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INTERNATION C AO URT OF JUSTICE
Peace Palace, 2517 KJ The Hague. Tel. 92 44 41. Cables: Intercourt. The Hague
Telex 32323
Communiqu4
uno[ficial
for rmmediatsrelsass
/ No.84139 'j*
26 November 1984 i
/;/o A-.; ./. ~e
--------^\l..-*u.-*,*
Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America)
Judment of the Court
The following information is communicated to the press by the Registry
of the International Court of Justice:
In the Judgment delivered today 26 November 1984, the International
Court of Justice finds, by fifteen votes to one, that it has jurisdiction
to entertain the case and unanimously that the Application filed by
Nicaragua against the United States of America is admissible.
The complete text of the operative part of the Judgment, with the
voting figures, is as follows:
"THE COURT,
(1) (-) finds, by eleven votes to five, that it has jurisdiction
to entertain the Application filed by the Republic of Nicaragua on
9 April 1984, on the basis of Article 36, paragraphs 2 and 5, of the
Statute of the Court;
IN FAVOUR : President Elias; Vice-President Sette-Camara;
Judges Lachs, Morozov, Nagendra Singh, Ruda,
El-Khani, de Lacharrière, Mbaye, Bedjaoui;
Judge ad hoc Colliard;
AGAINST : Judges Mosler, Oda, Ago, Schwebel and Sir Robert Jennings;
--) finds, by fourteen votes to two, that it has jurisdiction
to entertain the Application filed by the Republic of Nicaragua on
9 April 1984, insofar as that Application relates to a dispute concerning
the interpretation or application of the Treaty of Friendship, Commerce
and Navigation between the United States of America and the Republic
of Nicaragua signed at Managua on 21 January 1956, on the basis of
Article XXIV of that Treaty; IN FAVOUR: President Elias; Vice-President Sette-Camara;
Judges Lachs, Morozov, Nagendra Singh, Mosler, Oda,
Ano. El-Khani, Sir Robert Jennings, de Lacharrière,
-.
Mbaye, ~edjaoui; Judge ad hoc colliard;
AGAINST : Judges Ruda and Schwebel;
(c) finds, by fifteen votes to one, that it has jurisdiction
--
to entertain the case;
IN FAVOUR : President Elias; Vice-President Sette-Camara;
Judges Lachs, Morozov, Nagendra Singh, Ruda, Mosler,
Oda, Ago, El-Khani, Sir Robert Jennings, de Lacharrière,
Mbaye, Bedjaoui; Judge ad hoc Colliard;
AGAINST : Judge Schwebel;
(2) f inds, unanimously, that the said Application is admissible."
The Court was com~osed as follows: President Elias:
*-
Vice-President Sette-Camara; Judges Lachs, Morozov, Nagendra Singh, Ruda,
Mosler, Oda, Ago, El-Khani, Schwebel, Sir Robert Jennings, de Lacharrière,
Mbaye, Bedjaoui; Judge ad hoc Colliard.
Judges Nagendra Singh, Ruda, Mosler, Oda, Ago and Sir Robert Jennings
appended separate opinions to the Judgment.
Judge Schwebel appended a dissenting opinion to the Judgment.
In these opinions the Judges concerned state and explain the positions
they adopted in regard to certain points dealt with in the Judgment. A
brief summary of these opinions may be found in the annex hereto. I
The printed text of the Judgment and of the opinions will be available
in a few weeks' the. (Orders and enquiries should be addressed to the
Distribution and Sales Section, Office of the United Nations, 1211 Geneva 10;
the Sales Section, United Nations, New York, N.Y. 19916; or any specialized
bookshop.)
An analysis of the Judgment is attached for the use of the Press. It
in no way involves the responsibility of the Court. It cannot be quoted
against the text of the Judgment, of which it does not constitute an
interpretation.
Analvsis ... Analysis of the Judgment
Proceedings and Suhissions of the Parties (paras. 1-11)
After recapitulating the various stages in the proceedings and
setting out the suhissions of the Parties (paras. 1-10), the Court
recalls that the case concerns a dispute between the Government of the
Republic of Nicaragua and the Government of the United States of America
arising out of military and paramilitary activities in Nicaragua and in
the waters off its coasts, responsibility for which is attributed by
Nicaragua to the United States. In the present phase, the case concerns
the Court's jurisdiction to entertain and pronounce upon this dispute, as
well as the admissibility of Nicaragua's Application referring it to the
Court (para. 11).
