuve »(ibid.,p. 15). Au contraire, elle a indiquéque:
«Conformément à l'article 49 du Statut de la Courae[cequi étaitalors]
l'article 54 de son Règlement [devenu l'article621, la Cour a demandé à
l'agent du Royaume-Uni de produire les documents intitulés XCU pour
l'usage de la Cour. Ces documents ne furent pas produits, l'agent arguant
du secret naval, et les témoins s'abstinrent de répondre aux questions
relativesàces documents. Il n'est par conséquentpas possible de connaître
la portéeréellede ces ordres militaires. La Cour ne peut toutefois tirer du
refus de communication de l'ordre en question des conclusions différentes
de celles que l'on peut tirer des faits tels qu'ils se sont effectivement
déroulés.» (Ibid., p. 32.)
C'est donc à une jurisprudence extrêmement nuancéeque s'attache la Cour.
Cette jurisprudence montre clairement que la Cour évalue,dans chaque cas, la
réalitédes faits qui lui sont soumis et n'en tient compte que lorsque ceux-ci lui
paraissent suffisamment établis.
IIest vrai que les Etats-Unis contestent que les circonstances qui avaient donné
lieuà l'arrètdela Cour du 9 avril 1949soient comparables à cellesde la présente
affaire au prétexteque celledu Détroit de Corfouconcernait une situation passée
alors que la requêtedu Nicaragua demande à la Cour de se prononcer sur un
conflit en cours. Cela appelle deux remarques. D'abord, je viens de rappeler que
mêmedans l'affairedu Déiroitde Corfoul'agent du Royaume-Uni a refusé,pour
cause de secret militaire, de remettre la Cour certains élémentsde preuve. La
Cour en a tiréles conséquences.D'autre part, faut-il rappeler que le fait que la
situation dont la Cour est appelée à connaitre dure encore au moment où elle
est saisie n'a jamais empêchécelle-ci de se prononcer sur un différend? Je
reviendrai sur ce point, maisje souhaiterais rappelàrcet égard que laCour n'a
pas jugé par exemple que l'extrême tension qui caractérisaitles relations entre
les Etats-Unis et l'Iran en 1979-1980devait l'empêcherde statuer sur la requête
américaine dans l'affaire relative au Personnel diplomatique et consulaire des
Etats-Unis à TéhéranI.nvoquant le précédentdu Détroitde Coifou, les Etats-
Unis avaient expressémentdemandé àla Cour de se fonder sur des présomptions
(ainterferences of fact and circumstantial eviden») (CI.J Mémoires,plaidoirie
de I'agent des Etats-Unis, p.56-257).
Du reste, ce n'est qu'en présencedes preuves fournies par les Parties que la
Cour pourra déterminers'ilconvient de faire droit ou de ne pas faire droità la
requêtedu Nicaragua. Comme elle l'a remarquédans son ordonnance du 10mai
1984, «la Cour dispose de nombreuses informations sur les faits de la présente
espèce, y compris les déclarations officiellesdes autorités des Etats-Unis»
(CIJ Recueil 1984, p. 182, par. 31). Au surplus contrairement aux allégations
américaines(1,contre-mémoire, p.225), les articles 57 et suivants du Règlement
de la Cour donnent àcelle-cides pouvoirs considérablesen matière d'instruction
et de recherche des preuves. La Cour peut en user autant qu'elle le juge bon et110 ACTIVITÉSMILITAIRES ET PARAMILITAIRES
rien, dans les circonstances de l'espèce, ne peut l'empêched re le faire. La
Républiquedu Nicaragua, pour sa part, collaborera pleinement àcette recherche.
Lesecond obstacle qui, selon les Etats-Unis, s'opposerait à ce que la Cour
s'acquittât, en la présente espèce,des fonctions proprement judiciaires lui
appartenant, tiendrait à l'objet mème de la requêtequi ealleges an ongoing
armed conflict involving the use of armed force contrary to the Charter* (II,
contre-mémoire,p. 166).
Ainsi que ceci ressort des pages 350à 354 du contre-mémoire,qui s'emploient
à développer cette argumentation, celle-ci porte en réalitésur trois problèmes
distincts:
i) Orienté vers le passé, le principe de la res judicai serait, par nature,
inapplicable dans ce que les Etats-Unis appellent des situations «fluides».
ii) Une décision judiciaire nesaurait régler un différend consistant en un
conflit armé.
iii) Et, en l'espèce,cette inadéquation serait d'autant plus évidenteque d'autres
personnes et d'autres groupes sont impliqués,qui ne sont pas parties à la
présenteprocédure.
Je ne reviendrai pas sur ce point, déjàtraité par M. Reichler. En revanche,
j'examinerai successivement les deux autres, c'est-à-dire l'idéeque les arrétsde
la Cour disposent pour l'avenir et non pour le passi et le fait qu'une décision
judiciaire peut régler un différend, même si celui-ci consiste enun conflit
arméouvert.
L'audienceestlevéeù 18 heures NEUVIÈME AUDIENCE PUBLIQUE (IO x 84,10 II)
Présents:[Voiraudience du 8X 84.1
M. PELLET: Monsieur le Président, Messieurs de la Cour, après m'être
emolovéà montrer aue rien ne saurait s'ooooser à la iusticiabilitédu litiee nui
op{oséla ~é~ubli~ué du Nicaragua aux Eks-unis d'Amérique,j'ai abordéhier
en fin d'après-midi la question de savoir si, en se prononçant au fond sur la
requête,li Cour outrepasserait ses fonctions judiciaiÏes.
J'espère avoir établi que l'objection américaine selon laquelle la Cour ne
pourrait disposer dans cette affaire des élémentsde preuve nécessairespour la
trancher étaient dénuée de tout fondement.
Juste avant la fin de l'audience, j'avaisindiquéque la principale raison qui,
selon les Etats-Unis, s'opposeraità un prononcéjudiciaire en la présenteaffaire
tiendrait a ce que la Cour ne pourrait connaître d'un conflit arme en cours
impliquant un usage de la force armée contraire à la Charte.
Laissant de côté le problème des tiers par rapport au présent litigeque
M. Reichler a déjàlargement abordé,j'avais indiqué que,sur cepoint, I'argumen-
talion des Etats-Unis s'articule par ailleurs en deux propositions principales que
je me permets de rappeler.
Premièreproposition: selon les Etats-Unis, le principe de la resjudicata serait
orientévers le passéet par suite serait par nature inapplicable dans les situations
aue les Etats-Unis disent fluides. Seconde o. .osition - cette . .oosition est
plus large que la première -, une juridiction judiciaire ne peut réglerun conflit
arméouvert. Monsieur le Président,j'examinerai successivementl'une et i'autre
de ces propositions et je m'attacheraid'abord a montrer que, contrairement aux
assertions des Etats-Unis, les arrêts de laCour ont précisémentpour vocation
de fixer les droits des parties pour l'avenir.
a) Les arrét.de la Cour, donc,ontpour vocarionde/ixer les droits
desparties Ùl'avenir
D'une manière eénérale.l'ensemble de I'areumentation des Etats-Unis sous-
la Cour sera-%incapable de se prononcer sur une situation en évolution,su; une
situation fluide.
II est fort douteux que la fonction judiciaire, même enadmettant qu'elle est
dominéepar le principe de la resjudicata, soit, comme l'écrivent lesEtats-Unis,
«Dar nature rétrosoective))(inherentlvretro.~~ective(II. contre-mémoire.o. 167):
o; pciii penser au i,c>niriqiic le. siiu.iiii>n;so~i1i1cr.:ri.<~luencii ioiii ,ii\~cpiihl~r
,le iti.,ngcr cnci>rcci qiie I'.)hjcimCnd'un prononci: juilici;iire est J'c\raycr Jc
Slonncr l'~%~~Iuil ~1 cil ia!u.'a,de I'<lr~e~itc(r..cI.i r:i.initlii. le lais~cr:~J~e c6tc
ce dkhat, tout à fait fondamental d'ailleurs, mais qui relève&ns doute trop de
la philosophie du droit.
Quoi qu'il en soit, c'est,au contraire, lorsqu'une situationest fixne varietur,
lorsqu'il est impossible de rien changer à cette situation, qu'un règlement
judiciaire devient impraticable. Dans l'affaire relativeau Cameroun.septenrrional,
dont nos contradicteurs font grand cas, c'est précisémentparce qu'il était
impossible de changer quoi que ce soit à la situation en cause et parce que ledemandeur, la Républiquedu Cameroun, n'attendait d'ailleursaucune décision
de la Cour, au moins aucune décision susceptibled'application, que la haute
juridiction a refuséde se prononcer (voir CIJ Recueil1963, p. 32 et suiv.).
A l'inverse, la facultépour la Cour de rendre des arrêts déclaratoires montre,
sans aucune équivoque, que ces décisionssont bien tournéesvers l'avenir. Ainsi
par exemple, lorsqu'elle a été appelée à interpréter son arrêt no7, la Cour
permanente a préciséque cet arrêt
«est de la nature d'un iueement déclaratoirequi. selon son idée.est destiné
, u
;ihlrt rtconn:iitre une situaticin JI. Jroii une fois pour IUJII.~et a\ec eITct
ohligati~irernlrc Io parties. en sorte que la ~itu.ilionjiiridiqur 3insi fixr'ene
puis% plus êtremise endiscussion pour cequi est des conséquencesjuridiques
qui en découlent» (Inrerprérution des arrétsno'7 et 8 (usine de Chorzbiv),
C.P.J.I. sérieA nD13, p. 20).
Ceci simplement pour montrer que les arrêtsde la Cour sont décidémentbien
tournésvers l'avenir. Celaétantdit, ce n'est pas du tout, Monsieur le Président,
un i>eument déclaratoire aue la ~énubliaue-du Nicaraeua demande à la Cour
de rendrc en la prcsentt eïpCte. Dan5 lei conclusions de s;i rcquéie.le Nicaragua
prit tout j. fait clairement la Cour dc se prononcer sur le fondement du droit,
iur le raractCrt ill~iitcdes .~<iivlicsau'cllc atirihut :iu\ Etats-Cnis; ni car au^
demande à la Cour de dire et jugeique ceux-ci ont le devoir d'~mettre fin; et
par ailleurs il demande à la Cour de fixer le montant de l'indemnitéque les
Etats-Unis sont dans l'obligation de payer à titre de réparation. On est évidem-
~ ~ ~ ~~~~-~ ~ ~~n~iu,e"~ntdéclaratoire.
Ces conclusions sont de la mëme nature que celles qui ont été soumisespar
les parties dans de très nombreusesaffairesportées devant votre haute juridiction
concernant des situations «fluides». des situations «en cours». Les affaires
relatives au Droit de passage sur territoire indien,au Sud-Ouest africainou au
Personnel diplornarique et consulaire desEtats-Unis u Téhérun constituent des
exemvles tout à fait~vrobants d'arrètsqui ont statué sur des situations en cours.
anst to esscas, comme l'a écritM. ~osenne, à propos de certains d'entre eux,
dansson ouvrage The Luw undPracriceofrhe Inter~rarionoC lourt(préc.,p. 512):
«The disputes were relatively fluid in the sense that they were in the
course of historical evolution when the proceedings were instituted. The
proceedings were designed as a measure to prevent further evolution and
remove a source of discord between the two States. »
On peut remarquer égalementque, dans de telles occurrences, la Cour tient
fréquemment compte de l'évolution de la situation non seulement jusqu'au
moment où elle a étésaisie, mais aussi jusqu'au jour mêmedu jugement; ceci
apparait très clairement dans un arrêtqui ne peut laisser indifférent unjuriste
français, l'arrêtdu 20 décembre 1974, relatif aux Essui,~nucléuires.Dans cette
affaire la Cour a dit:
«Etant donné l'objet de la demande, a savoir empécher de nouveaux
essais, la Cour a l'obligation de tenir compte de tout fait intéressant le
comportement du défendeur survenu depuis le dép6t de la requête.))
(CI.J. Recueil1974, p. 263, par. 31.)
Et le même procédé ean fait été employé par la Cour dans l'affaire relative
au Droit depassugesur terriroireindien(C.I.J. Recueil1960, p. 29).
Non seulement la Cour peut se prononcer sur des situations fluides mais il
convient de considérer que l'arrêtque la Cour est appelée à rendre devra et
pourra êtreexécutépar les parties. PLAlOOlRl eB M. PELLET 113
b) L'arrêtde la Courpourra ei devraêtreexécuté par lesparties
Poussant olus loin leur raisonnement. les Etats-Unis affirment que l'arrêt que
la Cour est appelée à rendre serait insusceptible d'exécutiondu fait qu'il aurait
pour objet de mettre fin à un conflit armé(II, contre-mémoire, p. 167).
lndéüendamment de la question de savoir si la connaissance de tels conflits
est réservéenar la Charte a un autre oreane des Nations Unies - ooint aue
j'examinerai toutà i'heure etsur lequelreviendra M. Chayes -, indépendamment
donc de ce problèmeque ie laissepour l'instant de côté,il convient liminairement
de remara& aue l'idééselon iaauelle les conflits armés sont exclus de la
conlpcteiiccnifiuni!iiulrrrucdc la Cour n'crtJJmdlS,>ciiib~c-i-i\.;ini :et lnii3ni.
venue i I'espritJe quii<~nquc,ci en [<>utar pas Jc noiiibrciix I:iats qui. coninic
Ic Sal\aJor ~L?I,IUT~'~:U+sI. or~s(cOU ,>ntaï\iirii leur JZcl.irati.in J'aiccpiiiiion
tic la~uridlriion <>hligsr<~idIdCour d'uiir.rescrvr.ioniern:ini (Je cite la rcscnc
d'LI S;il\sdor, ni.iis J'üuirc, pi>urrliicntCirccitCcsJanr Ic iis:n,)ie
«les différendsse rapportant à des faits ou des situations d'hostilité, de
conflit armé, des actes de légitime défense individuelsou collectifs, une
résistanceà l'agression, le respect des obligations imposéespar des orga-
nismes internationaux et tout acte, mesure ou situation semblable ou
connexe, dans lesquels El Salvador a pu, est ou risque d'êtreimpliqué a
quelque moment que ce soit» (C.I.J. Annuaire 1982-1983,p. 87, point iv)).
Des pays comme l'Inde, Israël, le Soudan et, d'une manière un peu plus
restrictive, le Kenya, le Malawi, Malte et Maurice ont fait des déclarations tout
à fait comoarables. et cela uniauement oour les déclarationsen vin- .r. on en
trouverait bien d'autres dans le passé.On se demande pourquoi cespays auraient
ressenti la nécesside réserverla compétence de laCour en cas de conflits armés,
si, de toute manière, la Cour n'avait pas été compétente pour se prononcer sur
de tels conflits.
Il est exact que les arrêts rendus par la Cour doivent être susceptibles
d'exécution,et que, si cette condition n'est pas remplie, la haute juridiction
sortirait de ses fonctions proprement judiciaires, en se prononçant au fond. C'est
ce principe, que le Nicaragua ne conteste pas, qui explique la décisionde la Cour
dans I'affairedu Cumerounseptentrional.
Mais, comme j'ai déjà eu l'occasionde l'indiquer, la requêteformulée par la
Républiquedu Nicaragua présentedes caractères tout différentsde cellequ'avait
formulée le Cameroun en 1963. Loin d'être((éloignéesdes réalités)),pour
reprendre une expression de la Cour (C.I.J. Recueil 1963, p. 33), les questions
aujourd'hui posées à la Cour sont totalement ancréesdans le réel;loin d'avoir
pour seul objet, je citeà nouveau la Cour, «une constatation du manquement
au droit», la demande du Nicaragua viseau contraire a dissiperntoute incertitude
dans [les]relations juridiques» (ibid, p. 34) entre les Parties.
Cela n'a aucunrapport avec l'affaireque la haute juridiction a tranchéeen 1963.
II est cependant exact aussi qu'il n'appartient pas à la Cour d'opérer «un
choix entre les diverses voies)>par lesquellesil peut êtremis àila situation qui
est àl'origine du litige, car
«ces voies sont conditionnéespar des élémentsde fait et par des possibilités
que, dans une très largemesure, les parties sont seules en situation d'appré-
cier. Un choix entre elles ne pourrait être fondé sur des considérations
juridiques, mais seulement sur des considérations de nature pratique ou
d'opportunité politique; il ne rentre pas dans la fonction judiciaire de la
Cour d'effectuerce choix» (Haya de la Torre, CIJ Recueil 1951,p. 79). Et de même aussi,il est exact que:
<Lorsque la Cour tranche un différendau fond, l'une ou l'autre partie
ou les deux parties sont en fait à mêmede prendre des mesures visant le
oasséou l'avenir ou de ne vas en orendre. de sorte au.il v,a soit exécution
de l'arrêtde la Cour, soit refus d'exécuti0n.s (Cameroun seprenirional,
C.I.J. Recueil1963, p. 37-38.)
Peut-êtreque les Etats-Unis n'ont pas l'intention de donner suiteà l'arrètque
rendra la Cour, mais il est clair en la présente espècequ'il ne dépendque de
I'Etat défendeurde donner suite aux demandes qui font i'objet des conclusions
du Nicaragua et dont la Cour est appelée à apprécierle bien-fondé.
Du reste, la conséquence logiquede la jurisprudence que j'ai citéeil y a un
instant est, assurément,que par lui-mime un arr2t de la Cour ne règlepas - et
n'est pas destinéà régler - toutes les difficultésentre les parties. C'eàtelles
qu'il appartient de mettre en ocuvre de bonne foi le dispositif, éventuellement
avec l'aide de tiers, et, si des tiers interviennent, ceux-ci doivent dans cette tâche
tenir compte de la chose jugée,comme l'a fait remarquer M. Rosenne (The Law
of Practiceofrhe InternationalCouri, préc.,p. 153), s'agissant, par exemple, du
Conseil de sécurité.
Cela fait du reste justice de l'idée,avancéepar les Etats-Unis, selon laquelle la
Cour devrait s'abstenir de se prononcer car:
«The Court could not exercise the continuous supervision and direction
that would be required to assist the Parties in giving effect to such a
judgment. Nor does the Court command the personnel, financial and other
resources that would be necessary.~ (II, contre-mémoire,p. 168.)
Ce n'est oas a la Cour au'il ao..rtient d'exercer cette suoewision et cette
direction mémesi elle peut, assurément,êtresaisie de certaine; conséquencesde
l'inexécutionde ses arrêtsou de certaines difficultésdans leur mise en Œuvre.
Et quoi qu'il en soit, en tout état de cause, ces difficultéséventuelles ne
sauraient empécher laCour de se prononcer, comme ceci a été clairement indiqué
par la haute juridiction dans l'affaire relative au Droir de passagsur terriloire
indien. En effet, dans cette affaire, la Cour a admis que si satisfaction était
donnéeau Portugal, de délicatesquestions d'application pourraient surgir. Mais
la Cour a ajouté,et c'est ceci qui importe, qu'a ses yeux cela«ne constituait pas
un motif suffisantpour conclure a l'impossibilitéd'une reconnaissancejudiciaire
du droit qui avait étéinvoqué par le Portugal sur la base de l'article 38,
paragraphe 1, du Statut (CIJ Recueil1960, p. 37).
A plus forte raison bien sûr, comme la Cour permanente de Justice internatio-
nale l'a déclarédans l'affaire du Vapeur Wimbledon,et comme elle l'a rappelé
dans celle relative à l'Usinede Chorzdira, la Cour ne peut ni ne doit envisager
l'éventualitéque l'arrêt resteraitinexécutéaprès l'expiration du délaifixépour
son exécution » (C.P.J.I. sérieA no17, p. 63, et série A no1, p. 32). II y a,
Monsieur le Président. Messieursde la Cour. décidément.une très grande -
différence,que les Etats-Unis ne semblent pas voir, ou se refusent à voir, entre
un arrêtqui n'est pas susceptible d'exécution (Camerounseprenirional), et un
arrêtqui n'est pas~exécutéc ,e qui pourrait advenir par exeÏmpledu fait de la
mauvaise volonté des Parties. Dans ce dernier cas. la Cour. bien entendu. ne
peut envisager l'hypothèseet doit rendre son jugement.
A vrai dire, la discussion amorcéepar les Etats-Unis porte largement à îaux.
II n'est pas demandé a proprement parler à la Cour demettre fin à un conflit
armé par le seul pouvoir des mots. Ce qui est demandé à la Cour c'est,
conformément aux compétencesqu'elle tient de son Statut, de determiner lesdroits (the righis) respectifs des Parties, la Républiquedu Nicaragua et les Etats-
Unis, et c'està ces Parties qu'il appartiendra ensuite d'en tirer les conséquences,
chacune en ce qui la concerne.
La Cour a maintes fois rappeléqu'elle bénéficiaid t'une certaine discrétion
oour donner suite ou ne "as donner suite a une demande d'avis consultatif.
éncorefaut-il remarquer ql'elle a toujours usé avecune grande modération de
cette compétence discrétionnairequ'elle déduitdes termes de l'article 65 de son
Statut. Mais les articles 36 et 38. qui concernent la compétence contentieuse -
en tout cas l'article 36-, n'autori'sentcertainement pas'à transposer en matière
contentieuse l'interprétation que la rédaction de l'article 65 impose en matière
consultative. Comme elle l'a rappelé dans les affaires relatives aux Essuis
nucléoires ,a Cour n'a pas «la facultéde choisir parmi les affaires qui lui sont
soumises cellesqui lui paraissent se prêter à une dénsion et de refuser de statuer
sur les autres» (C.I.J. Recueil 1974,p. 271, par. 57).
Ce n'est vas en donnant suite à la reauêtede la Réoubliauedu Nicaraeua a-.
la Cour porterait atteinte i l'intégritéJe SJ ïonction judic131rcsur Iaquellc les
Etai>-Unis vcilleni avçc tani de jalousic C'est bien au coniraire cn s') relusani
Cc Cai,ant. en cfit. la Cour "riverai1 ICFPartics de la pos~ibil~trd 'e r6Jçr leur
différendsur le fondemcnt de'rèelesiuridiaues déeaeéesharun orrane imoartial
à la suite d'un débatcontradicïoir~ On 2étonne d.ailléursque Cs ~tati-unis,
alors qu'ils disent admettre l'autoritéet la pertinence du droit international dans
le orésentliti-. (II. contre-mémoire. D. 168). considèrentaue la Cour internatio-
BJ~C Je Jurtice doni IJ mission. :iu.xterme, JI. I'ariicl~36, p.ir.igr:iphr1,Jc ~r>ii
Siiiiui, csi <<Jcrr'glcr~.onluriiicmeniJU droit inicrnati.inli12%Jill2rcnJ.: qui lui
.<>ntsouniis>s.iin s';tonne Jis~is-ie. que le, 1:tats-Lnir c~~nsidercnqt ue 1.1Cour
ne constitue oas un for aoorooril
l'espère a;oir établi, ~onskur le Président,que la fonction judiciaire de la
Cour, ne serait menacéeque par un refus de sa part de se prononcer.
111. EXISTENC DEE N~!GOC~AT~ONS PARALLÈLES NE FAIT PAS ORSTACLE
A LA JURIDICTION DE LA COUR
l'en viens maintenant à la troisième et dernière partie de mon exposé,qui
concerne l'existencede néeo-i~tions oaralléleset le ooint de savoir si l'existence
Jc nr:gociati<insp~rallr:lcsfait ohitaclc;iIcijuriilicii<~nde la Cour.
Afirmcr c<>mmcle font Ics Eitr-ilnis. tout li~ long Jc la quatrir:mc partie de
Icur ctintrc-m>m<>ircq .ue IliCiiur. parcc qu'tllc est le principal srgünr ludi~imre
Je, Naiions Unie,. d,>ii\'abstenir de statuer ur la rcqi.éiedu Sii~rilguli. relcvc
d'une conception iciii.i iaii s~ngulir:rcci de la ni>ti.in J'orglinc des Saiis~n\
Unies et de cellede fonction judiciaire.
Toute interorétation de la Charte et du Statut de la Cour. oui. aux termes de
l'article 92de la Charte, en fait partie intégrante,doit tenir compte des buts et
principes de l'organisation qui sont énuméréd sans lesarticles I et 2 de la Charte.
11se déduiten Üarticulier de cette considération élémentaireque toute mesure
pi>u\,x~tcnnirihiicr au maintien Je Ilipaix CI dc IlisL:curitéintcrnaiioniiles. qui
ot le hui premier Jcs Nliiions Unicr aux icrnic.;du plirsgr~phc I dc l'article 1.
touie mrwrc pou\,ant cuntribuçr 6 cela. donc, br:nr:ficicd'une prciomption
de licéité.
Comme l'a fait remarquer M. Lachs dans l'opinion individuellequ'il a jointe
à l'arrêt rendupar la Cour dans l'affaire relative au Pluteaucuniinentalde la
mer Egée:
«Le caractère souvent inhabituel des problèmesque doivent aiïronter les
Etats de nos jours oblige à utiliser le plus d'instruments età se réserverle nlus de voies nossibles pour résoudre les questions complexes et souvent
multidimensionnelles qii se posent. II y a souvent avantage à utiliser
plusieurs méthodes, ensembleou successivement.IIne faut donc voir aucune
incompatibilité entre les divers instniments et tribunaux dont les Etats
peuvent user, car ilssecomplètentlesuns lesautres. Malgré l'interdépendance
des problèmes,on peut isoler certains d'entre eux, leur donner la prioritéet
essayer de les soumettre &.un for distinct.))(CIJ Recueil1978, p. 52.)
Ces formules reflètentdu reste lajurisprudence constante de la Cour qui, dans
le mèmearrêt,a rappeléque:
<<1.anCgOO"Iit>n et le rCglcnicnijudiciaire sont l'uneri l'autrecites comme
nioycn, de rr:glcnicntpaiiiiquc des diilërcnJ, i l'article 33 de la Charte Jc,
Nation. Unics L3 .uri.~rudcncc rlcla Cour fournit di\,er>e\cmplcs J'aifiircs
ddnr Ic\queiiei ncgociatilins ri rcgicmcni jud1ci;iirc SC ion1 poursuivis en
mCmcicnips. Plusieuri afi~rcs, doni la plus rcccntc csi ccllc du Proci.r <II.J
~,r~junnar.(le cacrre nukirionuis (C 1J. Rerzt~il197.3.p 347 ). Iitiesicni qu'il
veut êtremisufin ~ h~c- instance iudiciaire lorsaue de telles née-ciations
ah~~uiisscnt;iun rtglemcnt [Tel ;et? aussi Iccas dans l'afliirc duPer.sonnrl
~Iipluni<irryrrirn>nrrtlai~/c,rrois- Unrs<iEhGro~r 1I'arconsequeni 1icrniinc
la Courl.le fait aue des néeociationsse~oursuivent activement vendant la
procédure actuellene coristitue pas, en droit, un obstacle a l'exercicepar la
Cour de sa fonction judiciaire.» (C.I.J. Recueil1978, p. 12,par. 29.)
De mêmeaussi, évoquant, dans l'affaire relativeau Personneldiplornorique et
consulairedesEtuts-Unisà Tiheran, la créationd'une commission qui avait été
chargéed'établir lesfaits, la Cour a estiméque:
La coii~tituiiun dc IJ comiiii,,i,in par lc Sccri.iaire gi.ni;I~CCi'aciord
Je, ilcur IltaIr ne vdur:iilcil aucune FdqsiiCtrcciin\idr:rr:Ccoinme incoliipd-
tible en elle-mêmeavec la poursuite d'une procédure parallèledevant la
Cour. La néeociation.I'enauête.la médiation.la conciliation. I'arbiiraee et
le règlement;udiciairé soni énumérés ensembl e l'article 33 de la charte
comme moyens de règlement pacifique des différends.» (C.I.J. Recueil1980,
p. 23,par. 43.)
C'est aussi cette idéeque traduit Sibert, en termes plus techniques, lorsqu'il
écritdans son Truitédedroii iniernaiionolpublic:
«Si la concurrence se produit entre un tribunal arbitral et un organisme
~olitique déiàsaisi. la seule conclusion iuridiauement acceptable est que la
iitispekdan& ne doive pas jouer; en elfét.les deux organismes sont d'ordre
différent: l'un, le tribunal arbitral, est un juge librement choisi maisdont la
décisionconstate et ordonne; l'autre est normalement un conciliateur qui
suggère et recommande une solution transactionnelle.» (Vol. Il, 1951,
p. 443.)
En dépitde la position de principe reflétée par la jurispmdence constante de
la Cour, les Etats-Unis d'Amérique invoquentune sorte de double exccption de
litispendance, qui ne veut pas dire son nom: selon eux, la Cour devrait renoncer
à se prononcer, au prétexteque l'arrêtqu'elle estappeléeà rendre menacerait le
succèsdes négociationsengagéesdans le cadre du groupe de Contadora, d'une
part, et tiendrait en échec Les décisions prises au sein des Nations Unies,
d'autre part. PLAIDOIRIE DE M. PELLET 117
a) Lesnégociarionm s enéesdanslecadredu processus d eonladora
Le dernier chapitre du contre-mémoire desEtats-Unis développeune véritable
exception d'irrecevabilité. tide ce que l'on peut anpeler le non-énuisementdes
négociationsdiplomatiques dans lecadre.;égional.
De l'aveu même desEtats-Unis, ce cadre est constitué par le ((processusde
Contadora)) dont le mémoire de la République du Nicaragua a donné une
description(1,p. 418et suiv.)Or, les Etats-Unis ne participent pàceprocessus.
Même enprenant pour argent comptant l'assurance donnée parles Etats-Unis
selon laquelle ceux-ci «ont appuyé le processus de Contadora dès l'origine))
(II. contre-mémiiirc,p. 17U1. nncFUI i<imprcndreen quoi cet appui pernieiirsii
aux Elais-Unis de s'abriter derricre des n~gociation~menéesentre les Etais tiers.
ilani un foruni auquel ils nc participcnt p~ret de conicslcr. pour ci'tlc r3lron.
la compétencede la Cour dans un litige qui les oppose au Nicaragua.
Parce que la résolution530du Conseil de sécuritéappuie les efforts du groupe
de Contadora et a étéadoptée,le 19 mai 1983, à l'unanimité,faut-il en déduire
que la Cour serait incompétente pour connaitre d'un différendopposant l'un
quelconque des membres du groupe de Contadora àl'un quelconquedes membres
du Conseil de sécurité?Faut-il admettre que telle serait égalementla situation
de l'ensembledes Etats membres de l'Assembléegénérale desNations Unies au
prétexteque celle-cia adopté,par consensus, le II novembre 1983, larésolution
38/10 qui, elle aussi, constitue un encouragement pour les efforts du groupe de
Contadora? De telles conséquencessont évidemmentdéraisonnables; de même
qu'il est déraisonnable de prétendre que des négociations entre un Etat
quelconque et un participant au processus de Contadora pourraient priver la
Cour de sa compétencepour connaître d'un différend surgissantentre les Etats
concernés.
A cet égard,il convient d'ailleurs d'ouvrir une parenthèse: le contre-mémoire
américain fait allusion(1, p. 71) aux discussions menéesdepuis le mois de juin
1984 entre le Nicaragua et les Etats-Unis. II faut souligner que ka visite à
Managua du secrétaired'Etat américain M. Shultz a eu lieu le 1" juin 1984,
c'est-à-dire trois semainesaprès qu'est intervenue l'ordonnance de la Cour en
indication de mesures consekatoires dans la présente affaireCe fait, dans lequel
il ne faut certainement pas voir une simple coïncidence chronologique, suffità
montrer de manière tout à fait claire que règlement judiciaire ei négociations
diplomatiques, loin de s'exclure, seconfortent et se fortifient mutuellement.
En tout étatde cause, ces contacts diplomatiques n'ont pas Faitdes Etats-Unis
une partie au processus de Contadora, processus dont on ne voit pas à quel titre
il pourrait avoir une quelconque incidence procéduraledans le présentlitige.
C'est donc uniquement dans le souci de ne laisser dans l'ombre aucun des
arguments avancéspar les Etats-Unis à l'encontre de la recevabilitéde la requête,
que je m'interrogerai sur l'exception tirée des négociatioparallèles menéesau
sein du croupe de Contadora.
Je me suis attaché,dans la partie introductive de mon exposé, à montrer que
le fait que le litigejuridique souàila Cour se situât dans un contexte politique,
économique et social vaste ne portait aucunement atteinte à la possibilité
pour la Cour de se prononcer sur la requête.II n'y a donc pas lieu de revenir ici
sur les longs développements consacréspar le contre-mémoire à cet aspect de la
question, quelles que soient par ailleurs les réservesqu'appelle, de la part de la
Républiquedu Nicaragua, la présentation du processus de Contadora faite par
les Etats-Unis.
En admettant, pour les seuls besoins de la démonstration, que l'existencedu
groupe de Contadora interfère avec la présenteprocédure et a un impact118 ACT~V~ MILITAIRES ET PARAMILITAIRES
quelconque dans celle-ci, quodnon, il resteà s'interroger sur deux problèmes
soulevéspar les Etats-Unis:
i) L'appui donné par les Etats de la régiond'une part, et par la communauté
internationale d'autre part, au processus de Contadora, fait-il obstacleà ce que
la Cour exerce sajuridiction dans la présente anàire?
ii) Certaines dispositions de traitésen vigueur entre lesParties et, en particulier,
la Charte des Nations Unies et celle de l'organisation des Etats américains,
peuvent-elles constituer un tel obstacle?
i) L'appuidonnéauprocessus de Conradorapar lu Communauré inrernaiionalene
fair pasobsracleà i'eserciceparla Courdesajuridiction
Rappelant la rédaction très compréhensive de l'article 36, paragraphe 1, de
son Statut - remise à une nuance prèsdans le Statut de la Cour actuelle -. la
Cour a rappeiéque le Principe posépar cette disposition
<ne saurait étre tenu en échecque dans les cas exceptionnels où le différend
que des Etats voudraient soumettre a la Cour rentrerait dans la compétence
exclusive, réservéà un autre organe)) (Droitsde minoritésen Haure-Silésie
(écolesminoritaires),urrét no12. 1928. C.P.J.I. sérieA n"15, p. 23).
Dans I'alfaire relativà I'lnterprétariondu srarutdu territoire de Memel, qui
prévoyait à la fois un recours possible au Conseil de la Sociétdes Nations et la
saisine de la Cour, celle-ci a estiméque, en dépitde la rédaction ambiguë de
l'article 17de la convention relative au statut de Memel, l'examen préalabled'un
différendrelatif au statut de Memel par le Conseil ne s'imposait nullement. Ni
le fait que la Cour permanente n'étaitpas un organe de la Société desNations
ni le fait aue dans les affaires relatives aux écolesminoritaires et au statut de
\lemcl 1.Cour dwii éiCs;iisieFur le londcmcnt du paragraphe I de I'ariislc 36
de son Siitiui ne diminuent en rien la portéeJe la constailiioii ire, génCralcJe
la Cour selon laquelle:
1(S'il est possiblede faire de la procéduredevant le Conseil une condition
préalable au recours a la Cour, il est cependant nécessaireque l'intention
des parties contractantes d'en faire pareillecondition soitclairement étab»ie.
(C P.J.I. sériAIE no47,p. 248.)
Autrement dit, le parallélismedes compétences estla règle,la prééminencedu
mode de règlementpolitique sur le mode de règlementjudiciaire est l'exception
et doit étreexpressémentprévue.
Or, en I'especc,on ne saurait parler de parties contractantes a un traitépuisque
le processus de Contadora n'a été institué par aucun traitéet puisque, de toute
maniére,ni lesmembres du groupe de Contadora eux-mémesni les organes des
Nations Unies n'ont iamais considéréaue ce nrocessus rése enta in caractère
exclusifcomme mécanismeappropriédi règlementpacifique des litiges nésde la
situation en Amérique centrale. On peut d'ailleurs remarquer au surplus que
quand bien mémeces organes et ces Etats auraient affirméque le groupe de
Contadora jouissait à cet égard d'une compétenceexclusive, cette affirmation
n'aurait pu constituer et ne constituerait pas une décisionjuridiquement obliga-
toire. Quoi qu'il en soit, ils ne l'ont pas fait, ce qui eiit d'aillcontraire au
principe du libre choix des moyens de règlementpacifique des différendspose à
l'article 33de la Charte des Nations Unies.
II est touà fait significatifque ni lecommuniquéadoptéle 9janvier 1933par
les ministres des affaires étrangères dela Colombie, du Mexique, du Panama et
du Venezuela,qui marque lepoint de départdu processus(mémoiredu Nicaragua, PLAIDOIRIE DE M. PELLET 119
annexe IV, production A), ni la déclarationde Cancun adoptéele 17juillet 1984
par les présidents desquatre mëmes Etats (ibi d.o,uction C), ni le document
sur les objectifs auquel les gouvernements d'Amérique centraleont donnéleur
accord le 9 seotembre 1983(ibid. ~roduction D). aucun de ces documents donc
ne Faiila nioindre alluhli>n3u c.ir.ii12r<~hilu~it'qucJetri~~taxo~rle prnies>usde
Coniadorii en iani que bruni pour le rL:glemcntpaiitiq~c dts diRércnJrrr:silliani
de la situation en Amériquecentrale.
Très explicitement, l'acte revise sur la paix et la coopération en Amérique
centrale établi en septembre 1984 par les quatre puissances médiatricesprévoit,
dans le chapitre premier de sa première partie, que les Etats de la région
s'enea-ent à résoudreleurs différendsDar des mov.ns ~.cifi~uesconformément
au\ principe, fondlimeni~ux Ju dr<>it~ntcrnaii~iial Irionce p:ir lx Charte Je,
Udiions Cnicr ci la charte <leI'Organisati<~de, Ei.irs amiris~ins
I>eplu\. dans le nrC.imbuleJc ~cttxic, IIesi dii auc Ic, t.131,p<iriic\r~~ltirmcnt
«leur 'vol'ontéde 'résoudre leurs différends dais le cadre -du Drocessus de
négociation sous les auspices du groupe de Contadora)), mais le préambule
ajoute «ceci sans préjudicedu droit de recourir d'autres forums internationaux
c&npétents». le 60;s ai donné de ce texte, que nous croyons important, une
traduction française. Je suis toutà fait incapable d'en donner une lecture en
espagnol, cette traduction figurera dans le procès-verbal de la séanceet, au
surplus, l'agent du Nicaragua se tient à la disposition de la Cour au cas ou elle
voudrait prendre connaissance dans son intégralité dece document extrë-
mement récent :
«reafirmando..sin.-eriuiciodel derecho de recurrir a otros foros internacio-
nales competentes, su voluntad de solucionar sus controversias en el marco
del proceso auspiciado por el grupo de Contadora.
2. B) Solucionaran sus controversias por medios pacificosen observancia
de los principios fundamentales del derecbo internacional, contenidas en la
carta de la Organizacion de las Naciones Unidas y en la carta de la
Organizacion de Estados Americanos. )>
De même,la résolutionadoptéele 18novembre 1983par l'Assemblée générale
de l'organisation des Etats américainsréaffirmel'importance des principes et
règlescontenus dans la charte de l'organisation et, en particulier, l'engagement
de procéder par des moyensexclusivement pacifiquesau règlementdes différends
mais, tout en affirmant son soutien aux eRorts du groupe de Contadora, cette
résolution ne les considère aucunement comme exclusifs d'autres modes de
règlement(annexe 94 au contre-mémoire des Etats-Unis).
On Deut aiouter aue dans le document sur les obiectifs du 9 se~tembre 1983.
les signataires se déclarentdécidéà assurer la stricte application des principes
de droit international qu'ilsénoncent etils ajoutent que les Etats qui les violeront
devront ré~ondre de ces violations (1, mémoiredu Nicara~ua, annexe IV,
production' D). Or, ce sont précisémèntces principes de droit international
énoncésdans le document sur les objectifs dont la Républiquedu Nicaragua a
demandé à la Cour de bien vouloir assurer le respect.
Il faut noter éealementaue loin de Drotester contre la saisine des oreanes des
Nations Unies, ?es Etats 'membres du groupe ont participé aux
discussions et qu'ils ont mêmeexprimél'espoir que les discussions de ces organes
conduiraient ceux-ci àagir dans~un sens déterminéque les Etats du groupe deContadora précisaient;le communiqué commundu 12mai 1983est particulière-
ment clair àcet égard(voir 1, mémoiredu Nicaragua, annexe IV, production B).
A plusieurs reprises, le contre-mémoire desEtats-Unis affirme:
«the resolutions adooted bv both the Securitv Council and the General
Assembly expressly r&ogni& the Contadora ~iocess as the [and 1stress on
this point] appropriate means of addressing and resolving these issues» (1,
p. 173;voir aussi, par exemple, p. 171). -
Cela n'est exact qu'à une très importante nuance près: s'il est vrai que les
résolutions 530 (1983) du Conseil de sécuritéet 38/10 de I'Assembléegénérale
apportent leur soutien au processus de Contadora, elle n'érigent nullementce
processus en forum unique de règlement pacifique des différends relatifs à
l'Amérique centrale.
Cela apparait tout à fait clairement à la lecture de la résolution 38/10 de
l'Assembléegénéralepar laquelle celle-ci:
((8.Prie le Secrétaire généradle tenir le Conseil de sécuritérégulièrement
informé,conformément à la résolution 530 (1983) de cet organe, de I'évo-
lution de la situation et de l'application de ladite résolution.
9. Prie le Secrétaire généradle faire rapport à l'Assembléegénérale lors
de sa trente-neuvièmesession sur l'application de la présenterésolution;
10. Décide de maintenir à l'examen la situation en Amérique centrale,les
menaces àla sécurité quipourraient se fairejour dans la régionet le progrès
des initiatives de paix.
On ne saurait, je crois, dire de manière plus claire que, pour important qu'il
soit, le processus de Contadora n'est pas le forum unique au sein duquel le
règlementpacifique des différendsconcernant la situation en Amériquecentrale
doit étrerecherché.
ii) LesCharresdesNarionsUnieserdeI'OrganisariondesErars américainn s'impo-
senrpasI'épuisemen dresnégociarionrségionalepsréalables
II reste en effeà se demander si, comme l'affirment les Etats-Unis:
«Nicaraeua is reauired bv the Charters of the United Nations and of the
~r~anization of ÂmericG States ta seek regional solutions to problems
concerning the maintenance of regional peace and security~ (11, contre-
mémoire, p.174).
II n'est sans doute pas utile d'abuser de votre temps, Monsieur le Président,
Meisieurs les jugcs. in reprenant trop longuemeni lei argunirnts, si souvent
échangés. surla question de sai,oir si la Charte der Nation, Unle, fail Je
I'«Cpuisementdei négi>silitionrscgionîles>. un pr2aIliblcindispensablà ILsaisinc
des organes des Nations Unies.
Pour contester le bien-fondéde ce postulat, fondement nécessairede la thèse
soutenue par les Etats-Unis, il n'est, je crois, nul besoin d'adhérerà l'idéede
Kelsen, selon laquelle lesarticles 33 et 52, paragraphe 2, de la Chartedes Nations
Unies sont incompatibles (The Law of rhe UniredNations, préc., p. 434). En
réalité,il ne peut faire de doute que la consécration des accords régionauxpar
la Charte ne porte aucune atteinte aux droits reconnus aux Etats membres et au
Conseil de sécuritépar le chapitre VI et à l'Assembléegénéralepar l'article II,
ainsi d'ailleurs aue I'indiauait formellement M. Ward Allen..a.i étaitsnécialiste
des affaires des organisations internationales, et qui avait participé,au titre de
la délégation américainea,u comité 4de la Troisième Commission - comité PLAIDOIRIE DE M. PELLET 121
qui examina le problème desaccords régionaux, a la Conférencede San Fran-
cisco -, et qui a publiéun article en 1946dans le Deparrmeniof Staie Bulletin
(«Organizing the United Nations)), a Serieso/Arricles/rom the Department of
State Bulletin, US-UN InformationSeries6, 1946,p. 9).
11est tout à fait exact que les articles 20 et 21 de la charte de l'organisation
des Etats américains imoosentaux Etats membres de soumettre leurs difiérends
internaiionaux .<au\ pr<icr:d~rcspaciiiqur.~indiquCesdans ceitr. charte avant de
les porteri la cunnxirsÿnce du Con,eil dr.sccuriic de I'Organis~iiondes Naiion,
~nksn. Mais. d'une Dart. «la orocédureiudiciairen consti:tue.orécisémentl.'une
Jrs tpruir:dures p;icifiqui.>>>nunicrks dans l'article 21. voirc haurc ~uriJiiiiun
c5tchargCepar excellencede mctirc en vuvre une procCdurc~uJiciairc,or I'üriiile
21 Je la charre dc I'Orc~~iisali~~Jrcis Ctats arncrrcains ne vrscque IcCon%cilde
sécurité.D'autre part, comme l'a écritM. Jiménezde ~récha~a.:
((l'article 20 de la charte de l'Organisation des Etats américains ou des
disoositions semblables n'éauivalentoas à transformer I'oreanisation ré-io-
nalc çn une instance prCalabled ccllcdes Naiions L'nies#> (a La coordination
des s)itimei de I'ONC et (IrI'OFApour le reglement p~cifiquïdes diff>rend~
et la cec~rirecollectii~c~R,L'ABI, 1964. i III, p. 431).
C'est que, en tout en état de cause, la charte de l'organisation des Etats
américainsdoit être lueet interprétéeà la lumière de celle des Nations Unies,
conformémentau principe de la prééminencede celle-ci,posépar son article 103
et confirmépar l'article 102de la charte de Bogota. Nous devons lire la Charte
des Nations Unies avant de lire la charte de Bogota.
Or. s'aeissant de la Charte des Nations Unies. le oaraeraohe 2 de l'article 52
impose Gx Etats qui concluent des accords ou EonsStient des organismes
régionauxde «faire tous leurs efforts pour réglerd'une manièrepacifique, par le
moyen desdits accords ou orranismes, les différendsd'ordre local. avant de les
soumettre au Conseil de sécuAté».~eite disposition doit êtrelue en fonction du
paragraphe 4 du mêmearticle, paragraphe 4 que le contre-mémoiredes Etats-
Unis (1)ne cite pas, alors qu'il reproduit, pages 189 et 190,dans leur intégralité,
les autres paragraphes de l'article 52; on peut s'interroger sur le bien-fondéd'une
telle pratique. Ce paragraphe 4, que les Etats-Unis omettent de citer, preservc
expressémentles compétencesque le Conseil dc sécuritéet l'Assembléegénérale
tiennent des articles 34 et 35 de la Charte. C'est le seul paragraphe sans doute
a.i. dans cet article 52.ueênaitles Etats-Unis?
De plus. ilrCsuliede l'article 35 dc IiCharte que tout Eixt. niernhrï ou non
niemhrï dc I'Orp~nisaiiondes Nations Lin1r.s .pcui aitirer I'aitention du Conscil
rlr.skuritC ou de I'AsscnibleegCnCralensur un d11Tcrendou unc siiu3iion dont
la proli,ngation ,,scmblc devoir menJcer le maintien de Iiip~ixci Je la skuriié
interniilionalesu, comme cc13es1prr:r.iri:à I'ari~cle34
Comme l'a écrit, dès1961,M. Ruda:
«Si tout membre de I'ONU, c'est-à-dire mémeceux qui ne sont pas
membres de I'OEA, peut porter un différendau Cunsçil, rri2rries'iln'est pas
partie au différend,il n'est pas concevable qu'un membre de I'OEA possède
moins de droits, et il l'est moins encore qu'il ne puisse exercer ceuxqui lui
appartiennent en tant que membre de I'ONU. » («Si cualquierMiembro de
la UN es decir sin aquellosque no Io son de la OEA. puede llevar unu
coniroversiaal Consejo. inclusive no siendoparle en ella, no es corrcebible
que un Miembro de la OEA posea menusderechosy, mes aun, no pueda
ejercer lasquele corresponden comaMiembro de la UN. w) («Relaciones de122 ACTIVI~ MILITA~RFS rn PARAMILITAIRES
la OEA y la ONU en cuante al mantenimiento de la paz y la seguridad
internacionales », RevisraJuridica de Buenos-Aires, 1961, p.39.)
Leraisonnement est entous uoints transoosable à l'..~othèsed'unarrangem-nt
regional inf(irmeleimme reliii q~ia dcinncnai,\ancc au proccniis de C<iniddory
Cela conduit iné\itablcnicni ii admeitrr. que les proccdurcs rr:yion.dcs de
règlement pacifiquedes différends ne sont pas exclusives de I'utiÏisation des
mécanismesdes Nations Unies et ne bénéficiend t'aucun orivilè~o~'-n~~~~-~.~~~-
ci muins encore d'aucun privilègede supCrioritc.
Le raisonnemeni quc jc viens d'esquisser est confortr: par la pratique des
organes dos Naiions Ilnies ci, partieulièremrnt. par celle du Conseil dc >;curit?.
Pour s'en icnir aux alT;tircsqui ,>ntsunwrnc des Etats d'Amerique lat~nc.lc
Conwil de sécurit;n'a rei'uscd'cxamincr parc.xcmpleni ILI phintc du Guaiemala
en 1954. ni plurieurs plaintcs dc Cuba au dchut ilcs annecs solxdnte, ni le5
probleme>po,éspïr Iliguerre civileen Répuhliqucdoniinic;iine en 1965.ni. plus
reicmment. la situation crclc d la Cirenlidc par Ics Ltatr-Cnis en uctubrc 1983.
I>cménicausri. Ir Conseil Je sCcuriic 4 c.xamin;. d iroi5 reprises durant 1.1reule
année 1983 - en mars. en mai. et en seotembre - les oiaintes du Nic~~ae=~ ~ ~
au ,ujci de*atteintes .i,a sou\er.iinetépcrpétrccspar Io Criits-Cnis ou d\cc Ieiir
~idc Ilc nonibrcux pd)> mcmhre. Jc I'Organirati<~nJrs Eiat, amiricÿins et tous
ceux du gr.uue.de Contadora ont partic~uéaux débats du Conseil de sécurité
sans à aucun moment, semble-1-il,'iormuier d'objection de nature juridique à
l'encontre de la saisine du Conseil. De mime, s'agissant cette fois de l'Assemblée
générale,la situation en Amérique centrale a été inscrit e l'ordre du jour des
trente-huitième et trente-neuvième sessions de l'Assembléegénéraledont elle
constituait respectivement les points 142et 25.
Ainsi, comme l'a démontréavec beaucoup de scienceet d'autorité M. Jiménez
de Aréchaga, dans le cours qu'il a donné en 1964 à l'Académiede droit
international :
((Etan1 donné les règles applicables et les précédents établis,il faut
conclure que, quoique les Etats américains doivent faire des effortshonajde
pour parvenir à un règlement pacifiquedes différendsd'ordre local par les
moyens régionaux,cela n'empéchepas ces Etats d'avoir directement accès
aux organes des Nations Unies auand la oartie au différend iu,-aue .es
mcthodei rcgionalr.s nc suni ou népcuicnt'pas i.tre elticaiea pour rcglcr le
sas en question. I.'appcldirect aux organcs dcr Natiuns Unies Ctant \,alable.
ildoit Cirereju et I'aiTaircinscritei l'ordre du leur,ILIlibertc de ccs orcane,
(c'est-à-dire la liberté de statuer ou de renvoyer) demeurant enti-ère.))
(RCADI, 1964,t. II 1, préc.,p. 440.)
En résumésur ce point, il apparaît que l'existencedu processus de Contadora
ne fait aucunement obstacle à l'examen de la reauëte Dar la Cour. Considéré
comme un mécanisme particulièrementutile tant par les Etats de la régionque
par l'Organisation des Etats américains,l'Assembléegénéraleet le Conseil de
sécurité,le groupe de Contadora ne s'estjamais vu reconnaître de compétence
exclusive pour le règlementdes diliérendsconcernant la situation en Amérique
centrale, ct cette exclusivité ne résultepas non plus de la Charte des Nations
Unies et pas non plus de la charte de l'organisation des Etats américains.
De ulus et surtout. les Etats-Unis ne orenant décidémentras Dart aux
négociationsde Contadora, ce processus ne saurait constituer en tout état de
cause le cadre approprié - ni d'ailleurs le cadre possible - pour le règlement
du difirend opposant ce pays au Nicaragua. Comment, du reste, le groupe de
Contadora pourrait-il déciderque les Etats-Unis - qui n'en font pas partie - PLAIDOIRIE DE M. PELLET 123
ont violéà l'égarddu Nicaragua un grand nombre de principes fondamentaux
du droit des gens? Ce que demande la requête.Comment ce groupe pourrait-il
enjoindre aux Etats-Unis de mettre fin à ces violations? Ce que demande la
requète. Comment ce groupe pourrait-il fixer le montant de la réparation quiest
due au Nicaragua? Ce que demande aussi la requête.Ce sont ces demandes, et
elles seules, que par sa requêtela République du Nicaragua a prié la Cour de
bien vouloir examiner.
En en ayant terminéavec le problème posépar les négociationsau sein du
processus de Contadora, j'en viens au problème de la compétence parallèledes
organes politiques des Nations Unies.
b) La compétencpearallèledesorganespoliriqued sesNationsUnies
1.~5tiatr-l'nir s'cnfcrnicniJu rcrtc dails iinecontraJiciion i ppr>rinsoluhlc.
Dan\ le ih.ipilrc V <leILquatriénie p;irtic <leleur conlr:.ni?mdire. il\aIfiriiicnl
aue seules des néeociationi réeionales.auxauelles ils ne oartic...nt vas. oeuvent
rcsouilrc le <IiifCrendet ceci n':mp:ihe pdr les I:tais-l:ni, Je oLtcnir J.ins le5
.+ispiirei IIci II1JeId mi.tiicp,iriic que les Cirgdriespoliiiqdes Je\ Nation, Unie,
,>ni une i<inipc:icncer.~clubivcdans Ic Joniainc iaisani I'obict .III vriicnr Iitize.
Ou bien ilsdltruisent leur premier argument avec le second, ou bien.ils détruisent
le second avec le premier; on voit mal comment ils peuvent concilier l'un et
l'autre. Quoi qu'il ensoit, s'agissant de la compétence exclusivequi, selon eux,
appartieidrait'aux organes des ~ations Unies, l'argumeiitation amé-
ricaine peut êtredécomposéesur ce point en trois élémentsprincipaux. En se
prononçant sur la requète, la Cour:
i) premièrement, se substituerait purement et simplement aux compétences
des organes politiques des Nations Unies;
ii) en second lieu,et plus précisémentl,a Cour empiéteraitsur les prérogatives
exclusivesdu Conseil de sécurité encas de menace contre la paix, de rupture
de la paix ou d'acte d'agression; et,
iii) en troisième lieu,la Cour, en se prononçant, ferait obstacleà l'exercicepar
les Etats concernés deleur droit de légitime défense.
l'examinerai le premier de ces arguments avant de vous demander, Monsieur
le Président, de bien vouloir donner de nouveau la parole à M. Chayes, qui
présentera debrèvesobservations sur les deux autres points avant les conclusions
finales de l'agent du Nicaragua.
Investi par l'article4, paragraphe 1, de la Charte des Nations Unies de la
«responsabilitéprincipale du maintien dela paix et dela sécuritéinternationales»,
le Conseil de sécurité n'apas le monopole de cette responsabilité,comme l'a du
reste nettement soulignéla Cour dans son avis consultatif relatif à Certaines
dépensed sesNalions Unies (CIJ. Recueil1962, p. 163). Les Etats-Unis semblent
en convenir mais ils estiment que la responsabilitédu Conseil de sécuritén'est
concurrencéeque par lescompétences limitéea sppartenant à l'Assemblée générale
en vertu des articles 10 et 1I de la Charte, d'une part, et par celles appartenant
aux organismes et accords régionaux visées au chapitre VIII, d'autre part
(1, contre-mémoire, p. 188et suiv.). Quant à la Cour, selon les Etats-Unis, elle
ne saurait avoir aucune responsabilitédans ce domaine.
II est pour le moins surprenant d'arriver à cette conclusion en se fondant, en
particulier, sur le texte de l'article 92 de la Char(1, contre-mémoire,p. 209).
Instituant la Cour en tant qu'organe judiciaire principal des Nations Unies, cette
disposition impose à la Cour de contribuer pleinement à la réalisationdes buts
de l'Organisation et il faudrait des raisons bien décisivespour prétendre qu'ellen'est pas concernée par la défensedu premier de ces buts, fixépar l'article
premier, paragraphe 1, de la Charte, et qui est précisément,le maintien de la
paix et de la sécurité internationales.
La longue citation extraite de l'ouvrage de M. Rosenne (The Lawand Pructice
of rhe Internationul Court, préc., p. 69-70), qui est placée en exerguedu cha-
pitre III de la quatrième partie du contre-mémoire des Etats-Unis (1) (p. 209-
210), ne dit d'ailleurs pas autre chose; et on peut la compléter par cet autre
extrait du mémelivre:
tsfhe detiniiii,n of the Statur <iithe Court 4s a princip:tl orrgn, dnJ thr:
priiiiipal judiiial organ, oruhat is crsrniiall) 8 politi~.alorgxniration. thc
Ilniied Nailuns. cmnhaiircs Ihat interna1ion;il aJiudiratiiin is ;ilunctiiin
which is performed within the general framëwork of the political
organisation of the international society, and that the Court has a task that
is directly related to the pacific settlement of international disputes and
hence ta the maintenance of international peace. )>(S. Rosenne, op. cil., p. 2.)
Contrairement à ce qu'écriventles Etats-Unis, c'est,justement, parce que elle
est l'organe judiciaireprincipal des Nations Unies que la Cour doit tenir compte
du «système généralde la Charte et du Statut», comme le disaient un certain
nombre de juges dans leur opinion individuelle commune en l'affaire du Bérroit
de Corfou, exception préliminaire(CIJ. Recueil 1948, p. 32). C'est justement
donc parce qu'elledoit tenir compte du système généradle la Charte qt du Statut
que la Cour peut et doit contribuer au maintien de la paix et de la sécurité
internationales.
Placéesur un pied d'égalitéavec lesautres organesprincipaux de l'Organisation,
la Cour n'en est pas moins investie d'une mission spécifique.
Comme l'a rappelé la Cour dans son avis consultatif relatif à la Réparution
des dommages subis uu service de.s Nations Unies, l'organisation des Nations
Unies dans son ensemble est un corps politique, chargé d'accomplir desmissions
politiques (CIJ. Recueil 1949, p. 179). Mais, dans cet ensemble, la Cour
internationale de Justice se singularise à plusieurs points de vue et surtout du
fait que: i) elle est investie d'un vouvoir de décisionohliratoire très étenduque
ne p&s&dcnt ph les autres orgdnes y cumpri.. Ir.~onieiide 4curiiC, ri ii)que
so dki.;inns sont prises sur le fondcmeni r.~clusiCdcsrcgles de droit.
1.2Cour est dis lors apr>eléc i louer. dans le cadre cCnL:rÿdl e I'Orxaniiaiidn.
un rôle tout à fait pariiculier qui se caractérise non pas par l'objet de ses
interventions mais par sa manière de traiter et d'appréhender les problèmes qui
lui sont soumis. Comme l'avait écrit le Secrétaire générad les Nations Unies,
M. Dag Hammarkschold, dans l'introduction a son Rapport annuel sur l'activité
de /'Organisation (16juin 1958-15juin 1959):
«II faut reconnaître que bien des différendsinternationaux posent des
questionsjuridiques en même tempsque politiques, et que la soumission de
ces questions à la Cour pour règlement judiciairepréparerait le terrain àdes
négociations pacifiquesau sein des organes politiques de l'ONU.
Négligerlesélémentjsuridiques des différendsinternationaux et lesmoyens
de les éclaircir,c'est faire obstacle au progrèsdans le domaine politique, ce
qui risque, à la longue, d'affaiblir l'autorité du droit dans les affaires
internationales.» (Doc. A/4132/Add. 1.)
C'est ceiir spCciFicilémarquée de ses îunctions judiciaires qui a pcrmis i I;i
Cour J'iillirmrr quc, niémcsi les questions qui lui sont inunitses sont ideniiqucs PLAIDOIRIE DE M. PELLET 125
dans certains cas à celles dont les organes politiques ont à connaître, il s'agit
toujours de «deux litigesdistincts» (abire du Sud-Ouestafricain, C1.J Recueil
1962, p. 345).
Et c'est aussi la raison pour laquelle la Charte, qui se préoccupe d'éviterla
litisoendancedans lesrelationsentre leConseilde sécuritéd.'une.oar.. l'Assemblée
générale et lesorganismes régionaux.d'autre part, ne contient aucune disposition
qui soit comyarable aux articles 12ou 52 et 53 en ce qui concerne les relations
entre laCOU; et les oreanes oolitiaues des Nations unies. On chercheà éviterla
Iitispendance vis.3-\,ii d'organe; p<iliiiquc\.snjuge inuiile d'kviter la Iiiispen-
dance dé\lors qu'un org;ine polirique.d'une part. ci un organe judiii.Iirc, d'autre
oart. sont ..oeks à se Ürononcer.Dans le vremier cas, ila éténécessaire d'éviter
iur le Con,cii de séiu;iir',I'AsseniblCeg~néralcou les organirnics region:iux se
proniinccni en mCmctemps sur les nii'meslitigescar 11% e\crieni d l'égardde ccs
liligesder fonciion.comparables. Dans le se~.ondcas.~.cluides relaiions entre la
cour et les organes poli&ques,cette précautionn'a pas sembléutile car la Cour
et les organes politiques se situent sur des terrains différents.
A vrai dire, conformément à la pratique de la Société desNations dont les
or-anes oolitiaues ont olusieurs fois sursis à statuer sur une affaire dont un
tribunal ;irbitraI Ciaitsiilsi.des proposiiioni ,)ni parfoir ;té Viiiiespour eviter que
IcConxil de Qiuriié se prononce sur un ditrérends<>umir i IïCour. Tel r'iaiile
sens d'un projet d'amendement de la Turquie au paragraphe 5 de ce qui
constituait alors la section A du chapitre Vlll des Propositionsde Dumburton
0uk.s (doc. 207, 111/2/a/3UNCIO, p. 186). projet d'amendement que mentionne,
sous une forme un peu différente,le contre-mémoiredes Etats-Unis (1) (p. 198).
Après la créationdes Nations Unies, il est égalementarrivéque certains Etats
Membres expriment des doutes sur l'opportunité, pourun organe politique, de
se prononcer sur une affairedont la Cour étaitsaisie. Telfut le cas, par exemple,
du représentantde I'lnde au Conseil de sécurité lorsde l'examende l'affairede
I'Anulo-lrunian (561' séance. 1951. o. 17). Ces sueeestions n'ont iamais été
retenues et ceci traduit bien, me semble-1-il,la conviction des Etats selon laquelle
un organe iudiciaire, d'une part, des organes politiques, d'autre part, évoluent
sur dei terrains différents
IIcri en clTelarrit.2.i maintes reprises.que leConseilde sCcuou I'hsscmhlec
génCriilese prononcent sur une aflaire qui se trouv;isahjr~dici,'l'cla CICle cas.
oar cxemole.de I'AssenibleecCnCrale.I.)rsqucla Cour examinait I'alTiiiredu Siid.
0uesrafricain ou les qui lui avaient étposéespar l'Assembléegénérale
elle-mèmeau sujet des Réserve s lu Coni,entionpourlu préventionet la repression
du crimedegénocide. De même,le Conseil de sécurité,pour sa part, a adopté
des résolutionssur I'aiiaire deI'Anglo-Iraniun ou du Personneldiplomatiqueet
consuluiredesEtais-Unisà Téhéran alors memeque ces affairesétaient pendantes
devant la Cour.
A l'inverse,lajurisprudence ne consacre, en aucune manière,la règlecontraire
qu'invoquent les Etats-Unis et, selon laquelle,la Cour serait empêchédee statuer
si un problème relevant égalementde la compétence d'unautre organe est en
cours d'examen ou a été examiné par celui-ci; tout au plus, dans cette dernière
hypothèse, c'est-à-diresi l'autre organe s'estprononcé,la Cour devrait-elle tenir
compte pleinement de la décision prisepar l'organe politique, si du moins cet
organe est investi d'un pouvoir de décision.
C'est cequi ressort, par exemple, de I'arrEtrendu par la Cour dans l'affaire
du Cameroun septentrionu l'une part, en effet, la haute juridiction a considéré
qu'ellen'avait ((plus compétencepar suite de la cessation de la tutelle par l'effet
de la résolution1608(XV) de l'Assembléegénérales (C.LJ Recueil1963, p. 35);
mais, d'autre part, la Cour dans cette affaire, a indiqué,en termes trèsclairs:126 ACTIVIT~S MILITAIRESET PARAMILITAIRES
«La Cour n'a vas à se oréoccuoerde savoir si un dilférendoortant sur le
mêmeobjet a exiitéou non entre ia Républiquedu Cameroun étles Nations
Unies ou l'Assembléegénérale . (lbid p. ,7.)
Cela a étéconfirmédemanièretout à fait éclatante par la Cour dans son arrêt
du 24 mai 1980 relatif au Personneldiplomatiqueet consulairedes Elais-Unis
à Téhéra:n
«II ne fait aucun doute que le Conseil de sécurité étai(t(activement saisi
de la question)) et qu'il avait donné expressémentmandat au Secrétaire
généralde prêterses bons offices lorsque, le 15 décembre 1969, la Cour a
considéré à l'unanimité qu'elle avait compétence pour connaitre de la
demande en indication de mesures conservatoires des Etats-Unis et a indiqué
de telles mesures.
Puis, le Conseil de sécurité s'estréunide nouveau le 31 décembre 1979 et a
adoptéla nouvelle résolution461 (1979):
«Dans le préambule de cette seconde résolution. le Conseil de sécurité
tenait c.xprcs.émcntcimipte de I'ilrd~innsncciIc la Cuur cn indiwiion iIc
mcwres conser\xti>irerJu 15dccembre 1979, ine scmhlcCirei,cnu:1l'esprit
d'aucun memhrc du Conseil qu'il Ycüt ou PÜI s avoir rien J'irréyulierdan.
l'exercice simultané par la cou; et par ie conseil de sécuriféde leurs
fonctions respectives. Le fait n'est d'ailleurs pas surprenant. Alors que
l'article 12de la Charte interdit expressémentà l'Assembléegénéralde faire
une recommandation au suiet d'un différendou d'une situation à I'éeard
dcsqusls leConvil remplit sesfonclions. ni la Charte ni leSt;itut n'apportent
Je resiriction~<cnibl;ibli I'excrciccdes fonciiilnj dc la Cour. Les raisilris
en sont évidentes:c'està la Cour. organe judiciaire principal des Nations
Unies, qu'ilappartient de résoudretoute question juridique pouvant opposer
des partiesàun différend;et la résolutionde ces questions juridiques par la
Cour peut jouer un rôle important et parfois déterminantdans le règlement
pacifique du différend.C'est d'ailleurs ce que reconnait l'article 36,para-
graphe 3, de la Chart...n(C.1,J,Recueil1980, p. 21-22.)
Cette longue citation, que je me suis permis de faire, établit de manière
particulièrement claire que l'examen d'une affaire par le Conseil de sécurité
n'interdit en aucune manière à la Cour de se prononcer.
S'il enva ainsi lorsque les organes politiques compétentsde l'Organisation ont
adoptéune décisionou une recommandation - et lajurisprudence que je viens
de citer l'établitsans aucune esoécede discussion oossible -.sesont orononcés
eKectivement,tel est à fortiori le cas lorsqu'ils n'adoptent aucune résolution. Le
rejet d'un projet de résolution par l'Assembléegénéraleou par le Conseil de
sécuriténe~signifierien d'autre que la non-adoption par l'organe concernédu
texte précissur lequel il a été appeàévoter, au moment où il s'est prononcé; le
mêmeorgane peut d'ailleurs parfaitement adopter un texte trèsvoisin peu après,
voire mêmelejour où il a rejetéle premier texte, voire même reprendre quelque
temps plus tard le texte rejeté,etc.
On ne saurait donc admettre, comme le font les Etats-Unis, qu'en tranchant
le présent litige la Cour «reviserait des décisions déjà prisespar les organes
politiques» comme ils l'affirment à la page 218 du contre-mémoire (I), sous
orétexteaue. lors de sa 2529' séance.le 4 avril 1984. le Conseil de sécuritén'a
pas pu ad'opicrIcprojet de résolutionPrtscntr: par Ic kiiaragua. du fait d'ailleurs
de l'opposition des Eiats-Unir (1. niémoire. annew III, production Il). Sc
fondani sur des raisons différentes,qui sont des raisons exclusivementjuridiques, PLAIDOIRIE DE M. PELLET 127
la présente requête demande à la Cour de rendre un arrêt,un acte juridique de
nature totalement difirente de celle des résolutionsdu Conseil de sécurité.
Au surplus, on ne saurait assimiler une non-décision à une décision. La vérité
est que le Conseil de sécurité,le 4 avril 1984,n'a pas pris de décisionet ce n'est
que Dar un raisonnement vassablement tortueux aÜeles Etats-Unis transforment
"nc non-ilécisioiicn une j~cision. Qu<>q i u'il cn ,Ait,I:jurispruJence de la Cour
iourn~tiIc\ exemples Jarri.t> qiiiont CI; rends aprr:~qu'un projcl Jc rC~olutic~n
-<mcern;iiitI',iiFairccn cause cut Cir'rclci; p.ir le Conscil de sr:~.uritéilu l'aitd~
vote néeatifde I'un de ses membres. Ainsi.'da~. l'affaire du Détroitde Corfou. ,
un projet dc rCs,ilurionprCrcntépdr le K%iyaumc-Unin'a pu Arc a<l<ipié lors de
13122'Gance du Conseil dc sccuritédu tiitdu vute hostile de I'undes nicmhrcs
ncrm;incnij INalions Liner ProcA-i<,rhou.r~flii.rrlrdi, Ci,~nr,~<lle\i'r,trir<'.120'
ét 122' séances,p. 567 et 609); deux mois pl& tard, après la non-adoption du
projet, le Royaume-Uni a saisi la Cour d'une requêterédigéedans des termes
tout à fait voisins de ceux qu'emoloyait le oroiet de résolutionqu'il avait soumis
. .
quclq~c tcmpr 1iu~~ravan1.a~Conseil dr'\é<urii~.ci cçtte rcquète a CI&jugk
rccei~ahlcpar la Cour Jans son arri.1du ?5 mar, 1948. I>emhc, düns I'afTaire
rcl~tiv~ru Pt,r~on»rldipli~nit~liy,<r~ri>nrul<i,rv ~/c,.Elui~.U,i,v u 7Zh<'ru,i.le iotc
hostile d'un membre pennanenl du Conseil de sécurité sur un projet de résolution
concernant cette affaire n'a aucunement empêché laCour de se prononcer au
fond (CIJ. Recueil 1980, p. 17, par. 31). 11n'y avait pas eu de décision; il y
avait eu si l'on vcut une non-décision.La Cour ne s'enest oas moins orononcée.
On peut ajouter que par leur attitude constante les v tais montreni qu'ils ont
clairement conscience que l'examen d'un différendpar le Conseil de sécuriténe
fait pas obstacle à la saisine de la Cour.
Tel est en particulier l'attitude des Elats-Unis justement qui, par exemple,
durant I'examen de la situation crééepar le blocus de Berlin par le Conseil de
sécurité - et c'étaitquand même unesituation qui concernait la paix et la
sécuritéinternationales! ...- ont déclarc,par la voie de l'ambassadeur Philip
Jessup, qu'ils envisageaient de soumettre l'affaire à la Cour internationale de
Justice (Nations Unies, Procès-verbauxosfciels du Conseilde sécurité, séancd eu
6 octobre 1948,p. 8). De meme, lors de la 679' séancedu Conseil de sécuritéle
10septembre 1954,le représentantdes Etats-Unis a déclareque son gouvernement
estimait que la procédure juridique devant la Cour étaitcelle qui convenait le
mieux à l'examen du différend encause - il s'agissait d'un aéronef américain
abattu par la chasse soviétique.
