Memorial of Nicaragua

MEMORIAL OF NICARAGUA
(QUESTIONS OF JURISDICTION
AND ADMISSIBILITY)

MÉMOIRE DU NICARAGUA
(QUESTIONS DE LA COMPÉTENCE
ETDE LA RECEVABILITÉ)362 MILITARY ANI) PARAMILITARY ACTIVITIES 13-51

of 14August 1946by a letter dated 6 Apnl 1984from Secretary of State George
Shultz to the Secn:tary-General of the United Nations was ineffective to ac-
complish either result (Part One, II, pp. 389-402,infra).
C. In addition, under Nicaragua's reserved right to amend its Application

(Application, p. 9, supra, para. 26). the Memorial shows that the Court has
jurisdiction under the compromissory clause, Article XXlV (2). of the Treaty of
Friendship, Commt:rceand Navigation between Nicaragua and the United States
of America of 24 PAay1958,as to the claims presented in the Application that
fall within the scope of that Treaty (Part One, III, pp. 403-405,infru).

7. Part 'luu oitt c h1cniori;ildcnionstr;itc, the ;iilnii~~ihilit)i>ithe,\pplisaiii~n.
In pariisular, 11rh<~\isihat ihc Applisdtion iradiiiisiiblc bc:;iusc
A. The fact that Nicaragua's legal claims are part of a more general political
controversy does not bar adjudication of those claims (Part Two, 1,

pp. 408-413,infru).
B. The consideration of the political aspects of the situation in Central
America by the political organs of the United Nations and the Organization
of American States and hy the Contadora Group does not bar the Court
from adjudicating the legal claims asserted in the Application (Part Two, II,
pp. 414-422,infru).
C. All of the oarties necessarv for adiudication of the disoute oresented hv
the Application arc:before the court (part Two, III, pp. 423.431, infra).

8. In the normal procedure of the Court, questions of jurisdiction and
admissibility would be addressed at the stage of Preliminary Objections, after
the Respondent had fully specified and defined its objections, if any. This
sequence is of conaiderable importance because, as the Court knows, in viewof
the consensual nature of the Court's jurisdiction, any objections to jurisdiction
(and perhaps to admissibility) no1 expressly asserted by the Respondent are

taken as waived. The failure to assert such an ohiection is taken as a consent to
jurisdiction, despitz the putative objection (see *S. Rosenne, The lnrernaiion~l
Courr of Jusrice, 1!161ed., Leyden, pp. 284, 296-300).
9. Nicaragua uriderstands the considerations of convenience and efficiencv
lhdt h3vc le2 ihc (:ouri 10 adopi the prçwnt proiedure. anJ rully endorsei th31
astiirn. In si)nsequi:nie, h<)ue\cr, Nicaragua, in >u,taining th? jurirdiciio<ilthe
Court and the admissih~lit)of the Appli?dtion mu\t do si>31 large, ho io swak.
and without knowing the irecise natÜre and scope of any objecïion that might
he advanced hy the Respondent. Nicaragua has had to divine as best it could
the character of such objections from the observations and written material

submitted by the IJnited States at the oral hearing on provisional measures. In
these circumstancer, the Court will understand that Nicaragua must reserve the
right to supplemerit the present Memorial after it has had the opportunity to
study the Counter-Memorial of the United States on this phase of the case. PARTONE. THE JURISDICTIONOF THECOURTTO

ENTERTAINTHEDISPUTE

1. NICARAGUA HASACCEPTED THE COMPULSORY JURISDICTION
OF THE COURT

A. Nicaragua 1sBoundbythe CompulsoryJurisdiction of the Court under the
Terms of Article36 (5) of the Statute of the Court

10. It may be convenient to set forth the text of Article 36 (5) at the outset:

"Declarations made under Article 36 of the Statute of the Permanent
Court of International Justice and which are still in force shall he deemed.
as between the parties to the present Statute, to he acceptances of the
compulsory jurisdiction of the International Court of Justice for the period
which they &Il have to run and in accordance with their terms."
II. Nicaragua meets the conditions of the Article. It ratitïed the United Na-

tions Charter on 6 September 1945 and became an Original Memher of the
United Nations on 24 October 1945.when the Charter. came in10 force. Under
Article 93 (1) of the Charter, it antomatically became a party to the Statute of
the Court on the same date. On that date, its declaration of 24 September 1929,
accepting the compulsory jurisdiction of the Permanent Court without condi-
tion, was in effcct. Being of unlimited duration, it had no1 expired. Thus, when
the Charter and Statute entered into force, that declaration was, by the terms of
Article 36 (S), "deemed, as hetween the parties to the present Statute, to be [an]
acceotance I. .f the comoulsorv . ,isdiction" of this Court.
I?'.Thc rr.\uli I;>ll.>it.l'ion1the I:iriiiArriclc 36 (Si:ind Cran 11,purporc
iiim.iini.iin Io ihc nia\iiiium r.ii:ni ihr. :IL.and potsiiti:il juri\~lirIion ui'ihc
Pcrni;trir.nt<:<,uriii)r th: ncwl\ c,i;ibli,li:d Intcrn.iii<>nïlCouri di'Jiirticc. Thc
construction is confirmed by the jurisprudence of the Court and by its practice,
as well as by the unbroken practice of the Parties to this proceeding and other
States over a period of more than 30 years, and by the substantially uniform
opinion of the most highly qualified puhlicists.

1. TextualAnalj'sis
13. The subject of Article 36 (5) i"declarations made under Article 36 of the

Statute of the Permanent Court . . .".Thus, although it may he true that
Nicaragua did not deposit an instrument of ratification of the Protocol of
Signature of the Statute of the Permanent Court, that fact has no relevance in
the present context. Article 36 (5) does not speak of parties to the Stdtute of the
Permanent Court but of declaritions accepting itsjurisdiction. Such a declaration
made by a State no1 a party to the Statute and that by its lems had no1expired
was a declaration "in force". InJudge Schwehel'swords, it "remained in an imper-
fect but no1invalid state;. . ."(1.C.J Reports1984, p. 203 (dissenting opinion)).
Ir could have been activated at any time, at least until the dissolution of the
Permanent Court, by ratification of the Statute of that Court. The effect of
Article 36 (S), in the case of Nicaragua, was to make its ratification of the
Statute of this Court (which occurred before the dissolution of the Permanent364 MILITARYAND PARI\MII.ITARYACTIVITIES [7-91

Court) the equivalrnt of ratification of the old Statute - the act that perfected
the declaration.
14. That is the :jignificanceof the use of the language "deemed . . .to be
accentances of (he com~ulsorv iurisdiction of the International Court of
Justice . . .".This functiin is éxilained in the joint dissenting opinion in the
Aeriul Incidenr case by Judges Lauterpacht, Wellington Koo and Spender.

"The unqualified language of paragraph 5 suggests that any real or
apparent legal difficulty ensuing from the fact that the declarations were
annexed to tlie Statute of the Permanent Court and any other legal
diiiiculties, real or apparent, which did or did not occur to the authors of
paragraph 5 were met by the comprehensive provision laying down that
these declarations shall be deemed. as between the parties to the present
Statute, to be acceptances of the compulsory jurisdiction of the new Court.
It is exactly some such obstacles which the authors of Article 36 wished to
neutraliz. This was the DurDoseof ~araeranh 5. Thev said in eflect:
- -
Whatever legal obstacles therémay bc, thcse deciaratiois, provided their
period of validity has not expired - that is ~rovided that they are still in
force on the day of the entÏy of the charte; in10 force or on the day on
which the declarant State becomcs a party to the Statute - shall continue
in respect of tlie International Court of Justice.
The iniendon of paragraph 5 which uscd the words 'shallbe deemed . . .
Io be acceptances'is to cul clear through any cobweb of legalcomplications
and problems which might arise in this connection." (Case concerning the
Aerial Incidenrof 27 July 1955 (Isrucl v. Bulgaria), PreliminaryObjeciions,
I.C.J. Reports1959, p. 127 at 167-168(joint dissenting opinion by Judges
Lduterpacht, Wellington Koo and Spender).)

The failure to deposit an instrument of ratification of the Statute of the old
Court isjus1 such ;I"legal obstacle", a "cobweb of legal complications", and of
the kind that could very appropriately be swept away hy the ratification of the
new Statute.
15. Article 36 (5) "was firstformulated in the French language" (Aerial Inci-
llenr, I.C.J. Reporrs1959, pp. 161-162(joint dissenting opinion)), and as Judge
Schwebelshowed in his dissenting opinion on provisional measures (Order of 10
May 1984,p. 203): the meaning emcrgcs cven more clearly from the French text
of the Article. There, the decisivewords are:

"Les déclur<irionfasiresen application de l'article 36du Statut de la Cour
permanente dc Justice internationale pour une diiréequi n'es1pus encore
expirée. .." (Emphasis added.)

The focus is unmi:;takahlv on the duration of the declaration. that is. the time
during whiih ;iccording 10 its icrmr it u,a, IO rîmain etrcitive In Nicaragua's
casc. of cour\<. th:.i tlmr was indcfinitc.so th~i at ihc i~i<iiiiethcn Nir;ir;igua
bcc~niea nicmbcr of the IJniieJ Naiionr. II had. Iiterallyand undcni;iblv. niide
a declaration who'e duration had not expired.
16. In theAeriulIncidenr case, Bulgariamade much of the Englishterminology,
"Declarations . . .whichare still in force. . .and linked it with the penultimate
draft of the French text of Article 36 (5) where the words "en rigueur" were
used. The three dissenting judges disposed of that argument with characteristic
force:

"There was no change in the substance of the paragraph for the reason
that the clear and unambiguous meaning of the French amendment [from "envigueur" to ''pourrrnedrireequinésrpasencoreexpirée"] was understood
by the whole Committee as conveying the true sense of the English text as
well. The Rapporteur of the First Committee, who made his report in the
English language, stated, after referring to the question of Article 36, as
follows: 'A newparagraph 4 [now paragraph 51 was inserted to preserve
declarations made under Article 36 of the old Statute for periodsof rime
whichhavenoryer expired and to make these declarations applicable to the
jurisdiction of the new Court.' There seems to have been no doubt in the
minds of the members of the First Committee as to the meaning of the

words 'still in force'in the English text. The French amendment was made
indeed not with a view to any change in substance but only for the purpose
of clarification.(AeriulIncident.1.C J. Reports1959, p. 162(joint dissenting
opinion) (emphasis in original).)

17. The traditional clarity of French draftsmanship achieved by the amendment
is evidenced by a comparison of the French text of Article 36 (5) with that of
Article 37, dealing with jurisdictional clauses in treaties and conventions. There
the French text retains the wording "en rigueur", the characteristic way of
describine multilateral and bilateral a-reements that are hindineuon the oarties.
Dcclaration\, houcvcr. are unil;iteral iicts An10 describe prccidy the caiegorg
of~le~~l~r:ilionIO \i.hxh Article 36 (5) rckr\. ihc French draii\men ;imcndïJ ihï
orieindl tc~i rcad "ior a duration that has nai vct croired". The choice of
laniuage further emphasizes that it is the unilateral dec~aration on which
paragraph 5 operates, not the multilateral agreement embodied in the Statute of
the Court.
18. The penultimate version of Article 36 (5) contains one further piece of
evidence for the construction of the Article here advanced. The text reads:

"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 ro haveheenmodeunderthis
Arricleand shall continue to apply, in accordance with their terms." (Bocu-

menrsof rhe UnitedNurionsConferenceon InrernarionalOrgunizarion (here-
after "UNCIO Bocumenrs"), Vol.XIII. pp. 557, 558 (1945) (emphasis
added).)
This language, which was itself adopted by the Committee (id.),shows how the
Committee envisioned the orocess of transfer of iurisdiction from the old Court
icithe ncu. t:\i.ting il,~lur<i~ii>>ould operiiic 4, Jcclarations unJcr ihc ncw

Stütutc, anJ iroulJ be hrought ini<icikit :iraiicptdnic.: ni the ca>mpul.org
irisJi Ji-ii>n cn thc rlcclsranti raiiiicd the nc\i St~tiitc. Thi, twd-SICDuruccss
bas condensed in the final version of the Article resulting from thé'~rench
amendment: "shall be deemed, as hetween parties to the prcsent Stütute,
to be acceptances of the compulsory jurisdiction of the International Court of
Justice . . .". But, as with the other elements of the French amendment, no
change of substance was intended (id,pp. 282,284; Aerial Incident,1,C.J. Reports
1959, p. 162(joint dissenting opinion)).

2. ThePurposeof Arricle36 (5) in rireConresrof theEsrablishrnen(ifrhe
lnrrrnurionulCourrof Justice

19. It is well estahlished that the Court. in construing Article 36 (5), may and
indeed should seek guidance from the purposes that animated the draftsmen (see
Aerial Incidenr,1.C J. Reports1959, p. 127; Barcelona TracrionL ,ighr und Power366 MILITARY AND PARAMILITARY ACTIVITIFS [Il-131

Company.Limired.PreliminliryOhjeciions,Judgn~enlI,.C.J. Reports1964, p. 6).
The interprctation of Article 36(5) here put forward is consistent with - indeed
gives effect to- ihe important purposésthat gave rise 10Articles 36 (5) and
37 of the Statute.
20. The background and history of these Articles is wellknown and has been
canvassed extensivi:lyin the jurisprudence of the Court (sce BarcelonaTracrion,

1.C J. Reporis1964, pp. 26-39; Aerial Incident.I C.J. Reporis1959, pp. 136-146;
id, pp. 157.188 (joint dissenting opinion)). In brief, these Articles represent a
compromise in the establishment of the International Court of Justice. between
thoséwho favoured a true compulsory jurisdiction and those who th~;~ht that
the principle of consensual jurisdiction required the new Court's jurisdiction to
be founded on ad hoc consent or on instruhents referring speciricallyto it.
21. The draftsmen of the Statute, being international jurists, wcre naturally
enough mostly of the first party. But it became apparent that the political
conditions for the establishment of a true compulsory jurisdiction were not
oresent. The Procwdines of Committee IV and its sub-committees are reolete
with statements endorsing compulsory jurisdiction in principle, but regretting

that it was unattai~iablein practice (c.g.UNCIO Documenr.~ ,ol.XIII, pp. 246-
251, 557-559).
22. In response to this dilemma, the scheme of Articles 36(5) and 37 was
devised to salvage for the new Court as much as possible of the compulsory
jurisdiction of the old. As stated succinctly by the Court in Barcelona Trac-
tion, "11was a natural element of this compromise that the maximum, and not
some merely quasi optimum preservation of this field should be aimed at."
(I.C.J. Reports1964, p. 32.) The language echoes that of the joint dissenters in
the Aerial Inciden1 case, referring specificallyto Article 36 (5): "Their intention
. . . was to maintain the maximum - not the minimum - of existing
declarations." (I.C.J. Reporrs1959, p. 184.) And again, in BarcelonaTracrion,
the Court, speaking of Article 37, expanded on the point:

"[il\]&>\erniiigci>ncr.plcvidcntl! ii:isiciprr.,cr\c ;a,il1;in~1iri~diitiJn.il
cl;iu.r., :aspossiblr'from bei~niing inopr'r;iiih). reawn oi thc pr<>spccti\c
dissol~tion ol'ihc I'irm~ncnt Court: and rnorc<>i.ir ,0 do ihis br.a riroieis
which would automatically substitute the new Court for the .permanent
Court in the jurisdictional treaty relations between al1 Members of the
United Natioiis and other parties to the Stÿtute. thus avoiding the necessity
for piecemealaction by specialagreement between the parties to the various
instruments" (1CJ Reporls1964, p. 31).

Since Articles 36(5) and 37 were both parts of an integral scheme to preserve

thejurisdiction of the Permanent Court, they are to be construed inpari mureria.
Thus, Article 36 (5), equally with Article 37, must be taken as designed to
preserve as many declarations as possible from becoming inopcrative by reason
of the dissolution of the Permanent Court, and to do so automatically, without
need for piecemeai actions by the various declarants.
23. In this content, the technical function of the words "wbich are still in
force" is simple and is strictly limited:

"We consider tbat the words 'which are still in force', when read in the
context of the whole paragraph, can only meaa, and are intended to mean,
the exclusion of some fourteen declarations of acceutance of the com~ul-
soryjurisdiction of the Permanent Court which had already expired andthe

inclusion, irrespective of the continuance or dissolution of the Permanent Court. ofall the dcclar~iions the duraiion of whi:h h:ls no1cxpircd." (Acri'il
Ifrcr<li~ntJ C: Rep<~rrs1959. p. 161(joint disxniing opini<>n).)

The operation of the words should therefore be construed narrowly so as not to
expand their exclusionaryfunction beyond the absolutelynecessaryminimum indi-
cated in the quoted passage.
24. In addition to maximizing the jurisdiction transferred from the old Court
to the new, the other dominating thcme of the draftsmen of the prescnt Statute
was to maintain continuity hetween the two Courts. This objective, also, was
given extended treatment in the Aeriul Incident case joint dissent. On the basis
of a meticulous review of the relevant materials, the dissenting judges concluded
that the new Court "was to be in substance a continuation of the Permanent
Court" (I.C.J. Reports 1959, p. 159 (joint dissenting opinion)).

"While various considerations urged the dissolution of the Permanent
Court and the creation of the International Court of Justice, there was
general agreement as to the substantial identity of those two organs. In
particular, every eiiort was made to secure continuity in the administration
of international justice." (Id, p. 158.)
"ln fact, a study of the records of the Conference shows that the deter-
mination to secure the continuity of the two Courts was closely linked with
the question of the compulsory jurisdiction of the new Court in a manner
which is directly relevant to the interpretation of paragraph 5 of Article
36." (Id, p. 159.)

25. Indeed, as pointed out in that opinion, the las1meeting of the Permanent
Court did not take place until the day afier the inaugural meeting of the Inter-
national Court of Justice. And this overlap was by design - to ensure that
nothing of the old Court that was still viable would fall into a legal limbo in a
momentdry gap between the two bodies.
26. The interpretation of Article 36 (5) here advanced comports equally well
with this second purpose of continuity as with the first of maximizing the transfer
ofjurisdiction. The situation as it stood with regard to the compulsory jurisdiction

of the Permanent Court was to be preserved intact, in so far as this could be
done, for the new Court. Indeed, this purpose was recognized bythe majority as
well as the dissent in the Aeriol Incidenrcase:
"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 frustratc
progress already achieved . . ."(I.C.J. Reports 1959, p. 145.)

27. What was the existing situation as respects Nicaragua? What was it that
was "in existence"? At the lime of the dissolution of the old Court. Nicaraeua
had on the books, so to speak, a declaration accepting the jurisdiction of ihat
Court without conditions and without limit of time. That declaration, as Judge
Schwebel ~ointed out in his dissentinr o~inion on ~rovisional measures. couid
have beenictivated at any moment upto ihe dissoluiion of the Permanent Court
by depositing an instrument of ratification to the Protocol of Signature of the
Statute (LCJ Reports 1984, pp. 202-203 (dissenting opinion)). The declaration
was alive and subsistine. needine onlv the ratification of the Statute to brine it
fully into eiiect. ~eforeihe old 6ourt'was exlinct, Nicaragua did ratify a ~takte
- but it was the Statute of the new Court. Does it make any sense, in light of
the language of Article 36 (5) and the "determination to secire continuity", to

insist that in order to accomplish an acceptance of the compulsory jurisdiction368 MILITARYAND PARAMILITARY ACTIVITIGS [IS-181

of the new Court, Nicaragua was required to ratify the Statute of the expiring
one as well? As the dissenters said in Aeriul Incidenr:

"the requirement of consent cannot he allowed to degenerate into a negation
of consent or, what is the same thing, into a requirement of double consent,
namely of coniirmation of consent already given" (id., p. 187).

3. TheJurisprudence of lhe Cour1

28. The Court has twice had the opportunity to consider exhaustively the
operation of Articles 36 (5) and 37 of the Statute of the Court in erectuating
the transition from the Permanent Court of International Justice to the present
Court (Aeriui Incid<?n?In.c..J. Reoorrs 1961.D. 17: Barcelonu Traction. ICJ. Re-
porrs 1964.p. 6). Neither of these cases, of c6urse; dealt with the precise situation
presenteù here. Nevertheless, the Judgments of the Court in those cases and the
numerous separate and dissenting opinions are exceptionally illuminating of the
principles involved in the present case. Nicaragua submits that the position it
advances here is wliolly consistent with those principles if not indeed compelled
by them.
29. To start with the most recent of those cases, BurcelonuTracrion,it presents
a situation strikingly similar to the one now before the Court.The title to juris-
diction advanced b:j Belgium wasa clause in the Hispano-Belgian Treaty of 1927
providing for the reference of disputes to the Permanent Court of Inter-
national Justice. Belgium contended that, by virtue of Article 37, the clause

became operative, "as between the parties to the present Statute" to confer
jurisdiction on this Court when Spain became a member of the United Nations
in December 1955. This position was accepted by the Court. It necessanly
followed that the jurisdictional clause relied on had remained in abeyance for
almost a decade between the dissolution of the Permanent Court and the admis-
sion of Spain to th,: United Nations. The clause had no operational force during
that period, because Spain was not a member of the United Nations or other-
wisea "part[y] to the present Statute". When it finallyjoined the United Nations
its adherence 10 the Statute' under the lems of Article 93 (1) of the Charter,
satisfied the requircment and activated the jurisdictional clauses.
30. Spain argued that the asserted construction created an anomalous situation

"in which the jurisdictional clause concerned, even ifin existence, is neces-
sarily inoperative and cannot be invoked by the other party to the treaty
containing it: and then, after the gap of years, suddenly it becomes oper-
ative again, and can be invoked as a clause of compulsory jurisdiction
to found proccedings before the Court" (Barcel~~nu 7iaclion. I.C.J. Reports
1964, p. 35).

The Court trcdted this objection with equanimity: "the notion of rights and
obligations thal are in abeyance, but no1 extinguished, is perfectly familiar to
the law and represents a common feature of certain fields" (id., p. 36). Spain's
admission io membership in the United Nations activated the obligation.
31. So here, Nicaragua's declaration was "in existence", although "ino~ra-
tive" or "in abeyance" because of its failure to ncrfect thc ratification of the
Statute of the ~eknianent Court. Like Spain, by beioming a party to the present
Statute and accepting al1 its provisions, including Article 36 (5). Nicaragua
activated itsdeclaration.
32. The dissenters in the AeriulIncidenrcase thought that they were vindicated
by the rcasoning of Rurcelonu Traction. (Sec separate opinion of Vice-President [18-201 MEMORIAL 369

\\'cllington Koo, Hurr,li,nu Tri,,.t;ofr1L'J R<y>r>r1 l964, p. jl : bcparatc opinion
nf Judge Tarioka. ri/. p h5 ]Their positinn riasthal Rulgaria, Ino. h;id a jLri,-
dicti<inal dr~.lar;ilii>ncccpiing the 2onlpulsory jurl~~iciii~nof thr. Pcrm:inent
Court that was in existence and unexpiÏcd because by its terms of indefinite

duration, and nccding only Io be activated, through the operation of Article
36 (5), by Bulgaria becoming a party Io the present Statute. This reading of
Article 36 (5) is perfeclly parallel to the Burcel~~nT araction analysis of Article
37 and equally supports Nicaragua's position.
33. The majority in Aerial Incident, of course, did no1 accept this view. But
the point of diiïerence between the majority and the dissent had nothing to do
with the that an existingjurisdictional instrument, for some reason

in ~ ~,~nc~~. could be activated bv the subseauent ratification of the Statute. ~~~
Oihcrwisc thc A<,r;,i/lt~ri~kntmqnrity cuuld not hivc *cccptcd Hiirrrbinit 7iuc.-
ta,n ï'hc point or Jill>renrr. UJS the majority's i,ir.wthat ihr. Bulgar~ïn Jecla.
ration had e.\pircd aith the di>r,,lutii,n ni thc Perniancnt ('ouri and thcrcforc
mai no Iongcr "in ioric" u,hen 1iiilg;iri;irdiilicd ihc Si:iiutr. (SecAeri<il11rrid.ni
1CJ. K<p~,ri%/Y.!/. p. 142.T 1he carr. a,:, $thcr\ri$c Lir Jcclsr:intj ihiit wcrr.
Oricin.11Mcnihcrs of the I'niir.il U.~iioii~dnd Iiad hr.c.>mcmirtic, tu the Statute

befGrethe dissolution of the Permanent Court (id.).
34. The crucial point for the Court was that. for States that had accepted the
compulsory jurisdiction of the Permanent Court but no1 yet joined the United
Nations, "the dissolution of the Permanent Court freed them from that obli-
gation" (id, p. 138). In those circumstances, to accept thejurisdiction of the new
Court required a new manifestation of consent, which "can validly be given by

Bulgaria only in accordance with Article 36, paragraph 2" (id.,p. 145). The
fundamental premise isthat the old declaration,once "lapsed" or "extinguished",
can never be "revived" (id.).
35. Whatever the merits of that analysis, it kas no application to the situation
at bar. Nicaragua wrisan Original Member of the United Nations. It was a party
to the Statutc of this Court before the dissolution of the Permanent Court.
Indeed, it had first expressed ils approval of Article 36(5) by voting for il as a
member of Committee IV/I at theSan Francisco Confercnce (UNCIO Br~cunients,

Vol.Xlll, p. 251). Its declaration, therefore, did not "lapse" or "become cxtin-
guished" because il was "devoid of objcct" (Aerial Incident.I.C.J. Repurts1959,
p. 143).
36. Nor was there any period or moment of lime when Nicaragua was released
from its declaration, even though the obligations undcr it may not have been
perfected. Thus, the problem that the Court perceived with respect to Bulgaria
does not cxist with respect to Nicaragua. For Nicaragua, Article 36(5) had the

eflect that the Court in Aerial Inciden! attributed to il:
"10 introducc a modification in the declarations to which il refers bv sub-
stituting the International Court of Justice for the Permanent ~&rt of

International Justice, the latter alonc bcinv mentioncd in those dcclarations,
and by thus transferring the legal etkcÏ of those declarations from one
Court to the other" (id.,p. 136).

"The legal efTFct"of Nicaragua's declaration at that moment was that itwas
capable of being perfected by ratification of the Statute of the Permanent Court.
It was this "legal elfect" that was transferred. thus permitting Nicaragua's
declaration to be perfected whenit ratificd thc new Statute.
37. 11secms Io have been common ground that the decision of the Court left
Nicaragua's status intact. This was explicitly rccognized by the dissenters in their
response to Judge Badawi's separate opinion. which proposed a narrower scope370 MiLiTARY AND PAMMILITARY ACTIVITIES (20.223

of ooeration for Ar~icle36 (5) than had the maiority (i. . o..148). The dissenters
poiited out that "if the intehretation contendéd for had been'adopted . . .its
result would be to invalidate . .. the existing declarations of a number of States

- such as . . .Nicaragua" (id, p. 193).
38. The Court in Aerial Incident described ils position in precise and categori-
cal terms :
"Consent tc the transfer to the International Court of Justice of a
declaration auiepting the jurisdiction of the Permanent Court rnay be
regarded as efictively given by a State which, having been represented at
the San Francisco Conference, signcd and ratified the Charter and thereby
acccpted the Statute in which Article 36, paragraph 5,appears." (Id., p. 142.)

39. UICJ~J~U~ fiillh31descripiion in every plirticular. Thcrefore, lis hrtwçcn
I~P p:iriiesIO ihe Siaiuie.11sdeclïrïiion musi be"dccmed 1,)bç IxnJaïccptancc[]
oCthe ci,mpulsory juridiction of ihc Intcrnlitional Cour1 <ilJustice"

4. The Practice cfthe Court. the Parties and Other Stores,and the Opinions ij
Jurisrs

40. According to the text and purposes of Article 36 (5) as the relevant
decisions of the Court. the Article should be inter~reted as ooeratina to activate
Nicaragua's declar~itionof 24 September 1929 so'as to maki it a fÜllyeffective
and binding acceptance of the compulsory jurisdiction of the Court. This inter-
oretalion iiconfirnied and reenforced bythe uniform practice of the interested
States and international organizations. for the past'38 years. This Section
of the Memorial examines the practice of the Court itself, of Nicaragua and
the United States, the Parties to the present action, of other States party to the
Statute of the Court, and the opinions of jurists and publicists expert in
international law.

(a) Thefirsr Ycarbi~okof rhe Court
41. The first Yearbookof the present Court, that of 1946-1947states unequivo-
cally that Nicarag~ia's"Declaration made under Article 36 of the Statute of the

Permanent Court" is "deemed to be still in force" by virtue of Article 36 (5) of
the Statute of the present Court (I.C.J. Yearhook1946-1947,p. 111, n. 1). This
statement represents a deliberate action substantially contemporaneous with the
adoption of the Siatute, when many of those who participated in drawing up
the Statute were !;till at hand, and when the understanding of the intended
meaning and purpose of the Article was still fresh and vivid in their minds.
42. In three separate places, the Yearhook 1946-1947 included Nicaragua
among the States with effectivedeclarations of acceptance of the Court's corn-
pulsory jurisdictiori. At pages 110-112,there is a table entitled: "Menlhers of the
United Nations, oiher States parries ro rhe Butuie and States Io whichthe Court
isopen (An asterisk denotes a State hound by the compulsory jurisdiction
clause.)" (Ill., p. 110(footnotes omitted).) A caption of the table reads:

"Deposit of declaration accepting
compulsory jurisdiction
State. Date. Conditions."