1. The question of the jurisdiction of the Court to entertain
the dispute (paras. 12-83)
A. The declaration of Nicaragua and Article 36, paragraph 5, of the
Statute of the Court (paras. 12-51)
To found the jurisdiction of the Court, Nicaragua relied on Article
36 of the Statute of t:he Court and the declarations accepting the
compulsory jurisdiction of the Court made by the United States and itself.
The relevant texts and the historical background to Nicaragua's
declaration aras. 12-16)
Article 36, paragraph 2, of the Statute of the International Court
of Justice provides that:
"The States parties to the present Statute may at any time
declare that they recognize as compulsory ipso facto and without
special agreement, in relation to any other State accepting the
same obligation, the jurisdiction of the Court in al1 legal
disputes concerning :
-a) the interpretation of a treaty;
-b) any question of international law;
(c) the existence of any fact which, if established,
-
would constit.ute a breach of an international
obligation;
-d) the nature or. extent of the reparation to be made
for the breach of an international obligation."
On 14 August 1946, under this provision, the United States made a
declaration containing reservations which will be described further
below (page 8). In th.is declaration, it stated that:
"this . .. "this declaration shall remain in force for a period of f ive
years and thereafter until the expiration of six months after
notice may be given to terminate this declaration."
On 6 April 1984 the Goverment of the United States deposited with the
Secretary-General of the United Nations a notification signed by the
Secretary of State, Mr. George Shultz (hereinafter referred toas "the
1984 notification"), referring to the declaration of 1946, and stating
that :
"the aforesaid declaration shall not apply to disputes with any
Central American State or arising out of or related to events
in Central America, any of which disputes shall be settled in
such manner as the parties to them may agree.
Notwithstanding the terms of the aforesaid declaration,
this proviso shall take effect immediately and shall remain in
force for two years, so asto foster the continuing regional
dispute settlement process which seeks a negotiated solution to
the interrelated political, economic and security problems of
Central America."
In order to be able to rely upon the United States declaration of
1946 to found jurisdiction in the present case, Nicaragua has to show
that it is a "State accepting the same obligation" as the United States
within the meaning of Article 36, paragraph 2,of the Statute.
For this purpose, it relies on a declaration made by it on
24 September 1929 pursuant to Article 36, paragraph 2, of the Statute of
the Permanent Court of International Justice, the predecessor of the
present Court, which provided that:
"The Members of the League of Nations and the States
mentioned in the Annex to the Covenant may, either when signing
or ratifying the Protocol to which the present Statute is
adjoined, or at a later moment, declare that they recognize as
compulsory ipso facto and without special agreement, in
relation to any other Member or State accepting the same
obligation, the jurisdiction of the Court ..."
in any of the same categories of dispute as listed in Article 36,
paragraph 2, of the Statute of the present Court.
Nicaragua relies further on Article 36, paragraph 5, of the Statute
of the present Court, which provides that:
"Declarations made under Article 36 of the Statute of the
Permanent Court of International Justice and which are still in
force shall be deemed, as between the parties to the present
Statute, to be acceptances of the compulsory jurisdiction of
the International Court of Justice for the period which they
still have to run and in accordance with their terms."
The Judgment recalls the circumstances in which Nicaragua made its
declaration: on 14 September 1929, as a member of the League of Nations,
it signed the Protocol of Signature of the Statute of the Permanent
Court ...Court of International .Justice1: this Protocol provided that it was
subject to ratification and that instruments of ratification were to be
sent to the Secretary-General of the League of Nations. On 24 September
1929 Nicaragua deposited with the Secretary-General of the League a
declaration under Article 36, paragraph 2, of the Statute of the
Permanent Court which reads:
[Translation f rom the French1
"On behalf of the Republic of Nicaragua 1 recognize as
compulsory unconditionally the jurisdiction of the Permanent
Court of International Justice.
Geneva, 24 September 1929.
(Signed) T.F. MEDINA."
The national authorities in Nicaragua authorized its ratification,
and, on 29 November 1939, the Ministry of Foreign Affairs of Nicaragua
sent a telegram to the Secretary-General of the League of Nations
advising it of the despatch of the instrument of ratification. The files
of the League, however, contain no record of an instrument of
ratification ever having been received and no evidence has been adduced
to show that such an instrument of ratification was ever despatched to
Geneva. After the Second World War, Nicaragua became an original Member
of the United Nations,, having ratified the Charter on 6 September 1945;
on 24 October 1945 the Statute of the International Court of Justice,
which is an integral part of the Charter, came into force.
The arguments of the Parties (paras. 17-23) and the reasoning of the
Court (paras. 24-42)
This being the case, the United States contends that Nicaragua never
became a party to the Statute of the Permanent Court and that its 1929
declaration was therefore not "still in force" within the meaning of the
English text of Article 36, paragraph 5, of the Statute of the present
Court.