Ainsi. lesEta~~~-- c~ sin..lièrementles Etats-~ ~- d'Amérioue - ma~ ~ ~~~ ~
constamment leur conviction que la procédure politiquedevant le Conseil de
sécuritéet la orocédureiudiciaire devant la Cour, loin d'êtreexclusives l'unede
l'autre. se comolètent ci oeuvent êtremenéessimultanémentou successivement
- ce dont témoigneégalementla rédactionde l'article 36, paragraphe 4, de la
Charte des Nations Unies.
Faute de cette conviction, d'ailleurs, on s'expliquerait malles réservesque
certains Etats ont mises à leur déclaration d'acceptation de la juridiction
obligatoire de la Cour et dont l'objet estd'éviterque le Conseil de sécuritéd'une
part et votre haute juridiction d'autre part puissent ëtre saisis simultanément
d'un mêmedifirend. Cette pratique trouve son origine dans la première
déclaration faitepar le Royaume-Uni, en 1929,qui avait indiquéque I'examen
d'un litige par la Cour permanente devrait être suspendudurant une années'il
venait à étre soumis au Conseil de sécuritéde la Sociétédes Nations. De
nombreux Etats, durant I'cntre-deux-guerres, ont assorti leur déclaration d'une
réserveidentique et une telle réservea de nouveau étéincluse dans la déclaration
par exemple de l'Australie, qui est restée en vigueurde 1954 à 1975.et qui parconséquent concernait bien la Cour actuelle, organe judiciaire principal des
Nations Unies.
Ainsi, et j'en ai pratiquement terminé,Monsieur le Président,comme l'écrit
M. Rosenne :
«It may be noted that while the Court's task is limited to functions of a
legal character its power of action and decision is suhject to no limitation
deriving from the fact that the dispute hefore it might also be within the
competenfe of some other organ [ou, ajoute M. l'ambassadeur Rosenne, en
note: «even in the agenda of another organn]. If the maintenance of
international peace and security can be regarded as a major function of the
United Nations as a whole (including the Court), the Charter confers no
exc~ ~ ~-~comoetence unon anv one nrincinal orean. Even the fact that the
Security Council has primary responsibility for the maintenance of inter-
national sace and security under Article 24 of the Charter is not sufficient
to give ii exclusive cornpetence over these matters. Only in relation to the
General Assembly do Articles 11 and 12 of the Charter contain some
limitation upon that organ's power of action (though not of discussion)
when the Security Council is seised of a particular dispute or situation»,
cela de nouveau dans son livre Law und Practice of lhe lnrernational Court
... 73). a.i décidémentaura étéa i'honneur durant nos débats.
Ccttc conclu\ion. Monsieur le Prcjident, me cmhlc se sultirc <Lelle-mi.mc. La
Cour peut se prononcer sur un ililTr'rsiidqui esi ercintinc par iI';iiiires<irg.inc.:
politiquc~des Vacion>Unies c;ir clle cxcrce des foitctions dilicrcnies tn .iuciiite
manir:rc le fi111pour la Cour Je si prononcer rur la presenlc alKiire nc herliii
contraire i I'e\r.rciccde5 i~inciionsjudiciairci qui sont ler siennes. Ic roniriire le
scrdit en privant les Parties cl'uiiprononcr: ludiciaire sur des proh1r:mcsiuridiques
qui les opposent.
Monsieur le Président,Messieurs les juges,je vous remercie très vivementde
la bienveillante attention avec laquelle vous avez bien voulu m'écouteret je vous
demande. Monsieur le Président.de bien vouloir donner la oarole à M. Chaves
pour une ultime et brèveintervention qui précéderala derAr intervention2de
M. l'agent du Nicaragua.
Loudience,suspendue ù II h 30, es1repriseu II h 45 ARGUMENTOF PROFESSORCHAYES
COUNSEL FOR THE GOVERNME NTNICARAGUA
Professor CHAYES: MI. President, Members of the Court. May it please
the Court.
THEPOWER OSF THESECURITC YOUNCIL UNDER ARTICL3 E9
My colleague, Professor Pellet, has addressed the question of the relative roles
of political and judicial settlement in the light of the applicable general principles
and practice. As he has shown, these principles do not require that one kind of
organ should withdraw or give way to the other. Their tasks, methods and
actions are difierent and each can properly address aspects within ils competence
of situations in which the other is or might become engaged.
But the United States makes a further assertion. It argues that the Court is
precluded by positive law ofthe United Nations Charter from entertaining one
particular kind of case: a case charging use of armed force in violation of Ar-
ticle 2 (4). in circumstances that might be characterized as a threat to the peace,
breach of the peace or act of aggression.
The United States says, in the end, that the Court mus1stay ils band in this
case because the legal issues raised byNicaragua's Application are committed to
the exclusive competence of the Security Council hy Articles 39 and 51 of the
United Nations Charter. (II, Counter-Memorial, paras. 444-492.)
Before we deal with this contention in detail, it is well to be cledr about what
it would entail if accepted.
It means that no matter how brutal or violent or unjustified a violation of
Article 2 (4) of the Charter is presented Io the Court in a case otherwise within
itsjurisdiction, the Court would be powerless to intervene to protect the victim.
It means that the United States would have unbridled licence to use force in
violation of Article (4), in its sole and unreviewable discretion, whenever and
for whatever purpose it chose to do so; and il would then be protected hy its
veto in the Security Council.
It means that the same licence would he availahle to any permanent member
of the Security Council or any of its allies or clients, on whose behalf it might
exercise itsveto.
That is not the world of peace under law that the framers of the United
Nations sought to build.
It is a world of force and violence perpetrated by the strong against the weak
that the framers hoped to hring to an end.
And it is no1 the law.
This Court, early in its history, had occasion to pass on the kind of theory
the United States is now advancing. In theCorfu Channel case itsaid:
"The Court can only regard the alleged right of intervention as the
manifestation of a ~olicv of force, such as has. in the past. riven rise to the
mort serious ahurc; ani ,"ch ascannol. whatcvtr bcihc pGsrn~defccti in
inicrnaiionsl i>rg:inizliiion,fanpl:iwinintcrnatiunal Iou."(1 L'J Ri,porrs130 MILITARYAND PARAMILITARYACTIVITLES
The course of events in the intervening years provides no basis for a retreat from
that oronouncement.
Let ur turn rioir 1.)a more dctailed cxüminaiion oi th: L'nitcdSiair., argunient.
Article 39 ~rovidc~: "'l'hc Security <:,~~ncilsh;ill dr.icrmine the s.\istcncr. or a
threat to the peace, hreach of the peace or act of aggression . . ."
The United States recognizes that the Nicaraguan Memorial does not use the
words "aggression" or "threat to the peace" or "breach of the peace". There is
no mystery about tbat, no attempt, as the United States charges, to "mask"
something (II, Counter-Mernorial. para. 447). Nicaragua asserts in the first
paragraph of its Application that: "The United States of Arnerica is using
military force against Nicaragua .. . in violation of [its] . . territorial integrity
and political independence . . ."(1, Application, para. 1.)
The United States professes to find the source of this language in the reso-
lution on the Definition of Aggression adopted by the General Assembly in
1974 (II, Counter-Memorial, para. 445). Surely there was no need to travel so
far afield. The Application, in this respect, rests squarely on Article 2 (4) of
the United Nations Charter, which prohibits "the threat or use of force against
the territorial integrity or political independence of any State". Nicaragua's
Application in this aspect is, properly and deliherately, cast in the terms of
Article 2 (4), and of the comparable articles of the Organization of American
States Charter.
For al1 its pages of argument and burden of erudition, the United States
Counter-Memorial fails Io grasp - or perhaps evades - this fundamental
distinction :
Article 2 (4) defines a legal obligation.
Article 39 establishes a political process.
Both are of supreme importance to the structure of the Charter. But that
structure would be severely compromised by ignoring the diiTerencehetween the
two Articles or collapsing the one into the other.
Much of the United States argument on this branch of the case is devoted to
showing that the Charter envisions a major role for the Security Council in
organizing and developing political solutions to problems of international peace
and security. There can be no quarrel with this entended excursion into the his-
tory and origins of the Charter - except that it belabours the obvious (II,
Counter-Memorial. Daras.460-478).
,\s se kn.>u. Artiilc. 24 iuiifcr> upon the Sc~urityCuuncil .primsry rcspon$i-
hilit). ior ni3lniendncc oiintcrn;iti~~i;iIpedccand rcciirity " Anil ihc Charter
ahounJr with r>rovi\ion\,~htclls in Ch.ir>tcr, VI. VI1aiid VIII. enipoivcrtng the
Council to car& out this res~onsibilitv. '
As we also kiow, the responsibility'of the Council is "primary" not exclusive.
Each of the organs of the United Nations is to participate, according to its own
powers and p;ocedures, in the effort "to maintain international peace and
security", whichisafter al1the first purpose of the Organization. (United Nations
Charter, Art. I (I).)
Only two priorities among the organs are expressed in the Charter. The first
isin Article 121. ..which disables the General Assemblvfrom makine recommen-
dations wiih rebpc~tto d di,puic ilr\ituatioii '[iilhilr. the Sr.iurity C~itnciI i,
cwrcirtng in rr.,pr.,.ti~i[thai] dispute or siiudti,>nthe iuncti.iiis iissigncd 1.) IIin
ihr. rirerent Charter . ". l'hcxcund 18 111Artielr. Il (21: '',ln! ,~ih uuc\tl.m
Irclating i<,the iiiaintenïncc .,i internaticin31pe.iic and security] ori irhich aciicm
iinccr.b,ar) >hallhe refcrrcd ti~ihr.Sc~urit) Coilticil " The Court hai .ilrc.iil!.
rr.markcd th~t the Ch~rter cxprcssci no ,imilsr pri<irity uitli rcg;ir<l ti) the ARGUMENT OF PROSESSOR CHAYES 131
prin.'ip;iljudicial orgdn ol'ihe Organi/3ii<>n (1I!il<~~.lluri,Drp/i»niilrcund (;itr$u-
lu, S~ujJ'i!!7i,hrdn.1 C'J Kcy,orts IYXO, p. ?IJ.
\\'ha1 then is ilic ,irnilicancc <>lihc nroi,isi,>ni>fArticle3.1ilial "The Sciuriiv
Council shall determ.&e the existence Of any threat to the peace, breach of thé
peace, or act of aggression . . ."Surely what is called for is not an exercise in
taxonomy, the act of attaching a label to a situation. Still lessdoes it contemplate
a legal analysis or the authoritative decision of a legal issue.
The meaning and function of tbese words is revealed hy their position at the
beginning of Chapter VI1 of the Charter. Chapter VI1 concerns 'Xctiow nith
Respect to Threats to the Peace, Breaches of the Peace, or Acts of Aggression".
And the subsequent words of Article 39 authorize the Council, after making the
determination, to "decidw ehat measures shall be taken in accordance with
Articles 41 and 42, to maintain international peace and security" (emphasis
added).
Here is the key to the meaning and function of a determination under Article
39. It is necessary as a predicate to bring into play the extraordinary powers of
the Security Council under Article 41 and Article 42 of the Charter. As the
Court understands, those Articles empower the Council to decide to impose
economic sanctions or to "take such action by air, sea, or land forces as may he
necessary to maintain or restore international peace and secunty" (Art. 42).
And, "decisions" under Article 41 or 42 are given hinding elïect on the Members
of the United Nations by virtue of Article 25.
This was the great departuremade in theCharter over al1previous international
organirations and particularly the League of Nations. For the first time, an
organ of an international organiration is empowered to take decisions on eco-
nomic and military sanctions for the maintenance of international peace and
security withbinding force on al1Members, and without their individual consents.
It is clear that this was thought of as an extraordinary power, to be used only
in cases of great urgency. Indeed, 1 believe it kas heen invoked no more than
three times in the four decades of the United Nations Organization. Thus Article
39 requires a solemn determination by the Council that the situation is one
calling for the exercise of these extraordinary powers.
To he sure, such a determination will not ignore the legal situation and the
leeal claims of the ~arties to the dis~ute or situation hefore the Council. Leral
argunicniation. inJccd, cc~mm.>nly pl~ys J large role111ihc dcbatcr ufihr. (:oun<il
un ruih <i;ca,ion\. Hui iiaiIl n<>ihc deci-lie. Tlierc irno rupprti<m thai ci,ery
ure iiiameJ i;,rcc in vii>l.ttii>nor .Arii.'lc2 (4) c.illr I;srdctcrminati.in <>ithc
Council under Article 39 or action under Chapter V11.On the contrary, the
framers were at pains to avoid any such suggestion - any hint of "automaticity"
in bringing the Chapter VI1powers of the Council into play. That is why, as set
forth at such ereat leneth in the Counter-Memorial. thev resisted al1efforts to
Jctinr, dggrc,rri<Jnor 161,ci up rule, ihdi iioiiid ;iiii~lii;i~i~~.'ail li~rdr.tionhy
the Council undcr Chdpicr VI!. and u.11" >II\ub\cqucni cil;~rir 1.1d.r 5,)hdvc
iiiiled II. Counier-\lcni~ri;iI, vdrds. 171.473, 477. 485-491).
The'power to take mandatoiy action binding on the ~embers is reserved for
those rare occasions when the Security Council in the exerciseof a political, not
legal,judgment determines that the situation requires it. Until the Council makes
a determination under Article 39. the situation falls to be dealt with not
under Ch3pir.r VI1 -ionccrning 'Action i\,ith Kcipcct to l'lircai, id ilic Pc~ic.
Urcdihc> ui the I'r.a;c anil Acis oi'Aggrej,ion" but uiiJcr Ch:iprrr VI. t)n
'P,icitic Scitlcnient of Dirnute.". I'niil the Sccuriiv Counuil dcierniines oilier\iisc
under Article 39, the sitiation, no matter how grave or inflamed, is, for the
purposes of the Charter a "dispute the continuance of whichis likelyto endanger132 MILITARYAND PARAMILITARYACTIVITIES
the maintenance of international peaceand security" under Article 33. It remains
to be dealt with bv the methods of peaceful settlement provided in that Article,
includingjudicial Settlement.
Even after an Article 39 determination, as my colleague Mr. Pellet has shown,
there is no necessary inconsistency between Security Council action and adjudi-
cation by the Court. The only power exclusivelycommitted to the Security
Council is the power to take "action" withinthe meaning of Chapter VII, that
is, to prescribe mandatory economic and military sanctions under Articlcs 41
and 42 (Certain Expenses rf the United Nations,I.C.J. Reports1962, pp. 165,
177).And as we have already noted, although Article 11(2) requires the General
Assemblyto defer to the Security Council when "action is necessary",the Char-
ter contains no such provisions staying the procedures of the Court.
This is the way the Council itself has dealt with Article 39 from the earliest
years of the United Nations. As an illustration, let me reviewbriefly one case,
one of the many instances in which Article 39 action was proposed and one of
the few in which it was actually taken. 1 am speaking of the response of the
Security Council to the purported "Unilateral Declaration of Independence" of
the Smith régime inRhodesia in November 1965.lmmediately after the UDI, as
it was called, the African States put forward a draft resolution in the Security
Council that provided in its first operative paragraph:
"The SecurilyCouncil,
. . .
1. Determines that the situation resultingfrom this declaration of indepen-
dence constitutes a threat to international peace and security."
That is the canonical language, "a threat to international peace and security".
And then in paragraph 9:
"9. Decides to take al1 the enforcement measures orovided for under
i\riiclo 42 and 43 ~l'thr.Ch;iricr again51thr. r3cist ininoril) scitler regini:."
(20 U.VSCOR. 12591hmccling. pp.20.21. I.'N dcic S 6929. 1965.1
Great Britain and other countries opposed the African resolution on the ground
that the situation could he resolved without resort to force and thereforedid no1
warrant the invocation of Chapter VI1 (ibid.,1257th meeting, pp. 3-8, 1965).
Ultimately the African draft resolution was withdrawn in favour of a negotiated
text. The critical paragraph of that text:
"Determines that the situation . . .is extremely grave . . .and that ils
continuance in timeconstitutes a threat to international peaceand security."
(SC res. 217, 20 UNSCOR, Resolutions and Decisions1965, pp. 8-9.)
Notice, it approaches the words "a threat to international peace and security",
but does not use them, and as a conscquencc the oprative paragraphs in that
resolution are al1 recommendatory. The United States indeed emphasized that
the resolution had hecn adopted under Chapter VI (20 UNSCOR. 1265th
meeting, p. 5).
The ensuing months saw continuous pressure on behalf of the African States
to move the situation from Chapter VI to Cbapter VII. In May of 1966, the
United Kingdom returned to the Security Council for authorization to use force
to intercept oil cargoes bound for Rhodesia on the high seas. Its draft resolution,
ultimately adopted, recites that oil tankers were discharging cargoes at Beira
in Mozambique for transshipment to Rhodesia. The United Kingdom draft
"Determines" that the resulting situation constitutes "a threat to the peace".
That is very close, but it does not say "a threat to international peace and ARGUMENT OF PROFESSORCHAYES 133
security". It "Callsupon the Government of the United Kingdom. .. to prevent,
by force if necessary, the arriva1 at Beira of vessels reasonably helieved to be
carrying oil destined for Southern Rhodesia . . ."(SC res. 221, 21 UNSCOR,
Resolurionsand Decisions 1966, pp. 5-6). Although no sanctions were voted, the
resolution was thought to legalize such naval action; and the resolution was
informally referred to in the United Nations as a Chapter VI+ action.
Finally, in November 1966,after negotiations hetween the Wilson Government
and the Smith régime collapsed, the Security Council moved unequivocally to
Chapter VII. Resolution 232 of 16 Decemher 1966made the required Article 39
determination. It "Determinesthat the present situation in Southern Rhodesia
constitutes a threat to international peace and security" and "Decides"to impose
comprehensive mandatory economic sanctions against Rhodesia (21 UNSCOR,
ResoluIionsand Decisions 1966, p. 109). That was the first time that Article 41
was invoked in its mandatory form in the United Nations.
What do we derive from this account? In the entire year of Security Council
consideration. there was no sienificant militam action aside fro~ a ~ew~desultorv~,
gucrril1.iencouniers 'Ihcrc u.; ccrtainly ni>rhin$ih'itcoiild bc Jccmcil ;in cirnied
.iit~ickor an :ic<II.iggrcmiun in ihc ir~diti<inal.en\e Nur JiJ ihc sltu.ition on
the -round change sie-ificantlv durine the vear,
Wh.it ~113ii&!c ra..ihc Sc~urii) Co~iistl'rp<>liticilnillingncis10ii,c m,inJatiiry
cii>noniicciiiiiiuns. A pcrusdl of ihc Scciirity C<)~n.'ildch:ilc\ rcvcal, thdi ver)
little time was spent discussing whether the situation was really, in some objective
sense, a threat to peace and security. The issue to which the delegates address
themselves is whether the time has come to impose sanctions, or whether to give
the United Kingdom more time to seek a voluntary solution. When time ran
out, the Council made the determination under Article 39, not hecause of any-
thing that had happened in Rhodesia, but to give effect to its will.
The same understanding of the effect and meaning of Article 39 appears
whenever the Council is asked to take action under it. The very first time the
issue arose, in 1948,the United States had introduced a draft resolution with an
Article 39 determination, and the resolution "ordered" a ceasefire in the Israeli
war of independence. The resolution that was adopted omitted the reference to
Article 39 and called uuon the ~arties to observe a ceasefire.The United States
oppuscd there changes .>nihs groiiiids ih3t thcy \isuld ir;iii,icr the r.i\sfroni
Ch.ipter VI1oi'ihc C'liancrinto Ch.iprcr VI (L'V.>('OK, I01X.2')hlhnicciing.p. O).
hlorcover. the linircd Siaici rcurcrcniativc areucd ihai. for (:li.inicr VI1ÿaion.
"We do not have to detemine . . who is the iggressor, who is at fault, if hoth
parties are at fault, or which one is more at fault than the other." (Ibid.,p. 9.)
That is to Say,the Article 39 determination depends on political requirements,
not legal rights and wrongs. In that case too, incidentally, the Council, after
some delay, moved from Chapter VI to Chapter VI1, and it did so hy making
the requisite determination under Article 39.
The United States has not always taken the purist view of the separation of
functions hetween Court and Council that it now maintains in its Counter-
Memorial. Professor Pellet called attention to the United States comment in the
Security Council in connection with the Aerial Incidentcase. But in the 1950s
the United States brought seven cases to the Court involving armed attacks by
military aircraft of other States against United States military aircraft, and one
case, the Aerial Incidentcase, involving the downing of an lsraeli civil aircraft
hearing United States citizens. (See United States v.Hungary, United States v.
USSR, 1 C.J. Pleadings (1954), pp. 9-10; United States v. Czechoslovakia,
ICJ Pleadings(1956), pp. 8-9; United States v USSR, I.C.J. Pleadings(1956),
pp. 9-14; United States v. Bulgaria, I.CJ Pleadings(1959). pp. 22-25; United134 MILITARYAND PARAMIL~ARYACTIVITIES
States Y. USSR, I.C.J. Pleadings (1958), pp. 8-10; United States v. USSR,
I.C.J. Pleadings (1959), pp. 8-11.) Presumably al1 of these attacks by military
planes of one power against military planes of the other involve use of force
within the meanine of Article 2 (4). Of course. none of the resoondents in these
cases submitted tg the compul~o& jurisdiction of the court: and so none of
them were heard. Nevertheless, the United States avidly pursued a judicial
settlement in each of them, without suggesting or perceiving any difficultyabout
invading the exclusivecompetence of the Security Council.
The structure and language of the Charter, and the uniform experience under
Article 39 shows that a determination under that Article is simply a procedural
prerequisite for transferring the case from Chapter VI to Chapter VII, so as to
provide a basis for invoking the Council's powers under Article 41 and Article
42. Indeed, the Court itself has intimated that without such a determination the
Council could not authonze "military action against any State" (CertainExpenses
ofthe United Noiions, I.C.J. Reports 1962, p. 177).
The record shows that the existence of threat or armed attack in violation of
Article 2(4) isnot a prerequisite for a determination under Article 39.Conversely,
hy no means every violation of Article 2 (4) requires "action" by the Security
Council under Article 39 and Chapter VI1.
From a juridical standpoint, the decisions of the Court and the actions of the
Council are entirely separate. If, in a case properly hefore it, the Court should
decide that the Respondent has violated Article 2 (4), the decision would no1
give rise to any consequent duty of the Security Council to act under Article 39.
Even if the Applicant were to seek enforcement of such a decision under Article
94, the Security Council would still have to make an independent determination
under Article 39 in order to take enforcement action. And it would be free to
do so or not, as "il deems neccssary" in accordance with itsjudgment as to the
requirements of the situation (United Nations Charter, Art. 94(2)).
By the same token, the failure of the Court to find a violation of Article 2 (4)
in a case presented 10 it cannot preclude the Security Council - if it deems
necessary - from making a determination under Article 39 with respect to the
situation out of which the case arises.
Before leaving this portion of the discussion, 1 shall comment briefly on the
United States argument about Article 51. Again, the United States Counter-
Memorial indulges a penchant for truncated quotation. In a three-page discussion
of Article 51 bristling with references to "the inherent right of self-defense" in
every paragraph, only once, and then in an oblique footnote, does it appear that
Article 51 isconcerned with the inherent right of self-defence"if an armed attack
occurs against a Member of the United Nations" (II, Counter-Memorial,
paras. 515-519,and p. 164,notc 2).
There is, as the Court knows, no generalized right of self-defence.There is no
right "to engage .. . in proportionate measures to respond to unldwful use of
force having diflèrent, less conventional, characteristics [than armed attack]" as
suggested in the Counter-Memorial (II), at page 164, note 2.There is no right
to use force in "countermeasures in respect of internationally wrongful acts
falling short of an 'armed attack'" (ibid). There is no right in the absence of
an armed attack, to provide upon request "proportionate and appropriate
assistance to third States" when such assistance takes the form of use of force
aeainst another State (ibid. o. 165).
Il'hr inhcrent right Asrli-iricncg isdclibcrîtely and comprehcnsi\rl) qualiticd
h) ihr languagc 0fAriiclc 51. Iii,riut ;imilahle unlerr 'an armcd ait;ick uicur,
against a Member of the United Nations".
In Secretary of State Shultz's affidavit and in the petition of El Salvador to ARGUMENT OF PROFFSSOR CHAYES 135
intervenein theseproceedings,it isnow asserted, for the first time, that Nicaragua
is engaged in an armed attack against another State (Counter-Memorial. Ann. 1,
II, p. 177,para. 3; Declaration of Intervention of El Salvador, 15August 1984,
II, p. 452). This is not the place tu go into the merits of that assertion. But it
may be noted that the supporting factual allegations, even if they were al1true,
fall far short of an "armed attack" within the meaning of Article 51.
The argument advanced in the Counter-Memorial with respect tu Article 51
consists of the unsupported assertion that the question of the legitimacy of
actions assertedly taken in self-defenceis cornmitted exclusivelytu the Security
Council. It is simply a repackaging of the argument under Article 39.
There is no doubt that such actions - that is actions under Article 51 -
"must be immediately reported tu the Security Council". Article51 says su. If
the United States is truly exercisingits Article 51 rights, one wonders why it has
failed tu comply with these reporting requirements. It is tme, as the Counter-
Memorial asserts, that the Security Council has "been made aware of the situ-
ation claimed by Nicaragua tu exist in Central America" (Counter-Memurial.
II, p. 165,note 1).So has every reader of the newspapers. But we will search the
records of the Security Councila long lime before we will find a communication
formally reporting that, in the exercise of the inherent right of self-defenceof
the United States, the CIA is organizing, supplying and directing a covert
mercenary army in attacks on Nicaragua.
Article 51 also says that nothing shall impair the right, that is the inherent
ri-ht of self-defence if an armed attack occurs on a member State. "until the
Security Council kas taken measures necessary tu maintain international peace
and security". But the right secured from impairment is the inherent righi of
self-defen& against arme2 attack. On that issue, above all, a State should not
be permitted to be judge in its own cause. Yet that is exactly what the United
States position amounts tu. Judge Sir Hersch Lauterpacht said in the Funcrion
o/Law in ihe lnlernationalCommunily(pp. 179-180):
"It is of the essence of the legal concept of self-defence,that recourse tu
it must, in the first instance, be a matter for the judgment of the State
concerned ... When, therefore, Governments and writers insist that recourse
tu self-defenceis not subject tu judicial determination, they give expression
to self-evidenttmism - su long as it is clear that what is permitted is the
provisional right tu act.
The other meaning usually attaching tu the assertion of the non-
justiciability of disputes arising out of recourse tu force in self-defence is
that the legitimacy - as distinguished from the act itself- of the exercise
of the rieht of self-defence isincaoable of iudicial determination. This
doctrine Eannot be admitted as judicia~i~s&nd. If the concept of self-
defence is a legalconcept - and it becornessu, interalia, hy becoming part
of a treaty ordeclarat<on organically connected with it -then any action
taken under it must be capable of legal appreciation.
There is not the slightest relation between the contents of this right of
self-defence and the claim that it is above the law and not amenable tu
evaluation bv law.Such a claim is self-contradictorv inasmuch as it DurDorts
tu be basedon legal rights and as, at the same &me,it disassoci~tes'itself
frorn regulation and evaluation by the law. Like any other dispute involving
important issues,su also the question of the right of recoursetu war in self-
defenceisin itselfcapableofjudicial decision ;and it isonlythe determination
of States not tu have questions of this nature decided by a foreigntribunal
which may make it non-justiciable."136 MILITARYAND PARAMILITARYACTIVITIES
1 submit that the foregoing was good law in 1933, whenJudge Lauterpacht
first said il, and it is good law today. It is only the determination of the United
States not to have ils action reviewed by a foreign tribunal - a determination
that has been evidcnt in every stage of this proceeding from the Shultz letter of
6 April 1984onwards - which may make it non-justiciable.
To acceDtthe United States areument would he to stand the Charter on ils
head. ~rti'cle2 (4), the linch-pinuof the legal régime ofthe Charter, precludes
the use of force in international relations. That sweeping prohibition was suh-
iect to a narrow and limited exceotion in Article 51. That exception cannot
he turned into a '.scif-judging rekr\aiion" wiihout dcstro)ing the scherne ni
the Charter Yci that ir ju\t what the position urged hcrs hy the United States
would do.
Wher~ d~ ~ the United States discover the conceotion that underlies ils ara-
-
ment, the conception of an international system rigidly compartmentalized, with
functions assigned exclusivelyto one organ or another? 1 indulge here a bit of
orofessonal cüriositv. surelvit does notaet that idea from the Üronouncements
hr actions of the court. 1 &II not revieWagain the man). lud~rncnts dnd ~JW
in whichihc Court h>srcjcctcdthis noti<mof cxclusivciissignmcniof compeiencc.
(1, Mcmurial. pp. 97-113). And as ne have rhoun. II15surcly ndt dcrivcd from
the practisal sxpsrience OCihc United Nations in iuur dcsadcs of irying 10copc
uith the prohlems iif mainiaining intern3tinnal pîÿ~.cand srnurit). (Iyura rciicw
of the use, and expcriencc. see Mernorial. 1.par'ir. 184-2121
1think the answéris that the United Statecareurnent is an attemot to oroi. .
Anleric~nbcparation ui puu,err ihinkiiig upon the \ery ditkrent \ci ui in$titu-
tionç and organr th31comprise thc internntion3l ç)slern. 'lhus. for example. the
Counter-Mernori4 in its diseu,sion dl'thcsc isruei from timr io time u,es rhc
phrase "textual commitment" (e.g., II, Counter-Memorial. paras. 455, 458).
There is said to be a "textual commitment" of certain powers to one organ or
another. While the phrase is perfectly understandable, it is not to be found in
the language of the opinions of the Court nor in the works of international
publicists. It was used first by United States Supreme Court Justice William
Brennan in his opinion in Baker v. Carr (369 US 186,217 (1962)), and it has
hecome a touchstone in the elaboration of the "political question" doctrine in
American jurisprudence. 1refer you to Powell v.McCormack (395 US 486, 519
(1969)) and an article by Herbert Wechsler, "Toward Neutral Principles of
Constitutional Law" (73 Harv. L Rev. 1,7-9 (1919)). But there are many, many
references whichwould suooort that orooosition.
This phenomenon of to tknsker United States separation of powers
concepts wholesaleto the international plane is not uncomrnon arnong Amencan
1awve;s.As the Court mav be aware. 1 have induleed in it mvself on occasion.
Hui longer and rnorc carsful reflcction un the sirusturc ul' the iiitcrndtional
iyitcm rnakes IIclcar lh3t thcsccsnu.pt\ are ncitappliiable. xrta~nly in anyihing
resemhlina thcir undilutcd lorm. trithc rclütionsIimong-niernaiiunal institutions
for the seilement of disputes.
The American Constitution was an explicit effort to allocate al1the powers of
a single, sovereign federalgovernment arnong three major branches. The powers
do not overlap. The main structural principle of the Constitution is that no
branch should invade or exercise the powers given to another. lndeed each
hranch was given powers to defend itself against the encroachments of others.
This was the scheme of "checks and balances", so dear to the framers of the
Amencan Constitution. In oractice over two centuries. ofcourse. the svsternhas
not worked inany such rigid'andabstract way. Butthat'wasthe arChiteciuralplan.
It is not the architectural plan of the United Nations. The prohlem facing the ARGUMENT OP PROFSSOR CHAYES 137
framers at San Francisco, unlike that at Philadel~hia. was not how to divide the
whole body of governmental powers among ihe branches of one sovereign
government. It was to provide a variety of organs and institutionsthrough which
a multiplicity of sovereigns could work co-operatively on matters of common
concern and that they could use to adjust the frictions and disputes necessarily
arising in a community of sovereign and equal States. The solution was clearly
nul to distribute powers in a number of watertight compartments. It was to
provide a broad menu of institutional forrns that States could use as they saw
fit in the pursuit of their own purposes.
It is tempting for Americans to see in the United Nations, for example, the
shadow of a hicameral lerislature. and in the International Court of Justice a
reiiciiion ot uur i1u.nSuprcmc Couri !lui ihat in10 dirtori insiiiuiionsl rcaliiy.
The Chdrier pro\,idcj a Sesreiary-General. a Secrciariat. an Fcunumic and Social
Cuuncil. a Trurtr.exhir, Council 'Therc ISa mulii~l~citvuf s~siiali~erl United
Nations agencies, each with ils own charter and 'its péculia; set of legal and
political relations to the United Nations. These have no analogues in the
American system. And the idea of exclusivecompetences does not fitwell in this
environment.
That is not to Saythere are no limits to what a particular organ or institution
may do.
A court after al1is a court. Its function is to decide cases in conformity with
the methods and usine the materials familiar and traditional in the discioline of
the law. It is not supposed to make generalized political pronounceme~ts. But
there is nothing that prevents an international court, and especially this Court,
from deciding a case at law, properly before it, merely because another body has
competence with respect to or even is actually seised of the same general
suhject-matter.
Indeed, Mr. President, and Memhers of the Court, it is not a coincidence that
this Court and its predecessor, the Permanent Court, came into heing in the
wake of great world wars. They are the product of the yearning of people
everywhere for a world of peace under law. In the judgments of courts, they
sought protection from the clash of arms.
It is true that the Court cannot by its own activities hring about a peaceful
world. It is true also that in its day-to-day work in the peaceful settlement of
international disputes, the Court does no1ordinarily confront the issues of peace
and war in such stark terms.
But when the Court is asked to determine the legal rights and obligations of
the parties in a dispute concerning the use of force by a large and powerful State
against a small and weak one, it is called upon to perform the essential function
that eave it hirth.
This is such a case.
We have established the following conclusions:
The Court hasjurisdiction of thiscase by virtue ofthe declaration of Nicaragua
of 24 Septemher 1929 and the declaration of the United States of 14 August
1946,both of which by their terms comprehend the present dispute.
The Nicaraguan declaration is eilective hy virtue of the operation of Article
36 (5) of the Statute of the Court and by virtue of a course of conduct over 38
years hy the parties to this caseand other relevant States and international bodies.
The letter of the Secretary of State of 6 April 1984to the Secretary-General
of the United Nations is ineilective to suspend, modify or terminale the United
States declaration; and the third reservation to that declaration does not cover
this dispute. The Application in this case is in al1respects admissible. Neither the character
of this controversy, the actions of formal or informal international bodies, the
existence of a pardllel political negotiation, nor any provision of the United
Nations Charter, or other provision of law prevents the Court from hearing
this case.
The Court should now decide to proceed to the merits
Thank you, Mr. President, Members of the Court. STATEMENT BYMR. ARGUËLLO GOME%
AGENT FOR THE GOVERNMENTOF NICARAGUA
Mr. ARGÜELLO GOMEZ: Mr. President, Memhers of the Court.
The Court has now listened to the learned expositions of Nicaragua's counsel.
Nicaragua feels very grateful to the eminent international lawyers who have
given it such a highly professional counsel.
Nicaragua could not have brought this case before this high tribunal without
their help, because Nicaragua does not have lawyers trained and experienced in
international law.
Nicaragua came hefore this Court with the fim conviction that it was hound
by its jurisdiction. The legal conscience of Nicaragua has lived for almost 40
years under the conviction that Nicaragua was subject to the jurisdiction of this
high tribunal.
For this reason it came as a surprise to Nicaragua that there should be any
question about this. Our surprise was not about the existence of a footnote,
which we considered only as of historical interest about Nicaragua's situation
with respect to the defunct Permanent Court. Our surprise was about the pre-
sumed consequences that that footnote had.
Professor Brownlie kas given a vivid description of what an experienced
government legal adviser would do if he were investigating whether Nicaragua
had accepted the compulsory jurisdiction of the Court. Such a lawyer would
check the publications of this Court, of the Secretary-General of the United
Nations, publications of other nations (for example, Treuries in Force) and of
course the writings of eminent scholars. In al1of these he would finda listing of
Nicaragua.
Well,Nicaragua does not haveeminent scholars of international law. Nicaragua
does not have lihraries on international law. or for that matter ~~en~ad~ ~ ~e .~~ ~ ~ ~
records in its Government offices.A Nicaraguan Government legaladviser would
be well pleased if he could find the Yeorbook of this Court and the publications
of the United Nations Secretariat todo his research.
This research would lcavc him perfectly satisfiedthat Nicaragua was hound
hy this Court's jurisdiction, and this is what his Governmcnt would believe.
Could the suhsequent conduct of that nation that would feel itself hound to the
Court be called insincere?
Could this Court set a higher standard of, let us say, scholarship on a poor
and backward nation like Nicaragua than is set on its own Registry and
puhlications? After this case was filed and the question at hand raised, we
searched for any communication from this Court to Nicaragua requesting the
clarification of this purported irregularity, and have found none.
Further, could a higher standard of scholarship he set on the Nicaraguan
Ministry of Foreign Afïairs than on the corresponding Minisiries of the United
States, France, the Netherlands, Sweden and the Federal Repuhlic of Gemany,
that al1listed Nicaragua as bound?
If the Nicaraguan Government legal adviser were faced with a case hefore
this Court, he would in al1 honesty prohably consult a reputed international
practitioner on the affair. This is what Nicaragua did with Professor Bastid
in 1956 and the Court kas heard the opinion she gave as to the application
of Article 36 (5) of the Statute.140 MILITARY AND PARAMILITARYACTIVITIES
As Professor Brownlie expressed the point, there is no "pre-ordained process
of certification" for the application of the, let us say, transsuhstantiating efects
of Article 36 (5) of the Statute. The Nicaraguan legal adviser would be leR with
the ad hoc oninion of an eminent oractitioner and of course with al1the inter-
national puMications listing ~icara~ua.
Frankly, the Nicaraguan legal adviser would he acting in bad faith if he
advised his Governmeni that Nicaragua was not bound.
At the point we have reached, and even hefore it, we can safely say that the
objective world opinion locked Nicaragua inside Article 36 of the Statute. Nica-
ragua, without acting in bad faith, could not have held a diferent opinion.
At this point, the subjective opinion of Nicaraguan officiaiscould not change
what had become a legal reality.
Professor Chayes has analysed documents presented hy the United States to
try to prove that Nicaragua, Honduras and the United States did not believe
that Nicaragua was bound to this Court's jurisdiction. Professor Chayes kas
amply demonstrated where the truth lies. 1have preferred that Professor Chayes
explain Nicaragua's position as deduced from certain documents related to the
Arbitral AivardMade hy the King Spain on 23 Becemher 1906case, in order
to ensure a more objective presentation before this Court.
The plain truth is that the oficials of that period could not have held opinions
other than the ones we have explained here. It could no1depend on their will to
make Nicaragua's declaration valid or invalid.
Returning to the present, it is obvious that Nicaragua in presenting this case
has done so under the firm conviction that it has a right to do so.
For al1of this, 1repeat, it came as a surprise to Nicaragua that on 23 April,
14 days after filing Nicaragua's case, the United States should raise this matter
for the first time stating: "The United States wishes to bring to the notice of the
Court information that the United States recentlv received . . ."In al1sinceritv.
Nicarag~i iccls th21lhir ISsimply a smokc.scrccn IO diveri opinion lrum ihc real
is,ucr intoltcd in thi, raqc Ke~pcctlully.\\e bcg the Court t<> clcar ihc air.
Prolèbiori Hrorinl~canil Chayei ih~ticrcd the Icgal11)a.id c.Tc~.ti\cneiboi
Mr. Shultz's letter and of the p;rported reciprocity on which it also presumes
to rely.
I cannot presume to summarize the highly technicalexpositions on this subject.
My only endeavour at this point will be to briefly put before you the impression
these arguments have caused in Nicaragua. First of all, we are proud of our
early declaration of 1929. We are proud to have accepted international adjudi-
cation as compulsory unconditionally and without limit as to time and do not
helieve it can he changed. Nor would we want it modified - in the casual
manner the United States claimed to have a right 10do with its own declaration.
Second, weunderstand that - were itefiective - the declaration of Mr. Shultz
would be final - terminal - with respect to Nicaragua.
Third, this declaration was filed one working day hefore Nicaragua presented
its Application. At that lime public statements - which are recordcd in this
case - were made to the efect that the United States had information that
Nicaragua was coming hefore this Tribunal. Nicaragua did not itself give the
United States any notice that it would file this case.
To allow a powerful nation to escape the justice sought by a poor country,
becauseits highlysophisticated resourcesand technologypermitted it to anticipate
- to the hour - when a case would befiledagainst it, would no1he reciprocity
and certainly not justice.
Fourth, the declaration of Mr. Shultz is not with the intention - as in some
previous cases cited - of avoiding settling a land dispute or some commercialmatter, but of ohtaining a free hand to continue what we consider criminal acts
against our country. Nicaragua believes that the principle of reciprocity and
fairness would be badly served if they were no1 interpreted "in conformity with
the principles of justice" enshrined in Article 1of the Charter.
Fifth, Nicaragua feels that the same treatment should be given to this
declaration of Mr. Sbultz as would be ei-en - if the tables were turned - Io
s similar dcclaraiii>nof 'licaragua lissgainbl Ilineighbours in Central Amcrica.
Si~th. Nicardgua sgrees uiih the condemnaiion ihai the ,\mcricsn Sociei) di'
Inicrnaii<inal 1.3~ BJ~C IO ihis dcclariltion of Mr. Shulix. Thc Amcrican Sosiciv
of International ab is a group of eminent scholars. It has not previously taken
stands on public issues. It broke with more than 70 years of precedent to
denounce the attempt by the United States to escape thejurisdiction of this Court.
1will not tax the Court's time with anv further considerations on Contadora.
collccti\c self-dcicncr, shicncc of ihird part1r.r.etc.. hccausc whai ihc p~ssag01'
iinie iiseli h:ib niit Jr.siro)cJ sincc ihc prc~.nt.ition of <~urApplicsiii>n.~cri~iinl)
ihr.JreLmcnt, of Proic\\ors Cha\cs .inJ Pcllci and Mr I<eichlcrh;i\,cdonc so.
~ehave, Mr. President, madéit a point of honour to respect the indications
which you gave us regarding the necessity of heing as concise as possible in not
repeating the contents of the Memorial.
These considerations have Ied us to omit a certain number of arguments which
we developed in our Memorial and which we still assert.
This is the case, for example, with regard to the Treaty of Friendship, Com-
merce and Navigation concluded on 27 January 1956.
Nicaragua maintains that this Treaty constitutes a subsidiary basis for the
Court's jurisdiction in the present proceedings.
SUDMISSIONS
In concluding my address, it is appropriate Io present the submissions made
on behalf of the Government of Nicaragua.
Mr. President, the submissions are as follows:
Maintaining the arguments and submissions contained in the Mernorial
presented on 30 lune 1984and also the arguments advanced in the oral hearings
on behalf of Nicaragua :
The Government of Nicaragua requests the Court 10declare that jurisdiction
exists in respect of the Application of Nicaragua filed on 9 April 1984,and that
the subject-matter of the Application is admissible in its entirety.
Mr. President, Members of the Court:
This case kas aroused worldwide interest not because of the technical legal
problems involved, but because the world's hope for peace is placed on the pos-
sibility of a small nation obtaining sanctuary in this Palace of Peace. Nicara-
gua is here before you sincerely hoping there is a way for peace through law on
this earth.
With this, Mr. President, Members of the Court, we end Nicaragua's
presentation.
On my behalf and of Nicaragua's counsel we thank you, Mr. President,
Members of the Court, for your attention.
The Cour1 roseal 12.45p.m. TENTH PUBLIC SITTING (15 X 84, 10am.)
Presenr: [See sitting of 8 X 84.1
STATEMENT BYTHE PRESIDENT
The PRESIDENT: Before giving the floor to counsel for the United States, il
is my sad duty to observe a tradition of the Court to record the passing of sitting
Members of the Court by paying trihute to their memory. Since the last public
sitting of the Court, two former Memhers have died.
One of them was Judge Louis Ignacio-Pinto, who passed away on 24 May
1984. Educated in Dahomey, Nigeria, and France he practised law in Paris,
Conakry and Cotonou before becoming a Senator of the French Repuhlic for
Dahomey in 1946.He subsequently had a very distinguished career in government
and diplomacy beginning as Minister of Economic Affairs, Commerce and In-
dustry in the first Dahomey Government, and later holding numerous ambassa-
dorial posts including that of Ambassador of Dahomey to the United Nations.
He had been a member of the lnternational Law Commission of the United
Nations, having also sewed on the Sixth Committee of the General Assemhly.
He came to the Court as President of the Supreme Court of Dahomey. In the
field of international organizations he had held a numher of important posts.
His contribution to the work of the Court was unfortunately limited hy serious
illness which struck him down about half way through his term of office, but
was nonetheless valuahle for that.
More recently the sad news reached the Court of the death of Judge Vladimir
Koretsky, Member of the Court from 1961 to 1970, and Vice-President in thc
last three years. Judge Koretsky, who studied at the universities of Moscow and
Kharkov. was Leeal Adviser to the Soviet Deleeation to the First Session of the
Linilcd Nations central Assembly and suhseq;eni ,errions. and to the Council
of 1:oreignMinisiers in thc lirsi Peace Conrercnie in 1916 Ile was rïprcscniaii\c
of the USSR in several interaovernmental organizations and was a memher of
the International Law ~omm:ission. He was a-memher of the Permanent Court
of Arhitraiiun. Vicc-Chairman oiihc Suviet Internatiiinal Law A,,uciat~i>n.dnd
a memher oC the Acadeniy 0fScicnies <ifihc Ukrainian Soviei So~i.il~stKepublic.
Kin Avari fri~mhis work cilthe Ci7urt andin the United Naiionr. he w'isthc
author of more than 50 works and articles on public and private international
law and on general history of thc state of the law.
1now ask al1those present 10stand for one minute of silencein tribute to the
memones of Judges Louis lgnacio Pinto and Vladimir Koretsky.
Please be seated. 1now cal1on the Agent of the United States to hegin. ARGUMENT OF MR. ROBINSON
AGGNTFOR THE GOVERNMENT OF THE UNITED STATIISOF AMERICA
Mr. ROBINSON: Mr. President, distinguished Members of the Court. May
it please the Court.
It is an honour to argue once again in 1984before the International Court of
Justice in the representation of my country. The United States maintains
now, as it did in April, that this Court is manifestly without jurisdiction over
Nicaragua's claims. By appearing again to argue this conviction, the United
States reaffirrnsits commitmenl to the rule of law in international relations, and
its faith and expectation that this Court will rule on the issues presently before
it in accordance with that law.
The United States welcomesthis opportunity to present to the Court ils views
in oral argument on the questions of the jurisdiction of the Court and the
admissibility of Nicaragua's Application of 9 April 1984.The positions of the
United States are set out in detail in the United States Counter-Memorial of
17,\dgurt 1984 In occord.tnie uilh Ariiclc 6i<ilthe Kulci of Coiiri. the I:nilcil
Statc. ~ill focus in iiral srgumcnt on thdse i\rucï that still dividc the l'srtic< \4'c
shall Jo Our hcst. Mr. Prcsident. 1%)fidlow vour cntrc.itv For concireno> and
non-repetition.
Mr. President, the context in which oui argumentation on jurisdiction and
admissibility will be made must be set forth at the outset.
This case arises out of events in Central America. s~ecificallvarrned hostilities.
occurring throughout that region. As the United a ta tillexplain, those armed
hostilitiesare relevantto many of the issuesunder consideration in this phaseof the
proceedings. Conversely, and more importantly, these judicial proceedings have
significant implicationsforcurrent diplomaticefïorts to bring that conflictto an end.
The United States invites the Court's attention to three specificfeatures of the
armed hostilities in Central America: first, that those hostilities entend across
State borders and involve al1 the States of the region: second, that, although
there are complex economic, social and political causes that underlie the
hostilities, the hostilities also hdve a more direct ca-se the armed attacks of
Nicaragua aeainst ils neiehbours: and third. that a durable neace in Central
me ri& canonly be exgected from multilateral negotiationS among al1 the
interested States that comprehensively address the economic, social, political and
security problems that plague the region.
Such negotiations are already under way in the Contadora process, a frame-
work that has been endorsed by the United Nations Security Council and the
Organization of American States. All of the Central American States, including
~icaraeua. have aereed to the Contadora urocess. II is the view not onlv of the
~nitcd'~i~tcs hut ;lso oisIl the Central ~iiicriidn Staics sihcr than ~iraragua
thai aJjudioiiir>nby ihi, Court of Sic;ir;igu:~'shilateral iliim:ty hc cxpc:ie<l
to hinder, not assist, those delicate negotiations.
United States Secretary of State Shultz summarized the multilateral character
of the disputes in Central America in his sworn afidavit of 14 August 1984,
submitted with the United States Counter-Memorial:
"There has been widespread recognition that, despite Nicaragua's efforts
to portray the conflict as a bilateral issue between itself and the United144 MlLlTARY AND PARAMILITARYACTIVlTlES
States, the scope of the conflict is far hroader, involving not only cross-
border attacks and Stdte support for armed groups within various ndtions
of the region, but also indigenous armed opposition groups within countries
of the region. It has been further recognized that under these circumstances,
efforts to stop the fighting in the region would likely be fruitless and
ineffective absent measures Io address the leeitimate economic. social
and political grievances of the peoples of the rezon which have given rise
to such indigenous armed opposition." (Counter-Memorial, Ann. 1, II,
p. 178.)
In a statement in April to the Security Council of the United Nations by its
representative, Honduras similarly stated:
"[Tlo cast the Central Amencan problem in terms of Nicardgua's interests
. .i~ a c~.ceotual error. It is not iust one countrv which is aflected: it is
net only oric country \\hich is surkring iriim c~nlli:ts. II is no1 only one
pcopl: uhich 13 buikring and hca.ailiiig the i;iie ui ils children . . Ilis a
Central Amcriwii orobleni ünil IImu<[ he siilicd rcei~iii~llv."!Counier-
Memorial, Ann. 66, UN doc. S/PV.2529, II, p. 324.) - . ,
To the same effect, the Government of Costa Rica advised this Court on
18April 1984:
"-~~~'c~s~ ~or~sented bv the Government of Nicaraeua touch-s uoon
only one aspect of a more generalized conflict that involves other countries
within the Central American area as well as countries outside the region."
(II, Counter-Mernorial, Ann. 102.)
And El Salvador stated to the Court in its 15 August 1984 declaration of
intervention that :
"ln [its] view everyone has acknowledged that the Central American
phenomenon has moved beyond the scope of simple hilateral treatment
and has hecome a regional issue entailing the participation of multilateral
interests." (Declaration of Intervention of 15 August 1984,11,p. 457.)
Nicaragua's attempt to characterize the dispute underlying its claims as hilateral
is thus belied no1 only hy the views of the United States but also by the official
views of the other GoveÏnments of Central America.
Nor can there he any serious dispute that Nicaragua aids, ahets, incites, pro-
vokes, and often initiates armed attacks against its neighbours. Thus, Secretary
of State Shultz ohserved in his affidavit of 14August 1984:
"The information available to the Govemment of the United States
through diplomatic channels and intelligencemeans, and in many instances
confirmed hypuhlicly available information, establishes that the Government
of Nicaragua has, since shortly after its assumption of power in 1979,
engaged in a consistent pattern of armed aggression against its neighhors.
Other responsible officiais of the United States Government, including the
President and the responsible cornmittees of the United States Congress
having access to such information, share this view." (Counter-Memorial,
Ann. 1, II, p. 177.)
In confirmation of Secretary Shultz's statement, it may be noted that, in
Decemher 1983, the United States Congress made an explicit statutory finding
that Nicaragua was "providing military support (including arms, training, and
logistical, command and control facilities) to groups seeking to overthrow the
Government of ElSalvadorand other Central American Governments" (Counter- ARGUMENT OF MR. ROBINSON 145
Memorial. Ann. 42. Stat. 1473. 11.o.2..). More detailed findines with -esoect
to Nicaragua'. aggre,siiin agdinst its neighbours niay bc found in a .Va) 1983
report of the Pcrnianeni Sclect Commitiec on Intelligence 01'the IJniicJ States
Il<>uscof Kcnrc\cniatiirr. uhich is uuotcd ai 11.o3c,.-7. of t.e Unitcd Siaie,
~ounter-~ekorial.
The States of Central America confirm the conclusions of the United States
in this regard and have so informed this Court. The Government of the Republic
of El Salvador, for example, stated:
"El Salvador considers itself under the pressure of an efkctive armed
attack on the part of Nicaragua and feels threatened in ils territorial
integrity, in ils sovereignty, and in its independence, along with the other
Central American countries . . El Salvador cornes here to affirm before the
International Court of Justice and before the entire world, the aggression
of which it is a victim through subversion that is directed by Nicaragua,
and that endangers the stability of the entire region." (Declaration of
Intervention of 15August 1984,11,p. 451.)
The representative of Honduras stated to the United Nations Security Council
in April of this year - just a fewdays before Nicaragua's Application was filed:
"My country 1,thc objcit of :iggrci.;ionniailc nianifr.\t ihrough d numbcr
01' incidrnts hy Yi:.iragu;i cigainil our tr.rrit.>riaI intcgrit) and ci\,iIiaii
riopulliti~in.Thosc clcnicnis which h:i\c ohli~eJ tl~inJurlic 'ici ,trcnrilicn
itsdefences are mainly the disproportionate amount of arms in ~icar&ua,
the constant harassment along our horders, the promotion of guerrilla
groups which seek to undermine Our democratic institutions, and the
warmongering attitude of the Sandinist commanders." (Counter-Memorial,
Ann. 60, UN doc. SJPV.2529,II, p. 324.)
To the same eflect, the Government of Costa Rica has repeatedly made
diplomatic representations to Nicaragua protesting "attack[s] on Costa Rica
territory . . .and on members of the armed forces of Costa Rica"; "gratuitous
aeeression" bv Nicaraeud: and "Aaerant violations of the national territorv" of
~%a Rica (Counter-bemorial. ~nn. 63). Numerous other examples of ;tate-
ments by Central American Governments complaining of Nicaragua's aggression
toward them, and additional evidence confiking those complaints,-may be
found in the United States Counter-Memonal and the Annexes thereto.
Nicaragua, Mr. President, has repeatedly made sanctimonious statements to
this Court, including a sworn statement by Nicaragua's Foreign Minister, that
Nicaraeua is not enilaeed in armed attacks aeainst its neiehbours. Mr. President.
as we Lavejust show;, these statements aredirectly conÏradicted by the pubhi
statements of al1 of Nicaragua's neighbours and by al1 of the senior United
States officials- in both Ïhe executive and the leeislative branches - with
access to the full range of relevant diplomatic and inïelligcnce informalion.
The bloodshed in Central America extends throughout Central America, and
one of its principal causes is the aggression of Nicaragua.
The question that al1responsible statesmen must ask is, how can this bloodshed
most efiectivelybe ended?The States of Central America, including Nicaragua,
have agreed that the multilateral Contadora negotiations oiïer the best hope
' Urigixi;irlt;ii"\lc;ir;ig-A" h:r:l'hi5ni\ ;<>rrri.iJ ):iIciicr 0125i\pril14x1 Trom
ih~tiri\~~rnniinuTIlonJ~rario ihiSecrci~ri~i.ifihrt.nii<JSliiun\ S:ilasi.unniimhr.rr..i
pcSgrdf L'ni1i.S1air.rnne, hi1 r.~,>ri.~li/~~,l146 MlLlTARY AND PARAMlLlTARYACTlVtTtES
for a lasting peace in the region. The United Nations Security Council, the
Organization of American States, and, most recently, the Foreign Ministers of
the European Community have al1endorsed the Contadora negotiations.
The United States, too, supports the Contadora negotiations and is engaged
in bilateral negotiations with Nicaragua in support of those multilateral talks.
Just 10days ago in New York, at the United Nations General Assembly session,
Secretary of State Shultz cited the Contadora process as "an outstanding
examole" of how States mav resolve their most bitter disaereements. Secretarv
~hul<% thcn ubscrvcd ihat ~Atadura ..carilead tu ncg<>ti3teJ'arrangu enmer~~
which riahility and Face and cconomic developmcnt arc much more possible
We support that process."
In ils oral presentation to the Court las1week Nicaragua attempted to portray
the United States of America as a major obstacle to the successful achievement
of Contadora's objectives. Nicaragua argued at that lime, that it is willing to
sign a draft agreement, the so-called "Acta" and that only the United States is
preventing the general acceptance of that draft by al1 the Central American
States. Mr. President, nothing could be farther from the tmth.
Contrarv to Nicararua's assertions. the United States has welcomed the
17~r~tcmhcr dr;iit ACG a.: a \igniiiîant ad~ance in the ContaJorn procesr. The
Court ivill<cc fr.>m ekamining th- iI<>cunieni(Docuiiients Subriiitic<l b) ihc
I.'nitcdSiatci.11. .,p. 3?U,No 1)that the 17Scptcmhcr Jrsli ,leta is onls ivhdt
il purports to be - a draft. The document contekplates comments by intérested
parties. Those comments, indeed, are due today - 15October 1984.
The United States has objected only to Nicaragua's demands that the Central
American States hall their negotiations and make a final agreement from what
is on ils face an intermediate draft. The present draft is clearly incomplete with
respect Io several of the most important issues. By way of example, the Court
will note that the draft Acta contemplates that there will he a commission for
verification and control to verify the commitments to end illegal traficking in
arms and support to paramilitary forces. The commission will thus be required
to conduct surveillance in the fiveStates of the region, along thousands of miles
of border and coastline, through iunele and mountainous terrain. Yet, the draft
Acta fails 10specify the comp~si<on-of the commission, it fails to provide for a
budget or stalT,and it fails to determine the location of the commission's head-
quarters and fieldoffices.
What is important to emphasize here is that the view that further changes are
necessary is shared by al1 four of the Central American States other than
Nicaragua and by the four Contadora States themselves - Mexico, Colomhia,
Venezuelaand Panama. All of these States have made statements indicating that
further negotiations are necessary. This view is also shared by the States of
Western Europe, as reflected in a joint communique of 29 September of the
Foreign Ministers of the European Community, Portugal, Spain, the Central
American States, and the Contadora States, al1meeting in Costa Rica. The joint
communiquéspecificallydescribes the draft Acta as a "stage" in the Contadora
negotiations, not as the conclusion of the negotiations (Documents Submitted
by the United States, infra, p. 341, No. 2).
Mr. President, Nicaragua alone wishes to stop the Contadora negotiating
process at the stage of an intermediate draft agreement. Under these circum-
stances, Nicaragua cannot plausibly contend that it is the United States that is
blockinn-.oro-ress in those nenotiations.
Jusi as IIis hicarligua .iluric thai sccks tu prcicnt iuriher Cuniadora ncgo-
tiations.11 1sNicar.igu~ alone thai seeks io adjudicatc bilatcrsl arpcctr oi ihow
muliilaterlil ncg~iiiatiiinsbcfc~rcthis Court. Againit iruseful 1.1quote the other ARGUMENT OF MR. ROBINSON 147
Central American States in this regard. Thus, El Salvador stated in its letter to
the Court of 17September 1984:
"El Salvador is persuaded in the considerarionosf irs own survivalas a
nation that to suhiect an isolated asnect of the Central American conliict to
judicial determination at this lime would cul straight across the best hopes
for a peaceful solution . . .(Emphasis added.)
To the same effect, Honduras advised the Secretary-General of the United
Nations on 18April 1984as follows:
"Once again the Government of Nicaragua is seeking to Bout the Con-
tadora negotiation process by attempting to bring the Central American
crisis, essentially a political issue,under the jurisdiction of the International
Court of Justice. This is detrimental 10the neeotiations in nroeress and fails
to rec&nize the resolutions of the United Nations and iheU0rganization
of American States or the full international endorsement that the Conta-
dora peace process has so deservedly received." (II, Counter-Mernorial,
Ann. 104 - 1,p. 309.)
In a press release of 16April 1984,Guatemala stated:
"The Central American issue should be discussed by the Contadora
Croup; [and] any attempt to seek another forum or international body in
order to discuss security problemsof a political, econornic,and social nature
has a negative impact on the Contadora process." (ii, Counter-Memorial.
Ann. 105 - 1, p. 310.)
And Costa Rica advised this Court in April:
"Whatever measures which the dourt might adopt in the 'case' presented
For its consideration, taking such measures outside the context of the
completepoliticaland militarysituation that prevails inthe Central American
region, could become a distorting factor in the difficultequilibrium sought
hy the Forum of Contadora in a broader framework of solutions and could
compromise, if not undertaken with prudence and equity, al1possibilities of
successfor the 'Forum of Contadora'." (II, Counter-Memonal, Ann. 102 -
1,p. 306.)
There is, therefore, Mr. President, unanimous agreement among the Central
American States other than Nicaragua that adjudication of Nicaragua's claims
by this Court seriously nsks undermining the possibilities for Contadora's
achievement of oeace in Central America. Surelv. thisanorehension willcome as
no surprise to the experienced itatesmen and jinsts of ;GisCourt.
Complex multilateral negotiations require a delicate balance of concessions
and compromises. If, in themidst of such negotiations, one party achievessome
or al1 of its negotiating objectives elsewhere,the balance of concessions and
compromises maybe irretrievably upsct. lndeed, the negotiating equilibriummay
be profoundly disturbed if the parties even believethat one of them may achieve
its objectives elsewhere.As Secretary Shultz ohserved in his 14August affidavit :
"The United States considers . . . that in the current circumstances
involvin"~"neoineuhostiliti~~. ad>udication is ina.. .nriate and would be
extremely prejudicialto the existingdispute settlementprocess . ..To permit
one party to create a parallel dispute settlement process dealing with only
one asoect of the disuute and of the issues requked to be addressed in a
compréhensivesoluti6n would alfect adversely ihe current multilateral and
bilateral negotiating processes encompassed in the Contadora framework,148 MILITARY A~D PARAMILITARYA~IVITIES
and could, in the opinion of the United States, delay, if not forestall, an
end to the fighting." (Counter-Memorial, Ann. 1, II, p. 180.)
Mr. President. the potential problems for the Contadora negotiations are no1
the only fundamental issues raised by the present proceedings. The present
proceedings also raise basic questions with respect to the nature of this Court's
jurisdiction and the functioning of the United Nations system as a whole. At
issue are, inrer alia,the allocation of functions among the institutions of the
United Nations by the United Nations Charter, and the principles of State
consent, reciprocity, and equality of States that are the fundamental premiscs
for this Court's jurisdiction over disputes between sovereign States.
The specific arguments of the United States with respect to jurisdiction and
admissibility must, therefore, be viewed in light of (1) the relationship of these
judicial proceedings to the current diplomatic efforts to end armed hostilities in
Central America; (2) the implications of acceptingjurisdiction over Nicaragua's
Application for the continued viability of the compulsory jurisdiction of this
Court; and (3) the proper relationship of this Court to other United Nations
organs.
The United States will make five specificarguments in this regard during this
round of oral proceedings.
First, Nicaragua has never accepted the compulsory jurisdiction of this Court
under the Optional Clause contained in Article 36 of this Court's Statute. Nica-
ragua does not, therefore, have the legal right to invoke that jurisdiction against
the United States. This argument presents this Court with the unprecedented
question of whether a State that kas never agrced to be a respondent may now
appear before the Court as an applicant. The plain terms of the Court's Statute,
supported by an ovenvhelming mass of secondary evidence, indicate that it may
not. It would, moreover, transgress the basic notions that underlie this Court's
adjudicative function: first, the requirements of sovereign consent to any judicial
process; second, the need for reciprocity of obligation between the States
concerned; and third, the sovereign equality of States. These fun-
damental tenets of legal relationships among nation States will be violated if
Nicaragua is permitted to present claims before this Court after decades of
Nicaragua's knowing refusal to submit itself to ciaims by other States. lt will be
the privilege of the Agent of the United States to address this fundamental
jurisdictionaldefect that results from the manifest failure of Nicaragua to accept
the compulsory jurisdiction of this Court.
Second, jurisdiction is necessarily absent because the United States, too, has
not consented to adjudication in the circumstances of this case. Nicaragua's
claims come within the scope of a reservation to the United States 1946
declaration known as the "Multilateral Treatv Reservation". This areument -
requiro ihc Court tu apply rhc pliiin langudgc of me ul ihr bïric condiiiun,
upon uhich the United Siarcs consenicd to ihis Court's i<impul\i>r)~urisdiitiiin
undcr the O~tiunal Clause This puini has additiunal sicnifi~.ïncebecau,c Cive
other States have identical or simiiar reservations to their>eclarations. Thus, the
Court's interpretation of the reservation of the United States will necessarily
affect their rights as well. Deputy-Agent of the United States, Patrick Norton,
will discuss this reservation following the presentation of the United States
Agent. And it is a privilege, Mr. President, to have had the opportunity to work
with such an able and outstanding colleague.
Third, Nicaragua's claims come squarely within the terms of a 6 April note to
the Secretary-General of the United Nations that temporarily modified the
United States 1946 declaration before Nicaragua's Application was filed on ARGUMENT OF MR. ROBINSON 149
9 April 1984 Irrcrpn.iii~c of ihe applicabilii). i)Iihc Multilîieral 'ï'rrdly
Kescwatiiin. Nicaragua's claimsare excludcd by ihc 6 April noic from ihc scope
of the bnitcd States con\cnt Io this Court's iurisdiiiion Ihis a-aumcnt also rocs
IO thc ver).root of this Couri's compulsory jurisrliction, ihat is, to ihc mandaiory
rcquircmcni of State con\cni. 'Thequestion is does the Court hai,ejurirdiclion
under Article 36 (2) of its Statute uhcn. belore an application is lilcd,a Jeclarani
Slatc indicaies unequivo:nlly thatilJi~esno1conscnt io thi.:Court's ~djudic~tion
of the cl.iim. iniolved?Stiitc practicc and the jurispruitcncc ofihij Court rcquirc
a rulina that the Court does not have iurisdiction under these circumstances. It
is my honour, and the honour of the United States indeed, that the effect and
validity of the 6 April note will be explained by Professor Myres McDougal,
Sterling Professor of Law, Emcritus, of the Yale Law School, and Professor of
Law of the New York Law School.
Fourth, Nicaragua's Application requests, in eiiect, a determination by this
Court to perform the functions that the Charter of the United Nations confides
to the political organs, in particular the Security Council, with respect to
situations of on- -ine armed conflict. The Nicaraeuan Aoolication concedes that
ils claims before this Court are identical to tho; it pl&ed before the Security
Council in connection with its request that the Council determine the existence
of a threat or breach of the peace, or of acts of aggression.
The April Application of Nicaragua therefore presents one of the most im-
portant institutional questions that has evcr come before this Court - the
proper allocation of functions among the institutions of the United Nations.
Nicaragua's claimsare entrusted by the United Nations Charter to resolution by
the political organs of the United Nations, and in this case to resolution by the
regional arrangement known as the Contadora process - not to this Court. It
is the privilege of the United States that this question will be addressed by the
renowned authority on the United Nations Professor Louis Sohn, WoodrulT
Professor of International Law at the University of Georgia Law School and
Bemis Professor Emeritus at the Harvard Law School.
Fifth. reeardless of whether this Court has iurisdictiosrricrosensu.the Nica-
raguan'~$lication is also inadmissible on eich of four additional and separate
grounds. The Application would necessarily present the legal interests of States
iot party to the case as the very subji2-matter of decision. The Appli-
cation would necessarilyinterfere with universally endorsed regional negotiations
to end an on-going armed conflict.The Application would necessarilydismpt the
political mechanisms IO which the Charter has entrusted situations of on-going
armed conflict.And finally,the Application would nemsanly require adjudication
of claims during on-going armed hostilitics and, as such, would present severe
obstacles to the judicial role of the Court in the discovery of tnith and in the
fashioning of an effectiveremedy. 1am pleased indeedthat tbese questions willbe
discussed by Professor John Norton Moore, Brown Professor of Law at the
University of Virginia and my colleaguc in al1of the matters that I have had the
privilegeof addressing heforethe International Court of Justice in 1984.
Each of the fivearguments of the United States is independent. None requires
the devclopment of any further record nor any enquiry into the merits of Nica-
ragua's substantive claims. Each is now before the Court as an immediate
basis for dismissal. If the United States is correct with respect Io any one of the
five arguments, that is, if Nicaragua is unable to meet its burden of persuasion
10 the contrary on each of these arguments, Nicaragua's Application must be
dismissed.
Mr. President, hefore the United States commences its discussion of the first
argument relating to Nicaragua's own lack ofconsent, wewishto cal1the Court's150 MILITARYAND PARAMILITARYACTIVITIS
attention to the relative responsibilities ofthe Parties in the present phase of the
case. Counsel for Nicaragua has correctly noted (p. 42, supra) that, consistent
with standard practice in al1judicial fora, this Court rules in theTemple(CPreah
Vihear case that "the burden of proof. . .willof course lie on the party asserting
or putting" forward a contention (LCJ. Reporrs1962, pp. 15-16),As the Agent
of Nicaragua said in a different and inappropriate content in last week's oral
oroceedine. "The burden of p roof is on the accuser" l~. II., su.ra,. Nicaraeua
asserts th; there isjurisdictiin over its claims and that its Application is ad&-
sible. The burden of sustaining those contentions. in the words of the Court,
"will of course lie on" ~icaragÜa.
This result, moreover, is clearly foreseen by the Rules of Court and reflected
in the Orders of the Court to date in this case. Article 38of the Rules of Court
requires: "The Application shall specifyas far as possible the legal grounds upon
which the jurisdiction of the Court is said to be based . . ."Article 38 thus
indicates that il isthe applicant who must satisfy the Court of the "legal grounds"
for jurisdiction and admissibility.
Further, the Court's Order of 14 May directed Nicaragua to proceed first in
the written pleadings, and the President of the Court, at a meeting with the
Agents on 5 October, directed, with no objection from either Government, that
Nicaragua proceed first in oral argument. This order of pleading clearly implies
that the burden rests with Nicaragua on the issuesofjurisdiction and admissibility.
The order of pleading also conclusively refutes the suggestion of Nicaraguan
counsel last week (p. 41, supra) that the case is at the stage of preliminary
obiections under Article 79 of the Rules of Court. In this reeard.-Article 79
sp:cili~.;illvrequircs the rcbponiien10 plcad lirii whcn prclimtn:ir! <~hjectlonsare
in isiur. Tliat i\riicle 79 is in:ipplic.tble in [hi.; st1,alvi mddc clrdr b) the
Court's Orders iii10and 14May 1984whichmake no reiercncc ICIih:it Drovisitin.
Furthermore, the current procedural stage is in keeping with a line of irecedents
that began with the FisheriesJurisdicrion cases.
Mr. President, the United States would submit that the present phase of pro-
ceedines raises analoeous considerations to those underlvine Article 53 of the
~iaiuieof the Court pursu;ini 10 which ihe Ci>urtmusi siisfy iiwlf -thai ithas
jurid~ciion" Thui. in ai leart ,ix prior rasc?. ihe Court ha, dtrcçicd the applicani,
even in the ahsencc of ihc rcspiindcnt. IO saiisfv the Court ihÿt ithad iurihdictiun
and the same reasoning applies to of the admissibifity of the
Application. (See the two FisheriesJurisdicrinn cases, I.C.J. Reports1972, p. 3
at pp. 8-14, and ihid.,p. 49 at pp. 54-63; the two Nuclror Tests cases,
ICJ. Reports 1974, p. 253 al p. 259, and ibid.,p. 457 at p. 463 ;the Trial O/
PakislaniPrisonersof War case,I.C.J. Reporrs1973, p. 330, and the AegeunSea
ContinentalShelf case, I.C.J. Reporrs1978, p. 3 at pp. 13 et seq.) Nicaragua
bears the same burden here.