Nicaragua is listed thereunder as follows:

"'Nicaragua 24 lx 1929 ' Unconditional." Footnote I reads: "Declaration made under Article 36 of the Statute of the
Permanent Court and deemed to be still in force (Article 36, 5, of Statute of the
present Court)." (Id, p. II 1.)The identical footnote also appcars with reference
to Australia, Canada, Colombia, Dominican Republic, El Salvador, Haiti, India,
Iran, Luxembourg, Ncw Zcdland, Panama, Paraguay, Siam, Union of South
Africa, United Kingdom and Uruguay (id., pp. 110-112).The declarations of al1
of these Statcs, like that of Nicaragua, were either for an indefinite duration or
for a duration that had not yet cxpired, and were eitber unconditional or subject
to conditions that had been fulfilled. Hence, they were al1"deemed to be still in
force" under Article 36 (5).
43. Later in the Yeurhook 1946-1947al oazes 207-220.there isa table of "Com-
munications and declarations of States b6ch are stiil bound by their adher-
ence to the Optional Clause of the Statute of the Permanent Court of Interna-

tional Justice." (Id., p. 207 (footnote omitted).) The declarations of such States
are then set out in full. One of them is that of Nicaragua:

"Nicaragua '.
Au nom de la République de Nicaragua, je déclarcreconnaitre comme
obligatoire et sans condition la juridiction de la Cour permanente de Justice
intemationale.

Genève,le 24 septembre 1929.

(Sign6) T. 1:. MEDINA."

(Id, p.210.) Footnote 1 reads:

",\ccorJlng I<Ia lcl~gr~md21eJ F\o\.cmhcr 29th. 1939.aJ~lrcsscJ to the
Lrague oi Nliiions. N~clirligui(haJ ~~tificctlhe Pro1o;ol of Signature of the
Sililute of the Perni;incnt Cour1 of Intcrnaiiondl JLSIICC (Dcccnlhr l1tl1.
1920).and the instrument of ratification was Io follow. Notification concern-
ing the deposit of the said instrument has not, howevcr, been received in
the Registry." (Id)

44. The footnote shows that Nicaragua's failure to deposit its instrument of
ratification of the Protocol of Signature of the Permanent Court was wellknown.
Nevertheless, Nicaragua's declaration under the Optional Clause was "deemed
to be still in force"undcr Article 36 (5). This treatment can only rciiect a con-
tcmporaneous understanding that, for States like Nicaragua, whose declarations
were unconditional and unexpired and which hasduly ratified the United Nations
Charter, the ratification of the Statutc of this Court sufficedto give those dec-
larations binding force. Completion of the formal ratification process of the
Statute of the Permanent Court was unnecessary.
45. Finally, the Yeurhnok 1946-1947 contains, al pages 221-228, a "List of
States which have recognized the compulsory jurisdiction of the lnternational
Court of Justice or which are still bound by their acceptancc of the Optional

Clause of the Statute of the Permanent Court of lnternational Justice (Article
36 of the Statute of the International Court of Justice)." Nicaragua is listed as
bound "unconditionally" (id., p. 226).
46. The consistent trcatment of Nicaragua in the Court's first Yeurhook as a
State bound "unconditionally" by ils acceptance of the Court's compulsory
jurisdiction was not an accident. This is demonstrated, in particular, by the fact
that Nicaragua received preciselythe opposite treatment in the final Yearbook of
the Permanent Court of International Justice, that of 1939-1945.In the Pcrmanent372 MILITARY AND PARAMILITARY A~IVITIM [24-261

Court's last Yearhook, as in earlier publications of that Court, Nicaragua is listed
among those State:; no1 hound hy the Court's compulsory jurisdiction. (See
P.C.I.J. Yearbook 1939-1945,p. 50.)That classificatioii followsfrom Nicaragua's

failure to have depoiited its instrument of ratification of the Protocol of Signature
of the former Court. Thus, in preparing the first Yeurhook of the new Court, a
conscious decision was made to transfer Nicaragua from the list of States nor
bound by the Court's compulsory jurisdiction to the list of States that were
hound.
47. The logical explanation for this reversal in treatment is that Nicaragua's
declaration of 1929.although unexpired and in force. was insufficientin itself to
estahlish a hindinp.acceotance of comoulsorv iurisdiction. For that ouroose. it
uas ncccswy thai Nicaragua sh<iuldcuniplete ihc raiiîiiaiion of the Protocol of

Sign;iturc of the Sl:.iuie of ihc Permanent Court 01'Iniernaiional Jurtiie. unless
bv operatiuii ui Ariicle 36 (5). Yicaraauii, r.tiifizdtion of the Cnited Naiioni
charter (and therel~ythe S&~'"teof the present Court) was to be taken as the
equivalent. Since Nicaragua never completed ratification of the old Protocol of
Signature, the classification in the Yearbook of the present Court must have heen
based on the second alternative. Its declaration "was deemed" an acceptance of
the compulsory jurisdiction when it completed ratification of the Charter, and
the Charter and Statute came into force on 24 October 1945.

48. The care and deliberation of the compilers of the Yearbook is confirmed
by a detailed comparison of the treatment given in the last Yearbook of the
Permanent Court and the first Yearbook of the present Court to other States
that had made declarations under the Optional Clause. The last Yearbook of the
Permanent Court listed ten States, including Nicaragua, that had made declar-
ations but were no1 considered hound by that Court's compulsas. jurisdiction
(P.C.I.J. Yearbook 1939-1945,pp. 49-50). Of these ten States, seven had made
declarations that b:, their own terms were conditioncd on ratification, but were

never ratified (Argentina. Czechoslovakia, Egypt, Guatemala, Iraq, Liberia and
Poland) (P.C.I.J. Yearbook 1939-1945, p. 49). Thus, their declarations never
came into effect.Three other States are listed as having made declarations under
the Optional Clause but as having never completed ratification of the Protocol
of Signature (Turkcy, Costa Rica and Nicaragua) (P.C.LJ. Yearbook 1939-1945,
p. 50). The declaration of Turkey, for a definite duration, had expired; that of
Costa Rica was considered extinguished when Costa Rica withdrew from the
League of Nations and renounced its obligations thereunder, including its
declaration under the Optional Clause (P.C.I.J. Yearbook 1939-1945,p. 361 and

DU.348-349, n. 4). Thus. the onlv State on the lis1with a declaration that was
;iléiti!c (11 u.311101iundiiiuncd Ln ratification or ariyihing elsel 2nd une\pired
iit u;i, li~ran indcliniic Jurxti<>nlthdi ,111 1i:ir<onsidercd not tu br. h,>uiiJ by
the compulsory jurisdiction of the old Court was Nicaragua.
49. With the advent of the new Court. and with ratification of the U~it~~- ~ ~
Natirins Ch;irier. :rliçamgua - donc among ihert icn Sixtes - um Jer~med
hound hy the conil~ulsoryjurisdiction of the new Court bcc~uss it alune hail iin
clTc;iii,eanil unïhnlred de-laration Thur. in the lirst Yerirhook oithe ncw Cuuri

Nicaragua was sh'iftedto the group of States - there were 16 others - with
declarations under the old Optional Clause that were stilleffectiveand unexpired.
Nicaragua was the only Stale in the group of 17 that had not cornpleted rati-
fication of the Protocol of Sienature of the Permanent Court. But. obvi~~.l~ ~ ~ ~ ,.
that wasnot considered determynative,sinceNicaragua had completed ratification
of the United Nations Charter and thereafter the old Court had uassed out of
existence. Thedisuositive factswere :(1) Nicaraeua's declaration wis stilleffective
in accordance wiih ils own terms; and (2) ~i&ra~ua ratificd the Charter as anOriginal Member. Thus, by virtue of Article 36 (5) Nicaragua's declaration of
1929, like the effective and unexpired declarations of the other 16 States, was
"deemed to be still in force" and therefore sufficient to bind Nicaragua and the
other States to the compulsory jurisdiction of the Court.
50. This is precisely the conclusion reached by Professor Hudson. whose
authority in these matters was noted by the dissenters in Aerial Incidenf
(1.CJ. Reporrs 1959, pp. 127, 174(joint dissenting opinion)) :

"lt is of direct interest to the issue here examined to note the manner in
which. at the beei-nine o- 1947. a writer. who is reearded as the most
auihoritati~c cummentiti>r on ihc Si~iute.wliouas a Jiidgcoi'the I'crmaneni
Couri snd who ua, prcwni on bch;ilf of that Court hrith in the Commiticc
of Juriiij ai \V;ishinrion dnd in ihe relevani Commirice of ihc Ctinkren-e
of San Francisco, uiderstood the operation of paragraph 5 of Article 36.
Professor Manley Hudson stated, al that time, without alluding to any
exception, that 'under paragrdph 5 of Article 36previous declarations under
Article 36 are to be deemed to be still in force, to the extent tbat tbey have
not expired according to iheir terms, "as between the parties to the present
Statute"' (AmcricunJournul oflntcrnuliotiul Law, Vol.41 (1947). p. IO)."

In his next sentence, immediately followingthe one quoted by thejoint dissenters,
Profcssor Hudson wrote:

"ln consequence the previous declarations made by Australia, Brazil,
Canada. Colombia. Dominican Reoublic. Great Britain. Haiti. India. Iran.
Luxcmhourg. Yeu %caland. .\'ii.ur<i~i,uP . an;ini;i. El SaIv:iJ<>rSiam. South
,\iric, 2nd Ilrugudv u.crc in forcc doun io ihc cnd ol 1946" (,l»irri<wn
Jottrnul <,jl»rrr~iiiri~.Lluii.VbI.41 ( 1947). p.III(empharii a<ldeJJ.J

51. It will be noted that Professor Hudson's list of those States whose still-
effectiveand unexpired declarations under the old Optional Clause were "deemed
to be still in force" by virtue of Article 36(5) coincides almost exactly with the
lis1 of States treated as such in the Court's Yeurhook 1946-1947. The only
exceptions are Brazil,which was includedin Professor Hudson's lis1but excluded
from the Yeurbook's,and Paraguay, which was included in the Yeurbuok'slist
but excluded from Professor Hudson's. These are easily explained. Brazil's
declaration expired by its own terms in 1947.l'hus it was "still in force" at "the
end of 1946", as Profcssor Hudson States, but had expired by the time of
publication of the Yeurbook.In the case of Paraguay, Professor Hudson appar-
ently deferred to that State's purported withdrawal of its declaration in 1938,
while the Yeurhookincludes Paraguay subject to a footnote describing the pur-
oorted withdrawal.
52 Proiesiur I1i.Jsun hiid c\prcirr.d the iimc i,~nclu\i.?ii iritliropeit IO ihc
ciTcitiiencsi 01 Uicaragu;i'\ de~l.~r~ti.,nJnJcr Ariicle Ih (5) ille prL.i.iour!.car.
in 'The Twent\-l:ourth Yedr oi ihc \\'orld Cuurt". ,i»~erir~irJ~< is~tr~iil I'l~rr<~r~z~~-
rional Luw, voiume 40 (1946):

"lhe nen p;ir;tgraph 5 iras inrcrtcd aith ihc purp,bic of prcbcrving some
of the jilrlidliiion oiihc I'crmaneni Court for ihc neu,Couri. Iiir the States
uhiih h.iJ Jr.piiriied raiilii~~iion.:on O-lobcr 24. 19.15.ihe date i>nuhiih
the Statute eitered into force, that provision must operate as of that date.
At that lime, declarations made by the following States under Article 36
were in force, and as 'between the parties to the Statute' the provision
applies to them: . . Nicaragua . . ."(Id., p. 34.)374 MlLlTARY AND PARAMILI'rA ARYrlVITtES [28-301

53. From the correspondence submitted by the United States and Exhibits 1
and II at the oral hearine on orovisional measures. it is clear that Professor
Hudson was fully aware, as ea2y as 1942,that ~icaia~ua had never deposited
its instrument of ratification of the Protocol of Signature. Thus, his consistent
and unequivocal treatment of Nicaragua as bound by the compulsoryjurisdiction
of the Court under Article 36 (5) is particularly significant.

(b) Perrinentpublicdocunzenis

(i) TheYearbooks of theCouri. 1946101983

54. The most authentic public record of the acceptances of the compulsory
jurisdiction of the Court is tYearbook of the Court, published by the Registry.
The source of the information would also be authentic, given the duties of the

Registrar described in Article 26 of the Rules of Court. The appearance of a
declaration in the Yearbook puts the States concerned, and particularly other
declarant States, on notice ofthe legal status quo as perceived bythe Registry.
55. Every Yearbciokof the Court, beginning with the first one in 1946.1947,
has listed Nicaragua among those States that are subject to the compulsory
jurisdiction of the ICourt,and has included Nicaragua's declaration of 1929as
the instrument by vihich Nicaragua acceptedjurisdiction. In the words of Judgc
Schwebelin his dissenting opinion to the Order of 10May 1984:

"the Registry of the International Court of Justice and the Secretariat of
the United Nations from the outset of the lire of the Court and the
Organization did treat Nicaragua, which became automatically party to the
Statutc as an original member of the United Nations. as a State bound to
this Court's compulsoryjurisdiction by reason of its 1929declaration being
deemed to be still in force" (Order of 10 May 1984, I.C.J. Reporrs1984,
p. 202 (dissenting opinion)).

56. In the current Yearbook, for 1982-1983, the section of "Declarations
Recognizing as Compulsory the Jurisdiction of the Court" is preceded hy an
introduction (p. 56:)that includes the following passage:

"ln view of the provisions of Article 36, paragraph 5, of the Statutc of
the Internatioiial Court of Justicc. the prcscnt section also contains the
texts of declarations made under the Statute of the PermanentCour1 of
InrernuiionalJusricewhich have not lapsed or been withdrawn. There arc
now eight sucti declarations."

The eight are: Colombia, Dominican Republic, El Salvador, Haiti, Luxembourg,
Nicaragua, Panama and Umguay.
57. The footnote appearing in theYearbook1946-1947 (at p. 210) and reciting
Nicaragua's failure to deposit its instrument of ratification of the Protocol of
Signature is not repeated in subsequent issuesuntil tYeorbook1955.1956. The

Yeorhuok.rfrom 1947.1948through 1955-1956do not include the tcxts of the
declarations of Staies that appeared in earliYeurh<ioks .ince Nicaragua's full
declaration was printed in the Yearhuok1946-1947, the subsequent Yeorhooks
during thc pcriod cither list Nicaragua by name among those States with efkctivc
declarations accepting the compulsory jurisdiction of the Court, and refcr for
the fulltexi back to thYearbook1946-1947 (p. 210), wherethefootnoteappcars,
or, as in 1955.1956,set forth the footnotc in full. The format was changed in
1956-1957,and conimencing with that Yearhook,the full text of each declaration was repnnted '.The Yeurhook1956-1957contains the following footnote under
Nicaragua's declaration (p. 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 International Justice (December 16th,
1920), and the instrument of ratification was to follow. It does not appear,
however, that the instrument of ratification was cver reccived by the League

of Nations."
58. The Yeurbookssince 1956-1957 have contained Nicaraeua's dcclaration
vcrbatiiii in the tcxt iiith this \,crsion of ihc f<>iitn\~ticn the luucr iii;irgin. 'l'hc
ïnotnc>tcdraus no Icg;tlconslusioni. InJcrJ. the iriiplic~iion oi thc listing tihirh
is sel idrih !,crhÿiim. 1.5th21ihr,dc.~l;ir;iiionCiOiiiinJerin iorir,: II,in~.lu.;ion
in the Ycurbook.Moreover, the relevant section of each issue of the Yeurhookis
introduced by a passage, quoted above, that clearly assumes the continuance in
force of the declarations included.

(ii) Reporis of ihe Internuri~~nu Clourrof Justice 10 the Unite</Nutir>nsCeneru1
Assembly

59. The Reports of the InternotionalCourt of Justice to the United Nations
General Assembly begin with the Report for 1967-1968.This Report and sub-
sequent Reports for each session until the latest available edition (for 1982-
1983), without exception, include Nicaragua in the list of "States recognizing
the jurisdiction of the Court as compulsory". There is no refcrcnce to the
question of ratification of Nicaragua's declaration. The lis1of documents is as
follows: General Assembly, Oficiul Recorh, 23rd session, Suppl. No. 17,A17217
(Report of the International Court of Justice, 1967-1968); 24th session, Suppl.
No. 5, A17605(Report, 1968-1969); 25th session, Suppl. No. 5, A18005(Report,
1969-1970); 26th session, Suppl. No. 5, A18405 (Report, 1970-1971); 27th ses-
sion, Suppl. No. 5, Al8705 (Report, 1971-1972) (no list of names - just "46
States accept jurisdiction"); 28th session, Suppl. No. 5, A19005 (Report, 1972-
1973); 29th session, Suppl. No. 5, Al9605 (Report, 1973-1974); 30th and 31sl
sessions, Suppl. No. 5, A/31/5 (Report, 1974-1976); 32nd session, Suppl. No. 5,
Al3215 (Report, 1976-1977); 33rd session, Suppl. No.4, Al3314 (Report,
1977-1978); 34th session, Suppl. No. 4. A13414 (Report, 1978-1979); 35th
session, Suppl. No. 4, Al3514 (Report, 1979-1980); 36th session Suppl. No. 4,
A13614 (Report, 1980-1981); 37th session, Suppl. No. 4, A13714 (Report,
1981-1982); 38th session, Suppl. No. 4, Al3814 (Report, 1982-1983).
60. In 1979 a substantial description of the work of the Court was published

with the imprint "I.C.J.: The Hague: 1979". This publication bears the title The
InrernufionalCourrof Justiceand includes a lis1of "States accepting the compul-

' During the oral hcaring on provirional measurer, the Agent of the United States
insinuatedthat Nicaraguahad dclibcratelyprovokedthe reappcaranccof thc footnotein
orderto creatca pretextforavaidingthe compulsoryjurisdictionof thcCourt in theevent
of an Applicationby Hondurasagainst Nicaragua.Theshort and dispositivc anrwer to
this chargeis that when Honduras ultimatelybrought suit against Nicaragua,alleging,
dcclarationof 1929,Nicaraguadid no1object.In any cvent,the UnitedStatesinsinuation's
- unsupportcdby any cvidcncewhatsoever - is refutedby the changcin formatof the
Yearbook,whichfullycxplainsthe reappearaneeof the tex1 of the faatnatc in 1956-1957
and thereafter.376 MII.TTARY AND PARAMILITARY ACTIVITIES [32-341

soryjurisdiction of the Court in 1979".(Id., p. 40.) Nicaragua is included without
any footnote.

(iii)Secrerary-Generuo l f the UniredNaiions: Reporr andCon~pendium of Con-
venrionsundAgreenienrs

61. In his sec~ ~ ~~~al Re~ort to the General Assemblv. als,.substantiallv
contemporaneous with the estiblishment of the present Court, the ~ecretar;-
General of the United Nations included Nicaragua in a list introduced by the
following caption :

"The following States, having under Article 36 of the Statute of the
Permanent Court of International Justice, made declarations whicb have
not yet expirecl accepting the compulsory jurisdiction of that Court, are
deemed, in accordance with Article 36 of the Statute of the International
Court of Justice, to have accepted the compulsory jurisdiction of the Inter-
national Court of Justice under the same conditions." (General Assembly,
Oficial Recordr, 1947,Suppl. No. 1, A/315.)

(II may be noted that the Secretary-General uses a form of words approximating
the French text rattier than the English tex1of Article 36 (5)).
62. Since 1949the Secretary-General has published annually a volume entitled
Siynarures.Ruiijicurions,AccepruncesA ,ccessionsP .IC.,cnncerninytheMultilareral
Convenrions und Afreemenlsin Respeciof WliichrlzeSecrelary-GeneralActs as

Deposiiary. The first issue,for 1949,contains a table of States under the heading
"States Whose Declarations Were Made under Article 36 of the Statute of the
Permanent Court of International Justice and Deemed to BeStill in Force." (Id.,
p. 22.) Nicaragua is included in the list. There is no footnote to the listing. The
information is stated to be derived from theYearhiiok of the Court for 1947-1948.
This treatment of the declaration of Nicaragua continued until the issue for
1959, when a footnote (as in the Yearbook of the Court) became a regular
appearance. See tho volume for the period ending 31 Deccmber 1982(St/LEG/
Ser.E/2, New York, 1983, pp.24-25). There has been no change, however, in
Nicaragua's listing among States whose declarations are "Deemed to be Still

in Force".

(iv)Yearbooks nf ille United Nations

63. For 38 years the Yearbook of the United Natir~nskas listed Nicaragua as
a State accepting the compulsory jurisdiction of the Court. The Yearbook for
1946-1947(p. 611). under the heading of "States accepting Compulsory Juris-
diction", includes Nicaragua, and Statesthat the

"declaration took effect on November 29, 1939, when the Nicaraguan
Government 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 daes not appear in subsequent issues. In the Yearhook for
1948.1949(p. 151). Nicaragua is included in the lis1ol States accepting compul-
sory jurisdiction, u~itha footnote refernng to the application of Article 36 (5).
The same treatment appears in the following Yeurbook for 1950(pp. 123-124).
The Yearhooks frcm 1951 through the most recent edition in 1980 include
Nicaragua in the list of acceptances without any lootnote (see Yearbook, 1951,

p. 106; 1952, p. 150; 1953,pp. 42-43; 1954,p. 567; 1955, p.473; 1956,p. 507; 1957.p. 522; 1958.pp. 528-529; 1959, p. 576; 1960,p. 731; 1961,p. 723; 1962,
p. 695; 1963, pp. 723-724; 1964, pp. 621-622; 1965, pp. 854-855; 1966,
pp. 1123-1124; 1967, pp.988-989; 1968,p. 1097; 1969,p. 1015; 1970,p. 1062;
1971,p. 809; 1972.p. 872; 1973,pp. 1028-1029; 1974,p. 1100; 1975.p. 1152;
1976,pp. 1088-1089; 1977,p. 1229; 1978,p. 1230; 1979,p. 1387; 1980,p. 1398).

(v) Other UnitedNutionspublicutions

A. The inclusionoi Nicaragua a\ a Siaic ac.cpiing the c,>mpul,ory,urisdictiun
oi the C,iuri ii to bc wcn in a nuniber of ancillary iiiliçixl public'itioiir ol ihc
United Yaiit~nr Thus the publi~.litionentiilcd /I,rr~»tu»'s U~irrcd.\'orri~ri~cludci

Nicaragua in the relevant listing. (See. for exakole. the sixth edition. 1959.
pp. 380-381.) This is also a c<aaràcte;isticof thé ;tandard unitid Nations
Informarioi~Book on the Court, copies of whichare available in the foyer of thc
Peace Palace
65 Tlic pcr\istciit and uni,;iricd rciogniti.rn. hy Siwr.igu:i anJ i>therSt:ire,.
ofthe applic.iiion of Ariiclc 36 (5) io the ilecl;ir.itt~ii Ni:.iragu.i1, r.~t:ihli~lied
bc\oiiJ an, re.iriin.ibli doubi by the t~t:iIrilcnce oi suili Siùrcs in rhc r;i~eof
thé contin;ous treatment in t6e Yeurhooksof the Court and other ouhlic .~ ~
J~~cunicnt,ior 38 'car,. oi Yi;.ir.igii:, ;~sbi)i.iiJ hy ihc Court', cuiiipul,<>r)
rJ~ci~n. Ilad .iny of the riihcr St;ite, iuhjcct io the C~urt', luridi~tion
obiected to ~icaraeud's inclusion in the list. it would have been bound to reeister
,ilch irhjcçrion InJccd, the prc\cnLcc>iihcfootnotc in ihc Yi.i~rhor>kithc Cuuri
and cl\cuhcre ovcr :iirry long pcriod mxkes the siltnce oi States p.irtlr.5 i<>the

St;itute ;il1thc inore el<>rluenr 011 ;il1side, ihc inf<~rniaiionconia,neJ in ihr
footnote was not thoughi to have any legal consequences that could affect the
validity of Nicaragua's acceptanccof compulsory jurisdiction.

(c) Autliorilarii~opinionstfleu<lingpt<hlici.~f,s

66. In asscssing the continuance in force of a treaty or equivalent consensual
obligation, the general opinion on the status of the instrument concerned has
probative value. This was afirmed in the joint dissenting opinion of fiveJudges
in h'iicleur Tests (Austruliu v. Frunce), Judgritent (I.C.J. Reporrs 1974, p. 253,
pp. 340-344).In that opinion il is stated:

"Accordingly, Francc was doing no more than conform to the general
o~ini~iiwhen in 1956and 1957shemade the 1928Act one of the bases of her
ciaim against Norway before this Court in the Cerrain~orwe~iun~oanscase
(I.C.J. Reporrs 1957, p.9)." (ICJ. Reports 1974,p. 341(emphasisadded).)
67. It is submitted that such gcncral opinion is reflected inand confirmed by
the expression of authoritativc expcrt opinion in the literature of international

law. The ooinion of Professor Hudson has alreadv been discussed.The followinc
adJiii~>n;ilourccr iredi Yi~~r:igua 3, ha, ing.i;.epti~ the compul%i>rl!uris~icti~ik
of thc Iiitcrii~ii<>nilCi~uri oi J..SII~C(the sr.qucncc i~~lloasthe Jdrc ,IVpuhli-
cation) :
Hambro, E., Britisli Yeur Book (f Inrernarional IAW,Vol. 25 (1948). p. 133,
pp. 136(note 6), 140(note IO), 152-153.
Lissitryn, O. J., TheInternalionul Coiar ofJirslice, New York, 1951,p. 66.

Farmanfarma, A. N., The Becl~rredJurisdiction if' the International C~~uriof
Justice, Montreux, 1952,pp. 26(note 32). 180.
Sohn, Louis B. (cd.). Busic Docitmentsof the United Notions, New York, 1956,
p. 213.Jenks, C. W., "Rapport provisoire", Aiinuairede i'lnsrirurde droir inlernurionol,
Vol. 47(1957. I), p. 34, p. 50.
Anand, P. R., CompulsoryJurirdicrionof rhe InrernarionalCourr of Justice,
London, 1961,pp. 54(note 61). 173(note 71).

Dubisson. M., La Cuurinrernario~nod leJustice,Paris. 1964, p. 160(n. 55).
Van Panhuys, H. F'.,Brinkhorst, L. J., and Maas, H. H., InrernutionulOryanr-
zuiiunundlnre~r~rriun .eventer : Levden. 1968. D. 618.
Mosler, H., and~ernhardt, R., ~udicial'~erllemeni of InternarionulDispules,
Berlin, 1974,pp. 214-215.
Castel, J. G.,Internolional Ln!<,CliieflyasInrerpreiedondAppliedin Catiuda, 3rd
ed.,Toronto. 1976, p. 1248.
Sweeney, J. M., Oliver, CoveyT., and Leech, Noyes E., Cusesand Marerialson
rheIniernarionalLegalSysrenl, 2nd ed., NewYork, 1981,p. 59.

Rousseau, Droit iniernar~~nulpublic 1.V, Paris, 1983,p. 455.
Bowman,M. J., and Harris, D.J., MulrilulerulTrearies:IndexandCurrentSiutus,
London, 1984,p. 114(Treaty 181).

68. None of theisesources cxpressesany douht concerning the acceptance by
Nicaragua of the compulsory jurisdiction ofthe Court, and no refercnceis made
to the footnote in the Yearhook of the Court. Hambro makes the following
emphatic statement :

"it is open to any State to accept the jurisdiction of the Court without any

rcservation ael in resoect to anv other State reeardless of whether such other
State kas or hrs noi ;i;iumcd th: samr obligaiion Haiii and Nicaragua bccni.
indccd. tu hav<:dùncthis Sinçeihesciu<)Stotcs in;idcthe dcclaraiioni under
the regimeof the Permanent Court, and sincethey are both Members of the
United Nations, there can be no doubt as to the validity ofthe declarations."
(Op.cil.,pp. 152-153.)

69. Theonly writer to indicate doubt isEngle, Ceorgeti~iiwLuivJnurnul, Vol.40
(1951), page 41, page 53,and yet in a footnote he points out that the Yearbuok of
the Court and Professor Hudson list the declaration of Nicaragua "as effective"

(id, p. 53, note 56). Thus, the dominant, indeed, the virtually exclusiveapproach
is 10recognizethe validity of Nicaragua'sdeclaration. In one of the most recent
works of authority, that of Rousseau, Nicaragua is listed as a declaration "en
vigi<etrr"(opc.il.p. 455).
70. The picture of the general opinion on the matter would no1 be complete
without referenceto the studies by Dr. Rosenne, relating to the functioning of the
Court. In a series of works this distinguished publicist has not thought fit to
question the validi1.yof Nicaragua's acceptance of compulsoryjurisdiction. In the
first of the publications, Dr. Rosenne reports that "seventeen declarations made

before 1946were recorded, in Yeurhouk 1946-7as being in force . . ."(See The
Inlernationul Court of Justice, Leyden, 1957, p. 310.) As shown above, Nica-
raeua was one of tlie seventeen.
71. Thc nrxt wsrk to hc puhlishcrlhl Dr. Kobenncu;ii I'lir Il$,rlil L'<.vrt Il'liot
II 1%uftdIl~i~,II Hhrk~. I.eydcn.Scw York,1962 Ncaraguli isin~,luJi,din;iIisi
of States ~rcfaccd Ihvihr tvcirds:"ln addition. Jcc13r3iion, b\ ilir follouine St31e3
made in kation trithe Permanent Court oflnternational ~Üsticeare belkved to
be in force: . . .(Id, p. 96, note 21.) In the third revised edition, published in
1973,a new wording appears: "ln addition, declarations made by the following
States in relation to the Permanent Court are still recorded as in force:. . ."(Id.,

p. 233,note 21.)Nicaragua continues to be included among those States. 72. In hismajor study, Tlie Luw undPructiceofthe Inrerf~utionulCourt, Leyden,
1965,Dr. Rosenne states unequivocally :

"The Yeurbnokfor 1963-4indicates that the acceptances of the following
countries are still in force under Article 36(5): Canada, Colombia, Domini-
can Republic, El Salvador, Haiti, Luxembourg, New Zealand, Nicaragua,
Panama, and Uruguay." (Id, Vol. 1,p. 378.)
In Volume II there is a compendium of "declarations accepting the compulsory

jurisdiction" (Appendix 10, p. 880). The introduction to this compilation reads
as follows:
"This Appendix contains the texts or English translations and other rele-
vant particulars of declarations accepting the compulsory jurisdiction of the
Court made by virtue of Article 36(4) of the Statute and declarations ac-
cepting the compulsory jurisdiction of the Permanent Court the etTectof
which has been transferred to the present Court by virtue of Article 36(5) of

the Statute (as interpreted by the Court). All of the texts mentioned are
referred Io in the Yeurbooks.The texts and other particulars have been taken
from the League of Nations and United Nations TreurySeries, except where
otherwise indicated. Inclusion or exclusion of any declaration in this
Appendix is not to be considered as an expression of the author's views of
any question connected with the status of that declaration."
The declaration of Nicaragua is included in the collection with a footnote as
follows :

"Original French. 88 L.N.T.S., p. 283. For the parliamentas. instruments
approving ratification, see Arbifrul Aivord case, Pleadings, Vol.1, pp. 128.
129. A ratification said to have been made on 29 November 1939 is not
notified in the Leagueof Nations TreutySeries. See Yeurhook,1946-7,p. 210.
In the 21st List of Signatures, Ratifications and Accessions in respect of
Agreements and Conventions concluded under the auspicesof the League of
Nations, it is stated that Nicaragua's signature of the Optional Clause is 'not

yet perfected by ratification', L.N., O.J., Sp.Sup. No. 193,p. 43. lnvoked in
ArbirrulAwurdcase." (Id, p. 899.)
73. It may be noted that Dr. Rosenne does not e.rcludethe declaration, with an
appropriate explanation. Instead, he chooses to inclrrilethe declaration, with the
footnote, which does not contain any conclusion inimical to the continuance in
force of the declaration hy virtue of Article 36(5). An identical presentation of
the declaration.toeether with the same footnote. aooears in the oublication edited
hy I>r Ko\cnne. I)ocrt,ri~nr.i u thc,In~t~r,iuri~,>i,iil,i<ri~i/'Ji,rrici,(Le! den, 1974.

p 291.second edition. Alphcn aan den Kijn, 1979.p. 392).