In the light of t:he arguments of the United States and the opposing
arguments of Nicaragua, the Court sought to determine whether Article 36,
paragraph 5, could have applied to Nicaragua's declaration of 1929.
The Court notes that the Nicaraguan declaration was valid at the
time when the question of the applicability of the new Statute, that of
the International Court of Justice, arose, since under the system of the
Permanent Court of International Justice a declaration was valid only on
condition that it had been made by a State which had signed the Protocol
of Signature of the St.atute. It had not become binding under that
Statute ...
luhile a State admitted to membership of the United Nations
automatically becomes a party to the Statute of the International Court
of Justice, a State member of the League of Nations only became a party
to that of the Permanent Court of International Justice if it so desired,
and, in that case, it was required to accede to the Protocol of Signature
of the Statute of the Court.Statute, since Nicaragua had not deposited its instrument of ratification
of the Protocol of Signature and it was therefore not a party to the
Statute. However, it is not disputed that the 1929 declaration could
have acquired binding force. Al1 that Nicaragua need have done was to
deposit its instrument of ratification, and it could have done that at
any time until the day on which the new Court came into existence. It
follows that the declaration had a certain potential effect which could
be maintained for many years. Having been made "unconditionally" and
being valid for an unlimited period, it had retained its potential effect
at the moment when Nicaragua became a party to the Statute of the new
Court.
In order to reach a conclusion on the question whether the effect of
a declaration which did not have binding force at the time of the
Permanent Court could be transposed to the International Court of Justice
through the operation of Article 36, paragraph 5, of the Statute of that
body, the Court took several considerations into account.
As regards the French phrase pour une durée qui n'est pas encore
expirée" applying to declarations made under the former system, the Court
does not consider it to imply that "la durée non expirée" (the unexpired
period) is that of a commitment of a binding character. The deliberate
choice of the expression seems to denote an intention to widen the scope
of Article 36, paragraph 5, so as to cover declarations which have not
acquired binding force. The English phrase "still in force" does not
expressly exclude a valid declaration of unexpired duration, made by a
State not party to the Protocol of Signature of the Statute of the
Permanent Court, and therefore not of binding character.
With regard to the considerations governing the transfer of the
powers of the former Court to the new one, the Court takes the view that
the primary concern of those who drafted its Statute was to maintain the
greatest possible continuity between it and the Permanent Court and that
their aim was to ensure that the replacement of one Court by another
should not result in a step backwards in relation to the progress
accomplished towards adopting a system of compulsory jurisdiction. The
logic of a general system of devolution from the old Court to the new
resulted in the ratification of the new Statute having exactly the same
effects as those of the ratification of the Protocol of Signature of the
old Statute, i.e., in the case of Nicaragua, a transformation of a 1
potential commitment into an effective one. Nicaragua may therefore be
deemed to have given its consent to the transfer of its declaration to
the International Court of Justice when it signed and ratified the
Charter, thus accepting the Statute and its Article 36, paragraph 5.
Concerning the publications of the Court referred to by the Parties
for opposite reasons, the Court notes that they have regularly placed
Nicaragua on the list of those States that have recognized the compulsory
jurisdiction of the Court by virtue of Article 36, paragraph 5, of the
Statute. The attestations furnished by these publications have been
entirely officia1 and public, extremely numerous and have extended over a
period of nearly 40 yesrs. The Court draws from this testimony the
conclusion that the conduct of States parties to the Statute has
codirmed the interpretation of Article 36, paragraph 5, of the Statute,
whereby the provisions of this Article cover the case of Nicaragua.
The ...
- The conduct of the Parties (paras. 43-51)
Nicaragua also contends that the validity of Nicaragua's recognition
of the compulsory jurisdiction of the Court finds an independent basis in
the conduct of the Parties. It argues that its conduct over 38 years
unequivocally constitutes consent to be bound by the compulsory
jurisdiction of the Court and that the conduct of the United States over
the same period unequivocally constitutes its recognition of the validity
of the declaration of Nicaragua of 1929 as an acceptance of the
compulsory jurisdiction of the Court. The United States, however,
objects that the contention of Nicaragua is inconsistent with the
Statute, and in particular that compulsory juridiction must be based on
the clearest manifestation of the State's intent to accept it. After
considering Nicaragua's particular circumstances and noting that
Nicaragua's situation has been wholly unique, the Court considers that,
having regard to the source and generality of statements to the effect
that Nicaragua was bound by its 1929 declaration, it is right to conclude
that the constant acquiescence of that State in those affirmations
constitute a valid mode of manifestation of its intent to recognize the
compulsory jurisdiction of the Court under Article 36, paragraph 2, of
the Statute. It further considers that the estoppel on which the
United States has relied and which would have barred Nicaragua from
instituting proceedings against it in the Court, cannot be said to apply
to it.