Mr. President, with the Court's permission the United States would like to
make one final prefatory remark. The United States has for many ycars been
among the strongest supporters of this Court and of international adjudication
generally. Consonant with this long-standing history of support for the Court,
the United States wishes to emphasize at the outset of these proceedings that it
considers the jurisdictional and admissibility questions before the Court today
as of grave significance no1 only for the situation in Central America but also
for the continued eiïectivenessof the compulsory jurisdiction of the Court under
the Optional Clause.
Furthermore, it mus1 be recalled that the judicial settlement of international
disputes is but one of the proper means of peaceful settlement of certain
international disputes. In certain circumstances, like those presented here, the152 MILITARYAND PARAMlLlTARY ACTIVITIE
on shifting assertions of fact, as to why it maintains that it has adhered to this
Court's compulsory jurisdiction. Even a casual perusal of the Application of 9
April, of Nicaragua's letter to the Court of 24 April, of Nicaragua's Memorial
of 30 June, and of Nicaragua's oral argument last week reveals an extraordinary
series of mutually inconsistent arguments. Nicaragua has put fonvard first one
theory and then, after the United States has conclusivelyrefuted that theory, put
fonvard another theory inconsistent with the first. Let us cite one example in
particular.
In a letter to the Court of 24 April, and during the subsequent oral proceedings
on 25 and 27 April 1984on Nicaragua's request for the indication of provisional
measures, Nicaragua represented to this Court that Nicaragua had adhered to
the compulsory jurisdiction of the Permanent Court. This Court will recall that
the Nicaraguan letter was in response to a letter from the United States of
23 April 1984.The United States letter pointed to ovenvhelming and unrebutted
evidence that Nicaragua had no1 adhered to the Optional Clause of the Statute
of the Permanent Court because Nicaragua had in fact failed to ratify the
Protocol of Signature to that Court's Statute. As the Court recalls, a deposit of
an instrument of ratification to that protocol was a mandatory requirement by
the very terms of the protocol and yet al1the evidence showed that Nicaragua
had never made the necessary deposit. The United States requested, on these
grounds, that no further proceedings should be conducted on Nicaragua's
Application.
The Nicaraguan letter of 24 April, in response, provided the following
assurance to this Court: "Nicaragua ratified in due course the Protocol of
Signature of the Statute of the Permanent Court." That is what that letter said,
Mr. President : "Nicaragua ratified in due course the Protocol of Signature."
During the Apnl oral proceedings, Nicaragua termed the claim in the United
States letter of 23 April as "not true" (1, p. 43). Nicaragua then provided an
additional assurance to the Court:
"ln the present instance,Nicaragua accepted thejurisdiction of the Court
without reservations more than 50 years ago, and has always considered
itself subject to the compulsory jurisdiction of this Court." (1, p. 40.)
But, Mr. President, with the filing of ils Memorial of 30 June 1984Nicaragua
no longer stood bv the assurances that it gave to the Court in Avril. but to the
contrary from thai time forward has flatlycontradicted those assuian&. It bears
recalling that the Court relied on Nicaragua's Apnl assurances in ruling on
Nicaragua's request for ~rovisional measures. However, Nicaragua's Memorial
of 30 June toially rep;diated those prior assurances. In its-~ernorial (I),
Nicaragua stated, for example: "Nicaragua never completed ratification of the
old Protocol of Signature . . .(para. 47). Let merepeat that and compare that
to what wds assured in April: "Nicaragua never completed ratification ofthe
old Protocol of Signature." Mr. President, as if this were not enough, the
Memorialof 30lune alsostatedthat Nicaragua'sdeclaration under the Permanent
Court system was, and 1quote here from a succession of admissions, "inopera-
tive" (para. 31). "insufficien1 in itself to establish a hinding acceptance of
compulsory jurisdiction" (para. 47), and not "fully in effect" (para. 27).
Continuing, the Memorial stated that thc 1929 declaration only "came into
force" (para. 72) and only acquired "hinding force" in 1945upon the entry into
force of the United Nations Charter (para. 74), a proposition for which the
Court will search Nicaragua's Application and oral argument in April in vain
for any reference. ARGUMENT OF m. ROBINSON 153
This is tmly startling, Mr. President. A State has come before this Court,
renresented a certain state of aîïairs to the Court for one ohase. reoresentations
uion irhich ihe Court relicd. and ihcn has repudiaisd [ho& rcprcse~iations aiicr
ihc Court har indicaicd proviçional mcasures and insirucicd the Pariics in the
next phase to address the Court's jurisdiction to entertain the dispute and the
admissihility of the 9 April Application. To our knowledge, Mr. President, this
is an unprecedented abuse of the Court by a party seekingthe Court's assistance,
and is totally contrary to general principlesof international law, and particularly
to any conception of due process.
Mr. President, the particular legal issue before the Court in connection with
this matter is really quite simple: Has Nicaragua adhered to the compulsory
iurisdiction of this Court oursuant to Article 36 of this Court's Statute? The
crinclus~onthai Niiaraguï has niit asirpicd this Couri's iornpulsory juricdictiiin
is c\,ident from certatn bwc rqually simple proposiiionj.
Fiui. as noted. Nicaragua snczilicallvadmiiicd in 11s!vlernorialof30 Junr and
contraj to its April asGrances, that.~icara~ua never ratified the Protocol of
Signature under the Permanent Court system. The record in the case, moreover,
now demonstrates heyond dispute that Nicaragua deliberately refrained from
~ ~ ~~~"~ts~ ~ t~ ~he ~o~ ~l.orv iu,i>diction of that Court as well as to the
compulsory jurisdiction of this Court.
Second, Article 36 (5) of this Court's Statute hrought into eiïect for this Court
only those declarations under the Permanent Couri system that were "still in
force" both formally and temporally on the date that the United Nations Charter
entered into force. The United States suhmits that the plain meaning of the
phrase "still in force" is "having come into full legal force and remaining in
force". That is the onlv meanine that is consistent with the terms of the Statute
of ihc Pcrrnancni Court and ils I'roiocol of Signÿiure and wiih ihc ternis of ihe
Siaiute of this Court. The optnioni of [hi%Couri snd the unanirnous \,icus of
ihosc reinonsihlc for Ariiilr 36 (5). as well as subseauent indepcndeni schol~rly
. .
opinion, support this conclusion and none other.
Third, the Registry of this Court, in listing Nicaragua sincethe 1946 Yearbook
as a State party to the Optional Clause of this Court's Statute but with a
cautionary footnote, has never so listed Nicaragua because the Registry helieved
that Articte 36 (5) "perfected its declaration" of 1929 under the Permanent
Court system and "gave it binding force" (1, Memorial, para. 178 (E)). The
Registry of this Court expressly rejected this possibility heginning with the very
firstYearbook in 1946.The rejection is apparent from the 1946cautionary foot-
note.
Nicaragua appeared in the 1946listing of the Yearbook due to confusion over
events suhsequent to Nicaragua's 1939telegram and uncertainty in 1946in the
Registry in The Hague over what might be contained in the Archives of the
League of Nations as depositary of the Protocol of Signature in Geneva.
The League Archivist authoritatively confirmed in 1955to the Registry of this
Court that Nicaragua had never ratified the Protocol of Signature under the
Permanent Court system. On such basis, the Registrar of this Court at the time
concluded in a detailed written opinion that it was "impossible" to consider
Nicaragua hound tu this Court's compulsory jurisdiction under Article 36 (5) as
a result of Nicaragua's ratification of the United Nations Charter and ils entry
into force in October 1945. Since the issue had not heen adjudicated by the
Court and since the Honduras-Nicaragua boundary dispute was known by the
Reeistrar to be nendine au the time. the Reeistrar. recoenizin- the uiolomatic
delLacy of the matter, retained Nicaragua inïhe Yearbook listing, but appropri-
ately amended the cautionary footnote in the Yearbook of the followingyear. 154 MILITARYAND PARAMILITARYACTIVITIES
Fourrh, al1 of the other listings of Nicaragua as bound by the compulsory
jurisdiction of the Court appear IO have relied uncritically on the Registry's
Yearbooklisting or on a comparable misunderstanding of Nicaragua's true status
under the Permanent Court of International Justice. None of those listings was
based on the theory that Nicaragua first advances in its Memorial with regard
to Article 36 (5). The listings are a house of cards built upon this Registry's
1946 Yeorbook.Remove the Yearbook'slisting and replace it with the certainty
that, as Nicaragua admits, it never ratified the Protocol of Signature, and the
entire edificecollapses.
Andmh, in the 55 years since Nicaragua's declaration, and in the 38 years
since Nicaragua adhered to the United Nations Charter, no Nicaraguan
Government officia1ever stated hefore the Memorial of 30 June that Nicaragua
had hound itself to the comoulsorv iuris,i>tion of the Permanent Court -~~ or of
thir Court To thc conirxry. tl;c record 15 rcplcic with oficial ~noiicc,io ~is<ir:i~ua
thai IIhad >riilbodnd it.*ell'to the Pc.rmancnt C'ourt'soptional cl au,^ :incl with
evidence that Nicaraman officiaiswere fullv aware of ihis and vet knowinelv b,
chosc IO do noihing :bout II Furthcr. the Governmrni of iVisarü&u"spcifirally
reprrscnied Io ihc Uniicd States Govcrnment in 1913ihat ii u,as nui buund ti>
lhe com~ulsorv iurisdictiiin of ihr t'crmancnt Coun. and in 1955and 19%. that
it was not boina to the compulsory jurisdiction of this Court.
MI. President, thcse are the themcs the United States will explore today in its
presentation. Many of them are relevant only because Nicaragua kas brought
them into question or because Nicaragua has confused both the facts and the
law. The United States presentation will proceed in four stages.
First, the United States will describe Nicaragua's status with respect to the
Permanent Court. Although Nicaragua now freely concedes that it was not
subject 10that Court's compulsory jurisdiction, it is useful Io review this history
bneiiy to set the stage for the real issues to follow.
Second, the United States will demonstrate on the basis of al1 the materials
relevant to inter~retinr!Article 36 (5) of the Court's Statute that this orovision
cannot and was'not intendcd to mèan what Nicaragua asserts for the'first time
in its Memorial. namely that a State such as Nicaragua, which had deliberately
chosen no1to bind itself under the mandatory requirements of the old svstem O-f
compulsory jurisdiction, would be automati&lly forced, by ratifying théUnited
Nations Charter and the accompanying Statute of this Court. Io adhere to the
compulsory jurisdiction of this Court.
Third, the United States will demonstrate that there is no place in this Court's
law or practice for a theory of compulsory jurisdiction which dispenses with the
requirements of this Court's Statute. Nicaragua has referred to this alternative
theory as one based on the conduct of the Parties. In reality, il is a theory that
contradicts and rejects the very terms of the Statute of this Court.
Fourth and finally, Mr. President, the United States will plead an estoppel
against Nicaragua. Having represented to the United States that it was not
bound. with the knowled~etha..the United States would relvon those renresen-~ ~ ~~, ~ ~ ~
tali~>nï.Niiaragwü IS c,topprd irom in\nking iiny purportcd iumpul~or) jurldic-
lion undcr Ihis Court's Optional Clru>; againsi the United Sidie,.
r President. befcirc turninc to the dctails of ihcsc lour issue,. the Ilnitcd
States would like first to note The fundamental questions of polici at stake in
this matter.
Only those States which have themselves consented under the Optional Clause
Io be named as res~ondents have standine 10 initiate oroceedines as annlicant.
In the words of thi; Court's Statute, a ~tze mus1accept "the sake obiipation"
in regard to compulsory jurisdiction as the State it names as respondent ARGUMENTOP MR. ROBINSON 155
(Art. 36 (2)). Article 36 proceeds directly from the nature of international
adiudication. The iurisdiction of international tribunals is an exceution to the
principlc of soiercign immunity 2nd is roundcd on thc consent of sniereign
Suie%: unlikc municlp,il Iau, in\<>l\ingpriistc pdriics, thcrc is no dutumatic
iuri,diction I'he premire or~urisdiition h) conscni is the funilamcntsl principle
of, lirst, reciprocity as arnong its soveieign participants, and, secon-d, stiict
equality in their relations to the Court and with each other as nation States.
Nicaragua's failureto consent places it in a position of strikingnequality with
the United States. Thus, Nicaragua claims the right to sue, but could not be
sued itself.
To preserve the integrity of this institution, Nicaragua's application mus1
be dismissed. Because the Court lacks jurisdiction in Iimine, the United States
therefore once again raises Nicaragua's lack of consent to the Court's compul-
soryjurisdiction as a plea in bar of fundamental importance (Norrebohm,Second
Phuse, Judgmenr, 1CJ Reports 1955, p. 12).
The Court udjourned/rom 11.20u.m. 1011.35 a.m.
1will now turn to the pre-Charter status of Nicaragua
The United States turns first to the history of Nicaragua's refusal to subject
itself to the compulsory jurisdiction of the Permanent Court of International
Justice. Strictly speaking, Nicaragua was correct when it stated last week that
these events "are only of historical interest" (p. 8, supra). As noted, Nicaragua
now agrees with the United States that, before the entry into force of the United
Nations Charter, Nicaragua never effectively accepted the Permanent Court's
compulsory jurisdiction (1,Memorial, para. 47).
But the record has a specialsignificancegivenseveralof Nicaragua's arguments.
The record demonstrates that the refusal to adhere to the Optional Clause
through ratification of the Protocol of Signature was a deliberate action by
Nicaragua. This refusal was not the result of a technical defect, not an accident,
and not due to any loss of documents at wa. Rather, it was Nicaragua's knowing
decision not be bound.
First, it bears repeating the legal requirements of the Permanent Court's
Optional Clause. States became parties to the Statute of the Permanent Court
by ratifying a special Protocol of Signature. Appended to the Protocol, as an
integral part of the text, was the Optional Clause. A signature of the Optional
Clause without ratification of the Protocol of Signature was without legal effect.
As isthe case for any optional protocol to a treaty, there could be no undertaking
in relation to the optional protocol without participation in the underlying treaty.
The United States mentions this at the outset because, as will be seen,
Nicaragua's new Memorial theory, advanced for the first time in that document,
relies upon the fiction that the Permanent Court's Optional Clause had an
independent life. It did not. It was part of the tex1 of a larger treaty. States
which chose not to join the larger treaty by ratifying the Protocol of Signature
to the Statute of the Permanent Court did not, in any sense, participate in the
Protocol's Outional Clause. This is the view of everv exuert whose leeal o~inions
are ni>wbefo'rcthis Court - Judge lludson in 1945. ihc Kegistrar oithii'~ourt,
Mr I.Ope7.-01ii~ini.n 1955. Profcisorr Roussc'iluand Ha\iid. whu adviscd Kica-156 MILITARYAND PARAMILITARY A~IVITIES
ragua in 1956, and, as will be seen, the senior legal officers of the League of
Nations which was the depositary.
The entire history of Nicaragua's failureto join the Statute of the Permanent
Court is detailed in the United States Counter-Memorial (II) at paragraphs
39-57. For present purposes, it is sufficientsimply to highlight that record.
- For the first nine years of the Permanent Court's life, from 1920 to 1929,
Nicaragua did not take any act.
- In 1929Nicaragua signed the Optional Clause and it signed the Protocol of
Signature.
Kcniiirkahly. LI the pr<~vision.iml easurcs phdsc iiiApril, Ni;.,r~gua. .ii I h:ii,c
inJic;ltcJ. made the riatemeni ihat "Ui;;ir;iguli ~cccptcd thc jurisdirtion of the
Cuurt mithoui rr.\eri,ations niorc ihan SU,car\ aco" II. n 401 lhis uiis olairil\
not the case. Nicaragua had not accepted-anythGg in 1929. B~ failing t; ratif;
the Protocol of Signature, Nicaragua had specificallywithheld ils consent to the
Statute as a whole, and to the Optional Clause in particular. Without the deposit
of ils instrument of ratification to the Protocol of Sienature with the Leae~e~ ~o~ ~ ~ ~
Nations, Nicaragua had merely indicated a future pokibility that it might legally
ohligate itself to the Permanent Court's compulsory jurisdiction.
In the succeeding years,Nicaragua was no1told once, but at least three times,
by the League of Nations that Nicaragua had still 10 ratify the Protocol of
Signature in order to bring Nicaragua's 1929declaration into force. The letters
are at Annexes 12,23 and 36 of the United States Counter-Memorial (II). These
letters were from acting legal advisers H. McKinnon Wood in 1934and in 1939,
and Emile Giraud in 1942.Nicaragua never challenged the legal requirements
applicable to its declaration.
Next, indeed, the Nicaraguan Foreign Minister reported Io the League in 1934:
"As soon as that formality is completed - [the formality of internal rati-
fication] - 1shall have the pleasure of sending the appropriate instruments
of ratification to the League of Nations Sccretariat." (II, Counter-
Memorial, Ann. 11 .)
Later, after withdrawing from the League of Nations in 1938,Nicaragua sent
a telegram in 1939to the League stating that an "instrument of ratification will
be fonvarded in due course" (ibid A n,n. 14).
There has heen some confusion during these proceedingsabout the significance
of the internal events in Nicaragua which precededthis telegram. Nicaragua has
not once, but twice, solemnly assured this Court that Nicaragua completed its
domestic process of ratification of the Protocol of Signature in 1935.The United
States has no intention of asking the Court to rule on this issue as a matter of
Nicaraguan domestic law. Clearly, it is not within the province of this Court to
provide an expert judgment on Nicaragua's internaldomestic law.
The only relevant question for this proceeding is whether Nicaragua has
established a record demonstrating its resolveto suhject itselfas a matter of legal
oblieation to the Permanent Court's com~ulsorv iurisdiction. We know itha~~
not Consentedas an international legalmaiter, aidthe League had so advised it.
With respect to Nicaragua's domestic actions, the United States would only
point out that Nicaraguahas yet to explain how ils domestic procedures werë
allegedlycompleted.
The customary constitutional practice in Nicaragua undeniahly wasto puhlish
in writing, in the Gaceta, the text of a Presidential decreeand the instrument of
ratification when Nicaragua wished to adhere to a treaty. The United States
Counter-Memorial (11) lists a number of such instances at paragraph 48. ARGUMENT OP MR. ROBINSON 157
Citations to additional instances from the 1935 official Gaceta of Nicaragua
follow (La Cacera, pp. 628, 820, 836, 917, 995,10611,172415,1147, 1260, 1620,
1857, 1973). Nicaragua has not explained why this pattern was not followed
with regard to the Protocol of Signature.
Indeed, according to Nicaragua's Foreign Minister in 1943, a Presidential
decree was prepared in 1935: it is in Annex 13 to the United States Counter-
Memorial (II). In English translation, Article 2 of the decree stated: "This law
shall enter into force upon publication in the Gaceta." This is what the text of
the law says: "shall enter into force upon publication in the Gacera." Nicaragua
concedes that it was never published in the Cacera. How, then, did it become
law for Nicaragua? How, then, did Nicaragua ever indicate any intention to
consent, even as an intemal matter?
In 1943 Nicaragua's Foreign Minister also told the United States that the
instrument of ratification had not yet even been prepared, let alone sent or
deposited (II, Counter-Memorial, Ann. 13).
This is the record that we have before 1945.Wedo not know why Nicaragua
speculated last week that an instrument may have been prepared, sent, but lost
at sea. There is no evidence for that at all. To the contrary, in 1943the Foreign
Minister of Nicaragua told the United States Ambassador that no instrument
had even been prepared. Indeed, Nicaragua's own Memorial (1) specifically
states in Annex 1 thereto that there is no evidence uncovered inNicaragua that
an instrument was ever fonvarded to Geneva.
-~~~~~~. because of Nicaraeua's soeculation last week that a Yearbook for 1939
might bear some relevance, ïhe United States has confirmed in the past fewdays
with several lihraries in the United States that no Yearbook or Memoria seems
ever to have heen puhlished for 1939.
The Library of Congress in Washington, however, has just informed us that
the President of Nicaragua sent a formal message to the Congress on 15 April
1940,a copy of which is available in the Library of Congress. The President of
Nicaragua omitted any mention of the Permanent Court in his detailed descrip-
tion of important administrative acts of government from the opening of the
Constitutional Convention on 15 December 1938 through the end of the first
vear of his constitutional term on 1Anril 1940.This omission stands in contrast
io the Nicaraguan President's detailei descriptions of the Eighth International
Conference of American States, Nicaragua's declaration of neutrality in the war
in Europe, a meeting of foreign minisers in Panama, the signing-of a treaty
with Costa Rica, and even the naming of a special emissary for the Peruvian
presidential inauguration. The full title of this report has been provided. ("Men-
saje que El Presidente de la Republica General de Division Anastasio Somoza
Dirige al Honorable Conereso Nacional al lnaueurase su Periodo de Sesiones
~rdrnarias el 15de Ahril ;le 1940.")
This, then, is the historical record before the entry of the United Nations
Charter into force in 1945.The record establishesfour vrovositions.
First, as a matter of law under the Protocol of ~ignaiureto the Statute of the
Permanent Court, Nicaragua did not accept the Permanent Court's compulsory
jurisdiction. As Nicaragua puts it in ils Memorial, as of the entry into force of
the United Nations Charter, "Nicaragua . . had not completed ratification of
the Proto.colof Signature of the Permanent Court" (1, Memorial, para. 49). The
official depositary, the League of Nations, confirmed this in its authoritative
Special Supplement of 10July 1944(11,Counter-Memorial. Ann. 27).
Second, this failure was a deliberate decision by Nicaragua, not a technical
oversight or accident. Nicaragua knew the legal requirements of the system, and
repeatedly acknowledged them to the League and, in 1943,to the United States.158 MILITARYAND PARAMILIIARY ACIIVITIES
Moreover, Nicaragua was repeatedly advised that as a result of its failure to
ratify the Protocol of Signature it had not bound itself 10the Permanent Court's
compulsory jurisdiction.
There is no other explanation for Nicaragua's failure to follow ils customary
procedure for approving international engagements. There isno other explanation
for Nicaraeua's orofession of interest in the Court's iurisdict~-~~and ~~. ~~~-~~~~.
to complete the actions that Nicaragua knew were necéssaryto alter its ineffecJive
status. There is no other explanation as to why Nicaragua would not even have
prepared an instrument of-ratification. And there is no other explanation for
Nicaragua's failure ever to have puhlished any indication of formal consent to
be bound.
The third proposition, MI. President, follows ineluctably from the preceding
two propositions. Nicaragua's delegationto the San Francisco Conference knew
that Nicaragua had never subjected itself to the Permanent Court's compulsory
jurisdiction. That delegation also knew that this course had been a deliberate
decision of national oolicv for more than 15 vears. Nicaraeua was reoresented
at the Conference by thésame Minister who confirmed 1; the ~niied States
Ambassador in 1943 that Nicaragua was not yet hound. Thus, there can be no
doubt on this point,
Fourth and finally, it is apparent why this historical record may have created
some confusion internationally. Nicaragua had by telegram to the League in
1939 announced the purported completion of its domestic approval of the
Protocol of Signature, but that 1939 telegram by its own words recognized that
it remained for Nicaragua to suhmit its instrument of ratification to bring its
1929declaration into force. After the end of the war, many incorrectly assumed
that Nicaragua had done what its 1939telegram said it would do, that is, deposit
ils instrument of ratification. Or at least, as we shall see in discussing the 1946
Yearbook of the Court's Registry, it was believed that, because this point was
unclear in the absence of authoritative "notification" from the League of Nations
archives in Geneva, Nicaragua should figurein listingsofcompulsory jurisdiction
in the absence of notification to the contrary. That explains the last sentence in
the footnote in the 1946 Yeorbook and the change in that last sentence in the
1956 Yeorbook.
We thus arrive at the conclusion that before the entry into force of the United
Nations Charter in 1945, Nicaragua knowingly never took the essential step
to give legal life to its declaration of 1929 under the Permanent Court system.
Nicaragua never, neither before nor after its withdrawal from the League,
deposited, nor it seems intended to deposit, an instrument of ratification with
the only authority competent to receive such instrument, namely the Secretary-
General of the League of Nations. Nicaragua was advised of its continuing
omission as late as 1943 and still Nicaragua did not act. Thus, when Article
36 (5) of the Statute of the present Court was drafted in 1945,Nicaragua knew
that it was not among the States already suhject to the compulsory jurisdiction
of the Permanent Court.
Mr. President, with your permission 1 now turn to 1945 and the entry into
force of the United Nations Charter.
We now turn to the new theorv of Nicaraeua in its Memorial. that the 1929
~ ~ ,~ ~ ~~~~- ~
declaration, which had never beénbrought Gto force under the Statute of the
Permanent Court as an effective acceptance of that Court's compulsory juris- ARGUMENT OF MR. ROBINSON 159
diction, nevertheless hecame a binding acceptance of this Court's compulsory
iurisdiction when the United Nations Charter came into force in 1945.
As noicd. thi, ncw thcor! uah nt11Jiscusseil or cvcn iugge>tcd hy iï~caragua
uniil ils .Mr.morililof 30 Jiinc 1984. Inrlccd. bcfarr. the .M:morial. ruch a ilicory
had never been puhlicly espoused at any time in any quarter during the 39 years
since the United Nations Charter had entered into force. The United States
Counter-Memorial criticized the new theory in depth, and the United States will
add to that critique today.
The United States is confident that, at the end of the oral proceedings in this
phase of the case, the Court will be convinced that this new Memorial theory is
manifestly wrong.
Article 36 (5) of the Statute of this Court is the law that governs this issue.
We agree with Nicaraguan counsel that the Court's only task is to discover the
true meaning and intent of the text of that provision. The United States contends
that the meaning of Article 36 (5) is plain : that is, only declarations that had
previously come into force for the Permanent Court and that remained in force
when the Charter became effective,are deemed by Article 36 (5) of the Statute
of this Court to be acceptances of the compulsory jurisdiction of this Court.
This part of the argument will examine the text of Article 36 (5) as well as
evidence of the intention of the draftsmen. The enquiry will be comprehensive
in order to show beyond al1 possible doubt that the entry into force of the
Charter for Nicaragua did not subject Nicaragua to the compulsory jurisdiction
of this Court under Article 36 (5). The argument will cover the following
subjects, in thisorder :
(1) the text of Article 36 (5);
(2) the principle of continuity ;
(3) the negotiating history of Article 36 (5);
(4) the past decisions of this Court;
(5) the opinions of those experts that participated in the San Francisco Con-
ference ;
(6) the opinions of publicists;
(7) the Yeurhook of the Registry of this Court;
(8) other publications;
(9) the views of the United States; and finally,
(10) the views of Nicaragua.
At the outset of this part of the presentation, the United States wishes to stress
that the following remarks are directed only at a single, narrow issue - namely,
whether Nicaragua's previouslyineffective 1929declaration was. in the words of
Nicaragua's Memorial (l), "perfected" and given "binding force" (para. 178(E))
by Nicaragua's ratification and entry into force of the United Nations Charter.
Nicaragua, Mr. President, kas systematically attempted to use irrelevant evi-
dence Io support ils new Memorial theory. We have already noted, for example,
that the Reri-.rv's first Yearbook in 1946 listed Nicaragua on the incorrect
asrumpiion ihat Siidr~gu;~ full<~ucdup iii1929 iclcgr~ni h! rlcp<~>io t i ihc
insirumcni iif rÿiificaiio1,)ihc I'roioculof Signaiiirc YctSi<araguÿ iioii,xsseris
ihlii ihc 1916 Yivrh,iukcndorscs the thcurv ih:ii thc l')?Odr.cbaraiiiinlirri entercd
in10 force in 1945,not as the result of a deposit under the Protocol of Signature
but because of the entry into force of the United Nations Charter. Likewise,
Judge Hudson's 1943and 1946writings listed Nicaragua on the assumption that
Nicaragua's 1929 declaration under the Permanent Court system may have
entered into force as a result of the 1939 telegram. Yet Nicaragua asserts that
Hudson's publications prove he believed that the declaration first enteredinto force in 1945. The State Department puhlished a paper compiled
by Mr. Dennis Myers in 1948, which listed Nicaragua's declaration as having
entered into force in 1939 (1. Memorial. Dara.44). Yet Nicaragua asse-ts that this
public:ition shour thai the dec13rliiioofirst entrred inio forcc in 1045. In hrief.
Nicaragua hns produied no ei,idcncc in rupport of ils nr'wihcc~ryihai thc 192'1
ilcilaraiion. inellè~iivr'for the Permjncni Court. hcciinic eirr'ctiic for thc iirsi
time uoon ratificati~n an~ ~ ~ ~ ~ ~ ~ , ~~~~. the United Nations Charter.
lnstead, Nicaragua has demonstrated only that ils own conduct in 1939 and
thereafter fostered a areat deal of confusion and misinfornation and indeed is
contrary to ils new tvfemorial theory
(1) The Te~l of Ariicle36 (5)
Let us now turn Io the text of Article 36 (5). Article 36 (5) States:
"Declarations made under Article 36 of the Statute of the Permanent
Court of International Justice and which are still in force shall be deerned,
as between the parties to the present Statute, to he acceptances of the
compulsory jurisdiction of the Inlernational Court of Justice for the period
which they stillhave to run and in accordance with their terrns."
The key phrases are "Declarations made . . .and which are still in force" and
"for the period which they still have to run".
Counsel for Nicaragua asserted last week that the phrase "Declororions made
under Article 36 of the Statute of the Permanent Court" was "the erammatical
subject and the semantic focus" of the Article (p. 15, supra). ~e-would thus
ignore the very phrase that contradicts him. In Tact, Article 36 (5) is about
"Declarations made . . . and which are still in force". In other words. Article
36(5) 1s nhout hind~ngIreal cummitnicnts whow duration ha, no1 cnded
Thr IJniicd Siaies hclirvcï thai declilrationi "in forc~."under thc Siaiutc of
the Pcrmancni Court can onlv hc dcslnr:iiion. ihai buund the Jeclar;ini Siatc 1,)
accept the compulsory jurisdiction of the Permanent Court. That is what the
terms of the Protocol of Signature are al1 about. Nicaragua contends thai a
declaration that created no legal obligations and which therefore did not hind
the declarant to accept the jurisdiction of the Permanent Court in accordance
with the mandatory requirements of the Protocol of Signature was nevertheless
considered to he "still in force" withinthe meaning of Article 36 (5) when the
Charter of the United Nations became effective.
Nicaragua's theory immediatelyconfronts an ohvious problem. The words "in
force" have a standard legal meaning. A treaty is "in force" or "in eiTect3'if it
is hinding. A treaty which is not hinding upon a State is not "in force" for that
State. We shall quote only Sir Humphrey Waldock, in his role as Special
~a~o,,teur of th~ I~ ~rnational Law Commission on the La~ ~f T~eati~s. His ~ ~~-
dircussion of the I.:iw of'l'rcaticr niiicd "ihc basic rulc thai ihc enir) inti~Iorce
oi the ircaiy automaticxlly makes ithinding upon the partie>" (Yrurhirik i>j rhc
Inr<2rn<ir#~.nL<iiilii<.iinimtrrt~.n 1962. \'il1 II. D3rn 27. o. 71 ) 'l'hcUnited S1.1ies
Counter-Mernorial (II) cites other'authoriiks that difine'''in force" to mean
"binding" (para. 60, note 1, and para. 61). Nicaragua has ignored these
authorities. Indeed, even Nicaraguan counsel kas not dared to suggest that this
is not the normal, everyday meaning of the phrase "in force".
Under the system of the League, the mere signing of a declaration did not
constitute acceptance of the compulsory jurisdiction of the Permanent Court. A
declaration under the Optional Clause was not an independent legal instrument.
The Optional Clause was an integral part of the Protocol of Signature. The ARGUMENT OP MR. ROBINSON 161
declaration could not be "in force" unless the declarant was party to the Protocol
of Signature.
Counsel for Nicaragua asks, if Article 36 (5) only includes declarations by
parties to the Protocol of Signature, why did the drafters not say so? (P. 14,
supra.) The simple answer is that the drafters did say so.The common, ordinary,
plain meaning of the words "in force" have this effect. The Counter-Memorial
(II) quoted a passage from Judge Hudson's 1942text entitled "Entry into force
of declarations" (para. 61). Since Nicaragua has not referred to this passage,
permit me to quote one sentence:
"A declaration which does not expressly require ratification may enter
into force at the time of signature if the declarant simultaneously deposits
or has previously deposited a ratification of the Protocol of Signature;
otherwise such a declaration will not enter into force until a ratification of
the Protocol of Signature is deposited."
In short, "Dcclarations made under Article 36 of the Statute of the Permanent
Court of lnternational Justice and which are still in force" can only apply to
declarations thdt had hound the declarant to accept the compulsory jurisdiction
of the Permanent Court.
Mr. President, the phrasing of the French text is slightly different. Whereas
the English text uses the phrases "made . . .and which are still in force" and
"for the period which they still have to run" in lirniting the class of affecied
declarations, the French text speaks of declarations 'yaites . . .pour une durée
qui n'est pas encore expirée" and "pour la durée restant à courir d'après ces
déclarations".Translated literally into English the initial French phrase becomes
"made . .. Tora duration which has not yet expired.
The United States Counter-Memorial (II) explained why this French tex1
parallels the English (paras. 67-71). Both apply to declarations that had entered
into force, that is, which hound the declarants to recognize as compulsory the
jurisdiction of the Permanent Court, and that were stillin force when the Charter
entered into force.
Nicaragua contends the French text applies to declarations whose time period
has not expired whether ornot the declaration ever entered into force. Nicaragua's
interpretation is wrong for a number of reasons. The first reason is that, even
viewed in total isolation, the French text cannot sensibly be read to apply to
declarations which had never entered into force. A declaration cannot be made
"for a period which stillhas to run" and be preserved for that remaining term
unless it has first corne to life.
The Counter-Memorial of the United States (II) at paragraph 61 used the
related concepts of formal validity and temporal validity described bySir Gerald
Fitzmaurice for the lnternational Law Commission to elucidate this point.
A treaty has/i,rmalvalidity if it has entered into force; it has remporalvalidity,
that is, duration, if its penod of formal validity has not expired. For the period
of validity to end, it must have begun, and it may not begin until an instrument
has been brought into force. Against this background, it can be seen that the
French text's reference to declarations made for a period which kas not expired
only referred to declarations already once in force. This is confirmed by the
legislative history of the provision, which will be addressed in a few moments.
But whether or not the French text can he read in other ways in isolation, it
~- ~ ~ ~ ~ ~ ~t be read this wav ~,enout side bv side with the other authentic
texts of the Statute.
Under Article 33 of the Vienna Convention, the terrilsof treaties authenticated
in two or more languages are presumed to have the same meaning in each text.162 MILITARY AND PARAMILITARY ACTIVITIES
The Enel".h ohrase "still in force" is absolutelv inca~able of hcina avulied to
declaratioiis that ncwr hei~me h,iiding. The Ku;<ian.?hinese and <p~n;ih irxtr
u,s ihc {amc formulstion ar the linglish Thc.e texts Jrc cquall) authenii: uith
ihr tnelish and the trenih. In ~irdcrfor al1the tells 1,)hc ionsisteni, the I'ren~h
text m;st be interpreted, in accordance with its natural meaning, Io apply only
to declarations which had previously entered into force and still had a period
to run.
One further point needs to be emphasized. Article 36 (5) only applies to
declarations which were in force under the Statute of the Permanent Court. The
function of Article 36 (5) is simply to transfer the pre-existing compulsory
jurisdiction of the Permanent Court to the International Court. But Nicaragua's
new theory as first advanced in its Memorial is altogethcr different. Nicaragua
argues that the present Statute carried over Nicaragua's ineffective1929declar-
ation from the old Court to the new Court and that ratification of the new
Statute "gave it binding force". (Sec p. 19, supra; 1, Memorial, para. A8 (E).)
Nicaragua's position in eiïect is that ratification of either Statute could give the
1929 declaration binding force. But this cannot be, Mr. President. The 1929
declaration was made under the Statute of the Permanent Court and attached
IO ils I'riitucol or Signature K~iiiiicalionuf an ciitircly icpiirate ircaty ct~ulJin
no wav bring inro force an? obligationi under ihe Pr<iiriiol~TSignaturc Artiilc
36(5 Iccrtainl~ (loîr noi purnori 10 anicnd the Prolocol of Sipn~lurc. And Xiia-
ra&a"s declaration neve; entercd into force undcr the statute of the Pcrrna-
nent Court, neither hefore nor after ratification of the United Nations Charter.
To sum up what has been said so far about the plain meaning of the text :
Article 36 (5) applies only to declarations which had previously bound the dec-
larant to accept the compulsory jurisdiction of the Permanent Court at the
time the Charter came inIo force. Article 36(5) does no1 apply to declarations
which had never bcfore that time entcred into force for the Permanent Court.
(2) Principleo/Conlinuity
We turn now, Mr. President, to the second subject, the principle ofcontinuity.
It is our belief that the interna1 logic of Article 36 (5) reinforces the plain
meaning of the text. As Nicaragua correctly States, Article 36 (5) sought to
establish continuity between the jurisdiction of the old Court and thejurisdiction
of the ncw Court (pp. 17-18, supra). This is apparent not only from the nego-
tiating history, which will he discussed latcr, but from the tex1 itself. Let us
consider how Article 36(5) operates with respect to the following categories of
States:
- One, only States whose declarations were in force for the old Court at the
time of theentry into force of the Charter were deemed to have accepted the
compulsory jurisdiction of the new Court.
- Two, of the declarations then in force, those that wcre subjcct to time-limits
remained subject to the same timc-limits.
- Three. of the declarations then in force. those that werc subiect to conditions
remaincd subjcct to the same conditions.
Four, States which had not made ohligatory and eiïective declarations under
the old Court were not deemed to have accepted the compulsory jurisdiction
-~~~~~~~~w Court.
Five, likewise,States whose declarations werc not in force for the old Court
at the time of the entry into force of the Charter were no1 deemcd to have
accepted the c~m~ulso~~ jurisdiction of the new Court. ARGUMENI OF MR. ROBINSON 163
For example, States whose declarations under the old Court had been in
force but had previously expired were no1 deemed to have accepted the
compulsory jurisdiction of the new Court.
Six, and States whose declarations under the old Court were themselvessub-
ject to ratification but had not been ratified werenot deemed to havc accep-
ted the compulsory jurisdiction of the new Court despite the prior ratifica-
tion of the Protocol of Signature.
In each instance, the extent of a State's obligations with respect to the
compulsory jurisdiction of the old Court remained unchanged, except that the
International Court was substituted for the Permanent Court. As this Court
stated in Aerial Incident. Article 36 (5) "Maintains an existine oblieation while
changing its subject-matter" (~erial 'Incident. Preliminary 5bjecïions. I.C.J.
Reports 1959, p. 138).
This concern for continuity is not accidental. It is based won the fundamental
principle thatthe consent oia State to accept jurisdiction iust be manifest and
may not he presumed. Under the rule of continuity contained in Article 36 (5),
each State is deemed to have acceptcd the compulsory jurisdiction of the new
Court only to the extent that il had manifested its consent to accept the com-
pulsory jurisdiction of the old Court.
With these thoughts in mind, let us consider Nicaragua's key contention.
Counsel for Nicaragua stated last week :
"To carry fonvard Nicaragua's unexpired declaration would not change
the existingsituation or expand the pre-existingjurisdiction. On the contrary,
Nicaragua was in exactlv the same situatio" under the new Statute. as
drafted; as it was under the old. In either case, ratification of the ~tatul'eof
the Court would perfect its declaration." (P. 19,supra.)
But this statement, Mr. President, hegs the question. The question is not
whether Nicaragua's position remainsthe samc if ratification of the new Statute
is substituted for ratification of the Protocol of Signature. The question is
whether Article 36 (5) of the new Statute dispenses with the need for a deposit
of a new declaration under Article 36 (4) in a case where a declaration signed
under the régimeof the old Court was never brought into force and made obli-
gatory hy the mandatory requirements of the deposit of a ratification of the
Protocol of Signature. Nicaragua's new Memorial theory would attribute binding
effectto an act that was never hinding under the régimeunder which attribution
was to he made.
Furthemore, Nicaragua's new theory violates the principle of continuity
that is the basis of Article 36 (5). To carry forward Nicaragua's ineffective 1929
declaration most emphatically would no1 place Nicaragua in the same situation
under the new Statute as it was under the old. Under the old Statute, Nicaragua
was not suhject to the Permanent Court's jurisdiction. But under the new Statute
- according to Nicaragua's new theory - Nicaragua is suhject to this Court's
jurisdiction, not because of a new declaration under Article 36 (4) but because
of the old 1929 declaration that had never come into force for the Permanent
Court. To bring into effect a declaration for the new Statute which had never
been in effect for the old Statute would be, and 1quote counsel for Nicaragua:
"Not to cuntinue the existing situation, but to change it, not to preserve
jurisdiction but to expand it" (p. 18, supra).
For ratification of the Charter to impose a new legal obligation on Nicaragua
where none had existed hefore would violate the principle of continuity and
therehy the logic and purpose of Article 36 (5).164 MILITARYAND PARAMILITARY ACTIVITIES
The Court may wish to recall ils discussion in the Aeriol Incident case:
"If Bulgaria, which al the lime of its admission to the United Nations
was under no oblieauion of that kind in conseauence of the laose of ils
Declaration of 1921, were to he regarded as subject to the compulsory
iurisdiction as a result of ils admission to the United Nations, the Statute
of the Court would, in the case of Bulgaria, have a legal consequence,
namely, compulsory jurisdiction, which that Statute does not impose upon
other States. It is difficultto accept an interpretation which would constitute
in the case of Bulgaria such a derogation from the system of the Statute."
(1C.J. Reports1959, p. 145.)
Bulgaria at least had ratified the Protocol of Signature in 1921 and had thus
been obligated by the compulsory jurisdiction of the Permanent Court during
the lifetime of that Court. Under the rationale of Aerial Incident, il would be
even more difficultto accept that admission to the United Nations would impose
compulsory jurisdiction on a State that had never accepted such jurisdiction
under the old system by ratifying the Protocol of Signature.
Nicaragua's new theory also violates the principle that consent to accept
jurisdiction must be manifest andcannot be presumed. Again, recall the statement
of Nicaragua's counsel las1week with respect to those States wbich had accepted
the jurisdiction of the Permanent Court, but whose acceptances had expired:
"il could hv no means be assumed that the declarants of the exoired declara-
rians, c\cn if rcprcscnted ai thc C<)nfcrcncr..uiiuld ciinrcnt Io thcir rr.wrrciti<in"
(p. 18, qiipru)Aj;,rri,>rihy no mean, c<)uld II be ~s\umr.dthat Siarc, u.hiih h<id
never accepted the compulsory jurisdiction of the Permanent Court nevertheless
consented to the compulsory jurisdiction of the International Court simply by
adhering to the Statute of this Court.
The unstated presumption in Nicaragua's new theory is that by signing the
Ootional Clause in 1929. Nicaraeua had in some sense consented 10 the com-
pilrory jurirdiition of ihc ~crmcncnt Court and hlid uithheld tinly il\ consni
to the Stÿi~ie of the Pcrniancni Court Hut th31 IS non.en>e. Thc Optional
Clause to which the declaration pertained was not a scparate instrument; it was
part and parcel of the Protocol of Signature. A State could no1 consent to the
compulsory jurisdiction of that Court if it withheld its consent by failing Io ratify
that Protocol to the Court's Statute. The one - the Optional Clause - was
entirely subordinate to the other - the Court's Statute and its Protocol of
Signature.
Nicaragua has argued that it manifested the neccssary consent to accept the
Court's compulsory jurisdiction when itratified the Charter and the Statute, of
which Article 36 (5) was a part. But, Mr. President, the exact opposite is true.
The language, the logic, and the negotiating history of Article 36 (5) show that
the Article carried over existingjurisdiction, but did no1create newjurisdiction.
By ratifying the Statute of which Article 36 (5) was part, Nicaragua agreed that
declarations not in force for the Permanent Court, including its own, would not
be carried over. Nicaraguan ratification of the Charter no more manifested
consent to compulsory jurisdiction than, for cxample, United States ratification
of the Charter manifested its consent to compulsory jurisdiction.
To sum up this part of the discussion : Nicaragua's new Memorial theory that
ratification and entry into force of the Charter could bring ils ineiïective 1929
declaration into force for the first time is directlv contrarv to the loeic of
continuity of Article 36 (5). If the drafters were coicerned that the duratron of
a declaration not be extended; if they were concerned no1 to resurrect a
declaration that had expired; and if they were concerned that any declaration ARGUMENT OF MR. ROBINSON 165
remain subject to the same conditions, then wesubmit that it is absurd to suggest
that the drafters intended to bring into eflect a declaration which had previously
been forever ineffective.
In short, Article 36 (5) did no1 create a new jurisdiction where none had
existed hefore.
(3) NegoriaringHislory
With your permission, Mr. President, we now move to review the third subject,
the negotiating history of Article 36 (5).That history confirms that Article 36(5)
was intended onlv to~ureserveand not 10exvand the com~ulsorv iurisdic. .n o'f
the Permanent court.'
The Washington Committee of Jurists, which met shortly before the San
Francisco conference. was the first to consider in detail the transfer of iurisdiction
from the Permanent Court to the new Court which was to be creaied. At the
meeting. the IJnited Kingdi~m asked u,hat should he donc with the existing
asceptances ofcompul>ory juriidiciii>n.Incomment. \uhmitied IO the Commiiire.
the United Kingdom stated :
"One auestion which will anse in connection with Article 36~. iqwh~ ~ ~ ~ ~
action shiuld bc iakcn concerning the etirting acieptances of the .Optional
Cla~se',by svhich ;inumbcr uf iountriss h3t.t. \ubjcit io isrt;iin rererv'itions.
h<,uiiilrk~~rnvi~l~I<u~<i.~,prthc )~tr~.iil;iO~iihr Cl,urr t.hlrpirtori Shuuld
thcs aiceptances bs reg.irile<la\ haring auiomdiisall) ci)me i<ian enJ or
shiiuld proi,ision he mdde ior i.<intinuing thrm in liirce u.iih pcrhaph a
provision hy which those concerned could revise or denounce them." (14
UNCIO 318 (Jurist 14); emphasis added.)
Thus, the United Kingdom was concerned only with the continuity of declara-
lions in force, that is, declarations in force binding the declarant "to acceDtthe
iurisdiction of the lpermanentl Court as ohlieatorv".
The next mention of the iroblem at theUwashington Committee of Junsts
comes in the report of the Subcommittee formed to draft language for a con-
- -
tinuation of the-optional Clause. The report stated :
"The Suhcommittee calls attention 10 the fact thdt many nations have
heretofore accepted the compulsory jurisdiction under the 'Optional Clause'.
The Subcommittee believes that provision should be made at the San
Francisco Conference for a special agreement for continuing these accep-
tances inforce for the purpose of this Statute." (14 UNClO 288-289(Jurist
41) ; emphasis added.)
Thus the Subcommittee, like the United Kingdom, was concerned only with
declarations in force, that is, only with binding acceptances of the compulsory
jurisdiction of the Permanent Court.
Finally, the full Washington Committee of Jurists referred to the problem of
existine accentances in its renort summarizine its recommenddtions to the San
~ranciico conference. The réport was wntten by the Committee's Rapporteur,
Jules Basdevant, later a distinguished Member of this Court:
"lt should be observed . . .that if the Court which will he governed hy
the present Statute is considered as a continuation of the Court instituted
in 1920, rheforce of law of the numerous general or special international
acts affirming the compulsory jurisdiction of this Court will suhsist. If, on
the contrary, the Court is to be a new Court, the former one disappearing,
it could be argued that the said obligations will run the risk of being
considered nuIl and void, their restoration in force will not be easy, and an166 MIL~TARYAND PARAMILITARYACTIVITIES
advance in lawwillthus be abandoned or seriouslyendangered." (14 UNCIO
821, 843(Jurist 86); emphasis added.)
Thus the concern of the Washington Committee of Jurists was only to maintain .
obligations which werealready in force.
The United Nations conference in San Francisco likewise wished only to
preserve effectiveacceptances of the Permanent Court's jurisdiction. Commis-
sion IV of the Conference had responsibility for legal matters. Commission IV
appointed a Committee, Committee 1, to continue the process of drafting the
Court's Statute. Once again, the United Kingdom raised the issue of the con-
tinuity of the Permanent Court's compulsory jurisdiction. On 28 May 1945the
United Kingdom representative stated:
"If the Committee decides to retain the ontional clause. it could orovide
for the coniinuing ralidiiy of exisiing adlieréncesto it." (UNCIO, bol. 27,
doc. 661, Summary Report of Fourteenth Meeting of Committee IV/I, p. 4;
emphasis added.)
At the same session, Committee 1 estahlished a special Subcommittee D to
discuss the choice between optional and compulsory jurisdiction. This Sub-
committee prepared the first draft of what ultimately hecame Article 36 (5)
of the present Statute of the Court. That draft reads as follows:
"Declarations made under Article 36 of the Statute of the Permanent
Court of International Justice and which are still in force shall be deemed
as between the parties to the present Statute to have been made under this
Article and shall continue to apply, in accordance with their terms."
The French version applied to "déclarationsencore en vigueur". Both the English
and French texts may be found in Annex 30 of the United States Counter-
Memorial (I... Bv t,e nlain terms of the text. and in the lieht o- the nrior
ncgoiiating hirtory. thc '~uhçi>mmittccintendcd iinly iiimainiain ihr rx;siing
:onipulsory jurisdiciion. The proporal 'ippliedonly to Jeclarationi 'in iorce" or
"en vigueur" - ierm5 uni\,crrall) understiiod to mran "in cll'cii" or "biiirling"
Morcovcr. no dclcgai~onhad riiggcstcd ihiii Jecl:~r:~tisnrnot in force jhould hc
brought inio forcc b) the Si.iiute Indeed. huch ;i sugge\iion ~ould haie hccn
csntrar, IO ihe dccisiuiiIO rct:iin ihc 0piion:il Clause rÿthcr ih;in to in\iii~ic
comou&orv iurisdiction.
0; I Jin; 1945, Committee 1 approved Suhcommittee D's recommendation
to retain optional jurisdiction and to carry over only those declarations already
in force for the Permanent Court. Four davs later. the French delecation oro-
posed several changes to the text of ~rtiie 36 as it had been adgpted. The
English text of the French proposal retained the phrase "still in force". The
French text was revised to use the phrase "pour une duréequi n'est pas encore
expirée". The French representative expressed quite clearly the intent of the
changes. According to the Cornmittee's report. he "stated that the changes
suggested by him . . were not substantive ones, but were intended to improve
the phraseology" (II, Counter-Memorial, Ann. 31). It is clear that the French
delegate and the Committee both intended the French text to have the same
meaning as the English text and this was to carry over only declarations already
subjecting a State to the Permanent Court's compulsory jurisdiction and "for
the oeriod which thev still have to run". Aeain. an obligation cannot exnire or
run but unless there kas previously a creation of that obligation.
Counsel for Nicaragua has asserted that "there is no douht that the English
text was supposed to mean the same thing as the French" (p. 15,supra). BUI as ARGUMENTOF MR. ROBINSON 167
the negotiating history shows, the exact opposite is true. There is no douht that
the French text is supposed to mean the same as the English.
This Court has already decided the question presented by Nicaragua's new
Memorial theory. Indeed, if your predecessors who participated in the Aerial
Incidenr case were to vote in this case in accordance with their past opinions,
they would vote unanimously to reject Nicaragua's new theory (Aeriul lncidenr
of27 July 1955, Judgmenr. ICJ Reports 1959,p. 127).
The United States Counter-Mernorial (II) discussed the Aeriul lncidenr at
paragraphs 95 to 102.Counsel for Nicaragua completely ignored that discussion
and, moreover, largely ignored the pertinent content of the majority and joint
dissenting opinions. Ahove all, counsel for Nicaragua ignored the common
understanding of everyone involved in that case that the Bulgarian declaration
had been brought into force for the Permanent Court and continued to bind
Bulgaria to accept the compulsory jurisdiction of the Permanent Court when the
Charter entered into force.
The majority and the dissenters agreed that Article 36 (5) applied only to
States which previously had elïectively accepted the compulsory jurisdiction of
the Permanent Court. In other words. the maioritv and th~ d~ssen~ a~ ~ ~ th--
under Arti;lc 36 (5) .'Declarations . . .still'in force" rckrrcd cxclusi\cly io
Jccllirliiii~nsthat had previou3ly hound the ilcclarant to ;i:çept the ~.ornpulsor)
iurisdiction JI ilic Pcrnionent Couri and that reniaincd in force when the Charter
entered into elïect. According to their opinions, Article 36 (5) did not and could
not apply to a State such as Nicaragua that had never accepted the jurisdiction
of the Permanent Court.
Counsel for Nicaragua made this astonishing staternent last Monday:
"Nothing in the [majority] opinion, either in holding or in considered
obiter dicrum, excludes or is even faintly inconsistent with the position here
taken hy Nicaragua." (P. 21, supra.)
That assertion may be measured against the words of the Court.
There is one final excerpt ofinterest from the negotiating history. On 22 June,
Mr. Evatt of Australia made a statement on behalf of his country before Corn-
mission IV. He discussed the elfect of Article 36 (5) as follows:
"Now, at one time or another 45 States exercised their options to make
declarations under the old Statute. Nol al1of these States are members of
the United Nations, and by no means al1the declarations are still in force.
1 remind rhe Commi.ssionrilso thar 13 Members of the Unired Notions were
not purrie.>rn the uld Sturure. It appears the declarations under the old
Statute, by about 20 States, will, by virtue of thc provisions of the new
Statute, he made applicable to the new Court." (UNCIO, Vol. 13,doc. 1007,
Minutes of Second Meeting of Commission IV (15 June 1945). p. II
(emphasis added).)
This passage reveals Australia's understanding that Article 36 (5) would not
apply, first, to States not parties to the United Nations Charter and, second, to
States whose previously elfective declarations had expired, and, third, and of
most significance here, to States that were not party to the Statute of the old
Court. Mr. Evatt confirrned again in the same statement that the extent of the
compulsory jurisdiction of the new Court "will depend on the willingness of
those 13 Members to make declarations under Article 36 of the new Statute".
That is, new declarations deposited under Article 36 (4) of this Court's Statute
(ibid). In short, the negotiating history in hoth Washington and San Francisco
confirms the plain rneaning of the text: Article 36 (5) was intcnded only to carry168 M~LITARY AND PARAMILITARY ACTIVITIES
ovcr dcclaraiions that had prcviouily hound ihe dcclarant ICIaciept the compul.
sory jurijdiction of ihc Pcrnimcni Court and ihat rcm~incd in fi~rceas of the
date oientry inti) IOrceof the IJniteJ Nati<iniCh~rter.
(4) ThePust Decisisiono s/the Court
Wemove now to the fourth category of evidenceconfirming the United States
viewof Article 36 (5): the jurisprudence of this Court.
Again and again the Judgment explains that Article 36 (5) applies only to
effectiveacceptances of the Permanent Court's jurisdiction. See for example at
page 138: Article 36 (5): "maintained an existing obligation"; at page 143:
Article 36 (5) eflècted "the transfer to the new Court of the compulsory
jurisdiction of the old"; and at page 145: the clear intention which inspired
Article 36 (5) is "10 preserve existing acceptances". These are not dicta. The
Judgment is built upon the premise that Article 36 (5) only applied to actual
acceptances ofthe old Court's jurisdiction.
Counsel for Nicaraeua also imolied las1week that in the dissent's ooinion in
AertulIncaIrni ..thercis no1 o wo;d in il aboui the declarant Stutç bcini 'buund'
IO accrpi the sornpulsory jurisdi:tion of ihe Permanent Court" (p. 22. supru).
This statemeni i,equally asionishing and incurrest. The dibsentri;tted repeatedly
that the purpose of ~riicle 36 (5) was to preserve the compulsory jurisdiction
that had heen conferred upon the Permanent Court. For example, page 168of
the joint dissent states that :
"The governing principle underlying paragraph 5 is that of automatic
successionof the International Court of Justice in respect ofthe engagements
undertaken bv referenceto the Statute of the Permanent Court. the dissolu-
tion of whica was clearly envisaged and anticipated . . ." (ICJ Reports
1959,p. 168.)
Elsewhere,the dissent states that:
"the authors of paragraph 5 had in mind the maintenance of the entire
group of declarations of acceptance which were still in force and in
accordance with their terms, irrespectiveof the dissolution of the Permanent
Court" (ibid., p. 150).
And what could be clearer than the following statement, which Nicaragua itself
included in its Memorial (1, para. 14). 1quote from the dissent:
"This wasthe purpose of paragraph 5. They said in effect :Whatever legal
obstacles there may be, these declarations, provided that their period of
validity has not expired - that is provided that they are still in force on
the day of the entry of the Charter into force or on the day on which the
declarant State becomes a party to the Statute - shall continue in respect
of the International Court of Justice." (I.C.J. Reporls 1959, pp. 167-168.)
There, Mr. President, you have it in a nutshell. Those declarations that "are still
in force on the day of the entry of the Charter into force" fall within Article
36 (5). (See also II, United States Counter-Memorial, paras. 75-77, and note 1
containing cites to other pertinent passages.)
As counsel for Nicaragua said las1Monday (p. 14,supra): "One is tempted to
say Q.E.D. and sit down at this point." But there is so much more to discuss.
The majority and the dissent agreed that "declarations
. . .in force" included
only effectiveacceptances of the Permanent Court's jurisdiction. They disagreed
about the events that might render a declaration no longer in force. ARGUMENT OF MR. ROBINSON 169
The maioritv helieved that a declaration was no loneer in force when the ~~ ~ ~ ~ ~ ~
object of &e déclaration,the Permanent Court, disappeared. The dissent helieved
that the words "still in force" excluded only those declarations that had come
in10 force and whose duration had expired and had nothing to do with the
dissolution of the Permanent Court (I.C.J. Rrporrs1959, pp. 162f.).
In effect,the majority and the dissent agreedon the requirement offormal vali-
dity; they disagreed only as to the circumstances that might affectthe continu-
ance of temporal validity. Nicaragua can find no comfort in the Judgment, in the
joint dissent, or in the separate opinions of Judges Zafrulla Khan, Badawi,
or Armand-Ugon (I.C.J. Reports1959, pp. 146, 148, 153). In fact, al1the Judges
were agreed: Article 36 (5) did not apply to declarations lacking formal validity.
Nicaragua asserted incorrectly in the oral proceedings of last week that its
theory in this case is identical to the theory advanced by the United States in ils
1960 ohservations in the Aerial Incidenr case. The position advanced hy the
United States in that case was in fact identical with the theory of thejoint dissent
which was made public a few months hefore. This may he confirmed hy a
comparison of pages 319 to 320 of the observations (I.C.J. Pleadings,Aerial
Incideniof 27 July 1955) with pages 161to 162 of the joint dissenting opinion
(LC.J Rrporrs1959).
Like the joint dissent, the United States believed that Article 36 (5) only
carried over açtual acceptances of the compulsory jurisdiction of the Permanent
Court that were in force as of 24 October 1945.It should be emphasized again
that the premise of the case was that Bulgaria had ratified the Protocol of
Signature in 1921and was thus from then on hound by its declaration to accept
the compulsory jurisdiction of the Permanent Court. Counsel for Nicaragua last
week conveniently overlooked the fact that Bulgaria ratified the Protocol of
Signature whereas Nicaragua hy its own admission never did. Like the joint
dissent, the United States helieved in 1960that "declarations . . .still in force"
applied only to Permanent Court declarations that had actually heen in eKect
for the Permanent Court. This is confirmed hy the United States analysis of
Bulgaria's declaration, at page 312 of the ohservations (I.C.J. Pleadings.Aeriul
Incidentof 27 July 1955).
Bulgaria signed the Protocol of Signature on 21 April 1921. Bulgaria signed
the Optional Clause on 29 July 1921. Bulgaria on that date was in the same
position as Nicaragua wasfrom 1929fonvard: that is. BuIraria had a declaration
inder the Optional Clause of the Statute and had signed but not ratified the
Protocol of Signature.
However, as noted, the Bulgarian declaration of 21 April 1921"was ratified
and came into forceon August 12, 1921 .. .Bulgaria'sacceptance of compulsory
jurisdiction was without limit of time. It was to remain in force indefinitely"
(ibid, p. 312).
Counsel for Nicaragua asserted in oral argument last week that the United
States argument in the Aerial Incidentcase could well he adopted hy Nicaragua
"as a fair statement of its own" (p. 15, supra). But counsel omitted the critical
fact that whereas Nicaragua never ratified the Protocol of Signature, Bulgaria
did so promptly in 1921.Thus Bulgaria's declaration did hecome effective for
the Permanent Court and was still in eflect at the lime the Charter entered into
force. This was essential for the application of Article 36 (5). As the United
States 1960ohservations stated :
"ln considering the proper interpretation and application of Article 36,
paragraph 5, of the Statute, it may be helpful Io consider the situation of
certain States other than Bulgaria whose acceptances of the compulsory170 MILITARYAND Pi\RAMILITARY ACTIVITIES
jurisdiction of the Permanent Court of International Justice were still in
force at the lime of the establishment of the United Nations and which
did not become Members of the United Nations until later, if al all."
(1.CJ Pleadings, Aerial Incident of27 July 1955, p. 315.)
Had Bulgaria's declaration not been effectivefor the Permanent Court al the
lime that the Charter entered into force, the joint dissent and the United States
could not have constructed any plausible argument that Bulgaria's declaration
was suhject to Article 36 (5).
Thus, the United States position, then as now, was that Article 36 (5) applies
only to declarations that were valid and binding as of 24 Octoher 1945. In
particular, a declaration had no formal validity - it was ineffective- unless
and until the declarant became a party to the Protocol of Signature.
The United States pleadings in the Aerial Incidenr case agreed with the joint
dissent that the words "still in force" excluded only those declarations that had
come into force and whose duration had expired, whereas the majority of the
Court helieved that a declaration terminated when the Permanent Court came
to an end. But the United States observations, like the joint dissent, provide no
support for Nicaragua's theory that Article 36 (5) applied to declarations which
had previously never come into force for the Permanent Court.
To paraphrase counsel for Nicaragua last week, but only with regard to
Nicaragua's new theory (p. 16,supra): the point thus remains that the interpre-
tation of Article 36 (5) for which the United States contends - not Nicaragua
but the United States - is the very position taken by the United States when it
last addressed the issue in this forum in 1960.
Mr. President, Nicaragua also asserted last week that Barcelona Traction
may be regarded as reversing the Aerial Incidenr Judgment (p. 22, supra). That
statement is incorrect, for Article 37, with which Burcelonu Traction was con-
ccrned, is different from Article 36 (5). This point is discussed in the United
States Counter-Memorial (II, paras. 109-112).
Of greater importance to this case is that the Court in BarceIono Traction
confimed in its holding that Article 37, like Article 36 (5). was intended only
to oreserve iurisdiction in effect for the Permanent Court and not to create anv
ne; ohligatory junsdiction that had not existed before that dissolution (BarceIona
Tracrion Li& and Power Conipany, Limiled. Preliminary Objecrions,Judgmenr,
1.CJ ~e~oris 1964, pp. 4, 35).
On this point, the Court's interpretation of Article 37 is consistent with the
majority and the dissent in Aerial Incident regarding Article 36 (5): that is,
neither Article 36 (5) nor Article 37 is intended to create any new ohligatory
jurisdiction that had not previously existed for the Permanent Court at the time
of the entry into force of the United Nations Charter.
Nicaragua las1 week quoted Judge Tanaka's separate opinion (p. 23, supra).
True, Judge Tanaka agreed with the dissent rather than with the majority in
Aerial Incident. But Nicaragua can seek no help from Judge Tanaka. Judge
Tanaka thought that both Article 36 (5) and Article 37 had the same essential
purpose: "the continuity of the acceptance of compulsory jurisdiction"
(/.CL Reports 1964, p. 71). Concerning Article 36 in particular, he States:
"Nohody can deny that the purpose of this provision is the presewation
of the effect of compulsory jurisdiction accepted in regard to the old Court
under the régime ofthe new Court." (Ibid., p. 72.)
Judge Tanaka explicitlyrejectcdthe notion that Article 36(5) might be interpreted
to crcate new obligations on its own. He stated: ARGUMENT OF MR. ROBINSON 171
"From what is indicated above, 1may conclude that Article 36. paragraph
5, simply affirms the true and reasonable intention of declarant States and
does no; impose any new obligations upon them." (1.C.J. Reports1964,
p. 73.)
The dissenting opinions of Judges Morelli and Armand-Ugon also emphasized
the notion of continuity of obligations. For example,Judge Armand-Ugon stated
that "Article 36,paragraph 5, concerns . . .the obligation to accept jurisdiction
on the basis of the pre-existingtreaty, the Statute" (ibid.p. 146).
In short, the entire Court in BurcelonaTraction rejected the notion that Article
37 might create jurisdictional obligations where none existed before.And Judge
Tanaka, upon whom Nicaragua specificallyrelies, rejected thenotion that Article
36 (5) might impose new obligations. Thus, not only Aerial Incident but also
BarcelonaTraction rejects the premise of Nicaragua's new Memorial theory.
(5) TheOpinionsof Purticipantsor theSanFranciscoConference
We turn now to the fifth subject, the opinions of the participants in the San
Francisco Conference.Those who attended the Conference were the élitediplo-
mats and international lawyers of their nations. In the months and years after
the Conference, they published their interpretations of the Charter and the
Statute in books and articles, in delegation reports and legislotivetestimony, and
in their opinions as Judges of this Court. Their views of Article 36 (5) confirm
what is apparent from the text and from the negotiating history, that is that
Article 36 (5) preserved, as far as possible, the compulsory jurisdiction of the
Permanent Court existine on the dav the Charter entered ~ ~ ~i~ ~ ~~ ~ ~ ~~- ~~ ~ ~ ~
knowledge of the United States, no oie from the conferencc ever suggestedthat
Article 36 (5) might be interpreted to create obligations for States under the
Ootional Clause of the ~reseni Court where none had existed belore
'~heopinions of thoséat the Conference carry special weight. These men were
familiar not only with the written materials we have today in the records of the
Conference, they were also party to the confidential discussions, the strategy
sessions and the drafting committees. These are the people who would bave
known what was intended by the phrase "still in force".
Let me begin with Green Hackworth, not because he was an American and a
distinguished Judge of this Court, but because he was the Chairman of the
Washington Committee of Jurists, as well as a key participant in Committee
IV/I at San Francisco. He was present when the British first presented the
oroblem of existinr adherence to the O~tional Clause and he was there when
ihe Statute was finally approved. He apieared for the Slate Department before
the Senate Foreign Relations Committee, when the Charter and Statute of the
Court were submitted to the Senate for its advice and consent. He exolained to
them that Article 36 (5) was intended to address the concern that:
"States that had accepted compulsory jurisdiction under the [Permanent]
Court would no longer be bound by their acceptance if a new Court were
set up. That was taken rare of bv a orovision in the Statute in Article 36.
ihat -1hosc Statcr ivhich had liiieptcd compulsory jurisdi~tion for the
l'ermanent Court of Intcrn3iiunlil Ju.tice uould nou subsiiiuicihc proposcd
Inierniiii<inalCiiuri undcr the same ternis " (Xcport ri,rhr Pr>rri~ilr.nr rlie
UniredStates, p. 338.)
Slots the Ianguagc urcd - Siaici 'hounif b) ihr'ir;icccpiancc" .iiihcçi>mpulsory
juri,diition I;>rthe P~rnii~nentCoiiri. Thi, \$lis whitliniilil importance IO ihc172 MILITARYAND PARAMLLITARY ACTIVITIES
United States Senate. It was the Senate which for many years had stood in the
way of United States adherence to the Permanent Court's compulsory jurisdic-
tion. Had Article 36 (5) heen intended to enlarge the field of compulsory
jurisdiction, Judge Hackworth surely would have mentioned this effect. He
did not.
Philip Jessup also had occasion to address the significance of Article 36 (5).
He attended the San Francisco Conference as an expert on judicial organization
and later was a distinguished Member of this Court. In the Sourh WesiAfricu
cases (Preliminary Ohjecrions,Judgmenr.I.C.J. Reporrs1962, p. 319, separate
opinion, at p. 415). he made quite clear his view that Nicaragua's new Memorial
theory was impossible:
"lt was clearly the intention in the drafting of the Statute of the Inter-
national Court of Justice to preserve for the new Court jus1 as much
as oossible of the iurisdiction which amertained to the old Court. For this
p~bosc. Arti:lc 36 (5, providcd for 11;;ir.insfcr of ihc obligations ~~sumcd
b) SLJI:S-hich made declaralions under Ariicle 36 orihc ùld Si;iiutc "
Once again, 1 draw the Court's attention to his words: paragraph 5 was to
"presewe . . obligations". There is no question of expanding jurisdiction or of
creating obligations where none had existed before.
A third distinguished American legal figure at the Conference was Charles
Fahy. Mr. Fahy was Solicitor General of the United States at the lime, one of
the highest ranking officiais of Our Department of Justice, and the individual
responsible for representing the United States in the United States Supreme
Court. He later hecame Legal Adviser to the Department of State, and in 1946
he testified on behalf of the Truman Administration before the Senate Foreign
Relations Committee. The oumose of these hearines was to determine whether
the Senate should approve'a iroposed United stares declaration accepting the
Court's compulsory . .isdiction. Mr. Fahy described Article 36 (5) in the fol-
lowing fashion :
"A group of declarations are already in force by virtue of Article 36,
paragraph 5, of the Statute which provides that declarations made under
the corresponding article of the Statute of the Permanent Court of Inter-
national Justice and still in force, shall be deemed, as among the parties
to the present Statute, to be acceptances of the compulsory jurisdiction of
the new Court for such periods as they still have to run."
(Deporrmeniof
Slaie Bullerin,28July 1946,p. 159.)
Mr. Fahy then listed 19 States which fell within this category. Nicaragua was
not among the States listed (ihid).
In a few moments, the United States would like to review this lis1 that
Mr. Fahy prepared. For the present, let me highlight its special significance,since
Nicaragua has suggested il carried no weight.
The list of States subject to Article 36 (5) was presented to the Senate in a
special context. The Senate wanted to know, as itconsidered approving a
declaration, which States had undertaken a similar obligation. They were in-
terested, in short, in the prohlem of reciprocity- to whom would the United
States be exposing itsclf to suit and vice versa. Mr. Fahy's list was provided for
this verypurpose. As we will descnhe in a moment, it was not an ill-considered
list, nor one hased solely on the las1 publications of the League of Nations. It
was perhaps the most accurate analysis ever done of the application of Article
36 (5). This was not an academic exercise, nor was it a vague or general account
for a disinterested committee. 11was very much on the basis of Mr. Fahy's list ARCUMENi OF MR. ROBINSON 173
and account of how Article 36 (5) worked that the Senate approved the 1946
United States declaration. In so doing, the Senate adopted Mr. Fahy's analysis
and his listing of 19States that did not include Nicaragua.
Nicaragua referred to a fourth American who attended the Conference -
Judge Manley Hudson, who participated as an observer on behalf of the
Permanent Court. Judge Hudson's views have been the subject of considerahle
discussion, but there should he no douht that he rejected Nicaragua's new
Memorial theory.
As the dissent in the Order of 10May notes, in 1946and 1947Judge Hudson
listed Nicaragua's 1929declaration as in force under Article 36(5).