(d) Thepructice ofNicuruguu

74. The practice of Nicaragua provides compelling support for the proposition
that its declaration of 1929came into force as a result of Article 36 (5.a.d that
I\'iiar:~gu:ih:~rhicil .uhjcctIC>th: COIII~LII~j~ ur)\!. iti<~oi the C.>uriiontinJ-
ou\ly sinic ils condiiii during ilitpa*t 3h !.<Ar, m;iniie,i, Jn uncquiiocal under-
\ianiliiig1li;il IIh:ir hccn and 15hi>unJ b! ihr' Cùiiri's i.~iiip~lriir\ juri%dlc-
Il<>,,
75. Nicaragua was present al San Francisco. It had a representative on
Committee IV11and voted for Article 36(5) there. Of course, it voted to approve
the Charter and Statute, as presented Io the plenary Conference. And as has380 MILITARY ANI) PAIUMILITARY ACTIVITIIS [40-411

been stated, it ratified the Charter and Statute on 6 September 1945,becoming
an Original Member of the United Nations when these instruments came into
force on 24 October 1945.
76. In 1960 Nicaragua was the Respondent State in proceedings bcgun by
Application of Honduras. One of the bases forjurisdiction asserted by 1-londuras
was that both parties had accepted the compulsory jurisdiction of the Court.
Honduras asserted that, by application of Article 36 (5) to Nicaragua's decldr-
ation of 1929.Nicaragua hecame subiect to the Court's comoulsorv iurisdiction.
Nicaragua did not contest this assertion in any way. The case was, of course,

the caseconcerning the ArhiirulAivardMadeby ihe Kingo/Spuin on23 Deceniber
1906,Judgnient (I.(:.J. Reports 1960,p. 192). The conduct of Honduras in initi-
ating the proceedings in the Arhiirul Atvurdcase is highly relevant and may be
said to be a fair sample of the viewsof other declarant States in the era of the
post-war Court. The material passages of the Honduran Application are as
follows:

"Furthemore, the Parties to the present dispute have recognized, on the

basis of Article 36. oara. 2. of the Statute of the International Court of
Jurtiic. th2 c;mpulscir) j~rirJiitioii uf the C'o~rt, ~pio fu'lt~ and \vittiout
spcii.11xgrccn:cnt. in JII Irg~l disputcr ioiicerning. Inrcr iiliu. ihc intcrprc.
tatiun uf a trr.at\ and ans uucsti<)n01'ini:rn;itional Iau.. anJ thc ci;istcncc
of any factwhicb ifestablished, would constitute a breachofan international
obligation.
On 24 May 1954, Hondurus renewed the declaration which il made on
10 February 1948, accepting the compulsory jurisdiction of the Court, in
accordance with Article 36, para. 2. of the Statute, for a period of six years,

on the sole condition of reciprocity.
Nicuraglruhas also declared that she recognizedthe compulsory jurisdic-
tion of the Permanent Court of International Justice. This declaration was
dated 24 Septçmber 1929. By a Decree dated 14 February 1935,the Senate
of Nicaragua ratified the Statute and the Protocol of the Permanent Court
of international Justice. On II July 1935,a similar decision was taken by
the Chamber of Deputies (O@ciulGazerte, Organ of the Government of
Nicaragua. Yi:ar 39, No. 130, page 1033, and No. 207, page 1674). On

29 Novernber 1939.the Secretarv-General of the Leaeue of Nations received
;itclcgrainhigiied.Relacioncs'.~otiising him ol'the r>ification by Nicdr~pua
<)l'theStatutc and Protocol of the Court. Ilaving regard IO thc>chcts, the
dccllirliiion ul 1929cniercd inIo force and continues io bc v;ili<l by Lirtue
of Article 36. oara. 5. of the Statute of the lnternational Court ofJ;stice.
5. In ihc ciriunistanccs. ihc Goi,crnmrni of ihc Kepublic of tlondurar
coniidcrh that the jurisdiction of the Court 1,c\tshlirhcrl for the piirpoics
oi'rcïol\ing the di,putc :irising froni Ca~lurc i<igivc ctrcii tu the ;irh~trlil
auard maJc tmyllis M;ijc>tythe King oi' Sp~inuii 23 Deicnibcr IYbh I hi>

f:iilurcctjnstit1tc5librcdih uf :triintcrii.itii>naloh1ig;itioiiuhichir rcicr.iblc
to the Court, either hy virtue of the concurring declarations of acceptance
of the comoiilsorv i.ri,diction hv the two States. or bv virtue of the
Agreement sc>lcmnly concludcd on 21 J~ly 1957h) tlic I'orcigii h4iniitcrs oi
H<>ndurlir;inil Nicdr:iguli. uiih rcglirJ 10 the procedurc io he folli>u~ed in
r>resentineto the Intr.rn;ilional Court of Ju\ticc. ihc dis~utc bctnecn tlun-
duras and Nicaragua concerning the arbitral award made on 23 Decem-
ber 1906hy His Majesty the King of Spain.

From each of these Iwo undertakings, and from either of them indepen-
dently of the other, it follows that the Court has jurisdiction to adjudicate upon the suhmissions presented hy the Government of Honduras in the
present Application. (Application, ICJ Pleadings,1960, Arbitral Award
case, Vol. 1, pp. 8-9 (footnotes omitted).)

The substance of these assertions is repeated in the Memorial (id.paras. 36-40,
pp. 59-60).
77. Nicaragua did not dispute the existence of jurisdiction and was concerned
only to point out that certain matters of procedure and evidence were to bc
reeulated in the lieht of understandines between the narties ICounter-Memorial.
I?.J Pleadings,Arbitral ~ward case,hl. 1,pp. 131-i32 ; ~e,oinder, id.,p. 748):
The Court recognized the bases of jurisdiction asserted by Honduras with the
followingrecitalin the Judgment :

"The Aoo..cation relies on the WasbinetonuAereemeut of 21 Julv 1957
hciaicn tlic Pariic.:uitli regardi~ ihc proicdurc r,>hc iollowcd insuhn1.iitng
ihc <Ii>puieto ihc Couri. ihc .Appli;.itiori,idlis. i~rihcrrnurci/r<itr/ii, P<irrrl,.,
hoi<,ri,.~,en!:,.lh ,a>mid<,ai iuri$i/iraitiiiihv <'or,rotr!hi.h.r.i~,i'Arrii~l~~
36, parugraph 2,of ifs~iafule."~l.C.J ~epo;ls1960, p. 192atp. 194iempha-

sis added).)
78. The reference to Article 36 (2) of the Statute here is, it would appear, a
shorthand reference to the existence of two valid declarations. The Court would
be aware that Honduras had referred to Article 36 (5) both in its Application

(para. 4) and in its Memorial (para. 39).
79. The absence of any objection hy Nicaragua, either in the Arbitral Award
case or elsewhereto the continued assertion that il was bound hy the compulsory
jurisdiction ofthe Court represents a clear expression of itshelief that it was so
bound and of its intention to remain so.

(e) Thepracticeof the UnitedStates
80. For al least 36 years, the United States has expressiy recognized the
a~olication of Article 36 (5) to Nicaraeua's declaration of 1929. The United
.. ~, -
States officialpublication, TreatiesinForce, is the authoritative text on al1treaties
and other consensual agreements by which the United States considers itself
bound, and the parties such agreements. Among the agreements listed is the
United States declaration of 14August 1946acceptingthe compulsoryjurisdiction
of the Court. Also listed are the other States which, in the view of the United
States, are subject to the Court's compulsory jurisdiction. Nicaragua is inclu-
ded in the list of States bound, in the United States view, by the compulsory
jurisdiction of the Court without any reservation, qualification or footnote, in
every edition of Treatiesin Force from the first post-war edition in 1955to the
most recent edition, in 1983. (See Trealiesin Force, 1 January 1983, p. 247;
1 January 1982, p. 247; 1 January 1981, p. 302; 1 January 1980, p. 309;
I January 1979, p. 292; 1 January 1978, p. 318; 1 January 1977, p. 313;
1January 1976,p. 375 ;1January 1975,p. 364; 1January 1974,p. 346; 1January
1973,p. 338; 1 January 1972,p. 325; 1 January 1971,p. 317; 1 January 1970,

p. 311 ; 1January 1969,p. 302; 1January 1968,p. 284; 1January 1967,p. 270;
I January 1966, p. 259; 1 January 1965, p. 255; 1 January 1964, p. 252;
1 January 1963, p. 289; 1 January 1962, p. 252; 1 January 1961, p. 289;
1 January 1960, p. 229; 1 January 1959,p. 218; 1 January 1958, p. 210; (no
issue published in 1957); 31 October 1956,p. 189; 31 October 1955,p. 173.)
81. The origin of this entry is a compilation of valid declarations assembled
after a careful study hy Denys P. Myers, Officeof the LegalAdviser, Department382 MlLlTARY AND PARAMILITARYACTlVlTlFS 144-461

of State, first publijhed in the lune 1948 issue of Documentsund Slare Pupers,
Vo~.1. No. 3. Dcnartment of State Publication 3142. Nicaraeua is included in a

tahlc cntitlei 'Siaius 01.De~13rati3nsAcccpting ~<m~uls~r).Jurisdicii~in" as
having made a de;laraiion 'currcntly etkcti~,c" from 29 N<ivciiihcr1929 The
fullie.\tof the '1icar;ieu.inrlcclarrliiISnublihhedon ri.iec?tlI oiihc c<>mnilalion
with a referenceto the footnote on 210 of the &$book 1946-1947.'
82. This compil;ition was reprinted, with revisions taking account of new
declarations and multilateral instruments since 31 March 1951, in the 23 April
1951 issue of the 1)epurrmenr of Srore Bullelin, Vol.XXIV, No. 616. The table
on page 192of the 1948compilation is reprinted verhatim, except for the addition
of asterisks indicating "declarations made before October 24, 1945, which
continue in force" (id., p. 665). The entry for Nicaragua is asterisked. The 1951

version omits the filIltext of the Nicaraguan declaration and the accompanying
footnote.
83. Thc United States recognition that Article 36 (5) applies Nicaragua's
declaration of 19251is further confirmed by the failure of the United States to
object in any way to the inclusion of Nicaragua in the list of States having
accepted the comprilsoryjurisdiction of the Court, sct forth in the Yeurbr~nk sf
the Court for 38 yi:ars, and in the other public documents described above. By
virtue of the footnrite concerning Nicaragua'sdeclaration, set forth in full in the
Yearhooks of 1946.1947, 1955-1956and every subsequent edition, the United
States has been on notice for 38 years of Nicaragua's incomplete ratificationof

the Protocol of Signature of the Statute of the Permanent Court. Neverthe-
less, the United States never objected or raised any question as to Nicaragua's
trcatment as subjei:t to the compulsory jurisdiçtion of the Court - never, that
is. untilulrer the ilresent Ao..~ca~ ~n was filed. Indeed. not even the letter of
Sécietary>f tat tekhultz dated 6 April 1984objects to or'challengesNicaragua's
status as a State subject to the compulsory jurisdiction of the Court.

B. Nicaragua's Conduct andthe Acquiescenceof the United States, as Well as
Other States, Providesa Secondand Independent Basis forthe Eiïectivenessof the
Declarationof 24September 1929

84. It is Nicaraeua's orincival contention that Article 36 (5) immediatelv
tr.inïi;>rm:d Si;aragu,i'i I>cclsr~ii<>n of 1929 into ;fibinding rlcicptanie ui ihc
iompuljor) j~riid~cii<~n oi ihc Court. sincc th31 declar;iiion. ;il the timr ad

Sic;ir;ieu~'sr;itiiic~tion .>ithe Unlied Nations Chdrter. u.4, unionililional and
unlimicd in duration and therefore "still in force". Asdemonstrated above, the
United States contention that application of Article 36(5) was precluded by
Nicaragua's failure to perfect ratification of the Protocol of Signature of the
Statute of the Permanent Court is entirelv without merit.
85 Ilowe!cr. ttc Jeclarariun of ~ica;a~u.i is ctrecti\,c tu confer jurirJ~ction
<inthc Cour1 in th: preseni pro;ccd~ngfor dn cntirel) aepar:itcand indcpendcnt
rca.;on.This indcpi.ndcnib:i\i>.whiih isdiscusred Inihis Sccii<~o nithe h4cmorial.
is established byiwo interrelaied propositions:

(i) Nicaragua'sconduct over the past 38 ycars unequivocally manifests itscon-
sent to be bound by the Court's compulsory jurisdiction. Such an expression of
consent overcomes any formal defect in Nicaragua's ratificationof the Protocol
.. -.enaliire

(ii) The conduct of the United States during the past 38years, like the conduct
of the other States that have declared their acceptance of the Court's compulsoryjurisdiction, constitutes an acceptance of and acquiescence in the effectiveness of
Nicaragua's 1929declaration and a waiver of any formal defect in Nicaragua's

ratification of the Protocol of Signature.

1. Any Befecrin theProcesrofAd11erence Io iheSrurureof rhePermunentCourtof
InrernurionuJ l usriceWasEniirelyu Murrer<fForm andDid Nat RuireAny

86. The details of Nicaragua's deposit of its declaration acceptingjurisdiction
under the Optional Clause and its efforts to ratify the Protocol of Signature are
set forth in Annex 1to this Memorial. The instrument of ratification of the Pro-

tocol of Signature appears not to have been deposited.
87. There can he no question but that this constitutes a defect of form and
not a matter aficting essential validity. In the Vienna Convention on the Law
of Treaties the issue of ratification appears exclusively in the context of the
"means of expressing consent to be bound by a treaty" (Arts. 2, 11, 14and 16).
It is of significanccthat the question of the "invalidity of treaties" is not usually
related to the oroblem of the form in which consent is exoressed but to verv
Jiikrtnt i,r"c\ rucli,I,irauJ tircrrciror iunJ.imcnt;il riant <ijiuth.irit). (Vicnnd
Coni.eniion. Art5 42 IO 57) I hi, criiic;~ldisiiniiion is confirnied b! nuniber
ol .<uthorities.io~luJiiie ihc i~~llu\i,inr:I'rcrident I:hasKrii<iil ih.5<$ii<r\. ol.
134 (1971-III), pp. 34Ï-411 ; ~itzma;rice, Yeurhookof rhe lnrernutionui Laiv

Commission, 1956, 11, pp. 104-128; ihid, 1957, 11, pp. 16-70; ihid., 1958, 11,
pp. 20-46 (and see especially at p. 29); Report of the International Law Com-
mission Io the General Assembly, ihid,1959,11.p. 87at p. 97; Report of the Inter-
national Law Commission to the General Assemhly, ihid.,1966,11,pp. 191-201,
237-249; Rousseau, Broir inrernutionripl r<hlicVol.1, Paris, 1971, pp. 134.149;
Waldock, ihicl.1962, 11,pp. 27-68; ihid, 1963,11,pp. 36-94.
88. These authorities confirm that the conclusion of treaties is a matter of
formal validity (see, for example, Yearbookofihe Iniernutional Law Commissir~n,
1959, 11,p. 97 (draft Art. 3)). The same sources. together with the tex1 of the
Vienna Convention on the Law ofTreaties, confirm that the process of ratification
is an aspect of the means of expressing consent to be bound by a treaty (see
Vienna Convention, Art. II). A defect of form arising from an absence of

ratification is amatter entirelv of the mechanics of exoressine consent and the
expression of consent can readily be perfectcd by othérmeaBs, providing that
no evidencc of a contrary intention is forthcoming.

2. III rheConie.rrof JurisdictionolInsrri~menrs rlieCrirerion1srhutof rheRmliry

of Consent
89. In approaching the legal significance of the formal defect in Nicaragua's

ratification of the Protocol of Signature, the views of the Court on "the question
of forms and formalities" with rcfcrcncc to jurisdictional instruments arc of
obvious relevance. In the case conccrning the Templeof Preuh Viheur (ICJ.
Reports1961, p. 17), the Judgment contains the following important observa-
tions on the significanceof form:

"Next, there was also discussion as to the question of error and its
possible erlccts. Thailand's position. il mightbc said. is thet in 1950 shç had
a mistaken view of the status of her 1940Declaration, arid for that reason
she used in her Declaration of 1950 language which the decision of the
Court in the lsraelv. Bulguriu case showed to be inadequate Io achieve the384 MILITARYAND PARAMILITARY ACTIVI'I'IES [48-491

purpose for which that Declaration was made. Any error of this kind would
evidently have been an error of law, but in any event the Court does not
consider that the issuein the present case is really one of error. Furthermore,
the principal juridical relevance of error, where it exists, is that it may affect
the reality of the consent supposed to have been given. The Court cannot
however see in the present case any factor which could, as it were ex pas1
and retroactiv(:ly, impair the reality of the conscnt Thailand admits and
affirms shc fully intcnded to give in 1950.There was in any case a real
consent in 1950, whether or not it was embodicd in a legally effective
instrument - and it could not have heen consent to the compulsory
jurisdiction of the Permanent Court, which Thailand well knew no longer
existed." (Id, p. 30.)

"The realca:.efor Thailand lies inthe contention that her 1950Declaration
was vitiated dcsoite her clear intentions. because. as she maintains. this
Declaration was Enpresscd in tenns which renderek it legally ineffecti& for
want of an object. Evidently no defect could be more fundamental than to
renew a declaration lacking in an object. But to reach an immediate con-
clusion on thar basis would be gratuitous, for in the light of the reasoning
that has been :;et out above, the effect of the 1950Declaration can only be
established by an independent examination of that Declaration, considered
as a wholc an^in the light of ils known purpose.
. . .
As regards the question of forms and formalities, as distinct from
intentions, the Court considers ihat, to cite cxainples drawn from the field
of orivate law. there are cases where. for the orotection of the interested
parties, or for rcasons of public policy, or on other grounds, the law
prescribes as niandatory certain formalities which, hence, become essential
for the validitv of certain transactions. such as for instance testamentarv
dispositions; and anothcr example, amongst many possible ones, would be
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 fonns and formalities. Where, on the
other hand, a?.is generally the case in international law, which places the
principal empliasis on the intentions of the parties, the law prescribes no
particular forni, parties are free to choose whai form they please provided
their intention clearly results from il." (Id., p. 31.)
"On 20 May 1950, Thailand knew that hcr Declaration of 1940 had
exoired in accordancc with its terms and that in so far as this was material.
~Fticlc36,parcigraph5,had, on anyinterpretation, exhausted itself ha il and
knew she was free of any obligation to submit to the Court's jurisdiction
except by virtiie of a new and independent, voluntary, act of submission on
her part. The only way inwhich she could, at that stage, take action under
Article 36 waspursuant to paragraph 2 thereof: and the dcclaration which
she then made was pursuant to that paragraph, as is clearly shown by the
terms of the I>eclaration itself in its reference to Article 36, paragraph 4,
and >,ithat to paragraph 2.
If, however, there should appear to be a contradiction between, on the
one hand, this reference to paragraph 4 of Article 36, and via that to
paragraph 2, indicating acceptance of the compulsory jurisdiction of the

present Court :and, on the other hand, the references to the 'untransformed'
Declarations of 1929and 1940,from which an apparent acceptance of the
jurisdiction of the former Permanent Court might be inferred - that is to386 MILITARY AND PARAMILITARYACTIVITIES [SI-521

Aivardcase, I.C.J. Reports 1960, p. 192). Indeed, in face of the inclusion of the
declaration in the Yearbook of the Court for sorne 38 years, Nicaragua made no
protest or reservati~n of rights.
93. In these circumstances, Nicaragua has Sully manifestcd its consent to be

bound by the cornpulsory jurisdiction of the Court and this manifestation of
consent is sufficient to overcome any formal defect owing ta ils failure to deposit
an instrument of ratification of the old Protocol of Signature.'

Nicaraaua's continuina willinnness to submit itself to the compulsory iurisdiction of
ihc Cuuri 8; lurihrr i\iJciGcd by Zr adhcr2nic in l9j0 id llic r\me;ican l'r<;ilyun 1';iriTic
S~.iilemrni(ihc 'Pdrt i,IRop,>iA").30 U.\'TS 55.ionialniny pr<ni\ioni for burhjurirdt.'twn
in hrisles XXhl xnd XXXll ,\nicla SXXl or ihr. I'xt of R<>p,tlpro\tdes

In conformil! wtih ,\ritr'le 3b. p.iragr.iph 2. of the Si.iiuic of ihc Inicrn;ii,onal
Couri iiIJu,iirr.. :hr. Ili~h C~nira;ting I'art!i>rlicl;irc ih;it ihrrvugni,r. in rrlliiwn
io .in*,oihcr ~\n~<<niaS ni:iir. ihe i~ri,.liciioiilihe <:ouri ii\iomr>.il~r, ru,- IU~I~..
withUut the nece:;sityof any spc&al agreement so long as the pisent ?;cati is in
force, in al1disputes of a juridical nature that arise among them conccrning:
(a) the interprctation of a trcaty;
(h) any question of internaiional Inw;
(c) the existence of any ract which, ifcstablished, would constitutc ihc brcach of an
international obligation ;

(d) thoblination."xtent of the rcparation 10bemade for the brcach ofan international
-
Article XXXl specificallycites Article 36 (2) of the Statute of the Court as the legal
nround for the efiectiveness of ils own terms. The lems set forth in Articlc XXXl are
&xiRcally thasc rcquired by Articlc 36 (2) of thc Statute. The use of thc pcrformaiive
tcm "declare" indicatcs that ihc draficrs of the Pact understood vcry clearly ihat ihis
....~.~~ .~the Paci waî - ~~-~ ~- h-. .~~..ve throueh Article 36 11 \ or Article 37 of the
Siatuic. oursuant Io which the trcatv itself - no1ïhe unilateral ài<af the dccla"nn Party

sct forth in the ~aci,i\rticle XXXl rcfcrs to disputcs that may involve an ~mcrican, non-
party State - each "liigh Contracling Party" declares "in relation to anyother Amencan
State". This extra-treely elTeciis only possible because the Pact incorporates the function
and cTTcco t f Article 36 (2) of thc Siatutc.
Unlcss Article XXXI of the Pact is understood as constituting an Articlc 36 (2) dccla-
raiion, it hasno funcrion in the Pact. Article XXXll provides ihüt os helxveen Ilteparlies
IO ihp POCI, the Court. shall have compulnoryjurirdiction pursuani to Article 36 (1) over
al1 cottrrorersier not seitled through the conciliation procedure. This provision is
al1 inclusive - i.e., ;is belween the parti- il covers bofh legal and non-legal disputes.
Therefore, as betwecn the partics ihere is no rcasonfor an Article 36 (2) dcclaratian, and
iiicordingl) nu rca,<>ni<>r,\ritclr XXXl ~iihr l'.ici I:nli>, ,\riiilrSSSl 1,id hc rrndrrcd
mur. rurpld,iipc. it mu,! bc ~nirrprci:rl A, uh~i ii purpori. ta hi. J d~vlar~iii,nhy cach
Ilieh Conir.i;iinu l'.il\ <>irer.~>cniii<> <n>i;c~mnul\<>riluri-.li;ii<,n aiih rcmcci 10 1:xsl
Jiipjici nith In)iih:r :iiic<icaz Siltc. in:luJing non-part) St.icci
'Thc I?#:i >~g~>:f6~ t31 ,\pnI 1943 Il 1'1<lippc:~rc~ I,!lw 1('J K,t~rhck,clW7-144b
II\%.fic~rf~t'tllnikdi i'cwrt~.,~,A ,in cnijrel)"en ,C.'IL~~. ~pp~r:ntIy tn\c~,i:d ,u%if.v >I
- at Icast. il was the onlv cnirv.

The ~Crbook conbiined a ihkc-part anncx. Part 1consisted of the constitutional texis
of or~~iii/tions ihli pro\iilcJ Co; ihc jurisdiiiioii or ihr Couii Pari II uar cniitlcj
"lnrirun>rnir for ilic I'aci6cSciilcmcni of I>~,puir.,;iiiJ Coricerning ihc JurisJixioii uithr.
Cuuri" P.tri IIIw;i, r.aiiiilr"\'arloui In,tr~iticni, I'ro\iAine for th< Jurirdicliun of ihr.
court". Pan III lisid ihore ireaties lhat provide Court iuriydiction pursuant to Article
36 (1). Part II, on the other hand, consisGd of a le?gthfPan A, lisiing al1declarations
pursuant 10 Article 36 (2). and a short Part B. cntitled "Other Instrumcnis". The anly
item in Part B was the Pact of Ragota. In sum, the Pact is listed in the samc part of thc388 MILITARV AND PARAMll.lTARV ACTIVITIES [55-561

it is clear that the circumstances were such as called for some reaction,
within a reasonable period, 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 thereby
mus1be held to have acquiesced. Quitocei conseniirevideiursi loquidehuissei
ac potuissei." (Id., p. 23.)

"Thc Court Iioweverconsiders that Thailand in 1908-1909did accept the
Annex 1mai, as representing the outcome of the work of delimitation, and
hence recognizt:d the line on that map as bcing the frontier line, the elfect
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 hears out her original acceptance, and that Thailand's acts on
the ground do not suffice to negative this. Both Parties, by their conduct,
recognized the line and thereby in efict agreed to regard it as being the
frontier line." (Id., pp. 32-33.)

100. The Temple of Preah Viheor case is helpful in several respects. First, the
instrument concerni:d - the Annex 1 maD - was. on the basis of Thailand's
çonduci. g1,r.n a sin,iiiiicance.in spite ol';ls originil (in 1908) iar<ii liirmil
siaius and in yic c1ihc alignment >h,~unking haieil ,in errer In <>thsruordi.
conduct was relied upon in a contcxt of questions going well beyond formal
validity. Second, the:Court took the view that, once Thailand had notice of the
map, some reaction vas called for "within a reasonable period.
101. Similarly, in the present case, the failure of the United States to react
within a reasonable period to the treatment of Nicaragua's declaration as "in
force" under Article 36 (5) precludes the United States, 38 years after the fact,
from challenging the effectiveness ofthat declaration. II. THE I.I.:TTEROF 6 i\l'RII. 1984I;HO\I SI~:CHEI;\Rï OF Sl;Vl'I.:
SIIUI.'I'%CASSO I'\lOI>IFY OH 'l'ER\lIS,\'l'E'l'111.U : Sl'l'EI)Sl',Vl'ES
DECLARATION OF 14AUCUST 1946

. Ihe Itiited CitaicçI.etiof6 .\pril 1981:1151.:lreclas a l'urporicd

\ludilicaiiun01 the LnitcdStatcs I>cclaralii~n

102. The United States letter of 6 April 1984can be characterized in two ways:
(i) as an attempt to modify the declaration of 14August 1946(the text of the
letter seems to support this characterization); or
(ii) alternatively, as an attempt to terminate the 1946declaration and substitute
a new one, excluding for a period of two years disputes with any Central

American State.
103. Whichever characterization is adopted, the letter is inefective to ac-
complish its end. This Section of the Memorial considers the letter in its aspect
as an attempted modification. Section B, below, addresses the inefectiveness of
the letter as an attempted termination.

104. On 6 April 1984 the United Statcs sent a letter to the United Nations
Secretary-General that was clearly intcnded to prevent Nicaragua from having
this case adjudicated by the Court. The text of the letter is as follows:
"1 have the honor on behalf of the Government of the United Statcs of
Anierica in rcicr io ihc I>eclarati<inuf iny Gd\ernnicnt of Augujt 26. 1946,
conccrning the;icccpt.incc by ihc United Stiitcs~if,liiieris:iofthc cump~lsur)

iurisdistion of ihc Intcrn~tion;il Couri of Ju~tiie, 3nd Io \late thal thc
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 effectimmediatelyand shall remain in force for Iwo years, soas to fos-
ter the continuing regional dispute settlement process which seeks anegotia-
ted solution to the interrelated political, economic and security problems
of Central America." (Ann. II hereto, Exhibit B.)