Findi%: the Court therefore finds that the Nicaraguan declaration
of 1929 is valid and that Nicaragua accordingly was, for the purposes of
Article 36, paragraph 2, of the Statute of the Court, a "State accepting
the same obligation" as the United States at the date of filing of the
Application and could therefore rely on the United States declaration of
1946.
B. The declaration of the United States (paras. 52-76)
The notification of 1984 (paras. 52-66)
The acceptance of the jurisdiction of the Court by the United States
on which Nicaragua rel.ies is the result of the United States declaration
of 14 August 1946. However, the United States argues that effect should
be given to the letter sent to the Secretary-General of the United
Nations on 6 April 1984 (see p. 4 above). It is clear that if this
notification were va1i.d as against Nicaragua at the date of filing of the
Application, the Court: would not have jurisdiction under Article 36 of
the Statute. After out:lining the arguments of the Parties in this
connection, the Court points out that the most important question
relating to the effect: of the 1984 notification is whether the United
States was free to disregard the six months' notice clause which, freely
and by its own choice, it has appended to its declaration, in spite of
the obligation it has entered into vis-à-vis other States which have made
such a declaration. The Court notes that the United States has argued
that the Nicaraguan declaration, being of undefined duration, is liable
to immediate termination, and that Nicaragua has not accepted "the same
obligation" as itself and may not rely on the time-limit proviso against
it. The Court does not: consider that this argument entitles the
United States validly to derogate f rom the time-limit proviso includedin its 1946 declaration. In the Court's opinion, the notion of
reciprocity is concerned with the scope and substance of the commitments
entered into, including reservations, and not with the forma1 conditions
of their creation, duration or extinction. Reciprocity cannot be invoked
in order to excuse departure f rom the tenus of a State's own declaration.
The United States cannot rely on reciprocity since the Nicaraguan
declaration contains no express restriction at all. On the contrary,
Nicaragua can invoke the six months' notice against it, not on the basis
of reciprocity, but because it is an undertaking which is an integral
part of the instrument that contains it. The 1984 notification cannot
therefore override the obligation of the United States to subit to the
jurisdiction of the Court vis-à-vis Nicaragua.
The United States multilateral treaty reservation (paras.
The question remains to be resolved whether the United States
declaration of 1946 constitutes the necessary consent of the United
States to the jurisdiction of the Court in the present case, taking into
account the reservations which were attached to the declaration.
Specifically, the United States had invoked proviso (c) to that
declaration, which provides that the United States acceptance of the
Court's compulsory jurisdiction shall not extend to
"disputes arising under a multilateral treaty, unless (1) al1
parties to the treaty affected by the decision are also parties
to the case before the Court, or (2) the United States of
America specially agrees to jurisdiction" .
This reservation will be referred to as the "multilateral treaty
reservation" .
The United States argues that Nicaragua relies in its Application on
four multilateral treaties, and that the Court, in view of the above
reservation, may exercise jurisdiction only if al1 treaty parties
affected by a prospective decision of the Court are also parties to the
case.
The Court notes that the States which, according to the United
States, might be affected by the future decision of the Court, have made
declarations of acceptance of the compulsory jurisdiction of the Court,
and are free, any time, to come before the Court with an application
instituting proceedings, or to resort to the incidental procedure of
intervention. These States are therefore not defenceless against any
consequences that may arise out of adjudication by the Court and they do
not need the protection of the multilateral treaty reservation (insofar
as they are not already protected by Article 59 of the Statute). The
Court considers that obviously the question of what States may be
affected is not a jurisdictional problem and that it has no choice but to
declare that the objection based on the multilateral treaty reservation
does not possess, in the circumstances of the case, an exclusively
preliminary character.
Finding: the Court finds that, despite the United States
notification of 1984, Nicaragua's Application is not excluded from the
scope of the acceptance by the United States of the compulsory
jurisdiction of the Court. The two declarations afford a basis for its
jurisdiction.
C. The .. .C. The Treaty of Friendship, Commerce and Navigation of 21 January 1956
as a basis of jurisdiction (paras. 77-83)
In lts Memorial, Nicaragua also relies, as a "subsidiary basis" for
the Court's jurisdiction in this case, on the Treaty of Friendship,
Commerce and Navigation which it concluded at Managua with the United
States on 21 January 1956 and which entered into force on 24 May 1958.