Did Judge Hudson believethat Nicaragua hy ratifying theCharter had hrought
its previously ineffective 1929declaration into force in 1945? The answer is
clearly no. Judge Hudson listed Nicaragua on the assumption that its declaration
entered into force as a result of the 1939 telegram. This is apparent from his
treatise on the Permanent Court. oublished in 1943.Judee Hudson rnust. like
"
the Rcgistr). hate as,iinicJ incorrccily that Ni;ilr;~gus hiid wrricd iiut thc
intention chprc\rcd in the 1939ielcgram - that is, tIi.iNicxrsgua later dcpu>iteJ
the instrument ~~I'riltificiltio O ihe Proioiiil oi Sien-iture btforc the Charter of
the~-nited ~ ~ions entered i~to ~orc~ ~
Thcre ir nii record in Judge lludriin's plipers that hc reccivcdthe informlition
lir sent by the United Stliics Ambasslidor IO Niiaraguli in 1943.or by thc Leiigue
in 1942.Ihc aucstiiin i, irrclc\ant since. uith Niraracua's Mcmori;ilof 30 June.
the Parties a&ee that Nicaragua never did accept the-compulsory jurisdiction of
the Permanent Court. Thus, the basis for Judge Hudson's post-war listings of
Nicaragua, like those of the Registry, was hasedon a faulty assumption, not on
Nica~~ ~-~s~new theorv. ,
Wh31 i\rcl:i,lint irtliiit Judgc Iluds<~nat no tinit dd(iptcd the ncu .Mernorial
thcor). th;ii ratiliciiii>nanJ cniry inio forcc oithc Ch;irier hrought ilic prc\,iou\ly
ine~fe~ ~!~~1929Nicaraeu;in dc~l.~~~ ~oninio force Judrr. HtiJ,on c~ortsslv rsiec-
ted the new ~emorial~thcor~. For example, in his leGer of 12 f95; to
the Foreign Minister of Honduras, Judge Hudson stated:
"However, on 26 June 1945,Nicaragua signed the Charter of the United
Nations, and ratified it on 6 Sevtemher 1945: it becarne effective on
24 October 1945.This did not, in any way, affect the compulsory jurisdic-
tion." (II, Counter-Memorial, Ann. 38.)
Judge Hudson also rejected the new theory in his legal opinion of Decernher
1955.After reviewingthe facts, in paragraph 36 he suggestedto Honduras:
"II is also possible that the action should he hegun against Nicaragua in
spite of the fact that that State is not bound by the second paragraph of
Article 36 of the Statute of the International Court of Justice."
This paragraph 36 represents Hudson's personal opinion that Nicaragua wasnot
bound. In paragraph 40 he expressed his prediction as Io what the opinion of
the Court might be. Hudson concluded that he: "would not be surprised if the
Court should say that Nicaragua is not bound to suhrnit to ilsjurisdiction".
There is no inconsistency as alleged by counsel for Nicaragua last week.
Hudson was certain of his own opinion as set forth in paragraph 36 and con-
cluded in paragraph 40 that he would not be surprised if the Court's opinion
were the same.
Unfortunately, 1 must digress a minute to respond to another unfounded
accusation by counsel for Nicaragua las1week concerning thesc Hudson docu-
ments. The United States in its Counter-Memorial introduced materials found174 MlLlTARY AND PARAMILITARYACTlVlTLES
in Hudson's paprs on filein the manuscript division ofthe Harvard Law School
Library. A week ago Nicaragua submitted more documents from the same
source. Counsel for Nicaragua accused the United States of trying to conceal
relevant information.
Of course, the accusation is as wrong as it is silly: the United States would
not have expected to conceal from Nicaragua documents from that lihrary, ,in
the School where counsel for Nicaragua is employed. In May an attorney of my
office who was otherwise no1 directly involved in this case bnefiy visited those
archives. The index to the archives is a 140-pagevolume; the collection contains
over 8,000documents. The Department attorney had been directed to search for
matenal that might explain why Hudson's writings listed Nicaragua as bound
under Article 36 (5). The Department attorney returned with al1 the material
he thought relevant to this particular issue. Our office conducted no further
investigations inthose archives until last week, upon learning from Nicaragua
of the presence in the files of additional material relevant to a different subject,
that is the litigation strategy of Honduras in thKing ofSpain case. The letters
suhmitted hy Nicaragua last week indeed were Sound in the archives, and
additional relevant material as well, which Nicaragua chose not to submit on
5 October as new documents.
The Courr rosear 12.58p.m. ELEVENTH PUBLIC SITTING (15 X 84.3 p.m.)
P,e.~ent: [See Sitting of 8 X 84.1
Mr. ROBINSON: Mr. President, distinguished Members of the Court, before
the lunch break we were discussing -udge -udson's Dave..,and .will continue
now, if 1may, with your permission.
In the letters now submitted by Nicaragua and the United States, Judge
Hudson continues to assert his doubts that Nicaragua had accepted the Court's
jurisdiction (docs. 4, 6, 9, 11, 13 and 15, List of Documents submitted by the
United States, 13October 1984; docs. 4, 7,8, List of Documents submitted by
Nicaragua, 5October 1984).More significantly,the best argument Judge Hudson
could construct for his Honduran clients, who desperately wanted to estahlish
jurisdiction, was to assert that Nicaragua might have become bound as a result
of the 1939telegram. Judge Hudson never endorsed this argument after receiving
the opinion of the Registrar of this Court and the findings from the League of
Nations archives in 1955,and he advised his clients at that time that the experts
in Geneva thought it would not work. (See doc. 15, United States List of
Documents.) Judge Hudson advised that Honduras could nonetheless assert the
jurisdictional argument in the hope that Nicaragua would consent to argue the
case. In short, Judge Hudson never endorsed Nicaragua's new Memorial theory;
indeed, he never found that theory to be even remotely plausible, but rather
valiantly searched for means to argue on behalf of his client that Nicaragua had
in fact previously ratified the Protocol of Signature. The result however was the
letters from the Registrar and the Director of the European Officeof the United
Nations proving to the contrary, thus leading Judge Hudson to conclude that
Nicaragua was not bound under Article 36 of this Court's Statute.
Thus. there were four ororninent American iurists that narticinated in the San
Frinsisiii Conicrrncc and in the ncgutiaiiuns coiicerning tlic Statute of the neu
Court. tlacku<>rth, Jc\>up, Fahy and llud\<in. 2nd al1 cour relwtcd the notion
that Article 36 15)could e\o:ind the field of comnulrorv iuri\diçiii~n
Conference ianicipants [rom other nations siared <hh;s point of view. Judge
Krylov of this Court and a member of the delegation of the Soviet Union at San
Francisco published in 1949 a detailed commentary on the Charter and the
Statute, cited in the United States Counter-Memorial (II, para. 62). His view
was that Article 36 (5) applied only to declarations of States that had been
parties to the Statute of the Permanent Court (Murerialsfor the Ilistory the
UniredNuiions, Vol. 1,p. 281 (1949)).
Jules Basdevant, also later a distinguished Judge of this Court, was at the
Conferencc as a member of the Frcnch delegation. One may reasonably assume
that he approved the French proposal regarding the phraseology of Article
36 (5). We know that Judge Basdevant rejected Nicaragua's interpretation of
Article 36 (5) because hejoined with the majority in the Aerial Incirientcase. As
discussed earlier, the mdjority held that Article 36 (5) only applied to those
States "which, al the lime of their acceptance of the Statute, wereboundhy rheir
occepiance of rhe compulsoryjurisdicrion of the Permanent Couri" (1.CJ Reporrs
1959, p. 145; emphasis added). It can only be concluded, therefore, that Judge
Basdevant would find it impossible to accept Nicaragua's present claim that
Article 36 (5) applied to States not bound to accept the compulsory jurisdiction176 MILITARY AND PARAMILITARY ACTIVITIES
of the Permanent Court as of the date of the entry into force of the United
Nations Charter.
Another distinguishedjurist and diplomat whose opinion of Article 36 (5) has
been placed on the record is Julio Lopez-Olivan. Mr. Lopez-Olivan attended the
San Francisco Conference in his capacity then as the Registrar of the Perma-
nent Court, a position that he held from 1936to 1946.Thus, Mr. Lopez-Olivan
oversaw the compilation of the last Yeurhook of the Permanent Court. Later, in
1953.Mr. Lovez-Olivin was invited to become Reeistrar of this Court. and he
held [bat uniil IYhli.Thus. in addition IO a di;~inguisheddiplomai;r cïrccr
hc scrved as the Kcgistrar for both Courts. and u3s personnlly famil~arwith the
negotiation of Article 36 (5).
In 1955,after having heen retained by Honduras, Judge Hudson enquired of
Mr. Lopez-Olivan regarding Nicaragua's status under the Optional Clause of
this Court. Judge Hudson's initialletter is not available to us, and the current
Registry advised us in a letter of 25 July 1984, in response to a letter of 18July
from the Agent of the United States. that, were the letter to he found in its files,
the Registry's rules concerning confidentiality would prevent the Registry from
eivine the Parties access to that letter in the same manner that the Reeistrv -,
prc~ludcsan!.such;icccï\ h) the MenibcrsoCth~iC'ourt.In ;in).cvcnt. bir. I.op',.
Oli\xn's lcttcr of 2 Septcniher 1955to JuJgc Ilud,on rvasïvallablc 41 Il;in;ird
La\\,School and ir found in Anne\ 35 I<Ithe IJnited States Cgiunier-Mr.m<>rial.
The Registrar noted first that Nicaragua had not accepted the jurisdiction of the
Permanent Court :
"Previous Annual Reports indicated that Nicaragua had signed the
optional clause but was not bound thereby hy reason of its failure to ratify
the Protocol of Signature of the Statute, which would appear to he correct."
(Counter-Memorial, Ann. 35, 11,p. 253.)
He then turned to Nicaragua's new theory :
"1 do not think one could disagree with the view you express [that is,
Judge Hudson] when yousay that it would he difficultto regard Nicaragua's
ratification of the Charter of the United Nations as affecting that State's
acceptance of the compulsory jurisdiction. If the Declaration of Septemher
24th, 1929,was in fact ineffectiveby reason of failure 10 ratify the Protocol
of Signature, 1 think it is impossible to say that Nicaragua's ratificationof
the Charter could make it effectiveand therefore hring into play Article 36,
paragraph 5, of the Statute of the present Court." (Counter-Memorial,
Ann. 35, 11,p. 254.)
Thus, Mr. Lopez-Olivanemphatically rejects Nicaragua's new Memorial theory.
"It is impossible", the then Registrar of this Court says, "for ratification of the
Charter to make Nicaragua's previously ineffective1929declaration ekctive."
In fact, to the best of the knowledge of the United States, no individual or
delegation which attended the San Francisco Conference ever suggested that
Article 36 (5) hrought into force previously ineffectivedeclarations. In the las1
two months the United States has rcviewed al1the delegation reports from the
San Francisco Conference that it could find in public repositories. The biblio-
graphy compiled by the Registry lists many of these. The United States found
no suggestion in any of these reports that Article 36 (5) might expand the field
of compulsory jurisdiction.
A representative report is that submittcd by the Chairman of the NewZealand
delegation, Mr. Peter Fraser. He presented to his National Assemhly a report ARGUMENT OF MR. ROBINSON 177
entitled Unired Narions Conferenceon Iniernariona/ Organizarion. The report
States that paragraph 5 was added to Article 36:
"ln order to maintain so far as possible the progress towards compul-
sory jurisdiction already made by the Permanent Court of International
Justice .. ." (P. 105.)
Thus, the New Zealand delegation, which had been one of the most vigorous
proponents of compulsory jurisdiction, indicates that Article 36 (5) maintains
progress already achieved, but there is not a word about expanding the field of
compulsory jurisdiction.
Thus, Mr. President, we are faced with a unanimous opinion. Those that
attended the conference al1express the same view: Article 36 (5) only carried
over 10 this Court the field of compulsory jurisdiction under the Permanent
Court. Article 36 (5) did not expand the field to make obligations where none
had existed before because a deliberate decision was made at San Francisco not
to do so.
The listing of States subject to Article 36 (5) prepared by Charles Fahy for
the United States Senate in 1946 shows how this principle was to work in
oractice. This was a thoroueh. contemooraneous analvsis of Article ~ ~ ~ ~ ~~,.
kicaniguli claimh Mr Fahy okiltcd ~icka~ua from his fisi hecauw hc rcl~cdon
the lait Yrurhook of the Perm;ineni Couri. Counsel for Nicaragua xlso asserted
that Fahy's count of 19States was contradicted by contempora~eous statements
of Judge Hackworth, Judge Jessup and Professor Quincy Wright (p. 20, supra).
If the Court would examine the citations Nicaragua offers for this point it will
find that these three gentlemen each said the number was "about 20". This can
hardly be understood to contradict Mr. Fahy.
It bears recalling Mr. Fahy's statement for the Court:
"As to particular States 1 think the situation as you point out is clear,
that this resolution makes our declaration reciprocal; that is, only with
respect to States which accepted similar jurisdiction."
He then noes on to list the 19 States. which excluded Nicaraeua (Australia.
Rulivia. H;UII. Canada. C~ilomhia.I>cnniark. Doiiiinic~n~~~~bi;c.ll'aiii. lndia;
Iran. I.uxemb~iurg. iï\'rthcrlands. Yeu %caland. Norua), Panama, El Salvador.
Soulh Aïr~ca.L'nited Kinedo- .I.'r~rua-j.
He then says:
"Il is to be anticipated that a great many other States will deposit
declarations. Under the old Court Statute the total number who did this at
one time or another was 44. In addition to the 19mentioned above, whose
declarations continue in force, this number included Albania, Austna,
Belgium, Bulgaria, China, Eire, Estonia, Ethiopia, Finland, France,
Germany, Greece, Hungary, Italy, Latvia, Lithuania, Paraguay, Peru,
Portugal, Romania, Spain, Sweden, Switzerland, Thailand, Yugoslavia." (II,
Counter-Memorial, para. 82.)
Now, how did MI. Fahy arrive at his numbers? Counsel for Nicaragua says
he simply followed the last Permanent Court of International Justice listing.The
last P.C.I.J. listing, however, contained 29 States as States "bound by the clause"
(P.C.I.J., Serie.~E, No. 16, 1939-1945, p. 45). Moreover, the Permanent Court
Yearhook listing named 54 States as "States which have signed the Optional
Clause" (ibid.): whereas Mr. Fahy said the total number was 44.What accounts
for these divergencies?178 MILITARY AND PARAMILITARYACTLVITIES
The answer, upon examination, appears to be as follows. Of the 54 States
which the League listed as havina signed the Optional Clause, ten never made
their signatur& effective. These werë the seven States which had made their
declarations suhject to ratification, and failed to ratify: that is, Argentina,
Czechoslovakia, Egypt, Guatemala, Iraq, Liberia and Poland; and the three
States which had failed to ratify the Protocol of Signature itself - that is
Turkey, Costa Rica and Nicaragua. Argentina belonged to both categories;
it neither ratified ils declaration nor the Protocol of Signature. So Mr. Fahy
began his analysis by excluding the ten States which never accepted compul-
sorv iurisdiction. For them. includin- Nicarae-.. there was no oossibilitv that
AI;& 36 (5) might be applicable.
Of the remaining 44 States, 25 were also no1 eligible for the application of
Article 36 (5). These included 14other States whose declarations had once been
in force, bui which had expired (Alhania, Belgium, China, Ethiopia, France,
Germany, Greece, Hungary, Italy, Lithuania, Peru, Spain, Romania and
Yugoslavia), ten States which were not original parties to the United Nations
(Austria, Bulgaria, Estonia, Finland, Ireland, Latvia, Portugal, Siam, Sweden
and Switzerland), and one State - Paraguay - which had denounced its
declaration. The remaining 19were those on MI. Fahy's list.
While Mr. Fahy's analysisthus flows from the las1 report of the Permanent
Court it does not simply repeat the listing found there.So Mr. Fahy followed the
precise logicof the Statute. Those States party to the new Statute and which had
never previouslyconsented to the compulsoryjurisdiction ofthe Permanent Court,
or whose consent had expired or had been withdrawn, were not subject to the
wmpulsory jurisdiction of the new Court. States which remained bound to the
Permanent Court upon joining the United Nations as original Members had their
consent preservedin accordance with its original lems for the new Court.
(6) TheOpinionso/Publicisls
The opinions of publiciris are ncarly as unanininus as thc opinions erprersed
by partii1p;ints in the San I'r;tnciscoConfcrcncc. iiic~r~gu~i,hori.t\cr. intrudiiccd
a new document last week, the private opinion of one respected jurist, Madame
Bastid, to the etrect that ratification of the Charter could have operated to bring
Nicaragua's declaration into force in 1945.That opinion, contained in a private
memorandum to Nicaragua, is hased at least in part on the supposition that
the listing in the Yerirbook represented the considered opinion of this Court's
Registry. She States:
"Under these circumstances one could maintain that the declaration made
hy Nicaragua falls well within the scope of the provision in Section 5 of the
present Article 36. This is also the solution that results from theYearbook
of the Court (cf.Yearbook1954-55. o. 189). Without doubt it does not bind
thc Court. h"i ii r.ann,>tha\c ~;illcd'tiibcthc ,ib,cci onn dticniivc mami-
nsti<>nilithe Kcgisiry" (Lcg.11<~pini.,ni1i3Augu,~ 1956. itijrup. 311.tranr.)
However, we know that the first Yearbook of the Registry of this Court in fact
repudiated the theory that the ratificdtion of the Charter could bring a declaration
inio force for the first lime. That fiYenrbook rather was based on the mistaken
assumption that Nicaragua had followed up on its 1939 telegram and had
deposited its instrument of ratification. Moreover, scarcelya year hefore Madame
Bastid wrote her opinion, the Registrar of this Court had in fact conducted an
attentive examination and had concluded that "it is impossible" to accept the
same theory as Madame Bastid proposed. Thus, the sole authority that she cited ARGUMENT OF MR. ROBINSON 179
as the hasis for her oninion contradicted her. At anv rate. rie.tl- or,wro~elv~ ~~-~ .,
IvladxmeHartiJ diJ chpre>sihc throry ihai Nicaragua pr<)pose\in this case, hut
shc pro\,iJcr no r~iionalcoihcr ihan rclianccon this Court's Kcgiriry. RLI;imùny
~uhiicists. Madame Bastid. as far as we know. is alone in ber-oninio n.o one
élseto our knowledge has ever accepted the same theory, public'lyor privately.
Those scholars whose opinion is clear al1assert that Article 36 (5) only applied
to acceotances of the comoulsow iurisdiction of the Permanent Court.
~ica;a~ua also introduied lait week a legal opinion prepared for Nicaragua
by Professor Charles Rousseau and dated 21 June 1956. Professor Rousseau
examined the issue and reached exactly the same conclusion as had been reached
bv Mr. Lonez-Olivin.
'~rofesso; Rousseau reviewed Nicaragua's failure to deposit the instrument of
ratification and the terms of Article 36 (5). He concluded in his memorandum
to Nicaragua :
"Taking into account the conditions in which Nicaragua signed the
aforementioned declaration of accentance and the absence of transmi~ ~ ~ ~ ~ ~ ~
itr injirunicni of ratili~.ation in thc Sc.wtar) of the I'crmancni Court, II
sodld ;ippcdr thai ii Jocs no1 Iigiirc among ihc Siaics prcscntlg bound b)
the Opilonal Clause of conipulsor) ~urisdisiion." (Infiu.pp. 312-313.1
Professor Rousseau did note that the Yearbook listed Nicaragua's declaration
as in force, but he did not change his opinion. Concerning the Yearbook, he com-
mented :
"It is no1possible, however, Io give an absolute value Io an indication of
this nature taking into account that according to the terms of reference that
appear in the preface of each Yearhook, prepared hy the Registrar himself,
'The Yearhook is prepared by the Registry, and in no way involves the res-
ponsibility of the Court'."
Professor Rousseau concluded that, if Nicaragua sought to hring an Appli-
cation to this Court,
"11 is to be feared that . . .Honduras could oppose with prejudice the
question of the validity of the declaration of the compulsory jurisdiction
of the International Court of Justice, sincc this declaration has not been
accompanied by the transmittal of the instrument of ratification to the
Registry which should have occurred normally 27 years ago."
Professor Rousseau then advised Nicaragua Io filea new declaration if it wished
to accept the jurisdiction of the Court. He stated:
"A prudent precaution on the part of Nicaragua would consist, in these
circumstances, of repairing as quickly as possible the omission of 1939 to
eliminate a newsource of possibledifficultieswith Honduras in the hypothesis
that the International Court of Justice could be called upon to know the
controversy."
Professor Rousseau's last words on the suhiect of iurisdiction were these: "ln
any case there is [there (sic)] an amhiguity ihat it is convenient to remove as
soon as possible." Thus, Professor Rousseau in no way adopted Nicaragua's new
-
theory but rather concluded to the contras..
Professor Rosenne's views have been discussed at some length. There should
he no question about his interpretation of Article 36 (5). As he States in The
Time Fodor, in order for declarations to he transferred hy Article 36(5), they
were :180 MII.ITARY AND PARAMILITARYA~IVITIES
"Subject to the overriding condition that the State concerned was a party
to the Protocol of Signature of the Statute of the Permanent Court . . ."
(The Time Factor in the Jurisdicfionof the International Court of Justice,
1960,p. 19.)
In 1946,the eminent Polish scholar, Professor Ludwik Ehrlich, published a
commentary entitled (in translation), "Charter of the United Nations, together
with the Statute of the lnternational Court of Justice". Professor Ehrlich offered
this comment upon paragraph 5 of Article 36:
"Parties to the Statute of the lnternational Court of Justice accept here-
with the transfer of the Junsdiction of the Permanent Court of Interna-
tional Justice, if and to the extent this was accepted beforehand, to the
International Court of Justice." (P. 116.)
Thus. in Professor Ehrlich's view.Article 36 (5) anolied onlv if the oartv to this
Court's Statutc haJ previousl) aiccpicd the juririliction of the Pcrni;incnt Court.
The Iatc disti~ig~irhcdJudgc Abdullah El-Ilrian. wriiing in thc Ci,lu»ihiaJ<iitr-
tiii(IJliu~i.i~iuti<.Liui ckplained that undçr Articlc 36 (5)
". . .Jurisdicrionsubsistinginfovour of the oldCourt, hy virtue of decla-
rations under the Optional Clause . . .wasmade IO devolveon the present
Court in so far as suchjurisdiction affected the parties to the new Statute."
(19 Columbia Journal O/ Transnational Law 197, 202 (1981); emphasis
added.)
Again, the existingjurisdiction was carried over.
Judge Reed ofCanada, writing in 1946forthe CunudianBar Review, described
the situation as follows:
"Fi~ri)-iii,cnation, haJ mlidciIr.c1lirliti~nrrccpting the 'Option~lClau\c'
undcr the old Statutc. and about twcniy of thcrc dcclariliions rcmaincd in
effectwhen the new Statute came into force. Compulsoryjurisdiction, under
declarations still in force, was presewed by paragraph 5 of Article 36 of the
new Statute . . ."
Professor Dolivet, writing in 1946,summed up Article 36 (5) in the follow-
ing manner :
"At the same lime, il wasalso agreed that al1those Membersof the United
Nations, which wereparties IO the nldCouri undhud accepred the clauseof
compulsory jurisdiction,would automatically continue their obligation under
the new Court for the period ofits validity." (The UnitedNotions 79 (1946)
(with preface by Trygve Lie); emphasis added.)
And Professor Bowett, in his authoritative treatise, The Lu~vof Internarionul
Institutions246-247(1970). writes that : "Article 36(5) provides for succession
by the I.C.J. tojurisdicrionconferreduponthe P.C.I.J. by declaraiions under the
old Article 36 (Z)." (Emphasis added.)
In short, a field of compulsory jurisdiction existed for the Permanent Court,
resulting from binding declarations of parties to that Court's Statute. The pur-
pose of Article 36 (5) was to preserve as much as possible ofthat field of juris-
diction existing as of the date of the entry in10 force of the United Nations
Charter, and no more. ARGUMENT OF MR. ROBINSON 181
(7) The Yearbook of theCourt'sRegistry
'l'hcCnited Statcs. Mr. Presideni. now reier5 to the seventh topic rclating to
th< interprei.ition of Article 36 (5). the)i,urbook of the Regi~tq of thc Court.
In his dissentinc oninion in th~ ~rdcr of IIIMa\, Judac Schuehel note, thdi t~e ~
last ~eurbook of ihe Permanent Court lists ~icara~E>s declaration as having
never come into force and the first Yeurbook of this Court lists Nicaragua's
declaration as heing in force but with a cautionary footnote. Judge Schwebel
asked in his 10 May opinion: "How is it that such opposite conclusions could
have heen reached, bdck-to-back as it were?'(I.C.J Reports 1984,p. 202). The
United States will now answer that question.
The United States Counter-Memorial stated part of the answer: the Registry
"never listed Nicaragua's declaration as heing unequivocally in force" (II,
para. 123).That statement remains correct; both the original 1946and the later
1956 footnote to the Registry's Yearbook about Nicaragua's instrument of
ratification always served to raise douhts about the eflectiveness of the 1929
declaration.
An examination of the Registry's Yeurbook reveals three other pertinent Facts.
First, theYeurbook expresslystated that Article36(5) applied onlyto declarations
previously binding the declarant to accept the compulsory jurisdiction of the
Permanent Court. Thus the Registry of this Court expressly rejectedNicaragua's
theory that ratification of the Charter could impose compulsory jurisdiction
upon a State that had never previously accepted such jurisdiction. Second, the
1946 Yeurbook listed Nicaragua's declaration as being in force only because of
the possihility that Nicaragua had followed up ils 1939telegram and had ratified
the Protocol of Signature and hrought ilsdeclaration into forceforthe Permanent
Court. Third, the Registrar's actions in 1955confirm that the Registrar did no!
believeNicaragua could have hecome bound to this Court's compulsoryjurisdic-
lion by ratification of the Charter.
We turn now to the first point, that the first 1946 Yeurbook stated that
Article 36 (5) applied only to States previously bound to accept the compulsory
jurisdiction of the Permanent Court.
At page 196,for example, the first Yeurhook in 1946 lists the States that had
accepted the compulsory jurisdiction of this Court. The tex1explains:
"This list alsoincludes communications and declarations of States Mem-
bers of the United Nations which are still bound hy their acceptance of
the Optional Clause of the Statute of the Permanent Court of International
Justice, since their obligation under that Clause is extended to the new
Court by the termsof Article36,paragraph 5,whichhas beenquoted ahove."
That statement, Mr. President, could not be more explicit. Article 36 (5) extends
to the new Court the obligations of States which had accepted the compulsory
jurisdiction of the Permanent Court. Similiar statements elsewhere in the 1946
Yearbook limit the application of Article 36 (5) to States that "had accepted"
the compulsory jurisdiction of the Permanent Court and to States "which are
still bound by their adherence to the Optional Clause" of the Statute of the
Permanent Court (p. 207). The converse of these statements is that Article 36(5)
does not apply to a State that has not previously accepted the compulsory juris-
diction of the Permanent Court or, in other words, to a State that had not
adhered to the Optional Clause of that Court by depositing its instrument of
ratification to the Protocol of Sienature.
These statements were diScusGd in the United States Counter-Memorial (II,
para. 132).Although Nicaragua carefullyignored them last week,the statements182 MILITARYAND PARAMILITARYACTIVITIES
are significant because they demonstrate that the Registry's interpretation of
Article 36 (5) contradicts Nicaragua's new Memorial theory.
The second point is that the 1946 Yearbooklisted Nicaragua only because of
the possibility that the instrument of ratification to the Protocol of Signature
might have heen deposited by Nicaragua followingup on its 1939telegram. This
is apparent from the footnote appended to Nicaragua's declaration al page 210
of the 1946 Yearbook:
"Accordinp.to a telemam dated November 29th. 1939,addressed to the
Leaguc ol'~aliuns. ~irïiraguï had ratifieJ ihc Proiocol of Signaturc of the
Stïtutc oi ihe Pcrmancni Court of International Justice (Dcccmbcr 16th,
IY?Oi.anJ the instrument iiiraiificaiion uas io i<illi>u. otificïiion iiinccrn-
ing the dcposit of the said instrument has not, however, been received by
the Registry."
This footnote has a double significance. First, il demonstrates the Registry
was uncertain whether the leeal conditions for the an~lication of Article 36 15)
10 Nicaragua had bccn satisficdas a resuli of ihc 193i)'tslc~ram. It may bc nolei
in pasjing lhai a1pape 197the 1946 Yrurhuokcautioncd ihai .'under prcscnt con-
ditions, the particulirs given belowcannot be guaranteed as entirelyaccurate or
complete".
Also, the 1946footnote indicated that the Registry believedthat the necessary
legal conditions to be satisfied included the deposit of an instrument of ratifica-
tion under the old svstem. Otherwise. there would he no reason to include the
footnote. The footnote thus confirmswhat is apparent from the other statements
in the 1946 Yearbook,that is that unless Nicaragua had brought ils obligation
under the old system into eiïect by previouslyratifying the Permanent Court's
Statute, Nicaragua would not be covered by Article 36 (5).
The Registry never retreated from this position. And most importantly, the
last sentence of the footnote reveals that as of 1946the Registry in The Hague
had not receivednotification from the League of Nations archives in Geneva as
to whether Nicaragua had in fact followed ils telegram of 1939 with a deposit.
The Registry clearly decided to give Nicaragua the benefit of the doubt and
assume that such denosit was thereafter made. And therein lies the answer to
Judge Schwebel'squéstion.
The third point about the Registry's Yearbookis that the Registrar demon-
strated again, in 1956and 1957, that he believed that Nicaragua could not be
bound by its 1929 declaration through ratification and entry into force of the
Charter. As 1 have described, in 1955, Judge Hudson made enquiries of the
Registrar, Mr. Lopez-Olivin, who then made enquiries of the League of Nations
archives as deoosiarv. As a result of his investieations. the ~eeisrar stated his
opinion that iiwas "~mPossible3t'o maintain th; ratification of-the Charter had
brought the previously ineiïective 1929 declaration into force. The Registrar
thereÜr>onrei-ntroducedthe footnote into the Yearbook - for some years there
bad oily been a reference to the entry into the original 1946 ~earbook - and,
importantly, he rewrote the last sentence to refiect the new-found facts.The new
footnote concluded, in the las1sentence: "lt does not appear, however, that the
instrument of ratification was ever received bvthe Leaeue of Nations." (I.C.J.
Yearbook1955-1956,p. 195.)Furthemore, he hot only &anged the las1sentence
but the following year he introduced a new and emphatic disclaimer into the
relevant chapter. The new disclaimer stated:
"The inclusionof a declaration made by any State should no1be regarded
as an indication of the view entertained by the Registry, or, ajorriori, by ARGUMENI OF MR. ROBINSON 183
the Court, regarding the nature, scope or validity of the instrument in
question." (I.C.J. Yearbook1956-1957, p. 207.)
This disclaimer has appeared in similar fonn in al1subsequent Yearhooks
Thus, when faced with a confused and incornulete record due to Nicaragua's
ambivalent conduct during the life of the permanent Court, the first ~e~ktrar
chose to trust that the intention contained in Nicaragua's 1939 telegram had
been carried out. At the same time, the inclusion of the footnote alerted readers
that the declaration might no1he effective.In 1955,whenthe status of Nicaragua's
declaration had been confirmed, the Registrar took additional steps ta ensure
that readers did not rely on the listing. The Registrar might have removed
Nicaraeua from the list. but he evidentlv helieved that the inclusion of the
li>i>tnoï.nd his diiclatmer iïii\firJ hi>duij,. '1hc LniicJ Siaies docs not criticiie
the Krgi\trar'. decihion The IJniieJ Siïici doer Jiiagree. houever. urith ihosc
who suggest that listings in the Yearbook. whether unequivocal or conditioned,
have anyeilect on whether sovereign nations did or did nht accept thejurisdiction
of the Court. It is Nicaragua, and not the United States, that has endeavoured
to give authoritative force ta the Registry'Yearbook, and as 1will later note, it
is im~ortant to recall that when the footnote's last sentence was chaneed. the
I<egi.;trdr uï,ïu.arc of the pendcncy of ihc Hondura\-Niraraguï bounilary
ilispurc. :ind ihc d~ploiiiaiicJc11c;içvihiit iiiicndcd thïi Jisp~ir.. and ccriainl) hc
would not have wished to prejudice that situation.
At any rate, the conclusion is clear: the Registrars and the Yeurhooks never
adopted and indeed expressly rejected Nicaragua's new Memorial theory that
Article 36 (5) applied to declarations that had never previously bound the
declarant to accept the compulsory jurisdiction of the Permanent Court.
(8) OrherPublicarions
Other publications, and publicists, often relied on the Registry's Yearhook
listing. As a result, Nicaragua appeared on many lists. But none of these listings
supports Nicaragua's theory that the ratification of the Charter hrought its
ineffective 1929declaration into force for the first time. Rather they imply that
Nicaragua's declaration was brought into force, if at all, as a result of what was
supposed to be done under the 1939telegram.
An excellent example of this is the paper compiled in 1948 hy MI. Dennis
Myers of the State Department and entitled CompulsoryJurisdicrionigihe Inter-
narionalCourtof Jusrice.
First, it is apparent from the many references to the Registry Yeurbook that
MI. Myers'spaper was based upon that Yearbook and does no1attempt to make
independent determinations.
Second, the paper does not endorse Nicaragua's new theory. In fact, it hegins
with the statement that:
"Compulsory jurisdiction of the International Court of Justice is a
conrinuarionof the compulsory jurisdiction established by Article 36 of the
Statute of the Permanent Court of International Justice."
MI. Myers's paper then lists Nicaragua's declaration as efictive from the date
of the telegram, 29 November 1939 and not in 1945.Thus, MI. Myers's com-
pilationprovides no support for Nicaragua's theory that the declaration hecame
effective upon ratification and entry into force of the United Nations Charter.
Furthermore, a footnote to the Myers paper describes the footnote in the
Court's Yearbook and the telegram of 1939. It also notes that the index to the184 MILITARY AND PARAMILITARY ACTIVIT~
League of Nations TreorySeries does not record deposit of the Instrument of
Ratification. Thus. the reader is alerted that the declaration mav not have entered
into force.
Other publications also copied the Yearbook either directly or indirectly. For
example, the first edition of Treariesin Force, of which counsel for Nicaragua
has tried to make so much. relied on Mr. Mvers'soaoer which in turn had relied
on the Yeurhook.1 refer yo; to paragraphs 86and 81Ofthe Nicaragua Memorial.
Neither this nor any other publication listing Nicaragua's declaration endorses
or cives suooort to the new Memorial theorv that ratification of the Charter
cozd hringa declaration into force for the firit time.
(9) The Viewsofihe UniredSrores
We turn now to the ninth topic, the views of the United States on the inter-
pretation of Article 36 (5).
The United States interpretation is clear from the record. As cxplained hy the
United States representatives to the San Francisco Conference, Article 36 (5)
applied only to those declarations that had previously bound the declarant to
accept the compulsory jurisdiction of the Permanent Court. Mr. Fahy, as you
will recall, was quite specificin his Congressional testimony.
The Senate Foreign Relations Committee adopted the same interpretation of
Article 36 (5). In ils Report approving the proposal for a United States decla-
ration under Article 36, the Committee stated - this is one of the most impor-
tant quotes among the many that 1have made here today:
"'l'hcSan Franciscu Conference addeil an sdditional paragraph I<IAriicle
36 of ihc Siatute. according Io u,hich rl~cluruc~~.<~is.i.cprin/~i~)!tr,~d,i'~~in
of rhe old Couri. and rema~ninginforce, are deemed to remain in force as
among the parties to the present Statute for such period as they still have
to run. Nineteen declarations are currently in force under this provision."
(Report of rhe Senare Commirree on Foreign Relurionson Compulsory
Jurisdictionof the InrernarionolCourt of Jusrice.S. Rept. No. 1835, 79th
Cong., 2d Sess. at p. 105 (25 July 1946) (deposited with the Court); em-
phasis added.)
11thus adopted Mr. Fahy's list that did not include Nicaragua. This statement
in the Senale Foreign Relations Committee Report is critical for it confirms the
United States ~enate's understandine that there had to be a orior bindinr
acwpiancc ijithe Permanrnt ~ourt'fiurisdiciion thal remained in force u,hc;
the Charicr weni inio c~lect.And Niwrligua's declaration was noi - reprat no1
- included in this categos..
In sum, the United States delegation to San Francisco, the State Department
and the Senate al1 understood that Article 36 (5) did not include Nicaragua's
ineffective 1929declaration. Therefore, when President Truman issued the 1946
United States declaration under Article36of the Statute, it wasthe understanding
of the United States that its declaration would not he effective with respectto
Nicaragua unlessand until Nicaragua assumed a reciprocalobligation by deposit-
ing a new declaration under Article 36 (4) of the Statute of this Court. And,
Mr. President, such a declaration has never becn filed by Nicaragua.
(10) The Viewsof Nicaroguo
Finally, what historically have been the views of Nicaragua with regard to
Article 36 (S)? ARGUMENT OF MR. ROBINSON 185
Al1availahleevidenceindicates that Nicaragua neverbelievedthat its previously
ineffective 1929 declaration became effective upon the entry into force of the
United Nations Charter. The evidence consists of statements made in 1945, of
the events surrounding the King of Spain case, of Nicaragua's conduct in this
case, and of the nearly 40years of silence hefore the adoption of its new theory
in its Memorial of 30 June 1984.
On page 7, supru, the Agent for Nicaragua referred to the existence of an
official publication of his Foreign Ministry. He called it a "Yearhook" and the
Uniied States understood him to refer to a Nicaraeuan - ~uhlication known as
the .l!<.~i!i>rThe linilcd Stlitc\ h41suhiiiiited i<tlic Couri an c.icerpt froni the
Alr,~~ii~riir 1015.the yclir that Nicürügus ratificd ihc United Salions Charter
Item 3of ihc United Staics suhmi~iii~n,iidiicumcnis of 13Oiiohcr 1984contains
a copy of the original Spanish as wellas an English translation of a critical entry
in this Yearbook or Memoria.
The Nicaraguan Minister of Foreign Relations in 1945was Mariano Arguello.
He had also heen the Head of Nicaragua's delegation to the San Francisco
Conference. On 2 July 1945,the Foreign Minister suhmitted the United Nations
Charter and the Statutc of the Court to the Nicaraguan National Congress for
its consideration. The 1945 Memoria contains the Foreign Minister's statement
to his Congress regarding the Charter and the Statute of this Court.
Mr. President, if ratification of the United Nations Charter and its entry into
force would subject Nicaragua to compulsory jurisdiction for the first time in its
history, one would expect the Foreign Minister to advise his Congress of that
îact. What then did the Foreign Minister tell his Congress in 1945? These were
his remarks, which 1read from the English translation of the Memoria:
"To conclude, 1 must refer to the Statute of the International Court of
Justice. which is based on the draft ~re. .ed in Washington h- an Inter-
national Committee of Jurists.
In the work of the Conference, the Latin American countries, in keeping
with their advanced international law, took a stand in favour of the binding
jurisdiction of the Court in the settlement of international disputes. They
had to bow to the thesis of voluntary jurisdiction which prevails on the
othcr continents, and consequently States were left free to decide whether
they wanted to suhmit their disputes to the international organization that
was created. Howcver. the Charter left intact the rieht -f States to su~ ~-~ ,~~~
themselves to the jurisdiction of the Court pursuanrto earlieragreemenisor
by virrueoffurure arrangements." (Emphasis added.)
Nowhere in this, the official submission of the Statute to the Nicaraguan Con-
gress, is there a mention of Article 36 (5). Nowhere does the Foreign Minister
mention even the possihility that ratification and entry into force of the
Charter and this Court's Statute would subject Nicaragua to cornpulsory
jurisdiction for the first time in its history. Indeed, the phrase "pursuant to
earlicr a-reements or bv virtue of future arraneeme-ts" can onlv refer to onor
or îuiurc spciiül ;igrccnicnir or ii»nprc*>,isanil not io a unilaierlil dcclaraiioniii
I'>2't)hlit had ncvcrcntcrcd into lorce Onc can onl) ionçlude thsi the Nicar~guan
Gii\ernmcni in 1945 knru thai Articlc 36 (5) did noi o~rilvto I\'ii~r;leuliand
. . .. . -
il~ in~f~ ~ ~~e 1929d~ ~ ~ ~io~.
Thc Uniicd Statcs will disçurs Iatcr in th13prcsentation ihc cvcnti ronccrning
ihc Kin~<>jSpain arhiirsl ;inard clirc. Ai ihis poini II1scnough to rcCcrto two
Fast,. 17irst.nciihcr 1londur;is nor Niiarlieua nor the Un~icdStilics rcfcrrcd nt
any time during that period to ~icara~&'s new Memorial theory regarding
Article 36 (5). Honduras, which did assert in its Application filed under the186 MILITARYAND PARAMIL~ARY ACTIVITIPS
Washington Agreement that Nicaragua's declaration was in force, did so on the
theory that Nicaragua followed up on its 1939 telegram. Second, Nicaragua on
several occasions informed the United States specificallythat it had not accepted
the compulsory jurisdiction of this Court.
And what was Nicaraeua's beliefin A~riiof 1984when it filed its ADDlication.
submiiied ils leticr of.?i~~ril and argued in the oral proceedings on i;ovisional
measures! Nicaragua a\rerted ihdt,\riicle 36 (5) provirlcd jurisdiciion kcause
in duc courie Nicardru3 had ratilieJ the Prt~it~l f Signaiure. li Nic~rïrua al1
along believed the ne; theory that it now relies upon, why then did ~icaragua
not advocate this theory in April? The answer is clear: this theory was only
invented after the Order of 10 May of this Court and for purposes of the 30June
Memorial of Nicarama.
Finïlly. ihere an-cloque nlence.lasting 39)e;irs. N,caraguh~s iittrodu~cd.
and the United StatesIS auare of. no evt<lenceihai the Nicaraguan Go\ernmeni
or any Nicaraguan officia1ever asserted Nicaragua's new theory prior to the
filing of the 30 June Memorial in this case.
Conc/usion
Mr. President, the United States can only apologize for this long and perhaps
tcdious discussion of the interpretation of Article 36(5). Wehave heen exhaustive
and 1 might say personally exhausting in our presentation because this is a
central issue in this case. And we have heen exhaustive and exhausting in order
to emphasize that the evidence is overwhelming.
In conclusion, the text and logic of Article (S),the negotiating history, the
opinions of your distinguished predecessors, the viewsofhose who participated
in the San Francisco Conference, and the conclusions of eminent jurists confirm
this proposition: Article 36 (5) applied only to those previously binding declar-
ations still in force under the Statute of the Permanent Court at the time the
United Nations Charter entered into force. Article 36 (5) therefore did not apply
to declarationssuchasNicaragua'sthat wereneverinforcefor the PermanentCourt.
111.THENECESSIT OYFFOUNDINJ GURISDICTIO ON TITESTATUT OF THE COURT
The rather extensive argument the United States kas now just completed
focused on the requirements of the Statute of the Court. The United States
demonstrated that under Article 36 (5), Nicaragua has no claim to compulsory
jurisdiction. Nicaragua's nextargument proceeds directly from that premise. As
developed hy Nicaragua's counsellas1week (p. 42, supra), the theory, mentioned
only in passing in the Nicaraguan Memorial (para. 98), is that Nicaragua should
be deemed to have consented to the Court's compulsory jurisdiction by the
alleged conduct of the Parties and third States notwiihstanding Nicaragua's
failure to satisfy the requirements of Article 36 of this Court's Statute.
This rather startling proposition need not occupy much of our attention.
The theory is flatly inconsistent with the Court's own Statute. Nicaragua freely
wncedes this.Counselfor Nicaragua wasquiteexplicitlas1Tuesday,whenhe stated:
"What is clear, Mr. President, is that the consent of Nicaragua, as implied
from her conduct in face of the general opinion concerning the status of
her declaration as a valid acceptance of the compulsory jurisdiction of the
present Court,provides a title of jurisdiction indepcndently of the title of
jurisdiction based upon the operation of Article 36, paragraph 5.. ."
(Pp. 46-47, supra; see also p. 55, supra.) ARGUMENT OF MR. ROBINSON 187
What title of juri~diction is this? Nicaragua does not say, but surely ilis no1 a
title of jurisdiction recognized bythe Statute of this Court. The Statute of the
International Court of Justice provides three means by which a State may
manifest its consent to accept the jurisdiction of the Court. A State may deposit
a declaration with the Secretary-General under the Optimal Clause in accordance
with Article 36, paragraph 4. A State may by prior agreement either refer a
particular matter io the Court or accept compulsoryjurisdiction over controver-
sieswith other parties to the agreement, pursuant Io Article 36,paragraph 1, or
Article 37; or a State may satisfy the conditions set forth in Article 36, para-
graph 5.
The premise of Nicaragua's non-statutory argument is that it has no1satisfied
Article 36 (5). Niçaragua reliesinstead on what it calls "an independent title of
jurisdiction" (p. 55,supra). But Nicaragua has no1deposited a new declaration
under Article 36 (4) with the Secretary-General of the United Nations. Nor, for
purposes of this argument, has Nicaragua cited any compromis ,reaty, convention
or other agreement as a basis for jurisdiction. Thus, Nicaragua does no1 rely
uDonanv Articles of the Court's Statute as the basis for this claimto iurisdiction.
~his, simply put, is an impossibility.
Article 92 of the United Nations Charter provides as follows:
"The lnternational Court of Justice shall be the principal judicial organ
of the United Nations. It shall lunction in accordance with the annexed
Statute, which is based upon the Statute of the Permanent Court of
International Justice and forms an integral part of the present Charter."
The Statute of the Court accordingly is thegoverning instrument for this Insti-
tution - it is, in efect, its Constitution. The Statute provides the sole hases
on which the Court can exercisejurisdiction. The Statute itself confirms this.
Article I provides :
"The International Court of Justice established bv the Charter of the
United Ndtiuns 8s the princ.iplilluJicial orgm of ihe'llnited S\';iiionssh;ill
bc ~~instituic~alnd \hall function in accorJÿnce uiih the pro\isionr oi thc
present Statute."
Articles 36 and 37 of the Statute create the only possible titlcs of jurisdiction.
This is made clear by Article 53 of the Statute. This Article governs default pro-
ceedings. It reads:
"1. Whenever one of the parties does not appcar before the Court, or
fails to defcnd its case, the other party may cal1upon the Court to decide
in favour of its claim.
2. The Court must, before doing so, satisfy itself, not only that it has
jurisdiction in accordance with Articles 36 and 37, but also that the claim
is well founded in fact and law."
If in a default setting, theStatute requires a finding under Article 36 or 37,
then a fortiorionly Article 36or 37 may provide a basis for jurisdiction when,
as here, the Respondent does appear.
Mr. Presideni, the notion that jurisdiction could somehow be based upon a
title outside of Articles 36and 37 is, as I have said, impossible. In urging the
contrary, Nicaragua places primary reliance on this Court's opinion in the
case concerning the Temple of Preah Vihear(Camhodia v.Thailand)(Preliminriry
Objections,Judgntenlof 24 May 1941, I.C.J. Reports1941, p. 17). Counsel for
Nicaragua has simply misread the opinion. It does no1stand for the proposition
that parties are free Io provide their consent to jurisdiction independently of the188 MILITARY AND PARAMILITARYACTIVITIES
Statute. It stands for preciselythe opposite conclusion- that is, that to establish
a title of jurisdiction a State mus1 comply with the precise requirements of
the Statute. The Court stated that in the case of Article 36 (2). the relevant
mandatory fomal requirement is "the deposit of the acceptance with
the Secretary-General of the United Nations under paragraph 4 of Article 36 of
the Statute" (I.C.J. Reporrs1961, p. 31). In that case, Thailand satisfied this
mandatory requirement when it formally notified the Secretary-General that it
wished to be bound through the deposit of a declaration. Nicaragua has done
nothing of the kind, although it has long heen aware of its non-acceptance of
com~ulsorv iurisdiction under the O~tional Clause. Nicaraeua's comment that
"th&e wasno spccialprocedure for théapplication of the pro;isions of Article 36,
paragraph 5" (p. 47, supra) is thus as haffling as it is irrelevant. The Statute
provides a means for States to express their consent. Nicaragua was familiar
with that means, and urged hy Professor Rousseau in 1956to do so. Nicaragua
did not do so.
The Statute of the Permanent Couri likewise provided a clear means for a
State to exnress its consent - the filine of a declaration with the Lea~ue alone
with an inStrument of ratification of the Protocoi of Signature. As this cou:
stated in Amborielos(PreliminaryObjection,Judgmenl,I.C.J. Reports 1952, p.10
at p. 43), when a treaty expressly requires ratification as the means by which a
State expresses its consent to be bound by the treaty, ratification is an indispen-
sable requirement. Nicaragua chose not to ratify the Protocol of Signature.
Nicaragua nevertheless argues that under the law of treaties ils adherence to the
Permanent Court's compulsory jurisdiction somehow had what it calls "essential
validity" if not "formal validity" (p. 45, supra), and that subsequent conduct
could remedy what Nicaragua tems a mere defect of form.
Interestingly, in the Temple of Preah Vihear case deposit of the required
instrument under the present Statute was held to be a mandatory formal
requirement. Nevertheless las1 week counsel for Nicaragua cited the Templeof
Preah Vihear case for the proposition that the lack of deposit under the pnor
Statute was an irrelevant defect in form.
Nicaragua's argument is moreover based upon a conceptual confusion. There
simply can be no "essential validity" without "formal validity" - that is, with-
out-the entry into force of a treaty. Nicaragua's signature of the Permanent
Court's Statute never entered into force, so itis pointless to talk about the
presence or absence of what counsel for Nicaragua calls the essential validity of
Nicaragua's treatyobligation. The United States discusses thispoint at paragraph
157of its Counter-Memorial (II).
That, MI. Presidcnt, is the core of Our response to this non-statutory theory.
Nicaragua's position must be rejected preciselybecause it is not based on this
Court's Statute. This conclusion, it must he emphasized, is hascd upon policy
considerations of fundamental importance.
First, to adhere to the compulsory jurisdiction of this Court is to undertake a
major obligation. It is critical, therefore, that the compulsory jurisdiction of the
Court be bascd on the clearest manifestation of the State's intent 10 accept
such jurisdiction. Articles 36 and 37 specify how a State shall make its consent
to jurisdiction. If a State has deliherately avoided declaring such consent in
accordance with those provisions, then the only conclusion 10 draw is tbat the
State did not wish to accept the Court's jurisdiction.
Second, Nicaragua's thesis that a State may be deemcd to have given tacit
consent to compulsory jurisdiction introduccs intolerable uncertainty into the
systcm. Under the tests proposed by counsel for Nicaragua, a State would never
know for sure who it could sue or by whom it could be sued. ARGUMENTOF MR. ROBINSON 189
Third, to accept Nicaragua's thesis would mean that mere silencc by a State
suffices to create an acceptance of compulsory jurisdiction. The hypothetical
legaladviser of another government would have only one course to follow. If
that government did not wish to be bound - and this remains the case for the
vast mai-.itv of the ~arties to the Court's Statute - the leeal adviser would
have to counsel the 'Foreign Ministry to reject the possibiliïy of compulsory
jurisdiction publicly and consistently. Otherwise, the government would run the
risk of consenting to compulsory jurisdiction through ils silence. The harmful
consequences of Nicaragua's thesis for this Court and the system of compulsory
jurisdiction are as obvious as they are avoidableby basing the Court'sjurisdiction
on the mandatory requirements of its Statute.
With this observation. the United States now turns to the factual oredicate of
Nicaragua's theory (firsi advanced in its 30 lune Memorial).
Last week, Nicaragua referred to the various publications listing Nicaragua:
"we can safely say that the objective world opinion locked Nicaragua inside
Article 36 of the Statute. Nicaragua, without acting in bad faith, could
no1 have held a difîerent opinion. At this point, the subjective opinion of
Nicaraguan officials could not change what had become a legal reality."
(P. 140,supra.)
With al1due respect, that statement contemplates a very different legal reality
than the one in which we fortunately live. Indeed, the statement illustrates exactly
why the contentions of Nicaragua must be rejected. Information contained in
general treaty compilations, treatises, and even the Registry's Yearbookcannot
imprison a State inside Article 36. The nation itself must accept the Court's
jurisdiction. And a strict insistence on the procedures set forth in the Statute is
the hest way to ensure that a country does not against its will become hound.
This is especially critical in the case of States that have less legal resources and
that may be less informed about what is published by diverse international
lawyers and institutions.
Let us consider hriefly the publications that are alleged to have locked
Nicaragua in this prison of compulsory jurisdiction.
There is first the Registry's Yearbook.How could that Yearbookcreate any
legitimate expectations? As has already been pointed out, the Yearbookspecifi-
cally disclaims any authoritative responsibility. And, in Nicaragua's case, the
listinn of its declaration was alwavs subiect to a cautionarv footnote. Al1those
cave& and disclaimers wereintended touavoidany relianceBascd on that listing.
Certainly this case confirms the wisdom of including the disclaimers and the
caveats.
There is, next, Treafies in Force, and similar informational publications by
other nations. How can these, any more than the Court's Yearbook,create any
legitimate expectations that Nicaragua is bound to accept the Court's jurisdic-
tion? In particular, how can such treaty series reasonahly he held to bind the
governments that publish them?
Let us consider the United States Treutiesin Force.It is compiled by an office
within my legal office.A lawyer with a wide range of responsihilities supervises
that office.The work of compiling TreariesinForceis performed hy non-lawyers
subject to his general supervision. It is true that they have the authoritative
evidence for treaties for which the United States is depositary. However, for
other multilateral treaties they rely on the lists provided hy the respective
depositaries. They make no effort to verify the accuracy of such lists, nor could
they. The United States is party to nearly a thousand multilateral treaties. Some
of them have over a hundred parties. If the United States wished to verify190 MlLlTARY AND PARAMILITARYACTlVlTlES
indewndentlv the status of each oartv to each treatv. it would have 10conduct
rouihly 30.k~ verificaiions a ycir iyor this rcason., it IS obviously impossible
for ihc Unilcd Siatcs Io uarrani thai the Iistingi arc al1correct or to arccpi that
it might be bound by the publication of an erroneous listing.
The United States assumes that other States that oublish treatv lists also relv
on the various dePositaries. For example, the French koreignminiltry publicatioi
to which Nicaraauan counsel referred (Liste de traitéset accords de la France)
contains a prefaÏory disclaimer which, in translation, reads:
"The lis1 of oarties was established from official documents of the
depositïry Siïte or international orglini7ïtion . . The authorr of th15
publication hirongly recommend consulting. in the case of dispute, the
den<~siiïrvState irr orcani/ation, the State th31 ha, a,siirncd intcrn;itiunal
reSponsil&ity for the country whose legal position on the agreement is
unclear or the latter country itself . .." (1980 edition.)
The United States and French practice are examples of the ever-incrcasing
reliance on depositaries. It is not practical for each nation to undertake to make
al1the determinations on its own.
Some mistakes are therefore inevitable. Publishing an erroneous listing does
not change the legal reality - it does not change the legal status of any State.
Rather, it is the listing that must be changed to conform Io the legalreality when
the discrepancy is discovered.
This also explains the numerous cases in United States courts where reference
was made Io the State Department publication Treariesin Force. In the limited
lime since the introduction by Nicaragua of these citations last week, the United
States has confirmed that none involved a case in which a question of treaty
status was controverted by the parties. Where it has been, the Court will request
an affidavit from the State Department, various diplomatic correspondence or
other legal materials. This was the practice for example in the recent Federal
appellate case, Salome Bara Arnbjornsdotiir-Mendler v. United Stores, 721 F. 2d
679, 682 (9th Cir. 1983). In short, as described by the United States in its
Countcr-Memorial (III at. -.aeraoh 146.TreariesinForceis no1an authoritative
statement of the ~r;ited States on questions of treaty law. 1have already pointed
out that with respect to Nicaragua it was hased on Mr. Meyers's paper which ~ ~
was based on the 1939telegram:
Counsel for Nicaragua neverthelessargued that the diplomatic correspondence
of the 1950sconcerning the King of Spain case came to the attention of persons
in the Legal Adviser'sOfficeof the State Department, tbat the Legal Adviser's
Officealso publishes Treoriesin Force and, erg", the listing in Trearies in Force
must represent a considered legal determination.
This argument would no1 deserve a response, except that the counsel for
Nicaragua might hc understood by the Court to speak with personal authority
on the matter. In fact. the Treatv Office oerforms its functions in solendid
i>i>l.iti<>ïrim Jiplomatic negotiationi ruch ah the I'nii:J Stsicr mr..ii.iii<>n <II'
the tl<~ndura\.F\'ic.mguahoundary di~putc. Ihc .tïiTJoe. niit h:i\~.timc anJ
their duti-> do n,>teni,i,;icr- thït thcs monitor thr. Jinl<~maiic :ICII\~I~I~~~lthe
Deo~r~ment ~ ~S~at~ ~~ ~
Nicaragua has cited United Nations and other publications as well, but these
do not imprison Nicaragua any more than the Registry's Yearbook. In fact, most
of them derivetheir listinesfrom the Yeorhook.That thev contain misinformation
about Nicaragua demonGrates that they also are not infallible and may not be
relied upon. Again, it is the errors that must be corrected to conform to the legal
reality - not the legal reality that must be changed to conform to the error. ARGUMENT OF MR. ROBINSON 191
One more neneral comment isin order. Counsel for Nicaranua has endeavoured
to argue thaïthe conduct of the Parties with respect to the;arious publications
has created legal obligations hetween them. Any argument that a State's conduct
gives rise to awaiver~or preclusion on the bask ofpurported acquiescence must
he tested against a realistic appreciation of how States behave and what may
be expected. Here, Nicaragua was listed for many years in the Yearbookand
elsewhere. 1sit realistic to expect that the United States or other nations would
enauire into the listing-unless there was an imoortant reason for doine so? Of
;our\e nul State. .ire Idr IUO hurrlened uith actudl 2nd prealing pr.ihlenis than
iciinirriig.itc the iignilii.inie ,?.IIl>.itn<iiein the I<cgirtr)'s ït.~rh#iok,uiiless
dnd uniil tticre isan immediate r>.o,pe.i i>iIitie-iion. lhat iswh\, the cduticiiiarv
footnote is there.
The silence of States, therefore, does not imply agreement in matters of the
Court's compulsory jurisdiction. It shows only that the States have had no need
to investigate the issue. To transform such silence into legal obligations, either
for Nicaragua or any other State ignores the realities of the conduct of States.
In any event, any such implication is impermissible under this Court's Statute
and must be rejected.
IV
With the Court's permission, the United States would now like to turn to the
fourth and final portion of its presentation on the question of Nicaragua's right
to initiate these proceedings. In this section of our argument the United States
will demonstrate that the actual historical record of Nicaragua's conduct over
the past 40 years creates an estoppel barring its present effort to invoke the
Court's compulsory jurisdiction against the United States.
In the preceding section, the United States argued that general principles of
acquiescence play no role under the Court's Statute in estahlishing the existence
of jurisdiction.
This does not mean that conduct can never he relevant to questions of juris-
diction. Where one State has represented that it is not a party to the Court's
compulsory jurisdiction, and other States place actual reliance on that represen-
tation, the first State cannot he heard to claim compulsory jurisdiction against
those who earlier relied upon its contrary representations. This is exactly the
case presently hefore the Court. Nicaragua represented to the United States that
it was not hound by the Optional Clause. And the United States relied on those
representations. Nicaragua therefore may not now make a claim to compulsory
jurisdiction against the United States, even were it otherwise legally available,
which of course it is not.
The concept of estoppel is well familiar to the Court, so no elahorate devel-
opment of the relevant principle of law is required. It might be useful simply to
quote from Judge Alfaro's separate opinion in the Tenrpleof Preah Vihearcase:
"This principle, as 1understand it, is that a State party to an international
litigation is bound by its previous acts or attitude when they are in con-
tradiction with its claims in the litigation.
. ..
Whatever term or tems be employed to designate this principle such as
it kas been ao..ied in the international snhe.e. it, substance is alwavs t,e
same: inconsistency between claims or allegations put forward by a State,
and its previous conduct in connection therewith, is not admissible . . Its
purpose~isalways the same: a State must not he permitted to benefit by its192 MILITARI' AND PARAMILITARY ACTlVlTlbS
own inconsistency to the prejudice of another State . . Finally, the legal
effect ofthe principleis always the same: the Party which by its recoanition.
its renresentation.~its declaration. its conduci or its silence has maktained
an sttiiiidc iiianil'estl) conIrdricithe righi iiisclaiming heforc xn inier-
ndiiondl irihunlil is precludcd irom clainiinp thdr righi " (ïempli, ,>/I'rt9i1h
1 rlrr<irf(.'~,>nh,i<rI%u~lu,,d . Jzrdy»i~v111,('J Rc,p<,rl<1962. p 391
Judge Alfaro then explained that the pnnciple has three primary foundations:
"the good faith that must prevail in international relations" (ibid., p. 42), "the
necessity for security in contractual relationships" (ibid.) and "the necessity of
avoiding controversies as a matter of public policy" (ibid)
MI. President, las1 week Nicaragua suggested it would somehow be unfair
for Nicaragua to be deemed not to have accepted this Court's compulsory
jurisdiction; that it would represent a double standard to hold Nicaragua to the
requirements of the Court's own Statute; and, that to question its acceptance of
the Optional Clause would create a controversy where none existed in what it
called "objective world opinion (p. 140,supra). Now that the historical record
is before us, it is clear of course that precisely the opposite is true.
In 1943, as is proved hy Annex 13 to the United States Counter-Memorial,
the Nicaraguan Foreign Minister told the United States his Government had not
acceoted the Court's comnulsorv iurisdiction and in fact had not even orenared
an instrument of ratification to th; Protocol of signature. The Minister iaid that
he would take the further steps necessary Io accomplish this. He did not. The
United States and ~icara~ua could on$ have understood at that point that
Nicaragua was not bound. That understanding was never changed. One need
only refer to the position of Mr. Fahy and the Senate Foreign Relations Com-
mittee in 1946and indeed Io the observations of the United States in the Aerial
Incident case in 1960.
Furthermore, the events of the San Francisco Conference have already heen
referred to. Nicaragua, represented hy the same Foreign Minister, did not join,
as many other Latin Amcrican countries did, in supporting compulsory jurisdic-
tion and instead supported the Optional Clause. Upon returning to Nicaragua
the Minister gave the report to his Congress on the conference previously
descrihed. It did not give any indication that ratification and entry into force of
the Charter might alter Nicaragua's status. Indeed, it suggested the Court's
jurisdiction would be entirely optional.
The discussions leading to the submission of the King of Spain's arbitral
award to this Court in 1958 confimi this shared Nicardguan-United States
understanding. Because counsel for Nicaragua has sought to rewrite the history
of these discussions, it is prudent to recall the facts.
In 1906the King of Spain decided the Nicaraguan-Honduran border question
essentially in Honduras's favour. At first Nicaragua acknowledged the award,
but in 1912it took the opposite position. As a result, in the early 1950sNicaragua
remained in occupation of territory claimed by Honduras under the award.
Honduras wanted the matter resolved and hoped to look to this Court for aid.
An obstacle stood in the way, however. Nicaragua had made a reservation to
the Pact of Bogoti which appeared to exclude reference of the issue to this
Court. Moreover, Honduras believed that Nicaragua could not be compelled to
come before this Court on the basis of Nicaragua's ineffective 1929declaration
since that declaration had never come into force.
This isno1 speculation. It is in the historical documents. On 15June 1955the
Government of Honduras provided the United States with a formal statement
of its views: ARGUMENT OF MR. ROBINSON 193
"Honduras is willing to petition the Court, asking that in view of the
binding and definitive character of the Award of the King of Spain,
Nicaragua he ordered to execute it promptly and in good faith. By request-
ing execution of the Award, we are irnplicitly reafirrning its validity." (II,
United States Counter-Memorial, Ann. 34, App. C.)
However, the memorandum continues:
"Nicaragua has refused until now to recognizethe compulsoryjurisdiction
of the International Court of Justice so that the Court could take cogni-
zance of and resolve the case which Honduras has considered filing against
Nicaragua. Nicaragua had suggested that the two countries sign a kind of
special protocol to suhmit the problem to the Court so that it could declare
whether or not the award is valid. We could not agree to this because it
would mean that we are unsure of the validity of the Award when, on the
contrary, we are absolutely certain of it." (Ihid)
In conclusion, that memorandum then requests the good officesof the United
States of America to helv overcome this urohlem - thdt is, the vrohlem that
Honduras could not proceed by Applicatiin due to Nicaragua's faiiure to accept
the compulsory jurisdiction of this Court. The memorandum reads:
"In view of the foregoing, the Government of Honduras respectfully
requests that the Government of the United States use ils good offices to
the end that Nicaragua accept the compulsory jurisdiction of the Court so
that Honduras may present the case referred to ahove." (Ibid)
Six months later, after Judge Hudson had written his opinion (II, Counter-
Mernorial. Ann. 37) confirmine to Honduras that Nicaraeud was not bound
under Article 36 oi the St.ituic. Ilondurar ~gaiii rcquc<ied tlie I>ep.irinicnt oi
Siaie'\ :trrist:incc On 1'1Dc.cnihcr 1955,the II<mdiirant'a>rcigi\ilini\iir <~utliiic.l
three possible courses of action for his Government :
"(1) She could settle the matter by recourse to ams; (2) refer the matter
to the International Court of Justice which she was willing to do, but
there was some auestion as to the feasihilitv of this since the Nicaraeuan
C;<>rr~rnmcoht,iJ ni>[ac:epir,il !hi. ioliipul\.ir) jiiri~di~~tiiiniu the Ciiuri.
(3) r:ier thc.iii;itteI<Iihc OAS undcr tlie appropriate pro\.i\ion ur th: Kio
1rc.ity." (II. Counicr-Mcniorial. Aiin 34, App. 1:)
Honduras maintained this position in al1 suhsequent conversations with the
United States (II. Counter-Memorial. Ann. 34. ADD. 1.ADD.N: doc. 18. List of
ilic United States I>ocumcnt>.fleil 13Octuber 19x4,inlri;.'p 3b5).
Aiter the tl<~ndur,iiidr'nisrche. the I>cpariiiienioi'Stiic ininiiili~icly iiici riith
'Iic;ira~u.i'c,\iiibas,:iili>IO the I'nited St;.tei and ~iitlincil the vrobl:m The
~mhassador indicated that an agreement would he necessary béfore the case
could be suhmitted to the Court (II, Counter-Mernorial. Ann. 34, App. K).
Both the Agent and counsel for Nicaragua maintained last week that the United
States distorts the meanine of this document bv inter~retinz it -s a statement of
hirar~@ii.!'sunJcrrt:iiiJing ih~i ilii;isno1 h<iuiid. Iliiiiur r.ibniis,ion. Ii.iue\er,
ilid1the tl\~,'unicni.':inc~nl!be rciiia. tlic L'niieilStates re~dr iidiid i~nJir>i<><~J
iiat the tinie.Ii ir <lr.~rth~t the "d~li~culiv"IO uliich Amb~\s;idar Se\iIl;t-S;i;:ira
re~ ~r~ ~was the need for a comoromis or s~ecial aereement because Nicaraeua
had "never agreedto suhmit to ihe compulkry jurisdiction2'.He was clearlynot
rcferring to the terms of reference of the compromi.y. The two relevant sentences
are sid; hy side and the succeeding paragraphs in that document, which the
United States introduced in full with the Counter-Memorial, confirmed Nicar- 194 MlLlTARYAND PARAMlLlTARY ACTlVITIES
agua was not concerned that Honduras might be able to establish compulsory
jurisdiction against it. But if there were any ambiguity in this regard, which the
United .States is convinced there is not, a second exhibit to the United States
Counter-Memorial - an exhibit which Nicaragua did not note in last week's
presentation - records that on 2 March 1956,the same Nicaraguan Amhassador
told the United States:
"Nicaragua would probably go Io the International Court of Justice if
summoned by Honduras. It was not feasible, however, for Nicaragua to
summon Honduras to the Court. There is some doubt as Io whether
Nicaragua would be officiallyobligated to suhmit to the International Court
because an instrument of ratification ofacceptance of the Court's jurisdiction
was never sent . .." (II, Counter-Memorial, Ann. 34, App. L.)
Neither of tbese conversations was, as alleged last week, with "a rather junior
officer in the State Department at the time", nor were the memoranda merely
prepared "for the Files", as counsel for Nicaragua snggested last week. MI.
Newbegin, the American participant, was the third-ranking officer of the Inter-
American AtTairsBureau, a senior diplomat with primary responsibility for the
daily supervision of Central American affairs. Both memoranda received wide
distribution within the State Dewartment and were transmitted to the United
Siatc. k.nib~5rirsin I>.>IlonJur.i\ .incin Nic.ir3gua.This isc,>nipctcnt c\idcnce
This ir dcci\i\,r.ciidcncr in support <ilthc Lnitcd Statcr cl.iiiit ,ii~.tuppel.
To rcc;ir>ituIaic.durine 1955and 1956.liiiniluras dnd iKicar;ieiiaeaih t~>ldthc
United scates that Nicaragua was not bound, and the UnitedStates mediation
effort to help resolve their dispute was premised on that understanding.
Counsel for Nicaragua, however, argues that al1 three countries actually
harhoured some secret helief that Nicaragua had accepted compulsory jurisdic-
tion, and that this explains their conduct.
The only relevant evidence Nicaragua has introduced, however, concerns
Honduras. In documents recently submitted by Nicaragua, it appears that
Honduran officialsu~e~d Judee Hudson to conclude that the domestic action bv
Nicaragua's congrescon the Frotocol of Signature in 1935was sufficientto biné
Nicaragua under the Statute of the Permanent Court. Judge Hudson adamantly
refusedyIn letter after letter he advised his client that more was reauired. ~udie
Hudson noted that, for example, the Nicaraguan President had iot approvid
and published the necessary decree for domestic legal purposes, nor submitted
the required instrument of ratification to the League of Nations for international
purposes (see docs. 7 and 8, United States List of Documents, 13October 1984,
in/ra,pp. 351-352). In these circumstances, Judge Hudson concluded, at hest
Honduras might go to the Court "on the chance" that Nicaragua would accept
jurisdiction. even though not compelled to do so. This appears most clearly from
Judge Hudson's letter 10 the Honduran Foreign Minister of 17 February 1956.
This letter has just been located by the United States among the Hudson papers
at Harvard (doc. 9, United States List of Documents, 13 October 1984, infra,
p. 353), and it was not introduced last week by counsel for Nicaragua.
Even with this advice, Honduras still lacked the conviction that Nicaragua
would appear. Nicaragua's counsellast week suggested Honduras failed Io file
the case because it did not want Io be placcd in the position of Applicant. This
is plainly wrong. As early as lune of 1955, Honduras stated it was prepared to
file if it could be assured that Nicaragua would appear (II, Counter-Memorial,
Ann. 34. ADD. C). In Februarv of 1956. Honduras told the United States it
would akd blacikg the validiti of the arbitral award into question by charging
Nicaragua with illegally occupying Honduras territory (II, Counter-Memorial. ARGUMENTOF MR. ROBINSON 195
Ann. 34, App. J). Contrary to the assertions by the counsel for Nicaragua in
this oroceedine, Honduras did not exoress concern that it would he preiudiced
in aiy way hfproceeding as ~~~licait. The question of the lems oireierence,
to which counsel for Nicaragua referred last week,was only at issue if the case
were to be suhmitted by compromis .n fact, Honduras did star1the proceedings
by application on the basis of the terms of the ultimate compromis.
It did not do so, however, until agreement could be reached with Nicaragua.
Apparently as part of ils efforts to induce Nicaragua to accept this Court's
iurisdiction, Honduras moved trooos into the disouted territorv. as was exolained
in a telegram to the State ~epaitment by the United States ~mbassador in
Honduras, after speaking with the top officialsof the Honduran Government :
"ever sinceApril 1956Honduras attempting to get Nicaragua appear before
international court or other neutral body to settle boundary prohlem
and note of April 1956 suggesting international court never to date been
acknowledged. Thus Honduras hoping by this action as primary and peace-
ful objective to stimulate Nicaragua to either arbitrate or bilateral negotia-
tion." (II, Counter-Memorial, Ann. 34, App. N).