105. Inthe viewof Nicaragua, this letter cannot have the legaleffectcontended
for bythe United States in the oral hearingson provisional measures(pp. 105-108,
supru), namely, that of modifying or varying the lems of the United States
declaration of 1946in such a way as to exclude the jurisdiction of the Court in
the present case.
106. In order to address the question whether the law allows such ad hoc
modification in the absence of a reservation of a power of modification in the
terms of the original declaration, it is necessary to consider the nature of the
legalobligations that arise from the existenceof matching declarations under the
Optional Clause.
107. By way of preface and as a logical priority, it is to be emphasized thatthe legulnature of the relationship or relationships which are created kas never
heeii doubied. The wording of Article 36 (2) of the Statute is incompatible with

any other view:
"The States parties to the present Statute may at any time declare that
they recognizc as compulsory ipsoJkcro and without special agreement. in

reluri/~nIo unyother Slare ucceptingrhe.summ obligarion,the jurisdiction of
the Court in al1legal disputes." (Emphasis added.)

108. The view generally adopted, both judicially and in the literature, is that
the interlocking dei:larations generate obligations which do not have a treaty
character as such, but consti~ute, nonetheless. obligations of a "bilateral" 'r
consensual character govemed by international law and subject to principles of
treaty interpretatiori which must be applied with necessary modifications (see the
Ang//~-Iru!~ianOf1 CO.case. J~rdgmenlI.CJ. Reports1952. p. 93, al p. 105; and
the caseconcerning the Templeof PreohVihear.PreliminaryObjecrionsJ .udgmcnr.
I.C.J. Reporls1961. p. 17,pp. 32-33).
109. The Court i;learly accepts this approdch. In the Judgment the Court in
the case concerning Rightof PassugeoverIndianTerrirory,PreliminaryObjecrions.
Judgmenr(1.C.J Rcporrs1957, p. 146), the following analysis appears:

"The Court i;onsidersthat, by the deposit of its Declaration of Acceptance
with the Secretary-General, the accepting State becomes a Party to the

system of the Optional Clause in relation to the other declarant States, with
al1 the rights and obligations deriving from Article 36. The contractual
relation between the Parties and the compulsory jurisdication of the Court
resulting therefrom are established, 'ipsofucro and without special agree-
menl', by thc fact of the making of the Declaration. Accordingly, every
State which makes a Declaration of Acceptance must be deemed to take
into account the possibilitythat, under the Statute, it may at any lime End
itself suhjected to the obligations of the Optional Clause in relation to a
new Signatory as the result of the deposii by that Signatory of a Declaration
of Acceptance. A State accepting the jurisdiction of the Court must expect
that an Applii:ation may be filed against ilbefore the Court by a new
declarant Stati: on the samc day on which that State deposits wiih the

Secretary-Genmal its Declaration of Acceptance. For it is on that very day
that the conser~sualbond, which is the basis of the Optional Clause, cornes
into being hetween the States concerned. When lndia made its Declaration
of Acceptance of February 28th, 1940, it stated that it accepted the juris-
diction of the Court for a specifiedperiod 'from to-day's date'."

110. The legal character of the relation created by coincident declarations as
a "consensual" or "contractual" relation is widelyrecognized in the literature of
the law. The late President Waldock referred to "the consensual nature of the
juridical bond established between States by their declarations" (Brirish Year
BookoflnlernalionrrlLow. Vol.32(1955.1956). al o. 254). Sir Gerald Fitzmaurice
described the declaiai~ns'as "unilàteral in fo;m" but "iontractual in substance"
and as "basically contractual in nature" (id.,Vol. 33 (1957). pp. 230-232). In
another context ihe same writer stated that "These declarationsare not treaties.
but they givc rise to a quasitreaty situation by creating a network of bilateral

relationships between the various declarants" (British YearBookof Inrernari~~nul
Luw, Vol.34 (1958')p. 75).
111. Essentially jimilar assessments are to he found in the work of lcading
exponents of the dcctrine of international law, with only insignificant variations. In his substantial study of the Court, Dr. Rosenne concludes his enamination of
declarations thus:

"It is therefore more appropriate to regard participation in the system of
the compulsory jurisdiction as a sui generis international engagement, a sui
generis assumption of legalobligation under particular rules of international
law; and while that obligation may possess some affinities with the types
of obligations regulated by the law of treaties, it is no1 on al1 fours with
them." (The IAW riad Pructice .e$the Internutir~nalCoirrt, Leyden. 1965,
Vol. 1,p. 414.)

II? In his ii~rk cntitlcd I'r<,hlt;t,I,'l~it~rpr~~wlljitl(l~l~Ccti dro~l1,11t,r-
ti~ir~~~p~ir,ihillii., P~rir. 1963.Ch;irlr'sDe Visschcre\plains the position fully and
decisivelyin the following passages:

"La déclaration prévueau parag. 2 de l'article 36 du Statut de la Cour
est un acte unilaiéralgénérateurd'effetscontractuels [affairedes Plio,sphutes
dit Maroc, arrêt.1938, C.P.J 1.sérieA/B no 74, p. 23;@ire de la Cunipugnie
d'Electricitéde Sojia el de Bulgarie, arrir, 1939, CPJI sérieA/B no76,
p. 64; affairede I'Anglo-lranianOil Cu..arrêt.C1.J. Recueil1952,p. 1051.Elle
est un acte unilateral, en ce sens qu'elleest, dans son élaboration et dans
son énoncél'Œuvreexclusive de I'Etat aui la souscrit. Elle est eén-ratrice
J'elTet~coniractuels, du liiqu'ellc,'~n,irr.&inr .incidrr.insi~iutionnclildni
une n.irmc .pr:cisle lui ;$>niire Io \;ileur J'uti erigafr'!nr'niiiiicrnaiionlil i
I'égardde tout autre Etat ayant acceptéou acceptant, par la suite, la même
obligation. C'estde ce double aspect de ladéclarationqu'ilfaut tenir compte
dans l'examen des difficultésd'interprétationauxquelles son application a
donnénaissance.
Lesystèmede laclause facultatives'analyseen un complexedeconventions
bilatéralesissuesdedéclarationsunilatéralesqui serencontrent, cetterecontre
ayant pour effet de faire naiire successivement unlien consensuel entre les
Etats déclarantsa compter dujour du dép6tde leursdéclarationsrespectives.
C'est ce que la Cour internationale de Justice a fait ressortir en exposant
que tout Etat déclarantest censé tenircompte du fait qu'en vertu du Statut
il peut se trouver à tout moment tenu des obligations découlantde la
disoosition facultative vis-à-visd'un nouveau signataire du fait du dé~6tde
la déclarationd'acceptation de ce dernier [affaTredu Droir de pussa& sur
territoire indienexceprion.spréiirninairesC,.I.J. Recueil 1957, p. 1461.

L'intention de s'enearer est décisive;son ex~ressionn'est sübordonnée à
aucune forinc oartic;li&e. 'la forme et les termes orécisadooti-s oar les
Etats pour cela sont abandonnés à leur discrétionet'rien n'indique iu'une
fonne particulière soit prescriteni qu'une déclarationfaite sous une autre
forme &rait nulle. .. 1a.seulequestionpertinente est de savoir si la rédaction
employéedans une déclarationdonnéerévèleclairement l'intention, pour
reprendre les termes du parag. 2 de l'art. 36 du Statut, 'de reconnaître
comme obligatoire de plein droit et sans convention spéciale,à l'égardde
tout autre Etat acceptant la mêmeobligation, la juridiction de la Cour sur
tous les différendsd'ordre juridique' relatifs aux catégoriesde questions
énumerées dans ce paragraphe [afiire du Tetnplede PréuhVihéare .xceptions
préliminaires,orrêt.C1.J. Reciteil 1961, p. 321."

113. Paul Guggenheim'sviewappears in bis Truitéde droit internur~lnalpubiic,
(Vol. Il, Geneva, 1954,p. 120). In his words:
"La signature de la clause facultative par une pluralitéd'Etats entraîne la392 MILITARY AND PARAMII.ITARYACTIVITIES [62-641

consiiiuiion d'iine nouvellecommunautéconventionnelle, dinérentede celle
que le Statut a crééeet qui reconnait la juridiction obligatoire de la Cour
de La I-layesous condition de réciprocité."

In his work entitledLesactesjuridiquesiinilarc'rauxen droir internationap l uhlic
(Paris, 1962,pp. 14:!-147),Eric Suy adopts a viewsimilar 10that of Guggenheim.
114. Further expressions of view on the same theme and further references
may be .und in the work of Suy cited abovc, in the article by JoséLuis Iglesias
Buigues, OsterreichircheZeiischrifrfür offenrlicheRecht (Vol. 23(1972). pp. 255-
288), and in the leztures of Eduardo Jiménezde Aréchaga (Recueildescours.
Vol. 159(1978-l), p. 154).

2. Tliel~ferences 10 BeDraiin/ronr rheConrraciualNatureof thekgal Bond
ResultingfromInierlockingBeclarotions

115. The o\,envhilming opinion 15 thai ihc <ihligati<icrcsird by inicrlg~cking
dcïlaraiions under the Optional Claurc drc "conlrïctu~l" or "conscnsuiil": thiil
is to say they are legal agreements, governed by international law, but not falling

within the category of treaties as sucb. And indeed, as noted below, this is the
characteriration adopted by the United States itself.The United Statescontention
that there is a rigbt to unilateral modification of deçlarations is to be weighed
against this background.
116. In the vicw of Nicaragua the following inferences may be drawn from
the contractual nature of the legdl bond created by declarations under the
Optional Clause: (i) A primary (but not an exclusive)approach to the interpre-
talion of individual declarations is 10 seek evidence of the intention of the
declarant al the time of making the declaration. which may be established by
referenn to evidence outside the terms of the declaration (see the Anglo-lru~~iun
Oil Co. case, Judgnrent,1.CJ Reports 1952. p. 93; the case concerning the

Templeof PrealihViheur,Prelirni,zuryObjections.Judgmenr,I.C.J. Reports1961,
pp. 30-34).
117. (ii) The general principles of treaiy inierpretation are applicable, though
with some necessar).modification in light of the unilateral nature of the individual
instruments (see Anglo-IranianOil Co., Judgmenf,I.C.J. Reports1952, p. 105).
118. (iii) The expression of consent has ils own intcgrity and consequcntly it
can only be varied either in accordance with its own terms or as a consequence
of some applicable rule of law.
119. (iv) In prin,:iple, questions of modification, invalidity termination, are to
be determined on grounds substantially similar to those found in the law of
treaties, that is to :;ay,either as expressly provided for in the instrument or on

legal grounds external to the terms of the declaration, such as fundamental
change of circumst;inces.
120. (v) In resol-jingquestions of the interpretation and validity of reservations
(and il may be assiimed other issues of a contractual character), the conduci of
the parties is of corisiderable significance(see tCertainNorwegianLonns case,
Ju<lgnient1. .C J. Reports1957. p. 27; Templeuf Preah Villeur case,Preliminary
Objcciions.Judgmeitt,ICJ Reports1961, pp. 30, 34;Nurlear Tests(Austrriliuv.
17rance),Judgmenf.I.C.J. Reports1974, pp. 337-338,340-342,pp. 343-344(joint
dissenting opinion of Judges Onyeama, Dillard, Jiménezde Aréchaga and Sir
Humphrey Waldock)).
121. These inferences are based upon the jurisprudence of the Court, general
principles of law, and ordinary considerations of legal policy. Both individually

and in combination, the propositions advanced militate decisively against the[64-661 MIIMORIAI. 393

legality of a nght of unilateral modification of the United States declaration
of 1946.

3. TheInrenrionof rheDeclurunrSrure E.~cludesUnilurerulModfiarion inrhe
Presenr Cuse

122. The principal criterion of the legality of a purported modification of a
declaration must consist of the intention of the declarant State at the time of
making the declaration. The dcclaration of the United Statesmakes no provision

for variation but does provide in clear tcrms for termination on expiration of six
months' notice of termination. If a power of modification had been sought it
would havehccn expresslyprovided for and the normal principleof interpretation
is applicable: expressio unius est e.rclusio ulrer(see Fitzmaurice, British Yeur
Book of International Laiv,Vol. 28 (1951 ),p. 25; McNair, Law.of Treories,
Oxford, 1961,pp. 399-410; Rousseau, Droit inrernurionalpirblic1, Paris, 1971,
pp. 278-279).
123. It is to be noted that the text of the United States letter of April 1984
implicitly recoguizesthe incompatibility of the concept of modification withthe
terms of the United States declaration whenit employs the phrase "notwithstand-
ing the lems of the aforesaid Declaration".
124. The view that the United States had no intention, when making its
declaration in 1946, of rescwing a power of niodification or variation is clear

from the circumstances in which the United States Scnatc gave its advice and
consent to the United States declaration. The dcclaration was subject to the
'ipproprutc trc:~t).ii~:ikiiigpr.i<r.cJiircsiiitliin ~licCnitcJ St.iie, Cotigr:>s In ihc
Kcptiri oiihc Senate Cornmittee on l..orcignKcl.iii(inson ihc pertinent Senaie
rc,,~lurii>n.the LI~L.I~I~;IIilIcIiir~bc<l;ij:
"a unilateral Declaration having the force and efïect of a treaty as hetween

the United States and each of the other States which accept the same
obligations" (Report of the Committee on Foreign Relations of the United
States Senate, 79th Cong., 2d Sess., S. Doc. No. 259 (1946). p. 12.(Ann. II
hereto, Exhibit D)).
125. The Report of the Scnate Committee recommending approval of the
advice and consent resolution also contains the following cmphatically clear

statement:
"The resolution provides that the declaration should remain in force for
a period of five years or thereafter until 6 months following notice of
termination. The declaration might, thercfore, remain in force indefinitely.
The provision for 6 months' notice oftermination alter the 5-year period
has the eîiect oa renitnciarionof uizy i~treitiionru ivirhdww Ourobligarion in
ihefuce ofu threurenedlegulproceeding." (Id ,. 7 (cmphasis added).)

As the United States "Departmental Statement" of 8 April 1984(Ann. II hereto,
Exhihit C) makes abundantly clear, and as also appears from the contents of
the letter of 6 April 1984, the very purpose of the attempted modification was
"10 withdraw [the United States] obligation in the face of a threatened legal
proceeding" and to avoid the possibility that the particular issues of law and
fact presented by Nicaragua's Application shouldhe subjcctcdtojudicial scrutiny.

126. The evidence ooints ineluctablv to the conclusion that the attemoted
modification of the uiited States dcclaration can have no legal efïect. T& is
the necessary consequcnce of the principle that an expression of consent or will
has its own integrityand can onlybe vaiied as a consëqucncc of some applicablerule of law. The letter of6 April 1984isincompatible with the clear tems of the
United States declaration of 1946.

4. ThePosirionin rlieDoctrine

127. The literatiire of international law giveslittle or no support to the view
that unilateral modification of declarations is pcrmittcd in the absence of a
reservation of a os3werof modification or variation. At the outset it~ ~s~ he~~~~-
pxnicd oui thai in the oral hc~ring, on pro\.isiurialiiicdsurcs.thc I>cpuiy.~\gcni
oi thc United State, tinly rclcrrcJ toi\i.authoriniion*. Onr ,IIrhc\c 15 Pr<>lk,or
Anand in his worl: enkled Com~itlsurvJurisdiclionof rhe Inlernarional Couri.
The passage from lhis work (al p: 147)quoted by Mr. ~c~overn (p. 108, supra,

does not in fact !.upport the proposition, and in a later passage (at p. 180)
Professor Anand siates that "there isno rinht of unilateral temination or varia-
tion ofa declaration under the Optional ~lkise unlessthe right hasbeen expressly
reservedin the declaration".
128. The work of Dr. Rosenne, Tlre Law and Prucriceof the Inrernario~iol
Coiiri (Vol. 1, 1965,pp. 410-41l), is remarkable in beingthe only authority which
supports a power of unilateral modification. However, the statement concerned
is made more or le:;sin passing, with no supporting reasoning and a lack of cited
..
authorities.
129. The followingauthorities rejcct the viewthat there is a right of unilateral
modification :
Waldock, Britirh l'ear Book ofInternatir,nol Law, Vol.32 (1955-1956), pp. 263-

265.
Murty, in Siirensen (ed.), Munual of Public Inlernulional Laiv, London, 1968,
o. 706.
~kand, ConipulsoryJiirisdicrionofrhe InrernurionulCouri, London, 1962,p. 180.
Stone, Legal Conrrols of Inrernarional Conpicl, London, 1954, p. 127 (and
note 127).

130. A number of authorities discuss the question of the terminability of
declarations and inake no express reference to unilateral modification. I-low-
ever, the views thi:se writers express on the qucstion of termination are appli-
cable equally to that of modification. Thus in the seventhedition of Oppenheim's
IntcrnarionulLaw, edited by Hersch Lauterpacht (London, 1952,Vol.II, p. 61,
note 2), il is stateclthat "in general, unilateral termination of the obligations of

the Optional Clause mus1 be regarded as subject 10 conditions governing the
termination of tre;ities9'.Such a view is obviously incompatible with an alleged
right of unilateral modification. Bowett observes that "once the declaration is
made for a fixed period, it cannot be unilaterally terminated prior to the
conclusion of the period, for this would undermine the whole purpose of the
Optional Clause" (The Loiv of InrernationulInsliiurions, 4th ed., London 1982,
p. 271). A similar opinion is expressed in Siirensen (ed.), Monuul of Public
InrernarionalLoiu, London, 1968,p. 706.
131. The considerations of principle which lie behind such expressions of

opinion would seemto be as follows. The Court has allowed considerable flexi-
hility in the makiiig of declarations and countenanced the Portuguese reserva-
tion of a right Loniodify on notice (with immediate efect) in the Righrof Pos.s<lye
overIndianTerritory case,PreliminaryOhjeclions.Judgment(1.C J. Repnris1957,
p. 125). At the sarne time, a declaration is a legulinstrument and mus1be "true
to itself". If thcre were a universal right of unilateral temination or modifica-
tion, irrespective of the tems of declarations, such instruments would [68-711 MIIMORIAI. 395

cease to have any contractual clïect. in short, they would not create
a compulsory jurisdiction. The schemc of the Statute allows a State to file
a valid declaration and use it as the basis for an immediate filing of an
Application. That is compatible with the system of the Optional Clause (sec the
Riglir of Passage over Itididii Terriiory case, Prelit?iit,aryObjectiotis,Jiidg,imir,
ICJ Reports 1957,pp. 145-147). However, the sudden rupturing of the Iegal
bond created by interloeking declarations is contrary bath to the contractual
nature of the relation between declarations and to the system of the Optional

Clause under the Statute, if that rupturing is not in accordance with the terms
of the relevant declaration or is not othcrwise justified by some legal rule. If
unilateral tcrmination were to be permitted in principle, the consequence would
be the recognition of termination (and modilication) with retroactive eiiects,
since such a freedom to terminale prior to seisin of the Court is logically no
diflèrent in nature when it operatcs subsequent to seisin. In either case the
cunipiilsor)nature of the jurisdiction would have heen substantially destroyed.

5. ThePositioninSrarePractice

132. The practice of States provides no support for the viewthat declarations
can be terminated or modified at will (see Waldock, British Yeur Book <f
Inrernarional Law, Vol. 32 (1955-1956), pp. 263-265; Hudson, The Permanenr
Coirri of InrernurioiialJusrice 1920-1942, New York, 1943. p. 476, para. 461 ;
Oppenheim, Internuiional Luw, 7th ed., ed. by Hersch Lauterpacht, London.
1952, Vol.II, p. 61, note 2; Merrills, Briiisl, Yeu Book of Internalional Law,
Vol.50 (1979), pp. 94-96. The same view of the practice may be found in Shi-

hata, The Powerof the IniernarionulCourt to Beiermineirs ou^ Jurisdiciion,Thc
Hague. 1965,pp. 164-167(although this author tends to support Dr. Rosenne
on the issue of principle).

133. Considerations of principle, legal policy, and the evidence of State
practice, lead to a single necessdryconclusion. The United States letter of 6 April
1984has no legal effectand cannot constitute a modification of the terms of the
United States declaration of 1946,which remainsin forceand in ils original form.

B. The UnitedStates Letter of 6 April 1984: Ils Effectas a Terminationofthe
UnitedStates Dcclarationof 1946

134. In the previous section of this Memorial the legal significance of the

United States letter of 6 April 1984was examined on the basis that the letter
purported to be a modification of the United States declaration of 1946. As the
relevant materials indicate, there is an alternative construction of the Unitcd
States letter and the purpose of this sectionwillbe to explore this alternative vicw.
135. While the United States letter was prohably no1intended to be a termi-
nation of the declaration of 1946, there are certain elements in the situation
which suggest that construction. A consideration of those elements will, in any
case, assist in an appreciation of the eccentric aspects of the United States
initiative of 6 April 1984. On the view that the letter did have the eRect of
terminating the original declaration on the terms expressed therein, such termin-
ation could only take effectsix months after notice, and the declaration of 1946
thus remained in force at the date of the filingof Nicaragua's Application.396 MII.ITARY AND PARAMILITARY ACTIVITIFS [71-721

136. The view tlidt the letter of 6 April 1984constituted a termination of the
United States de<:laration is supported by three considerations, which are
as follows:

ri) The letter terminales the ooeration of the declaration tourcourt as aeainst
rc;tain identifiahlcSihies and ihii 1sn<> t niiiitcr oi modiiic;ittun In rclüiFonto
ihurc Statcs ;inc.xi:iing;icicpt.inccof~uriidicti~~1.not m<~diiir. dtiri(>tri,i>i<rierriir.
but is terminatcd rurione

(ii) In this context, the legal classification ofthc cffcct of the United States
letter is no1alfcctîd by the fact that it is to apply only for two years and thus
might be describcd as a "suspension" of the acceptdnce of jurisdiction. For
present purposes the effect would he the same: the extinction of jurisdiction os
betiieen the UnitedStates and Nicaraguafoutcourt. In this respect the restriction
of lime makes no :;ignificantdiffcrence.
(iii) There is some evidence to the effect that the real intention, indicated hy
the Departmental Statement of 8 April 1984 (Ann. II, Exhibit C), wds to
withdraw the decl;iration of 1946and to substitute a new one with effect from
6 April 1984,consisting of the original instrument together with the contents of
the letter of thdt date. The evidence takes two forms. First. the orecedents

invoked hy the Departmental Statement al1involved withdrawal of a declaration
followed hy the making of a new declardtion (Ann. II, Exhibit C). Secondly, a
number of official:;quoted in the press, making more or less contemporaneous
comment upon tlie letter of 6 April, were to speak of a "withdrawal of
jurisdiction", or were to emphasize that the acccptance of jurisdiction had been
"suspended" (Anr.. II, Exhibit C).

137 Niciir;igu;iprcfcrs ihc ~onsiruction ~iiii>rilint:to uhiih the I1niir.JSilitcr
1etii.rof 6 April 1984 u.~s s purportcd nioilifi~:ition.r.ither ihxn a purporicJ
icrminaii<>ni.fthi. Uniicrl Siaie5dc;llirliiion. In \,ici\,of 11sinvdlidity in lau,. ihc
choice of construction is rather an academic question. However, [f the Court
were to take the view that a termination had been enécted,at least vis-à-vis
Nicaragua, such a conclusion could not aiïect the existenceof jurisdiction at the
date of the Applicîtion on 9 April 1984,in viewof the provision for termination
only on expiration of six months after notice. The position of principle is

explained clearly by the late President Waldock in his classical exposition in
the Briiish YeorBook of lnrernationalLoiv(Vol. 32 (1955-1956), p. 244). ln his
words :

"The legitiinacy of terminating any declaration otherwise than in accord-
ance with its terms must, on principle, hinge upon the rules governing the
termination of treaties. This is borne out by the fact that when France, thc
United Kingdom, and other Commonwealth Sidtes notiried the Secretary-
General of the League in September 1939that they would 'no1regard their
acceptancesof the Optional Clauseas covering disputes arisingout of events
occurring during the present hostilities', they formulated the grounds on
which theyjiistified their action in a manner strongly to imply that they
were invokinj: the doctrine of rebussic stanrihiis(Leagueof NarionsOficial
Jorrrnirl,1939.pp. 407-410; ibid, 1940,p. 44. These States alleged that the
conditions wliich prevailed at the lime of their acceptance of the Optional

Clause no lorigerexisted). At the date in question the declarations of these
States were valid for hed ~eriods which hdd no1 vet cxoired. and thev
ilriirly did nui curisidir ~Iienisel~to h:iw the righi unil;iicr;illytcrminatc
or \,dry lhc~r.Jecl~riiii<>excepi on prin~iplc<aiiiilogoui t,iihioseg,overnini!
the termination or variation of treatks. Even so, a number of neuGal ~tatei (72-751 MBMORIAL 397

made reservations in regard to the legal efiect of the action taken by these
States (Belgium, Brazil, Denmark, Estonia, Haiti, Netherlands, Norway,
Peru, Sweden,Switzerland, and Thailand ; Leagueof Narions Oficial Journal,
1939,p. 410; ibid.,1940,pp. 45-47).
On principle, therefore, there is no right of unilateral termination of a
declaration under the Optional Clause unless the right has been expressly
reserved in the declaration. On the same principle also there is not. in the
absence ofan express term, any right of unilateral variation ofa declaration
previously made and still in force." (ICI.p. 265.)

138. The practice of the United States with regard to treaty termination or
modification is fully in accord with this view of international law. Consensual
obligations may be modified, suspended or terminated only in accordance with
the terms of the instrument or by mutual consent of the parties, or, in the
absence of any such provisions or consent, in accordance with general rules of
international law governing treaties (Whiteman, Digesr of Inrernarir,nul Laivl
Vol. 14, pp. 410, 427-431,441).

C. The Principleof ReeiprocityDos not Permit the United States to iModifyor
Terminate Its 1946Dcclaration Less than Six Months alter Notice

139. In the oral hearings on provisional measures, the Deputy-Agent of the
United States asserted that the ud hoc modification of the United States dec-
laration in the form of the letter of 6 April 1984could bejustificd by the principle
of reciprocity. The argument was expressed in these words:

"Under the principle of reciprocity, the United States could only be bound
by ils six-month notice proviso inrelation to Nicaragua if Nicaragua had a
similar or ereater notice-oeriod in ils declaration.. .~icarae-a's déclaration
0s wiilcrr'i~ii>,eirirt,riubut nsrrower ruriutzr<wporrs.ihan the Unitcd
Siaies declarati~n. As the Siaie mahing ihe wider temporal ÿricptanic <II'
the,Cuuri'r iuri>di~.tiiint.he IJniieJ Staies u,a\ thcreli>realro entitlcii~rclv
on ~icaragia's purported declaration to modify its own declaration with
immediate effect." (P. 109,sirpra.)

140. The argument thus proceeds on the hasis that Nicaragua's declaration is
oDento denunciation iui,houinolice and is conseauentlv broader than the United
St:itej Jeil.ir;itionri tii.c;iii uiily bc tr'riiiin;ttcJ up\I\ munth,' noti;c. The
Cnited Siiites argumciit is in\,;ilid:iichy the I;ill<iwing:<~n>idcratiiins:

(i) Even if the Unitcd States were correct in ils view that the terminability of
Nicaragua's declaration was subject to the operation of the condition of
reciprocity, the legal consequences contcnded for would not follow since
the assumption that Nicaragua's declaration is terminahle or modifiable
without notice is unfounded in the law relating to.consensual leaal ob-i-
galions.
(ii) The principle of reciprocity is not applicable, within the system of the
Optional Clause, to time-limits set by declarant States for the entry into
force or termination of declarations, and in the same way, it isnot applicable
to the question of notice of termination. This proposition is valid indepen-
dently of the principles of the law of treaties.

141. These questions will be examined at greater length in the paragraphs
which follow.398 MILITARYAND PARAMILITARYACTIVITIF^, [75-771

1. ThePrinciplesofihe LuivofTreuriesConiradicithe UniredSratesArgumenr

142. Evenif it were assumcd, for the sake of areumcnt. that the ~rinci~leof
rr.iiprc1~.1:pplir.i1.Ihcqu.-itiim oith: rr.rminxii<>a nnd \.iriaiiiin .iicon\enrual
lcgal obligations. such as thosc crca1r.Jby thr. ,)ricin of dcLiar~tii>n,under ihc
Optional Clause, tt#cLniicJ Slatcs vicwihat Si;drarua'r Jeclaration ii 1r.rmindhlc
O; variable withoiit notice is unfounded in law.The onlv base, on which a
declaration that does no1 reserve a power of termination can be denounced are
to be found within the principles of the law of treaties. The reaction of States to
the Pardguayan act of denundion in 1938was based upon sucb principles (sec
Waldock, Brirish l'ear Bookoflnrernarional Laiv. Vol. 32(1955-1956). pp. 263-
265), and this is highly significant.

143. There are well-known debates on the conditions under which treaties
made for an indelinite period may be terminated. However, two propositions
can be stated with confidence.In the first place, it isnot the case that such legal
instruments or treaties made for an indefinite period are, as contended by the
United States, "inimediately terminable" (p. 110, srrpra).Secondly, the normal
presumption of the validity and continuance in force of a treaty applies with
particular force to an instrument intended to operate for an indefinite period
(sec Vienna Coniention on the Law of Treaties, Art. 42; Yeorbookof the
Inrernuiir~nalLaw Commission, 1963, 11, p. 189: ihid.,1966, II, pp. 236-237;
McNair, Law of Trearics, Oxford, 1961, pp. 493-505). "There is a general
presumption agairist the existence of any right of unilateral termination of a
treaty." (McNair, op. rit.,p. 493.) Unless a right of denunciation is expressly
reserved, the termination of a treaty must rest upon some supervening legal title
recognized by intr:rnational law (see the Vienna Convention, Arts. 42 to 64;

Capotorti, Recueil des cours, Vol. 134 (1971-Ill), pp. 427-581). As Briggs
observes :
"There can be no auestion that the State mdv. in conformitv with the
Statule, accept the compulsory jurisdiction of thécourt uncond~tional~~ in
point of tirne, that is, for an indefinite period. The legal problem which
ariscs from siich acceutances is whether a State is uermanentlv bound bv

such a Jc~1ar.iiionor whcthcr il itcrriiindblciiiccrtaiii :ircunistaiiic. . .
II iiould app:ar th31 rulcj oiiiitcrtiatioiial Iau go\irning the tr.rmination
of treaties are applicable; and that, in the absence of an express rcservation
of unilateral termination, the declaration remains in force indefinitely."
(Recueildescours, Vol.93 (1958.1). pp. 272-273.)
144. In this respectthe whole tenor of the United Statesargument is incompa-
tible with prevai1ir.glegalpolicy concerning unilateral denunciation of treaties,as

revealedin the Vienna Convcntion in otber sources (sce Briggs, AmericanJournal
of IniernoiionalLaw, Vol. 68 (1974), pp. 51-68), and in ils own practice (see
Whilcman, DigesrqflnrernurionalLaw, Vol. 14,pp. 410, 425-431,441).