Article XXIV, paragraph 2, reads as follows:
"Any dispute between the Parties as to the interpretation
or application of the present Treaty, not satisfactorily
ad justed by diplomacy, shall be suhitted to the International
Court of Justice,, unless the Parties agree to settlement by
some other pacific means."
Nicaragua subits that this treaty has been and is being violated by
the military and paramilitary activities of the United States as
described in the Application. The United States contends that, since the
Application presents no claims of any violation of the treaty, there are
no claims properly before the Court for adjudication, and that, since no
attempt to adjust the dispute by diplomacy has been made, the
compromissory clause c:annot operate. The Court finds it necessary to
satisfy itself as to jurisdiction under the treaty inasmuch as it has
found that the objection based upon the multilateral treaty reservation
in the United States declaration does not debar it from entertaining the
Application. In the view of the Court, the fact that a State has not
expressly referred, in negotiations with another States, to a particular
treaty as having been violated by the conduct of that other State, does
not debar that State from invoking a compromissory clause in that treaty.
Accordingly, the Court. finds that it has jurisdiction under the 1956
Treaty to entertain the claims made by Nicaragua in its Application.
II. The question of the admissibility of Nicaragua's Application
(paras. 84-108)
The Court now turns to the question of the admissibility of
Nicaragua's Application. The United States contended that it is
inadmissible on five separate grounds, each of which, it is said, is
sufficient to establish such inadmissibility, whether considered as a
legal bar to adjudication or as "a matter requiring the exercise of
prudential discretion in the interest of the integrity of the judicial
function" .
The first ground of inadmissibility (paras. 85-88) put forward by
the United States is that Nicaragua has failed to bring before the Court
parties whose presence and participation is necessary for the rights of
those parties to be protected and for the adjudication of the issues
raised in the Application. In this connection, the Court recalls that it
delivers judgments with binding force as between the Parties in
accordance with Article 59 of the Statute, and that States which consider
they may be affected by the decision are free to institute separate
proceedings or to employ the procedure of intervention. There is no
trace, either in the Statute or in the practice of international
tribunals, of an "indispensable parties" rule which would only be
conceivable in parallel to a power, which the Court does not possess, to
direct ...direct that a third State be made a party to proceedings. None of the
States referred to can be regarded as being in a position such that its
presence would be truly indispensable to the pursuance of the proceedings.
The second ground of inadmissibility (paras. 89-90) relied on by the
United States is that Nicaragua is, in effect, requesting that the Court
in this case determines the éxistence of a threat -to ~eace, a matter
falling essentially within the competence of the Security Council because
it is connected with Nicaragua's complaint involving the use of force.
The Court examines this $?round of inadmissibility at the same time as the
third ground (paras. 91-58) based on the position of the Court within the
United Nations system, including the impact of proceedings before the
Court on the exeFcise of the inherent right of individual or collective
self-defence under Article 51 of the Charter. The Court is of the
opinion that the fact that a matter is before the Security Council should
not prevent it from being dealt with by the Court and that both
proceedings could be pursued pari passu. The Council has functions of a
political nature assigned to it, whereas the Court exercises purely
judicial functions. ~oth organs can therefore perform their separate but
complementary functions with respect to the same events. In the present
case, the complaint of Nicaragua is not about an ongoing war of armed
conflict between it and the United States, but about a situation
demanding the peaceful settlement of disputes, a matter which is covered
by Chapter VI of the Charter. Hence, it is properly brought before the
principal judicial organ of the United Nations for peaceful settlement.
This is not a case which can only be dealt with by the Security Council
in accordance with the provisions of Chapter VI1 of the Charter.
With reference to Article 51 of the Charter, the Court notes that
the fact that the inherent right of self-defence is referred to in the
Charter as a "right" is indicative of a legal dimension, and finds that
if, in the present proceedings, it became necessary for the Court to
judge in this respect between the Parties, it cannot be debarred from
doing so by the existence of a procedure requiring that the matter be
reported to the Security Council.
A fourth ground of inadmissibility (paras. 99-101) put forward by
the United States is the inability of the judicial function to deal with
situations involving ongoing armed conflict, since the resort to force W
during an ongoing armed conflict lacks the attributes necessary for the
application of the judicial process, namely a pattern of legally relevant
facts discernible by the means available to the adjudicating tribunal.
The Court observes that any judgment on the merits is limited to
upholding such subnissions of the Parties as has been supported by
sufficient proof of relevant facts and that ultimately it is the litigant
who bears the burden of proof.