Even after the Washington Agreement was signed in July of 1957,Honduras
still harboured doubts that Nicaragua would appcar. This is apparent no1 only
from the Hudson correspondence, but also by the way Honduras pleaded the
case. In ils written suhmissions it called upon the Court to act whether or not
Nicaragua appeared (Arbitral AivardMade by the King ofSpainon 23 December
1906 (Honduras v. Nicaragua), ICJ. Reporrs 1960, p. 195). Once Nicaragua
appeared, however, Honduras dropped al1reference to compulsory jurisdiction.
In his oral argument on hehalf of Honduras, the distinguished Professor Charles
De Visscher based the jurisdiction of the Court solely on the provisions of the
Washington accord. (IC J Pleadings.Arbitral AlvardMade by theKingof Spain
on 23 December 1906,Vol.II, pp. 34-36.)
In short. Honduras's onlv assertion of comoulsoni iurisdiction over Nicaraeua
appeared i'nits initial writténpleadings dcspke le&l advice from Judge ~udgon
as to the weakness ofthe argument. It was the very uncertainty over Nicaragua's
status that explains Honduris' behaviour and litigating strategy.
It should also be stressed, however, that nonc of these questions about the
private heliefsof some Honduran officialsor about Honduran tactics is relevant
to the issues on hand. As of 1956, Nicaragua had represented to the United
States that it was not a 'art, to the O~<ional Clause. The United States relied
on this representation.
Counsel for Nicaragua neverthelessput down the followingchallengelas1week :
"The United States has not produced a single considered and deliberate
statement by a United States officialespousing the viewthat Nicaragua was
not subject to the Court's compulsory jurisdiction. The Court will search
Annex 34 and its Appendices in vain for such a statement." (P. 33, supra.)
The United States readily concedes that in using ils good offices itdid not seck
to impose a legal position on either of the Parties. It bears noting, however, that
the United States expended much of its effort inencouraging Nicaragua to accept
the Court's compulsoryjurisdiction (seeII, Counter-Mcmorial, Ann. 34,App. K).
In any event to rcspond to Nicaragua's request for further evidence,the United
States accompanied ils letter of 13 October with two communications dated
19 March 1957 from the United States Ambassador in Honduras to the Assis-
tant Secretary of State for Inter-American Affairs. In one, the Ambassador refers
to "douht as to whether Nicaragua has in fact already submitted itself to the196 MILITARY AND PARAMILITARY ACTIVITIFS
Court's jurisdiction". In the other, the Ambassador reports that Judge Hudson
was probably advising Honduras that Nicaragua was not subject to the compul-
sory jurisdiction of the Court. In fact, we now know from Honduran Foreign
Minister Duron's letter of 13 September 1957 that Honduras was very rnuch
concerned by the report of the Registrar, Mr. L6pez-Olivan, to Judge Hudson
that in the absence of the deposit of an instrument of ratification to the Protocol
of Signature under the Permanent Court system, it would he "impos-
sible" (in the Registrar's words) to estahlish that Nicaragua was bound under
Article 36 (5). As al1these communications reflect, the entire premise of United
States diplomatic eiTorts was that Nicaragua was not a party to the Optional
Clause.
Counsel for Nicaragua claimed last week that Nicaragua reversed its own view
that it was not hound when Madame Bastid informed Nicaraeua that there was
a possibility of jurisdiction in view of tYearbook listing. ~uï~icaragua, by its
own admission, had also been advised about the same time by Professor Charles
Rousseau that :
"Honduras could oppose with prejudice the question of the validity of
the declaration of compulsory jurisdiction of the International Court of
Justice." (Exhibit C, List of Documents Filed by Nicaragua, 5 October 1984.)
In fact, Professor Rousseau urged the filing of a new declaration hy Nicaragua
to resolve this problem. Nicaragua did not do so.
Mr. President, we do not know how the Government of Nicaragua responded
to the two opinions suhmitted to it and filed with this Court last week, nor
whether others werc solicited.Its subsequent course of conduct, however,strongly
suggestsit preferred the option of being able to contest jurisdiction if sued. What
is the evidence? First, Nicaragua never stated to the United States that it had
changed its views. Second, in March of 1957, Honduras publicly oiiered to go
to the Court with Nicaragua, explaining that unlike Nicaragua it (Honduras)
had accepted the Court's compulsory .jurisdiction (II, Counter-Memorial,
Ann. 34, App. O). This ofir was announced to al1the Foreign Ministers of the
Organization of American States and Spain. In ils reply, also widely publicized,
Nicaragua did not deny that it was no1 a party to the Optional Clause (II,
Counter-Memorial, Ann. 34,App. P). Third, in the Kingof Spain case, Nicaragua
manifested its hostility to compulsory jurisdiction. Because the case was brought
by compromis, Nicaragua could no1object Io jurisdiction without raising serious
questions about its good faith. But it could and did object to the alternative
ground of jurisdiction relied upon by Honduras, the Optional Clause. As the
United States pointed out on 27 April 1984 (1, p. 127), in the proceedings on
provisional measures, Nicaragua in its Counter-Memorial in the King of Soain
Eax objected to Honduras's rëpresentation that Honduras occupied the ios;tion
of Applicant. Let me quote the relevant passage in Our English translation:
"It will therefore be inaccurate to consider the Honduran Government as
occupying alone a position of Applicant because it was designated by the
common accord as obliged to institute the case and to deposit an Application
and Mernorial for that purpose. Each Party finds itself in that respect in a
reasonably equal position." (ICJ Pleadings,Arbitral Award Made by the
KingofSpain on 23 Decemher1906, Vol. 1at p. 132.)
Thus, Nicaragua, while accepting jurisdiction, did not admit to compulsory
jurisdiction. This conclusion is huttressed by the fact that in its introductory
remarks and in ils reply, Nicaragua stressed the case had heen brought before
the Court hy common agreement, and not on the basis of the Optional Clause ARGUMENI OF MR. ROBINSON 197
(I.C.J. Pleodings,Arbirrol Aword, op. cil.pp. 132, 133,748). Indeed, at no time
did Nicaragua acknowledge the possibility of compulsory jurisdiction under the
Optional Clause. Finally, the Court in its Judgment merely recited the initial
Honduran pleadings. Contrary to Nicaragua's contention in its Memorial in this
case (1, Memonal, para. 77) the Court did not "recognize" any basis of
jurisdiction under the Optiondl Clause (I.C.J. Reports 1960, p. 194).
Until the filingof the Application of 9 April 1984,Nicaragua never had stated
tbat it had undertaken the obligations of compulsory jurisdiction, in so Toras
we know. It has been 55 years since Nicaragua's original 1929 declaration.
Nicaragua has now presented hundreds of pages of written argument and made
hours of oral presentation to this Court.
Yet Nicaragua has presented not one shred of evidence that anyone in
Nicaragua at any time before the filingof its 9 April Application manifested his
or her belief that Nicaragua was legally bound to the compulsory jurisdiction of
this or the former Court. More importantly, in so far as the United States is
aware, and in so far as the record before the Court demonstrates, at no time
in these 55 years has the Government of Nicaragua or any oficial thereof
made any statement to the United States even implying that Nicaragua might
have validly accepted and therefore become bound by the obligations of the
Ontional Clause.
'Tct>e conirliry. ,incc 1943 Ni'icurÿguah;ts consistently rcprcsentcd Io lhc
United St;itcsof Anicnca th31Uicaragua na, net hound by the Optional Clliuie.
and. whcn the oicajion arwc uhcn this uxs matcrial ICUnited S1;itesdi~iom3llc
activities, the United States relied upon those Nicaraguan representations. The
United States suhmits, therefore, that Nicaragua is estopped from invoking the
compulsory jurisdiction of this Court against the United States.
Mr. President, 1 am happy to report for al1 of us that this completes this
exhaustive and, as 1have said, exhausting presentation of the United States on
Nicaragua's failure to accept the obligations of the Optional Clause of this
Court's Statute. During the course of its presentation, the United States kas
established three basic propositions:
First, that Nicaragua knowingly never brought into force a declaration under
the Statute of the Permanent Court;
Second, that in consequence, Nicaragua cannot be deemed under the plain
meaning of Article 36 (5) of this Court's Statute to have accepted this Court's
compulsory jurisdiction ;
And third, that Nicaragua's conduct in relation to the United States over the
course of many years estops Nicaragua from invoking compulsory jurisdiction
against the United States, even if, contrary to fact and law, il were otherwise
available.
All three propositions rely upon a fundamental consideration. The consent of
States to this Court's compulsory jurisdiction is dependent upon the assurance
that they will be treated with strict equality before the Court.
Nicaragua has sought to abuse this principle by requesting the advantages of
Applicant while resolutely refusing to accept the responsibilitics of a potentidl
Respondent. Nicaragua has, in short, sought to create a situation of incquality
before this Court.198 MILITARYAND PARAMILITARYACTIVITIFS
The United States respectfully submits that the Application musbe dismissed
because of this fundamental want of jurisdiction.
Mr. President, 1 would like, with your permission, to recognize the special
contribution Io my presentation of two of the best attorneys, and also two of
the finest persons, with whom it has ever heen my privilege Io be associated.
They are Messrs. Michael Danaher and Jonathan Schwartz.
Now, with the Court's permission, it gives me great pleasure to request the
President Io cal1upon Deputy-Agent of the United States, Patrick Norton, who
will discuss the Multilateral Treaty Reservation to the United States 1946
declaration. ARGUMENT OF MR. NORTON
DEPWY-AGENT FORTHE GOVERNMENTOF THE UNITED STATESOF AMERlCA
Mr. NORTON: Mr. President, distinguished Members of the Court.
THEMULTILATERT ARLEATY RESERVATI TONTHE UNITED STATFD SECLARATION
PRECLUDB THE COURT'E SXERCIS OEFJURISDICTIO OVER NICARAGUA CSAMS
The Agent of the United States has shown that Nicaragua never accepted the
compulsory jurisdiction of the Court and, accordingly, that Nicaragua may not
invoke that iurisdiction aeainst the United States. T~e~ ~n~ent~ ~,~i~~~~~~~~-~~
of the ~ourire~uires the consent of both Parties. Unlike Nicaragua, the United
States has accepted the compulsory jurisdiction of this Court. The United States
declaration of 26 August 1946remains in force. As we shall now demonstrate,
however, Nicaragua's claimsdo not come within the terms of that declaration.
Wholly apart from the first argument that was jus1 given by the Agent of the
United States, Nicaragua's Application must therefore he dismissed.
It mav be useful brieflv to summarize this nosition of the United~Sta~ ~The
United ~tiitrb dcclaratio; or 26 August 1936 contiiinr thrrr reseri,ations The
ihird rcservation. provisù "C". preiludes ihe Court's jurirdiction over this case.
M'eshall rcîer10 proviso "CMas thc '~MullilateralTrcaty Rrscrvation" II is also
sumelimes called the "Vandcnhcrg Rescrvation". alier the United Stdtes Senator
who in1ri)duccd iton thc noor of the United Staieï Senate2s an amendment IO
the Senate's approval of the United States declaration.
The United States will show that the Multilateral Treaty Reservation, read in
accordance with even its narrowest possible construction, excludes Nicaragua's
claims from the United States consent to this Court's jurisdiction. Specifically,
Nicaraeua's Central American neiehhours are oarties to the multilateral treaties
whiih kirdragua intokcs. and theVare no1 befori ihir Court. The<: States have
c~plicitlyand uncquiv<~iallv!<>Ithe Ci>urtthat thcy will beafected bg a decibion
in this carc. Moreo\cr. the alleeations in Nic~raeua's,\onlicdtion nlaie the riehtr
and interests of the other ~&tral American States ;t'the vejcentre ofthis
adjudication. Undcr these circumstances, the other Central American States will
clearly be "affected hy- those are the words of the reservati-n any decision
of this Court on Nicaragua's claims. The Multilateral Treaty Reservation there-
fore precludes this Court's jurisdiction over allegations that Nicaragua bases
on multilateral treaties. The United States will further demonstrate that the
Multilatcral Treatv Reservation in fact ~reciudes the Court's iurisdiction over
al1 of ~icaragua's claims, including thoie purportedly hased on customary or
general international law.
Because the Multilateral Treaty Reservation hy its terms. on its face, bars
Nicarae-a's treatv-based claims and narallel and subordinate customarv and
general international law claims, Nicaragua has attempted Io argue that the
reservation is meaningless. Nicaragua describes the reservation as "pure surplus-
age" - by which Nicaragua apparently means that the reservation~isredundant200 MlLlTARY AND PARAMtLlTARY ACTlVlTlES
to the Statute of the Court and without independent effect (p. 89, supra).
Nicaragua does not argue that the rescrvation is invalid, either as a matter of
United States domestic law or international law.
As the United States will show, Nicaragua's argument is contrary to the most
fundamental canons of interpretation of formal legal documents under hoth
international and United States law - namelv. that the legal acts of a
governnieni are ;il\r;iysconsirucd Io be meaningfi.1:and thai such icts are alwa)s
s<instrurrlin accordanse with ihc plain mcaning of their icrms.
Nicaragua's theory, moreover, requires imputing to the reservation an inten-
tion, as 1shall show, that is directly inconsistent with its terms. And Nicaragua
relies for thisextraordinary interpretation on an analysis of contemporaneous
United States intent that is both selective in its sources and demonstrably
inconsistent with the orinciDa1sources. Further. Nicaraeua's areument would
require the Court to constniéas meaningless thc identical-or similar reservations
of five other States not now before the Court.
So much hy way of summary. The United States will now elahorate on each
of these points. The proper place to begin is obviously with the text of the
reservation.
The Multilateral Treaty Reservation provides that Unitcd States acceptance
of the Court's jurisdiction does not extcnd to:
"disputes arising under a multilateral treaty, unless (1) al1 parties to the
treaty affected hy the decision are also parties to the case beforc the Court,
or (2) the United States of America specially agreesto jurisdiction".
The reservation thus limits the consent or the United States to the Court's juris-
diction over a specifiedclass of disputes - those "arising under a multilateral
treaty". When a State seeks to hring the United States hefore the Court to adju-
dicate a dispute arising under a multilateral treaty, the Court is without juris-
diction over the United States unless one of two specificallyenumerated con-
ditions is satisfied. Either the United States must specially agree to jurisdiction,
or "al1 parties to the treaty aiïected hy the decision" mus1also he parties to the
case beforc the Court.
This case arises under four multilateral treaties invoked in Nicaragua's
An~lication. most notahlv the Charter of the United Nations and the Charter
ofihc Organi/ation iii/\&crican Siates. And. iiicourbe, ihc Lniied Si~iicsha,
no1 ,pcci3lly agreed ti)the Couri's ~urirdiciion. The Couri. ihcrcforc. hai juris-
<liciinnover this rase unlv if 'aII r>ariiesto the treatiei that uould bc airc~ted
bv the decision are also narties to ihis case",
I'hc applir~tion or the Multilaieral Tre;iiy Keserv:iiit>nIO thii se is thereTore
iir:iightfnru;ird. The Court ii uiihoul iurisdiciion over 'Iic:ir:igu~'sApplic:ition
unleis, at a minimum, al1 States (1) that arc parties to the tréatiesinvoked hy
Nicaragua and (2) that would he affected by this Court's decision, are parties to
this case. The only question that this Court must address in this regard iswhether
there are treaty parties, other than the United States and Nicaragua, that would
he aiïected by a decision by the Court in this case within the meaning of the
language of the reservation. As the United States will now show, it is beyond
dispute that Nicaragua's Central American neighhours - most notably Costa
Rica, El Salvador and Honduras - would be profoundly aiïected, both legally
and practically, by any decision that this Court could render on Nicaragua's
claims. ARGUMENT OF MR. NORTON 201
The most probative evidence in this regard is the pronouncements of the
Central American States themselves. Each of these States has taken the unusual
step of advising the Court of ils viewson the potential harm to a peaceful reso-
lution of the Central American conflict that this adjudication could cause.
Manv of these statements were auoted bv the Aeent of the United States in the
introduction this morning. We $11 not r&at alÏof those quotations here, but 1
would respectfully refer the Court to them. Some, however, bear repetition for
they demonstrate how seriously the Central American States view these pro-
ceedings.
In its letter to the Court of 17September, El Salvador, for example, stated:
"El Salvador is persuaded in rhe considerarions of ils own survivalas a
nation that to subiect an isolated aspect of the Central American conflictto
judicial determination at this time would cut straight across the best hopes
for a peaceful solution" (emphasis added).
At the provisional measures stage in April Honduras told the Court that :
"The Government of Honduras . . .views with concern the possibility
that a decision by the Court could affect the security of the people and the
State of Honduras, which depends to a large extent on the bilateral and
multilateral agreements on international co-operation that are in force . . .
if such a decision attempted to limit these agreements indirectly and
unilaterally and thereby left my country defenceless." (II, United States
Ann. 104 - 1, p. 309.)
Costa Rica has also expressed ils views on Nicaragua's Application to the
Court, noting that :
"the 'case' presented by the Government of Nicaragua before the Court
touches upon only one aspect of a more generalized conflict that involves
other countries within the Central American area as wellascountries outside
the region" (II, United States Ann. 102 - 1,p. 306).
Nicaragua's Central American neighbours have also advised the Court of their
specificconcern that adjudication of Nicaragua's claims in this tribunal would
affecttheir interests by undermining the Contadora negotiations now under way.
El Salvador told the Court in April that, as one of the parties to these region-
wide negotiations, it considers the Contadora Process to be "the uniquely appro-
priate forum . . in which to seek a realistic, durable, regional peace settlement
that would take the manifold legitimate interests of each participating
State into full account" (II, United States Ann. 103 - 1, p. 307). Likewise,
Guatemala, Honduras and Costa Rica have each expressed concern that a
decisionofthe Court in this case wouldinterferewith the Contadora negotiations.
They, too, could be quoted at length here and, in certain respects, werequoted
in the United States introduction. The United States will not repeat these
quotations now but refers the Court to United States Annexes 102, 104and 103
(1, pp. 305-309).
Mr. President, the basic and irrefutable point that the United States wishes to
emphasize is this: the other Central American States have stated, expressly,
unambiguously and repeatedly, that they will be affected by any decision of the
Court in this case. Nicaragua and only Nicaragua denies theseeffects.Nicaragua
cannot speak for its neighbours. They speak quite well for themselves.
Moreover, the fallacy of Nicaragua's contention that a decision in this case
can be reached without alfecting the legal and practical interests of the other
Central American States is apparent in Nicaragua's ownsubmissions to the202 MlLlTARY AND PARAMlLlTARY ACTlVlTIES
Court. Nicaragua's pleadings on their face demonstrate that any decision that
this Court could render would necessarilv delimit the riehts and oblieations of ~ ~
Nicaragua's immediately contiguous neighbours - costa Rica and c on duras.
Thus, in ils Application Nicaragua alleges that the United States has
armed and trained forces o~~osedto ihe ~reseit Government of Nicaraeua. The
Application makes clear ~icara~ua's p&ition that these alleged ~nitLd States
actions were carried on in concert with the Government of Honduras. Nicaragua
contends, for example, that a "mercenary army" - a deliberately inaccurate"se
of the term, hy the way - allegedly created by the United States has been
recruited in Honduras, has been trained in Honduras, and has been installed in
base camps in Honduras (1, Ap~~ication, Ann. A, "Chronological .ccount",
para. 5).
According to Nicaragua's formal pleadings. these forces conduct attacks on
Nicaraguan territory from inside Honduras (1,Chronological Account, para. 1).
Nicaragua contends that armedforces of the Governmentof Honduras have
transported these forces to the Nicaragua-Honduras border, and Nicaragua
alleges that arms and other military equipment were provided Io these armed
forces hy the United States through military depots of the Government of
Honduras (ihid.para. 7).
Nicaragua's southern neighbour, Costa Rica, is also a target of allegations in
Nicaragua's presentation to this Court. Nicaragua has alleged to the Court that
there are 2,000 United States supported "mercenaries" on its southern border
(1, Affidavit of Miguel D'Escoto Brockmann, Exhibit 11submitted during oral
proceedings on provisional measures, para. 5),and that forces originating from
Costa Rican territory have attacked Nicaraguan territory. According to Nica-
ragua, these forces have received extensive support from airplanes, helicop-
ters, and ships that take off from bases in Costa Rica. Nicaragua alleges that
the Government of Costa Rica is also acting in concert with the United States
(1, Affidavit of Luis Carrion, Exhibit 1 submitted during oral proceedings on
orovisional measures. ~.ra. 4).
Mr. President, al this stagéin these proceedings, the United States does not
address the accuracv of anv of Nicaraeua's factual assertions. whether thev are
aimed at the ~nited ~tates.or at ~icaraeua'- Central ~merican nei~hhourk uo ~ ~.
analysis of the tnt,riodf I\'i<aragux',Iÿctual allegationr 0, neccivar).for the Co.irt
10 conïl~dc thlit the muitilliteral trrdry reseri,alion prcciudei the Court's juris-
Jistion Iicre. Ni;aragua .illegcï that the Cnitcd States has liacd iiiconcert uith
Iion<luras and Costa Rica. and ilrat 1hr.c rctiiinh i,iolate intr.rn;iti,~nalla!! 'l'he
Court cannot dctermine the lcgality of allcged Unitcd States actions u.ithuut also
pa\sinx upon the actions th;it 11dndiir:isand Costa Rica allcxedlv-. arc takin- in
Eoncert 'ith the United States.
Indeed, Nicaragua admits (p. 85,supra) the assertion of the United States that :
"lt is well settled that a State that permits its territory to he used for the
itself
commission of internationally wrongful acts against another State
commits an internationally wrongful act for which it bears international
responsihility."
Afortiori, a State acting in concertwith another State committing internationally
wrongful acts mus1 itsclf he committing wrongful acts - and that is precisely
what Nicaragua's pleadings assert Honduras and Costa Rica are doing. Mr.
President, these are the plain and inebctable implications of Nicaragua's own
pleadings in this case. Under the circumstances Nicaragua's denial that it places
in issue the legality of other States' conduct (p. 85, supra) rings hollow and
should not be admitted by the Court. Alleganscontrarianonoudiendus. ARGUMENT OF MI(.NORTON 203
nie United Statesemphasizesagain that the only question before theCourt in
this regard is whether absent treaty parties wouldbe "affectedby" a decisionof this
Court. And, again, the wnclusion that the other Central American States would be
"affected hv" a decision in the oresent case is irrefutahle in lieht of (1) their own
statementsand (2) the unavoidahle implicationsof ~icara~ua'splea&nis.
Two further points in this regard are warranted. First, Nicaragua agrees that
under the admissibility standads of the Moneiary Cold case, an application is
inadmissible whenthe rights of third States "fom the very subject-matter of the
decision". Tomorrow, Professor John Norton Moore will show that this case is
inadmissible under the standards of Moneiary Cold. For present purposes, it
should he noted that the very passage on which Nicaragua relies for this con-
struction indicates that a state's interests may be legally affected even if they
do not "Som the very suhject-matter of the decision". 1quote the passage from
Moneiory Cold in full: "ln the present case, Albania's legal interests would no1
only be affected hy a decision, but would form the very subject-matter of the
decision." Thus, whether or not the present case comes within the standards of
I Monelary Cold, that decision clearly indicates that the interests of the absent
Central American States may be "affected hy" a decision of this Court and hence
harred by the Multilateral Treaty Reservation.
Secondly, Nicaragua criticizesthe "affected hy" language of the reservation as
excessive,vvae-e (.. 96. su.ra..Like manv other ex~ressionsin leeal documents.
thc precise Iimits(ifthis phrase are un~pe~ilied.But this docs niit ~ggot thal
thcy are mraningless or tti;ii ihc (:ouri shuuld gi\e ihcin no content. And indced.
here the Court nccd not detcrmine the outer htiunds of th? cxpre\iiiin "allecicd
hy". By my construction or standard, by any interpretation of ihe plain meaning
of those words the interests of the Central American States in a decision in this
case come squarely within that expression.
The plain language of the Multilateral Treaty Reservation, in short, requires
that al1of Nicaragua's claims based on multilateral treaties he harred. Since the
only issue that the Court need reach is the proper application of the terms of
the reservation, it is not necessary togo behind the text to the underlying policies
it reflects. These are, however, important policies and perhaps it is worth a
moment to examine them.
As is discussed in greater detail in the United States Countcr-Mernorial. the
Multilateral Treaty Reservation addresses three concerns. First, the rcservation
protects the United States from being bound by a decision of the Court inter-
preting a multilateral treaty unless al1 parties to a disputc arising under the
multilateraltreaty are also bound hy the Court's decision. Second, the Multi-
lateral Treaty Reservation requires the participation of al1parties affected by the
proceedings, and therefore ensures both the Court and the parties of full and
fair development of relevant facts and legalargumentation. Third, the Multilateral
Treaty Reservation ensures that the legal rights and practical interests of third
States that are parties to a multilateral dispute will not be detemined when such
States are not hefore the Court. Nicaragua's Application gives rise to each of
these concerns and therefore is precisely the sort of case that comes within the
reservation's exclusion fromjurisdiction. Let us now examine each of these points
in tum.
Byincluding the Multilateral Treaty Reservation in its declaration, the United
States intended to ensure that. unless al1 parties to a dispute arisinr under a
muliiliiter~ltrcÿry uould he hound by a <Icr~sionof the Couri apply~ngthc ireaty
io a disputc ihe Ilnitcd Sriitcs would no1 bc hound. The L'nitcdSiates thcrcfore
did no1 consent io ailiudicair .u;h disputci before thr Couri unless 311 othcr
treaty parties involved in the dispute were also present before the Court and ARGUMËNT OF MR. NORTON 205
the legitimacyor the legalityof any armed action in which Nicaragua claims
the United States kas engaged and, hcnce, without determining the rights
of El Salvador and the United States to ennane in collective actions of
legitimate defence. Nicaragua's claims against ;hi United States are directly
interrelated with El Salvador's claims against Nicaragua."
The United States would also cal1the Court's attention again to the statement
of the Government of Honduras in United States Annex 104, whichwe quoted
earlier.
In the absence of the other Central American States, theCourt cannot properly
assess the relevant facts or the rights of those States and, hence, cannot assess
the rights of the United States. Further, any order of the Court binding the
United States and Nicaragua inrer sein a region-widedispute involvingon-going
armed hostilities would necessarily leaveundetermined the rightsand obligations
of the United States and Nicaragua toward the other States involved in this real-
world dispute. It is precisely to prevent such fragmented applications of inter-
national law to complex multilateral problems that the Multilateral Treaty
Reservation is addressed. The United States did not consent to partial adjudi-
cations of this nature.
The second and related concern underlying the reservation is that the Court
will adjudicate a dispute without access to directly relevant information in the
possession of third States. This Court mdy, under Article 66 of ils Rules, ob-
tain evidence "at a place or locality to which the case relates . . .".To do so,
the Court, pursuant io Article 44 of the Statute, "shall apply directly to the
Government of the State unon whose territorv the notice has to be se~ve~. ~ ~~ ~ ~~ ~
Nicaragua asserts that the~e'~rovisionswould assure the Court of a full factual
record even if the other Central American States are noi parties to the case. Mr.
President, this assertion is plainly disingenuous.
Nicaragua's allegations of the unlawful use of force would require this Court
to examine, presumably in some detail, the on-going armed conflict in Central
America - a conflict involving, hy admission of both Parties, regular and
guerrilla forces in five States over thousands of square miles of jungle and
mountain. Mr. President, no State embroiled in such an armed conflict can he
expected to disclose publicly detailed information related to that conflict. No
State can be exoected. in oarticular. to reveal such information to the verv State
il accusesof behg behind'the armed attacks against il. No State can be eipected
to reveal the status of ils own military forces, or ils knowledge-f ils adversaries
and the means by which it obtains that knowledge.
Finally, the Multilateral Treaty Reservation ensures that the rights and obli-
gations of third States will not be adjudicated in their absence. As we have
noted, Nicaragua's Applicationnecessarilyimplies an adjudication affectingthe
international responsibility of Honduras and Costa Rica. And El Salvador has
advised the Court that the legality of its actions may also come into issue. The
United States has historically rcfusedto consent to international arbitration or
adjudication of the intercsts of absent third States, in both bilateral and multi-
lateral dispute resolution agreements, including the General Treaty of Inter-
American Arbitration of 1929.This long-standing practice is explained at some
length in Our Counter-Memorial. Although there is no direct evidencethat the
Multilateral Trcatv Reservation was insoired bv this concern. it isconsistent with
long-standing Unitcd Si'itci pr~titicc.and unc ssn rc.i,onlihl) prcsumc thai ils
draftcrs wcrc filiiiiiliarrrith th;it prlicticc (\cc 1Ilud\,ln. "l'hc \VorlJ Court,
r\meric.i'sDcclaration Acceotine JurisJiction". 32 Anwrrciiii hr .I.i.~,ii~luJ»ir-
nul, p.832, at para. 836, NO .,-1946).206 MILITARYAND PARAMILIT~Y ACTIVITIES
We repeat that it is the duty of the Court here to apply the multilateral treaty
reservation, not to analyse ils underlying rationale. But we hope that this
exolanation of that rationale demonstrates that the reservation is directed at
genuine ioncerns. and th~i Jny failure IOappl) the rejcrvlition woulJ ncccssaril!
jcopirdi/c those conccrns Indced. II I\diilicultritimagine a case dilming more
~uu~rclv\r,ithin no1 onlv thr tcriii <ii the \lultilatcral Trrdtv Kescr\.iti,?n but
also its rationale.
Perhaps it is useful now to turn to Nicaragua's argument. In Nicaragua's
Memorial of 30 June (1, pdrd. 263) Nicaragua quoted in full the relevant section
of Mr. Dulles's memorandum, which 1quoted a moment ago.
The next sentence of Nicaragua's Memorial reads as follows:
"Thus. the Vandenberz A-endment would aonear to ..eate an exceotion
io the Unitcd States' acceptanec of conipulsory jurisiliction oi the Court
with respect to dtsputcs ïrising under a muliilaieral trîaty vhcrc not al1of
the partics to the dispute arc prcscnt bcforc the Court " (1. para 2f4.)
That is precisely the position of the United States. Between the submission of ils
Memorial and ils oral argument heard here last week, however, Nicaragua
changed its views.
Nicaragua's new position appears to be as follows: Nicaragua contends that
certain portions of the legislativehistory of the Multilateral Treaty Resewation
suggestthat its drafters had a single,narrow concern. That concern, according to
Nicaragua, was to prevent the United States from heing brought before this Court
by severalapplicant States, some of which had not previously acceptedthe Court's
compulsory jurisdiction. Nicaragua observes,correctly, that such a concern was
unnecessarv because Article 36 of the Court's Statute (as we have exolained at
Iength1od.i~)Joes no1permit Siatcs th:it hate no1acicpted cumpulsor) jurisdi;ti~in
Io filc applications againsi Siaies thai haie ~lwcpiedihc c~)mpulsogjuriiiliciion.
Niciirarua ci~nsludes ihat the Multilateral Treatv Rescr\lition \i,as thercft?re
reduudint, and should be treated as a meaninglesshullity.
This argument is fatally flawed in many respects.
First, Nicaragua asks the Court to ignore the plain meaning of the text of
the reservation and to denv it lawful effect. This violates the most fundamental
canon, of inicrpreiai1i)n of boih the internatiiinal lau applicd hy this <:ouri and
the lawoithe Cniied Si~irs,ivith iihich the L'nitedSt;itesScn:ite\\tir undoubtcdl)
familiar. Under international law. as the law of treaties for examole demonstrateS.
intcrnaiional inrtrument, are alisay, interprctcd lirst in ;rciurd;ince aith the pl.iiti
mianing CI^their tc~th 1-uriher. unJer internati<indl I~ii.al1cii the il.iu\er<iia
\\ritien in,trument ;ire ~re,umc,l to bc nic~ninfiiul The Unitcd Sidie, &in<>n,l>i
statutorv construction are verv similar.
In théCorfi, Cliannelcase (~erits), the Court rejected the contention that the
Special Agreement governing its jurisdiction contained superfluous language, ~ -
hecause
"It would indeed be incompatible with the generdlly accepted rules of
interpretation to admit that a provision.. .occurring in a SpecialAgreement
should be devoid of purpose or elTect."(I.C.J. Repurrs 1949. p. 24.)
As Sir Hersch Lautcrpacht noted in the last edition of Oppenheim'sInrernoiional
Luiv. Volume 1,page 955(7th ed., 1952),
"lt is to be taken for granted that the Parties intend the provision of a
treaty to have a certain effect, and not to be meaningless. Therefore, an
interpretation is not admissible which would make a provision meaning-
less, or ineliective." ARGUMENT OF MR. NORTON 207
Nicaragua has argued that the law of treaties should be applied to unilateral
declarations. Assuming, arguendo,that the law of treaties is applicable either
directly or by analogy, the Court should Lakenote of Articles 31 and 32 of the
Vienna Convention on the Lawof Trcaties and of the commentary of Nicaramta's
counsel, Professor Brownlie, thereon. Article 31 definesthe "context" in accord-
ance with which a treaty should be interpreted. Article 32 then provides that
recourse may be had to supplementary means of interpretation, including
preparatory works, where the application of Article 31 leaves the meaning
ambiguous. The distinction between the "context" and other "supplementary
means of interpretation" such as preparatory works (travaux prc?parutoire.s)i,s
to auote Professor Brownlie. "iustified since the elements of inter~retation al1
relaie to the Agreement hetween the parties 'at the lime when or aftérit received
authentic expression in the text'". Endorsing the viewsof the International Law
~ommission; Professor Brownlie continues
"Preparatory work did not have the same authentic character as the text
'however valuable it may sometimes be in throwing light on the expression
of agreement in the text'." (Principles of Public Internarional Ln~v, 3rd
ed., p. 625.)
To be sure, both international law and United States law resort Io preparatory
materials if there is an ambiguity in a text. But, this Court has, consistent with
the Rules of the Vienna Convention, followed the consistent practice of its
predecessor, under which "there is no occasion to resort to preparatory works if
the text of a convention is sufficientlyclear in itself" (Condirionsof Admissionof
a Siaie ta Membership in the United Narions (Article 4 of Charter). Advi.sory
Opinion(ICJ. Reporis 1947-1948,p. 57 at p. 63).
It is true that the United States Multilateral Treaty Reservation does contain
an ambiguity. But it is not the ambiguity that Nicaragua purports to identify.
As the United States indicated in its Counter-Memorial, scholars discussing the
reservation at the time of its inclusion in the declaration disagreed about whether
the reservation required the presence before the Court of al1 treaty parties, or
only of those treaty parties that would be affected bythe Court's decision. To
describe the ambiguity in another way, it is uncertain on the face of the text
whether the phrase "affected by the decision" modifies "parties" or "treaty". If
it modifies "parties", tben only those "parties aflected hy the decision" need be
before the Court.
In this case the particular debate about the scope of the Multilateral Treaty
Reservation does not need to be resolved. The United States argues that Nica-
ragua's claims come within even the narrowest construction of the reser-
vation, namely that parties that would he aficted by a decision of the Court
must be before the Court.
The United States would note that if the broader interpretation of the Multi-
lateral Treaty Reservation advocated by, for example, Judges Hudson and
Lauterpacht were accepted, Nicaragua's claim would nonetheless be barred. To
repeat that hroader interpretation, il would require that al1parties to the treaties
~ ~o~e~ ~n the Annlication must be before the Court. All oarties in the treaties
are obviously noibefore the Court, and Nicaragua's claim kould thus clearly be
barred. It is, therefore, no surprise that Nicaragua does not enter into the long-
standing debate about the only ambiguity on the face of the reservation
The Cour:rose or 6 p.m. TWELFTH PUBLICSITTING (16 X 84,lO a.m.)
Presenr: [See sitting of 8 X 84.1
Mr. NORTON :Mr. President, distinguished Members of the Court, the Court
will recall that when we adjourned last evening the United States wds explaining
the eflèct of the Multilateral Treaty Reservation. The United States explained
that by the plain lems of that reservation Nicaragua's claimsare excluded from
the conseiit of the United States unless other trcaty parties afïected by any
decision of this Court are also before the Court. The United States further
explained that the other States of Central America would indeed be afïected by
the decision of this Court. That conclusion is suuvorted hv the statements of the
other Ccniral Anicric'inSi.itr.sanJ by the ineluîi~hlc inipl~&tionsdfh'~:oragu:i's
own plradings. The United S131rhal\<>c\plaine<lthe r3iion.ile for thr.multiliitcral
treatv reservation and concluded that Nicaragua's claimscome squarely within
the térmsof both the plain language and the Fationale for the reservation.
At the conclusion of yesterday afternoon's session, the United States was
bcginning to discuss the argument that Nicaragua has advanced ag.ainst this
conclusion. We will continue with that explanation this morning. It may be
useful at the outset to repeat Our understanding of Nicaragua's position.
Nicaragua contends that certain portions of the legislative history of the
Multilateral Treaty Reservation suggest that ils drafters had but one concern.
That concern. accordine to Nicaraeua. was to orevent the United States from
king brough~ Lxfore th;s Court bfse&ral applicant States some of which, but
not al1of which, had not previously accepted the Court's compulsoryjurisdiction.
Nicaraeua observes correctlv that~sucha concern vas unnecëssarv. Article 36 of
the ~oirt's Statute does nG, of course, permit States which have not accepted
the wmpulsory jurisdiction to bring claims against States that have. Nicaragua
concludes that the Multilateral Treaty Reservation was therefore redundant and
should be treated as a meaningless nullity.
Yesterday afternoon the United States explained that this argument is flawed
in the first instance because it requires the Court to violate two fundamental
canons of trcaty interpretation or indeed the interpretation of any international
instrument, namely that every instrument is construed to be meaningful and
that every instrument is intended to be construed in accordance with its own
plain terms. There are other fatal defects to Nicaragua's argument. The logical
implications of Nicaragua's argument go beyond simply denying legal valid-
ity to a tex1 that is, in this respect, unambiguous. Nicaragua's argument, as
we shall now show, implies that the drafters of the Multilateral Treaty Reserva-
tion had a narrow intention that is directly the opposite of what the reservation
says.
Let us look at the text of the reservation again. It states that the United States
does not consent to the Court's jurisdiction unlesscertain States "are also parties
to the case before the Court". The reservation is thus specificallyconcerned with
the possihility of adjudication in the absence of certain States.
Nicaragua, through a manipulation of incomplete references to the legislative
history, attempts to turn this concern on ils hcad. Nicaragua tells us that the
concern of the drafters was to prevent situations where, in a case to which the ARGUMENI OF MR. NORTON 209
United States \<,asalready pdrty. othrr States might Jilin rven Ihi~ughihey had
no1 aiieptcd the Court's çompulsory j~riçdicrion In oihcr u,ords. Nicaragua
argues that the concern was with a case going fonvard against the United States
with imorooer oarties Dresentin the case. But the reservation olainlv swaks of a
concern'abk~t a case going fonvard against the United in theLhsence of
other parties. It would be extraordinarily difficult to craft an intcrpretation of
the ~ultilateral Treatv Resewation more-flaerantlv al odds with its exoress con-
-.
Cernabout absent parties.
As we bave indicated, resort to legislative history is inappropriate here. The
text offers no hint of an ambiguity in favour of Nicaragua's construction. Ilis
instructive, however, to review Nicaragua's use of the legislative history for here,
too, Nicaragua turns the evidence upside down.
The legislativehistory in this regardis admittedly meagre. A brief mention in
a Committee reoort and less than half a oaee of floor debate cast little lieht on
the intent of théState Department draft&sif the text, the Committee ~Gators
and staff who reviewed it, or the dozens of Senators who voted for it but made
no comment on the floor.
In any event, the legislative history does not support Nicaragua's contention
that the drafters were concerned with the possibility that the United States could
be brought before the Court by States that had not accepted the compulsory
jurisdiction. Since Nicaragua agrees that the reservation had its gencsis in the
concerns of John Foster Dulles, it is useful to quote Mr. Dulles in full again to
emphasize exactly what his concerns were. In speaking of disputes that "give rise
to the same issue as against more than one nation", Mr. Dulles said:
"Since the Court Statute [Article 36 (2)] uses the singular 'any other
State', it might be desirable to make clear that there is no compulsory
obligation to suhmit to the Court merely because one of several parties to
such a dispute is similarly hound, the others not having bound themselves
to become parties before the Court and, consequently, not being subject to
the [United Nations] Charter provision [Art. 941 requiring members to
comply with decisions of the Court in cases to which they are a party." (II,
United States Ann. 106.)
Mr. Dulles was concerned with the United States being brought before the
Court by one party to a multilateral dispute and consequently being bound by
a decision of the Court when other States, parties to the same dispute, could not
be brought before the Court and thus could not be so bound. This is why he
speaks of Article 36 (2)'s reference to "any other State" as being in the singular.
Any other one State to a multilateral dispute could, without the Multilateral
Treaty Reservation, bring the United States into Court on [kat dispute. Since
the other States parties to that dispute had not - in Mr. Dulles's words -
"bound themselves to become parties", a case could proceed in their absence
and, pursuant to Article 59 of the Court's Statute, those other parties 10 the
dispute would obviously not he bound by a decision of thc Court. Mr. Presideni,
the oresent case is a strikine illustration of this concern.
Nicar:igua's suggcsiion that 411. I>ulles'.;ioncer- indced his sole ionrern
- u,ai having Staic\ no1 previt>uïlybound 10 thc compulsory jurisdlition ci)mc
into the ç;iic as imr>ror>er>articscontradicts Mr. I>ullcs'sown words It should
also be noted that ~icaragua's argument implies that Mr. Dulles, a participant
in the San Francisco Conference and one of the leading international lawyers of
his generation, advocated a reservation that was meaningless because hc did not
understand the most obvious feature of Article 36 of the Court's Statute.
Moreover, Mr. Dulles's seminal memorandum and the other legislative historycilcd by Nicaragua is noi ihc whole of the coniciiiporaneous cvidcncc. Francis
Wilco.~,assisirtni IOihe Senaic I'oreign Relaiii~n>C<immiiieeand author of per-
hiips the most ihorough hisiory of the Senarc's consideration of the Lnited
States 1916dccliirliiion. under\to<~drhc rcscr\ation exlisil) lir docs ihc I;niicJ
Srries nou ("'fhe Uniied States Aceept<('ompulsory Jurisdiition". 4U Amt,r,<un
J~iurtiulo/ltiri~rtwrr<.n/.«ii.1946. p. 699 1 JuJge Hudson u,;isdso a Iiiirticipdnt
and coniultant in the Senate's app;oval proce&. Judge Hudson inteipreted the
reservation broadly to require that al1parties to a treaty, not just those affected,
be in a case; but he never suggested the reservation was a meaningless redun-
dancy.
The State Department, which actually drafted the reservation, also believed
the reservation to be mcaningful at the time. Thus, in an interna1memorandum,
which we have submitted as Supplementary Annex 20 (infra,p. 367), the Office
of the Legal Adviser, only a few months after the United States filed its
declaration, enquired inIo the applicability of the Multilateral Treaty Reservation
Io a proposed trusteeship agreement relating to Japanese-mandated islands after
World War II. It concluded that the contemplated agreement was a multilateral
treaty and, hence, that any disputes arising out of the agreement would be
subject to the Multilateral Treaty Reservation. Because of the reservation, the
Officeof the Legal Adviser concluded that the proposed agreement:
"would permit as a limitation upon the agreement of the United States
to compulsory jurisdiction of the Court over disputes arising under the
trusteeship agreement, the requirement that al1 parties affected by the
decision rnust also be parties to the case before the Court".
This was the Department's position in 1946;it isthe Department's position today.
Finally, Nicaragua's argument is contrary to directly relevant State practice.
Reservations the same as, or very similar Io, the United States Multilateral
Treaty Reservation appear in the declarations offive other States. The reservations
of Malta and Pakistan are identical to the United States reservation. The reser-
vations of El Salvador, India and the Philippines are similar, but eliminate
the ambiguity in the United States reservation by expressly providing that the
Court is without jurisdiction over multilateral disputes unless al1 treaty parties
are before theCourt. Each ofthese States, then, shares the United States concerns
about disputes arising undcr multilateral treaties and bas adopted reservations
designed to limit its consent to the Court's jurisdiction over them. Plainly, these
States understand that the Multilateral Treaty Reservation is not mcaningless.
Moreover, this is no1 the first tirne that a State's "Multilateral Treaty Res-
ervation" has been invoked in this Court. In the Trial i?fPakisiani Prisoners
of War case //.CJ. Re~nrls 19731. India. which did not have a Multilateral
ircaty Keicr\,~iion in itfdcclardiion ai the iime. irivoked Paki,t;in's Multilateral
Trcaty Kercrvaiion againrt l'likistin on the hÿsii tifrcciprocity(1 C'J I'It~<id~»,q~.
li~ul (JIPukirru~irI'ri<o!~cr>ci/H'ur. PD 142-1431 Ai issue in that ra,r was the
interoretalion of an Indian ;eserva<i&n to theCienocide Convention. Fifteen
othe; States had the same reservation, and India argued that, under Pakistan's
Multilateral Treaty Reservation, al115would therefore be affectedby the Court's
decision. ~akistan disaerecd. The disoute. as the Court will undoubtedlv recall.
involved 195 ~iikisiani~~risoners oC w<trin India. The onl) other Staic irgulihly
in,,olted in ihc disputc wa, Bsngladrsh. But tlangllidesh wli~not a part). to rhe
Genocidc Ci1nvcntionand thcreforc outjt<lcthe 'intbii of the >luliil~ierlilTrsdis
Reservation. Pakistan argued that no other States would be "affected by thé
Court's decision on the merits of the case" because no other States had any ARGUMENT OF MR. NORTON 211
interest in the prisoners of war (up. cil., p. 91). Pakistan's reservation was, and
is. identical to that of the United States. Pakistan look the narrow view of that
reservation as requiring only the parties actually affected hy a prospective Court
decision to be before the Court. India look the broad view of the reservation as
requiring the presence before the Court of al1parties to the multilateral treaties
out of which the claims arose. A decision was not, of course, rendered on this
issue, but the point here is that neitherndia, nor Pakistan, understood the Mul-
tilateral Treaty Reservation to he meaningless or, in Nicaragua's words, "pure
surplusage". Moreover, a year later, lndia replaced its earlier declaration with
one that contained a Multilateral Treaty Reservation.
In short, Mr. President, there is simply no support for Nicaragua's extraordi-
nary interpretation of the Multilateral Treaty Reservation. The reservation must
be applied in accordance with the plain meaning of its tems, and those terms
bar Nicaragua's treaty-based claims.
The United States has thus demonstrated that, pursuant to the terms of the
Multilateral Treaty Reservation, the United States has not consented to the ad-
judication of Nicaragua's treaty-hased claims.The United States willnow demon-
strate that Nicaragua's claims ostensibly based on "customary and generdl
international law" may not properly be adjudicated under these circumstances.
The United States argument is twofold. 17irst,Nicaragua's customary inter-
national law claims do not differ in substance from Nicaragua's treaty-based
claims. That is 10 Say, although Nicaragua purports to identify separate legal
bases for its claims, Nicaragua's allegations do not differ in their nature or in
the putative facts on which they rest. Second, as a matter of both law and
judicial propriety, the Court cannot adjudicate Nicaragua's customary law claims
if it is precluded from adjudicating the treaty-based claims. This is so both
hecause Nicaragua has failed to identify any specific sources of customary law
pertinent to its claims other than the trcaties it invokes, and because it would
he improper to adjudicate claims hetwecn the Parties without reference to the
specificlegal autborities that govern their mutual rights and duties.
First, with respect to the substance of Nicaragua's claims: it would be tedious
to recitc verbatimal1of Nicaragua's customary international law claims. In brief,
Nicaragua claims that the United States has breached alleged obligations under
customary international law "to respectthe sovereignty ofNicaragua" (1,Appli-
cation, para. 20); "not to use force or the threat of force" against Nicara-
gua (ihid, para. 21); "no1 to infringe the freedom of the high seas or interrupt
peaceful maritime commerce" (ibid,para. 23); and not to "kill, wound or kidnap
citizens of Nicaragua" (ihid, para. 24).
All of these allegations are variants on, and suhsumed by, the more general
allegations that the United States is using armed force against Nicaragua and
unlawfully intervening in Nicaragua's internal aflairs. Indeed, if Nicaragua does
not contend that the specificalleged acts are unlawful uses of force or unlawful
interventions, it is difficult to see what the factual predicate for Nicaragua's
treaty-based claims is for Nicaragua's treaty-based claims do specificallyinclude,
inter uliu, these more general claims that the United States has unlawfully used
amed force against and within Nicaragua (ihid, paras. 15,18)and has intervened
in the internal affairs of Nicaragua (ihid., para. 16).
Contrary to Nicaragua's contentions, a perusal of the Application thus shows
that Nicaragua's customary law and treaty-based claims are in substance the
same. The one set merely paraphrases or makes more specific the other. With
respect to the substantive equivalency of the allegations Nicaragua states only
that "the Application unequivocally divides the claims of Nicaragua into two
sets . . ."(p. 98, supra). But this hegs the question. The point at issue is not212 MILITARY AND PARAMlLlTARYACFIVITILS
whether Nicaragua has listed itsclaims twice but whether one list is suhstantively
equivalent to the other. Nicaragua does not deny the equivalency because, we
sÜbmit,it is undeniable.
Nicaragua notes correctly that pleadings based on alternative or multiple
causes of action are accepted practice in this Court and most domestic legal
systems (p. 98, supru). But this truism does not end the enquiry. The questions
here are. Iirst. whether there exists a relevant customarv law aoart from the
trc:itier ki,akc~ h) Uicar~gua AnJ. sccoiid, whether h) .tirtue or the Jiilcrcnt
ndtures ~inJ,tatuses of thc tw,~silurit, uilÿu. this Court can pr<>pîrlyadjiidi~dte
the customarv law claims when the limitations contained in one~~a~v's~consent
ta the court's jurisdiction preclude it from applying the specificiegai standards
to which the parties have agreed in treaties in force hetween them.
From the narrowest perspective, the issue is one of judicial propriety, fairness
and r~~~~~~on of the rule of law. similar to manv other considerations underlvine
the doctrine ofadmissihility, which Professor Moore will address this afternool
The Governments of the United States and Nicaragua have specifically agreed
on legal standards ta govern their mutual rights and obligations in at leasifour
treaties, including the Charter of the United Nations and the Charter of the
Organization of American States. These treaties constitute the 1e.xinter partes.
The conduct of the two States will continue to be governed hy these treaties,
irrespectivc of what this Court may do on the customary law issue, because of
the principle pacra sunrservandu. If there is a customary law separate from the
treaties that is not merely duplicative of the treaties themselves - a topic to
which 1shall return - that law is certainly less specificthan and, by hypothesis
different from, the standards on which the parties have agreed in their treaties.
Under these circumstances, the Court cannot properly adjudicate the mutual
riehts and ohliaations of the two States when reference ta their treatv riahts and
ogligations are barred. The Court would be adjudicating these.ri&ts and
obligations by standards other than those to which Nicaragua and the United
States have agreed ta conduct themselves in their actual international relations.
Standards, 1 repeat, by which they will continue ta be obligated ta conduct
themselves irrespectiveof a decision of the Court based on allegedgeneral custom.
In its Counter-Memorial (II, paras. 314.315). the United States cited a hroad
range of authorities agreeing that, with respect to the use of force by one State
auainst another. the United Nations Charter. oa.t.cularlv Article 2 (4)..i,,the
pre-eminent source or modern international law. Without exception these
authorities, includinr two of Nicaragua's counsel. exuress the view that the
Charter in this reaara embodies customarv and eeneral'international law.
Indeed, many authorities suggest that ihe charter is a higher source of law
that cannot be amended either hy agreement between individual member States
or bv subseauent State ~ractice butonlv bv the s~ecificamendment orocedures
of the chartir itself. under this theory, ii makes ni sense to speak of aCustomary
law, separate from the United Nations Charter, covering this same subject-
matter. All modern customary law in this regard is rooted in and presupposes
the Charter. All kas evolved over the last four decades hy reference to the
Charter and could no1 change the Charter in any event. If one removes the
Charter as a source of law for the adjudication of this customary claim, any
residual elements of that law would necessarilyfall with it. Since, ex hyporhesi,
the multilateral treaty reservation bars Nicaragua's Charter-based daims, it must
equally bar any related custom-based claims.
Mr. President, the United States has no wish ta engage here in a doctrinal
dehate on the nature and sources of international law. It is worth noting, how-
ever, that the two basic schools of international jurisprudence - recognizing ARGUMENT OP MR. NORTON 213
this as a simplification, the positivists and the constitutionalists - would seem
ta concur that, if the Multilateral Treaty Reservation bars adjudication of
Nicaragua's treaty-hased claims,it bars al1of Nicaragua's claims. The positivists
would bar adiudication of Nicaraeua's alleeedlv custom-based claims becduse
that adjudicaAon could not reach'ihe legal;tandards actually agreed upon by
the parties - the treaties as such. Constitutionalists would bar adjudication of
the -alleeedlv custom-based claims because the fundamental rules emhodied
in the uideri)ing Charter nurnis cÿnnot bc applied.
Nicaragua aiiemptr 1,)iiriumvcnt thcse cuncluii~~n..hy cuntending that the
IJniirJ Naiions Charter. or ai lcast Ariiilc 2 (4) ihercof, cnioys a dual existence:
that the Charter is no1 only a treaty but also,and quite ieparately, customary
international law. This is doctrinal sleight of hand.
Nicaragua suggests, rather tentatively, that Article 2 (4) was declaratory of
pre-existing custom and cites Sir Gerald Fitzmaurice to the effect that a treaty
declaratory of customary international law issimplyduplicative of the obligations
already hinding on the parties. The view of Article 2 (4) as merely declaratory
of pre-existing custom is, to Saythe least, unusual. Professor Brownlie citesonly
himself in this regard (p. 99, supra), and it is a great deal less than clear that the
views of Professor Brownlie's treatise which he cites are supportive of his
argument. Wewould refertheCourt to Professor Brownlie'streatise, lnrernolionol
Law and rhe Useof Force by Stares (1963), pages 279-280 - the pages cited in
oral argument - and to page 113and note 3 on that page. The United States
believesit correct to state that virtually every major publicist on this topic agrees
that, at the very least, Article 2 (4) was a major alteration of pre-existing law.
The view of Sir Gerald Fitzmaurice on the relation of treaties of codification
to customary law is simply off the point. If there is a clear pre-existing customary
obligation and a treaty merely declares it, the pre-existing but separate duty may
well continue. It is a controverted doctrinal question which of the two sources,
if either, would be pre-eminent. But the Charter was no1a treaty of codification.
It was a document drafted ta create a new legal order, not to restate the old
one, which had, twice in a generation, brought a world war.
The most striking feature of Nicaragua's argument is the conspicuous failure
to identify customary international law with respect ta the use of force apart
from the Charter. Nicaragua's failure to specify the source of law which, it
alleges,governs the issue betweenthe Parties can only he construed as an implicit
admission that there is no such source.
Nicaragua purports to reserve the nght later to identify separate customary
sources. But that lime has come and gone. In hundreds of pages of written
pleadings and hours of oral argument, Nicaragua has not identified an indepen-
dent customary law basis for decision. Thus there is no customary law claim
before the Court.
Most imoortantlv..to eive the Charter a dual existence and 10sav that claims
hsrcd on iiare harrcd a, irs;it) clainis but pcrmi.*ihlr ar curtuiii;iry Iau clainis
is 1,)viiiatc the Muliilaieral I'rcdt! Rcscr,;ition cntircl) I'hc I'nitcd States -
and fiveother States with the same~orsimilar reservations - intended 10exclude
ïriim their aiceptdnce of the Ci>urt'slurisdiciion disputes h~wd on muliilaicr~l
tre:itier unlcss certain zpccificdcondition, ucre satislkd. 'lhe C.iurt ahuuld no1
fruhtratc ihc clear inteniii>nsof six Statesb. a.quieçcing in Nicaragua's ductrina1
legerdemain.
The simple, undisputed fact here is that the Charter has heen pre-eminent in
this area for nearly four decades; to adjudicate claims of the unlawful use of
force without reference to the Charter would he inconsistent with one of the
most basic tenets of modem international law. And Nicaragua's claims of the214 MlLlTARYAND PARAMILITARYACTlVlTIES
unlawful use of force cannot be based on the Charter because of the Multilateral
Treaty Reservation.
Mr. President, the United States and Nicaragua are bound by legal obligations,
including the four treaties in question, whether this Court has jurisdiction or
not. The United States kas through the Court's Statute and the United States
declaration accepted a limited, but not a general, jurisdiction of this Court to
apply international law. Outside the scope of that declaration, the rule of law is
applied in exactly the same manner as between and among the vast majority of
States which do not accept the compulsory jurisdiction of this Court. The rule
of law and the Statute of the Court require that the Court apply the declaration
and ils limitations in accordance with their terms, to take no more jurisdiction
than was freelv eranted.
Mr. ~resideit:with your permission the United States will now briefly recapi-
tulate our argument with respect to the Multilateral Treaty Reservation:
- Tbat reservation bars adjudication of claims against the United States arising
out of multilateral treaties and arecting otber States parties to those treaties
unless the other aifected States are also before the Court.
- Nicaragua's claimsanse out of multilateral treaties.
- Tbe other Central American States are parties to these multilateral treaties
and, by their own statements and the unavoidable implications of Nicaragua's
pleadings, will be affected by any decision of this Court.
- Nicaragua's treaty-bascd claims are, accordingly, barred by the Multilateral
Treatv Reservation.
Ntcardgua's urten,ibl) custum-hriierl ~ldini.;arc ,ubit:intivcly cqiii\;ilcnt 1.1
and ruh\umcJ hy. 11strc;ily.briscd clainis.
- IVhcn iiic;ir;igua's tredty-hircd cl<iim.irire harrcd by the Muliilatr.ral 'l'rcat)
Kc.er\atii~n. the Couri canndi ad~udi:dte Nicaragu.i's :u\t.im-hri~c.1 il;iiiiii
hc~riu>ctherc i*no icpïrïtc bas,, in Iri!!iiirthri,e ~Iairnr:anil beiriure to do
xi uoulrl hc tu <iJjuJiçdt~by stand:irds oihcr than thoic by \\,hichihe I'arii:>
have arreed to bi rovernedin their international relations.
F\'ICJ~~~U~ r\'pl~irilion is. aicordingly. harrcil in 11sentirciy by the C'iiiicd
Staic> Multilatcral 'l'rcatyKcscrvatiun.
Mr Prcsidcnt, l now ha\c ihc grcai privilege3nd honuur ti>intri>duccProïcssor
Myrci Mcl>nugal.Sterling Profcsjur. Emeritur. ai the YaleLau School, ProCessor
of IAWai Scu York Sihuol. and an çsir~med fricnd and co1lc;ieuc.Profcssor
McDougal will discuss the other aspect of the United States cGnscnt to this
Court's jurisdiction, the United States note of 6 April 1984. ARGUMENT OF PROFESSOR McDOUGAL
COUNSBI. FOR THE GOVERNMENT OF TH8 UNITED STATESOF AMERICA
Professor McDOUGAL: Mr. President, distinguished Members of the Court.
It is an extraordinary honour to avuear before this eminent Court on behalf
of my Government upon issues of such high constitutional importance for the
whole community of States.
Infroducrion
Mr. Norton, Deputy-Agent of the United States, has explained that, as a
result of a rcservation in the United States original 1946declaration, the Court
lacks jurisdiction over Nicaragua's Application and the claims set forth therein.
It is my assignment to demonstrate that the United States note of 6 April 1984
effectivelyand lawfully suspends Nicaragua's present claims from the scope of
the consent of the United States 10the jurisdiction of the Court.
It will bc recalled that on 6 April of this year, the United States, pursuant to
Article 36 (4) of the Court's Statute, filed with the Secretdry-General a note
temporarily modifying the United States 1946 declaration. The United States
note of 6 April stated that the United States suspended from its consent to this
Court's compulsory jurisdiction, for a pcriod of two years, disputes "with any
Central American State" and disputes "arising out of or relatcd to events in
Central America". As the United States indicated shortly after the filing of the
6 April note, ils purpose was to preclude Nicaragua from isolating for adjudi-
cation certain issues from the broader, multilateral issues under negotiation in
the regional Contadora process. The United States 1946declaration is otherwise
unmodified and remains in full force and effect.
Nicaragua concedes that ils claims corne squarely within the lems of the
6 April note. Nicaragua disputes, however, the legal effectivenessof the United
States 6 April note. Nicaragua presents alternative theories in this regard,
according to whether or not the note is characterized as a modification or as a
termination of the United States 1946declaration.
Nicaragua concurs with the United States that the 6 April note is properly
rcgarded as a modification. Since, however, the United States did no1 explicitly
rescrve in ils 1946 declaration the right to modify that declaration, Nicaragua
contends that the United States mav not lawfullv do so. and that the 6 A~ril
note is, consequently, legally ineffective.
Nicaragua presents, in the alternative, a number of arguments based on the
assum~tion that the note is a termination of the 1946 declaration. Nicaragua
make; these arguments in order to render applicable a provision in the 1946
declaration calling for six months' notice of termination. Nicaragua contends
that, if the six-month notice proviso is applicable to the 6 April note, that note
was not elTectiveon 9 April when Nicaragua filed its Application.216 MILITARY AND PARAMILITARYACTIVITIES
It is my purpose to establish that the 6 April note is, in fact, legally effective
whether construed as a modification or as a termination of the United States
1946declaration.
The s~ecificissue hefore this Court whether a State mav modifv the
of ils ac~eptanceof the Court's compulsory jur~rdiction hefok anoihcr Sixte has
filcdan xpplication <ig<iin,t11.11 is common kn<~wledge ihat ihc manner in which
a Staie may limit or mudify ihc ierms 01iir arseptancc of thc Couri'\ iurisdiction
is not delimited in the Court's Statute but has evolved as a mat& of State
practice and Court decision. In practice, States have often resewed the right to
modify or terminate their declarations a1 will and have exercised that right.
TheCourt has expressly approvcd its practice in the Righi ,fPossage overlndiun
Terriiury case, finding it not incompatible with the obligation to submit to
compulsory jurisdiction. Some States have asserted and exercised a right of
modification without having previously reserved that right, and there has beeii
no effective protest. State practice and the fundamental principles expres~edin
the Righr of Passage case authorize modifications in the absence of a reserved
right. Though narrow, this issue is of obvious significance for the future
jurisdiction of the Court and for the States that have hound themselves to that
system ofjurisdiction.
This case, thus, necessarily raises the hroadest constitutional issues. This
Court's iurisdiction ultimatelv rests on the consent of States and the exoectation
of Sixtes ihat ihcir ccinrcnt is s~bjciiIOthe prinriplei of equaliry and rcciproiii)
In order tu ensurc that the consent of Siates IO ii&)\en ~~JUI~IC~IIOII15 geiiuine,
ihir Couri has hcld ihar the scone if iheir conscni i,1,)hc delerniincd aï .~flhc
date an aoo..cation is filed. the so-called "date of seisin". In acco~ ~ ~~ ~ ~ ~
this long-standing practicc grounded in ihc principle ihai States niuhtionscnt IO
the Court's jurisdiction, the Ixsk of jurisdiciion hcre is msnife\t Refore tht date
ol scisin. the United States clcsrlv and uneauivucalls ~nd~cated.in a noti' filed
with the Secretary-General in accordance wkh ~rticie 36 (4) of the Statute of
the Court, that it did not consent to adjudication of Nicaragua's daims. If this
case proceeds, it would, therefore, be a direct departure from the Court's long-
standing principle that jurisdiction is determined as of the date of seisin. Further,
it would he the first time in the 64-year history of this Court and its predecessor,
that the Court has found compulsory jurisdiction in the face of a denial of
consent made in advance of the filingof an application.
Rcciprocity, in its hroadest sense, and qua1 treatment, are, like consent,
fundamental principles underlying thejurisdiction of theCourt. The Court's Statute
thus explicitlyprovides that each State accepts the Court's jurisdiction only with
respectto States accepting"the same obligation". Bythis standard too, the validity
of the 6 April note mus1he affirmed.Assuming, arguendo, that its declaration was
binding, Nicaragua was entitled to modify or terminate that declaration with
immediate effect.In accordance with principlesof reciprocityand equal treatment,
the United States must be similarlyentitled vis-à-visNicaragua.
Thus, because it mus1 deal with such fundamental aspects of compulsory
jurisdiction, the Court's decision on the validity and enèctivenessof the 6 April
note may be expected to have profound effects on the rights and obligations of
States that have already accepted that jurisdiction. The Court's decision may
also he expected to affect the willingness of States to continue those obligations
and the disposition of other States to accept new obligations.
Argument
For developing these themes in somewhat more detail, 1propose to organize
my remarks about five major points. In doing so, 1 will elaborate upon those ARGUMENT OP PROFPSWR McDOUGAL 217
aspects of the United States position that are most important and, in the view
of the United States, decisive. It will hecome apparent that the contentions of
the United States and Nicaragua rest on fundamentally different assumptions
about the legal nature of declarations under the Optional Clause, including the
nature of this Court's compulsory jurisdiction, and about the principles of
international law that are appropriately applicable to the resolution of disputes
about such declarations.
My five basic points are:
- First, declarations under Article 36 (2) are sui generis in nature; they are
constitutional components of the Court's adiudicative process. They are no1
bilateral agreements between States.
- Second, because of the sui generis nature of declarations, and because of
relevant State practice, the United States note of 6 April 1984 was a valid
modification of the United States 1946declaration.
- Third, because of the fundamental principles of reciprocity and equality that
underlie this Court's compulsory jurisdiction, the 6 April note is valid
particularly as against Nicaragua. This is true whether the note is regarded
as a modification or a termination of the United States 1946 declaration,
and whatever ils status ergaomnes.
- Fourth, the 6 Apnl 1984note is valid under United States law, and, hence,
eRectivewithout question undcr international law.
- Fifth. and finall,..the most fundamental oolicies in the common interest of
al1 SI~ICS rcquire an ad~udicaii%cproccbr ha\ed upun shared conscni. Thex
poli~.iesunmisiakably point in the prcseni case Io an allirmaiiùn of the
e~rr.~iivcncsosf ihe IJniieJ Staics 6 Aoril noie and. awordinel-. io a dismi\sal
of Nicaragua's Application.
It willhe observed, as our argument unfolds, that wemeet each of Nicaragua's
arguments head-on and find al1of ils arguments either erroneous or irrelevant.
1 Weheginwith ourfirst majorpoint: declarationsunderArticle 36 (2) are sui
generis componento sf theCourt'sadjudicariveprocess
Although Nicaragua acknowledges in ils Memorial that a declaration does not
estahlish an obligation equivalent to that of a treaty obligation, ils contentions
effectivelyequate the two. Nicaragua contends, in essence,that once a declaration
is made, it may he modified or terminated, even before the date a claim is filed,
-n~, i~ ~ ~ ~ ~ ~e~ ~th the law of treaties. In his oresentation of 9 October.
Profe,ior Bruwnlicconiinued this ihcme. Ilc agrced th21dmlarations are in sonic
unswcified ii,aydiiïcrcnt from intcrnati<inalagrwnicnis. but hc inribisd ihai upon
most maior oroblems declarations mus1 be sÜbiectedto the law of treaties. else
chaos would'result. And, in fact, on every prot;lem that he addressed, Professor
Brownlie insistedon a strict application of the Iaw of treaties to declarations.
It is, however, incorrect and senously misleading to assimilate the obligations
established bv declarations under the Ootional Clause to treaties. and to rerard
iuch dcilardt;on, as govcrncd by ihc lÿu ~lircaiicr I1ecl:iration~are noi ncgùtGtcd
h11~icr~aIprccmcnis hul. rÿihcr. undcr Article 36 (2). uniquc componcni, i)f the
Court's adjudicativeprocess.Declarations and treatiesserveves. differentpurposes
and policies. Eÿch mus1 be interpreted and applied in the light of these diiïerent
purposes and policies and by the cntena of a law responsive and distinctive to
those differences.From the standpoint of the Court, declarationsmust, inparticular,
he rcad in the light of the fundamental consiitutional policies - consent, equality
and reciprocity - that underlie this Court's compulsory jurisdiction. The~ ~ff~rencesin fact between declarations and aereemen-s. which reauire a
ditTerentiaicJ r~lhcr thïn a nionolithic Iaw.arc cvidcnt Cronithe mdnner in uhich
declarïtions are nide. Eaih drclaration is dralied and 61edwith the Sccrct;ir)-
Ciencr.il~ii~laicriill~I.n accurdancc uiih Articlc 36 (?J uiihc Si;ituic. a de.laration
is immedistely opérativeipsofucro on the date of filing. As this Court held in
the Righri>/Passagecase, a declaration is thus eiiective vis-à-vis othcr declarant
States even before they have knowledge ofthe declaration. Under Article 36 (2)
reservatioris to declarations are also immediately effective without the consent
or agreement of other declarant States.
The resulting system of obligations bcars little resemblance to the obligations
estab~ ~hed~bv treaties. There is no neeotia-ion. no accommodation of mutual
iniereqi. Resr.nrations arc no1 suhjcci lu muiual agreement. l'hc relcvanl obli-
gciiuii, uCihc panirs are lixed. no1 by ügrecmcnt but raihcr hy Arliclc 36 (2)
and thc Couri's intcrpretationr of ihai Article io mükc eireciive its iundamental
prescripiionl of consznt, cquiiliiy and reciprociiy Thc szope of ihc ohligaiit>ns
of States iinJer the Opii<~nalClaube system - and. indeed. c\en the pïrtics IO
the system - can Varyfrom moment to moment without the knowledge of the
oartie~ ~h~ ~ ~ves. The euidine feature of this svstem is thus not the çarefullv
kegotiated establishment% bilateral obligations But, rather, a delicate system if
voluntary unilaterdl obligations by individual States.
It is indispensable ti rationai decision that we understand the complex,
constitutiondl uniqueness of declarations under Article 36 (2) hoih as a matter
of fact and in terms of the appropriate applicable law. Few scholars have been
more incisiveand comprehensive in perception of this uniqueness than Professor
Shihata. After careful summary of the tremendous variety of opinion expressed
by this Court and cornmentators, Professor Shihata wrote:
"The confusion, it is appreciated, is due to the simultaneous existence of
three elements in every relationship resulting from two declarations of
acceptance :
(1) The unilaterulelement whichpresents itself in the drafting of the dec-
laration and which must be taken into consideration particularly in inter-
preting ils terms;
(2) The bilareralelement which presents itself in the actual cases brought
before the Court on the basis of declarations where jurisdiction will be
established only to the extent to which the declarations of the parties
coincide; and
(3) The mulrilareralelement which is based on the fact that each declar-
ation derives its legal value from the Statute, and which leads to the
assumption that in the absence of any evidence to the contrary declarations
will be considered as made within the framework of the Statute.
These three elements should al1 be given their full weight and efict in
estimating with respect to each specific issue the possible attitude of the
Court. The characterization of the relationship in terms of one of these
elements to the exclusion of the others might facilitate the theoretical
treatrnent of the subject but will hardly be consistent with the very nature
of the Optional Clause System." (The Power of rhe InrernarionalCourr ro
DelernzineIrs OwnJurisdicrion(1965), p. 147; emphasis added.)