2. Tlie Principleof Reciprociiy1sInapplicablerurheTinze-LimitsExpressed in
DeclaraiionsRelaiingIo TerminarionandSimilurMairers

145. There is p?rsuasivc authority that the principle of reciprocity applies to
reservations to declarations rarioneiemporis, but does not apply to timc-limits
set by States for the duration and termination of their declarations. This is the
position adopted by Briggs in hiscareful study.

"The Court's decision in theRightof P~ssu~e case may thus be regarded
as holding, by implication, that the condition of reciprocity contained in Articlc 36 (2) of the Statute does not require an equal right to terminate
Declarations. Reciprocity does not apply to the time-limits for which
Dcclarations are made because it would result either in depriving the Court
of jurisdiction validly acquired at the time of an Application or it would
contravene the rule of international law that a state cannot unilaterally
release itself from international engagements except in accordance with their

terms." (Recueil des cours,Vol.93 (1958-1), pp. 277-278; see also p. 268.)
146. As Briggssuggests, the attitude of the Court toward the general concept
of reciprocity, revcaled in the Righr of Pussage "ver Indiun Tcrrirürj~case,
(Prelinri~luryOhjeciions,Judgment,ICJ Reporrs 1957, p. 125). is incompatible
with the ciïcct which the United States now seeks to give to the concept. In that
case, lndia had made a preliminary objection challenging the validity of the
reservation bv Portue-l of the ric-t to varv its declaration on notice and with
immediate eiTect.lndia argued that the reservation was invalid, interrrliri,on the
ground that it violatcd the condition of reciprocity. The Court emphatically
rejected this argument :

"Neither can the Court accept the view that thc Third Condition is
inconsistent with the principle of reciprocity inasmuch as it renders inopera-
tive that part of paragraph 2 of Article 36, which refers to Declarations of
Accentance of the Ootional Clause in relation Io States acceotine the 'same
obli&tion3. II is not'necessary that the 'same obligation' shoulYbe irrevo-
cably defined ai the time of the deposit of the Declaration of Acceptance
for ihe entire period of its duration That expression means no morë than
that, as between States adhering to the Optional Clause, each and al1 of
them are hound by such identical obligations as may exist at any time
during which the Acceptance is mutually hinding." (Id., p. 144.)
147. The Court thus held that Portugal's reserved right to Varyits declaration
did not give rise to a reciprocal right on the part of other States adhering Io the
Optional Clause to Vary their declarations. The régimeof reciprocity is main-
tained, however, since any substantive reservations introduced by Portugal in
the exercise of its rcserved right to vary could be taken advantage of in the
ordinary way by any other State. It is the substantive content of the declaration
at anv oarticular lime that is the subiect of the réeimeof reciorocitv. and no1
the right to Varyitself. - ,
148. The vicwsof the Court in the Righrof Pussageover Indiun7érrirorycase
wcrc expresscd with direct reference to the Portuguesc rcservation of a right to
Vary the content of its declaration. But the same reasoning would apply Io a
right IO terminate the declaration with immediate eRect. It follows that no such
right to terminate can accrue to a Respondent State on the basis of reciprocity,
unless the An..icant State had exercised such a rirh" vis-à-vis the Resnondent
beiure îtlingils ,\ppliclit~on.Sincr Siwrdgua h;isnul eicrcised ils ,uppi>,cJ righi
tu icrmin;itc nith ~nimc~iatccfiect. nii such right can accrue tu the UniicclSilitcs
in this case by way of reciprocity.
149. Thc argument that thc principle of reciprocity applies Io the durational
provisions of declarations fails on grounds of logic as well as authority. The
point can be illustrated by a simple hypothetical example. Assume that State A
accepts the compulsory jurisdiction of the Court for a period of ten years by a
declaration dated 1 January 1980, and that State B accepts for a period of five
years by a declaration dated I January 1985.State B filesan Application naming
State A as Respondent on I January 1986 - Le., more than fiveyears after the
efective date of State A'sdeclaration. To apply the principle of reciprocity would400 MILITARY ANI> PARAMILITARYACTIVITIES [79-811

mean that State A could treat its declaration as expired vis-à-visState B, and

could thus escape c:ompulsoryjurisdiction in the assumed case. But such a result
is manifestly untenable. It follows that the principle of rcciprocity must be
considered inapplic:ableto duratiorial limitations in the declaration.

D. The latter of 6 Aoril 19% IslnvalidBothunder United Statcs Lawand
InternationalI.~H, by &ason of FundamcntolAbwnrr of Authorily and 1s lhus
Incfïccti~eIo Allcr the UnitedStair.i I>fflîrîtion Suhmiliinglu Ihr Compulvir)
Jurisdiction of the Court

150. Whether regarded as an ebrt to terminate the original United States
declaration under Article 36 (21 and substitute a new one or as an attemnt to
modify or suspen<i the original declaration, the letter of 6 April 1984 hom
Secretary Shultz Io the Secretary-General is ineffectiveIo accomplish the result.
Acceptaoce of the compulsory jurisdiction of the Court, as shown above, is
regardcd in international law as estahlishing a consensual relationship, governed
in many respects hy the principlcs of treaty law. 11is equally so regarded under
the law of the Uniled States. Such obligations cannot be contracted or varied by
a mere letter from the Secretary of State. The problem is not simply one of a
defect or imperfection in the procedure followed under municipal law. There is

a total fuilure of authority in the Secretary to accomplish the intendcd result.
151. Under Article II, Section 2, of the Constitution of the United States, the
Prcsidcnt is empoviered "by and with the Advice and Consent of the Senate, to
make Trcaties providing two-thirds of the Senators present concur . . .". The
declaration of 14 August 1946, by which the United States acceptcd the com-
pulsory jurisdiction of the Court was cxplicitly recogniïed by both the Senate
and the President as subiect to the Treatv Clause of the Constitution. The
ilcclaration ras ;iuth<>ri/eJhy Senatc rcsoluiion 106.;iJ<>ptcdon ? AL~,usI1946
(Ann II hcrcto, C<hihii I>J ï'hc Comniiticc rcpurt to ihr Scnlitc rcromniending
adoption of the re:iolution stated:

"Inasmuch as the declaration would involve important new obligations
for the Unitcii States, the cornmittee was of the opinion that it should be
approved by the treaty proccss, with two-thirds of the Senators present
concurring. The force and cfiçt of the declaration is that of a treaty, binding

the United States with resoect to those States which have or which mav in
ihc iut~rc Jcpo~ii riiiiilddccl.irdtii)ns Morcoi,er. under our con.tituti,in.il
s)stcm thc pcsrclul \etilcmcni or dispute\ h;is lilua)s becn iunsiJereJ a
riroiicr suhicci for ihc uie ni ihe ire;itv iirorcdurc. \+'hileihc cIccl3rlitiuncnn
hard~v,e Considereda treaiv in the %ct sense of that term. the natu.e o~ ~ ~ ~ ~
ihc obligation\ ;is,umcd by the contraciing parties arc such ih~t no aiticin
Icsssulcnin ut Iesr lorm;il than ihat rcquirid for irc.iticr rhould hc c.>ntcm-
pl;ii:i" tRtporr oithe Senais Conil~iittr.e .>III'c>rrignI<cl.ition~reI.iii\cIO
the Propo\cJ hc<epi.inri. <~fCiinipulsor!Jiir~scl~ctidio iiIntcrn~ti,>n;tl('i>uri
oi J~sIi.'chy IJiiitcd Sr.itcr C;i>\crnmcnl.Seii I>oi Sc,. 259. 79th Ci,ngrr.\j.

?LISesi (I')4fsj. p. 12.Ann II hcrctd. iirliihit 11.)
152. The declaration of President Truman filed with the Sccretary-General
of the United Nations recites that it is "in accordance with the resolution of
2 August 1946of the Senate of the United States of America (two-thirds of the
Senators present concurring therein . ..)" (Ann. II hereto, Exhibit A).

153. As the Senate Committee notes, these actions reflect the uniform practicc
of the United States with respect to peaceful settlement of disputes througharbitration or judicial settlement. In a Memorandum for Senator Vandenburg
dated 23 Julv 1945. Hon. Green Hackworth. then the Leral Adviser to the
United tat te;tate Department, in response to a question ai 10 the method by
which the United States could accept the compulsory jurisdiction of the Court,
stated :

"if no specificprocedure were prescribed by statute, the proposal would be
submitted to the Senate with request for its advice and consent to the filing
of the necessary declaration with the Secretary General of the United
Nations" (Whiteman, Digcrro/InrernarionulLaw, Vol. 12.p. 1267; seealso
Report of the Senate Committee on Foreign Relations, al II. Ann. II hereto,
Exhibit D).

154. Previous efforts to adhcrc to the compulsoryjurisdiction of the Permanent
Court and subsequcnt eKorts to alter the terms of the declaration of 14 August
1946,were uniformly initiated by the introduction of a resolution in the Senate
calling for advice and consent to the action. The efforts were abandoned when
the proposed resolutions failed of adoption, despite the strong commitment of
the Presidents then in officc (Whiteman, Digest of InrernarionalLaw, Vol. 12,
pp. 1279, 1308ff., 1319K.).
155. In 1960,a resolution was introduced to delete the self-judging language
in the second reservation 10 the United States declaration of 14 August 1946.
Although the resolution was never reported to the full Senate for a vote, the
hearings on it arc cspecially illuminüting because they expliçitly address the
question of the method by which the existing declaration could be altered. From
these hearings it is clear that both the State Department and the Senate regarded
the process as consisting of two steps: (1) the termination of the existing
declaration, and (2) the filing of a new declaration omitting the self-judging
language. It is cqually clearly agreed that, although the first step could perhaps

be taken by the President acting alone, the second would require a resolution of
advice and consent of the Senate (id.,p. 1318).Thus even ifthe President could
terminate on his own authority, he could not substitute a new declaration.
156. "Modification" of an existing obligation is equally beyond the power of
the President acting alone. During hearings before the Senate Foreign Relations
Committee in April 1979 concerning termination of the mutual security treaty
with the Republic of China, a formal question on this matter was submitted in
writing to the Department of State for an authoritative reply in writing:

"Would you agrec that the President is no1 able 10 alter the terms of an
existing treaty in any significant way without the conscnt of the Senete'!
Answer. Yes.However, he may interpret a treaty and secure the agreement
of the other party or parties for a particular interpretation or method of
implementation."
The next question put to the Department was:

"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 signi-
ficant 'amendment' of al1 - complete termination of al1its tenns?
Ans~ver. 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 limits an obligation of the United States. Assuming a significant
change in a legally binding obligation to another nation, it follows that the
Senate should give ils advice and consent to such a change. Normally a
treaty is changed by another treaty, although the chardcterizdtion of the402 MlLlTARY AND PAMMILITARY ACTIVITIES [83-841

amendmcnt m;iy be different (cg., Protocol)." (Hearings on "Treaty Ter-
mination", Senate Committee on Foreign Relations, 96th Cong., 1st Sess.
(April 9, 10, Il, 1979). p. 214,Ann. II hcreto' Exhibit E.)

157. It followsthat, as a matter of United States law, the letter from Secretdry
Shultz is a nullity and can have no legal cfîect at all. Since a declaration under
Article 36 (2) is no1strictly speaking a treaty but in this aspect a unilateral act,
the fact that it is made without legal authority of the declarant State should

mean that it is equally without force or cfFccton the international plane. And
any State is, in th= absence of ils consent or acquicscence, entitled 10 assert
this fundamental absence of authority when the invalid declaration is asscrted
against il.
158. The Secretary's letter is equally invalid under the principles of the law
of treaties, because it was issued inmanifest violation of an internal rule of law
of fundamental importance. Article 46 of the Vienna Convention on the Law of
Treaties is entitled "Provisions of internal law regarding competence to conclude
treaties". It provides:

"1. A State may not invoke the fiict that its consent to be bound by a
treaty kas been expressed in violation of a provision of ils interna1 law
regarding compctence to conclude treaties as invalidating ils consent unlcss
that violation was manifest and concerned a rule of internal law of fun-
damcntal importance.
2. A violation is manifest if it would be objectively evident to any State

conducting itself in the mattcr in accordance with normal practice and
good hith."
159. The requir~ment of Senate advice and consent to a treaty is clearly "a
rule of internal I;iw of fundamental importance". It is established by the

Constitution of the United States as a basic asofct of the allocation of oower as
between the President and the Congress. It ig no1 a mere formal or iechnical
requirement. Moreover, the existence of this requirement is well known in the
international comniunitv. From the Treatv of Versaillesto SALT II, the refusal
of the Senate to adviséand consent to ireaties negotiated and signed by the
Executive - and the consequent.failure of United States ratification of such
treaties - havc been international cvents of major historic importance.
160. In the present case, the absencc of Scnate advice and consent was
objectivcly cvident to anyone interested in the matter. There was absolutely no

effort to submit th,: question to the Scnate. The letter was delivered privatcly to
the Secretary-Genr:ral on Friday, 6 April 1984. No public announcement was
made until two diys later. The letter itself did no1 recite any Senate action,
unlike the origindl United States declaration of 14 August 1946, made by
President Truman. Nor was therc any such reference in the official public
announcement of the transmission of the letter (Annex II hereto. Exhibits H,C).
161. Thus, applying the law of treaties, this is the very sort of "violation of a
provision of interna1 law regarding competence" that the declarant would be
entitled to invoke under Article 46 of the Vienna Convention. If the declarant
S~~ ~ ~~e~titled to invokc the defect. surelv the State aeainst which the instrument
.~ , -
is sought to be applied can do so, in the absence of acquiescence or consent.
162. The absencc of Senate advice and consent vitiates the Shultz lettcr of
6 April 1984 uh initia. III. THE TREATY OF FRIEXDSHIP. COiMMERCE AXD XAVIGATION
HI.:'I'\VI.:SICARA<;U,\ ASl>'l'HE USI'I'FI)SIA.I'I.:SI'RO\'II>I.S AS
ISI>EI'ESl>k:S'l'H,\SIS FOR .II~KISI)ICl'IOS USI>I;R ARTICI.1.:36(1) OF
TIIE Sl',\'l'lïI'EOF'IIIE COLIK'I'AS '1.0\'lOl.,Vl'IOSS OF THtif '1Ht.,\I'Y

163. As established above, the jurisdiction of the Court is firmly founded on
the declarations made by Nicaragua and the United States accepting the compul-
sory jurisdiction of the Court under Articles 36(5) and 36 (2) of the Statute of
the Court. In addition, under Article 36 (1) of the Statute, jurisdiction is also
based on the compromissory clause of the Treaty of Fnendship, Commerce and
Navigation, signed al Managua on 21 January 1956by Nicaragua and the United
States. This Trcaty cntcrcd into force on 24 May 1958,after the two States ex-
changed instruments of ratification in confomance with the procedure set forth
in Article XXV of the Treaty, and il remains in force today (367 UNTS 3).
164. Aceording to the terms of Article XXlV (2) of the Treaty:

"Any dispute between the Parties as to the interpretation or application
of the present Trcaty, not satisfactorily adjusted by diplomacy, shall be
submitted to the International Court of Justice, unless the Parties agree to
settlement by some other paciiic means."

This Treaty, in force between the Parties, ihus constitutes a complementary
foundation for the jurisdiction of the Court, in conformance with Article 36(1)
of the Statute of the Court, in so Caras the Application of Nicaragua implicates
violations of provisions of the Treaty 3.
165. Nicaragua submits that this Treaty has been and is being violated, in
several respects, by the militaiy and paramilitary activities of the United States in
and against Nicaragua, as describedin Nicaragua'sApplication. Specificÿlly,Nicar-
agua suhmits that theseactivitiesdirectlyviolateArticlesXIX (1) and (3); XIV (2);
XVlI (3); XX; and 1of this Treaty, as well as its Preamble. These violations of
the Treaty quite obviously havenot been "satislàctonly adjusted by diplomacy".
166. A discussion of the questions of thejurisdiction of the Court to entertain
this dispute plainly does not require that Nicaragua establish beyond doubt that
the United States has violated and is violating its obligations under the Treaty
of Friendship, Commerce and Navigation. The proof of these violations must

await the proceedings on the merits. At the present stage, it suffices simply to
identify those provisions of the Treaty that are contravened by the activities of
the Unitcd States as alleged by Nicaragua in its Application.
167. Thus, for example, Article XIX (1) provides: "1. Betweenthe territories
of the two Parties, there shall be freedom of commerce and navigation." The
activities of theUnitcd Statcs clearly violate this provision.
168. Although it is a larger concept, freedom of commerce includes freedom
of trade. Both expressions have a unique French translation: "liherré drrrom-
merce" - which consists, as thc Permanent Court pointed out, of

' WhenNicaraguasubmittcdils Applicationto the Coun on 9 April 1984.it rcservcd
the right to supplcrncnor amcnd il.Consequently.Nicaraguarespectfullyrequeststhe
Court 10 considcrthat Nicaraguaiscxcrcisingthat rightin so farasitisnecessaryto do
ragua andvthc UnitcdSiatcs.tyof Pricndrhip,Commerceand NavigaiionbetweenNica- "the right - in principle unrestricted - to engage in any commercial
activity, whether it be concerned with a trading properly so-called, that is
the purchase and sale of goods, or whether it be concerned with industry,
and in ~articular the tranmort business: or. finallv. whether it is carried on
inside ihe couiitry or, by ihe exchangeof imporis and exports with other
countries" (Osr.orChinn case, Judgmenr, 1934, P.C.I.J., Series AlB. No. 63,

p. 84).
In the same Judgment, the Court pointed out that

"According to the conception universally accepted, the freedom of navi-
gation . . .coinprises freedom of movement for vessels, freedom to enter
ports, and to rnake use of plant and docks, to load and unload goods and
to transport goods and passcngers." (Id., p. 65.)

This deriniiion i,>n:jrnis IO ihc çon\entional and iusiomar) rulch in iorcc anJ.
in prticular. Article 1 oi the Gcnera Ciin\,enti<~non thc IIigh SCJ, of 1958and
,\rticle Y0ol thc \I~nregs 13;1)Con\cniion on the I.au di thc Sra. u hiih epress
a ~ry br&~dpr~nciplcnf)iz.<r~~~~in~i~iiiraiio~ii~.
6 Thejc princ ples have ne\cr hcen challcnged h) the Ilnitcd Staicr. whi~h.
on the contrary, ha; always expressed a strong conviction as to their importance
(see Whiteman, Di{:esrofInrernari(>nolLoiv,Vol.4, p. 507).
170. In consideration of these principles,

"The freedom of the high seas does not include the right to utilize the
high seas in a inanner which unreasonably prevents other States from enjoy-
ing that freedom." (François, Yearhonk O/ 1l1eIrrferiiolionalLow Coninris-
sion, 1956,p. 10.)

171. And, in the words of the United States Supreme Court,
"Upon the ocean, in time of peFe, al1possess an entire equality. It is the
comrnon highway of all, appropriated to the use of all, and no one can
vindicate to hiinselfa superior or exclusiveprerogative there." (TheMarionna
Flora, 1Wheaion 1,43 (1826).)

172. It is obvioi.~that the military and paramilitary operations directed and
maintained in and against Nicaragua by the United States - including the
mining of Nicaragian ports and territorial waters, as well as attacks on Nica-
ragua's airports, and military operationsthat endanger and limit trade and trafic
on land - are designed to paralyse the freedom of commerce and navigation,
thus defined and giiaranteed in Article XIX (1) of the Treaty.
173. These activities of the United States also contravene Articles XIV (2);
XVIi (3); XIX (3); XX; and 1of the Treaty. Nicaragua expressly reserves its

right to demonstrate these breaches during the proceedings on the merits of this
case. Sufficeit here to identify the relevant clauses:
Article XIV (2) :

"2. Neither Party shall impose restrictions or prohibitions on the impor-
tation of any product of the other Party, or on the exportation of any
product to the:territories of the other Party, unless the importation of the
like product of, or the exportation of the like product to, al1third countries
is similarly restricted or prohibited."
Article XVII (3):

"3. Neither Party shall impose any measure of a discriminatory nature
that hinders or prevents the importer or exporter of products of either country from obtaining marine insurance on such products in companies of
either Party."
Article XIX (3):

"3. Vesselsof either Party shall have liberty, on equal terms with vessels
of the other Party and on equal terms with vesselsof any third country, to
come with their cargoes to al1ports, places and waters of such other Party
open to foreign commerce and navigation . . ."

Article XX :
"There shall be freedom of transit through the territories of each Party

by the routes most convenient for international transit:
(a) for nationals of the other Party, together with their baggage;
(b) for other persons, together with their baggage, enroute to or from the
tenitories of such other Party; and

(c) for products of any origin en route to or from the territories of such
other Party . . ."

174. Moreover, Article 1 of the Treaty States:

"Each Party shall at al1limes accord equitable treatment to the persons,
property, enterprises and other interests of nationals and companies of the
other Party."

The military and paramilitary activities çarried on by the United States are
clearly incompatible with this very comprehensive statement: armed attacks
against Nicaragua by air, land and sea, resulting in the loss of human lives,
severe human suffering and material damages, cannot be seen as "equitable
treatment to the persons, property, enterprises and other interests" ofNicaraguan
nationals and companies.

175. Further, it should be noted that, as its very title indicates, this Treaty -
of "Friendship", "Commerce", and "Navigation" - is intended to achieve a
certain broad purpose. This intention is confirmed by the fact that, in the
Preamble, the Parties declare themselves "desirous of strengthening the bonds of
peace and friendship traditionally existing between them and of encouraging
closer economic and cultural relations between their peoples". It goes without
saying that the activities of the United States directly contradict these goals and
objectives, and the entire spirit of the Treaty.
176. The compromissory clause contained in Article XXlV (2) of the Treaty

of Friendship, Commerce and Navigation between Nicaragua and the United
States thus constitutes a sound basis of jurisdiction in the present case in so far
as breaches of the pertinent clauses of the Treaty are alleged.
177. Accordingly, while the fact remains tbat the principal basis for the Court's
iuri~ ~~t~ ~ ~~~ives from the accentance. bv the Iwo Parties. of the comoulsorv
jurisdiction of the Court und& ~Fticle 36 (2) and (5) of the Statute, the'~rea&
of 1956provides a complementary round for the Court's jurisdiction. And as
the permanent Court pointed out: -

"The multiplicity of agreements concluded accepting the compulsory
jurisdiction is evidencc that the contracting Parties intended to open up new
ways of access to the Court rather than to close old ways or to allow them
to cancel each other out with the ultimate result that no iurisdiction would

remain." (Electriciry CompanyofSoja rindBulguria. ~relh~inaryObjeclions.
Judgment, 1939.P.CL J, Serie.sAIE, No. 77, p. 76.) CONC1,USIONS ON JURISDICTION

178. Nicaragua prescritsthe following as its conclusions on the question of
jurisdiction :

A. Nicaragua is I~oundby the compulsory jurisdiction of the Court under the
terms of Article 36 (5) of the Statute of the Court.
B. Article 36 (5) applies, by its express lems, to "Declarations made under

Article 36 of the Statute of the Permanent Court of International Justice which
are still in force", and Nicaragua's unconditional declaration of 1929,which was
for an indefinite terin, was such a declaration when Nicaragua ratified the United
Nations Charter.
C. The words "umhichare still in force", as they appear in the English version
of Article 36 (5) have the same meaning as the corresponding French tex1
which refers to declarations "pour irireduréequi nésrpas encoree.rpirc'e . . .".
Nicaragua's declaration of 1929. for an indefinite duration, was, at the lime
Nicaragua ratified the Charter, "porrrune dirrée qu ni'es1pasencorec.rpirée".

D. Article 36 (511was intendcd to preserve, to the maximum extent possible,
thejurisdiction and potential jurisdiction of the Permanent Court of lnternational
Justice for the newly created International Court of Justice, and to maintain
continuity between the two Courts. It was designed so as not to frustrate or
retard progress alrrady achieved in obtaining acceptances of the compulsory
jurisdiction. It is to bc construed in light of these purposes.
E. At the lime immediately prior to Nicaragua's ratification of the United
Nations Charter, its declaration was in a valid but unperfected state, requiring
ratification either of the Statute of the Permanent Court or the Statute of the
new Court (via ratification of the Charter) to give it binding force. By ratifying

the Statute of the new Court as an original Member of the United Nations,
before the Pemani:nt Court was dissolved, Nicaragua perfected its declaration
and gave it binding.force.
F. The practice of the Court, the parties and other States, and the opinions
~~ learned oub1ici;ts con~ ~ ~ ~ ~ ~ ~ ~ ~ ~6 15) o~e,.ted .ith resoect to
Nicaragua's declaration so as to make it an acceptance of the compulsory
jurisdiction of the lnternational Court of Justice.
G. The first Yeafbook of the Court, for 1946.1947;recognized Nicaragua as a
State whose declaration was "deemed to be still in force" by virtue of Article

36 (5) and which. ;iccordingly, was bound by the compulsory jurisdiction of the
Court. Everv subsrquent Yeurhook throunh the most recent one for 1982-1983.
a piri.iJ <tfslriidri :i9).car,. ha5iniludiJ Sic.ir.igu.i am<>ngihr.Si;iicr ri.sgni,ing
ihi i<~mp~lr$>r j?i ir<liclii~OC ihi C<)iiri.Uilicr ptrtlnini public documctil, ai'
itic Couri and iIic Ciiitcd U;iilons. i\ith<~utiircptioii. h;i\r..;iniilarl! rcc.gniriJ
Nicaragua as accepting the compulsory jurisdict;on of the Court.
H. The substantially uniform opinion of the leading publicists and commen-
tators recognizes Nicaragua as having accepted the compulsory jurisdiction of
the Court by virtue of the application of Article 36 (5) to its declaration of 1929.
1. The practice of Nicaragua in supporting the proposed draft of Article 36(5)

as a member of Committee IV11at San Francisco, in ratifying the Charter as an
Original Member. in acquiescing in the jurisdictional assertions of Honduras inthe Arbitral Aivurd case, and in not objecting to the inclusion of its declaration
in the Yeurbook of the Court and other pertinent public documents for 38 years,
manifests an unequivocal understanding that it has been and is hound by the
Court's compulsoryjurisdiction.
J. By ils practice the United States has exprcssly recognizedthe effectiveness
of Nicaragua's declaration of 1929,by regularly listingNicaragua as bound by
the compulsory jurisdiction of the Court in the authoritative Department of
State annual uublication Treuriesin /:orce.The United States has also imulicitlv
rccugni~cd thr. ~~llcctl\enr.ssof Sic;iragua's dec1;ir;itionby niit iihJc..tina Ioii
dcspitc 115inclusion in the );,iirhimkior 38 years and Jc,piic the Pici thdt ihe
lJn~iedStst-i war I;,rmilly on noicc. fur the \amc period. ut S\'ii:ir;icus'f~ilure
to deposit an instrumeni of ratification of the ~rotocol of signature of the
Statute of the Permanent Court.
K. Without prejudice to the foregoing conclusions,even if Nicaragua's declar-
ation of 1929werc transferred to the Statute of the new Court in 1945 with a

defect of form in the expression ofconsent to the compulsory jurisdiction of the
former Permanent Court, such dcfect does no1 have the consequence that the
Court lacks jurisdiction on thc prcsent case.
L. In the contcxt of iurisdiçtional instruments, the overridine criterion is that
of the reality ofconseni, and Nicaragua has alwaysconsented ti the compulsory
jurisdiction of the Court, such consent being evidencedby ils consistent conduct
for 38 years.
M. The United States, by ilsconduct for 38years, has accepted and acquicsced
in the effectivenessof Nicaragua's declarationof 1929,and cannot now challenge
that declaration based on Nicaragua's hilure to deposit an instrument of ratifi-
cation of the Protocol of Signature of the Statute of the Permanent Court.
N. With reference to the letter from Mr. Shultz to the United Nations
Secretan-General dated 6 April 1984,this document bears two possible interpre-
talions. In the first place it may be regarded as an invalid attempt to modify or
varv the existine United States declaration which has thus been neither varied
noimodified a& remains in force. An alternative view is that the Shultz letter
has the effect of terminating the original declaration but on the exuress terms
that termination can only take eliec<six months after notice. In either case the
Court has been propcrly seised of a lcgal dispute as a result of the Application
of Nicaragua.
O. The view espoused by the United States to the effect that the declaration
of Nicaragua is terminable without notice and that consequently the principle of

reciprocity applies in order to permit unilateral modificationof the United States
declaration has no legal basis whatsocver.
P. The letter from Mr. Shultz did not constitute a valid modification of United
States obligations for the additional reason that it did not conform to the
constitutional requiremcnts of United States interna1law for the modification or
denunciation of treaty instruments.
Q. TheCourt has jurisdiçtion under Artiçlc 36(1) of the Statute of the Court
over claims presented by the Application that fall within the scope of the Trcaty
of Friendship, Commerce and Navigation between the United States and Niça-
ragua of 24 May 1958,by virtue of ArticleXXlV (2) of the Treaty. PARTTWO.THEADMISSIBILITYOFNICARAGUA'S
APPLICATIONOF 9 APRlL 1984

179. In its observations at the oral hearing on provisional measures, the
United States raisecla number of ohjections to action by the Court that were
unconnected with the status of Nicaragua's declaration accepting the çompulsory
jurisdiction or with the import of Secretary Shultz's letter of 6 April. Although
these objections wt:re not very sharply or clearly fonnulated, they relate in
general to the political circumstances surrounding the actions of the United

States in organizing and conducting armed intervention against Nicaragua.
180. At some ooints. the United States asserted that the leea- claims of
Nicaragua were part of a larger political context and therefore no1 meet for
adjudication hy the Court. Elsewhere,the United States point seemed to be that
another f o ~ ~ had exclusive comixtence over the disnute. thus nrecludinn the
Court from hearing Nicaragu;i'sciiiim Somrtimrs ihis'alicrnaic f;)rum wiicraid
tu bs the "Ci>ni~durapruccss". nui on other occasions II wai suggesicd that ihc
poliiiialtiryiinof !he CniieJ Nations or thc Ora-ni~ation of Amcrican Siairi
have exclu& authority in the premises.
181. Finally, it ",as contended that "junsdiction" is lacking here hecause of
the absence of the other Central American States.
182. These objections were denominated as jurisdictional (e.g., pp. 83, 86,
supra).It may be douhted whether, strictly speaking,this isa proper classification.
Weneed not be detained hy the intricacies of taxonomy, however (Mavrommulis
PalestineConcessions, Judgmen Nro. 2, 1924. PCIJ, Series A, No. 2, p. 10).
The Court's order, directingthat this phase of the proceedings shallhe "addressed
to the questions of the jurisdiction of the Court to entertain the dispute and of
the admissihility of the Application", is broad enough so that these issuesshould
properly be treated in this suhmission (Order of IO May 1984, I.C.J. Reports
1984, p. 187).