The fifth ground of inadmissibility (paras. 102-108) put forward by
the United States is based on the non-exhaustion of the established
processes for the resolution of the conflicts occurring in Central
America. It contends that the Nicaraguan Application is incompatible
with the Contadora process to which Nicaragua is a party. The Court recalls its earlier decisions that there is nothing to
compel it to decline to take cognizance of one aspect of a dispute merely
because that dispute has other aspects (United States Diplomatic and
Consular Staff in Tehran case, I.C.J. Reports 1980, p. 19, para. 36), and
the fact that negotiations are being actively pursued during the
proceedings is not, legally, any obstacle to the exercise by the Court of
its judicial function (Aegean Sea Continental Shelf case,
I.C.J. Reports 1978, p. 12, para. 29). The Court is unable to accept
either that there is any requirement of prior exhaustion of regional
negotiating processes as a precondition to seising the Court; or that
the existence of the Contadora process constitutes in this case an
obstacle to the examination by the Court of Nicaragua's Application.
The Court is therefore unable to declare the Application
inadmissible on any of the grounds the United States has advanced.
Findings (paras. 109-111)
Status of the provisional measures (para. 112)
The Court States that its Order of 10 May 1984 and the provisional
measures indicated therein remain operative until the delivery of the
final judgment in the case.
Opera t ive provi sions of the Court 's Judgment
"THE COURT,
(1) (a) finds, by eleven votes to five, that it has
jurisdiction to entertain the Application filed by the Republic of
Nicaragua on 9 April 1984, on the basis of Article 36,
paragraphs 2 and 5, of the Statute of the Court;
IN FAVOUR: President Elias; Vice-President Set te-Camara;
Judges Lachs, Morozov, Nagendra Singh, Ruda, El-Khani,
de Lac'harrière, Mbaye, Bed jaoui; Judge ad hoc Colliard;
AGAINST: Judges Mosler, Oda, Ago, Schwebel and
Sir Ro'bert Jennings;
--) finds, by fourteen votes to two, that it has
jurisdiction to entertain the Application filed by the Republic of
Nicaragua on 9 April 1984, insofar as that Application relates to
a dispute concerning the interpretation or application of the
Treaty of Friendship, Commerce and Navigation between the
United States of America and the Republic of Nicaragua signed at
Managua on 21 January 1956, on the basis of Article XXIV of that
Treaty;
IN FAVOUR: President Elias; Vice-President Sette-Camara;
Judges Lachs, Morozov, Nagendra Singh, Mosler, Oda,
Ago, El-Khani, Sir Robert Jennings, de Lacharrière,
Mbaye, Bedjaoui; Judge ad hoc Colliard;
AGAINST : Judges Ruda and Schwebelj
--c) finds ... (c) finds, by fifteen votes to one, that it has
jurisdiction to entertain the case;
IN FAVOUR: President Elias; Vice-President Sette-Camara;
Judges Lachs, Morozov, Nagendra Singh, Ruda, Mosler,
Oda, Ago, El-Khani, Sir Robert Jennings, de Lacharrière,
Mbaye, Bedjaoui; Judge ad hoc Colliard;
AGAINST: Judge Schwebel;
(2) finds, unanimously, that the said Application is
admissible." Annex to press communiqué 84/39
Simmiary of Opinions appended to the
Judgment of the Court
Separate Opinion by Judge Nagendra Singh
hile Judge Nagendra Singh has voted for the jurisdiction of the Court on
andh counts, namely under the Optional Clause of Article 36, paragraphs 2
5, of the Statute of the Court, as well as under Article 36,
paragraph 1, of the Statute on the basis of Article XXIV, paragraph 2, of
the Treaty of Friendship, Conmerce and Navigation of 21 January 1956, he
has felt al1 along in those proceedings that the jurisdiction of the Court
resting upon the latter, namely the Treaty, provides a clearer and a firmer
ground than the Jurisdiction based on the Optional Clause of Article 36 (2)
and (5) of the Statute. The difficulties which confront the Court in
relation to the hperfect acceptance of the jurisdiction by Nicaragua and the
unwilling response from the United States, as revealed by its declaration of
6 April 1984 intended to bar the Court's jurisdiction in relation to
any dispute with the Central American States for a period of two years.