Similarly, Professor Rosennemakes a necessarydistinction betweenjurisdiction
established by bilateral agreement under Article 36 (1) and that established by
adherence Io the Statute under Article 36 (2). He writes:
"The antithesis is between this automatic acceptance of jurisdiction for ARGUMENT OF PROFESSORMCIXIUGAL 219
the categories of legal disputes mentioned in Article 36 (2) on the one hand,
and on the other hand the lirnited acceptance of jurisdiction for cases or
matters defined (relatively or absolutely) which results either from a special
agreement in the technical sense or from a compromissory clause in a treaty
or convention in force, a matter that comes under Article 36 (1). The
difference between the two lies in the method of defining the scope of the
jurisdiction conferred on the Court. In cases coming within the compulsory
jurisdiction, the scope of the jurisdiction, raiione personne and ratione
maferiae, is governed by the complex, variable and delicately balanced
system of declarations interconnected through Article 36 (2). In the other
cases, the scope of the jurisdiction is confined within relativelystable limits
determined by the title of jurisdiction exclusively, whichitself is the product
of the normal process of treaty-making. That process of treaty-making
includes a phase of negotiation. That phasc is absent as regards the com-
pulsory jurisdiction, where the contractual relations are estahlished auto-
matically, 'ipsofacro and without special agreement', so that the terms
on which a State recognizes the compulsory jurisdiction are no1 a matter
for negotiation." (The Law and Pracriceo/ rhe Inrernaiional Court, 1965,
p. 370; emphasis added; footnotes omitted.)
In lincilerarnple. Proicssor Hrigg,. thciugh he i,\zrcrnplidsirr.i ihr. ;<~n.enru;il
ïspezts orJcil:ir~tion\ bcfore the <131eolsr.i.ln. ;ippropr~dtelyinJiiaics some01'
the rclevani consiiiutional policie, in hisJcscripii~>nthe nature iifdcrllir;iiions
"A declaration accepting the compulsoryjurisdiction of the Court pursuant
to Article 36 (2) of the Statute is not a contractual engagement undertaken
hy the declarant State with the Court. It is in the nature of a general offer,
made by declarant to al1 other States accepting the same obligation, to
recognize as respondent the jurisdiction of the Court, subject to the limi-
tations specified in the offer. The declaration is not even communicated
by declarant to the Court, but to the Secretary-General of the United
Nations who registers it as an international agreement in the UnitedNations
TrearySeries.
Since a declaration is a unilateral act makinp.an offer, it must be related
to the unilatcral declaration of another State. The jurisdiction of the Court
in any case arising under Article 36 (2) finds its foundation and limitations
in the common ground covered by applicants' and respondents' declarations
as determined by application of the condition of reciprocity implied from
the words 'accepting the same obligation'.
The purpose of the statutory condition of reciprocity is to establish the
equality of the parties before the Court - an elementary requirement of
justice." ("Reservations to the Acceptance of Compulsory Jurisdiction of
the International Court of Justice", Hague Academy, Recueildes cours,
1958,Vol.93, p. 223, at p. 245; footnotes omitted)
In the light of this distinctive constitutional nature of declarations under
Article 36 (2). it is a grotesque miscalculation of common interest to insist upon
the application to these declarations of a body of law designed for a completely
different set ofactivities and for completely different comrnunity policies. There
need be no wasteland or chaos if an internationÿl law, more appropriate than
the historical law of treaties, is developed for resolving problems about declara-
tions in terms of cornmon interest. Happily, this Court has heen engaged for
some decades on the development of such law, and it has the opportunity in this
case to continue that development.220 MILITARY AND PARAMILITARY ACTIVITIFS
II. Our secondmajor point.buildingupontheficst. is: the 6 April note)vasa valid
mod@cation of the United States 1946 declarationwith immediateeffect
It may be noted at the outset that the Statute of this Court, like that of its
predecessor, makes no provision by ils lems for the making of reservations to
an acceptance of the Court's compulsory jurisdiction. Yet, despite the absence
of textual authority, States almost immediately began qualifying their declarations
with a wide range of reservations and the right to make these reservations is
now regarded as thoroughly established by practice and the decisions of this
Court. This nght to limit the scope of acceptance, as we noted in Our Counter-
Memorial (II, p. 107), derives no1 from the lems of the Statute but from a
principle implicit inthe consensual nature of the Court's jurisdiction and in the
political realitythat if sovereign States are to accept the Court's jurisdiction they
must be free to limit their acceptance. This is what former President Jiménezde
Aréchagareferred to as the principle of inplusstarminus.
It may be remembercd, Mr. President and distinguished Members of the Court,
that the argument of Nicaragua that the United States may not, without six
months' notice, modify or terminale ils 1946declaration is built upon the double
assumption that declarations are, with respect to matters of modification and
termination, subject to the international law of treaties and that that law provides
that treaties in relation to judicial settlement may not be modified or termina-
ted except in accord with their terms or by mutual consent. II follows that if
Nicaragua is wrong about either half of this assumption, ils whole argument,
like the nroverbial house of cards. comes tumbline down. It bas alreadv been
dcmcin~t;atcd by ihc UniieJ Siatcs ih.11 II uoulil beincpt io dtienipt to a"ply IO
Jcclar;itions. ci)nriiiuiionall) Jilicreni froni ordin:iry trcaiics. a 13woi trcat~es
desiened for com~letelvdilferint DurDoses.
I Gow propose'to oitlinc a devélopinginternational law, fmhioncd in specific
relation to declarations by practice and Court decision, which honours modifi-
cation and termination if exercised before the filinr of an advcrsarv claim. and
to establish that the international law of treaties>when properly~understood,
even if assumed to apply to declarations, does no1 preclude such modification
and termination.
The suineneris character of declarations is directlv recoenized. and ex~ressed.
in the pr;ii;ice by u,hiih ihcy haie hi\itirically bcen'rnodi&d and tcrm~~dicdhi
declarant St31r.r.OfinirncJiate rclev;incchcrc 15ihc u,irlcrprcad practix of Siaics
reserving the right either to modify their declarations with immediate eiiect or
to terminate and substitute newdeclarations,also with immediate effect.Twenty-
scven of the 46 States with declarations now in force - and 1 do not include
Nicaragua in these numbers - have either or both of these types of reservations.
Thus, a large majority of the States now participating in the compulsory
jurisdiction system are entitled by the lems of their declarations to modify the
scope of their acceptance of this Court's jurisdiction with immediate eifect.
States have, morcovcr, frequently exercised these rights. In literally dozens of
cases S~ate~ ~av~ ~erminated existine deLlarations and substituted new ~ ~la~a- -~~ ~ ~ ~
lions excluding rnxtcrs thdi came uiihin the scopc of iheir prior Jcilaraiions II
only conlirms ilic impurtancc uhtch State, atta~.hin thcrc riehtr IO noie th;it in
a number of instanies such action was taken with the skcific intention of
avoiding potential applications.
States have also modified or terminated their declarations in the absence of
reserved rights to do so. Thus, Columbia in 1936; Paraguay in 1938; France,
the United Kingdom and fiveBritish Commonwealth States in 1939; El Salvador
in 1973; and lsrael in February of this year; al1modified or terminated existing ARGUMENT OF PROPESSOR McDOUGAL 221
declarations without a reserved right to do so. Only limited objections to these
actions were made. Indeed, wiih the exception of a Honduran objection to El
Salvador's 1973action, there have been no objections by States to such modi-
fications in the absence of a reserved right in the last 45 vears. Profe~ ~ ~Br~wnlie
has raised many questions about these;nstances of modification and termination
in the absence of an explicitly reserved right, and cited Sir Hum~hrev Waldock
in su..ort of his views..It would not ao&a.. however. that his &&ions affect
the impuriance or ihesc prcccdents in shliping çomniuniiy çxpectliiionr about
future decision. As 1 rhall disçurs in 3 moment. morcoicr. Pr<)lrs,or Wjldock
reviscd his opinion on the amenability of declarations to modification or
termination. Based on some of the historical examoles cited bv the IJnited States.
~~ ~, ~ ~ ~ ~
Sir Humphrey concluded that declarations are' i"herently subject to modi:
fication and termination. (Yearhook or rheInrernarionalLnw Commission, 1963,
Vol. 2,p. 68.) 1will comc to these views in a few moments.
The Court itself has endorsed this practice, in so far as explicitly rcserved
rights are concerned, in the Righr ff Passage overIndian Terrilory case. The
Court's reasoning in that case is central to the present dispute, and a detailed
consideration of it is therefore warranted.
Portugal, in making a declarÿtion under Article 36 (2) of the Coun's Statule,
had reserved the right to modify the scope of that declaration at any timc with
immediate effect. The Court held, consistent with its earlier decisions, that the
obligations of two parties become fixed toward one another under the Optional
Clause upon the date an application is filed, the so-called "date of seisin". The
Court observed:
"As Declarations, and their alterations, made under Article 36 mus1 be
denosited with the Secretarv-General. it followsthat. when acase~ ~ ~-~i~ ~ ~
io the Couri, ii is always possible ti~ zisceriain .ri,h;itarc. ai ihat momcnt.
ihc reciproial iihlig&tii>nsof the Partic> in liçci)rd;incewiih ihrir rc,pective
I~cclaratiuns." iRiulir 111I'os>iixe ob<,rInho,, firrtrori, Pr>rr.lrmin, Oi..t,c-
rions.Judgrneni. ' .5J. keporrsU/9j7, p. 143.)
1would emphasize "when a case is submitted to the Court".
The Court recognized that the Optional Clause system has an inherent degree
of uncertainty in the scope of each declarant's acceptance of compulsory juris-
diction al any given time. The Court indicated, however, that the scope and
effect of the relationship between declarant States is variable at al1 times until
the date of an application. On that date, and only on that date, the elements of
jurisdiction expressed in the declarations of the parties then in force, as well as
rights of further modification or termination, are enéctivelyfrozen in respect of
that case. The Court round such a system retained its compulsory character,
while afïording States the flexibilityand the equality that lies al the heart of the
consensual nature of the Article 36 (2) régime.
The basic argument of Profcssor Èrowzie in relation to the 6 April 1984note
is, it will be remembered, that declarations constitute, even before a claim is
filed, some kind of an indenominate consensual relationship that is subject to
the law of treaties and that that law forbids the unilateral modification or
termination of al1 treaties. This argument runs flatly in the face of the general
recognition, as illustrated in Article 56 of the Vienna Convention on the Law of
Treaties. that some tvoe,.of treaties are bv their nature subiect to unilateral
icrmination or ti,ithJrawlil II nu!. bc hclphl 181rcir'r to ttic ~i\iubsion oi ihis
prublem during the prçpiirdtion of the Internatiun~l L:iw C:<~mniissiun dr.ifi i>f
the Vienn;iCon\cntion un the L;iiv<~f'l'rr.aiieA, ,cverrl Mcmhers olthc Court
may recall from personal experience in the drafting of that Convention, one222 MILITARYAND PAMMILITARY ACTlVlTfES
important question that arose was the terminahility of treaties that have no
r~~vi~ ~ ~ ~ ~ ~~mination.
Some participants in the preparation of the Convention originally thought
that treatv obligations canand should exist in perpetuity unless the treatv itself
orovides -for t&mination. Their oresumotion -was thai. in the absence of a
Provision for termination, the pariies inteided their obligations to be perpetual.
Other ~articipants in the drafting process, however, ohjected tbat certain treaties
should be considered terminahlébv their verv nature. Prominent amone such
trcaticr. the) cuntended, arc (1 )trcliiics agrccing 1,)arbitraiion, conciliation ur
iudici;ilsctilcnicni. and (2) c<)n,iitucniinsirumcnis of inicrnliiionlilorganintions.
Ynternational governmental organizaiions, with no express provision for wirh-
drawal. Indeed, an early draft of the Vienna Convention expressly included hoth
of these categories of treaties among those that were to be considered terminable
by notice.
In 1963.the Soecial Raooorteur for the Commission. Sir Humnhrev Waldock.
after examination of various types of treaties and review of conflicting opinion,
made the finding that "il is doubtful how Far it can he said today to he a general
rule or presumption that a treaty which contains no provision on the mitter is
t~~~~~~~~~~~-~ ~b, ~,tual aereemcn- of the narties". He asserted that the
relevant international law established that some treaties are terminable by their
nature. In summarv, in total revision of his much-cited article of 10years earlier
in the Bririsli ~ear.~ookoflnrernulional Luw, he made reference hfanalogy -
and I emphasize hy analogy - to declarations under the Optional Clause and
he concluded :
'Taken as a wholc,Si;itc praciicc undcr the OptioiiiilClause. and espr.sially
ihr mudcrn trcnd ii>warddccl<iratiun>terniinable upon niitice. \ccm unly
to reinforce the clear conclusion to be drawn from treaties of arhitration,
conciliation and judicial settlement, that these treaties are regarded as
essenLiallyof a terminable character. Regrettable though this conclusion
may be, it seems that this type of treaty ought, in principle, to be included
[among the treaties terminable by nature]." (Yearbouk O/ rhr Inrernarionol
Luw Commission, 1963,Vol.2, p. 36, at p. 68.)
If State practice under the Optional Clause can be drawn upon to confirm the
terminability of treaties relating to arbitration, conciliation, and judicial settle-
ment, that practice must assuredly import the element of lawful modification
and termination. The message in Latin of u/orriori and of President Jiménezde
Aréchaga's in plits srar minus would appear to be entirely relevant.
The same conclusion necessarily flows from Sir Humphrey Waldeck's dis-
cussion of the inherent terminahility of the constituent instruments of intcrna-
tional governmental organizations. In describing theoutcome reached with respect
to the United Nations Charter, he wrote, again in 1963 as Special Rappor-
teur of the International Law Commission :
"At San Francisco, although dilTeringviews were expressed during the
discussion, the Conference ultimately agreed that a Member of the United
Nations mus1be free in the las1resort Io withdraw from the Oreanization.
While omitting any denunciation or withdrawal clause from the Charter for
psychological reasons, the Conference adopted an interpretative declaration
which induded the following passage:
[This is from the Charter:]
'The Committee adopts the view that the Charter should not make
express provision either to permit or to prohibit withdrawal from the Organization. The Committee deems that the highest duty of the nations
which will become Members is to continue the co-ooeration with the
Org.ini/atiiin ior the pre\eri,aiion of interniition.il pedce and jecJrity If.
hiiuri,er.a Mcmher hc-aubeof e~ccptionalcircunisiances fcclsconsiraincd
to witbdraw, and leave the burden of maintainine international peace and
security on the other Members, it is no1 the puriose of the ~rganization
to compel that Member to continue its co-operation in the Organization."'
This one erample should set to rest the myth that al1treaties, whatever their
nature, are terminable only by mutual consent. It is familiar knowledge that the
Statute of the Court, including its component obligations, are now a part of the
comnrehensive United Nations svstem. If the authors of the Charter in 1945and
the Special Rapporteur of the &ternational Law Commission in 1963 thought
there was inherent power to withdraw from the Charter itself,surely they thought
that a modification or termination of oartici~ation in the Optional Clause svstem
was authorized.
The positions that declarations are modifiable and terminahle, before the filing
of claims, comports, we would suggest, most with common sense. It is not, we
submit, reasonable to presume that, when a State makes a declaration under
Article 36 (2), il intends thereby to bind itself in perpetuity or indefinitely,
irrespectively of the date of filing claims, except to the extent that it has made
reservations. Such a construction would make a prison of the Optional Clause
system. Asa former Legal Adviser of the League of Nations, EmileGiraud, said:
"If a State is free to bind itselfor not, it must logically be able to unbind
itself.Otherwise, these obligations would beprisons, and this woulddissuade
States from any desire Io become parties."
["Si un Etat est libre de s'engager ou de ne' pas s'engager, il doit
loeiauement o ou voirse déeaeer. Autrement les conventions seraient des
c&;entions brisons et ce caFaGèreserait fait pour enlever aux Etats le désir
d'y devenir parties."] (Annuaire de I'lnstitut de droit in~ernutkml, 1957
vol. 1, pp. 281-282.)
Il 1,prciirrly such <i"pririin" 10 rhich Nic<irJgux'sargument leadj H'cjubmii
thai thobc Stiites ihat hdve ;icceoted ihc coni~ul~~iwiuri\diciiun of thc Court
without a reserved right of termination or modificat~o~and without a specified
duration would he surprised to learn that, under Nicaragua's theory, they are
bound for ever. If this be the law, moreover, what responsible legal adviser
would now advise his rov-rnment to make such a declaration?
In the Iight oi the Court's tlcciri.>nin ihc Rixht ,ilI'ii.i<iri~,c. lolip-standing
Siair. pra-ive uiidcr ihc Opti<in.ilClau\c, and ihe<irciiralanal)hc. i~i'dccldration~
such as those bv the International Law Commission and others. a number of
publicists hiiic Concludcd. uc submit righily. ihat declaratiiini <ireruhjcci in
mi>difiçaiionor <lcnunciaiionai an) tinie beforc an applicdiiun irIilcJ
l'hui Professor Koscnne observes
"When a State deposits a declaration under Article 36 (2) of the Statute,
it makes a general offer to al1other States doing likewise, to recognize as
defendant the iurisdiction of the Court in a future concrete case. and on the
lems specifiee. ..The lems upon which thaf offeris made are n'ofconstant,
but consist in the area of coincidence with the terms of like declarations
made, or to he made, by other States . . There is, as yet, no element of
direct aereement between anv of the States makine declarations. That
" ,~ ~ u
agrccmcnt uiII only comc about uhcn a legd di\pute is concrïti/ed h) tiling
oi'dnappliwiion. That stcp :ilone the proces. ofconipulsi>ryad~utli::ition224 MILITARY AND PARAMILITARY ACTIVITIES
in motion." (The Lnw and Practice of the Infernational Court, Vol. 1,
pp. 413-414.)
The Courtadjournedfrom 11.30to 11.45a.m.
Mr. President, at the brcak 1was reviewing academic scholarly authority that
su..orts the inherent rieut of modification or termination of a declaration. 1
have only one more example.
Similarly, Professor Shihata concludes as follows:
"[Elven in [the realm of theory] the insistence on applying the rules
relating to the termination of treaties, and therefore of invalidating any
unilateral termination no1 antici~ated in the instrument. is no1 alwavs
justified. It has heen explained heiore that the 'bilateral element'is not the
only element in the relationship created hy the declarations of acceptance,
and that this element hecomes particularly important only after the seisin
of the Court of a given case. All agree that a unilateral termination will
then have no eiiect on the Court's jurisdiction. Before the Court is seised,
however, the vague relationship hetween each two declaring States, with its
three elements lunilateral. bilateral. and multilater..l oresent. can hardlv be
i~llcd ,Itrcat) subjcct Io Ihc rulei gohcrning the tcrmin.ition tif ircatiç>. If
the Iippliiliiion of buch rules is ioiind dc.irahlc'11resuli\ in uidcning ihc
Courts scopc of continued jurisdiction, it may at best be suggested as
an instance of the 'should be' as comoared with the 'is' in the realm of
international adjudication." (The Powerof fhe InfernationalCourr to Befer-
mineIls OwnJurisdiction, 1965,pp. 167-168.)
A final factor in respect to this major point of modification and termination
is that it is most irrational to consider the problems of modification and termi-
nation as if time had stood still since 1920. In the early years of this century
it was the deeply held aspiration of many people that a comprehensive system
of compulsory adjudication could be created in which it would be a fact, as the
Aeent for Nicaraeua demanded in this case. that when a olaintifi State made a
clÿini to the cour; a defendant Siale would hc rcquircd IO ;cspund As Professor
Bro~,nliewrites in the second ediiion of hi\ ircaiirc on intcrna1i~)nIaw(p 724)
"The expectation was that a general system of compulsory jurisdiction would
be generated as declarations multiplied." It was from the perspective of this
aspiration and expectation that the monographs of Briggs and Waldock (in
Waldock's earlier view), and the books and articles that paraphrase the earlier
Waldock. wcre written. Thc realities of the contemoorarv world are al1 now
kni)un t<ihc complcicly dilkrciit Tlierc h3, in fact'heen~~uch a fundamental
change in ihc possibilitic~of Iichie\ing 3 cùmprehcnrive s)sieni of ;igenuine
comnul~orv iurisdictitin as tn suggcsi ih;it Ariicle 62 i~fthe Vicnna C<~n\cniion
on the L~W-ofTreaties has becorne relevant. The States making declarations
without explicitly reserving rights to modify and terminale did no1 foresee the
defeat of their generous expectations. Many States, including the United States,
made exnansive declarations in the how that the hirh r- -s of com~ulsoriness
and comprchensi\cneri might hcci)mr a rcaliiy. l'hc faci that ihc va51majoriiy
of other Siaie, have noi made coiiipÿr~ble dc~.l;iraiion>ha\ somplctcl) irans-
fornicd the çharaïicr of thç ohli~~iionunJert;ikcn If Statcs niaking Jeclarationï
are to he subiected to the law or treaties. thev should at least be accorded some
of the beneficsof that law, including those of the doctrine of rebussicstantibus.
Common interest and the fundaments of equality require no less. ARGUMENT OF PROFESSOR MCWUGAL 225
111. Our rhird majorpoinr, buildingcumularively,is: reciprociryrequiresrhat rhe
6 April noiebedeemedefleciiveasagainsrNicaragua,whareverils siafuc erga
In common opinion. cclebrated in many dceisions ol'ihi, Cuuri, the principle
ofrcciprocity i\one of the most fundïnicntïl policiessmh<~dicdin Articlc 36(2)
ol'the Statutc of this Court. It mïv he emr>hasi7c<tlhat Article 36 121 itcclf
binds a declarant State only "in relation to any other State accepting ihésame
obligation". In reiteration, far from "otiose" in the light of Professor Brownlie's
pleading, the United States declaration of 1946 binds only in regard to States
"accepting the same obligation". It isaxiomatic under the principle of reciprocity,
so deliberately provided, that each declarant State under the Optional Clause is
entitled to invoke the rights, conditions and limitations enjoyed hy another
declarant Stateaaainst the assertina declarant State. The function of the orinciole
of reciprocity, as~rofessor ~ri~~s'indicatesin the passage quoted abGe, is'to
equalize the obligations of States and to make certain that jurisdiction is based
up~. genuine consent. This principle of reciprocitv is not, as Professor Brownlie
insists. a vaeue and ambieuous~effusion from .bis indenominate cons~n~ ~l-~~~~
relation, but-rathcr one of Ïhe most fundamental and cherished constitutional
principles of international law since the rise of the State system.
Whatever the status erga ümnes of the six-month notice proviso, it is not a
binding obligation between the United States and Nicaragua. If any fact is clear
in this controverted case, il is that Nicaragua has not accepted "the same
obligation" as the United States in its 1946declaration. It is. in anv event. not
nesessav IO rcpeat hcrc ihe dctailed documcnt;iiion WC h~vc<iITrredahu\e and
in Ourcurrcnt Counrcr-Mcmoriîl thiit St;iics ih;it ïctusll) hr<>ughtinto forcc the
kiiid of dcclarsiion that Nicaragua aiscrts in ils 192')a~rnmunicït~on have a
riaht of unilateral modification O; termination at anv time hefore seisin. We here
in~i>rporatcthat carlier documentaii<>nhy rcfcrcicc In bricf. ahsuming th~t
Nir<ir<igua'>claimcd 1929dcslarntion har any Irpïl elTeci.thai cTTeçtiinnot he
to bind Nicaragua in perpetuity to an unconditional acceptance of this Court's
comoulsorv iurisdiction.
~6ere is: ihen, in this regard, a basic lack of reciprocity in the situation of the
two Parties: Nicaragua is able to terminate or modify its declaration at will. The
United States is oblkated, so it is argued, to terminse ils declaration only upon
six-months' notice. Because of this basic lack of reciprocity, the United States
six-months' notice provision is not binding vis-à-vis Nicaragua whatever ils
relevance with respectto other States.
The reasoning that leads to this conclusion was perhaps most elegantly stated
by Sir Humphrey Waldock in the 1955article in the British YearBook of Inier-
national Law, that Nicaragua has repeatedly cited in this case. In a passage
already quoted by the United States in ils Counter-Memorial, Sir Humphrcy
wrote :
"Reciprocity would seem to demand that in any given pair of States, each
should have the same right as the other to terminate the juridical bond
existing between them under the Optional Clause . . .The inequality in the
positions of the two States under the Optional Clause, if the principle of
reciprocity is not applied to time-limits, becomes absolutely inadmissible
when State A's declaration is wilhout time-limit while that of State B is
immediately terminable on notice to the Secretary-General. It would be
intolerable that State B should always be able, merely hy giving notice, to
terminate at any moment its liahility to compulsory jurisdiction vis-à-vis
State A, whilst the latter remained perpetually hound to suhmit to the226 MILITARYAND PARAMILITARYACTIVITIES
Court's jurisdiction at the suit of State B. The Court has not yet had
occasion to examine this aspect of the operation of reciprocity in relation
to time-limits.In li"hr. however. ofils interoretutionof the conditionof
reciprocityin regurd 10reservotions, theCourr, ir is believed,musrhold rhut
underthe OprionalClauseeachState,withrespecttu unyotherSiale, hasthe
someright fo terminoteilsoccepiance of compulsorjyurisdiclionasispossessed
by thar other Srute."("Decline of the Optional Clause", British Year Book
ojlnrernationol Low, 1955,Vol.32, p. 254, at pp. 278-279.)
The eminent Indian scholar, Professor Anand, endorsed this viewof Waldock
and observed:
"To allow a State, on the ground of reciprocity in regard to lime-limits,
the right to terminate its obligations under the Optional Clause with refer-
ence only to a particular State or States may add to the complexity of the
Optional Clause system. To refuse it such a right would, on the other hand,
be to establish gross inequality hetween States in regard to termination of
their obligations under the Optional Clause." (CompulsoryJurisdicrionof
the International Courtof Justice,1961,p. 186.)
In terms of fact, and of right, one may analyse this situation from the
pcrspcctive of either Nicaragua or the United States. Nicaragua has not accepted
an obligation to terminate ils declaration only upon six-months' notice. Since
States making declarations under Article 36 (2) of the Statute only do so with
respect to other States undertaking the "same obligation", Nicaragua has not
estahlished a binding obligation vis-à-vis the United States in this regard.
Nicaragua may not, therefore, invoke the obligation of the United States against
the United States. Only States that have adopted the same or similar obligations
may do so. It may be noted that there are a number of other such States.
Alternatively, despite Professor Brownlie's unsubstantiated objections, one
may look at the facts from the standpoint of the United States. Nicaragua has
the right to terminate or modify ils declaration with immediate effect. In accor-
dance with the generally accepted principles ofreciprocity, mutuality and equality
of States before the Court. the United Statesis entitled to exercisethe same -ieht
vis-à-vis Nicaragua.
In his pleading, Professor Brownlie sought to equdte under the one label
"lime-limits" both orovisions about "duration" and "exvrcss reservations"
concerning modificaiion and termination and to establish that the principle of
reciprocity does not apply to "lime-limits" so ambiguously defined (pp. 73-74
supra). This is to employ confusion to beg the question. The factual reference of
(1) provisions about duration and (2) express reservations of rights to modify
and terminale is of course quite different, and the relevant legal policies are
equally different. These diffcrenccs are not, unhappily, completely clear in the
long quotation from Professor Rosenne which Professor Brownlie invokes. The
reservation of rights to modify and terminate an obligation refers to the total
existence of an obligation and not merely to some specification of duration.
The complete refutation of Professor Brownlie's position is offered in the
United States Counter-Memorial and in a passage from the Judgment of this
Court in the Righrof Passagecase n the Counter-Memorial, wewrote as follows:
"ln the Right of Pussage case, lndia argued that it should have been
entitled toexercisc vis-à-vis Portugal that State's reserved right to modify
its declaration on notice to exclude particular categories of disputes. The
Court ruled that since, as of the date of the seisin of the Court, lndia had
not exercised such a right, it was not entitled to do so subsequently. This ARGUMENT OF PRO~~R MCDOUGAL 227
was no more than an affirmation of the rule in Norrebohm that the seisin of
the Court may not he affected by subsequent acts. The Court simply did
not address whether a modification by lndia before the date of filing of the
Application would have been effective because of the reciprocal effect of
Portugal's reservation." (II, para. 419.)
1should like to quote from the passage of the Court to make this completely
clear. In theJudgment the Court wrote:
"Il has been areued that there is a substantial dilierence. in the matter of
the certainty of the legal situation, between the Third Port&uese ~ondjtion
and the right of denunciation without notice. In the view of the Court there
is no essential difference, with regard to the degree of certainty, between a
situation resulting from the right of total denunciation and that resulting
from the Third Portuguese Condition which leavesopen the possibility of a
partial denunciation of the otherwise subsisting original Declaration.
Neither can il be admitted. as a relevant differentiatine factor. that while
in ihc i~sc <iitiitsdenuncirtiiin ihc denouncing St~tc,;an nciloiigcr iii\okc
;in) rights accruing unilcr its I>cil.iration. in ihc ca,c oiap.denunciaiii>n
under the ierms 111'1hT chircI Ci>niliiii~nPiiriua~l can <ithcr\i,continue 13
claim the benefits of its Acceptance. For, as tlheresult of the operation of
reciprocity, any jurisdictional rights which it may thus continue to claim for
itself Cdnbe invoked against it by the oiher Signatories, including India.
Finally, as the third reason for the invalidity of the Third Condition, it
has been contended that that Condition offends against the basic principle
of reciprocity underlying the Optional Clause inasmuch as il claims for
Portueal a rieht wbich in effect is denied to other Signa..ries who have
miide-a ~c~l~raticinwithoui appnding an). suih cunJitiun Thc Couri is
uniihle to accepr thai c<>ntcnticin.1is rle;ir ihat any rcscr\,aiion notifib)
Porlu~al in pursuancc OC 11sIhird C<>nditi<~hnecomes auiomsiicall~ oriera-
tivc against .ilin relation to other Signatories of the Optional clause. if the
position of the Parties as regards the exercise of their rights is in any way
affected by the unavoidahle interval between the receipt by the Secretary-
General of the appropriate notification and its receipt by the other Sig-
natories, that delay operates equally in favour of or against al1Signatories
and isa consequenceof the systemestablishedhy the Optional Clause." (Righr
of Passageover Indim Terrilory. Preliminory Objecrions,Judgmenr.1. C J.
Reporrs1957, pp. 143-144.)
Clearly in the opinion of the Court the principle of reciprocity has applica-
tion 10 rights of modification and temination. Such rights are of course wholly
beyond any question of simple duration, components of the very existenceof an
obligation.
IY. Ourfiurih majorpoint is: rhe6 April 1984nole is validunderUniredSiureu
lawanclhenceefecrivewithoutquesri~~ tnderiniernarionollaw
In his pleading on 9 October Professor Chayes argues that it is a "massive
fact" that the plenary powers of the President, as wbose agent Secretary Shultz
acted in the 6 April 1984 note, are not adequate "to undertake or Vary major
international obligations of the United States" and that this inadequacy consti-
tutes a "manifest" defectunder Article 46 of the Vienna Convention on the Law
of Treaties. This comes as a surprising argument, since it is inconsistent with228 MILITARY AND PARAMILITARYACTIVITIES
Professor Chayes's own publiclyexpressed views in 1979and earlier and since
iudicial developments since 1979 have established beyond serious dispute that
ihere is no basis to Nicaragua's argument.
The short answer to Professor Chayes is twofold: first, Article 46 of the
Vienna Convention has nothing to do with the problem before this Court and.
secondlv. there is not onlv no manifest defect in the Secretarv of State'sauthoritv
to issuëthe declaration &der the United States constitutional structure; indeed,
there is no defect whatsoever.
With reference to the first point, Nicaragua's reliance on Article 46 of the
Vienna Convention on the Law of Treaties is totallv misolaced. Neither the 1946
declaration nor the 6 April note modifying that ieclaition are treaties of the
kind for which the Vienna Convention was designed and is applicable. Article
46, further, prevents the United States from denying the validity of the 6 April
1984 note, unless there is a manifest violation of domestic law. 11does not
purport to give any affirmative right to Nicaragua to challenge the domestic
authority asserted by the United States to terminate or modify its declaration.
In Tact,Article 46 has nothing at al1to do with the modification or termination
of a treaty; it relates only to the making of a treaty.
With reference to the second point, if the treaty-making power of the United
States is relevant, the Constitution of the United States places that power in
Article II of the Constitution, delineating the Executive'spower. To be sure, the
making of a treaty, as distinguished from Presidential and Congressional-
Executive agreements, is subject to the advice and consent of the Senate. The
C~ ~ ~tut~o~ is.~.ow~ve~.~.~lent as to the modification or abroeationuof inter-
national agreements.
The flow of judicial decisions in the United States nonetheless supports the
Executive Branch'sactions here. The United States Sunreme Court has referred
to the President, as Head of the Executive Branch, "as the sole organ of the
Federal Government in the field of international relations" (United Stores v.
Curriss-Wright E.rport Co., 299 US 304, pp. 319-320 (1936)). Based on that
proposition the Supreme Court has also held at least twicethat it is the Executive
Branch of the United States Government that makes a binding determination
for purposes of United States domestic law on whether the terms of a particular
treaty remain in efect (Charlion v.Kelly,229 US 447 (1913); Terlindenv. Ames,
184 US 270 (1902)). In the only domestic litigation where the issue of the
Executive'sauthority to terminate treaties was directly raised - litigation not
even mentioned in Nicaragua's oral argument in April or in its Memorial - the
President'saction in terminating the mutual defence treaty with Taiwan wasnot
judicially invalidated, as Professor Chayes would appear to have insisted. While
it is true that in Goldwater v. Carrer (444 US 996 (1979)), the Supreme Court
held that the challenge to the President'sauthority was "non-justiciable", that is
beyond challenge within the courts of the United States, not a single justice
expressed any doubt as to the President'sauthority to terminate the treaty, and
PresidentCarter's termination remainedeffective.Moreover, prior to the Supreme
Court's non-justiciable decision, five out of the eight members of the United
States Court of Appeals for the District of Columbia circuit specificallyheld on
the merits of the question that the President had the authority to terminate the
treaty with only a singlejudge disagreeing on the merits (Goldwater v. Carrer,
617 F. 2d 697 (DC Cir. 1979), Vacatedon olher grounds, 444 US 996 (1979)).
Moreover, based on the structure of the Constitution and because the
termination of a treatv or sus~ensionof certain ~rovisionsinvolvesthe assum~tion
of no neu ohligdtiok on hihalf of the uniici States. thr view <ifUnitcd ~iatcs
legal siholari has kcn <i\eru,helminglyto ,upporl ihe Proidtnt's authorit) tu ARGUME~ OF PROFESSOR MCDOUGAL 229
terminate treaties without requiring any Senate action. Thus, Professor Louis
Henkin, the immediate past CO-editorof the American Journal of Inrernafional
Law, has said that the Senate does not have "any authoritative voice in
interpreting a treaty or in terminating it" (ForeignAflairs and the Constitution,
1972, p. 136). Similarly, Professor Laurence Tribe of Harvard has said that the
President "has exclusive responsibility for.. .terminating treaties and executive
agreements'' (American Consrirurional Law, 1978, pp.164-165). Even Professor
Chayes in testifying before the Senate Committee on Foreign Relations in
1979stated:
"The structure of the overall distribution of the foreign affairs power,
then seems, at least on first appraisal, to argue for the existence of an
independent Presidential initiativein treaty termination."
He went on to say:
"Senatorial partisans argue for concurrence by two thirds of the Senate,
just as with advice and consent to treaties. That sounded unnatural to me
when 1 first heard it, and it sounds only slightly less so now, after I've
thought about it for a while." (Hearings on Treary Terminurionbefore the
Senaie Commitree on Foreign Relarions,96th Cong., 1st Sess. 311 (1979).)
(See also ibid., at 341-358(Statement of former Legal Adviser Leonard C.
Meeker); 284-287(Statement of former Assistant Secretaryof State William
D. Rogers); 400-413(Statement of Professor John Norton Moore).)
Theje \i<iirment%arc supportcd by the historical rccord with respect Io trcdt).
lermin<itionsby the Unitcd Stliics. Although in a numbcr of case, Congrcis or
the Senate hasconcurred in the President's termination of treaties, there are at
least a dozen examples where treaties were terminated solely by the action of
thc Executive Branch (see Heurings on Treufy Terminafion,op. cil., at 156-191).
There are no examples where the President has terminated a treaty and the
Congress or the courts have subsequently invalidated the termination. Some 40
years ago 1wrote a long article in the YaleLawJournalcollecting many instances
in whichthe President actedalone to terminate or modifyal1kinds ofinternational
agreements (McDougal and Lans, "Treaties and Congressional-Executiveor Pre-
sidental Agreements", 54Yale Law Journal, 181,534 (1945)). What this histori-
cal practicedemonstrates without question isthat treaty obligations of the United
States cannot he maintained in effect absent the continued concurrence of the
Executive Branch. As Professor Chayes has said :
"To my mind the most important thing that a review of the practice
reveals is that there has been no uniform practice. The record shows al1
sorts of comhinations and permutations of Presidential and Congressional
action; and it shows some instances of action by the President alone. In al1
these cases, and whatever the form chosen, the action has been regarded as
effectiveby our treaty partners, by the Executive Branch, by the Congress
so far as appears, and, in the few peripheral instances already referred to,
by the courts." (Hearingson Treury Terminarion.op. cil., at 311.)
While there may have been some dehate in the United States as to the
President's authority to terminate treaties, the governing authorities and the
Supreme Court's non-justiciahility holding in Goldwarer v. Carrer make clear
that there has not been a "manifest" violation of a rule of interna1 law which
could justify thisCourt, under Article 46 of the Vienna Convention, in ignoring
the conclusive effect of the Executive Branch's 6 April 1984 letter. Should
Professor Chayes carefully rcad the sequenceof opinions in Go/dwulcrv. Carter,230 MILITARY AND PARAMLLITARYACTIVITIPS
effectivelyputting the President's actions beyond any legal challenge, he would
have the answer to his insistent demand to know why the Executive Branch
today takes the position that it does.
K Ourjinaimajorpoint.insummary,is: themosifundamenialpoiiciesinihecom-
mon interest of ail Stores require an adjudicativeprocess based upon shared
consent
It has been observed in our discussion above that the basic constitutional
structure of Article 36(2) that has developed is, not the automatic, comprehensive
system of wholly compulsory jurisdiction for which many people once aspired,
but rather a system of delicately balanced concurrent unilateral offers in which
States express their consent to be bound to "the same obligation" under con-
ditions of equality and reciprocity. This Court has clearly fixedthe date at which
obligation bccomesirreversible that is, not subject to modification or termination.
This date is not at the time of unilateral declaration, but at the date at which a
daim is filed, thereby creating the first bilateral obligation as of that date, after
which riehts cannot he chaneed to the detriment of a filinr!St-te. For makine. -
ceriain ihai the iundxmental c~)n\titutional p<>licic, cunscnl and the cqu.iliiy
of States arc zcalausl) ~afcguardcd.ihihCiiuri has insi\ieJ up<in :ioiiiprchcnri\,c.
common-sense conception of "the same obligation", that insures that a genuine,
precise coincidence of obligation is imposed upon the parties as of the date of
seisin. Prior to that date there is little advance commitment and little realistic
expectation of such commitment.
It ..Dearsto reauire em~hasis. however. that this contemoorarv constitutionai
iiruciuring of ~rhcle 36 (2) dues nui exhibit an? I~ck of lcg:ii Cr~mcuork or
conriitutc a uastcllind I'he ipokcsmcn TorNiclirligua insist ihat thc only wy IO
e5iahlisha leriil Iilimçu,?rk for Article 3.2. isthroug- conlrïci. I'hu., Prt~fesu~r
Brownlie staïes :
"The leeal réeimeof the Ootional Clause . . .is not subiect to the law of
treaties aFsuch,lbut it does rimain subject to those essential legal principles
applicable to contractual relations." (P. 69, supra.)
This ignores that the concept and law of "constitution" is equally as old, and
ea. .lv as im~ortant. as the conceot and law of "contract". The notion that the
aqpiraiion IO achieve a specilic rlloiliiion, psrttcular and Iiniiicd. ~urisdiciionlil
powcrs in partieubar institutiuns anJ. ihcn, cÿrcîully IO bzilïncc such piwcrq
am<inr dilrercni in,titt.tions. the nùiinn thai ihis bcg~nu~h ihc uriiicn I:niicd
~tate<~onstitution is uninformcd. The basic aspiratron and concepts are at least
as old as the early Greeks and were developed by such writers as Polybus, Cicero
and Montesquieu. The law of contracts is not the only source of a legal
framework and policies. The policies of consent, equality and reciprocity, and of
a decent respect for the allocation of competences among dilïerent institutions,
are as important as those of ofer and acceptance and are indispensable com-
ponents, in the most fundamental sense, of the contemporary constitution of
siaicj
II uould appcar. furthcr. ihat ihcrc ii no rcasonable aliernaiivç io this Court's
dccisiùn ihai the d:itc whcn ï cldim is filcd ihc date of reisin. is the apprupriaic
dais bc,ond uhich ihr. icrmination or modiiicaiion of Jcclaraii<>nrhecunic ini-
oermiss:ihle.Professor Brownlie insists that there is no "necessarv" connection
between rights to modify and terminate and the date of scisin, but Le ofers scant
reason for choice of the date of declaration. His demand for the fixing of that
date is in contradiction of his emphasis upon contract law. Under coniract law ARGUMENT OF PROFESSORMCDOUGAL 231
there is no "contract" until there is shared commitment in offer and acceptance.
He suggests that a declaration has ils own unique "integrity", but the only
content he ever specifies for that integrity is the question-begging assumption
that it is not modifiable or terminable. He asserts that the "right to modify a
declaration must he reserved at the point of commitment, that is, when the
declaration is made and the system of the Optional Clause is entered" (p. 69,
supru). Astonishingly, he states that this Court in the Righi of Passuge case
"regarded the point of commitment as the date on which a State deposits its
declaration of acceptance" (p. 69, supra). The Court in its opinion, as we saw,
made it entirely clear that the date of commitment was that of the date ofseisin.
In this context, no good reason would appear why States who make a lesser
commitment to the jurisdiction of the Court should be honoured in expectations
that they may take advantage, before the date of seisin, of the declarations of
States which make larger commitments. Any other conclusion would violate the
basic constitutional principle of equality.
In order to criticize the United States position that it has a right to modify or
terminale a declaration up to the date of seisin, Professor Brownlie imputes to
the United States - at great length - an argument we do not make. He con-
tends that the United States claims a right to modify after seisin. But, of course,
we make no such claim. We acknowledge, in accordance with the Court's
jurisprudence that the United States is bound as of the date of seisin; but we
also argue, again in accordance with the Court's mlings, that until that date the
scooe of our consent mav be modified. This iswhat wemean bv an inherent rieht. -
II is hy the principlc of rcclprocity. applied with cornprchcn,ive rciercncc IO
uurc iifull coincidrnce of thc parties' obligÿitons ai thc date of risin. thai ihis
Court hiistradiiioniillv rirotecicd the euualiiy of Staics and the ion\ent of States.
Professor Brownlie inSi& that the 'ccoRcepiof reciprocity isbased instead upon
a contractual concept which provides the framework within which States may
choose to make commitments and thus 10 tdke risks" (p. 76, supra). He insists
that it is the "element of choice which represents the notion of fairness as an
element of reciprocity". He finds that reciprocity is little more than a "metaphor"
for the consensual process he postulates. He nowhere explains, however, why
fairness should not reauire a eenuine eaualization of the oblieations of the
piirtio ur why [hi, subsidntiÿl iairnerr in iait oi hurden rhould hc made IO )ir.ld
IO a fiintas~zcd"irecdom of ihuiic". II shuuld require no l'urthcrJem<~nstrdti,~n
that a Iaw of contract can give no adequate protection to the basic constitutional
policies of consent, equality and reciprocity.
In these proceedings, Mr. President and distinguished Members of the Court,
much has heen said about the rule of law - some of it not wisely. 1should like
to make my own contribution by suggesting that constitutional rules about
jurisdiction are jus1 as important as any other rules, even the rules of contract
law. 11is not a move from reason to power as the Agent of Nicaragua bas
suggested, to insist upon the importance of the observance of constitutional
rules. It is the resoonsibilitv of the hiehest custodians of our hard-won heritaee
of international lh, as thg~~ent of ihe United States has suggested, to mak&
judicial decision carefully within the constraints of that law, if adjudicative
process is to be maintained and enhanced.
In conclusion. Mr. President and Memhers of the Court. 1would tha~k v~u ,
for yuur courtcous ~ticntion IO m) rcmarks and I'drtheir l'urthcrc<>n.idcriitii>n
Il i, mv rcrpcctful submiision thiit the Unitcd Si;itcs, nctine uithin the bounds
of ils riehts: has not submitted to the i*risdiction of this C&rt and should not
have junsdiction imposed upon it. STATEMENT BYMR. ROBINSON
AGENT FOR THE GOVERNhENT OF THE UNITED STATESOF AMERICA
Mr. ROBINSON: Mr. President, distinguished Members of the Court, may it
please the Court.
Inrroducrion
The 9 April 1984Application of Nicaragua confronts this Court with issues
of verv ereat sienificance. These issues eo to the heart of the role of iudicial
settleieit in the-resolution of international disputes generally, and of the iubject-
matter competence of this Court in particular. These questions, which may he
grouped together under the single iubric of "admissibility", encompasstwo
largely distinct, yet closely related, sets of considerations. The first of these in-
cludes al1 those factors undcr the Charter of the United Nations that compel
the conclusion that the claims and allegations put forth by Nicaragua lie outside
the cornnetence of this Court as an inteeral var1 of the United Nations svstem.
The secind concerns those factors whichusug~eststrongly that this Court should,
in the prudent exercise of ils iudicial discretion, decline to adiudicate the
~icarakan claims and allee-tions. We helieve that this result stems from the
inhcreni limiiation> of thc jud~ciiilpri,r.ch\2nd the imporiiincc <if\afcguarJing
the integrityof ihai prùcess. Professor Sohn\riI:iddressthe former :onsiJcrdiii)ns
anil Prdiessur Mi)orr.will fa>ll<~uuiih a di\.u\,i<in <thc Ixttcr.
In order that these issues of admissibility beunderstood in their proper context
it is necessary at the outset to bear in mind certain matters of particular relevance.
The first of these is that, while the United States firmly rejects the Nicaraguan
Application, it is on the basis of that Application that this Court must address
the question of admissibility. Nicaragua should no1 be permitted to escape the
consequences that Nicaragua has set for itxlf in choosing to frame ils own
Application in the manner that it bas.
Secondly, what Nicaragua is in fact asserting in ils Application is the existence
at this moment of an on-going armed conflict. Nicaragua asserts that, in this
conflict, the United States is engaging in the unlawful use of armed force against
the political independence and territorial integrity of Nicaragua. It is unneces-
sary to recite here the specific allegations that Nicaragua has made in its Appli-
cation in support of this one, over-arching, claim. This claim emerges, however,
with undeniahle force, from virtually every single paragraph of Nicaragua's
Ao..ication and from the oral areuuent made on Nicaraeua'suhehalf hefore this
Court. Having so claimed with such vehemenceand repetition, Nicaragua cannot
now he heard to assert that it is claiming something ditïerent.
Thirdly, and of great significancein so far as the admissibility of the Applica-
tion is concerned, Nicaragua kas chosen to characterize the alleged facts in its
Application as evidencing the existence of "threats or breaches of the peace, and
acts of aggression" (1, Application, para. 12). As we shall demonstrate, the
consequences of such claims to the admissibility of the Nicaraguan Application
are fatal and cannot he avoided hy artful pleading. STATEMENT BY MR. ROBINSON 233
Mr. Presidentand distinruishedMembcrsof the Court, it is now rnyprivilere
and honourto invite thecourt ta cal1upon one of the world'sleadingauihoritiës
on the United Nations Charterand system, ProfessorLouis Sohn. ARGUMENT OF PROFESSORSOHN
COUNSliI. FOR THE GOVBRNMENTOF THE UNITBD STATESOF AMERICA
Professor SOHN: Mr. President, distinguished Members of the Court, may it
please the Court.
Suniniaryof Argunienr
It is a great honour for me to appear before this Court, especially as 1 started,
as a young man, my international career by serving in the Permanent Court
observer delegation to the San Francisco Conference, and as 1have followed the
work of the Court faithfully every since.
1 should like to begin by briefly summarizing the main points of the United
States argument on this subject.
The ~icaraeu-n ~DDii..tionasserts that there is takine ul-.e. at this moment.
an unlawful use oi'armed f<ireeagainsi thr pc)liiicalinJepcnJrnic and tcrriti>rial
iiitcgritv of Niiarap.i.i l'he Appliiation ;isierts ihat the Unitc~lStüicj ir engdping
in such an ~n-~oingunlawful use of armed force, or otherwise bears legalrec
~onsihilitv for it. The Aoolication furthemore concedes that Nicaraeua has
iought uisuccessfully to &vain from the Security Council a determinatyon that
these allened acts of the United States constitute "threats or breaches of the
.ace. .na acts of aeer--sion" under Article 39 of the Charter of the United
Nations (1, Application, para. 12).
The Application is therefore inadmissible because it presents mattcrs that,
under the svstem established bv the Charter. fall within the comuetence of the
Sccurity C<iuncil 1,)ille r.xcluri<inof tIicsuhjcct-lii.itter ~~~illpcorftlliCourt.
'l'hi.;conclusionis cornpclleJ by ihc nianife\t inteni and purpi>ic<>l'theCharter.
and by the text of its provisions.
Nor can the Ao~l.c.tion be admissible because. as Nicaraeua asserts. the
Secunty Council declines IO grani the determination so~ghi by Nicaragua by vir-
tue of the failure 01'the pr~iposeddetçrminaiion iciatiain the iii;ijoriiy required
for ado~tion ~nder Article 27 (. .of the Charter. l'he rn.ichiner\ ert;iblishcd hv
the Charter iirr the m.iintenancc ~iiinternatitinal pcaie and security in this respxi
hds l'unct~onede~a.~ly a\ II ua. intenJed to function by the draiier5 oithe
Charter, who were well aware of the nature of the decision-making process and
the maioritv reauired. Neither the Charter nor the Statute of the Court has
confer&d in thé Court the competence to reverse decisions of the Security
Council or the power to engag- i- functions expressly allocated to the Security
Council by the Charter.
Nor can the Court accept Nicaragua's efforts to draw an artificial distinction
hetween the so-called "strictly juridical aspects" of the Nicaraguan claims and
the determination of "any threat to the pcacc, breach of the peace, or act of
aggression" under Article 39 of the Charter. Both the tex1 and history of the
Charter are clear that questions involving the on-going use of armed force fa11
within the exclusive competence of the political organs, primarily that of the
Securitv Council but also in smcial circumstances that of the General Assemblv
acting "ndçr Chaptcr IV 2nd chaiof regional arrangenients or agenciesconsi,ten.l
uith Chapter Vlll I his 15 iruc regardle>, i>ihou qucsiiitns are ch.ir.ieteri/eil. ARGUMEPITOP PROPESSORSOBN 235
Finally, the right to engage in individual or collective self-defencerecognized
by Article 51 of the Charter is absolute, mav not he impaired by this Court or
any other organization of the United ~atiois, and can-be terminated only by
the Security Council taking effective measures to maintain international Face
and security.
In sum. Nicaraeua is askinn the Court to alter the balance of the Charter and
IO asumc funciions dclibcr~cly ~esled elrcuhrrc hy ihc Charter. t'or ihcrc
reasons. the Uicÿraguan ,\pplic<ition must bc hel~lin hc in~dmir~ihlc.
Sow. hlr. Prezident, I plan id di,cuss each ol'ihese i,sucs. one by one.
Argument
Article 36 (2) of the Statute of the Court provides in patinent part that the
compulsory jurisdiction of the Court shall extend to "al1 legal disputes". What
constitutes a "legal dispute", and how one may distinguish hetween "legal" and
othercategories of disputes, has long been the subject ofgreat controversy. It has
been pointed out by Professor Pellet, and 1havc a long list of other articles and
books that might be relevant on the subject, listed directly here. See for instance,
Borchard, "The Place of Law and Courts in International Relations", 37 Am.
J. Int. L.,pages 46-57 (1943),; Bruns, "Politische und Rechtsstreitigkeiten", 3
Zeitschri/für Auslündisches OflentliclzesRecht undVolkerrechi, Part 1, pages
445-487 (1932); Gihl, "'The Subjective Test: as a Means of Distinguishing
between Legal and Political Disputes", 8 Acta Scundinavica JurisGentiunt, pages
67-107 (1937); Hostie, "Différendsjusticiables et non-justiciables", 9 Revuede
droit inrernurionolet de législation comparé e,ges 263-281, 568-587 (3rd ser.,
1928); Kelsen, Laiv undPeucein InrernarionulRelations, pages 159-168(1942);
Lauterpacht, "The Doctrine of Non-Justiciable Disputes in International Law",
8 Economicu, pages 277-317(1928); Morgenthau, La noriondu 'politique" cr lu
théorieded~xirendrinternationaux( 1933) :SirJohn Fischer Williams, "Justiciable
and Other Disputes", 29 Am. J Inl. L., pages 31-36(1932); Rosenne, "Equitable
Principles and the Compulsory Jurisdiction of lnternational Tribunals",
Festschrfifür Rudo// Bindschedler ,ages 407-411 (1980). Despite this lengthy
and learned debate, there exists no general agreement on a test, or tests, to
identify cases whichproperly belong beforethe Court. Contrary Io the impression
sought to be left by counsel for Nicaragua, the United States does not believe
that the Court need join this decades old debate. It is not the United States'
purpose to argue that the Application must be dismissed because itpresents a
"political" question, as opposed to a "legal" question. Rather, it is Our purpose
to demonstrate that the allegation upon which the Nicaraguan Application
depends in ils entirety, namely, that of an on-going use of unlawful armed force,
was never intended by the drafters of the Charter of the United Nations to be
encompassed by Article 36 (2) of the Statute of the Court. In a word, the
Nicaraguan claims are on the face of the Charter excluded from the subject-
matter çompetence of the Court.
The United States would stress at the outset that the notion that questions
involving on-going armed conflict lie outside the competence of international
judicial settlement is by no means a novcl one. Indeed, one may discern a
consistent theme underlying the history of compulsory third-party settlement of
international disputes from its beginning just prior to the turn of this century.
Thus, States entering into compulsory arbitration conventions in the wakc of the
Hague Conferences of 1899and 1907habitually excludedfrom their undertakings
to arbitrate matters involving such things as "vital interests", "independence",236 MILITARY AND PARAMILITARY ACTIVlTlES
or "national honour". For example, Article 1of the Anglo-French Convention
of 14October 1903provided as follows:
"Differences which may arise of a legal nature, or relating to the inter-
pretation of treaties existing between the two contracting parties, and which
il may no1 have been possible to settle by diplomacy, shall be referred to
the Permanent Court of Arbitration established at The Hague by the
Convention of the 29th July, 1899, provided, neverfheless, that they do
not affect the vital interests, the independence, or the honour of the two
Contracting States, and do not concern the interests of third Parties."
Similar provisions are found in numerous other conventions of the period,
including, for example, the Convention of 23 January 1909between the United
States and Brazil and the Inter-American General Treaty on Compulsory Arbi-
tration of 29January 1902,and evenmuch later, as in the Treaty of 17 December
1939 between Colombia and Venezuela, which excepted disputes affect-
ing "the vital interests, independence or territorial integrity" of the parties.
The same theme emerges, albeit in a somewhat different form, in the era of
the League of Nations and the Permanent Court of International Justicé.The
history of the second paragraph of Article 36 of the Statute of the Permanent
Court - the predecessor of Article 36 (2) of the Statute of this Court- is well
known and need no1 be repeated here. Sufficeil to say that the abiding concern
was that States no1 be faced with the prospect of being brought before the
Permanent Court, without tbeir express consent, over matters which, while
perhaps coloured in "legal" terms. directly implicated theirsecurity interests. 11
was precisely for such reasons that numerous States - among (hem Australia,
Canada, Czechoslovakia, France, India, Iran, Iraq, Italy, New Zealand, Peru,
Romania, South Africa and the United Kingdom - look pains to expressly
exclude from their declarations accepting the compulsory jurisdiction of the
Permanent Court, matters under consideration in the Council of the League. As
explained by the United Kingdorn at the lime of making ils declaration in 1929,
such a reservation was intended "to cover disputes which are really political in
character though juridical in appearance" (Parliamentary Papers, Misc. No. 12
(1929), Cmd. 3452, p. 6).
For the same reason, with the breakdown of the League system and the
outbreak of World War II. numerous States moved immediatelv to modifv their
declar.itiun, su as to txiliide trprtr,lydisputtr arisiiig uut uf eicnis occurring
during the w;ir Kather thnii iorisiituting, by implicdi~on. :in;iJmir,iun fh;it thc
competence of the Permanent Court in fact extended to such matters, these
modifications were intended, ex abundaniicaurela, to ensure that the breakdown
of the political organs of the League would not lead to attempts to hring before
the Permanent Court disputes never intended 10 be dealt with in that forum. As
stated with force and clanty hy Canada in ils communication of 7 Dcccrnber
1939to the Secretary-General of the League:
"The eeneral acceotance of the Ootional Clause orovidine for the comnul-
sory adjEdication ofcertain issues;as part of the iystern orcollective aciion
for the preservation of peace established under the covenant of the Leaaue.
It is clear that the conditions assumed when the Optional Clause bas
accepted do not now exist, and that it would no1 he possible that the only
part of the procedure to remain in force should be the provisions restricting
the operations of the countries resisting aggression." (League of Nations,
Oficial Journal (January-February-March 1940), p. 44, at p. 45.)
It is the same consideration that may be said to underlie comparable provisions ARGUME~ OF PROFESSORSOHN 237
in several existing declarations accepting the compulsory jurisdiction of the
present Court, such as those of El Salvador, India, Malawi and the Sudan.
Indeed, Professor Chayes has dealt with this issue in his interesting article "A
Common Lawyer Looks at International Law", puhlished in the Harvard Law
Review in 1965 (Vol. 78, p. 1396). In discussing the role of courts in the
international field,e points out that where grave interests of governments are
involved, it would no1be "responsible lawyer's advice" to ask a State to suhmit
the matter to the judgment of a court (p. 1398). Later in the same article, he
suggested that "most great disputes hetween States, even when they involve
important legal elements, are not justiciable" (p. 1409), and re-emphasized that
point hy stating that "most important disputes of policy between States are not
justiciahle" (p. 1410).
The United States would observe, parenthetically, that the conditions that
prevailed in 1939 because of the hreakdown of the League machinery for the
maintenance of international peace do not exist under the present system
estahlished hy the Charter of the United Nations. Indeed, as the United States
shall shortly demonstrate, the present machinery is not only availahle to take
appropriate action in cases such as those alleged to exist by Nicaragua, but has
in fact acted with respect to the claims that Nicaragua would have this Court
adjudicate.
The breakdown of the security system established by the Covenant of the
League of Nations was followed by the descent into general war. The States that
were engaged in collective resistdnce to aggression in that conflict were virtually
united in their determination that a new, more effective international mechan-
ism would be required for the maintenance of international peace and secur-
ity in the post-war world. The consequence was the establishment of a new
general international organization under the Charter of the United Nations,
of which this Court is made an integral part by virtue of Article 92 of the
Charter.
The history of the evolution of the Charter system is set down in considerahle
detail in Chapter II of Part IV of the United States Counter-Memorial of
17Aueu-t. and there is no need to recount those details here. It would be well.
h<iu.ti,ert<itodch upcinccrtain f~ndnmcntiilsof 1h;ii%)stem;inJ hou thcy hrar
upon the c<>mpcten<ieiithe Court tu cntcrt;iin Ki'ii:ir;ipuli'c,laini that the United
States is. at this verv time. enearcd in the unlawful Üseof armed force aeainst
its political independence and territorial integrity. -
It must, first of all, be reçalled that the United Nations was planned with the
maintenance of international peace and security as its primary and most
fundamental goal. As this Court pointed out in its Advisory Opinion in the
Certain Expenses case:
"[Tlhe primary role ascrihed to international peace and security [in
Article 1of the Charter] is ndtural, since the fulfilmentof the other purposes
will be dependent upon the attainment of that basic condition" (ICJ.
Reports 1962,p. 151,at p. 168).
Given this history and the pervasive emphasis at Dumbarton Oaks and San
Francisco on the establishment of a general international organization having
the maintenance of peace and security as its primary purpose, the absence of
anv reference 10 a role for the contemolated Court in circumstances such as
thosr. ;illcpicJ in the Siarüguan Appli~atit>n ir .tr~king. Thr inessap:ible im-
prer,iun 15tliot thc I'ratiisrsoi the I>unihlirtonOaki propixals and of the Ch~rtcr
Jtd not c,inisi\,cciibu~hin:iiters ;ishein* wthin thc pur\ir.u of iudlrlsl mode\238 MILITARY AND PARAMILITARYA~IVITIES
The United States would like to refer in this connection to one discussion at
the San Francisco Conference that considered the relation between the Security
Council and the Court in a case involving a threat to the peace. When the
delegate of Turkey proposed that the Security Council should no1 interfere in a
case being heard by the International Court of Justice, except if "the dispute
developed into a threat to the peace", the delegate of the United States explained
to the satisfaction of the Turkish delegate that "if a dispute were being satis-
factorily handled by the Court and there was no threat to the peace, then
there should be no intcrfercnce by the Council" (12 UNCIO, docs. 73-74; sce
also United States Counter-Memorial, para. 476).
The corollary of this statemcnt is clearly that when a threat to the peace is
alleged, as has been done by Nicaragua, the Security Council, and not the Court,
would be the competent organ for dealing with it. A fortiori,if an alleged threat
to the peace has been discussed by the Council pnor to the submission of the
case to the Court, the matter should not be presented to the Court until the
Council has ascertained that there is no longer a threat to the peace. Professor
Kelsen, in discussing this incident in San Francisco, would have gone even
further. He sueeested that Article 36 (3) of the Charter mieht be interoreted as
making it pos$le for the Council no'!only to recommend-that a le& dispute
be referred to the Court but also that a non-legal dispute such as one involving
a threat to the peace already referred to the Court be brought instead to thé
Security Council (Law of rhe UnitedNaiions, p. 406 (1950)).
It is not necessary to embrace the whole of Professor Kelsen's views to
acknowledge the validity of his underlying premise. It is the gravity of the danger
to world oeace that a disoute oresents. or is alleeed to oresent. that determines
whether CheCourt or the ~ecirity ~obncil shouÏd be &siderkg it, regardlesi
of what "iuridical aspects" it may othenvise be alleged to possess. In this case,
the ~icaraeuan ~~Dl;cationon itsface oresents orecisëlv that sort of circumstance
thai the ~Larter <;niides IO the ~ccurh) ~oun>il
Le<ii,ingaside the dralting history,ilthe Charter. the nnsscr to the question
u,ho hni e~clusiveiurisdi~tion to drtl u.ith an\ thrïait<>the wsce. hrwch oithe
Face or act of akression can be round in the specificlanguage of the Charter
of the United Nations.
Article 24 (1) of the Charter confers upon the Security Council "primary
res~onsibilitv for the maintenance of international wace and securitv". The
Securit) Council'i role ii "primary" bui not exclu,i\,c. 3..ihe Charter elrcu,herc
expresslyconicrs on the Ceneral Ajsenibly certain complemeniary responsibilirics
wiib respect to the maintenance of international peace and secunty, as this Court
recognized in the CerrainE.xpenses case (ICJ. Reports 1962, p. 151,at p. 163).
Similarly, the Charter recognizes that regional settlement mechanisms such as
the Contadora group have a role to play with respect to such matters. Apart
from these two exceotions. nothine -n the tex1 of the Charter or in the records
or the Ssn I:ranr.irc<iC<>nlcrcnccsuggertr thai urc oc tlic \tord "prim;ir!." ii:n
intendcd ICI empouer iither organs. in pariiculir th15Court. to chcrcisc the
rcrvons~biliiie\ :hprei~li cc>nli.rredhs the Charter on the Sccurity Council. the
~eneral ~ssemblv-.and-reeional arraneements
The powers of the ~ounciïwith respect to the maintenace of peace
and security are divided into two distinct categories: pacificsettlement of disputes
in accordance with ChaDter VI of the Charter. and action with resvect to thredls
tu the pcnc~,breilches of the peacc and acts of ngression in ;iccorJ;ince with
Chapter VI1 Chapicr Vlll coniains wme additional provisions rclaiing 10
the relative role OCthe Securiiv Council and of the reei-nal arrangements with
respect to matters appropriate-for regional action. Nicaragua invokes in its own oral argument certain comments on the San
Francisco deliberations as justifying the conclusion that the powers of the
Security Council and the General Assembly are not affected by Article 52 of the
Charter (p. 120, supra). Of course, as noted in the Nicaraguan oral argument
(p. 121,supru), paragraph 4of Article 52 provides explicitly that this Article "in
no way impairs the application of Articles 34 and 35". Any careful review of the
San Francisco records will show, however, that this last provision was designed
primarily, and perhaps exclusively,to safeguard the power of the SecurityCouncil
to step in whenever it "deems that the continuance of the dispute is in fact
likelyto endanger the maintenance of international peace and security" (Art. 37,
oara. 2). A fortiori. the Securitv Council mav. inde~endentlv of anv r.gio-al
~roceekngs,iake under Article 39of the charter any measuresjt deems necessary
to maintain or restore international peace and security in any situation where
"existence of any threat to the peace, breach of the peace or act of aggression"
is alleged. This rule applies with equal force to any proceeding hefore the Court;
once a situation reaches the point of danger which provides the dividing line
between Chapters VI and VI1 of the Charter, it is the Security Council that has
the power and the responsibility to deal eiiectively with that situation. Once one
distinguishes properly between disputes under Chapter VI and Article 52, on the
one hand, and threats to the peace under Chapter VI1 and Article 53, there is
no contradiction in the United States position, contrary to Nicaragua's allegations
(p. 123,supra).
The diiierence between the Security Council'sjurisdiction under Chapters VI
and VI1 is emphasized by several Pdctors. First, under Chapter VI the Security
Council can make only recommendations to the parties (except for certain
preliminary decisions under Article 34) while under Chapter VI1 the Security
Council can make hinding decisions. Second, in decisions under Chapter VI, a
party to a dispute is obliged to ahstain from voting (Art. 27 (3) of the Charter),
while under Chapter VI1there is no such restriction. Third, the General Assembly
has broad powers to deal with international disputes brought hefore it under
Chapter VI, especially Article 35 of the Charter, suhject only to the limitations
contained in Articles II and 12 of the Charter which are designed to avoid a
conflict between decisions of the Assembly and the Security Council. There is,
however, no mention of the General Assembly in Chapter VII. The Charter
confers only a limited power on the Assembly to make recommendations in
situations relating to the maintenance of international peace and secunty, as
pointed out by this Court in the Cerruin E.~pensescase (ICJ Reporrs 1962,
pp. 163-165) and as noted in the Counter-Memorial (II) of the United States
ara. 457). Fourth. while decisions under Cha~ter VI mus1 he in conformitv
Gith the p;inciples Ofjustice and international law, as 1shall discuss later, theGe
is no such limitation on the action to he taken under Chapter VI1of the Charter
in view of the need "10 take effectivecollective measures for the prevention and
removal of threats to the peace and for suppression of acts of aggression". Fifth,
both judicial settlement and the Court are mentioncd in Chapter VI, but there
is no reference to the Court in Chapter VII, nor any reference - comparable
to those relating to the General Assembly - elsewherein the Charter indicating
that the Court should deal in any way, however limited, with alleged thredts to
the peace, breaches of the Face or acts of aggression.
The Courr roseor 12.57p.m. THIRTEENTH PUBLIC SITITNG (16X 84,3 p.m.)
Present: [See Sittingof 8 X 84.1
Mr. SOHN : Mr. President, distinguished Members of the Court, this morning
1was trying to explain the grand design of the Charter and how the provisions
on maintenance of peace and security were developed, and how the division of
oowers was envisaee-,bv the framers of the Charter. Just before the break. 1
wa. rrplaining also in ~d~iiiular,ihç di\,i~.~bctu.ccn ihc pou.er. of ihc Sczurity
Counçil and uihcr iirgiini ofihc Uniicd Naiiuns undcr Chaptcr VI Jcaling with
sciilcnicni of disriutrs and Cha~lcr \'II Jral~n,: uilh uucstionr of maintrnancr
of peace and security in case of'breaches of thëpeace or acts of aggression.
If the parties to a dispute specificallyagree to go to the Court, Article 33 of
the Charter welcomes it, and the Security Council may encourage il under
paragraph 2 of that Article. Once a dispute is actually before the Council, the
Council may, under Article 36 (l), "recommend appropriate procedures or
methods of adjustment".
It is in this connection. and onlv in this connection. that the Charter makes
any specific reference to this Court in its provisions dealing with questions of
peace and security. Thus, Article 36 (3) provides that:
"ln making recommendations under this Ariicle the Security Council
should also take into consideration that legal disputes should as a general
rule be referred by the parties to the International Court of Justice in
accordancewiththeprovisionsof the Statute of theCourt." (Emphasis added.)
Article 36 (3) is of fundamental significance in al least two respects. First, it
provides textual support for the potential competence of the Court in matters
relating to peace and security, but only where agreed to by the parties andonly
with respect to disputes or situations that have not yet given rise to a danger
to the maintenance of international peace and security. Nicaragua could not,
consistent with its Application, be considered to be alleging the existence of only
this sort of "dispute" or "situation". Secondly, Article 36 (3) implies a pnor
determination by the Security Council that the issues involved in the dispute or
situation confronting it are primarily "legal" and that a recommendation that
the parties thereto refer the matter to the Court would bc appropriate and
effective in the circumstanccs of the case. Wilfred Jenks has noted in his
magisterial volume on the Prospecis of Infernalional Adjudication (1964,
pp. 32-33), that the Security Council in its first 20 years refused to refer to the
Court under Article 36 (3) of the Charter or for an advisory opinion at least in
1I cases, such refusal being based in several cases on the ground that they had
"an important political aspect." Among thecases he lists weresituations involving
armed hostilities in Indonesia, Palestine, Hyderabad and Kashmir, as well as the
Berlin blockade.
Chapter VI1 of the Charter concerns matters which have gone beyond the
mere potential for endangering the maintenance of international peace and
security, and deals with them in a manner fundamentally different from Chap-
ter VI. The well-known Article 39 of the Charter provides that:
"The Security Council shall determine the existence of any threat to the
peace, breach of the peace, or act of aggression and shall make recommen-242 MILITARYAND PARAMILITARYACTIVITIFS
Assemhly in that regard is specifically confined to Chapter VI "disputes" or
"situations". as Article 35 (. .of the Charter makes clear.
On a deewr Ic\el. hu\vercr. Ihc exprçs, rclcrensc Io the Gencral ,\,rembly in
Article 12.paragraph 1.rcllects the faii th31ihc framers of ihc Charter intcndcd
thai. amon2 the orcans oithe United 'laiioni, only the CiencralA~iemhlvui~uld
have a roi; sunolëmentarv to that of the SecuriG Council in the main-tenance
of internati~na'l'sie tcurasisim.ply never considercd at the San Francisco~ ~ ~
Conference that the Court would, or should, have the comDetence to engage
itself insuch matters. Indeed, a role for the Court in this respect was suggeitëd
only once, and was emphatically rejected. It will he recalled that Belgium pro-
posed an amendment to what became Chapter VI, to the eflèctthat a State party
to a dispute before the Security Council could request an advisory opinion from
the Court as to whether "a recommendation or a decision made by the Council
or proposed in it" would infringe that State's "essential rights", that is, rights
"granted hy positive international law as an essential right of statehood" -
clearly a legalquestion in the sense advocated by Nicaragua. If the Court agreed,
according to that proposal, then the Council would have had to reconsider the
matter or refer it to the General Assemhly for decision. In addition to ob-
jections based on the fear that this amendment would weaken the position of
the Securify Council, the Belgian amendment was strongly opposed on the
interesting ground it would necessarily involve the Court in deciding "political
questions in addition to legal questions" (Summary Report of the Ninth Meeting
of Committee 111/2,12 UNCIO, p. 66). As a consequence, the Belgian proposal
was withdrawn.