183. It is the position of Nicaragua, that, however phrased and whether
taken severallyor cumulatively, these objections are patently without substance.
Although we are at something of a disadvantage because the ohjections have not
yet heen preciselyfonnulated, we shall address them seriatimat this point. 1. TllE COCKI' IS SOT PHKCl.IJDl<D FKO\I AU.IUUIC,î'l'ISC;'C1IE
I.E<;AI. I>ISPCTKHFl'\VEk:S SICAWAÇUA ASDT11k: IJSlTKl> SI'A'I'ES
HI'REASOS OF'l'HE: SCRWOUSI>IS<; I'OI.Il'IC,\I. CIKCC\lS'I;ZSCFS

184. In its hroadest form, the thrust of the United States argument sccms to
he that because the dispute between Nicaragua and the United States has major
political dimensions it is unsuitable for adjudication by this Court. Thus, the
Agent of the United States ncar the heginning of his argument stated that:
"this Court.under the international svstcrnofwhich it is but a aart. is not
institution desil^ed under the cir~umstances of this case to &edy the
regional conflict that is tragically engulfing Central America" (p. 83, supra).

"The United States does not believe", he said, "that this judicial forum is the
appropriate place to address this issue. . .(id., p. 13). And the Deputy-Agent
argued that "Nicaragua is confronting the Court with only a small segment of a
much broader and interrelated conflict" (id., p. 76).
185. The short answer to this contention is the Judgment of the Court in
UniredStates Diplomatic ond ConsularStaff in Tehran (1.C J. Reports 1980,p. 3),
adopted at the urging of the United States in that case. There lran argued, just
as the United States does here, that the claim presented to the Court
"only represents a marginal and secondary aspect of an overall problem,
one such that it cannot be studied separatel. . .
The problem involved in the conflict between lran and the United States
is thus not one of the interpretation and the application of the treaties on
which the American Application is hased, but results from an overall
situation containing much more fundamental and complex elements.
Consequently, the Court cannot examine the American Application divorced
from its proper context, namely the whole political dossier of the relations
between lran and the United States over the last 25 years." (Id., p. 19.)

The Court categorically rejected this argument, pointing out, as it had in ils
earlier Order on provisional measures that
"no provision of the Statute or Rules contemplates that the Court should
decline to take cognizance of one aspect of a dispute merely hecause that
dispute kas other aspects, however important" (id).

The Judgment goes on to say that
"legal disputes between sovereign States by their very nature arelikely to
occur in political contexts, and often form only one element in a wider and
long-standing political dispute between the States concerned. Yet never kas
the view been out forward that. hecause a leeal disoute suhmitted to the
Court is only one aspect of a political disputerthe ~'ourt should decline to
resolve forthe parties the legalquestions al issue betweenthem. If the Court
were.contrarv~to ils settled. .;isnrudence. to adout such a view. il would
impose a far:reaching and unwarranted IestrictiDn upon the role of the
Court in thepeaceful solution of international disputes." (Id., p. 20.)

186. As the Court was al pains to state, its conclusion marked no novel
departure, but was in accordance with its "settled jurisprudence". It is implicitin the position of the Court under the United Nations Charter as "the principal
judicial organ of the United Nations" (United Nations Charter, Art. 92)' an
organization whose first purpose is "To maintain international peace and
security", among ~otherways by bringing about "by peaceful means, and in
conformity with iiiternational law, adjustment or settlement of international
disputes or situati,>ns which might Icad to a breach of thc pcacc" (United
Natio~ ~ ~arter. .rt. ~ (1, ,,.
187 InT.ici.hciau~c of (hi\ icliiurc JC ihc Ci>uri', instit~ti.indl Iir<liiiciiure.
Dr. Ki>,rnnc, ;ilthc:\.Cr!oui\ct orhi..m:igiii~ri;iltiiil). m2intain\ thai ihi cntirc
dichoiomv i>i"riolitic;il" as onvoscd in "Icc~il"uucriiuns is inaooosiie in rclaii<~n
to cases coming before the ~krt. -. ..

"The definition of the status of the Court as a principal organ, and the
principal judicial organ of what is essentially a political organization, the
United Nations, emphasizes that international adjudication is a function
which is perfc~rmedwithin the general framework of the political organi-
zation of the international Society, and that the Court has a task that
is directly reliited to the pacilic settlement of international disputes and
hence to the maintenance of intcrnational peace . . . Litigation is but a
phase in the unfolding of a political drama." (The Luw rinû Prucrice of the
h~iernurionali:ourr, Leyden, 1965, Vol.1,p. 2.)

188. The suhmir:sionof a claim to the Court, Dr. Rosenne says, represents a
decision to seek a iresolutionof the issuestendered by the Application according
to legal norms applied by judicial techniqucs. in contrast to resort to political
procedures of setilement. To the extent that the parties have accepted the
jurisdiction of the Court under the Optional Clause, such a choice is open 10the

Applicant and mu:;t be accepted by the Respondent (id., pp. 2-4). Although the
Court kas properly held that it cannot bc concerned with the motives underlying
the decisionto invoke the Court (Con<l;iions of Admissi~m ofa Sioie ro Memhership
inihe UniiedNuiioils (Arricle4 oJ'Chorter), AdvisoryOpinion,1948,ICJ Reporrs
1947-1948,pp. 57, 61), it must ofien be the case, as here, that the rcsort to the
judicial forum canes when thc modalities of political settlement have been
distorted b. .soarities of oower betweenthe ~arties orcorrunted bv the readiness
of the stronger to disregard, in ils political conduct, the ordinary constraints of
international law. It is especially important that the doors of the Court should
remain omn in iu't such cases
189 1" Iiny e.vcni.although ;ilri,dri ekcry caic to iomc bcîorc ihc Cour1 hïi
bccn sutfurcd with grai,e p,~liiic~limplicaiiun,. the Court ha, neter dcrlincd tti
~idtudi~~sihecwu* ihe out-stion prcwn!r.d \i,li"poli~ic;~l"'l'hcrc ILno "politic:iJ
doctrine" in the jurisp&dence of the internationa Court of justice, in
the sense of a principle requiring the Court to decline to adjudicate a legal
dispute otherwise 9roperly before il, because the dispute is enmeshed in a larger
political controverjy (see Righis/$Minr,rilies in UpperSilesiu (Minoriiy Schools),

Jirdgmenl No. 12, 1928, P.C.I.J., Series A, No.15, p. 23). On the contrary, the
Court has repcatedly held that it "cannot attribute a political character to a
request which, framed in absvact terms, invites it to undertake an essentially
judicial task . . ."(Condilirms<,fA<lmi.s.sioonf a Srore Io Memhershipin rhe Uniied
Nuiions (Ariicle 4 of Cl~arier),Adi'isoryOpinion, 1948.I.C.J. Reporis 1947-1948,
p. 61: see ais0 Cornpetenceof rhe GenerulAssemblyfor tlle A</mi.s.sio/l$la Siare
ro rhe UniredNarions. A<lvisoryOpinion. I.C.J. Reporrs 1950.p. 4, pp. 6 and 7).
In CerruirrE.xpen~es.the Court. in repeating this language, addressed the issue
cven more directly: "It has been argued that the question put to the Court is intertwined with
political questions, and that for this rCdS0nthe Court should refuse to give
an opinion. It is true that most interpretations of the Charter of the United
Nations will have political significance, great or small. In the nature of

thines iicould not be otherwisc. The Court. however. cannot attribute a

. .
~ivisor~ opinion.1.C. J. Reports1962. p. 151,'P. 155.j

190. The judgments just cited were al1 delivered in response to requesis for
advisory opinions. Howevsr. the Court itself kas said that it, as well as ils
predecessor,

"have had occasion to make pronouncements conceming requests for
advisory opinions. which are equally applicable to the proper rolc of the
Court in disposing of contested cases; in both situations, the Court is
exercising a judicial furiction(NorrhernCrimeronnsP . reliminuryOhjeclions.
ICJ. Repi~rrs1963, p. 15,p. 30).

Dr. Roscnne ÿlso indicates that on this issue, advisory opinions are authoritative
with respect to contentious cases as well (Roscnne, siipru,Vol. II, p. 703, nn. 3
and 4). Indeed, it may be argued that the advisory opinions are even more
compelling, since unlike in the contentious jurisdiction. the Court has a certain
discretion under Article 65 of the Statute to decline to respond to a request for
an advisory opinion. That the question involved grave political implications
might very plausihly be advanced, as in Crrruin fipenses and Compereiice ,~fthc
GenerulAs.sen~hly a,s a ground for exercising the discretion and declining to

respond. Nevertheless, the Court refused to accept those suggestions.
191. Sroiu.sofEu.~rern Curelia and Northern Cumeroonsar e ot to the contrary.
In the first, the Permanent Court considercd that in the circumstances it was
bcing called upon to pronounce on questions actually in dispute between two
States, one of which had no1 consented to the jurisdiction of the Court (Sturu.s
L> EasternCureliri,AdvisoryOpinion,1923. P.CI. J, Series 5, No. 5, p. 7). In the
second, the action of the General Assembly. aïter the case had been filed, in
disposing of the territory of the Northern Cameroons in accordance with the
results of a plebescitc, rendered nugatory any pronouncement the Court might
have made as to the legality of the earlier conduct of the trustee power. In etïect,
the case had become moot (NorrhernCanzeroons , C.J. Reports1963, p. 15.)

192. Nicaragua's Application presents a legal dispute in the classical sense of
the term. Early in ils history, the Permanent Court laid down the definition ofa
dispute in terms that neither it nor this Court has found it neccessaryto modify:
"A dispute is a disagreement on a point of ldw or fact, a conflict of legal views
or of interests between two persons." (Muvro~n~nulis Pulesline Conceï.sioi~.s.
Ju~lgmenN r o. 2, 1924.PCLJ, SeriesA, No. 2, p. 11 ;seealso SouthWesrAfricu,
Prelimin(rryObjecrions.Jud~menr, I CJ Rrporis 1962, p. 319 al pp. 328, 343.)
The definition echoes to a certain extent the calegories of legal disputes listed in
Article 36 (,).of the Statute of the Court. The disoute that is the basis of
Nir~ragu.i'sclsim qu:ililic, undcr 311 Ihr <iithgi>c..iicgorics.
193. Iricliclir,r place. rhcris2 dispute ovcr the inrcrprer;iiioiio(irc;irics (sce
Art. 36 i?I (<III. Nic;ir;teua'fundamentsl cunicntiun irihai the conduct oi the
, , ,.
United States, in organi<ng, supplying and directing a mercenary army in attacks
on Nicaragua, is in violation of the prohibitions on the use of force in the
Charters of the United Nations and the Organization of American States. The412 MILITARY AND PARAMILITARY ACTIVITIES [103-1051

claims of treaty violation are set forth explicitly inparagraphs 15-19 of the
Application in this case(Application, pp. 7-8, supra).Although the United States
has not yet pleaded to the merits of the case before the Court, its public position,
as stated by Presidr:ntReagan, is that it has a perfect right to do what it is doing
(see Application, p. 5, supra, para. 7). Thus there is a direct clash betwcen the
parties about the obligations of the United States under the United Nations and
Organization of American States Charters. The Court has already established
conclusively that, for the purpose of its judicial functions, the United Nations

Charter is a multilateral treaty, the interpretation of which presents a legal
question (CondirionsOfAdmissionofo Srarero Membershipin rhe UniredNorions
(Arricle 4 of Charrer), AdvisuryOpinion, 1948.I.C.J. Reports1947-1948. p. 61;
CerrainExpensesqf rhe UniredNarions(Arricle 17, paragraph 2, rflhe Clzarler),
AdvisoryOpinion.I.C.J. Reports1962, p. 155). By parity of reasoning, the case
is the same as to tlic OAS Charter.
194. At one poiiit, the Agent of the United States complained that

"Nicaraeua's Ao..ication . . . imo..,erlv calll.. .oon this Court in the
circumsiances of thii cahc icimlikeludgments .. .p(itentially imp:iiring the
inhereni righi i~iSiate io individual and collective\clf-dcl'cnscundcr ;\rt~clc
51of the Uniicd N;itions Chlirtcr" (p 86. wprri)
Nicaragua, of course, belicves that no such issue arises, for neither the United
States nor any State with which it is associated in the region is under "armed
attack" from Nicaragua, as would be rcquired under Article 51 for the exercise
of the inherent right of self-defence(United Nations Charter. Art. 51 ; see also

the discussion of the Advocate for Nicaragua at pp. 61-65, supra). But that issue,
if raised by appropriate factual pleadings before the Court, calls equally for an
interpretation of tlie Charter, which the Agent of the United States invoked in
his argument. The plea of self-defenceis surely one of the oldest known to the
law, municipal or international. The proceedings on the merits in this case will
aiTord the United States the fullest opportunity to present that plea if it so
desires, and for thi: Court to adjudicate upon it.
195. In the sameway, Nicaragua'sapplication presentsa legaldispute concern-
ing questions of international law, within the meaning of Article 36(2) (b) of
the Statute of the Court. It is Nicaragua's contention that norms of general
international law, quite apart from treaty obligations, prohibit the use of force
against it, the invasion of ils sovereignty and interference in its interna1affairs.
It alleges that the conduct of the United Statcs violates these norms. Its claims
in this respect are set forth explicitly in pararraphs 20-24 of the Application
(~pplication, p. 8. supra). Again it appeaÏs sÜlfficiently from the sta&ments of
the President and other officiaisthat the United States is acting under claim of

right in the premiscs.
196. The United States has not yet deigned to answer Nicaragua's factual case
in this Court. Thur it cannot be said definitelvwhether subsection IcJ of Article
36 (2) willbe implicated in this case. It hardliseems likelythat the ÙAitedStates
can or will deny Ihe general character of the affirmative factual allegations of
the Aoolicatioti. These are matters of common knowledee. and indeed thcvhave
hccn ;>penl!.iskn<iwlcdged.cvcii vsuiitcd by the L'iiitc~Sixtes in doniest;~;ind
inicrnaii<~n:il uhli: pronounccmcni\. Thc ,\gent iiithe I'nitcd Sidicr. h<ii%c\cr.
h i. .h.irgcd. alih(.ugh i\ith<~~thcnclit of iupp,~rtin~c\id:nrc ih.11conduct of
~icaragua justifie!:or excuses the use of for& agaiLst it (e.g., p. 82, supra; see
also dissenting opinion of Judge Schwebel, ICJ Reports1984, pp. 191-193).If
the United States brings fonvard evidence purporting to support these charges
at the proceedings on the merits, there will assuredly be a dispute on the facts.il051 MEMoR1.U. 413

197. Finally, Nicaragua has demanded reparations from the United States for
the loss of lifeand orooertv. the latter alreadv exceedine $200 million. causedhv
the illegal use of akmédforce against it by ihe ~nited~tates (see ~~~licatio~,

p. 10,supra, para. 26 (h)). There is thus a dispute hetween the Parties as to "the
nature 'r extent of the reparation to be made for the breach of an international
obligation", withinthe meaning of Article 36 (2) (d) of the Statute.II. 'l'HF.COSSll>liH,<I'lOS OF'l'HESl'l'UA'I'IO\ IS CESI'RAI. A\lEHICA

IS I\'l'EHS,î'I'IO\,\l. I'OI.l'I'ICAI.II0I)IF.S 1)OF.SSO'I'PHI~:CI.III>E~I'IIE
COIJH'I'FRO\I AI>JUI>ICA'l'lSC';l'HF.I.EC,\I* I>ISIBIITFB . KI'\\'Et:S
SIC,\H,\(;U,\ ,\SI>'l'IIF. IISl'l'LDSl',î'I'I.S

198. At various times, various aspects of the situation in Central America

have been addressi:d by various international bodics, permanent and ad hoc.
That is onlv to be exoected. and indeed is iust as it should be. It would hardlv
br.p<)*rihlci<irinie~n~ti~>n~lpoliiiaio lrg:in;,aii.>ns to igniira.,ilu.itii>nthsi hi,
bccn of in-re.i,ing rcilicsrn IO ihe intern:~iion;il<uriiiiii.nityoicr thc pdrt ,eier~I
vcars. But it is cl&r that such consideration cannot oust the Court of competence
io hcar this case. Wereit otherwise, little would remain ofthe Court's finction,
as principaljudicial organ of the United Nations, of contributing to the peaceful
settlement of international disputes

A. The SccurityCouncil,the Ceneral Assemblyandthe Organization of American
Statn

199. Central American problems have been under consideration in the United
Nations and the Clrganization of American States over the past several years.

The records of the debates are voluminous. The principal actions taken bythese
bodies are Secunt]~Council resolution 530, 19 May 1983, S/RES/530 (1983);
General Assembly resolution 38/10 on Thesituationin CeniralAmerica: threuts
ro inrernafionulsecuriryandpeuceinitiutives, II November 1983; Resolutionof
the GeneralAssemi>ly of the 0rguni;rrtion (~fAmericanStuieson PeaceEffortsin
Central America, 18 November 1983, AG/Res. 675 (XIII-0183); in addition,

on 4 April 1984, a draft Security Council resolution, S116463,introduced by
Nicaragua, was not adopted owing to the negative vote of the United States
(SIPV.2529, 4 April 1984 (provisional), p. 111). For the convenience of the
Court, the texts of these documents are provided in Annex III. As will be shown
bclow. none of these actions purports to or does in fact or law have any effect
in limiting the competence of the Court.
200. The Agent of the United States rcferred Io "the primary responsibility"

of the Security Council for maintenance of international peace and security and
to the oower of the~ ~ ~-~l to determine the existence ~f~anv "thrcats to the
peace, breaches of the peace [or] acts of aggression" (see p. 113, supra). He also
called attention to the provisions of the United Nations and the Ornanization of
American States 13ha;ters calling for settlement of disputes throÜgh regional
arrangements befiire referring them to the Security Council (see pp. 111,
113, supra).

201. Although these references are, of course, literally accurate, there is
nothing in them -- or in the practice of the United Nations or this Court -
that gives them aiiy pre-emptive significancewhatsocver. In fact, as the Court
itself kas pointed out, adjudication is one of the peaceful means for the solution
of international di!;putesenumerated in Article 33 of the United Nations Charter
(United Siales Diplomolic und ConsularStaff in Tehran, 1.C.J. Repor1.s1980,
p. 23). Article 36 of the Charter, in dealing with possible recommendations of

the Security Couiicil, notes that "legal disputes should as a general rule bc [107-1IO] .WEMORIAL 415

referred by the parties to the International Court of Justice in accordance with
the provisions of the Statute of the Court" (see id.,p. 22).
202. On this question also the recent Judgment of the Court in UniredSrares
1)iplomaricand ConsulorSroflin Tehran is dispositive. In that case, the Security
Council, by the terms of ils own resolution "remain[ed] actively seized of the
matter" during the pendency of the Court proceedings (id.p. 21). The Court,
examining the question proprio moru, round that this had no impact on its
competence to decide the case or on the admissibility of the proceeding, holding

that there was "nothing irregular in the simultaneous exercise of their respective
functions by the Court and the Sccurity Council".
"Nor is there in this any cause for surprise. Whereas Article 12 of the
Charter expressly forbids the General Assembly to make any recommen-
dation with regard to a dispute or situation while the Security Council is
exercising its function in rcspcct of that dispute or situation, no such

restriction is placed on the functioning of the Court by any provision of
either the Charter or the Statute of the Court. The reasons are clear. It is
for the Court, the principal judicial organ of the United Nations, to resolve
any legal questions that may be al issue between parties to a dispute; and
the resolution of such legal questions by the Court may be an important,
and sometimes decisive, factor in promoting the peaceful settlement of the
dispute." (Id.,pp. 21-22.)

Needless to say, the Court's conclusion was in accord with the position tdken
by the United States in that case. It was consistent, as well, with the prior
jurisprudence of the Court.
203. In the South WesrAfricu case also, thc Court saw no difficulty in dealing
with a dispute that had been continuously on the agenda of the General Assembly
since 1946 and was being debatcd in thc Assembly whilethe case was pending
bcfore the Court. According to Dr. Rosenne, as a result of the Court's judgment
in thdt case:

"it is now clear that the fact that a dispute is simultaneously being dealt
with by the General Assembly and by the Court is not in itself regarded in
either organ as a bar to its further action" (Rosenne, supra, Vol.1,p. 87).

This necessarily follows because the Iwo bodies deal with difierent aspects of the
problem: "while in the General Assembly the political facets have priority, the
Court may only decide the issues before it on the basis of law" (id.p. 86).
204. In this approach, Dr. Rosenne points out, the Court is following the
general lines marked out by the Permanent Court in Righrsof Minoriries in
Upper Silesia (Minoriry Schools),Ju(1gmenrNo. 12. 1928, P.C.I.J., Series A.
No. 15 and Ir~lerprelariunof rhe Srarure (f rhe Memel Terrirory, Preliminury
Ohieciion.Jud~menl.1932. P.C.I.J. SeriesAIB. No. 47,.oaue 248. In each of
thésecases, the court was construing a special convention vesting the ciuncil
of thc Lcague of Nations with powers over the subiect-matter of the convention
and providing for reference of kgal disputes to théPermanent Court. In Riyhrs
I$ Minorilies in Upper Silesia(Minoriry Schools), the Court refused to find that
a prior ruling of the Council on the matter in issue precluded the Court's
consideration of the legal questions involved (1928. P.CIJ. SeriesA. No. 15,

Jirdymenr, p. 29). And in the Inrerpreruiir~ijilre Srarureofrhe Memel Territory
case, ilheld that submission of the matter to the Council was not a precondition
to proceedings beforethe Court, nor could such an interpretation be given unless
"the intention of the contracting Parties to stipulate such a condition [is]clearly
established" (PreliminoryOhjecrion.Ji«dgmenrP , .C.I.J., SeriesA/B No. 47, 1932,p. 248). In each case, the Court pointed out that the purpose and nature of the
Council's comoctencc was dilïerent from that of the Court. which was confined
to the resolutiin of legalquestions (Righu of Minoriliesin l/pper Silesia (Minority
Schools), p.29; Inierpreiation of the Statute of the Memel Terriiory, p. 248).
Althourh the con!tentions under consideration in those cases mide-soccial
for the role of the League Council, the Court was applying géneral
principles of the relation hetween judicial and political authority on the inter-
national plane in finding no presumptive objection to the concurrent exercise of
these powers.
205. The Deputy-Agent of the United States referred to the Court's refusal to
indicate interim measures of protection in the AegeatrSeu Cotrririeir~rrllrel/case
when the Security Council had already called upon the parties to settle their
diiierences by negotiation (p. 112,supra; Aegeun Seu Contineniul Slrcl/: lnterim
Protection, Order fbcll September 1976. I.C.J. Reporrs 1976,p. 3). It is not clear
tbat the reasoning of the Court in that case has any application except to thc
auestion of interim measures then hcfore il. In anv cvent. it has no hearine on
ibe admissibility of the present Application. The basis for'the Court's rcfusal to
indicate provisional measures was that the actions of Turkey did not threaten
irreparable harm tcithe legal interests for which Greece was seeking protection.
In those circumstarices and in the context of a request for interim measures, the
Court thought it Kas sufficient simply to cal1attention to the Security Council
resolution (id., pp. 12-13). But neither the Order nor any of the Judges who
wrote separatc opinions suggested that the Court was without power to indicate
such measures because of the Security Council action. As Judge Tarazi said:

"This was iiot an example of two parallel remedies, inasmuch as the
Security Counsil, unlike the Court, is a political organ. The rule ekctu rrnu
viadid no1haveto beapplied." (Id., p. 33(separate opinion of Judge Tarazi).)

Indeed, several of the Judnes thounht that the Court should have exercised its
undouhted independent auihority 6 reinforcc the Security Council recommen-
dation (cg.. id., pp. 20-21 (separate opinion of Judge Lachs); p. 29 (separate
opinion of Judge Elias)).
206. The United States seems to think the prcscnt case is somehow different
from the others hccause of the provision of Article 39 of the United Nations
Charter that "the Security Council shall dctcrmine the existence of a thrcat to
the peace, breach of the peace or act of aggression . . .(see p. 113,siipra). It is
ironic, of course, tliat the United States should scek to confine Nicaragua to the
Security Council, uphenthe United States veto in that body has prevented it from
taking action on th: situation in Nicaragua and condemning United States policy
there (Ann. III, Exhihit 4).
207. In any case, the suggestion of an exclusive competence for the Security
Council, even in matters concerning peace and security, is groundless. Article 24
gives the Council primary responsibility in this field, but as the Court said in
Cerrain E- penses of rhe UrriredNarions (Arricle 17,paragraph 2. of the Cliurrer)
"the responsibility conferred is 'primary', not exclusive" (I.C.J. Reports 1962,
p. 163). In that case the Court held that Article 24 was no bar to the General
Assemhly acting within its own competence on mattcrs involving international
peace and security. It is likewise no bar to the action of this Court, within its
competence.
208. The argument with respect to the Security Council and the Gencral
Assemblvaoolies u fi~rriorito the Oreanization of American States. That Oreani-
zation certa;nly cinnot occupy a :osilion supcrior to the United ~acons,
as the provisions of Chapter Vlll of the United Nations Charter clearly indicate418 MlLlTARY AND PARAHILITARY ACTI\'ITIFS (114-1161

and Vcne7uclamet iiiJlinuary 1983 I'hc nicciing war Je\otcd to :igcnïrïl rcsieu
of conimon prohlein\. in ahich. natur;tll! cnnugh. the siluailon in Ccntral
i\mîri.x h~lkcd barp.:.The iiimmuniuu? <iiLlJanuars 1'133t,\nn. IV. F,xhihitAi.

as it pertains to Central America, bcgins by expreshng pro'foundconcern at the
direct or indirect irivolvement of foreign forces in Central America. It calls
urgently for a dialoguc among the States of the region, reaffirms the obligation
to refrain from the threat or use of force and calls on the States concerned to
do nothing to aggravate the situation or increase the danger of a general war in
the region.
215. Then, after rcviewingother peace initiatives, the communiquéstates that

"respecting the principles of non-intervention and self-determination of
peoples, the Foreign Ministers analyzed possible new actions and indicated
the appropriateness of incorporating in those efforts the valuahle contri-
bution and nec8:ssarysupport of other states in the Latin American com-
munity".

216. From this bcginning,the Contadora powers wcresuccessfulin establishing
arrangements. with the agreement of the fiveCentral American States. for e,ne-~l
negocations about the iroblems of the region, in which Colombia, Mexico,
Panama and Venezu:bawould continue to participate by wav of xood officesand
. -
mediation. This was an important step' forward. Nicaragua agreed to the
arrangements in July 1983and has since been a full participant (see Ann. IV,
Exhibit K).
217. The subseaui:nt officialstatements of the Contadora oroccss are collected
in Annex IV. In r;viewing them, the Court will be mindful'of the statement of
its predecessor in the lnrerprerarion of the Srarrrre the Memel Terrirory case
that for a process [if negoiiation agteed on among the parties to have a pre-
emptive eiiect on th15 jurisdiction of the Court, "the intention of the Contracting

Parties Io stipulate sircha condition must be clearly stated" (1932 PCIJ., Series
AlB. No. 47, pp. 248-249; see also Rosenne, Tl~e L«w und Pruciice of rhe
lnrernaliunalCourr, Vol. 1, p. 84). The Contadora documents contain no such
clcar statement of intention to oust the Court of jurisdiction. They contain
absolutely no indiçiition of an intention to exclude other metbods of peaceful
settlement, or of an? intention whatsoever with respect to such methods.
218. Thus, the c~immuniqueof 12 May 1983 (Ann. IV, Exhibit B), issued
during the course of the Sccurity Conncil debate on resolution 530, contains no
suggestion that consideration bythe SecurityCouncil isinimical to the Contadora

effort. On the contrary it provides suggestions to the Security Council and the
Organization of Anierican States as to how their deliberations might facilitate
the work of the Contadora Croup. Moreover, the communiquécalls attention
to the "essential purpose" of the Croup "ta fulfilla diplornatic role designed to
seek the settlement of conflicts hv ~oli~icalmeans .. ." and to its view that "its
work should focus on the conce~t;ation of poliriml ciïorts to promote politicai
dialogue . . ." (emjhasis added). By ils stress on political methodology. the
communiquéseems at pains to distinauish the crux of the work of contadora
Tramthe icl?alJi\puir\.ih;it are beiorplhc Couri in ihis procscding.