In addition there is also the question of reciprocity in relation to six
months' notice of temination stipulated in the United States declaration
of 14 August 1946. On the other hand, the Treaty of 1956 does provide
a clear jurisdictional base, although the field of the jurisdiction is
restricted to disputes concerning the interpretation and application of
that Treaty. However, the said jurisdiction is not subject to the
multilateral treaty reservation of the United States, which is applicable
to the Court's jurisdiction under the Optional Clause of Article 36(2)
of the Statute. Another helpful feature of the jurisdiction based on
the Treaty of 1956 is that it would help to specify and legally
channelise the issues of the dispute. The Parties will have to corne to
the Court under the Treaty, invoking legal principles and adopting iegal
procedures which would helpfully place legal limits to the presentation
of this sprawling dispute, which could otherwise take a non-legal
character, thus raising the problem of sorting out what is justiciable
as opposed to non-justiciable matters being brought before the Court.
He concludes, therefore, that the jurisdiction of the Court as based on
the Treaty is clear, convincing and reliable. Nicaragua will now have
to spell out clearly and specifically the violations of the Treaty
involving its interpretation and application when the Court proceeds to
consider the merits of the case.
Separate ... Separate Opinion by Judge Ruda
The reparate opinion of Judge Ruda, who concurred in the Court's
finding that it had jurisdiction to entertain the Application, on the
basis of Article 36, parographs 2 and 5, of the Statute of the Court,
concerns three points: the Treaty of Friendship, Commerce end
Navigation of 1956 as a basis of the Court's jurisdiction, the
reservation contained in proviso (cl of the United States declaration
of 1946, and the conduct of States as a basis for the Court's
jurisdiction.
In regard to the first point, Judge Ruda maintains that the
Parties have not fulfilled the conditions set forth in Article XXIV
of the Treaty, which therefore cannot serve as a basis for the
jurisdiction of the Court.
In regard to the second point, he considers that the reservation
contained in proviso -(c) of the declaration is not applicable in the
present instance because there is not only a dispute between the
United States and Nicaragua but also a separate dispute between, on
the one hand, Honduras, El Salvador and Costa Rica and, on the other
hand, Nicaragua.
In regard to the third point, Judge Ruda is of the opinion that
the conduct of States does not constitute an independent basis for
the Court's jurisdiction if there has been no deposit of a declaration
accepting the optional clause with the Secretary-General of the
United Nations.
Judge Ruda concurs in the Court's interpretation of Article 36,
paragraph 5, of the Statute.
Separate Opinion by Judge Hosler
Judge Mosler does not agree with the opinion of the Court that it
has jurisdiction on the basis of the Nicaraguan declaration of 1929
relating to the jurisdiction of the Permanent Court of International
Justice. In his view the Court possesses jurisdiction only on the basis
of the 1956 Treaty of Friendship, Commerce and Navigation between the
Parties.
Separate ... Separate Opinion by Judge Wa
Judge Chia concurs in the conclusion of the Court rolely because the
case can be sustained under the 1956 Treaty between Nicaragua and the
United States. Thus in his view the ocope of the case should be strictly
limited to any violation of specific provisions of that Treaty.
However, Judge Wa holds the firm view that this case cannot be
entertained under the Optional Clause of the Statute, for the following
two reasons. First, there is no ground for concluding that Nicaragua
can be held to have legal standing in the present proceedings on the
basis of the acceptance of the Optional Clause.
Secondly, assuming that
Nicaragua has legal standing in the present proceedings, the United States
by its Shultz letter of 6 April 1984 effectively excluded, before the
seisin of the case, the type of dispute at issue £rom its obligation under
the Optional Clause in its relation to Nicaragua: when it is sought to
bring a case before the Court under that clause, a provision fixing a
certain duration, such as in the United States declaration, cannot,
because of the rule of reciprocity, be invoked by another party whose
declaration is terminable or amendable at any time.
Separate Opinion by Judge Ago
Judge Ago concurred in the Court's f inding that it had jurisdiction
to entertain the merits of the case because of his conviction that a valid
link of jurisdiction between the Parties was present in Article XXIV (2)
of the Treaty of Friendship, Commerce and Navigation concluded between
the United States of America and Nicaragua on 21 January 1956. That link,
in his view, conferred jurisdiction upon the Court to consider Nicaragua's
clahs implying breaches of that Treaty by the United States.
Judge Ago did not reach the same conclusion as regards the broader
jurisdictional link presented by the Judgment as deducible from the facts
concerning the acceptance by both Nicaragua and the United States of the
Court' s compulsory jurisdiction by unilateral declarat ion, since he
remained unconvinced of the existence of that link either in fact or in
law.
Separate ... Separate Opinion by Judge Sir Robert Jennings
The Court does not have jurisdiction under Article 36, paragraph 5,
of its Statute because Nicaragua never became a party to the Statute of
the Permanent Court; accordingly, its declaration made under Article 36
of that Court's Statute cannot be one "still in force" in the sense of
Article 36, paragraph 5, of the present Court's Statute, because it never
was in force. To attempt to support a different view on entries in
reference books such as the Yearbooks of the Court is wrong in principle
and unsupported by the facts relied on.