Nicaragua would have the Court disregard the clear history and express lan-
mage-of Chanter VI1of the Charter and the nractice of the United Nations and
proceed io ad~udicliteihe mcrits oi Sicaragu.i'r clainis. u,hiçh. ar the Applica-
lion concciles.are ideniicalIo ihore upon uhirh IIunsurvesrfullysought aJetemi-
nation froni the Securiiy Counçil under Article 39 of the Charter H'cçubniit rhai
the Court cannot accede to Nicaramia's reauest without directlv and unavoidahlv
inliinging the c<~mpcicnre exprcsrl;\~rried ;n ihr Securiiy ~ounkl hy that ~rticl;.
Counsel for Nicariigua ha, asscrted .in astoni,hingly narrow conception of the
rolc of the Securiiv Couniil. As the United States undersiands his arcunieni. ihe
Security Council bnly acts under Chapter VI1 of the Charter when it deirees
enforcement measures in the form of military action or cconomic sanctions.
What is more, the Council must specificallycite Article 39 of the Charter, or
employ ils express words of determination. But this allegalion overlooks the
practice of the Council itself, which has rarely found it necessary to employ the
specific language of Chapter VII, in particular Article 39, in adopting hinding
resolutions dircctcd al on-going uses of armed force such as that allcged in the
Nicaraguan Application.
Counsel's assertions in this regard are doubly curious in that they flatly
contradict Nicaragua's own characterization of ils claims before the Security
Council. The Nicaraguan draft Security Council resolution of 4 April 1984may
be found at Exhibit D of Annex III of the Nicaraguan Memorial. Nowhere in
that draft can one find a rcference to Article 39. Nowhere can one find the
laneuaee of that Article. nor a reauest for enforcement measures as conceived
of Iby&unsel for ~ica&ua. ~et'~icara~ua has said in paragraph 12 of its
Application that ils claims related to "threats or breaches of the peace, and acts
of ar--ession". Nicararua- either made such claims. or it did not. Nicaragua
cannot nou,. in iiçoral argument. rcuritc 11s,\pplication io Jeny ihst its,>ughtio
in\iike ihe compeiencc of ihc Securiiy Council under Chapicr VI1 ihe Charter.
Iherc profound d~ificult~ecsinnot be a\i>iilcilhy thc argument ih~tthe Se;urit) ARGUMENT OF PROFESSORSOHN 243
Council, having failed to grant the determination requested by Nicaragua by
virtue of the negative vote of the United States, has failed to act with respect to
the on-going armed conflict in Central America, and thereby kas removed an
impediment to the Court's competence.
To this two responses may be made. The first is that the Security Council has
in fact acted with respect to the on-going conflict in Central America. Simply
out. the Securitv Council has acted hv endorsine. in its resolution 530 (1983).
;he'(:ontadt>rs proicss 3s the appropr~ate niech~~irmfor secking the ro;lutio~
of the sccuritv anil i>ther.1nterrel3t:d. prohlrm, ol'the reyion. Niidriayua. having
sought a dirirent resolution and having failed to secure 5, cannot nok be heard
to claim that the Security Council has failed to exercise its responsibilities with
respect to the maintenance of international peace and security under the Charter.
The second response that the United States would offer concerns the claim
that the refusal of the Secunty Council to determine the existence of a threat
to or breach of the peace, or an act of aggression, vests the Court with the
competence to reach a substantially identical determination, where the "refusal"
o~ ~ ~ ~ ~ncil results from the failure of the nrooosed determination to achieve
the majority required for adoption under ~rtiClei7, paragraph 3, of the Charter.
To this the United States would answer that the requirement for the affirmative
vote of al1permanent Members of the Security ~ouncil laid down in Article 27,
paragraph 3, was no accident. The drafters of the Charter, in delegating to the
Security Council, and, 1might add, to regional arrangements within the limits
of Chapter VIII, the responsibility for dealing with circumstances of the nature
of those alleued bv3Nicaraeuu ,did so with the clear and deliberate awareness of
the procedures that they chose to prescribe for action by the Security Council,
and in varticular the maiority required for such action. Indeed, the Nicaraguan
delegation at San ~rancisco ioted against efforts to modify the voting formula
laid down in what is now Article 27, paragraph 3, of the Charter (1I UNCIO.
Documenrs, pp. 518-519).
The unwillingness of the Security Council to take the action desired of it by a
State may well be a source of deep dissatisfaction to that State. and under-
standably so. The United States itself has experiençed the same dissatisfaction
on many occasions. But the fact that the Council may function in the manner in
which it was expressly intended to function cannot be grounds for locating, in
this Court, a subject-matter competence that is alternative to, yet identical with.
that specificallyconferred on the Security Council by the Charter.
Nor can the so-called "necessity" principleoperate in this case. As the United
States kas previously noted, Nicaragua's realcomplaint is no! that the Security
Council has failed 10 act. It has acted in recognizing the Contadora process as
the appropriate mechanism for resolution of Central American concerns, includ-
ing but not limited to secunty concerns.
Nicaragua's real complaint is that the Council has failed to act in the manner
wishedby Nicaragua. Moreover, the Council, in rejecting Nicaragua's demand
for a determination under Article 39, did so in the manner precisely conform-
ing to the requirements of the Charter. Thus, there is no room in which the
"necessity" principle can in any way be brought into play.
The United States would quote in this connection the statement of the President
of the Court, Judge Winiarski, in his dissenting opinion in the CerrainE.rpenses
case (ICJ Reports1962, p. 151,at p. 230):
"The Charter, a multilateral treaty which was the result of prolonged and
laborious negotiations, carefully created organs and determined their com-
petence and means of action.244 MlLlTARY AND PARAMILITARY ACTlVlTlES
The intention of those whodrafted it was clearlyto abandon the possibility
of useful action rather than to sacrifice the balance of carefully estahlished
fields ofcompetence, as can be seen, for example, in thc case of the voting
in the Security Council. It is only by such procedures, which were clearly
defined, that the United Nations can seek to achieve its purposes. It may be
that the United Nations is sometimes not in a position to undertake action
which would be useful for the maintenance of international peace and
security or for one or another of the purposes indicated in Article 1 of the
Charter, but that is the way in which the Organization was conceived and
brought into heing."
Nicaragua is asking this Court to sacrificethe balance so carefully estahlished
in the Charter in the most important field of United Nations activities, the
maintenance of international peace and secunty. Without that balance, there
would have ken no Charter; without that balance, the Charter would be a
completelydiflerent document from the one so carefully drafted at San Francisco.
The framers of the Charter deliberatcly vested in the Security Council, under
Article 39 of the Charter, the responsibility for making the determination
requested of this Court by Nicaragua. The framers of the Charter chose to make
such determinations dependent upon inleralia, the concurring votes of the
permanent members of the Security Council. The framers of the Charter could
have vested concurrent competence in this Court; they did not. The framers of
the Charter could have decided upon some other voting formulain the Council;
they did not. The framers could have cmpowered States to appeal to this Court
[rom the Security Council; as shown by the abortive Belgian experience, they
did not.
The Charter of the United Nations is a finely tuned instrument designed to
function in a manner that takes into account the realities of maintaining inter-
national peace and secunty in the post-war world. It has, admittedly, not been
as successful in this regard as the United States and others had hoped. But
if the system established by the Charter is to be altered, it may he done only
with the consent of al1 thc parties and in accordance with the mechanisms
established for the purpose in Chapter XVIII. Nicaragua is, however, asking
that the Court take this task upon itself by stepping into the shoes of the Security
Council in order to render a determination that the Security Council, in the
exerciseof its functions under Article 39of the Charter, was no1ure~ared to make.
Nor can il bc nwintaintd that ihc questions pu1 belore ihî s&uriiy Council
and before ihis Couri hy Nicaragua arcsomchow JilTcreni.and ihût iiih possihle
io adiudicaie the "stri;tlv iuriJic;il ïs~ecis" of ihe maiier uirhoui infringing the
cornpetence of the secuht; Council <O determine the existence of a threit ïo or
hreach of the peace, or act of aggrcssion under Chapter VI1 of the Charter. It
mus1 once again be recalled that whac Nicaragua is seeking is the adjudication
of what Nicaragua itself claims to be an on-going, unlawful use of armed force
in violation, in particular, of Article 2 (4) of the Charter,and of such a magnitude
as to constitute a "threat to the peace, breach of the peace or act of aggression"
under Article 39.
But whether or not the determination of such claims involves a "iuridical"
aci, under the ciriumrtancrs alleged in ihc Application. ii isone ihat hils bcen
confided io ihc c.)mpcir'nccof the Scc~rit) C<iuncilunder ihc rxpress i\,orclsof
Article 39 of ihe Chûrier. Thi.; ir m;iJe iibsoliiiclv clcar in ihc I>efiniiioii OC
Aggression adopted hy the General Assembly in 1974 as the culmination of a
long and difficult process that had its origins at the San Francisco Conference.
The purpose of the drafters of the Definition of Aggression, as noted in para- ARGUMENT OP PROPESOR SOHN 245
-ranh 4 of resolution 3314(XXIX) bv which the General Assemblv adonted the
~effnition, was to furnish guidancLtlthe Security Council in deterhinini, under
Article 39 of the Charter, the existence of an act of aggression, in cir-
cumstances precisely like those Nicaragua in its Application-alleges to exist.
That purpose utterly dominates the extraordinary history of the long effort to
achieve such a definition, recounted in detail at Section II (C)(3) of the United
States Counter-Memorial. It pervades the text of the Definition ultimately arrived
at in 1974. That Definition, among other things, makes clear that it is the
Security Council that has the responsibility and the authority to determine
whether an on-going use of armed force is "against the sovereignty, territorial
integrity or political independence of another State, or in any other manner
inconsistent with the Charter of the United Nations". As noted in paragraph 490
of the United States Counter-Memorial (II), the Definition, in preambular
paragraphs 2 and 4 and in Articles 2 and 4, emphasizes that the Definition had
been drafted for the benefit of the Security Council and is not intended in any
way to detract from the Council's powersunder the Charter.
Wesubmit that it issimply not possible for this Courtto adjudicate Nicaragua's
fundamental claim - that of an on-e- -e. unlawful use of armed force -
withoiit cmbîrking iin th< perli~rm.inci.or 2 Cuiictionthxi Arti:lc 39 of the
Chdrter. as cl:~boriitedin the I>elinition OCAggres\i<~n,rebervçs icthe Sec~rity
Council. In this resvect it makes no difference whether, semanticallv. the claims
asserted before the'court employ the specific language of ~rticle.39 or some
other formulation based, for example, on the language of Article 2 (4) of the
Charter. The juridical result is the same.
The foregoing point is sufficientlycrucial to warrant restating: as the Definition
of Aggression makes clear, there is no distinction hetween the determination, in
the midst of an on-going armed conflict, of the lawfulness of the use of armed
force of the nature and magnitude that Nicaragua itself alleges, and the deter-
mination of "the existence of any threat 10the peace, breach of the peace or act
of aggression" by the Security Council under Article 39 of the Charter.
More than mere abstractions are involved here. The Definition of Aggression
~xores~ ~acknowledees the discretion. as weIIas the resoonsihilitv. of the Securitv
~ounci<with respecïto Article 39 det'erminations.The Signiiîca&éof this cannit
be overstated. In this respect those who drafted the 1974Definition of Aggression
solved one of the fundamental dilemmas that com~licated everv vrevi&s eliort
to achieve an acceptable definition of "aggression", namely hiw to define a
concept that was to be applied to circumstances of on-going armed conflict
without impeding the vital role of the Security Council under Article 39 of the
Charter. That dilemma was succinctly summarized in the report of Committee 3
of Commission III (Security Council) at the San Francisco Conference which I
cited previously:
"A preliminary definition of aggression went beyond the possibilities of
this Conference and the purposes of the Charter. The progress of the
technique of modern warfare renders very difficult the definition of al1cases
of aeeression. It mav be noted that. the list of such cases beine necessarilv
inc~~~lete, the coincil would havé a tendencyto consider orless impo;-
tance the acts not mentioned therein: these omissions would encourage the
aggressor to distort the definition or might delay action by the Council.
Furthermore, in other cases listed, automatic action hy the Council might
hring about a premature application of enforcement measures.
The Committee therefore decided to adhere Io the text drawn up at
Dumbarton Oaks and to leave to the Council the entire decision. and also246 MILITARY AND PARAMILITARYACTIVITIIS
the entire responsibility for that decision, as to what constitutes a threat to
the peace, a breach of theeace, or an act of aggression." (1I UNCIO, p. 17.)
A determination of sweeping claims, such as those urged on the Court by
ihe 'li~araguan /\ppiic:ition. ii thc form of a judgmeni xi au preiupp<~\ei
the ab~ndsnnient of prcciscly thai Ilexihilitvand di\~rrtion thai the architeci, of
the Charter. and the drafters of the Dcfinition oi ;\ggre.\ii~n, con\id:red so
imperative to preserve. It would erect just that sort-of "signpost" that the
Charter,and the Definition ofAggression, were painstakingly designed to avoid.
In addition, the potential in any given case for a direct challenge to the pre-
rogatives of the Security Council would he great. It would hardly be in the
institutionalinterest of either the Court or the Council, nor healthy for the
Charter system as a whole, if a State, having failed to persuade the Security
Council to reach an Article 39 determination, were to obtain a functionally
identical determination from this Court and then return io the Council to seek
its enforcement under Article 94 (2) of the Charter.
The concept advanced by counsel for Nicaragua that the Court somehow
functions as a parallel scttlement mechanism to that of the Security Council in
cases of on-going armed conflict as alleged in Nicaragua's Application is no1
acceptable for yet another reason, and one that is made clear by the Aerial
Incideni cases relied on by Nicaragua. It will be recalled that in each of those
cases, the Court was unable 10 resolve the matter for the simple reason that the
respondent State had failed to accept the compulsory jurisdiction of the Court,
or was able to invoke reciprocity to defeat the Court's jurisdiction. It is hard to
imagine that the architects of the Charter and the Statute of the Court,
oreoccuoied as thev were with the maintenance of neace and securitv. would
have v&ted the court with a competence comparable to that of the2Security
Council, but only in respect of those relatively few States that would accept the
comoulsorv ..risdiction of the Court. That notion runs counter to the basic idea
<IIihe Charter. namel) ihxt the niechanisms for dealing with mdrters in\<>lving
the on-going u~ of arnied iorx rrcrc lu apply lu ihc mcmhcrihip ai a uhole.
no1 iust ihose States that chose IOsubicit them\elvcr io tho\e mechanisnii
~br, we suhmit, does it relieve thiCourt of the extraordinary burden that
Nicaragua would thrust upon it to argue that there could be cases in which the
adjudication of issues relating to on-going armed conflict including, perhaps,
even issues relatine to the lawfulness of the use of armed force. would he
;ippropriate and compaiible uith the Charter schenic. WCdo nui. oi'ioursç, Jcny
that po,~ihiliiv Inilced. counsel for 'licar.igw;ihns ;iJ\,anieJ thC;irJiC'/iu,mi~/
case :ind the se\cr.il mid-I950.4,vi<rlni.rrlçnrcarcs mentioncd aboieas enanioles
of instances in which the claimed unlawful usc of armed force was a matter
appropriate for judicial decision. What counsel for Nicaragua failed to point
out, however, was that in each such case the complained-of action had already
taken place. In each case, the Court was called upon to adjudicate the rights and
dulies of the parties with respect to a matter that was fully in the past, that was
not on-going, that was not merely one element of a continuing Stream of actions.
As the United States points out at paragraphs 481 to 484 of its Counter-
Memorial (Il), it was precisely the fact that the Corfu Channel incident was not
part of an on-going use ofarmed force that led the Security Council to conclude
that its competence was not engaged, and that the matter could therefore
appropriately be resolved hy judicial means. Exactly the same may be said in
respect of the Aerial Incident cases.
On the other hand, we are faced here with a specific case, in which the
Applicant alleges, in greal detail and a1considerable length, the use, supposedly ARGUMENT OF PROFESSOR SOHN 247
taking place right now, of enorrnous military force against ils "sovereignty,
territorial integrity and political independence". The Factsalleged by Nicaragua
cannot be construed othenvise than as fallina squarelv within the scooe of the
Definition of Aggression and Article 39 of thé charter and, indeed, Nicaragua
freely concedes this in the Application. We do not understand Nicaragua to he
arguing for anything less, orihat anything less would be acceptable toit.
In its oral argument (p. 105, supra) Nicaragua has cited the Order of this
Court in the case of the hostages in the American Embassy in Tehran, where the
Court pointed out that "no provision of the Statute or Rules contemplates that
the Court should decline to take cognizance of one aspect of a dispute rnerely
hecause that dispute has other aspects, however important" (I.C.J. Reports 1979,
p. 15, para. 24). But in the present case the situation is completely dilïerent.
Nicaragua is not asking the Court to decide one aspect of the relations hetween
the United States and Nicaragua; it wants the Court to consider the whole of
the United States relations with Nicaragua and its Application raises a host of
issues alleging a variety of violations of the Charter of the United Nations,
of the Charter of the Oreanization of American States and of various rules of
inrcrnariondl law. Ob!,iouily, [hi,whc ir(if;iqiiite Jiilcrcnt nature froni the one
~~ont:mpl.iicdin thr. Ordcr of 15 I>irimhcr 197').
in its oral argument, Nicaragua has relied also on the statement of the Per-
manent Court of International Justice in the case of the Righls of Minorifies in
Upper Silesiu (Minority Schools) that
"the Court's jurisdiction depends on the will of the Parties. The Court is
always competent once the latter have accepted ils jurisdiction, since there
is no dispute which States entitled to appear before the Court cannot refer
Io it" (P.C.I.J., SeriesA, No. 15,p. 22).
It must be noted, however, that the Minority Schoolscase was suhmitted to the
Court under the Compromissory Clause in the Upper Silesia Convention and
not under the Optional Clause of the Court's Statute. The importance of this
dilïerence hecame very clear when the United Nations Committee of Jurists,
meeting in Washington just before the San Francisco Conference, was discussing
a British proposal to bring paragraph 1of Article 36 of the Court's Statute into
line with paragraph 2 by changing "al1 cdses" to "al1 cases of a justiciable
character" (14 UNCIO, pp. 204, 318). Professor Basdevant (France) opposed
this proposal on the ground that paragraph 1
"aims at the cases which the Parties have agrccd to refer to the Court, and,
therefore, they mus1feelthat the Court can decide the case under Article 38.
In his opinion that is sufficientto make a dispute justiciable." (Ibid., p. 205.)
He added later that paragraphs 1 and 2 were quite diKerent, and that in cases
of compulsory jurisdiction under paragraph 2 "the proposal that cases be spe-
cified as 'legal'is important" (ibid., pp. 226-227); on the other hand, he noted
that in the Brazilian bans case, where in addition Io legal questions a question
of political character was involved, there sccmed no reason to limit the Court's
jurisdiction, since "the Parties had agreed to submit this case to the Court"
(ibid., p. 227). The United Kingdom amendment was rejected twice by the
Committee, mostly on the ground that the requirement that jurisdiction be
restricted to "justiciable" matters or those "of a legal nature" should not apply
to cases "in which thejurisdiction of the Court depcnds on the agreement of the
parties" (ibid., p.841). (For the full discussion of this issue by the Committee,
see ibid., pp. 204-205, 224-229, 288, 318, 841.) Consequently, the scope of the
jurisdiction of the Court under paragraphs 1and 2 of Article 36is quite different248 MlLlTARY AND Pr(FL4MILITARY ACTIVlTLE5
in this respect,and onecannot rely on analogies from decisionsunder paragraph 1
when dealing with compulsory jurisdiction under paragraph 2.
In evaluating the admissibility of the Nicaraguan Application account must
also be taken of the conseauences of anv adiudication of the lawfulness of
spccificd use ul'armed force uhcre illai adjudication iakcs plaie in the midit of
an on-going armed ~orifli~i~n\,<il\,injv :arious user of iurce by sc\eral Siale\. It
is uorth re:alling the relevant languagc of Ariiçlç 51 ol'the Ch.irtir:
"Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs arainst a
Member of the United Nations, until the Security Council h< taken
measures necessary to maintain international peace and security."
As recognized by Article 51,the right of a State to defend itself, and 10provide
and receiveassistance in that respect from other States, is "inherent". That right
neither derives from the Charter nor isconstrained by il, with the singleexception
that the exercise of that inherent right mus1 give way in the event "measures
necessary to maintain international peace and security" are taken by the Security
Council. Once again, the primacy of the Security Council in circumstances of
on-goingarmed conilict such as that slleged to exist hy Nicaragua is underscored,
in a particularly dramatic fashion, hy the express language of the Charter.
Article 92 of the Charter makes the Court an organ of the United Nations
and incorporates its Statute into the Charter. The Court is thus bound by the
cÿtegorical'prescription in Article 51 that "[nlothing in the present Charter shall
impair" the inherent rights guaranteed by that Article to al1States. A judgment
of the Court which sought to limit a State's recourse Io its Article 51 rights in
the rnanner demanded by Nicaragua - for example, hy denying that State the
right to furnish "support of any kind" to third States engaged in the exercise of
their Article 51 rights - would a jorriori constitute such an impairment. In-
deed, the process of adjudication itslf, which would require a State claiming
ils Article 51 rights to pause to defend those rights in the very course of their
exercise and to disclose information of value to the State against which those
riehts are çlaimed. would necessarilvalso constitute such an im~ainnent.
-ln kecplne uiih th<:\)sicm estxblishcd for the maintenancc'nf intcrnlition.il
peacc and ,ccurit) by the <.'harier gcncr;illg. ;in* Ch:ipier \'II in parti~.ular.
Ariiilc 51 rccuanij.cs the ioeci;il r,~lcof the Sccuriiv Coiincil uitli rcsnectii ihe
exerciseof the hherent rights preserved by that ~rtccle. It is the ~ecuriiyCouncil,
and the Security Council alone, whose actions can limit the exercise of the right
of individual or collective self-defence.The function of the Council in this regard
mus1 be understood in the context of the responsihility of the Council under
Article 39 with regard to whether a State involved in an on-going armed coniiict
is chargeahle with "any threat to the peace, breach of the peace or act of
aeeression". or anv other use of armed force aeainst the territorial interiritv.
sovcreigniy. or political independenrc olanother Staic. or in aiiyuiher manncr
incon\i\tcnt u,ith the Ch~rtcr The Iirnitation on judicial action inherent in Ariiçlc
39 must extend as well to Article 51.
Finallv. 1mentioned nreviouslv the soecial oosition of reeional arraneements ~ ~
or agcn:ies undcr ~h.iiicr \'lll'<,f the charter. II \houldLhc noieil ihat such
regional cntitic, ;ire. in additicin ihe Se:ur~i) Couniil and. to ;iIiniited e\tcnt.
ihc General ;\\rcmhl,. ihc irnl\ entities clorsrsi, icsted h, the tc~tof the Charter
with a role in the maintenanie of international peace and security. Article 52
provides that nothing in the Charter precludes such arrangements or agencies
from dealing with such international peace and security rnatters "as are appro-
priate for regional action" and othenvise consistent with the purposes and ARGUMENT OF PROPI~SOR SOHN 249
principles of the United Nations. It further requires that member States entering
into such arrangements or aaencies "shall make everv effort" to resolve local
di~putcsihrougr such mcliii.%riore rcl2rring ihcni IO ihe Security Council. and
~bliges ihc Sciurii) Council 10 enxurag: sush elliiris.
As Profcssiir lo<>rc \hall shortly illiisirdic. the C<~ntaJ<~rp artixsr. tu irhich
Nicaragua kas agreed and which théUnited States strongly supports, is precisely
the sort of "regional arrangement or agency" contemplated hy Chapter Vlll of
the Charter, and has been endorsed as such hy the Security Council. To the
extent that Chapter Vlll obliges States party to such regional arrangements to
exhaust the possihilities for settlement provided hy those arrangements prior
to referring the matter to the Security Council, that obligation must apply a
forriow riith even greater force in respect of resort to adjudication in the Court.
Conclusionojdrgirment
Mr. President. mav 1now hrieflv summarize mv areume,t -
One mas Jisccrn. uiih ;ihi,>luieclariiy. thai boih the icxi and draiiing hisior?
oi the Ch;iricr oi ihc Uniicil N&ti<~ne\hcluJc ilic po,,ibilii) iliailjudicxti<~nas .I
means of adiustina - situation such as the one which isallered i- the Nicararuan -
Applicdlion a, cyisling in Ccniral Americ;~.lhai is, circurn\tlince>in\,(ili,iiigan
on-going ubei>fdrmcd ioric allcgcd IO be in i,iolation <ifihc Chdricr. II war the
dclibcr;itc decision oi ihe archiissir of ihc Charter sssicm ihat ch m;iiicrs ucrc
to be dealt with hv the ~0litical oreans created bv-the Charter for the exoress
purposes of dealing with'such matiers, or otherwke recognized by the charter
as being entitled to exercisethat responsibility. These are, pnmarily, the Security
Councii and. suhsidiarilv. the General ~ssemblv and reional ar-angements or-
a~~o~i~~ ~~de~ ~ha~ter.~111.
Ad~~di;diion bg ihir ('ouri nf buch qucsiions is nciihcr rccogni/cd in ihc te\i
ofihs Chsricr nor ciirnpaiihle ii,ith11sarranyerncnis in r:\pcct ,>fthe rnsinicnancc
of international oeace and securitv. The Charter in this manner reilects the
deeply-felt prefeience of States thdt disputes affecting their most important
interests - among which the inherent right of individual and collective self-
defence must he numbered - must not be subjected to compulsory third-party
adjudication,but mus1be resolvedby other, extra-judicial means. That preference
long predates the Charter, and clearly iniluenced ils architects and their concep-
tion of the appropriate role of judicial settlement in the resolution of inter-
national disputes.
Nicaragua is asking in ils Application for nothing less than a repudiation of
that tradition and for what would be, in effect, a judicial revision of the express
terms of the Charter. It is asking that, in adjudicating what il alleges to be the
massive and on-going violation of the Charter limitations on the use of armed
force, this Court render a determination legallyand functionally indistinguishable
from the determination under Article 39 of the Charter of a "threat to the peace,
breach of the peace, or act of aggression" - a responsibility that the text and
history of the Charter reserve to the Security Council.
Nicaragua has freely conceded in ils Application that ils claims hefore the
Court are identical to the claims that it urged hefore the Security Council under
Article 39. Nicaragua mus1 be held to that concession. 11cannot escape that
concession by mereartful pleading, because iis consequences for the admissibility
of the Application are fundamentally substantive and cannot be cured on the
facts that Nicaraaua alleees in its Aooiication.
Nor can the f;ndameital issue Gésented by the Nicaraguan Application he
sidestepped by grounding the competence of this Court to act in a situation of250 MILITARY AND PARAMILITARYACTIVITIFS
on-going armed conflict on the asserted failure of the Security Council to act
under Article 39. It must be emphasized that it is no1 that the Security Council
has failed to act, but that has failed ta acin rhemannerpreferredby Nicaragua.
In sa doing, the Security Council functioned in a manner entirely and deliberately
provided for by the architects of the Charter. Nicaragua may unaerstandably
compldin of this, but it is surely insufficient Io give rise ta a subject-matter
competence that the drafters of the Charter and the Statute of the Court never
intended the Court ta have.
1 would once again recall ta the Court that the Nicaraguan Application is
unlike any other that kas ever before been submitted to this Court or its
predecessor. Never before has this Court been asked to determine the legitimacy
of an alleged resort to armed force in the very midst of an alleged armed conflict.
Such matters are confided by the Charter of the United Nations to determination
by the Security Council. They lie outside of the subject-matter competence of
this Court.
In concluding, we would like ta paraphrase what this Court has said in its
Opinion in Compeienceof rhe CeneralAssemblyfor rheAdmissionof o Srorero
rhe UniredNations (I.C.J.Reporrs 1950, p.4, at p. 9): to hold that the Court
has the power ta adjudicate the central claim of the Nicaraguan Application,
namely that the alleged actions of the United States constitute an unlawful use
of armed force amounting ta "threats or breaches of the peace, and acts of
aggression" (1, Application, para. 12)
"would be Io deprive the Security Council of an important power which
has been entrusted to it by the Charter. It would almost nullify the role of
the Sccurity Council in the exercise of one of the essential functions of the
Organization."
If one should comvare the issue in that case with the one facine this Court
toJay. ihat statement iakcs on c\.cn grcatcr force. as the funciii>nsuf ihr.Sccurity
Council undcr Ariicle 39 of the Charter are çertainly ofC;irprcatcr moment than
ihusç u,hich itexerciics undcr Article3 (2) of thc Charter
For such reasons, we submit, the ~icaraguan Application is inadmissible and
must be dismissed. ARGUMENT OF PROFESSOR MOORE
COUNSEL FOR THE GOVERNMENT OF TIIEUNITED STATES OP AMERICA
Professor MOORE: Mr. President and distinguished Memhers of the Court.
It is a privilege to appear before this distinguished Court to present a case of
high importance for the future of the Charter system, the rule of law and the
judicial process.
Professor Sohn has demonstrated that the Nicaraguan Application is not
within the corncetence of the Court because it would compel the Court 10
exercise functions which the Charter of the United NtatioG reserves to the
Security Council and regional dispute settlement mechanisms under Chapter VlIl
of the Charter.
1.in turn. will show that the issues oresented bv the Nicdraauan Ao~iication.
whétheror not they lie within the ~&rt's jurisdLction or its Compet&ce unde;
the Charter and Statute, nevertheless are inadmissible.
There is no more important goal in international life than strengthening the
rule of lawamong nations. As this Peace Palace symbolizes,a strong and effective
judicial process isa fundamental part of such a rule of law. The rule of law and
an eKectivejudicial process are interrelated objectives which the United States
has vigorously supported throughout ils history. The United States opposes this
case brought hy Nicaragua not, as Nicaragua would have the Court helieve,
hecause it seeks to avoid judgment based on law, but solelyand preciselybecause
it deeply helieves that this case risks profound harm to the rule of law and 10
~~~~-C-~~~.
Nicaragua urges, for the first time in history, that this Court adjudicate a
claim centrallv rooted in an armed conflict, during the course of such conflict.
Moreover, and even more remarkahly, ~icara~uaqes this action in a setting
of hostilities triggered in part hy ils own attacks agdinst ils neighbours and
its own failure to honour solemn commitments made to the Organization of
Amencan States; where onlyclaimsimportant to Nicaragua would he considered;
when its concerned neighbours would not be before the Court; when such
adjudication would inevitably clash with a process ofregional peace negotiations
endorsed by the Security Council; when Nicaragua could use the Court to focus
attention away from its own human rights abuses, Charter violations and the
need for national reconciliation; when on-going hostilities would pose an
insuperahle problem in the discovery of truth and the fashioning of an effective
judicial remedy ;and when adjudication would posea severethreat of inadvertent
impairment of the inherent right of individual and collective defence enshrined
in Article 51 of the Charter. This upside-down, and essentially political, Nica-
raguan request is inadmissible whether or not the Court kas jurisdiction or
subject-matter competence under the Charter.
Counsel for Nicaragua have lectured the Court at length that there is no merit
to any distinction hased on legal and political disputes or important and unim-
portant cases. But right or wrong in these views they have missed the point.
For the issue is not these questions but rather the independent doctrine of
admissibility in al1its aspects.
Just as jurisdiction reflects a fundamental principle that nations must consent
to he bound by ajudgment of this Court, sotoo admissibility reflectsfundamental
principles concerned with protection of the rule of law, the judicial function, and252 MILITU<Y AND PARAMILITARYACTIVITIES
the role of this Court within the United Nations system. As the Court said in its
Judgment in the Norihern Cameruuns case:
"It is the act of the Applicant which seises the Court, but even if the
Court, when seised, findsthat it has jurisdiction, the Court is not compelled
in every case to exercise that jurisdiction. There are inherent limits on the
exercise of the judicialfunction which the Court, as a court of justice, can
never ienore. There mav thus be an incomnatibilitv between the desires of
an appKcant. on the on; hand, and on the o'therband the duty of the Court
to maintain ils judicial character." (Northern Comeroons,Jud~munl,I.C.J.
Reporis1963, p: 15, at p. 29.)
Admissibility reRects many principles concerned with protecting the rule of
law and the integrity of thejudicial role and process. There are at least four such
important princi:pleSapplicable to this case. i'hese are:
- first, consistent with its settled jurisprudence, the Court should respect the
legal rights and sovereign equality of third States not before the Court,
whose legal interests form the very subject-matter of a case;
- second, as an organ of the United Nations bound to promote the rule of
law, human rights and the peaceful settlement of disputes, the Court should
take no action that could interfere with regional efforts to bring on-going
hostilities to an end and to guarantee fundamental human rights and a
lasting peace:
- third, as a principal organ of the United Nations the Court should take no
action that could interfere with decisions ofthe Security Council or rcgional
arrangements under Chapter Vlll of the Charter: and
- fourth, as the principal judicial organ of the United Nations, the Court
should respect the inherent limitations of the judicial process concerning the
impracticability of the discovery of truth and the fashioning of just, pro-
portionate and effectivejudicial relief during on-going hostilities.
Each and every one of these principles is a fundamental requirement of the
rule of law and a iust and elTecliveiudicial orocess. Counsel for Nicaraeua is
right when heeloq;ently reminds thekourt of the imporiance of the rule $ law.
He is profoundlv mistaken, however. in failing t- understand that that goal
requirei dismissi& this case.
Summuryuf Argiimenl
MT.President, in mypresentation today 1will emphasize the following themes
based, in turn, on these four principles of admissibility applicable in this casc.
The first is that the Nicaraguan Application is inadmissible because Nicaragua
has failed to bring hefore the Court other States of the region whose rights, ob-
ligations and sovereign equality would necessarily form the very subject-matter
of this case. This case is centrally about the right of absent third States to receive
and participate in collective defence and mutual security. The inherent right of
defence guaranteed to those States by Article 51 of the Charter - and the
integrity of the judicial process - would be impaired by their absence from
the important factual and legal determinations required of any decision on the
merits. Moreover, United States rights in this case derive in whole or in part
from these rights of absent third States and as such could in no event be
detennined without prior adjudication of the legal interests of these States. This
is necessarily so whatever the protestations of Nicaragua that its clairns lie only ARGUMENT OF PRO~~R MOORB 253
against the United States or that no other Central American State has legitimate
claims against Nicaragua.
The Nicaraguan Application, secondly, is inadmissible because its adjudication
would necessarily constitute a material interference in the process of regionally
hased negotiations Io end an on-going armed conflict. The Contadora process
has heen recognized and endorsed by the relevant organs of the United Nations
and by the Organization of American States as the appropriate regional agency
for the resolution of the security, human rights and related problems of Central
America. Adjudication of the Nicaraguan claims in isolation from that process
would severely interfere with the very objects sought to be attained by that
regional mechanism. 11could well prolong the regional conflict and hinder the
enforcement of human rights in countries affected by that conflict. This is
necessarilyso whatever the protestations of Nicaragua that to date the Contadora
process continues despite consideration of the matter by the Court.
Third, as a principal organ of the United Nations under Articles 7 and 92 of
the Charter, this Court has a duty to defer to actions of the Security Council
and reeional arraneements under Cha~ter VI11of the Charter. in the exercise of
iheir rcspiiive iompeicniicr And ihc C<~urtmu\[ no1takc mrdwrch ihat u<>ulJ
rcndcr mcdningles., i~ri>theru.i\cinicricrc uiih ;iitions of ihosc organs In ihis
use. S~CL~IIC Vouni~l rcsolui~on 53U01 1') May 1983ur4e\ lnierrsied SI~IC~ IO
co-ooerate fullv with the Contadora Grouo. in resoliine thei~~difierences. ~~
~nd'the ~sseibl~ of the Organization of ~merican tat tes y ins resolution of
18 Novemher 1983,requested al1States to abstain from any act ihat may:
"Hamper the negotiation efforts the Contadora Group is making in
mutual agreement with the Central American Governments, or impede the
creation of a climate of dialogue and negotiations conducive to the-restora-
lion of Pcace in the region."
Accordingly, this Court is bound, as a CO-ordinateorgan under Article 7 and
Article 92 of the Charter, not to take action incompatible with the carrying oui
of these resolutions. No appraisal of the peace effort in Central America isat al1
realistic which fails to note the central role played by the Contadora process as
endorsed by the Security Council, the General Asscmbly, the Secretary-General,
the Organization of American States and the Contadora States - indeed, al1
concerned States and international organizations. No responsible authority or
evcn another State - only Nicaragua for its own ends - has sought to interject
this Court into the Central American conflict during the Contadora process.
Contrary to the representations of Nicaragua there is far more involved here
than the mere concurrence of negotiations.
Finally, the Nicaraguan allegation of on-going unlawfuluse of force that forms
the centrepiece of its Application cannot be adjudicated if this Court is to fully
perform its role as a judicial organ. For it is virtually impossible during on-going
hostilities to avoid severe difficultiesin access to information and the Pashioning
of appropriate relief. Nicaragua denies in these proceedings that it is or has
been engaged in an armed attack on its neighbours. Yet the very United States
Congressional Committees which it cites as proof of its allegations of United
States involvement reached the opposite conclusions. El Salvador also has
claimed otherwise in ils Declaration of Intervention ~ef~ ~ ~ ~s C~-~~ ~11.=.45~),.
and other Central American States have gone on record with similar complaints.
Indeed, one need only compare the affidavit of the United States Secretary of
State with that of the ~ica;aeuan Foreign Minister to aooreciate the deoth of
these diliiculties. A judicial Gibunal is,'furthermore, si&ly not equipied to254 MILITARYAND PARAMILITARY ACTIVITIES
fashion reliefthat can eiïectivelyencourage an end to hostilities without impairing
the right of defence while hostilitiescontinue.
For each of the foregoing reasons, and ovenvhelmingly for their cumulative
eliect, the United States submits that the Court should find the Nicaraguan
Application inadmissible.
Argument
Mr. President. letus now look more closelv at each of these four nroblems as
they apply to this case.
The first objection to the admissibility of the Nicaraguan Application is that
Nicaraeua has failed to brine uefore the Court third States whose leual interest
form ihc ter) sdbjrci-matirr of this ca\e and u.h,i%cprcwnrc i\ c\~cniial for ihç
reliahlc functiuning of the judi;ial proccis. Ihc prerenr'cof thi1~ thiril Siaieh ir
necessary to avoid-irrepar&le hani to the legal~interestsand sovereign equality
of those States. Their presence is also necessary to permit the Court to fully de-
velop the facts and law necessary to any judicial determination of the respective
rights and duties of the United States and Nicaragua.
It is settled jurisprudence of this Court that an Application is inadmissible if
it must necessarily adjudicate the legal rights and obligations of absent third
States without their express consent or participation in the proceedings before
the Court. This rule was first formally articulated by this Court's predecessor
in the EasrernCarelia case and has been restated by the Court on numerous
occasions, including particularly the Moneiary Cold case. In Monerary Cold
and again recently in the case concerning the ConrinenialShey (Libyan Arab
Jamohiriya/Malta), the Court statcd thc test to be whether "the legal interest"
of the third State "would form the very subject-matter of a decision". Indeed,
Nicaragua in its Memorial and oral argument concedes this is the applicable
standard.
But what could more clearly form the very subject-matter of the case where
claims concerning the right and duty of collective defenceon behalf of an absent
third State or the lawfulness of actions of other absent third States in support
of collective defence form the core issue? The United States submits that if
this Court must defer io a single absent State when the stake is simply abstract
liability, as inMonerary Cold, the duty of deference is immeasurably greater
when the inherent rieh- of collective defence. self-determination. and oossiblv
ç\.cn national r~ri,i\,alul'man? States of a regiun is ai stakr. Murcovcr, in thir
c.iw the prr.\encc of non-participating ihiril Siaics uiih ihcir iniportant pcr\pec-
ii\c. and h~.e iiifactu:il inf<~rmationon the (ore uuc.ti<>n ici hr. Jccided. is
essential for the reliable functioning of the judicial on that core questi'on.
This is so quite apart from protecting the interests of those third States.
Nicaragua seeks to engage this Court for a determination of what it alleges to
be the international responsibility of the United States for a variety of alleged
unlawful activities, but al1of which ultimately reduce themselves to a claim of
unlawful resort to armed force. In so doing, however, Nicaragua bas irrefu-
tably implicated absent third States in those alleged activities. Assertions to the
contrary made by Nicaragua in oral argument are belied by the Nicaraguan
Application itself. Honduras, in particular, is singled out for emphasis. To give
just a few examples, in paragraph 2 of the so-called "Chronological Account"
anncxed to the Nicaraguan Application it is alleged that an "army was to be
recruited from Nicaraguans living in Honduras". In paragraph 5 it is alleged
that "the . . .army was recruited and trained in Honduras", in particular at a
Honduran military base. And in paragraph 10, it is alleged that weapons and ARGUMENT OF PROFESSOR MOORE 255
supplies delivered 10 Honduras were moved to the Nicaraguan border hy "the
Honduran armed forces". And so on.
At this stage of the proceedings the United States cannot address the falsity
of these allegations. They are recited only as illustrative of the Nicaraguan
allegations ofunlawful activity on the part of Honduras, a State that Nicaragua
has failed to brinz before the Court. As mv collea~ue. Mr. Norton. kas shown.
similar allegationi have also been made hi ~icar&uÿ against coita Rica, ye~
another State not hefore the Court.
It is settled law that a State that oermits its terntorv to be used for the
commission of internationallv wronefuf acts aea"nst anothër State itselfcommits
an internationally wrongful .kt. ~he~nited States would observe i,connection
with the spccific allegations made by Nicaragua, that Article 3 (f) of the 1974
Definitionof Aggression provides:
"The action of a State in allowing ils territory, which it has placed at the
disposal of another State, to he used by that State for perpetrating an act
of aggression against a third State"
qualifies as an "act of aggression" if so determined by the Security Council. The
Court cannot determine the international responsibility of the United States
for the alleged activities set forth in the Nicaraguan Application without, at
the same time, reaching a determination as to the responsibility of third States
not present before the Court.
Moreover, the Nicaraguan Application asks in particular that the United
States he ordered to desist "from al1support of any kind" - specificallyinclu-
ding security assistance - to "any nation . . .engaged in military or para-
military actions in or against Nicaragua". This presupposes precisely that sort
of determination the need for which Nicaraeua now denies. namelv. that the
States conïerncd arc ndt eng.igeJ in ihe cxcrcibcoithc inlicrcnt right of indii,idual
or collccii~edcfcncc rr:i>gnixd and guaraniccd h) Art~cle51 of the Ch;irtcr PI>
El Sali,sdor n<)tcdin itr Dcil,irüiion of Inicr\.cntii>n unilcr ~Iriicle 63 <ifthe
Statute of the Court, filed on 15 August:
"it is not possible for the Court to adjudicate Nicaragua's claims against
the United States without determining the legitimacy or legality of any
armed action in which Nicaragua claims the United Stateshas engaged and,
hence. without determinine the riehts of El Salvador and the United States
to engage in collective azions Of legitimate defence. Nicaragua's claims
against the United States are directly interrelated with El Salvador's claims
against Nicaragua."
This statement occurs at page 456 of the Salvadorian Declaration (II), following
a detailed recital of certain of the hostile actions directed at El Salvador hy Nica-
ragua.
The Court adjournedbelween4.15pm. und4.30 pm
Mr. President, before the break the United States was addressing the first
reason whythe Nicaraguan Application isinadmissible: that is, that it necessarily
affects the legal interests of States not hefore the Court whose interests form
the very suhject-matter of this case. Nicaragua cannot ask this Court to enjoin
the United States from co-opcrating with States not before the Court, and at the
same time deny that that injunction would entail a determination of the
international rights or responsibilities ofthose absent States. The alleged actions
of the United States are either lawful under the Charter, or they are not. If they256 MILITARYAND PARAMlLlTARY ACTlVlTlES
are unlawful, then for the reasons stated ahove it follows that the actions of
those absent third States mus1 also he unlawful. If they are lawful then those
States have a right to receive assistance from other States under Article 51 of
the Charter. Moreover, receiving such assistance against an armed attack is not
only their right but their "inherent" right which, under the hinding terms of
Article 51 of the Charter, cannot he impaired. II is evident that a great deal
more than some abstract legal interest of those non-participating States would
necessarily bejeopardized: indeed their verysecunty would be threatened. Yet
those Statesare not before theCourt and therefore cannot estahlish the lawfulness
of their actions as Nicaragua has alleged those activities factually, nor in any
other manner protect their rights under Article 51 of the Charter.
It should also he noted that the right of the United States to act in collective
defence derives, in whole or in part, from the right of States in the region not
present in these proceedings to act in self-defence. Thus, the full rights of the
United States cannot possibly beadjudicated without first determining the rights
of other States in the region not before the Court.
It is irrelevant to areue that those absent States could. if thev wished. suhmit
themselves to the juriziction of this Court in order to éstahlishthe lawfulness ~
of their actions. The affected States of the region may have many reasons for
not wantinr!to oarticioate in Nicaragua's adiudication indeed. al1have stronelv
-. - . ,
c\presscd their ccinccrn ahoui interièrcnce uiih thc Cont~dora proie>\. Hui
\\hdtcvcr iheir rcdsiinr.IIis s L.orner\ts>ncof the ~iirisprudcnccof thij Ciiuri ihsi
no Statc ni;tv bc coiiipclled to subinii the iurirli:ii<~noi ihc Cuurt iinl:ss it
consents, and that théCourt cannot adjudicate the rights and obligations of a
non-consenting State. The Monerary Goldcase makes this clear.
Similarly, it is no answer, as Nicaragua asserts, that under Article 59 of the
Statute a decision between Nicaraeua and the United States would not be bindine
on absent third States. In the ~onerary Goldcase theCourt specificallyconsiderci
and rejected this argument (I.C.J. Reporis 1954. p. 18).
~nd it is no ansGer to areue that these issuesdeoend on determination on the
merits. The issue is the faimess and c~m~leteness'of factual and legal determi-
nations made without the participation of States whose legal interests form the
very suhject-matter of thiscase. Any determinations made without such parti-
cipation could not possihly he full or fair. In short, no case can be properly
constructed without the naming in the Application of al1necessary parties from
the outset.
It should he stressed that in this case. as in the Monerurv Gold case. the
absence of the ihird Strier in que.tion u,buld prcbent ihc full dc~clupmeni i>i
IJctb and Iau ncccssary for a dcterinination ul'ihe rights and obligations of the
Ilnitcd Siales and Niciiriiru~.The lawfulncs~oi thc allrced iitiiinr ofihc United
States in concern with those States must in laree measure turn on whether those
States are engaged in the exercise of their ~rzcle 51 rights in calling upon the
United States to furnisb necessary and proportional assistance to enahle them
to rcs~ond to Nicaragua's own activities aèainst their territorial inteeritv and
political independencer~hat in turn necessitaes a determination of the ïact; con-
cerning Nicaraguan activities in and against those absent States. Evidence
concerning those facts may not he in the possession or control of any party now
before the Court. As was acknowledeed as lone aeo as 1923 bv the Permanent
Court in ils Advisory Opinion in the ~asrern- lia case, sich questions of
material fact cannot be legitimately and fullydetermined in the absence of States
capable of furnishing evidence &fficient IO enable the Court to arrive at a
"judicial conclusion" with respect to such questions (PCIJ, Series B. No.5, at
p. 28). The Court in this case should not he required to make determination of ARGUMEPFTOF PROFFSSORMOORE 257
thc fact or Iaw uf such fundamental con,cquencr. nui only lu the Unilcd Siaics
and Nicaragua, bu1 1,)S1~tr.jnot befurcthe Court. on the hasisof3 p3r~a1rriord.
Examining a hypothetical case might assist in clarifying the startling propo-
sition advanced by counsel for Nicaragua that El Salvador, Honduras and other
Ccntral American States have no legal interest in this case hecause, counsel
argues, Nicaragua makes no claim against these States. If, during World WarII,
Germany sought an order from an international court seeking to end al1United
States military operations against Germany, would it not seem surprising to
someone in France, the Netherlands, Poland, the United Kingdom or the USSR
to hear it argued that their rights would not heaiïected by such an order? Would
they no1 he further startled to hear it argued that the United Kingdom and the
USSR had no legal interest in the proceedings despite repeated allegations in the
hypothetical German pleadings that the United Kingdom and the USSR had
permitted use of their territory for attacks against Germany? The Court should
note that in this hypothetical example the United Kingdom's and the USSR's
legal rights and obligations are fundamentally at stake whatever the factual
outcome of the case. Thus, if Germany is found to he acting unlawfully, the
United Kingdom'sand the USSR'sfundamental right to receivecollectivedefence
- and those of any other State in the example - were clearlyat stake in the
proceeding without their presence or right to he heard. And if the United States
were found to be acting unlawfully then clearly this finding would directly
implicate the United Kingdom and the USSR, again without their presence or
right to he heard. Sincethe facts and legaloutcome cannot be known in advance
- or even if they were it would make no differenceas to whether the United
Kingdom's and the USSR's rights and obligations were squarely in issue - the
case should be inadmissible without the participation of these States whose
interests form the very subject-matter of the case.
Although the United States relies on the settled jurisprudence of this Court,
counsel for Nicaragua are unduly provincial in asserting that the concept of
protecting the rights of third parties is peculiarly American. The principle that
fairness requires that a Court must not adjudicate matters that necessarilyaffect
the rights and dulies of parties not before the Court is not only settled juris-
prudence of this Court but is also a general principle of law recognized by
nations within the meaning of Article 38 (1) (c) of the Statute. It is adhered to
not only in common lawcountries where the absence ofan "indispensable party"
is a bar to adjudication, but it is also recognized in the codes of civil procedure
of the so-calledcivil law countries. See, for example, the Codeof Civil Procedure
of rhe GermonFederalRepublic, Section 62. According to that provision failure
to join a party defendant in the case of a necessary plurality of parties defen-
dant (Notwendige Passive Stritgenosscnschaft) entails dismissal of the action as
inadmissible (Unzulaessig) (cf. Rosenberg, Lehrbuchdes BeuischenZivilpro-
zessrechis 8,thed., 1960,Sec.94,pp. 426 ciseq). Similarly,according to Professor
Ernst Cohn, writing in the Encyclupedia <f Cornpurofive Law, "com-
pulsory plurality of parties" is a recognized concept in most legal systems of
the world. includinc!Brazil. France. Germanv. I-.lv. *.eden and the Socialist
countries,'jusi to gyveonl; a summary of jurisdictiuns. (See E. Cohn,
Chapter V,"Parties", Secs.147-156,in Ency~ir>~e&of ComparativeLaw, Vol. 16,
"Civil Procedure".)
The central consideration here is one of fundamental fairness in the judicial
process and the rule of law : fairness in legulefecr, because a judgment on the
merits in the circumstances of the caseas alleged hy Nicaragua would inevitahly
involve a determination of the legal rights and obligations of States not before
the Court. Fairness in argumenrarion, bccause the full development of the legal ARGUMENT OP PROFESSORMOORE1 259
the region - an objective that reflects the fact ihat since 1979 Nicaragua has
steadily and deliberately increased ils military establishment to the point where
it is by far the largest in Central America, in percentage of the population,
comprising fully 5percent of the Nicaraguan population, and in terms of Central
America as opposed to Latin America, it is the largest in Central America.
lndeed the Contadora process is far broader than Nicaragua's claims. It ad-
dresses the security concerns of al1 States in the region. It addresses agreed
regional human rights concerns, including those concerning the as yet unfilled
.led-es made bv the Nicaraeu-n Government to the Oreanization of American
States in 1979concerning free elections, national reconciliation, and democracy.
And it addresses the regional military balance and other conditions necessary
for long-term peace andstability.
This case presents at least three substantial concerns as to interference with
the Contadora process. First, the Contadora process is a balanced package
approach. It includes not only security concerns of interest to Nicaragua but an
interlinked set of secunty, human rights and other political commitments each
State would have to give to al1other States of the region.
There has been one essential characteristic of the Contadora negotiations since
earlv 1983: a consensus that onlv a balanced. reci~rocal set of commitments
cngGgingal1issues;tnd ;IIIsountri~s iarrics any hopc of bringing ah<iuta durahlc
WJCC Compromiw has hwn ncce\sary in the negoliaiions ihus FJ~and will bc
necessary to produce an Acta fully acceptable to al1participants. Compromise
and balance will also he needed evenafter an Acta enters into force, in order for
ils essential verification and control mechanisms to function. Any change in the
circumstances which would unbalance the commitments to favour one or another
country would prejudice the chances for a successful negotiation and implemen-
talion of the Acta.
Yet Nicaragua is asking this Court for a judgment that would meet Conta-
dora security objectives only as they may relate to Nicaragua's concernswithout
reuard to anv oblieutions that Nicaraeua-mav have aereed-to assume vis-à~vis~
other countries participating in the Contadora process. If this reliefwere granted.
the reciprocity and mutuality that lie at the heart of the Contadora process
would be directlv and materhllv frustrated. Nicaragua -ould achieve ifs eoals-
and. h~vingd<>ne io.nc)longer \iould have an) incentive Io 'igrccIo Iiniiiaiioni
on ils 0u.n militar) and panimilitary \iruriure and ~iti\iiicr. iniluding its support
of arincd groupi sccking the dcsiabili,:ition ofncighbiiuring governmrnis. Indeed.
the vcrypos,ibiliiy ihat Sicdragua cuuld achicvcsonic of ilsConi.iJora objeiti,cs
in another li~rumcould j~opard~~cncg~>ii311ons I.IS signifiuint thai Sicdr~gua
irthe only mcmbcr ofConiadora that has roughi ti)use ihir Court in ihc rurrcnt
dispute. Adjudication of the security-related daims of Nicaragua, and of Nica-
ragua alone, would not merely beinconsisteni with the Contadora framework
to which Nicaragua has agreed, it would be natly incompatible with it.
An examination of the 7 September draft - even though it is no1a final tent
- makes clear the impact of adjudication of Nicaragua's claims before this
Court. Such adjudication would engage some commitments but not others. It
would change the circumstances affecting negotiations or implementation in
direrent ways for different countries. One or more of the five countries held
together by a mutual sense of compromise may well find its national interests
directly and unfairly challenged.
Scven of the nine draft commitments in the first Chapter ("General Com-
mitmentsu) of Part 1 of the 7 Sentember version Cdn be loeicallv related to
Niiarag~a'.: ilaimh hcf,>rcthe (:iiuri. Hui ihc impJr.1oi ddjiiJlc:iiion. no maiter
u ha1ihc c\,cniual dciision. uoiild bc icvercly diiTcrcniial.l'hu,. the iommitmcnt~260 MILITARYAND PARAMILITARYACTIVITIFS
therein on territorial integrity, international houndaries, coercive or destahilizing
acts and the use or threat of force, would heengaged by adjudication essentially
with regard to actions against Nicaragua - and not the same actions aimed at
other Central American States.
Similarly, 19 of the 28 draft commitments in Chapter II1 ("Commitments
relating to Security Matters") can be linked Io Nicaraguan claims. These have
to do with military manŒuvres, security assistance, military advisers, arms
trafficking, support for irregular forces, subversion and terrorism. The impact of
adjudication could be favourahle in these areas to Nicaragua and unfavourable
Io other States, particularly Costa Rica and Honduras. Significantly, one of
the areas which would not be engaged by adjudication is that relating to the
restoration of military balance in the area. Unlike other security issues, this one
has not been important to Nicaragua. the country with the largest military
establishment in Central America. Thus, both country-to-country balance and
the balance among -arious securitv issues could be lost.
In contr;ijt. :idju~ii:~iiotiuould nui engage Jr.iii Chapier II ("C:onim~inicni~
rcl~ting IOPolitic~IMattcrs") or Jrait Chapier IV ("Ci)mmitmenis on t.cononiic
and Social Maticrs"1 ai 211.II is uorthh of note ihdt Ui~.;iraaw hdj consis-
tently rejected regional and international ieminders of its pledgeEwith regard to
national reconciliation, democratic pluralism and human rights - matters of
intense concern particularly to Costa Rica and the Organization of American
States as a whole. As with the militarv balance issue. Nicaraeua has onlv been
engaged toward legal commitment on'these elements'by the balancing dinamic
of the Contadora process. Adiudication, by concentratina on security matters
of interest to ~ic~ragua, wouid shift the balance away irom these [mportant
political issues.
Second, this case - which focuses solely on the interests of Nicaragua to the
exclusion of other regional parties to the Contadora process - could well
directly interfere with the specific implementation and verification mechanisrns
essential to the successof that process.
Part II of the draft Acta deals with "Commitments relating to Implementation".
This is a critical issue for al1concerned. A clear consensus kas dcveloped within
the Contadora process that an eflèctive,enduring settlement of the conflict in
the region not only has to be reciprocally binding on al1 Parties, but must be
suhject to verificationandcontrol as well.This requirement isexplicitlydelineated
in the Document of Objectives of September 1983.And the need to revise the
7 September draft Acta to provide for specific verification mechanisms equal to
duties assigned to them has been emphatically stated by the Central American
States - with the exception of Nicaragua. The eloquent statement of El
Salvador's President Duarte before the United Nations General Assembly of
8 Octoher is particularly worth noting.
Without satisfactory verification mechanisrns, there can be no confidence
among Nicaragua's neighbours that Nicaragua will in fact live in peace with
them. That confidence is essential to achievement and implementation of any
agreement to end the conflict in Central America.
This requirement for verification daces in reliefthe sienificantcontrast hetween
the couri's inability to verify cornpliance with the measures that Nicaragua
demands, on the one hand, and the emphasis the other Contadora participants
have placed on effectiveverification and control, on the other.
International verification and control is a diliicult. time-consumune and exoen-
~i\,ctask. t.xpcricnccs suchaj ihosc in p,1st-1'154Indsihina xnd in the Sinai ha\,c
highlighicd wh~tcm hc descrihcd Jr the ba,lc problcni dcsi~ning. .noniioring
process and making circumvention of agreed arrangements more difficult ana ARGUMENT OP PROFESSOR MOORE 261
costlv. Both ~assive and active verification measures are een-rallv considered
neie,var). Typical pasrivc mcasures inc.ude erchiinge of inforinaiion on obser\-
ancc i>ilimiiaiic~n~on numhcrs and i)pr., of iri,i~p and u,eapon s)stcnis, rulcs
for counting foreign military advisers, and timely reporthg of successfulactions
in terminating subversive activities. Activemeasures include various forms of
on-site inspection in a country and means to ensure that such inspection can be
effectivelycarried out.
The 7 Se~tember draft also includes an "Annex" definine a number of veri-
ficaiion and conipli;incc ierms. Thcre include iuch areas as the cIarïiliiaiii>n
<iiueap<~ni,sh3rairerisiic\ of airiraft and ships, and dciails on typer of sccunry.
naval, air, land and paramilitary forces. One characteristic of arrns control
agreements is that such definitions are frequently of critical importance for
verification and compliance and can spell success or failure of an agreement.
Adjudication could create a competing set of standards, with focus on those
terms and conceDtsof s~ecial interest Io Nicaraeua.
Gii,cn ihe widclyrccirgni/eJ c<~mplcxityofvcrificati~iii~nrlcsntrol me.hiinisnis.
and ihc c<)nsensJswirhin ihe Ccintador;~proies5 th.ii such niechanisms arc a ~ozi.
qua non of a durable peace, the choice-between Court action and Contadora
getting on with its work cannot be clearer.
For the benefit of the Court in examining these potential problems, the United
States has filed the recent draft Acta of 7 September 1984with the Court.
Finally, the existence of a case before the Court, which would of necessity be
of the utmost concern to States in passing on their fundamental legal rights and
obligations, could harden the position of the parties and cause them to review
al1actions in strictly legal terms even when negotiations cal1for greater flexibility.
It might he recalled in this connection that counsel for Nicaragua have already
sought to exploit the peace mission of an American Secretary of State hy sug-
gesting that this case, and not the importance of a solution to the conflict in
Central America. was the motivatine factor.
II niusi hc itre%icdrrhat a rcmarkahlc Jiplomatic ÿchievcmcni the ;iprecmsnt-
io-agree ihai is enibod~edin ihc 21.point I>oçumeni of Oh~ectii~ca snd ihc Jrali
Acia reprcwnir. iïinc Staics - ihc four Contiidor;~States and the fi\,cCenir.11
Amcrican Staies - rcachcd a cunscnsus on a c<,mprehçnsiveapproach IO the
problenis bereiting CeniraI America. problcms whiçh go wïll hcy<)ndihe uni-
Ialerol securiiy coniçrnr singlcd oui by Nicar;iau;i before ihis Court The draft
Acta reoresents a welcome Steo towaid achievëment of those obiectives. Adiu-
dication of only one element of that comprehensive framework, &d as that one
element is perceived by only one of the nine States involved, risks the careful
balance thai has thus far heen so painstankingly pursued.
Thus, what is at stake here is far more than an inchoate possibility that judicial
abstention would "create a more favourable political climate for an agreed
settlement" which, in the AegeanSea ConrinenralShelfcase, the Court considered
as insufficient rround for declinine-to adiudicate. Rather. what is at risk is a
cumprehcnsii~r,integraicd proccss tu ivhich Siairligua and eight oihcr St;iiej are
pariy Thai proceri ha<now prnduced a detaileJ Jraft Acta as 3 sicp tuward a
binding regional agreement. That process enjoys the firm support and encourage-
ment of the United States. And that Drocesshas been endorsed - and is the
only proccss so io hcendorscd - by lhc Securiiy Council and Cencral Asscmbly
of the UniieJ Naiions and the Gcncral Asscmblyul'ihcOrgiÿniraiionof Anierican
States. In the interest of the successof that process, this Court should decline to
adjudicate Nicaragua's claims.
Nicaragua's response to this second problem of admissibility, would, but for
the seriousness of the issue, approach the ludicrous. It asserts that the Court262 MILITARYAND PARAMILITARYACTIVITIES
muit disrtgürd the probltni bc:;tusc the Lnited Statrr ir ncit d part) I<IC<~ntidora
Nol sincc tlic great Germlin jurist Rudiilph \on Jhcring'i mvthical h;iir.splitting
mach~nt in the hcavcn fa Ire31 thcoreti~.ianshx, hair-~olittine ashic\,ed such
splendid irrelevance(see F. ~ogen, "Transcendental Nonsense andthe Functional
Approach", 35 Columbia L. Rev. 809 (1935)). The United States is not a par-
ticipant in Contadora for the simple reason that it should not be. The Con-
tadora process is the result of the efforts of those Latin American States
who desired to join in a co-operative Latin effort to achieve a regional solution
to the political, economic, social and security problems of Central America. The
United States has offered. and continues to oiïer. the stroneest suooort to the
Contadora process consiitent with its regional Character. ïndeed,'ihe United
States has heen engaged, at the request of the Contadora countries, in hilateral
di~lomatic discussions with Nicararua with a view Io resolvine the outstandine
differences hetween Our two countries in furtherance of the-objectives of the
Contadora process.
Nicaragua does point out correctly that the Contadora process and United
States-Nicaraeuan bilateral neeotiations linked to Contadora have not come to
a halt since its~~~lication hasbeen filed. But again, that fact establishes nothing
about the effect its Application has had on Contadora, what eflècta decision to
deal with this case on the merits would have, and what effect a judgment would
have on Nicaragua's or other Central American States' incentives to continue
Contadora, or on prospects for implementation of the draft Acta. Indeed, Nica-
ragua's argument, in the real world of multiple causes, is the familiar logical
fallacy of posrhocrrgo proprerhoc.
The third reason why the Nicaraguan Application should be declared inadmis-
sible relates Io the duty owed by the Court, as an integral elemcnt of the United
Nations, to the other co-ordinate organs of the Organization, in particular, the
~ ~ ~ ~v,C-~~cil~
As ut havc stcn. Arti~le '12of thc Charrcr csidhlirhcs thc Court as the
"principaljudiciïl orgm of the Cnitcd Nations" and makcs itsStatute "an integral
oart of thc orcscnt Charter". Article 93 1 1i undcr~cores this bv orovidine that
~,= ~ ~
hl ~emher; of the United Nations are &&f<~do parties to the Statute of the
Court. Article 7 of the Charter estahlishes the Court as one of the "principal
organs" of the United Nations. Article I of the Statute of the Court reiterates
that the Court is an "organ of the United Nations". This Court differs in this
respect from the Permanent Courtof International Justice, which existedindepen-
dently of the League of Nations.
TheCharter of the United Nations created an organization made up of several
distinct organs, each with its own particular competence. The proper functioning
of any organic system such as the United Nations, the Organization of American
States or the Organization of African Unity, depends on each of the constituent
organs operating within its respective competence and with due regard for the
designated spheres of action of the others. The Charter provisions goveming the
competence of the Court, already descrihed by Professor Sohn, offer no basis
for a conclusion that the Court should be regarded as an exception to this
general principle. As Professor Rosenne has written:
"lt cannot be douhted that the mutual relations of the principal organs
ought to be based upon a general theory of co-operation between them in
the pursuit of the aims of the Organization.
This approach opens the way to a functional conception of the task of
the Court in its capacity of a principal organ of the United Nations, accord-
ing Io which, subject to overriding considerations of law (including judi- ARGUMENT OF PROFFS'SSOR MOORE 263
cial propriety), the Court must CO-operatein the attainment of the aims
of the Organization and strive to give effect to the decisions of the other
principal organs, and not achieve results which would render them nuga-
tory." (The Law and Praciice of rhe Iniernational Court, 1965, Vol. 1,
pp. 69-70.)
Nicaragua's effort to use the Court in this case would run counter to the
decision already taken by the Security Council and the Organization of American
States in endorsing the Contadora process.
Security Council resolution 530 (1983) singles out the Contadora Group as
the appropriate forum for settlement of Central American regional disputes.
Indeed, the Contadora Group is stressed in three of the fiveoperative paragraphs
of the resolution, and the resolution unequivocally urges "interested States to
CO-opcratefully with the Contadora Group". In his note of 18 October 1983.
the Secretary-General of the United Nations focusesexclusivelyon the Contadora
process in reporting to the Council on peace efforts in Central America pursuant
to this resolution.
The Organization of American States Assembly is also clear, in ils resolution
of 18 November 1983,on "Peace Efforts in Central America". In this resolution
it focuses exclusivelyon the efforts of the Contadora Group and concludes in
paragraph 7 by requesting al1States "to abstain from any act that may . . ham-
Derthe nenotiation efforts the Contadora gr ou^ is makinn-in mutual arr-ement
kith the &ntral American Governments".
Neither the Security Council nor the Organization of American States kas
acknowledged any role for judicial settlement in respect of this dispute. as the
Council did in hoth the Corfu Channeland Diplumaticand Consular Srofcases.
Presumably, if they had thought that a judicial proceeding would contrihute to
the peace effort or that it would not conflict with the Contadora process, they
could casily have said so. Instead, hoth endorsed the Contadora process exclu-
sivelv. as of course comoorts with the neeotiatine realitv in the reeion. Counsel
for ~icara~ua sceks to make much of thefact that neither the sec;rity ciuncil,
the General Assembly, nor the Organization of American States has declared
the Contadora process to be, in so many words, the "exclusive" mechanism for
achieving a regional settlement. But this is a quibble that ignores the entire
context of decisions hy these bodies. There is not a shred of evidence that any
of these bodies considered il even a possibility that this Court might supplant
that nrocess. in whole or in nart.
~ir the court to interfeie with the Contadora process as endorsed by the
Security Council in its resolution 530 of 19 May 1983would threaten implemen-
tation of that body's resolution and would frustrate a decision taken by a
co-ordinate organ acting within its sphere of express competence.
There is also a second way in which an adjudication of Nicaragua's claims
could render nugatory a decision of the Security Council. As demonstrated by
Professor Sohn, the scope and naturc of Nicaragua's claim is identical to the
claim that Nicaragua put before the Security Council a mere fivedays before
instituting proceedings in this Court. Nicaragua admits this. Having been un-
successful in ils attempt to have the Security Council determine, on the basis
of those identical claims, the existence of a "threat 10 the peace, breach of the
peace or act of aggression", Nicaragua is now asking this Court for a judgment
that would he in al1material respects identical to the decision that the Security
Council did not take. The Security Council, in declining to make that deter-
mination, was acting squarely within the competence specifically and deliher-
ately vested in ithy the Charter - nor is that competence changed one whit264 MILITARY AND PA~MILITARY ACTIVITIES
because non-adoption resulted from a failure to obtain the majoriiy required by
Article 27 of the Charter.
Nicaragua's Application can thus hardly be distinguished from an unpre-
cedented appeal to this Court from an adverse consideration in the Security
Council. There is no basis in the Charter for such an extraordinary action;
indeed, as has already been shown, the drafters of the Charter expressly rejected
a proposal that would have permitted review by this Court of Security Council
actions.
Nicaragua relies on a number of decisions of this Court and its predecessor.
A careful examination of those decisions, however, shows that they o&r no
support whatever to the Nicaraguan position in this particular case.
Two of those decisions, Memel and Minority Schools, were cases before the
Permanent Court which. not beine a CO-ordinateorean of a eeneral international
orgliniy<iii<>u,.a>undrr no siimpsrahlc insiiiuiional son<traints >loreo\er. the
jurirdiction of ihc Court war groundcd in eaih iax in paragraph I i)f Ar1ir.l~36
01 ihc Stlituie of that Court: cach involvcd s Swiial Arreement nrovidinc fiir
the referral of certain disputes arising thereunaer to the court,' and fo; the
referral of certain other disputes to the Council of the League of Nations. This
point was of controlling significance to the Court. The Court held in both, not
that it could exercise jurisdiction over a matter under consideration in the
Council, but that the questions before the Court and Council were in fact
diiïerent, hence no issue of conflicting competences arose. Indeed, the Court in
Minoriry Schools suggested that even the agreement of the parties would not be
sufficient to permit the Court to adjudicate "cases in which the dispute which
States might desireto refer to theCourt would fallwithin theexclusivejurisdiction
reserved to some other authority" (JudgmenlNo. 12. 1928. P.C.I.J.. SeriesA,
No. 15, p. 23).
The case on which Nicaragua appears to place the greatest reliance, how-
ever, is that ofUnitedStatesDiplomaricand ConsularSraff in Tehrun.Judgment
(I.C.J. Reports1980, p.3). But that case isirrelevant to the issuebefore this Court.
IZirst,the Court in that case was not called upon to detemine the existence of
an unlawful use of armed force or any other matter reserved to the Security
Council under the Charter. The United States made that absolutely clear in
opening ils oral argument before the Court (I.C.J. P1eodinb.sD. ipbmaiic and
ConsularSiaff in Tehran, p.24) and the Court expressly recognizes that in ils
Judgment (I.C.J. Reports1980, p.44).
Second. the claims of the United States. and the iurisdiction of the Court.
uerc gro~nded in certain bilateral and multilliisral tr&iiicr Io u,hsh thc Ilnitcd
States and Iran werc boih pîriy. In riihrr word~, a, in .\tr,nirand .\tmi>rirj
Srho~~lv t,c sublcït-rnattcr bcfore ihs Cuuri wis kliirs ihe Court hy viriuc of
the prior agreement of the parties. No question of the scope of the Court's
jurisdiction under Article36 (2) of its Statute was presented.
Third, and also as in Memel and Minority Schools, the questions hefore the
Court and the Security Council in the Diplornaticand ConsularSluff case were
entirely separate and distinct. The Court was called upon to decide whether Iran
was in breach of its obligations under certain international agreements in so far
as the treatment of diplomatic and consular personnel was concerned; the
Security Council had before it the question of a threat to the maintenance of
international peace and security. The question before the Court in Diplomaric
and ConsularSiaff was entirely separable from the larger political controversy
clairned to exist by Iran; in this case the matier sought to be brought before
the Court is identical to, and CO-extensivewith, Nicaragua's claims before the
Security Council.266 MII.ITARY AND PARAMI1,ITARYACTlVlTlES
remedies effectuating al1of the applicable legal rights of concerned States can be
formulated and implemented.