?IO. Thc Caniun Dcclaration oi Pcacc in <:rniral Amcricli (Ann IV, Fihi-
bit Ç). outline, in :igcner:~l s,;ivthe ioniiii~tnients that sh~~ulJhc unJcnakcn hv
the oarties in ordecto achievk a resolution of the situation. None of th~s~ ~ ~~- ~
involvc~ .ircjcctloit of judici~l \eitlcmcnt <IVdi,puier or oi an) othcr m.ichincry
or pc:cIul ctlc:it. Il isnoteii.t>rihy.ho\vcicr, th:.( the Jii~uiii<>nhcgiii.:hy
,tatinr!. "The u,: oi'i~>rcc is.in a..irii.i:h thai d.ic>noi Ji<~i>l\c.hut :u.ar.i\;ttci.
the uiderlying tensions." 220. Finally. the Document of Objectives of 9 September 1983 (Ann. IV,
Exhibit D), wbich established the 21 points that were to be the basis of nego-
tiations among the parties, recites in its opening paragraph that the situation in
Central America "requires for ils solution, observance of the principles of

international law governing the actions of States". The Document gocs on to
cmphasize a number of specific norms deemed especially relevant. The first six
of these are :

the self-determination of pcoples;
non-intervention ;
the sovereign equality of States;
the peaceful settlement of disputes;
refraining from the threat or use of force; and
respect for the territorial integrity of States.

These are the very noms that lie at the heart of Nicaragua's claims in this case.
It is difficult to understand how the vindication of legal noms said to be funda-
mental to the Contadora process can interfere with that process.
221. The parties to the Contadora process as well as the United Nations and
the OAS have indicated by their conduct that they do not regard the proccss as
exclusivc.As noted above, when Nicaragua, in the face of intensified mcrcenary
attacks in 1983,had recourse to the United Nationsand the OAS, the Contadora

Group made no objection, but look nccount of these referencesin ilscommuniqué
(Ann. IV, Exhibit B). Thc rcsolutions adopted by those bodies naturally cxprcss
strone suooort for the work of Contadora and urge the ~arties to narticivate
whol;hea;&dly in it (Ann. III). But they do not hisitate io make dispositions
of their own. In particular, Security Council resolution 530 pointedly "Reaffirms
the right of ~icar~l~u<i and of al1ihe other countries of the area 10 Iivein peace
and security. freefrom outside interfercnces; ..." (Ann. III, Exhibit A, operative
para. 1 (emphasis added)). Equally explicitly.the General Assembly condemns
as "especially serious"

"The attacks launched from outside Nicaragua against that country's
strateeic installations. such as airoorts and seaoorts. enerev storaee facilities
and oihcr targets whose destructhn seriously affects the ~untry'~economic
life and endangers densely populated areas." (Ann. Ill, Exhibit B, operative
para. 3 (ri).)

In each case, Nicaragua is singled out as an object of special concern, without
any indication that this might improperly interfere with Contadora.

222. Finally, in April 1984, the week before the present case was filcd, the
Security Council again debated thc situation in Nicaragua for three days. The
debates show that the members of the Council were wcll aware of the work of
the Coiii;idord Grsup and ;ippro\cd anJ xpplsudcd it.Rut the? r;iw in 11no bdr
io the Srrurit? C<iuiiiiladdrcsslng the probleni I hirtccn mcmhcr. i,i'thcSciurity
Council saw no inconsistcncv wsh the Contadora proçess in votinr for a reso-
lution tbat

"Condenms und cull~ for an immediate end to the mining of the main
ports of Nicaragua, which has caused the loss of Nicaraguan lives and
injuries to nationals of other countries as well as material damage, serious
disruption to the economy and the hampering of free navigation and com-
merce, therehy violating international law." (S/IM63, Ann. III, Exhibit
D, operative para. 1(cmphasis in original).)420 MILITARY AND PARAMILITARY ACTI\'ITIES [li8-1201

The resolution faile* of adoption only because of the veto of the United States,
which cast the only negative vote.
223. If the politiail actions of political organs of the United Nations and the
OAS. addressed to the oolitical issues that are the verv heart of the Contadora
elfor ate not inimical'to that effort, how can there Le any incompatihility in
the Court's judicial consideration of a legal dispute between Nicaragua and the
United States, whicb, as discussed more fully below, isnot even a participant in
the Contadora proci:ss?

224. Again, the question of pre-emption is illuminated by the discussion of
the Court in the UnitedSrutes~iplomuticandConsularSraff in Tehran case. The
Court will recall tkit the Secretary-General had appointed a Commission "to
undcrtake a fact-finiling mission to lran to heu Iran's grievances and to allow
for an early solution of the crisis between lran and the United States". The
Court on its own motion examined whether the establishmentof this Commission
had any effecton "irs competence to decide the present case or the admissibility
of the present procei:dingsw (1.CJ Reporrs1980. p. 20).
225. The Court concluded there was no such effect. It first examined the
mandate of the Conimission and the understanding of its role evidenced bythe
parties and found

"no traces ofany understanding.. .that theestablishment ofthe Commission
might involve a postponement of al1proceedings before the Court until the
conclusion of the work of the Commission . . .(id.,p. 23).
The Court then went on to observe:

"[The Commission] wasnot set up by the Secretary-General as a tribunal
empowered to decide the matters of fact or of law in dispute between Iran
and the United States; nor was its setting up accepted by them on any such
hasis. On the contrary, he created the Commission rather as an organ or
instrument for mediation, conciliation or negotiation Io provide a means of
easing the situation of crisis existing between the two countries; and this,
clearly, was the basis on which lran and the United States agreed Io its
being set up. The establishment of the Commission by the Secretary-General
with the aereernent of the two States cannot. therefore. be considered in
iisclras in an?va) inçunip,itiblr.with the continuance of pdr~llclproc:cdings

bciore ilie Couit. iïc~otialion. enquir). mediaiion. c~~nciliationa .rbitraiion
and iudi~ialiet:lcmcni arc cnumcraied toecthcr in Ariiclc 33 olihe Charicr
as means for the peaceful settlement of dzputes." (Id.)
And again the Court adverted to various examples in the jurisprudence of the
Court "in which negotiations and recourse to judicial settlement by the Court
have been pursued pari passu"(id).
226. As in that case, so here, the examination of the Contadora documents

shows "no traces of any understanding" that the establishment of Contadora
"might involve a postponement of al1 proceedings before the Court . . .".
Contadora "was not set UD . . as a tribunal em~oweredto settle the matters of
faci ori)iIau in iIi,?uic hiiwccn [SliclirligudIand ihc Uniied SI~ICS:nor IV~S11s
settiiig up aciepicd by ihcm on any such basis". Contadt~rdwa, c,t~hli~hcd"ar
an organ or initrunient for mediation, conciliation or negotiation to provide a
means of easing the situation of crisis . ..".And as with the Secretary-General's
Commission in the lran case, "this. clearly, was the basis on which [the parti-
cipants] agreed to its being set up". Like the Commission then, Contadora
"cannot, therefore, be considered in itself as in any way incompatible with the
continuance of parallel proceedings before the Court". [120-1221 MEMORIAL 421

227. Indeed. events since the Court's Order of 10Mav 1984demonstrate that

ilic a~ti\it) oi the Court ha, hail nu ad~crsc cfFcctun Cuni~d<ira.Thr Ciruri
iii1rcaill the .ipii~~l)piii prcdictionï .ilthe srdl Iisnring that iithe C.,url \houid
ilxc to .i.t in thir rii;itteit u.,~ulJentul ilire ;on,criucnL.cbi,>rC'ont;i<lor;iT . lic
çrrni h.1,proteil ihosc prcdi~tiuns iirring. 'l'lie('<iuri pr<>cccJcJin II, nc,rm;il
ci>uris.in4 ~ndic.itedtlic inicrim mC:ir.IIC\ih:ii II idund nczci,;gr! The Iied\ens
h,i\2 IIOIl'allenThr C~mta~lc~rpdr,),.c\<h.*s tndtsu1l;~pseJ.ln fact, II13 pr<~zecdinp
as scheduled. with three workine commissions contirhine detailed technical wori
on implementing the 21 points &eed among the particrpants in their Statement

of 9 September 1983.Indeed, on 15May 1984.Nicaragua and Costa Rica, under
the aea-s of Contadora. entered into-an aereement-for the establishment of
border supervision to suppress armed incursions across their common boundary
(Ann. IV, Exhibits H, 1).
228. These concrete facts should suffice to dis~ose of the United States
argument that the present proceedings in this couri somehow interfere with or
are inconsistent with or are pre-empted by the important work of the Conta-
dora Croup.

229. But there is a further reason why the operations of Contadora do not
preclude the Court in this case. Nicaragua is a participant in the Contadora
process4. It is an active member of the working commissions and drafting groups
(see Ann. IV, Exhibit K). It has put forward its own proposals for agree-
ments on al1of the 21 points contained in the Document of Objectives, including
provisions for verification of security arrangements. It was the first one of the
five Central American States to have done so.
230. The United States, however, isnota participant in the Contadora process.

The United States professes to support Contadora, and we may al1 hope that
those professions can he taken at face value. But a process in which the United
States does not participate cannot by its very nature resolve a legal dispute
between Nicaraeua and the United States. Yet as shown above. what Nic~,aeu~ ~
has put before tKeCourt is preciselysuch a legal dispute. ~icara~ua is no1ask;ng
the Court to develop a solution for the situation in Central America. The Court
is heine-asked to oronounce on a leedl aue-.ion: the lawfulness of the use of
111111iiiranJ pdrdmiliidry i,#rcchy the (:niictI Siale, in :inil ,ig:fi~nsitX~z.~ragi~~i.
231. Tlicrc 1sno \i.i!.ihat d legdljudgmclil ;onrcrning IJniictl St:iter 1iillit3r).

;inJ ~.ir.imiliiars :icti<insin \.i<~l:iii<n>II.;Icral s>hl:c;i~is~ncs.in iiitcricreu.ii1i
~oniadora. ~h; success of Contadora does nit d~ ~ ~ ~ ~ ~.~con~~~uat~ ~ ~ ~
the illegal activities of the United States. On the contrary, every public commu-
niquéissued bv the Contadora Group, from its inci~iencvin January 1983down
to ihe nresenthas called for an end to outside inte;vention in the aies
232. 1%rcvicu .ii'thcicdi>cunicntsanil the Unitcd K:ition, .~nd 0.AS rcroliititinr
rci ii~rrhxh<>i.c \ht>ir\ thdt tlic! haie rspeatcdl) cun.le~ii~icJthe u5r oi I;I~.Ybv
Si:itcs fruiii s~tridc the rsri.iii. \i,ilati<>iisoithe rc>\crcirnt\ ,,i Si.~ia\iihin the

region, and interference in their interna1 aliairs. ~ome~mésNicaragua is men-
tioned by name as the target of the actions condemned by these resolutions.
Even when on its face the language is "balanced" in the mode that is familiar in
international political organizations, it is apparent that the reference is primarily
to United States actions against Nicaragua.
233. Contadora itself could not refrain from stating publicly that "the mining
of ports" was hannful to its work (Ann. IV, Exhibit F). The Foreign Minister
of Mexico, a leading member of the Contadora Group, was blunter. He publicly

Thedeiails of Nicaragua'sco-operationwiththe Contadora pracess are prescnted in
Annex IV. Exhibit K.denounced the mioiiig of Nicaragua's ports and called for "the total elimination
of al1 armed violence, direct or indirect, against Niçaragua". Far from being
concerned at the filing of Nicaragua's Application in the Court, he condemned
the erorts of the Uniied States to avoid ils jurisdiction: "lt is not valià", he
said, "to decide in a unilateral, arbitrary and discriminatory form that the
internationaljudicial norms do not apply to a state because this same state has
decided they are no1applicable" (Ann. IV, Exhibit G).
234. The United States military and paramilitary activities in and against
Nicaragua have also been condemned as contrary to the Contadora process by
the Inter-American Dialogue, a private, non-partisan group of leading citizens

from the Western Hsmisphcre chaired by Sol M. Linowitz, former United States
Ambassador to the OAS. and Galo Plaza. former President of Ecuador and
former Secretaw-General of the OAS. The Reportofthe Ititer-AmericanDialogue,
published in May 1!)84.states the following:
'illthoiigh th<,US Gnvernmenthas repeatedlyvoice(1ils hackingfor the
Conradoraaroctiss.Wusl~ingtonp 'radiceha.7hernntoddsivirhmajorelemenrs
ofthe cuni~idoruuppro(icli.~u~~ortfor the raids by armed insurgents (the
contras)into Nicaragua and the mining of Nicaragua's harbors violate the
basic principles of respect for national sovereignty, territorial integrity, and

noninterventiori emphasized by Contadora and traditionally espoused by
the United States. .." (The Americas in 1984: A Yecirfir Decisions,pp.2-6
(emphasis in original). Ann. IV, Exhibit1.)
235. The record is thus crystdl clear. It is the United States, by its actions,
and not the deliberations of this Court, that are interfering with the Contadora
process. It stands to reason that this should be so. Outside efi'ortsto coerce the
sovcreien will of a State bv illeeal use of force aeainst it can have no beneficial
influence on a proccss of negotiation designedvto Eettle their differences. In

assuming jurisdiction to adjudicate authoritativelv on ihcse activities, in the
context of the concrete leaai disvute between ~iciracua and the United States
that is now before il. the Court ;vil1be making ils inïended contribution to the
peaceful settlement ;~finternational disputes. III. ALI, 'l'HEPARTIES NECESSARY FOR ADJUDICATION OF THE
DISPUTE PHFSEN1'ED BYTHE APPLICATION ARE BEFORE THE
COURT

236. Nicaragua's Application assertsthat the United States has breached and
continues to breach specific legal obligations under existina multilateral and
bilatcral treaties as wèll as gen-eraland customary international law. On this
basis, Nicaragua seeks a judgment from the Court declaring that the United
States is under a particular legal duty to cease its unlawful conduct and make
reparation to Nic;~raguafor injuries suffered as a result of such conduct. The
Application makcs no claim of illegalconduct by any State othcr than the United
Statcs, and sceks no rclicf from or directed toward any other State. Nor is it
necessary, in order for the Court to adjudicate the legal responsibilities of the
United States, to rcview the lawfulness of any other Statc's conduct.
237. Nevertheless. the Agent for the United States, at the oral hearing on

provisional measurcs, asserted that Nicaragua's Application
"inevitably implicate[s] the rights and interests of the other Central Ameri-
can States. In their absence, jurisdiction here is lacking under the Court's
jurisprudence as expressed in the Moneiary Gold Remoi,edfroni Ronie in
1943Judgment." (P. 86, supra.)

Later he contended that
"Nicaragua's claims are inextricably related to the claims of the other
Central Amcrican States against Nicaragua. Those other States are indispen-

sable parties and the case may not procced in their absence." (P. 115,supru.)
238. The argumcnt isdcvoid of merit, and misperceivesthe Monerurj,Gol~lcase.
(i) The case of the Mo~ieruryGold Removedfroiil Rome in 1943. Jud~meni.
I.C.J. Repuris 1954, p. 19,has no bearing on this case hecause Nicaragua's Ap-
plication does not cal1 upon the Court to adjudicate the "intcrnational legal
responsibility of a third State". In Monerury Gold, the Court deçlined to adjudi-
cite Italy's çlaim against the United Kingdom hecause it was impossible to do
so without first determining that Albania, which was not bcforc thc Court and
had not consentcd to the Court's jurisdiction, had committed an international
legal wrong against Italy. Since the "vital issue to be settled" çoncerned the

"international Iegalresponsibility of a third State", the Court declincd to cxercise
the jurisdiction conferred on it without the consent of the third State. Rycontrast,
Nicaragua's claimsagainst the United States do not depend on its claims against
any third State; nor is the Court required to consider the international Icgal
responsibility of any absent or non-consenting Party.
(ii) All of thc parties, the lawfulness of whosc conduct is at issue in these
proceedings, are present before the Court. As stated, Nicaragua has made claims
only against the United States. The United States, without responding in any
way to the factual allegalions of the Application, has indicated that il may
believethat its conduct could bejustified by Nicaragua's alleged "armed attacks"
against other States. If the United States in fact takes such a position at the
merits phasc. the lawfulness of Nicaragua's conduct would be at issue. Neither
adjudication of Nicaragua's claims against the United States, nor the United
States defencc to those claims, would require the Court to considcr the inter-424 MlLlTARY AND PARAMILITARY ACTIVITIIS [127-1291

national legal respoiisibility of any State other than Nicaragua and the United
States, both of whicli are present before the Court. Since there is no third State,
the lawfulnessof whoseconduct would beat issuein these proceedings, Monelary
Goldhas no application.
(iii) Even if we were to assume, arguendo, that armed attacks by Nicaragua
on third S~ate~ ~ielit imolicate their le-al interests to such an extent that the
Couri coulJ net pr<.r.ccdin ihr.~rahrcnce, ihc <onJi~ii)n\rcquiring the prc\iiisc
ofthose Sicites.ouid no! beestablishcil hcforc ihr.mcriis phase <)iiheprt>cr.cdings.
Unless it were proved at the merits phase that ~icara~ud had engagid in "armed

attacks" against other States, then the argument that their presence was required
would fail for warit of the necessary factual predicatc (as would the purported
iustification for the United States actions against Nicaragua). Thus. the Court
Fould not terminate the proceedings now on &e ground that, on some unspecified
state of the pleadings or proof, third States might bc implicated in some way.
To do so would be to accept as proven the United States accusations against
Nicaragua prior to the presentation of proof by the United States, and in the
face of Nicaragua's solemn denial.

A. The Monetor), (>Id Removedfiom Rome in1943Case Doesno1Support the

United States Argumentthat there AreThird Parties in whoseAbsencethis Case
CannotGo Fotward

239. The facts giving rise to the Monetary Gold case may be summarized as
follows: Under Part III of the Paris Agreement of 14January 1946,al1monetary
gold looted by Germany during World War II was pooled for distribution as
restitution to those countries from which it had been removed. Part of this
monetary gold, remsved from Rome in 1943, was claimed both by Albania and
Italy. On 20 February 1953 an Arbitrator determined that the disputed gold
belonged to Albania at the lime il was removed from Rome. Thereafter, the
Tripartite Commission established to implement the Paris Agreement (composed
of France, the United Kingdom and the United States) distributed Albania's

gold not to Albania, bu1 to the United Kingdom, in partial satisfaction of the
Court's Judgment against Albania in the Corfu Channel case. Judgment (I.C.J.
Reports 1949, p. 4). ltaly disputed this distribution, claiming a prior right to the
Albanian gold as a result of Albania's allegedly unlawful nationalization of the
National Bank ofAlbania,on 13January 1945,without payment ofcompensation
to the ltalian Govcinment, which owned 88.5 percent of the bank.
240. On 19 May 1953, ltaly filed suit against the three memhers of the Tri-
partite Commission. ltaly submitted that: (1) the Albanian gold should he de-
livered to ltaly in partial satisfaction for damage allegedly caused to ltaly by
the Albanian natiorialization decree of 13 January 1945and (2) Italy's right to
receive this share of the gold must have priority over the claim of the United

Kingdom. Albania .#as not a party to the suit.
241. The Court round that, althougb ltaly and the three respondents had
conferred jurisdiciion upon the Court, it "cannot exercise this jurisdiction to
adjudicate on the first claim submitted by Italy" (I.C.J. Reports 1949, p. 33).
Finding that the second claim was entirely dependent on the first, the Court held
that it "must refrain from examining the question of priority between the claim
of ltaly and that of the United Kingdom" (id.). The Court's decision turned
uDon the fact that Italv's first claim - alleeine an unlawful confiscation of
lialian interests by .4lb;nia, and the right of lkito compensation therefore -
depended upon a finding that Albania, the absent party, had committed aninternational legalwrong, and thus would have compelledtheCourt to adjudicate
the international legal responsibility of Alhania. The Court said:

"The first Submission in the Application centres around a claim by ltaly
against Albania, a claim to indemnification for an alleged wrong. Italy
believes that she possesses a right against Albania for the redress of an
internationalwrong which,accordingto Italy, Albania hascommitted against
her. In order, rherefi,re.to deierminewhetherItaly is entirledro receive the
gold, il is necessaryIn dcierminewhetherAlbania has committed(rnyinrer-
national wrongagainsrIraly, und whethersheis underun obligationto puy
compensariotnuher; and, ifso, to determinealsothe amount ofcompensation.
In order to decide such questions, it is necessary to detcrmine whether the
Albanian law of January 13th. 1945, wascontrary to international law. In
the detemination of these questions - questions which relate to the lawful

or unlawful character of certain actions of Albania vis-à-vis ltalv - onlv
iwo Si;ites. lialy 2nd Albania. are dire~.tI!interc\tcd7iX<J ml,>rhe IIIL,~I~.Yi,/
çurhqrii2<rron~si~~uhlil io decidei(I~.spurhcr,rwecvIt(il‘milAlhuniu
The Ci,urrnmnurde<.>do z<r/io disnurriirthourrhr ci~nvcn~ !,iAlhi~niuBut
it is not contended by any Party th& Albania has given her Eonsentin this
case either expresslyor by implication. To adjudicate upon the international
responsibility of Albania without her consent would run counter to a well-
established principle of international law embodied in the Court's Statute,
namely, that the Court can only exercisejunsdication over a State with its
consent." (I.C.J. Reporrs1954, p. 32 (emphasis added).)

242. The key to the decision, as the Court made clear, was its finding thal "in
the present case, Albania'slegalinterest would not only be alïected by a decision,
but wouldform ihe verysubjecr-marreo rf thedecision"(id.). Thus:

"Where, as in the present case, the viralissueto be sertledconcernsrhe
inrernarionulresponsibility(fa third State, the Court cannot, without the
consent of that third State, give a decision on that issue binding upon any
State, either the third State, or any of the parties before il."(Id, at p. 33
(emphasis added).)

243. In the present case, the vital issueto besettled concerns the international
responsibility of the United States toward Nicaragua, or, at most, the inter-
national responsibility of Nicaragua for its own conduct. As stated above,
Nicaragua's Application makes no claim against any third State; nor is

Nicaragua's claim against the United States founded upon a claim against a
third State. Nor is the Court called upon to detemine whether any third State
"has committed any international wrong" against Nicaragua, or "is under an
obligation to pay compensation" to Nicaragua. Thus, "to go into the merits" of
Nicaragua's claim the Court is not required "Io decide a dispute" between
Nicaragua and any third State. In these circumstances, the Monetary Gold case
provides no hasis for the Court io decline to exercise the jurisdiction conferred
upon it by the parties.
244. At the oral hearing, the Deputy-Agent of the United States soughi to
find some suooort for his areument in the seoarate ooinion of Judee Na~endra
Singh in the ~rr<~l~,j~iiki,run;Prr.~<in<>>/Ivu;. /nt<.rrn;llri~rvr(lC J k>p<irrs

1973. p. 328). The Dcputy-Agcnt for the United S1;itcsrcad alouJ the fi~llowing
exceTt from that opinion :
"lt is indeed anelementary and basic principleofjudicial propriety which
governs the exercise of the judicial function, particularly in inter-State dis- putes, that no court of law can adjudicate on the rights and responsibilities
of a third State (a) without giving that State a hearing; and (6) without
obtaining ils clear consent."(Id.at p. 332.)

245. The Deputy-Agent of the United States has taken this statement out of
context. As the Court will recall, in that case Pakistan sought to prevent lndia
from transferring certain prisoners of war to Bangladesh wherethey were to he
placed on trial, as Pakistan alleged, in violation of international law. Thus, like
Alhania in Monerury Gr~ld, it was Bangladesh, the absent party, upon whose
international legal i-csponsihilitythe Court would have hcen called to adjudicate.
This crucial circunistancc is recognized in the paragraph in Judge Nagendra
Singh'sopinion imrnediatelypreceding the language quoted by the United States:

"[Flrom the:viewpoint of the Court's adjudication, whether ad inierimor
final, what is vital is the positive pleading of Pakistan that Bangla-Desh and
not lndia is contesting Pakistan's claim to exclusive jurisdiction for the
holding of trials of 195prisoners of war." (Id.)

246. Thus, Judgc Nagendra Singh's opinion reflects the same principle as the
Mone1ar.vGold ca:;e: where the "vital issue" Io he adjudicated concerns the
international responsibiliiy of a third State, the Court may decline to exercise its
jurisdiction in the absence of that State. The opinion, therefore, provides no
support for the United States argument.
247. This view of MoncruryGold is again confirmed hy the Court's Judgmeni
of 21 March 1984denying Ivaly'sApplication for permission to intervcnc in the
case conceming the ContinentalShelf (Libyan Arab Jumahiriyu/M~~llu).Appli-
carionby Iralyfi>r Permis,sisni>nInlervene,Judgment(IC J. Reporrs1984, p. 3).
ltaly had an acknowledged intcrcst in the proceedings. Indeed, it claimed ils
sovereign rights stood to be affectcd by the Court's decision. Nevertheless, the
Court dcnied permission to intervene and resolved to continue the proceedings
in Italy's absence. This was proper, the Court said, because Italy's intcrests
would no1"form the verysuhject-malter ofthe decision". As the Court explained :

"ln the ahsi:nce in thc Court's procedures of any system of compulsory
intervention. wherebv a third State could be cited bv the Court to come in
as a party, it must be open to the Court, and indeid its duty, to give the
fullest decisiori it may in the circumstanccs of cach case, unless of course,
as in the case of theMonerary GoldRen~oi'efd ront Rome ri 1943, the legal
interest of the third State 'would not onlv be afiected hv a decision. but
would form the very subject-matter of a decision' (IC~ Reporis 1954,
p. 32), which is not the case here."(Id.p. 26.)

248. The rule esiablished inMoneraryGoldis soundly grounded in the realities
of contemporary international relations. Legal disputes hetwcen States arc rarely
purely hilateral. P.s in the case of delimitation of the continental shclf, the
resolution of such disputes will oftcn directly affect the legal intercsts of other
States. If the Court could not adjudicate without the presencc ofal1such States,
even where the parties beforc ii ha3 consented fully io its jurisdiciion, the result
would he a severe and unwarranted constriction of the Court's ability 10 carry

out is functions. Thus, the Cour1 was careful in the Mone!ur)>GoId case Io
preclude itself froin exercising jurisdiction only where the absent Statc's legal
interests "form the very subject-matter of the decision".
249. Accordingly, since no interest of a third State could possibly form the
very subject-matter of the Court's decision in the present case, there is no ground
for the Court to di:clineto exercise its jurisdiction. B. Al1of the Parties, the Lawfulncssof WhoseConduet 1sat IssueinThisSuit, Are

Prcscnt beforethe Court

250. Neither Nicaragua's claims against the United States, nor the argument
in dcfence intimated by the United States, requircs the Court to adjudicate the
lawfulness of the conduct of any Stale other than Nicaragua and the United
States. As shown above, to decide Nicaragua's claim the Court need only adju-

dicate the lawfulness of the conduct of the United States. It is equally true that
if the United States should interpose a plea of self-derence, il would require an
adjudication only of the lawfulncss of Nicaragua's conduct. Only if Nicaragua
were engaged in unlawful "armed attacks" against other States could such a
defence be sustained. Thus, only Nicaragua's conduct would be placed in issue.
The Court would not be called upon Io adjudicate the lawfulness of any other
State's conduct. Since the only States, the lawfulnessof whose conduct could he

at issue in these proceedings, are present before the Court and subject to its
jurisdiction. there is no basis for declining IO exercisejurisdiction.
251. At the oral hcarinz. the Deoutv-Aeent of the United States. in a strained
eflort to bring this case $thin the contours of the M<~neiuryGr~ld case, argued
that the other Central American States would be implicated if the Court were to
exerciseilsjurisdiction here, because Nicaragua's requesi would "eut these States
oflfrom thcir right to seek and receivesupport from the United States in meeting

the armed attacks against them" (p. 111, supru).
252. This argument is fundamentally Pawed. First and foremost, the Court
would no1 be called uoon to adiudicate the lawfulnessof the conduct of anv of
ihcî uihcr St~tcb.The). ii,<>uld only ha\,c a "right IO seck ;ind rcrcirc suppijrt
lrorn ihc Cniicd Siuicr in mecting the .iriiicd aii;icks ;tf;iinrt thcm" if K1ctr3gu3
were commilting such attacks. If Nicaragua wcre no1 doing so, no such right
would exist. Thus. the asserted "rieht" of the other Central American States is

entircly dependent upon the lawfulkss of Nicaragua's conduct. In this sense, the
situation isexactlythe opposite of that in the Afonerury Golii rdx. There the rights
of the oarties were enti;elv. .vendent uoon. and reauired orior adiudicaiioi of
ihc conduri ol'iheahrcnicc. ,\lb;ini.+ In ihc prescnt iusc..the righir oithc ahscntccs
;irc cniirely dc~ndcnt upon. ;inclrcquirc prier ad,udiaition i>fthe conduït of one
iiithe existing p:irtics. Sicararua. Thus. unlikr .\f~.nt~~urr 8;iinlo :ibscnt Statc ir

necessÿrvfora'oroccr adiudication of the diso~t~ ~r~w~n~ ~ ~~arties.
253. Second,'none of ihe other central American States Las as yet claimed
that Nicaragua kas committed an "armed attack" azainst il, or that it has "a
right to seek and receive support from the United S%~tes"in meeting such an
attack, or that sitch a right would be imperilled if the Court were to exercise its
jurisdiction in this case. The Deputy-Agent of the United States cited the
"communications from the other Central Anierican States" (which the United

Statcs submitted to the Court as its Exhibit III, Parts 3-4. Tahs P. R, S and T)
as cvidence "that Nicaragua's claims are inextricably linked to the rights and
interests of those other States" (p. 110, supru). In fact, these communications do
not support this contention.
254. The letters of the Governments of Costa Rica and El Salvador, and the
Press Statement of the Government of Guatemala make no mention whatso-
ever of "armed attacks" by Nicaragua or any right to have the United States

oarticioate in collective self-defence. Costa Rica and El Salvador ask onlv that
ihe court not act in a manner that would damage the Contadora negotiations.
Guatcmala makes no reference 10 the Court or this çdse. None of these States
suggests in any way that ils legal rights would be prejudiced or even aKected by
adjudication of this case, and none suggests termination of the proceedings.428 MILITARY AND PARAMILITARYACTIVITIES [135-1371

255. The letter i>fthe Government of Honduras expresses a similar concern
that the Court ni11 damage the Contadora process, and to that entent is
indistinguishable from the other communications. It goes on to ask that the
Court take no action that would "limit" any "bilateral and multilateral agree-
ments on international cooperation chat are in force" (United States Exhihit III,
Parts 3-4, Tah 5, p. 6). Nicaragua's Application does not place in issue the
validitv or effectiveness of anv such tredtv. in whole or in Dart. Finallv,
ond di ra ls'sr accuses ~icaragua of "desiabilization of neighboring gover;-

ments by providin;: encouragement. financing, training and logistical and com-
munications assist;ince to groups of insurgents from other Central American
countries" (id., p. 2). Notably, however, 1-londurasdoes not claim: that it is one
of the countries affected; that il has a right to "seek and receive support from
the United States" to meet an "armed attack" by Nicaragua; or that such a
right would be prfjudiced or affected by the Court's adjudication of this case.
Thus, none of the States whose absence the United States deems fatal has itself
identified any legal right or responsibility that would be prejudiced or even
affectedby an adjudication in this case - much less he "the very suhject-matter
of these proceedinj;s" or the "vital issue".
256. Third, even if one or more of the other Central American States could
show an interest in the present proceedings, that alone would not suffice to
justify temination of the proceedings. As stated in AfoneiuryGold,such a result
is only justified where the absent parties' "legal interests would not only be
affected by a decision. but would form the very subject-matter of the decision"
(I.C.J. Reports 1954,p. 32).
257. In a numbi:r of orior cases. the Court has nroceeded to adiudication des-
~~ ~~ ~~~ ~ -~ ,
piic ihc sb,ence ,II third pariics who,c intcrcrts in thc procccdings scrc sirongcr
thlin ihc allcgcd iiii<rcitjof the tihscntSt;ircsherc 'lhe principau.< arc summlir-
ilcd in 1) FI.K. J<>hn><>/n ti.rirti<rri~irlii/Cia>ir~<rr<iL~~t. -i«iri<v/i~. ol J
(1955), Part 1,pap,es106-107:

"lt is clear, however, that the mere fact that State C is in some way
involved in a dispute between Statcs A and B, is not enough to prevent the
Court determining the latter dispute, even if State C is no1hefore the Court.
In the Corfu Channelcase between the United Kingdom and Albania the
Court carefully considered charges that ccrtain mines had been illegallylaid
by a third State, Yugoslavia. The charges were found to be unproved, the
Court saying that 'a charge of such exceptional gravity against a State
would require a degree of certainty that has not been reached here'. Yugo-
slavia, though not a party Io the proceedings, had authorised the Alhanian
Government to produce certain Yugoslav documents for the purpose of
refuting the cnarges. Of this action the Court observed: 'As the Court was

anxious for full lieht to he thrown on the facts alleeed. il did not refuse to
receive these dociments. But Yugoslavia's absence fiom the proceedings
meant that these documents could only be admitted as evidence suhject to
reserves.'Wh;ttever the urecise mcanine t- be attributed to this lanru- -. it
J<>c> no1rugg:ri that. mercl) becausr.questions arosc LonccrningYugoslli\ia
-- e\.en conccrning Yugosllii,ia'sinirrnliiion~l resp<in\ihili-y thlii cuunir)
was in a ~osition to prevent the Court [rom settling the dispute between the
United ~ine-om and Alhania.
In the Anglo-IranianOilCo. case (jurisdiction) one of the principal issues
was whether the dispute betwecn the United Kingdom and Iran was 'au
sujet de situations ou de faits ayant directement ou indirectement trait à
l'application' of an Iranian-Danish Treaty of February 20, 1934.The Court [137-1391 MEMORIAL 429

answered this question in the ncgative, though at no time had the Danish
Government given its consent to the question being determined. Similarly,
in the second phase of the Amharielus case, the Court was called upon to
give al least a preliminary interpretation of various treaties between the
United Kingdom on the one hand and Denmark, Sweden and Bolivia on
the other hand. The Court gave this interpretation, although again the
countries concerned had not consented . .."