In any event the letter of 6 April 1984 from the United States
Secretary of State bars jurisdiction because the recent practice shows
that States have the right to withdraw or alter their optional clause
declarations with inmediate effect, at any time before an application
to the Court based on the declaration.
Sir Robert concurs with the Court's decision in respect of the w
United States multilateral treaties reservation; and the 1956 Treaty of
Friendship, Commerce and Navigation.
Dissentinn Opinion bv Judne Schwebel
Judge Schwebel dissented from the judgment of the Court, which he
found to be 'in error on the principal questions of jurisdiction"
involved. Bowever, if the Court were correct in finding that it has
jurisdiction, then the case would be admissible.
On the question of whether Nicaragua is party to the Court's
compulsory jurisdiction under its Optional Clause, and thus has standing
to maintain suit against the United States, Judge Schwebel concluded that
it 1s not a party and hence lacks standing. Nicaragua has never adhered
to this Court's compulsory jurisdiction under the Optional Clause. It I
claimed that it nevertheless vas party by reason of i ts 1929 declaration
accepting the compulsory jurisdiction of the Permanent Court of
International Justice. If the 1929 declaration had come lnto force,
Nicaragua would be deemed party to this Court's compulsory jurisdiction
by operation of Article 36, paragraph 5, of this Court's Statute. But
Nicaragua's 1929 declaration had never come into force. Under the terms
of Article 36, paragraph 5, accordingly it has no period in which it
still runs, since it never begun to run at all. It has no period which
has not yet expired since its declaration never was "inspired".
That this is the correct interpretation of Article 36, paragraph 5,
1s demonstrated not only by the plain meaning of its text, but by the
drafting history of the article at the San Francisco Conference and by
four cases of this Court. All, clearly and uniformly, construe
Article 36, paragraph 5,as referring exclusively to declarations made'
under the Statute of the Permanent Court by which States were 'bound",
i.e, which were in force.
The.. . The fact that, for almort 40 year~, Nicaragua has been llrttdln the
Yearbook of thir Court and tlsewhere as bound uder the Optional Clause
1s not rufficitnt to overturn this conclusion or independently to
establish Nicaragua's rtanding. The Yearbooke have always contained or
referred to a footnote warning the reader that Nicaragua'e adherence to
the Optional Clause vas in doubt. Horeover, ~icaragua's conduct has been
equivocal. Not only has it failed to manifest its intent to be bound by
this Court 's compulsory jurisdiction by deposi ting a declaration. It
also evaded obvious occasion for declaring'that 1; recognired itself to
be bound under Article 36, paragraph 5, as in the King of Spain case.
Even if, however, Nicaragua had standing to maintain euit under the
Optional Clause, it may not do 80 against the United States. Assurnlng
Nicaragua's declaration to be binding, Nicaragua could terminate it at
any time vith immediate effect. By operation of the rule of reciprocity,
the United States likewise could terminate its adherence to the Court's
compulsory jurisdiction, vis-&-vis Nicaragua, vith immediate effect.
Thus, while generally the United States could not tenninate or modify its
adherence to the Court's compulsory jurisdiction - as its notification of
April, 1984 purports to do - on less than six months' notice, it could
validly do so ln relationship to Nicaragua.
In any event, even if the United States could not terminate its
declara tion vi 6-8-vis Nicaragua, by the terms of its multilateral treaty
reservation to its declaration, the United States 1s entitled to exclude
Nicaragua's reliance in its Application on four multilateral treaties,
including the United Nations and OAS Charters, unless al1 other parties
to the treaties affected by the decision are parties to the case. Those
parties - as 1s demonstrated by the pleadings of Nicaragua in the case -
are Honduras, Costa Rica and El Salvador. Since those States are not
parties, Nicaraguan reliance on those four treaties should have been
barred by the Court. However, the Court - erroneously in
Judge Schwebel's view - has held that those other States cannot now be
identified and appears to have put off the question of application of the
reservation to the stage of the merits.
Finally, in Judge Schwebel's viev, the Court does not have
jurisdiction over the claims made against the United States by Nicaragua
in its Application by reason of their being party to a bilateral Treaty
of Friendship, Commerce and Navigation. Nicaragua had failed to pursue
the procedural prerequisites for invoking that treaty as the basis of the
Court's jurisdiction. Hore than that, this purely commercial treaty has
no plausible relationship to the charges of aggression and intervention
made in Nicaragua's Application.
- Judgment of the Court
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) - Judgment of the Court