The auestion of whether this or anv international tribunal is an aoorooriate
forum for resolution of complex war-peace issues is not a new issue. Scholars
dedicated to thenile of lawhave long discussedthe issueand have overwhelminaly
concluded that such adjudication ;s inappropriate and could harm efforts-at
peaceful solution and erode the rule of law and the institution of the Court. My
former colleague on the Faculty of Law at the University of Virginia, Hardy
Dillard, while a Judge of this Court, recognized these inherent limitations of the
judicial process. He wrote:
"there are many controversies that have a legal component yet do not lend
themselves to adjudication. Litigation represents only the war side of law,
and to exaggerate its role may have a chilling eiïect on the effort to use law
more effectively" ("The World Court: Retlections of a Professor Turned
Judge", 27 Amer. Univ. L. Rev 205, 231 (1978)).
Professor Chayes has also recognized the inherent limitations of the judicial
process, as my colleague Professor Sohn has pointed out.
It is essential to hear in mind that Nicaragua is rcquesting that the Court
determine, in the very midst of hostilities, the lawfulness of the alleged use of
force. This Court has never hefore been called upon to play such a role, for
which this or any other judicial body is inherently unsuited. As Professor Sohn
kas demonstrated, the architects of the Charter wcre mindful of the experience
of the League of Nations and reflected deeply over the question of what
mechanisms were necessary for the maintenance of international peace and
security. They deliberately chose to vest sole responsibility for dealingith such
mattcrs in the oolitical oreans. in oarticular the Securitv Council and reeional
arrangements acting unde;~ha~te;~lll of the Charter. it never occurredÏo the
drafters of the Charter that the iudicial function was capable of dealing with
circumstances of on-eoine armei hostilities. It is indeed odd that. six décades
anrr thc citabli\hment oia prmancni international ;ourt 2nd it>urdecades iirirr
the institution of the Chartcr ,).sicni for the maintrnance of internaiional paie
and security, it is for the first lime asserted that the Court has possessed such a
caoabili~, ~l1alon".
The judicial process is inherently incapable of addressing circumstances of
active hostilities for the reason that the intense fluidity and extreme nature of
such circumstances would inevitablyprevent a court from performing its assigned
role as a "finder of fact" and "discoverer ofthe truth".
First and foremost, the function of a court is to evaluate competing legal
claims hy means of the application of principles of law to facts that are hoth
provable through the technical and formal procedures and evidentiary standards
essential to proofs at law, and that are in fact proved by those means. But the
conditions that prevail during armed conflict are antithetical to the effective
performance of that function.
None of the parties engaged in armed hostilities can be expected to make
availablc in judicial proccedings potentially probative information that it deter-
mines it must strictly control for reasons of ciïcctive defence, even if the
production of that evidence would be crucial to the establishment of its legal
case. It cannot reasonably be expected that a State, acting in the exercise of its
inherent right of individual or collective self-defence under Article 51 of the
Charter. would alwavs be free to disclose information that it mav oossess
concerning the nature: disposition and activities of the armed forces oftte State
with respect to which it is exercisingthat inherent right. In such settings there is ARGUME~ OF PROFESSOR MOORE 267
obviously a potential of some such information to be used by the adversary to
obtain advantage during hostilities. Such would be a cruel price for a State to
have to pay to safeguard its legal rights.
It is likewise in the nature of such exigent circumstances that a State claiming
to be the victim of an unlawful attack, such as Nicaragua in this case, cannot be
presumed to be prepared to disclose to the Court secret information that would
belie ils legal claims. Certainly Nicaragua would have no incentive to do so, nor
could such disclosure be compelled by the processes of this Court.
Yet a further complication is presented here. The alleged acts upon which
Nicaragua bases ils claims are asserted to have taken place, and to be taking
place, in Nicaraguan territory or the territory of third States which Nicaragua
has failed to bring before the Court, in particular Honduras. At the same lime
Nicaragua denies that it has used, and is using, its territory in order to launch
activities directed against the territorial integrity and political independence of
neiehbourine -tates. Moreover. unlike the United States. a State with a long -
and dccpl)-iclt consti~utii~nïliradiiiun of unlcitcrcd ircrdi>m iiithe press and
public inquir). Sic~r3gu;i ilricily conlriils and cur1;iilslhc Nicaraguan prcsl and
oihcruire curii111a ~nd CJIII~O~S the rluhllc di~scminlil~onof inli,rmation concern-
ine its activities and events hannenine in Nicaragua eenerallv. To the extent.
thirefore, that the factual allegaiions if either F?a;tycgn only'be supported b;
publicly available evidence, the United States would be greatly disadvantaged.
Ïndeed: Nicaranua's concentration on nrovidina this Couri with American news-
paper accounts both illustrates this Point and shows the amorphous nature
of the alleged proofs inevitably required to be relied on if this case were to be
found admissible.
To~this~it mav he answ-re~ ~ ~~~the Court could take these fact~~into account
in evaluating the probative value of any evidence Nicaragua may seek to adduce.
As the Court observed in its Judgment-in the Corfu Cliunnel case when faced
with a lesser predicament :
"the fact of this exclusiveterritorial control exercised by a State within its
frontiers has a bearing upon the methods of proof available to establish
the knowledge of that State as to such events. By redS0n of this exclusive
control, the other State, the victim of a breach of international law, is often
unable to furnish direct proof of facts giving rise to responsibility. Such a
Statc should be allowed a more liberal recourse 10 inferences of fact and
circumstantial evidence." (Corfu Channel.Merirs, Judgmenr,1.C J. Reporrs
1949, p.4, at p. 18.)
But the question is not so much what test may be applied to evaluate competing
evidentiary claims, but whether any test at al1can be suficiently reliable in a
circumstance of on-going hostilities to afford the Court an adequate factual
ground upon which 10 reach a 'yudicial conclusion", to recall the phrase used
bv the Permanent Court in the EusrernCureliu case. It mus1be remembered that
6rfu Channel was a much diferent case from that sought to be brought before
the Court by Nicaragua. The Court in that case was no1 faced with the problem
of securinr ividencei and determininn its ~robative value. in the verv midst of
the occurr&ces that gave rise to the British claims. Those occurrenceswere long
over and done by the time the matter came before the Court: eight months,
more or Iess,before the institution of proceedings and more than two and a half
years before the Court reached Judgment on the merits. Indeed, as pointed out
in paragraphs 481 to 484 of the United States Counter-Memorial (II), the fact
that the Corfu Channel incident lay in the past was instrumental in leading the
Security Council to the conclusion that the matter was appropriate for the Court268 MILITARYAND PARAMILITARYACTIVITIE~
to resolve, rather than for the machinery vested hy the Charter with responsibility
for the maintenance of international peace and security.
Armed conAictof the sort alleeed-in the Nicaraeuan-Aoolica..on is inherentlv
a situation of great Aux.The determination of what may, or may not, be takini
place at a given moment is invariahly a matter of immense diRculty even for
those who, "nlike the Court, would "ot he constrained by the narrowly limited
means availahle to a court of law. Newspaper accounts alone cannot he enough
to sustain charges of such exceptional gravity against a State: eyewitnessaccounts
to armed hostilities are frequently coloured by subjective factors that render
them of little orobative value reeardless of the eood faith of the d~o~r~nt~ ~he~ ~ ~ ~ ~ ~
problems which exist in conneccon with any aked conflict are even more acute
in situations as those allened hv Nicaranua where the alleaed militarv activities
complained of are those if insÜrgent having their iwn motivations and
beyond the control of any State.
A legal judgment concerning the lawfulness of an amed conflict would only
be as jus1 as ils factual predicate. In a situation of constant change, however,
no such factual predicate would he of any value except, perhaps, for a discrete
moment in lime "frozen" hy the Court on the basis of the evidencethen availahle
to it. But this would bea distortion of the judicial function to no real purpose:
the res judicui effect of any judgment under such circumstances would be
negligible. Counsel for Nicaragua argues, however, that a judgment would serve
a salutory eiTectby serving to guide the future conduct of the parties. But in
circumstances of on-going armed coniiict, where the graves1of interests may be
at stake, it is more likely that a party in whose favour judgment is rendered
would take advantage of that judgment for ils own purposes, political, military
or otherwise. Thus a finding of legal "fault" may well prolong the conflict to
which it relates bv hardenine the oositions of the oarties. We aeree that the
Court should noi ;rilinarily be cokerned ovçr ihe lierm m oaftïs judgmenis
We wbmit. ho\ve\,çr, ihat the compclling gr;tvily oi on.going armeil cunflici and
the reuuiremeni in Article 51 of ihc Charirr. hinilinc on this Coiiri. th;it nothinr
in the 'Charter shall impair the inherent right of inzvidual or collective defenc;
necessitate an exception to that general principle.
Similarly, the Court is without the capacity and resources to ensure effective
implementation of a judgment of the sort prayed for hy Nicaragua under the
conditions alleged to exist in the Nicaraguan Application. A mere declaratory
judgment that had no practical consequences would hardly add to the prestigc
of international law generally or the role of international judicial settlement in
particular. Judgments of this Court must not only be binding as a matter of law:
they mus1be capable of achieving their intended purposes.
We submit that mere fomal reliance on the obligations of the parties under
Article 94 (1) of the Charter and Article 59 of the Statute to carry out the
judgments of the Court is inadequate to the extraordinary conditions presented
by on-goingarmed hostilities. Asthe Court acknowledged in its Judgment in the
Haya delu Torre case in 1951,the rendering of practical guidance to the parties
with respect to the implementation of a judgment, particularly where choices
mus1 be made from among a variety of possible courses of action, lies outside
the proper scope of its judicial function (ICJ Reports 1951, p. 71, at p. 79).
But it is exactlv such oractical euidance and control that is cruci~l to~the~s-~~~~-~
of any third-party effort aimedit the termination of armed hostilities. TheCourt
has an inhercnt prohlem of scope and temporal duration of any order. The
slinhtest error in iüdment. reeardless of the eood faith in which it mav be made.
cai be fraught wjth Consequencesof the utm&t gravity. One need oniy considef
the experience of the various United Nations peacekeeping operations over the ARGUMENT OF PROFESOR MOORE 269
years to appreciate the magnitude of the difficulties involved. It is in part for
these reasons that the Charter confides such matters to the political organs, in
particular the Security Council, rather than the Court. The Court is simply
unable to command and direct the resources necessary to the task, or to enlist
the CO-operationand assistance of third States.
It must also be recalled in this connection that any judgment of the Court
would have no consequences for the conduct of groups indigenous to Nicaragua
that have their own motivations and that are heyond the control of any party
hefore the Court. Nicaragua, by attempting Io characterize the alleged conflict
as arisine solelv hetween Nicaraeua and the United States is seekine - ~ ~~ ~ ~ ~-~ ~ ~ ~
the COU; as 1; the actual natureof ils intemal diiïïculties and their amenahility
Io settlement by a judgment of the Court directed at the United States. This is
consistent with the ~ofitical ohiectives that have motivated Nicaraeuan conduct
throughoui ihi\ c.~%cin , cluding ils unsremly puhlicity Cdmpdignihat aciiimp3nicJ
the ~nstitiitionof pro:cedings ~nd iii preportcrous claim niade bcfore ihc United
Kations Gener~l As,cinbl) on ? October. thcil the United Staies rilanned IO
invade Nicaragua yesterday - a day coinciding with the beginning ofthe United
States oral argument hefore this Court.
Nicaragua is asking, in short, for something that this Court is simply not in a
position to give. Nicaragua is asking that the Court exceed the limits ofjudicial
propriety in a manner that could only jeopardize the prestige of the Court and
of international adjudication in general. Nicaragua mus1 not be permitted to
abuse the process of this Court in that fashion.
There is yet another problem with judicial adjudication of the Nicaraguan
claims concerning on-going hostilities. As we have seen Article 92 of the Charter
makes the Statute of the Court, and thus its functioning, an integral part of the
Charter. Article 51 of that same Charter, included in the Charter at the request
of the Latin American States, makes clear that nothing in the Charter may
impair the inherent right of individual and collective defence.Yet an inadvertent
error in assessing on-going hostilities or in fashioning reliefcould severelyimpair
that right. The great prestige of this Court would inevitdbly be engaged on one
side or another of the continuing hostilities. Similarly, conditions may change or
new Fdctscome to light following the Court's decision, and reassessment of the
Court's Judgment may, therefore, he required. The time necessary for rehearing
and relief could result in suhstantial impairment of the right of defence, at least
in terms of the suhstantial political benefit Io one Party of the initial judicial
determination.
The Court. of course. need not conclude that there are no circumstance~~~-~~~~~- ~ ~ ~
which the existence of on-going hostilities would no1 bar adjudication in order
to find a bar Io such adjudication in this case. If the Security Council called for
adiudiçation rather than an cstablished reeional oeace orocess. if the riehts of
abSent SVdteswere no1 squarely at issue, irfacts bere siipulated, if an Gective
remedy were possible, and if the adjudication did not involve selective focus on
core issuesof interest to one party in a major on-going conflict, ihen adjudication
might be desewing of more serious consideration if competence and jurisdic-
tion would permit. Nicaragua's Application presents the reverse ofeach of these
conditions.
Nor have counsel for Nicaragua provided any real answers to these inherent
limitations of the judicial process. They have pointed out that eight nations out
of 46 accepting the jurisdiction of the Court under the Optional Clause have
some kind of resewation excludine adiudication of hostilities - four auite minor
- and they have argued that thiidekonstrates by negative implicatibn that the
Court mdy adjudicate on-going hostilities. To the contrary, il is equally plausible270 MlLITAF3 AND PARAMILITARYACTIVITIES
that these reservations were made out of an abundance of caution and indeed,
that they reflecta common expectation that judicial action would be impermissihle
iust as the domestic iurisdiction reservation reflects the traditional international
iaw rule excluding matters within a State's domestic jurisdiction. In fact, the
parallel to the domestic jurisdiction reservation is striking, with 19 nations out
of 46 accepting the jurisdiction of the Court having some kind of domestic
jurisdiction limitation. It would be nonsense to argue that this pattern proves -
or even suggests - that the Court has jurisdiction extending to the domestic
matters of Statesnot having such a reservation. Most importantly, however, this
common reservation to the jurisdiction of the Court is simply irrelevant when
the issue is, as it is here, admissibility and not jurisdiction.
Counsel for Nicaragua also makes an eloquent plea that il is essential in pro-
moting the rule of law for this Court to deal with on-going hostilities, and par-
ticularly to review the actions of permanent members of the Security Council.
But following the withdrawal of France only two of fivepermanent members of
the Security Council are now parties to the compulsory jurisdiction of this Court
and indeed onlv 46 States out of 159 Members of the United Nations have
aczepted sush s<irnpulsiir).jurisdiction. Thus ihis argument sccms more hyperbole
ihm reality. hlore irnp<irirntly,the grcater risk io ihs rulc ol'lau and sommunity
~olicies ai stake in this case relaies to the fundamental constituent ~olicies
;nderlying admissibility, competence, jurisdiction and non-impairment'of the
right of defence.
Finally, counsel for Nicaragua argues that there are no factual difficulties in
adiudicatine on-eoine hostilities because the Court can serve notice on oersons
ot6er than agents, cknsel and advocates pursuant to Article 44 of the Statute.
That is a frai1reed indeed. Ambassador Rosenne writes of this Article:
"[Llittle experience has been gained of the working of this provision, and
the view is held that it is of little value in the absence of local legislation
which may be required to authorize such action." (The Law and Procticeof
theInternaiionalCourr, Vol. II, pp. 576-577(1965)).
Certainly this is not a serious answer to the myriad of difficulties likely to be
encountered in eîTortsat fact appraisal during on-going hostilities, and particu-
larlv when third States whose leeal interests form the verv.subie.t-matter of this
clic arc not prcicnt bcforc the Couri.
Hccÿureoi thcsc sc\.crcand inhcrïnt Iimitation~on dcÿling uiih ongoing ho<-
tiliiics in ihc circum~tances rurroundine-this iiisc. thc Nicarac-an A~~lication
should be dismissed.
Conclusion
Mr. President, if 1may summarize:
The Application is inadmissible because Nicaragua has failed to hring before
the Court third States of the region whose legal rights and obligations are
squarely and nccessarily challenged by the Application and whose presence and
participation is required for fair adjudication of Nicaragua's core legal and
factual allegations against the United States. There can simply be no doubt that
the legal interests of these third States form the very subject-matter of the adju-
dication before this Court. Indeed, United States legal rights against Nicara-
guan allegations are in whole or in part derivative from the rights of these absent
third States.
The Application is inadmissible because it would materially interfere with the
process of regional negotiations to end the conflict in Central America, a process ARGUMENT OP PRObXSSORMOORE 271
that has now advanced to a draft treaty phase. The Application is inherently
incompatible with the Contadora process, which has heen recognized hy the
Security Council and hy the Organization of American States as the proper
mechanism for the resolution of the interrelated prohlems of Central America.
The Application is inadmissible because its adjudication would necessarily
interfere with decisions alreadv taken as well as future freedom of action of the
Security Council and regionalarrangements under Chapter VI11of the Charter.
The Application is inadmissible hecause ils request for selective adjudication
of core igues in an on-going armed conflict would necessarily involvethe Court
in matters falling outside the proper scope of the judicial function and with
which judicial process is simply unequipped to deal, hoth with respect to the
discovery of truth and the fashioning of an effectivejudgment. Moreover, any
inadvertent error in overall fact assessment or fashioning of relief would pose a
severe risk of impairing the inherent right of individual and collective defence
and of impairing on-going efforts at peaceful settlement of al1 the security,
economic, human rights, and other political prohlems of the region. Nicaragua
is asking the Court to engage itself in a matter that could only endanger respect
for the Court as a judicial body.
Each of the foregoing grounds, as well as the additional grounds discussed in
the United States Counter-Memorial. is in and of itself sufficient to warrant
dismissal of the Nicaraguan Application. It should be emphasized that none of
these grounds is dependent on factual deteminations to be made at a merits
stage and al1are presented on the face of the Nicaraguan Application.
In a hroader sense this Court should remernber that the issue is one of
strengthening the rule of law among nations and this Court as an indispensable
part of that rule of law. The rule of law, however, is more than simply the
availability of third-party dispute settlement mechanisms. It is also the actions
of nations in upholding their Charter and regional obligations on non-use of
force and protection of human rights, and their willingness to take collective
action to uphold the Charter. It is, as well,the actions of nations and institutions
in upholding that allocation of organic responsibilities provided by international
law. And il is a commitment to effective and scrupulously fair judicial process
in which decisions are not taken that conflict with real world hopes for lasting
peace, the actions of political organs seized of a search for peace and human
nghts, the sovereign nghts of absent third States, or realistic conditions for fact
appraisal and judicial resolution.
In conclusion, MI. President and Members of the Court, 1respectfully suhmit
that for each of four seDarate and indeoendent reasons rooted in fundamental
community policiesaboit the mle of law'and the role and integrity of thejudicial
process, the Application of Nicaragua is, on its face, inadmissible. Thank you
for your courtesy and for your further consideration.
Mr. President, with the permission of the Court, I will now defer to the Agent
of the United States, who will sum up for the United States. STATEMENT BYMR. ROBINSON
AGENT FOR THE GOVERNMENT OF THE UNITED STATESOF AMERlCA
Mr. ROBINSON: Mr. President and distinguished Members of the Court:
the United States would liketo correct for the record an inadvertent misstatement
at page 173, supra.We know from Judge Hudson's collected papers thdt at some
point he did receivethe 1942letter of Mr. Giraud, which is included as Annex 25
to the United States Counter-Memorial (II). Judge Hudson quoted from that
letter in his opinion of December 1955, whichis Annex 37 Io the United States
Counter-Memonal (II).
In its oral argument these last Iwo days. the United States has demonstrated,
for each of fivedifferent reasons. that this Court does not have iurisdiction over
Nicardgw's ~l:iims,and ihal Nlcarapud'5Applicdlion ~r ~n:idi~ii~sihe.he Ilniied
Sidio has crdmincd CJC~ 01'thcsc drgumcni, and Nicdrrlpua'swriticn dnd oral
resptinses in detail. The Içnrih of the Cnited Sta1r.<>rd1prcwniatiiin i\attrihu-
table to the com~lexitiesand inconsistencies of ~icaraeua-s argum-nts.~to~.h~ ~ ~
newwritten and oral material introduced by Nicaragua in last week'sproceedings
and to the need to demonstrate the irrelevanceand indccuracyof the Nicaranuan
arguments. -
MF.President and distinguished Members of the Court, you have now heard
our oral argument. It is fair to Saythat the United States has left no stone un-
turned - and the United States respectfully submits that under every stone is
written, in an indelible hand, the sdme message: "no jurisdiction" and "inad-
missible".
The Unitcd States, in conclusion, makes the following submission in keeping
with Article 60, paragraph 2, of the Rules of Court:
May it please the Court, on behalf of the United States of Americd, ta adjudge
and declare, for each and al1of the reasons presented in these oral proceedings
and in the United States Counter-Memonal of 17 August 1984,that the claims
set forth in Nicaragua's Application of 9 April 1984, (1) are not within the
jurisdiction of the Court and (2) are inadmissible.
Thank you, Mr. President and distinguished Members of the Court for your
patience and your attention.
The Court rose ai 6.05p.m. FOURTEENTH PUBLIC SITTING (17 X 84.10 am.)
Present: [See sitting of 8 84.1
STATEMENTBYMR. ARGÜELLO GOMEZ
AGENT FOR THE GOVERNMENTOF NICARAGUA
Mr. ARGÜELLO GOMEZ: Mr. President, Members of the Court, WC have
requested a little more of your time in order to reply fundamentally to what we
consider to be in eiïect the first formulation of the United States argument based
on the so-called Vandenberg reservation. But for the late hour we would have
taken care of this yesterday. Mr. Reichler will address this point and aftenvards
1will request some more of the Court's time 10set the record straight on certain
other points. 1ask the Court to recognize MI. Reichler. ARGUMENTOF MR. REICHLER
COUNSELFOR THE GOVERNMENT OF NICARAGUA
Mr. REICHLER: Mr. President, Members of the Court, may it please the
Court. As the Agent of Nicaragua has said, the United States devoted a
considerable amount of attention in its oral pleadings to the Vandenherg
Amendment. Some new arguments were made that were not included in the
United States Counter-Memorial. My purpose this morning is not to repeat what
we have already said about the Vandenberg Amendment but to address these
new arguments, advanced for the first time in the oral pleadings of the
United States.
.Io bcgin. Nicaragua conicnds ihat the Vandcnbcrg Amendmcnt is iuprrfluous.
thai II is rrdundant, hecause II.;a)%no more than what iralrcady ioniaincd in
Ariiile 36 (2) of ihc Sisiutc <ifthe Court. II nciihcr adds in nor deir3sis Iïroni
the United States declaration of 1946.And in any case it would haveapplication
only to Nicaragua's treaty-hased claims and not to its claims under general
international law.
The Court has alreadv heard the basis for Nicaragua's contention: that the
texi of the Vandenherg Amendmcnt i.: confustng, ncccssiiating rcsort IO the
rruvutir prbpiirur<,ircor Icgislativchiiiory, to detcrniinr. itr propcr inçaning. and
th31Ihc ~roi.rluprrp~~rorodre fullydemonsirate that the Amcndmcni isrcdundani
and that it was "nderstood prec&elyas such when it was enacted.
Nicaragua has not heard anything from the United States to create douht that
ihis is the correct interpretation of the Vandenherg Amendment, and Nicaragua
stands bv it. But Nicaraeua wishes to offer its observations on the United States
arguntc& prcscnicd on honJay and TucsJay uf this ucek. The I:niicil St3ir.i
ha$ argued rhat the VanJcnbcrg Amcndmr.ni mur1 mçan somcthing. th31 it is
im~lausiblc ilial the drariers intendcd iiIO havr no mcanini! -,haici,cr. and ihat
consequently it cannot simply he treated as a nullity.
Nicaragua agrees. We do not argue that the Vandenherg Amendment has no
meaning, that it was intended to be meaningless or that it should be treated as
a nullitv. Nicaraeua's oosition ismerelv that when the meanine of the Vandenhere
Anicndmeni icpropcrl) unJer\t<iud. u hich ian onl) hr.accomplished by siudying
the Icgisl;iti\c hibtoryitiiirns o~t to bc rcd~ndant hccaiisc iis inipaci i\.ilrraJy
encompassed within Article 36 (2).
The United States areues that the Court cannot internret the Vandcnhere ~ ~ ~ ~
Amendment in a way that would render it superfluous bécausethat would be
contrary to Articles 31 and 32 of the Vienna Convention on the Law of Treaties
and thecanons of treatv construction reflectedtherein. The United States oosition
as c~prcjscd by \Ir Norton is ihat the I.aw oCTrcaiirs guverns the c<in,iruction
ofdcclar~tionç ~ndcr Ariiclc 36 (2) and ihat the canun, ulconsiruiiiun require
that al1the words of such declarations he given meaning and prevent them from
being treated as superfluous. It will not escape the Court's attention that the
United States position in this regard, as expressed by Mr. Norton, is contrary to
the United States position as expressed by Professor MacDougal. Professor
MacDoueal. the Court will recall. areued that declarations under Article 36 (21 . .
arc no1 treatics. and arc no1governeclb) the Law ~ITrcatics.
Nicaragua's posiiion on the appliiability gcnerally of the Lau of l'rcatics to
declaratiun\ under Article 36 (2) hai hccn Jiscusscd by Pri)fc\ior Hrownlicand ARGUMENT OF MR. REICHLER 275
1 will not repeat it here. But it is important for present purposes to point out
that declarations under Article 36 (2) differ from treaties in one important
respect: declarations are drafted unilaterally ; treaties, whether hilateral or multi-
lateral, are not. Treaties result from a process of negotiation. The specific lan-
guage chosen is the product of agreement between two or more States. There is
reason, therefore, to attrihute meaning to each and eveq phrase.
Declarations do not carry the same presumption. They are drafted unilaterally,
and we know that they frequently include provisions that are redundant or
superfluous - in deference to national concerns or to an ahundance of caution.
Thus, in interpreting declarations, the Court does no1apply the same canons of
constmction as it would to a treatv text. In ~articular. the Court does not shrink
from holding a pdrticular provisiin in a declaration to be supetiïuous when this
is consistent with the intention of the declarant State as reflected in the travaux
préparatoires,
This, in fact, isthe teaching of the Court's Judgment on Preliminary Objections
in the Anglo-Iranian Oil Co. case. The decision of the Court in tbat case is
directly relevant here. The Court will recall that the construction of the lranian
declaration under Article 36 (2) was at issue. The United Kinrdom arrued that
Iran's interpretation of its owndeclaration could not he acceGtedby the Court
because such an interpretation would have rendered part of the declaration
superfluous. This is what the Court said:
"The Government of the United Kingdom kas further argued that the
Declaration would contdin some superfluous words if it is interpreted as
contended by Iran. It asserts that a legal text should he interpreted in such
a way that a reason and a meaning can be attributed to everyword in the text.
It may he said that this principle should in general he applied when
interpreting the text of a treaty. But the text of the Iranian Declaration is
not a treaty text resulting from negotiations hetween two or more States. It
is the result of unilateral drafting hy the Government ofIran, which appears
to have shown a ~articular deeree-of caution when draftine the tuxt of the
Declaration. It appears to have inserted, ex abundanti cautelu, words which,
strictly speaking, mdy seem to have heen superfluous." (I.C.J. Reports 1952,
p. 105.)
The Court reached this determination hy examining the intention of the
declarant State. as reflected in the travaux ~,,oaratoi~ ~~ - in th~ ~ ~~~-~ ~ ~ ~ ~
actions of the iranian Majlis, leading up to the ratification of the Declaration.
The Court explicitly rejected the contention of the United Kingdom that it could
not examinethe actions of the lranian legislature to determine the intention
hehind the declaration. The Court said that such legislative actions could be
taken into consideration for the purpose of "throwing light on a disputed
question of fact, namely, the intention of the Government of Iran at the time
when it signed the Declaration" (ibid.,p. 107).
Likewise, Nicaragua has examined the legislative history of the Vandenberg
Amendment to throw light on the intention of the United States Senate at the
time it enacted the Amendment. 1willnot repeat that examination of the Senate's
intention. But it is appropriate to remind the Court of Senator Vandenberg's
own words with which he explained his Amendment in the floor dehate with
Senator Thomas. Senator Vandenberg said, after reading into the record the text
of his Amendment: "As 1understand the Senator from Utah, he agrees with me
that the situation defined in this suggested reservation is the situation which
would exist without the reservation." And Senator Thomas replied: "That is
true." (Nicaragua's Exhibit F, p. 317, infra).276 MILITARYAND PARAMILITARYACTIVITIES
Last Tuesday, when 1first read these words in this Court, I pointed out that
the United States Counter-Memorial completely omitted them, and completely
omitted any reference to the floor debate in the Senate on the Vandenberg
Amendment. I said, at that lime, that Senator Vandenberg'swords and the floor
debate were conspicuous by their absence from the United States Counter-
Memorial.
1waited for Mr. Norton to discuss Senator Vandenherg's comments, curious
to hear how he would attempt to explain them. 1 waited in vain. He made no
mention of Senator Vandenberg'scomments and made no reference at al1to the
Senate floor debate. How much more conspicuous these omissions are now!
It should not be regarded as unusual that the declaration of the United States
under Article 36 (2) includes a reservation that is, and was understood to be,
superfluous. In fact, it is quite common for States to include such surplusage
in their declarations. Fourteen States have adouted reservations excluding from
their acceptancc of compulsory jurisdiction di!puics relating Io maiicrs which,
undrr inirrniiiional Iaw. are çssçniially wiihin ihe domesiic jurisdiction of ihe
declarani Siîic. Thcse resenations (13 of ihrm) are totally.supe.flunus. I'hcy
are pure surplusage.
The Yerirbook includes 12 declarations that specify the types of disputes to
which they apply. These declarations repeat verbatim the list of disputes set forth
at subparagraphs (a) through (d) of Article 36 (2). Again, totally superfluous.
Yesterday, we heard Professor Moore, of the United States team, make the
same point. He said that a number of States have reservations Io their declarations
that are complete redundancies (pp. 269-270, supra). He said that this is not
unusual and that it results [rom "an abundance of caution". He might have
chosen the words "additional safeguards", the words used by the drafters of
the Vandenberg Amendment. In any event, it should cause no surprise, least
of al1 to counsel for the United States, that the Vandenberg Amendment is
another example of a superfluous reservation, enacted from "an abundance of
caution".
The United States contends that there are five other States with reservations
the sameas or similar to the Vandenbere Amendment. and ifthe Court determines
that the Vandenberg Amendment is ~;~erfluous, it &il1in eRect, he making the
same determination with regar. to the reservations of fiveother States. Neither
contention is correct.
In fact, three of the States- India, El Salvador and the Philippines - have
reservations that clearly and expressly preclude jurisdiction in disputes arising
under multilateral treaties unless al1of the parties to the treaty are before the
Court. They are quite different from the United States reservation. The Court's
interpretation of the Vandenberg Amendment in this case could have no bearing
on those three States.
Onlv Pakistan and Malta have reservations similar to the Vandenbera
~mcndmeni. Even thcir resenations uould no1 neccssîrily be aiTecicd by ai
intrrprïtation of ihc Vandcnherg Amendmrni. Thr melining <ifan amhiguiiuh
reservation can onlv be determined bv reference to the intention of the declarant
State. The meanine of Pakistan's or Maita's reservation mav or mav no1 be the
same as the ~and&berg Amendment 11dcpcnd~on the inlention oi~akiiian or
Malia Conbersely, Pakisian's interpretation of ils 0u.n reservaiion in ihe case of
ihr Paki.rraniPrronerr of IVar.rirrd hv counsel fur the L'niiedStaiç\. does not
bear on the proper interpretat~on of théVandenberg Amendment.
The United States argues that Nicaragua is wrong to look at the legislative
history, that the process of interpreting the Amendment hegins and ends with
the text, and that there is a plain meaning apparent from the text. ARGUMENI OF MR. REICHLER 277
Let us examine this areument
The Unitcd States say5'the plain mcaning of the Amendment is thïtIIappl~cs
ticlaims arising undcr a multilatcr~l trcaty uhcrc thcrc arc absent States (partir3
IOthe trcJt,Jthat \rould be "alTccicdhv the drciri<)n"i>ithc Court. Pair enoiirh
But how-does the United States détermine when a State is Io be deemed
"affected hy the decision"? Not from the text of the Amendment. All of a
sudden the "plain meaning" is not so plain. Not in the least. The text gives no
hint as to what is meant by the words "affected hy the decision". What the
rationale" of the Amendment. The "underlying rationale".look to the "underlying
In other words, they do the same thing they criticize Nicaragua for doing.
When they conclude that the tex1 is confusing or ambiguous, they impute
meaning to the Amendment by looking to the intention of those who enacted it.
We don't criticize the United States for doing this. The confusing text of the
Amendment requires it. But the United States should not pretend that its
interpretation is based on the "plain meaning" of the text. It is not. It cannot
be. The meaning is not plain.
There is one enormous difference between the United States attempt to
ascertain the "underlying rationale" of, or intention behind, the Vandenberg
Amendment and Nicaragua's. Nicaragua's interpretation is based on and fully
supported by the rravauxprépararoires, the legislativehistory. The United States
interoretation is not. 1 discussed that historv in detail and showed how it
supported h'iiïragua's interprctation last Tucsday. Hy c<intrïst, counsel for the
Unitcd States, the Court will rciall, barcly mcntioncd the lcgislïtivc history and
completely ignored the floor debate in the Senate.
There is a reason for this studied omission.
The United States so-called "underlying rationale" for the Vandenberg
Amendment is in fact made up out of thin air. It finds no support whatsoever
in the rravaux oréoaraioires. Moreover. even if the United States "underlvine
rationale" truly reflected the intention behind the Vandenberg ~mendmeni -
that is, even if the United States interpretation of the Amendment were correct
- the Amendment, so interpreted,. still would not deprive the Court of
,~ri~ ~ct~on over anv of Nicara-u~ ~ ~ ~ ~~~
Thc United States niys that an "underlling rationale" of the Vandenberg
Anicndmcnt is IOprotcit the \;nitcd States from thc preiudicc that niiaht result
if a suit isbrought against it as a result of a multipariy dispute, whën al1 the
parties to the dispute are not before the Court. Let us take this at face value and
examine il closely.
In what circumstances could the United States be prejudiced if it is sued by
one, but not all, of the parties to a multilateral dispute?
There is only one circumstance. No other is even conceivable. That would
occur where several States, parties to the treaty, had potential claims against the
United States as a result of the same or a similar treaty violation by the United
States. The United States could conceivably be prejudiced if the other States
brought suit seriarim.
In such circumstances the United States clearly would want to defend against
al1the claims in a si-ele suit. If not. and the United States Iost the first case. the
other claimants, or potential claimants, would attempt to obtain the benefits. If
the United States won, however, the other claimants would not he bound hy the
.udement. If the Vandenbere -mendment were intended to orotect the ~nited
States from prejudice as a result of Iitigation in the ahwncc of al1 intereslsd
parties. ihen this is the prcci-c and, indced. the only ionscivable- prcjudice
ilu,asinicnded 10prcvrnt. That is, wherc the abscni partics ha\,c intcruJv~rs~278 MILITARYAND PARAMILITARYACTIVITIES
to the United States, and where their claims are the same as or similar to the
State suing the United States.
Ths da~cumsnt iubmiiicd to the Court on Monda). as Cniicd State,
Supplemcntar) Anncii 20confirms ihat. ~I'anything.the Vsndçnbcrg Amcndmcnt
was undcrstuud as oroiectinr ihc llnited States from suits in muliioariv disoutes
where there were absent parTiesadverse 10 the United States. ~hat dicumént is
a memorandum written by an attorney in the State Department Legal Adviser's
Officein December 1946. It discusses a proposal by New Zealand that the trus-
teeship agreement relating to the United States administration over terntories
formerly mandated to Japan should include a clause vesting this Court with
jurisdiction over al1 disputes arising under the agreement. The writer of the
memorandum recommended that if the jurisdictional clause were included in the
proposed treaty, it should be subject to the same reservations on the part of the
United States as the United States Declaration under Article 36 (Z) ncluding
specificallythe Vandenberg Amendment. The writer said that this would result
in "the requirement that al1parties affected by the decision mus1also be parties
to the case before the Court".
The only purpose served by the Amendment in that context would have been
to prevent the United States from being sued for breach of its obligations under
the agrecment unless al1States asserting that breach, or seeking redress for that
breach by the United States, were parties to the suit. It would have protected
the United States against separate suits by adverse parties with the same or
similar claims.
That, of course, is not this case. The absent States do not have interests
adverse to the United States. They do not have claims or potential claims against
the United States, let alone claims that are similar to those of Nicaragua. There
is therefore no possibility that the United States could be prejudiced by an
adjudication in their absence. Nor have counsel for the United States given any
evidence or made any credible argument that the United States would indeed be
.re,udiced hv an adiudication in the absence of anv o,~er ~ta~e.~ ~
Thu,, sic" if u,e acrepi. Corthe vtkc of argunicnt. the Lniisd SI~ICS interprs-
taiiun of ihc Vandcnhcrg Amcndmr.nt and impute tu thc AmenJment ihs
"undcrlvine rationale" hv~othcsi,cd bs lhc Uniicd Siales. the Amcndment siill
does n; deprive the ~o&t of jurisdictlon in this case.
There is, to corne to the final point of my presentation this morning, one
further "underlying rationale" that the United States imputes to the Vandenberg
Amendment. The United States says that, in part, the Vandenberg Amendment
was intended to protect absent States - that is, States other than thc United
States - from the prejudice that could result from an adjudication in their
absence. This is an untenable or. .sition. There is certainlv nothine iu either
the tc\i or the rruvurr pr4por>ur<iluir~.suggcst suih an inisntiirn on ihc part of
nn)onc cunnecied with ihc concciving. drïfiing or cnaciing ul'lhis Amcndmcnt
The Uniird Siaies ciirs nothing in iuppori of this oro~usition Thcrc is noihinc
that sumorts it. Nor is there ani reasbn to oresume 1 in the total absence O?
factual'ir historical support - ihat the Unked States would have had such an
intention. One can examine the declarations Iisted in the Court's Yeorhooka
long lime before coming to one containing a reservation that was intended to
protect a State other than the declarant State. It was not and is not the practice
of States to do so. There is no reason to presume that the United States, alone,
was preoccupied by a desire 10 protect the rights of unknown third States in
unforeseeable future cases.
But,,once again, for the sake of argument, let us suppose that the meaning
the United States has imputedto the Vandenberg Amendment is correct. Let us ARGUMENTOF MR. REICHLER 279
suppose, for the moment, that the Amendment was intended to protect third
States from prejudice to their interests by an adjudication in their absence.
Even under such a strained and implausible interpretation of the Vandenherg
Amendment, it still would not deprive the Court of jurisdiction over any of
Nicaragua's claimsin this case.
In arguing earlier this week that a decision by the Court in this case would
"affect" Honduras, Costa Rica and El Salvador, the United States for the most
part repeated the arguments in its Counter-Memorial. We responded to these
arguments in our oral presentation last Tuesday, and see no need to do so again.
Let it sufficeto reiterate that Nicaragua does not allege that the United States is
engaged in "concerted action" with any other State. Nicaragua claims that the
United States is fully responsible for the illegal use of force described in its
Application. Nicaragua directs its claims solely against the United States and
Nicaragua seeks relief only from the United States. The Application does not
cal1upon the Court to adjudicate the legal rights or responsihilities of any State
other than Nicaragua and the United States. 1refer 10oral arguments of Tuesday
afternoon, 9 October (pp. 85-86, supra).
The United States did make one new point this week, however, which of
course we did not address last Tuesday. According to the United States:
"Nicaragua's Central American neighbours have also advised the Court
of their specific concern that adjudication of Nicaragua's claims in this
tribunal would affect their interests by undermining the Contadora nego-
tiations now under way." (P. 201, supra.)
The communications these States have sent to the Court fail to establish that
they would be affected by a decision of the Court, even under the United States
interpretation of the Vandenherg Amendment.
In the first place, the Vandenberg Amcndment is included in a legal text. It is
the Court's duty to determine if the interest supposedly affected is well founded
in law. In fact, the so-called interest of these States that would he affected, if
any, is not a legal right or other cognizable legal interest. None of the Stateshas
a right to compel Nicaragua to forego judicial resolution of its claims in favour
of any other forum. Thus, the three States would no1 be affected in any legal
sense by an adjudication of Nicaragua's claims.
Second, at least in the case of Costa Rica and Honduras, the communications
from these States do not ask the Court to refrain from adjudication of this case.
Costa Rica and Honduras communicated with the Court only at the interim
measures phase and only to ask that the Court not issue an order that would
undermine the Contadora process. Costa Rica and Honduras have made no
contact with the Court during the present preliminary objections phase, and
there is no reason to presume that they see any thrcat to the Contadora process
or their interests by an adjudication of this case. Nor would such a view be
su~~ortable. As Nicaragua has alreadv shown. the Contadora Drocess has
a&evcd its most positiv&esults sincethg~ourt's 0rder of 10May. Adjudication
of this case has not, in fact, had any adverse effect on the Contadora process,
nor is it likely to have any adverse effects in the future.
Third, the mere fact that absent States may argue that they would be adversely
affected by a decision of the Court - even if that were the situation here -
would not be binding on this Court. The Vandenberg Amendment has no self-
judging clause. Still less does it make the absent States judges as to whether and
how their own interests would he affected. If il were otherwise, jurisdiction in
any suit against - or even by - the United States under a multilateral treaty280 MlLlTARV AND PARAMlLlTARY ACTlVlTlES
could bc frustr~tcd mcrcly b) inducing an absent Statc pirty Io thc trclrty Io
ilaim ihar iis intcrcsis uould be ad\crscly alTccicdhy a Jccision.
In the final ~nalvsis. the Uniird S!at~.<airrumeni thlri ahsent States would he
aiïected hv a decision in this case reduces itsilf to the contention that the actions
of thc ~iitcd Siatch chargcd in ~içJr~~ua'r Appliçaiion are bcing conductcd
pursuant IO the supposcd right ofsollestiv~ srlf-delenie of El SaI\ad<>r,and thdi
an\. decision bv the Court on the Iawfulncs\ of the Unitcd States cond~ct uould
akct El ~alvador's right of self-defence. We have already pointed out that the
mining of Nicaragua's ports and the canying out of military and paramilitary
activities in and against Nicaragua for the purpose of overthrowing the Nica-
raguan Govemment cannot, under any circumstances, constitute legitimate self-
defence. El Salvador has no right to engage in such conduct, or to have the
United States do so on its behalf, and accordingly, no legitimate interest of El
Salvador could he affected bya decision in this case that would cause the United
States Io terminate ils unlawful activities.
Furthermore, as the United States itself recognizes, the right of self-defence,
whether collective or individual, does not come into existence unless and until
there is an "armed attack". Thus. neither El Salvador nor anv other State has a
right of self-defenceagainst ~icaka~ua, let alone one that would be affected by
a decision in this case, unless it is first estahlished that Nicaragua is enaaged in
an "armed attack" against il. - - -
Yet the United States would have the Court terminate the proceedings now,
before any "armed attack" by Nicaragua has been proven or even properly
allered. Nicararua should not be denied access to this Court on the basis of
nothing more than thc gcncr.ilircd and >cil-scn,ingallegaiions oi' the <.<>unter-
Mernorial. or the rhetiiris of counscl. unsupported hy any ci,idcncc.
The Court simply cannot determine at this phase of the proceedings - on
the present record - that its decision on the merits would affect the right of
self-defence of any other Central Amencan State.
Such a determination would depend. as we said at paraaraphs 265 and 266 of
our Mernorial (1). on plcading5.~upportcJ hy proof.that-i\'ic;iriigud engagcd
in an irmed atiick within the mraning of Article 51 of thc Charter apainrt onc
or more of 11.nïighhours No such plciding or proof is now bclorc the Court.
and indeed it cannot be until the merits phase of this case.
In conclusion. Mr. President and Members of the Court. the Vandenbere -
Amendment intérposesno bar to the jurisdiction of the ~ourt'in this case. As is
clear from the legislativehistory, it was invented out of an abundance of caution
as an additionalÏsaferuard and was not intended to chanee the meanine of the
Cnited Staics dc.lar;iion as it stood uitho.~t the ~mcndmcnt C\cn a.kptinl:
thc Unitcd States ss<crtir>nto the c<>nrrary.and rvcn acccpiing i~r,eu'~nd he
interprctati<>noithe Amcndmcnt ad\oiateti hcrc h! thc Unitcd St;itcs. thc C'oiirt
cannbt find, on the record before it, that any absent State would be "aiïected by
the decision" within the meaning of the Vandenberg Amendment. STATEMENT BYMR. ARGÜELLO GOMEZ
AGENT FOR THE GOW.RNMENT OP NICARAGUA
Mr. ARGÜELLO GOMEZ: Mr. President, Members of the Court.
All the issues in this case have heen amply formulated. There is probahly
nothing to add that would be new for the Court and hence justify taking more
of your time. But before concluding, there are some points on which 1 wish to
set the record straight.
The United Stateshas accusedNicarama o- comine before thisCourt with mis-
representations in
"an unprecedented abuse of the Court hy a party seeking the Court's
assistance, and . . .totally contrary to general principles of international
law, and particularly to any conception of due process" (p. 153,supra).
This is, 1 might say, typical of the kind of exaggerated language the United
States has used throughout this proceeding.
This allered abuse is said to consist in the re~resentations Nicaraeua made in
the firii phà,e of th15ciiscto the e!Te~.tthat ~icara~ua ratilicd in dG courie ihe
Pri)ti~ciioi Signliiure di ihe Permanent Cituri oi Intcrn~iiiinrl Jurtice. Thiiii
~onir~sic~irviihI.ttr'rst;ii:ment.; mad:hv Slicürücu;~in 11sMr'mori~lro the ctTect
that Nicaraeua has never comoleted ratFficationof the old Protocol of Sienature
(pp. 152IT.,suPra). u
Mr. President, Members of the Court, a simple perusal of the proceedings on
interim measures of protection will demonstrate that Nicaragua has not made
any misrepresentations to this Court. The representations Nicaragua made as 10
ratification of the Statute rcferredveryclearlyto the interna1processofratification
that the United States affirmed had not been completed by Nicaragua. 1 refer
the Court to the public sitting held at 4 p.m. on 27 April 1984. In the first
paragraphs of my address at that time to this Court the matter of ratification is
clearly explained. 1said at that time:
"When the Statute of the Court hecame a law of Nicaragua, this fact was
notified to the Secretary of the League of Nations. It was the year 1939:
the start of the Sccond World War. Therc are auiie obvious reasons whv
this ratification may never have reached Geneva at that time, but, in an4
case, this has no bearing on Nicaragua's acceptance." (1,p. 119.)
1 cannot see how the United States could have misunderstood what 1 believe
every Member of this Court understood very clearly.
The fact that Judge Schwebel in his separate opinion of IO May expressed
views on the applicability of Article 36 (5) of the Statute - what the United
States has baptized as the "Memorial theory" - certainly proves that this Court
was not misled as to Nicaragua's having deposited the ratification.
The United States said that in the 45 years since the telegram of November
1939,no Nicaraguan officialhas publicly asserted that Nicaragua was bound to
this Court.
Frankly, the important thing, it seems to me, is that after the listing of
Nicaragua as hound made hy this Court in United Nations publications, pub-
lications of other States, publications of eminent jurists, Nicaragua has never
denied heing hound.282 MILITARY AND PARAMILITARY ACTIVITIES
This "silence" on Nicaragua's part includes the case concerning the Arbitral
Award Made by rheKingofSpain on23 December 1906 in which Nicaragua was
summoned as a respondent to an Application assertingjurisdiction in part based
on Article 36 (2). It is not conceivable that a State which did not consider itself
bound would have let that assertion pass without objection. And 1would add,
MI. President, it is not conceivahle that the Court, faced with the public and
scholarly record of so many years, would have permitted Nicaragua, as a
respondent, to escape jurisdiction if it had tried to do so on the basis of the
footnote we have spent so much the discussing in these proceedings.
The United States has talked a eood deal in these oroceedines-about the three
fundamental principlcs governing the juriidrtion of the Couri: conbcnt. cqu;iliiy
and reciprocity Nic~r~gua'ipniilinn ii based preciselyon thesc pr,nciplcs.
As to conwni - hi~thPartici harc consenicd to the iurisdiciion or the Court
by effectivedeclarations - Nicaragua, by virtue of ~iticle 36 (5); the United
States under Article 36 (2) of the Statute. The United States should be held to
the consent it gave. The Senate Report approving the United States declaration
in 1946said: "The provision for six months' notice of termination . . has the
effect of a renunciation of any intention to withdraw our obligations in the face
ofa thrcatened legal proceeding." This is an exhibit in Our Memorial, Annex II,
(Exhibit D, 1, p. 442 (p. 315)). By well-known principles endorsed by the Court
in the Anylo-IranianOil Co. case, that statement establishes the meaning of the
declaration. The United States should not be permitted to change that meaning
now.
As to equality, Nicaragua brings its case to this Court precisely because it is
the one forum in which both Parties to the dispute appear as true equals. The
United States mus1 no1 be permitted to force the dispute into forums where its
superior power and influence will determine the outcome.
As to reciprocity, Nicaragua asks nothing more than the application of that
principle in its true meaning. Nicaragua accepted the jurisdiction of this Court
unconditionally and without limit of lime. It exposed itself to the risks of liti-
galion on those terms. The United States must not be permitted to deprive it of
the benefit of that exposure hy a strained and novel theory of reciprocity.
In the first statement to the Court in this phase of the case, the Agent of the
United States said :
"International adjudication before this Court can only be an efficacious
means of peaceful dispute resolution if States respect thc authority of the
Court. They will do so only if they can expect the determination of their
rights in accordance with the law." (P. 151,supra.)
On the same theme, the Aaent of the United States said that adiudication of this
carc by ihc Couri wi>ulJ l>e"ui gra!e jignific~nceno1 only fo; the riiuation in
C'cnirdl Amcri:ü but also l'or thc continucd cll'ccii\,encrri~fthe compulsory
iur~rdici~unui the Court undcr the Optiiinal Cliu>e" (p. 150. su,>r<ij
1 may be sensitive, MI. ~resident, but to me th&e words'have a certain
threatening tone. 1 have never before heard it suggested that the Court does not
decide cases before it according to law.
MI. President, Members of the Court. We have sat here for eight sessions
listening to detailed technical arguments and scholarly analysis on the questions
of the Court's jurisdiction and the admissibility of this case. These arguments,
in al1their intricate detail, are both necessary and proper, because the Court in
deciding the case mus1 have the benefit of the fullest possible illumination of
these issues. However, concentration on these details should not be permitted to obscure
the larger dimensions of the question before you for decision.
For four vears the United States has been soonsonn". financin-. o-eaniziue and
directing a campaign of armed action against Nicaragua. That much is admitted
out of its own mouth - in officialdocuments, reports, and speeches spread on
the record in Washington and elsewhere.
For the same four years the United States has exerted al1its elTorts,exercised
al1ils power, to ensure that its actions would not be subject to outside review in
any forum.
In this oroceedine- the United States has said that the nro. . fomm for
Niraragua IS the Sccurity C,iuncil. When Nicaragua uent to the Sccuriiy Cc)uniil.
the United States casi the on.y ne.litlvc vcitcagainsa resolutiun tu rcdrcss thc
situation.
The United States vetoed Security Council action.
The United States has said that Contadora is the appropriate forum for these
issues. Nicaragua has participated faithfully and actively in the Contadora
process, and will continue to do so. But let there be no mistake, Mr. President.
The four Contadora powers produced an Acta and oflered it for signature by
the Central American countries. At first, it appeared that Nicaragua's neighhours
would al1sign the Acta. They had, after all, been fully involved in negotiating it
and had raised no objections to the text. Then Nicaragua announced officially
that it would sign. The United States - which had been sanctimoniously
proclaiming ils support of Contadora - imrnediately denounced Nicaragua's
action as some kind of a trick and put pressure on Nicaragua's neighhours not
to sign.
The United States vetoed Contadora.
Mr. President, this Court is the final forum to which Nicaragua can appeal
for impartialjudgment of its claims, according to law and justice. We have heard
much from the lawyers for the United States about the rule of law. The first
principle of the rule of law is that a party should not bejudge in its own cause.
We have shown in great detail that both Nicaragua and the United States have
suhmitted to thejurisdiction of the Court and that the objections to admissihility
are without substance. The United States now says, however, that this Court of
Justice is not the appropriate forum to hear Nicaragua's claims.
Mr. President, Memhers of the Court. They must not be allowed to veto the
International Court of Justice.
In accordance with Article 65, paragraph 2, of the Rules of Court, 1have the
honour to communicate the following final submissions on behalf of the
Government of Nicaragua.
Maintaining the arguments and submissions contained in the Memorial pre-
sented on 30 June 1984, and also the arguments advanced in the oral hearings
on behalf of Nicaraeua. the Government of Nicaraeua reouests the Court to
declare that jurisdict~on'exists in respect of the ~pplycation'of Nicaragua, filed
on 9 April 1984,and that the subiect-matter of the Application is admissible in
its entirety.
With these short statements Nicaragua closes ils presentation and thanks you,
Mr. President and Memhers of the Court, for your patience.
The Cuurr rose ut 10.50 am. FlFTEENTH PUBLIC SITTING (18 X 84,10 am.)
Presenr: [See sitting of 8 X 84.1
STATEMENT BYMit. ROBINSON
AGENT FOR THE GOVERNMEW OF TH8 UNITED STATESOF AMERICA
MI. ROBINSON: Mr. President, distinguished Memhers of the Court, may it
please the Court.
The United States this morning will brieflyaddress certain of the points raised
by Nicaragua during yesterday's session.The United States Agent will make
several preliminary comments. Then, with the Court's permission, Deputy-Agent
Norton will resoond to Nicaraeua's areuments of vesterdav. concernine the
Multilateral Treky Reservation lo the ~nited States i946 deiaration ac4ting
the compulsory iurisdiction of this Court. The Agent wil- then conclude the
United States Ürisentation.
Our preliminary comments concern first, the Contadora process, second, the
procedural basis for these proceedings, and third, Nicaragua's failure to accept
the com~ulsorv iurisdictio" of this Court,
First,'as regards Contadora, the United States has already explained the
incompatibility of the adjudication of Nicaragua's claims with that process. We
return to the issue only because of statementsmade yesterday by ~icara~ua.
The Contadora process has not been "vetoed". Contadora remains very much
alive, despite the attempt by Nicaragua to "freeze" the process by demanding
that the other Contadora participants accept the 7 September draft Acta "as is".
Al1of those other participants have stated publicly that the draft Acta, though
it is laudable progress, requires further work. The United States would, for
example, invite the Court's attention to Mexican Foreign Minister Sepulveda's
widelyreported statement of 12October 1984in this regard. The four Contadora
States and Nicaragua's four Central American neighbours are unanimous in
their recognition of the need for further improvement in the draft Acta. The
United States notes that this very morning's InrernoiionulHeruld Tribun< reports
that Nicaraeua has refused to attend a meetinp.of Central American foreien
ministers toaiscuss theContadora regional peacetreaty. In short, it is ~icara~ua,
Mr. President, that is the principal obstacle to peace in the region.
Second. as regards the procedural status of this phase of the case. il isnecessarv
to recall that thébasis of the nresent nroceedines'are the Orders o~ ~h~ ~~u~t if
IU and II Viti) 1984.A* the'l:nired ktatei h;i~prei.iou.;l) cnipliari~crl. it irli>r
'Iic;iragua ta cst3blirh th;it thi, Court h:i%juri~<li~iionand thai thr. hiiar~guan
Application 1sadmissible. W: submit thai Nicaragua has heyond iiny doubt nul
Jischarged ils dut). of satisïying ihii Court uith reipci tu either question.
1:urihr.rmorc. the United States uould note that the isurs ol'juriuliction and
admissihility are ready for decision. Contrary to the suggestionmade yesterday
by counsel for Nicaragua, no further facts or proceedings are required for the
Court to dispose of these issues.
Third, the United States believes that ils presentation carlier this week, con-
cerning Nicaragua's failure to accept the compulsory jurisdiction of this Court, STATEMENT BY MR. ROBINSON 285
effectivelyrehutted each of the arguments advanced by Nicaragua on this issue in
ils written and oral pleadings, including those of yesterday. The United States is
content to let the documents and transcripts hefore the Court speak for
themselves.
Mr. President, to sum up this pivotal issue, the record now shows that
Nicaragua never accepted the compulsory jurisdiction of the Permanent Court,
that Article 36 (5) of this Court's Statute does not apply to States that never
hound themselves to accept that jurisdiction of the Permanent Court, and that
Nicaragua has never deposited a declaration under Article 36 (4) of this Court's
Statute, despite the advice of Professor Rousseau to do so.
The United States suhmits in conclusion that Nicaragua has heyond any douht
failed to satisfy its burden of persuasion that it has accepted the compulsory
jurisdiction of this Court. Indeed, the United States has proven the contrary.
This result is a fundamental plea in bar that, as we have argued from the outset
of this case, in and of itself, requires the dismissal of this case.
Mr. President, the United States would respectfully ask that you cal1 upon
Deputy-Agent Norton to address the Court with regard to the United States
multilateral treaty reservation. ARGUMENT OF MR. NORTON
DEPUIY-AGEh OP THE COVERNMENT OP THE UNITED STATESOP AMERlCA
Mr. NORTON: Mr. President, distinguished Members of the Court.
Earlier this week the United States explained that, in accordance with the
plain terms of the Multilateral Treaty Reservation to the United States 1946
declaration, Nicaragua's treaty-based claims are barred. The United States
further explained that Nicaragua's custom-hased claims cannot be heard under
these circumstances.
Yesterday, Nicaragua offered furthe! observations on this point. Nicaragua
continues to argue that the reservation 1sa redundancy. Nicaragua also contends
that there are. in anv event. no other States that would be "aflected by" anv
dcïision ihat may be ;endercd in th!, i;irc. Buih ui'thrsc propu.;iiionz arc
In iir 9 Ociober oral argument. iïiiaragulr. hüsed on highll-sclc~'tivccitaiions
froin the 1imiir.d Icgisl<tiivehi\tor/, c<>ncludcdihat the muliilatcral ircaty
reservation :
"was conceived. intended and enacted to deal with a specificsituation - a
mulri-parrysuii againsrihe UnitedSrarcsrhar includedparties rharhad nor
acceptedrhe Couri'scompulsory jurisdicrbn. Its sole purpose was Io enable
the United States to avoid adjudication in such a case. It was, of course,
supertïuous . . .(P. 93, supra: see also pp. 89-91, supra; emphasis added.)
Nicaragua's position was thus that the reservation was concerned with "multi-
party suits . . .that included parties that had not accepted the Court's compul-
sory jurisdiction". Nicaragua spec~ficollydenied that the reservation was con-
cerned with absent parties. 1 would cal1the Court's attention in this regard to
page 94,supra.
As the United States demonstrated on Tuesdav . ...209. su.ral.however. the
rcscrv'iiionh). ~isplainI<i~tqu<i ~rcunierned tiith ahscnt pariici and i>111;vbscni
p.iriicr Thc nioii not;iblc icdiurc ui' Nicar:igua's oral argumcni )citcrday uüs
ihat Nicaragua made no attempt to reconcile its construction of the rcser-
vation with the plain tex1of the reservation - even after the United States had
demonstrated the manifest inconsistency betweenthe two.
Nicaragua's argument yesterday was concerned not with the plain language of
the reservation - the starting point for the analysis of any legal document -
but with attempts Io explain why the Court should ignore that language. Nica-
ragua does so in order to argue, on the hasis of a single fragment of the legis-
lative history, that the reservation means exactly the opposite of what it says.
Nicaragua relies on statements by two United States Senators on the floor of
the Senate suggesting that they thought the reservation sornehow redundant -
exactly why they thought so remains unclear. It is, in fact, impossible to discern
from the hrief floor debate what Senators Vandenbere and Thomas understood
by the reservation. What isclear, however, isthat theyEould not have understood
the reservation as Nicaragua argues because, as we have proved and Nicaragua
has made no attempt to disprove, Nicaragua's construct~on simply contradicts
the t~ms ~f the reservation itself.
Morc iniportantly. thc br~cftluur Jcbatc ir only a part of thc Icgizlativch~story
Thc rcscn,.itiun uas Jraiicd hy the Sriic I)cparimeni. considercd by the Senaic ARGUMENT OP MR. NORTON 287
Foreign Relations Committee, approved hy the full Senate, and incorporated
into the United States 1946 declaration by the President. Other participants in
this process clearly understood the reservation as a meaningful limitation on the
United States consent to this Court's jurisdiction.
Nicaragua agrees that the Multilateral Treaty Reservation had its origin in
John Foster Dulles's 1946 Memorandum (II, United States Ann. 106). As the
United States explained on Tuesday, Dulles's concerns were directed at absent
parties and only absent parties (pp. 209-210, supra). It is, we suhmit, impossible
to reconcile Dulles's expressed concerns about absent parties with Nicaragua's
interpretation that the reservation is concerned with improper applicant States
coming into a case.
Further, the StateDepartment, which again drafted the reservation, understood
it at the lime as an eflectivelimitation on the United States consent to compulsory
jurisdiction, precluding jurisdiction in the absence of certain States. (United
States Suppl. Ann. 20, p. 367, infra.)All contemporaneous commentators and
al1 subsequent writers agree. No one has ever previously argued that the
reservation is redundant.
The only possible uncertainty on the face of the reservation is with respect to
its breadth, namely whether the presence of al1parties Io a treaty is required or
onlv those oarties affected bv a decision. Nicaraeua takes th~~ one ambieuitv u 2 ~~-
an éxcuset; look hehind thétext to the legislatj;e history; then Nicaragua takes
a small, adniitredly confused, portion of the legislative history unrelafed 10 the
ambiguityin rhe réxt and a wholly different interpretation of the tex1
- an interpretation, moreover, directly at odds with the text. Mr. President,
this is not using travaux préparatoires to illumine an obscure text. It is a
manioularion of the travaux to contradict the text and den" it eflèct.
~hree more verv briefooints should be made in thi~ ~ ~~~~~~F~rst. contra,v to , ~-
the statement yesierday iy counsel for Nicaragua, the United States has never
contended here that declarations under the Optional Clause are aoverned hy the
law of treaties. We invite the Court's attention to the statementÏto the conirary
at page 206, supra.
Second, it is, of course, true that a reservation can he redundant. But the
presumplion, under standard canons of interpretation, is that it is not. Domestic
jurisdiction reservations, anned conflict reservations, and the recitations of
the categories of dispute in Article 36 (2) - these are the examples cited hy
Nicaragua - al1merely repeat matters alteady covered in the Charter or in the
Statute. It is auite another matter to take a reservation meanineful on its face
and to imputc'to itcidirccily coniniJictory and rrdundant mean&? b;iscJ solcly
.in isi>laiedquoiaiions lrurn ilie lc~irlsti\~chi\iory.
I'hcCi)uri'.rdciision in A!itl<i-lr<r,ri<0t11 ('O is noi tu ihe conirxr!. Thcrc.
the Court found a few wordsyn Iran's reservation redundant to the réstof the
reservation. The Court most certainly did not ignore the plain meaning of the
text, much lessgo to Majlis debates to find support for a construction contradic-
tory to that plain meaning.
Third, it is disingenuous for Nicaragua to suggest that other States with mul-
tilateral trcaty reservations would not be affected hy this Court's construction of
the United States reservation. Should the reservations of the other States come
before the Court, the first source to illumine their meaning will he the Court's
ruling here.
Further, as Nicaragua cannot and docs not attempt to deny, Pakistan and
India understood the identical Pakistani reservation no1 as a redundancv but as
;irneaningi'ullimitation on Pxki\tan's ionscni to lurisdiciion I'hcy ditTcrcJoiily
as to whethrr Piikistan's rescrv;iiion rhould be cunrtrucd narrnwly or hrliddly.288 MILITARYAND PARAMILITARYACTIVITIES
Under either construction, of course, Nicaragua's case would have to be dis-
missed.
Having failed to sustain ils contention that the Multilateral Treaty Reservation
is a mere redundancy, Nicaragua yesterday urged a new construction of the
reservation. Nicaragua now urges that the reservation requires only that al1
adverseoarties mus1be before the Court (on. 277-278. suera).The short answer
1sthat this is no! wh31thc resen,ati(inrd);: ihe terms ofihc'reser\ation pr,?vide
that ullpurrh~< thai u,nuld hz affr.ctcdhy3 dciisioii of ihc Court must hr heiure
the Court.
Parenthetically, we would note that Nicaragua has cited United States
Supplemental Annex 20 in support of ils new theory. Why that Annex is cited
is less clear. As we have argued, that document constitutes a contemporaneous
State Deoartment understandine that is consistent with Our oresent areument-
and otlzrs no suppori tu Nicaragua's iheorizs, old or ncw
Thr rernainder (11Nicaragua', conlentions yesterday as~unied. arqzii,tiJo,ihai
the reservation does mean what its plain tex1saYs - that there is nojurisdiction
unless al1treaty parties "affected by" a decision of the Court are also before the
Court. Nicaragua adduced several arguments intended to demonstrate that no
other States would, in fact, be affected by the Court's decision here.
For these purposes, one must take Nicaragua's pleadingsas stated and assume
that the relief sought will be granted. No other approach would be consistent
with the reservation's terms, which refer to parties "affected by the decision".
The relevant circumstances can be brieiiy stated. All of the actions alleged by
Nicaragua as the basis for ils claims are specificallyalleged to be taking place in
Central America, many of them in the territory of third States. As we have
recited atlength, and willnot repeat again here, Nicaragua's pleadings specifically
allege that many of these activities are occurring with the approval of, or in
concert with, other Governments. These Governments - particularly Honduras
and Costa Rica - and others, notably El Salvador, have stated that the case
involves aspects of a multiparty dispute to which they are parties: that it may
affect on-going negotiations; that it implicates their legal rights; that, in short,
they will be affected by any decision of this Court.
Nicaragua, nevertheless, attempts to argue that the other Central American
States will not be affected by a decision in this case. Its allegations in this regard
are either demonstrably untrue or irrelevant.
Nicaragua attempts, for example, to deny that it alleges that Honduras
and Costa Rica are acting in concert with the United States (p. 279, supra).
Mr. President, the United States respectfully requests that the Court read the
Nicaraguan pleadings that we have cited. There is no ambiguity in those plead-
ings. Honduras and Costa Rica are repeatedly named, and Nicaragua repeatedly
allegesthat tbey are acting with the United States in committing allegedlyunlaw-
ful acts.
Moreover, within the first few minutes of these oral proceedings, Nicaragua's
Agent again alleged the complicity of Central American States in the United
States actions, specificallycharging that the United States has "the amies of El
Salvador and Honduras at ils service . . .(p. II, supra).
Nicaragua also attempts to make light of the statements of its neighbours.
Nicaragua alleges, page 279, supra, for example, that Costa Rica and Honduras
expressed concern only about the provisional measures phase ofthe proceedings.
But that allegation is untme. Again, we ask only that the Court read the
documents, specificallythe United States Annexes 102 and 104 (11). Nicaragua
also notes that Honduras and Costa Rica last communicated to the Court in
April and insinuates that they are no longer interested. Mr. President, how many ARGUMENT OF MR. NORTON 289
limes, and with how much specificity, must the other Central American States
express their viewsthat they willbe affecied bya decision in this case? Nicaragua
may, for obvious reasons, wish to turn a deaf ear to their pleas. A court of law
cannot do so.
Nicaragua also attempts to suggest that the other Central American States do
not have "a legal right or other cognizahle interest" in the pending case (p. 279,
supra). What exactly this means, they do not Say.Wewould note that El Salvador
has quite specifically indicated that it does have a legal interest here. The im-
plication, in any event, appears to be that without such a legal nght, the other
States will not be "aiïected by" such a decision of the Court.
But the Multilateral Treaty Reservation does not speak of a "legal right", nor
even, like Article 62 of the Statute, of an interest of a "legal nature". It speaks
only of States "aiïected hy" a decision, and thus contemplates a hroader, hoth
legal and practical, interest. In light of Nicaragua's own pleadings and the
statements of the other Central American States in this regard, the United States
fails to see how Nicaragua can maintain that the other States willnot be affected.
Finallv. Nicaraeua attemots to areue that the ao..icahilitv of the multilateral
treaty r~sirvation;~ ~icara~ua's ~p~lication mus1await a &termination ofthe
merits that Nicaragua is engaged in an "armed attack" on ils neighhours. This
is untrue for at leait two reisons.
First, Nicaragua has iiseljensured that any decision of the Court will aiïect
Honduras and Costa Rica hy naming those States in its pleadings and again in
oral argument last week. Nicaragua has alleged that these States are acting in
complicity with the United States. And Nicaragua has demanded that the United
States he ordered to "cease and desist" from further assistance to those States.
That is the state of the pleadings now. For determining as a jurisdictional matter,
whether under the terms of the Multilateral Treaty Reservation, the other Central
American States would he affcctedby a decision,the Court must take Nicaragua's
claims as Nicaragua has alleged them.
Second, the principal conccrn of the other Central American States is that any
relief in this case,ndeed even the prospect for relief, can disturb the negotiating
balance of the Contadora process. They have explained this seemingly self-
evident concern in their communications to the Court. We have explained it as
well. Only Nicaragua pretends not to understand.
In conclusion, Mr. President, other States will be affected by any decision of
the Court in this case. Under these circumstances, the plain language of the
Multilateral Treatv Reservation bars Nicaraeu-'s treatv-based claims. And. for
al1the relistinrwr prcviou5ly st;iied. the rcservati<>nmust slso haic the ciïcct of
hzirring h's~r.igus'\ Appli:iition iitrrniiret)
1uiiuld ask )ou 10 re.r,gnl,i the Agentoi ihc I.niicJ Si;itcs. SIXTEENTH PUBLIC SITTING (26 XI 84, 10a.m.)
Present: [See sitting of8 X 84.1
READINGOFTHE JUDGMENT
The PRESIDENT:-~he-Cou~ ~ ~-~~ todav to deliver in onen court. in
accordance with Article 58 of the %tute of the Court, ils '~ud~ment'on
iurisdiction of the Court and admissibility of the Application in the case
concernine Militarv and Paramilitarv Activities in und aaa"nsr Nicaranua-
(~icarag; v. unitid Siates of ~merica).
The opening paragraphs of the Judgment, dealing with the procedural history
of the case, will; asi;csstomary, not Be read out.
[The President reads paragraphs 1I to 113 of the Judgment'.]
1 shall now ask the Registrar to read the operdlive clause of the Judgment
in French.
[Le Greffier lit le dispositif en français?]
Judges Nagendra Singh, Ruda, Mosler, Oda, Ago and Sir Robert Jennings
append separate opinions to the Judgment; Judge Schwebel appends a dis-
senting opinion.
In accordance with prdciice, the Judgment has been read today frorn a
duplicated copy of the text, a limited stock of which will be availahe to the
public and the press. The usual printed tert of the Judgrnent will be available in
a few weeks'time.
1declare the present siiting closed.
(Signed) Taslim O. ELIAS,
President.
(Signai) Santiago TORRISBERNAROEZ,
Registrar.
' I.C.J. Reports1984,pp. 397443
' C.I.J. Recueil1984, p442-443.
Plaidoiries sur la compétence et la recevabilité - Procès-verbaux des audiences publiques tenues au Palais de la Paix, à La Haye, du 8 au 18 octobre et le 26 novembre 1984, sous la présidence de M. Elias, Président