258. Finally, as noted above, the Court's Judginent denying Italy'sApplication
foroermission to intervene in the case concerninir the Continental Shelf lLihvon
Jamahiriya/Malla) (I.C.J. Reports 1984, <3), further demonst;ites ihat
the mere fact that a third State has an interest in the matter subiectto adjudication
neither requires termination of the oroceedine- in the third tat te'abience. nor
grÿnting of pcriiiirsion iiinterrenc io ihc ihirJ SI~ILw. hr,rciiiinicrcd Jocj no1
"furm the irr).huhject-mlilicrof the dï.ision" In thcsr.circurtijiiinccr. the allcgcd
interests of the other Central American States cannot SUDDort..rminationof
these proceedings.
259. During the course of his argument al the oral hearing, the Deputy-Agent
of the United States mentioned the so-called "Vandenberg Amendment", the
third of the three reservations to the United States declaration of 14August 1946
accepting the compulsory jurisdiction of the Court. The Vandenberg Amend-
ment removes from the United States acceptane of the Court's compulsory
jurisdiction :

"(c) Disputes arising under a multilateral treaty, unless (1) al1Parties to
the treaty affected by the deçision are also Parties to the case before the
Court, or (2) the United States of America specially agrees to jurisdiction."

vation, said that the principle latcr cmbodied in the Monelary Goldcasethis reser-

"is reflected in proviso (c) of the 1946 United States declaration accep-
ting the compulsory jurisdiction of this Court, commonly known as the
Vandenberg Amendment, which is a total bar to the claims in this case
arising under multilateral conventions" (p. 111,supra).

261. From this passing reference, itis impossible to tell whether the United
States intends to maintain that the Vandenberg Amendment supports the
argument for the presence of the other Central American States, or is an
independent argument that the Court lacks jurisdiction over al1 or part of the
present case, or neither. Nicaragua therefore mus1 reserve ils right to respond
until il is given a fuller exposition of the United States contentions, if any, with
respect to the Vandenberg Amendment. Nevertheless, certain observations may
be made at this tirne.
262. ln the first place, the Vandenberg Amendment applies, by its own terms,
only to disputes arising under a miiltilateral treaty. Thus, it can have no impact
whatsoever on Nicaragua's claims under gencral and customary international
law (Application, pp. 8-9, supra, paras. 20-25). Beyond this, the meaning of the
Amendment is no1exactlyclear. Briggswrotethat "the Ianguageof the reservation
betrays such confusion of thought that to this day no one is quite sure what it
means" (Recueil des cours, Vol. 93 (1958-l), p. 307; repeated in R. P. Anand,
CompirlsoryJurisdicliun of the International Cuirrr of Justice, New York, 1961,
p. 221). Quincy Wright observed that the proper interpretation of the provision
is "certainly far from clear" (Anrerica~iJour~ialof International Law, Vol.41

(1947), p. 446). Manley O. Hudson dcscrihed its origin as a "jumble of ideas"430 MILITARY AND PARAMII.ITARYACTIVITIES [139-1411

and stated that "th: Senate had no clear intention in this connection" (A~iiericaii
Bar AssociarionJoirrnal, Vol.32 (1946). D.836).
263. The origins of the ~mendment di shed some light on its meaning, how-
ever, and indicate that the Amendmeni may be co-extensive, as suggested hy
the Deputy-Agent of the United States, with the principle that later emerged
in Monerary Gold.The text of the Amendment was proposed in the Report of
the Cornmittee on Foreign Relations of the United States Senate (Sen. Doc.
No. 259, 79th Congress, 2d Sess. (1946). p. 9; Ann. II hereto, Exhibit D). The
tex1 emerged in direct response to the following suggestion, suhmitted to the

Cornmittee hy John Foster Dulles, who had been adviser to the United States
Department of Staie in relation to the Dumbarton Oaks proposals and adviser
to the United State!;delegationto the United Nations Conference on International
Organi'ations, which drafted the Charter and the Statute of the Court.
"2. Reciorocirv - Jurisdiction should be com~ulsorv onlv when al1 of
the other iariiei io rhe dispiire have previously 'accep&dthe cornpulsory
jurisdiction of the Court.
Cornnietir: The Court statute embodies the ~rinci~le of reci~rocitv. It
provides for <:ompulsoryjurisdiction only 'in klatiofi to any Ôther tat te
accepting the !;ameobligation' (Art. 36 (2)). Oftentimes, however, disputes.
particularly uiider multilateral conventions, give rise to the same issue as

against more than one other nation. Sincethe Court statute usesthe singular
'any other State', it might be desirable to make clear that there is no
compulsory obligation to submit to the Court merely because one of scveral
purries in .si<cIidispure is similarly bound, the others not having bound
themsclvesto become parties before the Court and, consequently, no1heing
subject to the Charter provision (Art. 94) requiring memhers to comply
with decision: of the Court in cases to which they are party." (Ileuring
hefurea Strbcomniitreeof rhe Conmiirreeon Foreign Relaiions,US Senate. S.
Vol.806-7, 79th Cong., 2d Sess.,July 11, 12 and 15. 1946,p. 44 (emphasis
added).)

264. Thus, the Vandenberg Amendment would appear to create an exception
to the United Stati:sacceptance of the compulsoryjurisdiction of the Court with
respect to dispiites arising under a multilateral trcaty where not al1of the parties
to the disputc arc present before the Court. Whether or not this is another way
of saying that the United States withholds its consent to jurisdiction in any case
where the rights or responsibilities ofan absent third State "Som the very subject-
matter of the decision", the result in the present case is the sarne: the dispute
encompassed by tliese proceedings involves but two States, Nicaragua and the
United States, anil both are present before the Court. Thus, the Vandenberg
Amendment neithi:r adds support to the United States argument nor provides
an independent ba:;isfor removing or limitingthe Court'sjurisdiction in this case.

C. EvenAssuming Arguendo, that "Armed Attacks" byXicaragua onThird States
WouldLmplicateTheir Legallnlerests tu Such an Extent that the Court CouldNol
ProceedinTheir r\bsencc,the Conditions HequiringthePrmnce of l'hoseStates
CouldNot Be Established beforethe Merits Phase of the Proceeding

265. The only "right" of any absent Statcs that the United States claims to
be in some way involved in this caseis the "right" ofthe other Central American
States "to seek anii receivesupport from the United States in meeting the armed

attacks against them" (p. 111, supra). (As shown above, the other CentralAmerican States themselves have made no such claims.) In any evcnt, this right,
by definition,can only justify the use of force against Nicaragua if Nicaragua is
committing "armed attacks" against one or more of thc other Statcs. Absent
proof of such "armed attacks" by Nicaragua, giving rise to a right ofself-defence
on the part of the victims, no other Central Amencan State could be "affected
by the decision" in this case. Thus. unless and until such evidence is supplied,
there is no basis whatsoever for the United States argument. Nor is there any
basis for the applicability of the Vandenberg Amendment.
266. Yet the United States would have the Court teminate the proceedings
now, before any "armed attacks" by Nicaragua have bcen proven or even
properly alleged, and in the faceof Nicaragua's solemn denial that it has engagcd
in such conduct. While, for the reasons discussed above, Nicaragua contends
that there is no merit to the United States argument and no justification for
invoking thc Vandcnberg Amendment under any circumstances, at the very Icast
the Court must wait until the merits phase of the case, and until Nicaragua has
becn shown to bc responsible for "armed attacks" against one or more of the
other Central American States, before it can determine that thc presence of such
a Statc is necessary for a proper adjudication in this case. Were it otherwise, any
Respondent State could prevent the Court from adjudicating a valid claim
against it merely by raising a groundless defence - which it would never be
required to prove - that theoretically implicates the rights or interests of absent
third States. 267. Accordingly, Nicaragua submits that:

A. The jurisdiction of the Court to entertain the dispute presented in the
Application is established hy the terms of the declaration of Nicaragua of
24 September 1929 under Article 36 (5) and the declaration of the United States
of 14August 1946under Article 36(2) of the Statute of the International Court
of lustice;
B. Nicaragua's lec cl ara lioonf 24 Sepfember 1929 is in force as a valid and
binding acceptance of the compulsory jurisdiction of the Court.
C. The attempt by the United States to modify or terminale the tcrms of its
declaration of 14 August 1946by a letter dated 6 April 1984from Secretary of
Statc George Shultc to the Secretary-General of the United Nations was ineKec-
tive to accomplish either result.
D. The Court lias iurisdiction under Article XXlV (2) of the Treatv of
Friendship, ~ommi:rce>nd Navigation between the LJnited'~iatesand ~icar&ua
of 24 May 1958 c.ver claims presented by this Application Fallin~within the
scope of the Treaty. .
E. The Court is not precludcd from adjudicating the legal dispute presented

in the Application hy any considerations of admissibility and the Application is
admissible.
Respectfully submitted,
(Signed) Carlos Aacürri.i.oGOMEZ,

Agent for the Republic of
Nicaragua.
30 June 1984. ANNEXES TO THE MEMORIAL OF NICARAGUA

Annex 1

24 September 1929 - after signingthe Protocol of Signature of the Permanent
Court of International Justice, Nicaragua deposited an unconditional declaration
with the Registrar of the Permanent Court. P.C.I.J. Yearbook,1929-1930,pp. 144,
463, 485.(E-rhibitA hereto.)

4 December 1934 - the President of Nicaragua approved a decrce for the
ratification of the Statute of the Permanent Court of International Justice and
the Protocol of Signature. See Lu Gacela No. 207, p. 1674, 18September 1935.
(Exhibir B hereto.) On 14 February 1935,the Senate of Nicaragua ratified these
instruments, and its action was published inLa Gacela, No. 130, 12June 1935,
p. 1033. (ExhibilC hereto.) On II luly 1935,the Chamber of Deputics of Nica-
ragua ratified the samc instruments. Its action was published in Lu Gaceto, No.
207, 18September 1935, p. 1674.(Exhibil B hereto)

29 November 1939 - the Ministry of Foreign Afiairs of Nicaragua sent the
following telegram to the Secretary-General of the League of Nations:
ESTATUT0 Y PROTOCOLO CORTB PERMANENTE JUSTlClA INTERNACIONAL. LA HAYA

FUERON RATmCADO SUNTO ENVIARSELE OPORTUNAMENTE INSTRUMl!hTO RATIFI-
CATION - RELACIONFS.
English Translation:

STATUT! AND PROTOCOL INTliRNATIONAL COURT OF JUSTICE THE HAGUE WERE
RATIFIED RA.TIFlCATlON INSTRUMllNTTO BE SENT OPPORTUNELY - RELATIONS.
(Exhibit D hereto.)
In connection with this proceeding, the Government of Nicaragua kas under-

taken investieations in the officia1archives in Nica-arua. TOdate. no evidence
bar hccn un:oi:rcd ih.11thc inilriimeiii oiratiiir..~tionof ihc Proiocol of Signa-
iure IOthe Stotuic d'the Pcrni;,iieiitC.i<I'nter~i~iiiinluriiccriJrfuruarrlcd
to Genevd

[Page 1441

The table included in Chapter X of the present Report (under No. 9) indicates
the names of the forty-three States which have signed the Optional Clause (or
have renewed their adhercnce thereto) and indicates the conditions of their
acceptance (or renewed adherence). The date on which declarations were affixed

is entered on the table in those cases where it is known from documentary
evidence.The tent of the declarations is reproduced on pp. 468-485of the present
volume (No. 10of Chapter X).434 MILITARYAND PARAMILITARYACTIVITIES

The position. resulting from the information aiTorded by the table above
mentioned is as follows:

A. Srareshavingsiped the OptionalClause:

Australia, Austria, Belgium, Brazil, Bulgaria, Canada, China, Costa Rica',
Czechoslovakia, Di:nmark, Dominican Republic, Esthonia, Ethiopia, Finland,
France, Germany, Great Britain, Greece, Guatemala, Haiti, Hungary, India,

Irish Free State, Italy, Latvia, Liberia, Lithuania, Luxemburg, Netherlands, New
Zealand, Nicaraguzi, Norway, Panama, Peru, Portugal, Salvador, Siam, South
Africa, Spain, Sweden, Switzerland, Uruguay, Yugoslavia.

B. O/rhese, rl~e/ollowinghavesigned,subjecr10roiificotion,andhaverotified:

Auitria, Rrlgium. Cïnada. I>cnmark.Gcrmany, Great Briiain. Ilungary. Indix.
Irelnnd. Lai\,ia.New Zcïland, Siam. Soulh Africï, Switzrrland.

C. Srareshavingsii:nedsubjecrro ratifcarion burnorrarifed.

Australia, Czechoslovakia, Dominican Republic, France, Guatemala, Italy,
Liberia, Luxembur, Peru, Yugoslavia.

[Page 1451
D. Srareshavingsignedwirhourcondilionas ru raiificaiion"

Brazil, Bulgaria, China, Costa RicaL, Esthonia, Ethiopia, Finland, Greece,
Haiti, Lithuania, Netherlands, Nicaragua, Norway, Panama, Portugal, Salvador,
Spain, Sweden, Uruguay.

E. Stores havingsignedwirhoui condirionas ro ratification but no1 ratified the
Prorocol,fSSignarureof the Stature:

Costa Rica ',Nicaragua, Salvador.

F. Srotesin rheca!:e O/ whichtheperiodfor whichCla~~sa eccepiedliasexpired:

China (date of expiration: May 13th. 1927).

' (:<i>iKii;i.~n I>scrmhir24th. lY24.~nfnmicdtheSr~riisr).-Gener~olf hcr Jcci\ion
touithdr.<u froitiih: I.c;<g~01 Nliirin<.!hi< dril\ion1;ikingetfcr.ir from J~nu~ry I\i.
1927.Dddrc thai .lii:CtirtaRu h.ldno1rdiitirJihr Prd1o;dlulfien~l~rr. .$th: Sluiuis.
morcu\r.r.Co\ia Klcs 15 nui iii:ntioni<In ihr r\nncr iu iheCor<nani oi ihc I.i.dguol
Sjtion, l'hi<unulC \rem io Ii,aJ io the r.<>nilu\ion ihui the eng.igcmcnirc~uliinyTor
<'o,idKlca fromhri <icn;ilurc di the l'roioï<?lhu\c m~nli~uedand. SJII<CU.CIII..,
thatiesuiing fromhcr&matureof theOptionalClause,havelapsd.
Cenainof theseStateshaveratifid theirdeclaralions,althoughthiswarnot rcquired
accordingto theOptionalClause. ANNEXES IO THE MKVORIAL

III.

G. States al present bound hy the Clause:

Austria, Belgium, Brazil', Bulgaria, Canada, Denmark, Esthonia, Ethiopia,
Finland, Germany, Great Britain, Greece, Haiti, Hungary, India, Ireland, Latvia,
Lithuania, Netherlands, New Zealand, Norway, Panama, Portugal, Siam, South
Africa, Spain, Sweden, Switzerland, Uruguay.

The foregoing data are summarized in the synoptic table on the followingpage.

One case has been submitted to the Court under the Optional Clause for
Compulsory Jurisdiction: namely, the case of the deuunciation of the Treaty of
Novemher 2nd, 1865, between China and Belgium, in which proceedings were
institutedb unilateral application filed by the Belgian Government on November
Y
25th, 1926 . On February 13th, 1929, the Belgian Government filed with the
Registry a request for permission . . .

[Page 4631

PROTDCOLOF OPTIONAL CLAUSE
SIGNATURB

Date of deposit
Date of Date of ofratification
States r;itibtion siwture conditions (~o~YJ

Lithuania May 16th, Ocl. 5th, 1921 5 years. May 16th. 1922
1922
Renewed on Jan. 5 ycars(as from
14th, 1930 Jan. 14th. 1930).
Luxemburg (1921)' Ratification.
Rcciprocity.
5 ycars.

Netherlands Aug. 6lh, Aug. 6th, 1921 Recipracity.
1961 5 years.
For any future
dispute in regard
to whichthe
Parties have not
agreed to have
recaurse to Some

othcr method of
pacificsettlement.

'Braril's undertaking was given, subjcctinterolio. to the acccptance of compulsary
jurisdiction by two at least of the Powerspermanently representedan the Council of the
League of Nations. 11is 10be noted that Gcrmany has been baund by it since Febmary
291h,1928,and Great Britain sinccFebruary 5th. 1930.
' Sec Third Annual Rcport, pp. 125-130,Fourth Annual Report, p. 151, and Fiflh
Annual Report, pp. 203-204.
' Declaration rcproducedin the 7FeritSeriesof the Leagueof Nations, Vol.VI (1921),
No. 170.436 MILITARY AND PARAMILITARYACTIVITIES

PEOTOCOL OP OPTIONALCLAUSE
-- IICiKxm
Date ofdeporit
Datt:of Daic of ofratification
Swres ratifioition sinnaturc Conditions (ion),)

Reciprocity.
Renetredon
Sept. 2nd. 10years (as from
1926 Aug. 6th, 1926).
For al1future
disputes excepting
thosc in regard to
which the Parties
may have agreed

aiter the entry
into force of the
Court's Statute,
to have recoursc
10somc other
method or pacific
scttkmcnt.

New Aug. 4111, Sept. 19th. 1929 (See,mutatis March 29th.
Zealand 1921 mutandis, the 1930
eondiiionr
sripuloieby
Ausrralia).
(Uncondilionally.)
Nicaragua Sept.24th. 1929
Nanvay Aug. 20th. Sept. 6th. 1921 Ratification. Oct. 3rd, 1921
1921 Reciprocity.
5 years.
Renewedon Reciprocity.
Sept. 22nd. 10years lfrom Oct.

1926 3rd.1926).

[Page 48.51
twelve months or such longer period as may be agreed by the Parties 10 the

dispute or determined by a decision of al1 the Members of the Council other
than the Parties to the dispute.

September 20th, 1929.
(Signed) R. DANDURAND.

Nicaragua.[Transl~rion.]

On behalf of the Republic of Nicaragua 1 recognize as compulsory uncon-
ditionally the junsdiction of the Permanent Court of International Justice.
Geneva, September 24th. 1929.

(Signed) T. F. MEDINA.

Lithuania (Renewal).
For a period of five years with eiiect as from January 14th, 1930.

(Signed) ZAUNIUS.

[January141h, 1930.1 ANNEXESTO THE hlEMORlAL 437

Yugoslavia.[Translation.]

On behalf of the Kingdom of Yugoslaviaand subject to ratification, 1recognize,
as compulsory ipsofactoand without special agreement, in relation to any other
Member of the League of Nations, or State the government of which is recognized
by the Kingdom of Yugoslavia, and accepting the same obligation, that is to
say, on condition of reciprocity, thejurisdiction of the Permanent Court of Inter-
national Justice in conformity with Article 36 of its Statute, for a period of five

years from the date of the deposit of the instrument of ratification, in any
disputes arising after the ratification of the present declaration, except disputes
with regard to questions which, by international law, fall exclusively within the
jurisdiction of the Kingdom of Yugoslavia,and exnpt in cases where the Parties
have agreed or shall agree to have recourse to some other method of peaceful
settlement.

May 16th, 1930.
(Signcd) Dr. V. MAR~NKOV~TCH.

[Spanishlest not reproducedFor English translationsec UnircdStrilcs
Counrer-Mernorial.Annex 101

ExhibitC

ISpanishrexrnot reproduced For Englisth ranslnrionsec UniredStutes
Counrer-Mernorial,Annex91

Exhibit D

[Spanishtc.rtno1reprod~rced F.or Englishtranslationsee Unired States
Counrer-Mernorial,j1nne.r141 MILITARY AND PARAMII.ITARY ACTIVITIES

AnnexII

E.rhibit A:Declaration of the United States Recognizing as Compulsory the
Jurisdiction of the lnternational Court of Justice, 14August 1946
E-xhibiB: Letter of6 April 1984from Secrctary of State Shultz to the Secretary-
General of the United Nations

E.xhibitC: Departmental Statement of the United States Department of State,
8 April 1984,and Related Articles
E.xhibitD: Report of the Committee on Foreign Relations of the United States
Senate Relative to l'roposed Acceptdnce of Compulsory Jurisdiction of Interna-
tional Court of Justice, Doc. No. 259, 79th Cong., 2d Sess.,2 August 1946

E.xhibitE: Hearings on Treaty Termination, before the Committee on Foreign
Relations, United States Senate, 96th Cong., 1st Sess., 9, 10and II April 1979,
pp. 214-215

ExhihitA

INTERNATIONAL COURT OF JUSTICE: UNITED STATES
RECOCiNITION OF COMPULSORY JURlSDlCTlON

Declrrrutionhythe Presidentof the United StatessignedAugust14, 1946
Senureudviceundconsentto depositAugust2, 1546
Depositedwirh the United NotionsAugust26, 1546

61 Stat. 1218:Treaties and Other

lnternational Acts Series 1598

DECLARK~IO ONNTHE PART OP THI!UNITED STATI !P AMERICA

1, Harry S. Truman, President of the United States of America, declare on
behalf of the United States of America, under Article 36, paragraph 2, of the
Statute of the Iniernational Court of Justice, and in accordance with the

Kcsolution of August 2, 1946, of the Senate of the United States of America
(two-thirds of the Senators nresent concurr-ne therein). that the United States
of Anicrica rccogniïeh ai rompuliory~p~Jo'urtand u,iihout spcrial .igrr.emcni.
in relation10any other siarc accepting the samr. obligation. ihc jurisiliition of
ihe International Court OJusiice in a11Iegaldirputcs herc:iftcrdrisingconiirnirig

o. the interpretation of a treaty;
b. any question of international law;
c. the existenceofany fact which, if established, would constitute a breach of
an international obligation; d. the nature or extent of the reparation to be made for the breach of an
internotional obligation ;

Provideri,that this declaration shall not apply to

o. disputes the solution of which the parties shall entrust to other tribunals
by virtue of agreements already in existence or which may be concluded in the
future;or
b. disputes with regard to matters which are essentially within the domestic
jurisdiction of the United States of America as determined by the United States
of America; or
c. disputes arising under a multilateral treaty, unless (1) al1 parties to the
treaty afected by the decision are also parties to the case before the Court, or
(2) the United States of America specially agrees to jurisdiction; and

Providedfurrlier. that this declaration shall remain in force for a period of five
years and thereafter until the expiration of six months after notice may be given
to terminote this dechrotion.

Done at Washington this fourteenth day of August 1946.
Harry S.TRUMAN.

OBPARTMENT OF STTB
WASHINGTON

Excellency :

1have the honor on behalf of the Government of the United States of America
10 refer to the Declaration of my Government of August 26, 1946,concerning
the aoceptance by the United States of America of the compulsory jurisdiction
of the International Court of Justice, and to state that the aforesaid Declaration
shall not apply to disputes with any Central American state or arising out of or
related 10 events in Central America, any of which disputes shall be settled in
such mdnner as the parties to them may agree.
Notwithstanding the lems of the aforesaid Declaration, thisprovisoshall take

eKect immediatelv and shall remain in force for two vears. so as to foster the
cuntinuing regional dispute scttlement process whish seeks linegoti2ied 5olut1on
to the interrelaicd politiclil.economic and ,ecuriiy prohleiiisof Ccntrlil Anieriili.

(Signed) George P. SHUI.TZ,
Secretary of State of the
United States of America,

6 April 1984.

His Excellency
Javier Pirez de Cuéllar,
Secretary-General of the United Nations.
- MILLTARY AND PARAMII.ITARYACTIVITLES

DeportmenralSroremenr

The United States has notified the Secretdry-General of the United Nations of
a temporary and liniited modification of the scope of the US acceptance of the
compulsory jurisdiction of the International Court of Justice inThe Hague. The
notification, elTecti\.e Apri6, provides that the Court's compulsory juris-
diction shall not apply to the United States with respect to disputes with any
Central American state or any dispute arising out of or related to events in Cen-
tral America, for a period of two years.
Similar action has heen taken hy a number of countries in the past, among
them Australia, lndia and the United Kingdom. In addition, a large numher of
countries have not accepted the compulsory jurisdiction of the ICI at al1 -
France, Italy, the Federal Republic of Germdny, Spain, the Soviet Union and
other communist countries, to name only a few. Many other countries have
accepted ICJ jurisdiction, but with many more reservations than the United
States. The United :Stateshas long heen active in its support for the Court, and
its readiness to makc:full use of the Court in the Iran Hostages case and the now-
pending Gulf of hlaine case clearly demonstrate this longstanding commit-
ment.
This stcp has been taken to preclude the Court's being misused to divert
attention from the wal issues in the region and to disrupt the ongoing regional
peace process by pi-otracted litigation of claims and counterclaims. We believe
that, as evidenced by their appeal to the United Nations Security Council, recent
Nicaraguan behavior has shown a lack of serious interest in addressing regional
issues or the Contaiiora discussions. We do not wish to see the Court ahused as
a forum for furthering a propaganda campaign. The parties to the Contadora
process cdn determine for themselves in what respect they wish 10submit regional
issues to adjudication or other forms of dispute resolution.
The reeional Deace orocess. while slow. has achieved notable successes. In
agreeing to the 21 ohJectives'last ~eptember, the parties set forth an agreed
framework for continuing and completing their erorts to achievea comprehensive
reeional oeacedealine wzh the inteirelated oolitical. securitv. socialand economic
p6blem; of the reE:i~n.This work has reiently entered a-stage involving issues

of both technical and political difficulty. While this is the point at which the
greatest attention and commitment to that work is required, Nicaragua is
regrettably considering action to attempt to divert attention from its failure to
address those issue:;seriously by staging propaganda spectaculars in other fora.
By our action we ierved notice that we do not intend to cooperate with this
plan, or to permit the Court to be misused in that manner.
April 8, 1984.

Exump1e.s of Mod,fication of Accepranceof CompulsoryJurisdictionIo Avoid
Adjudicurion

1. INDIA(1956). To avoid an application by Portugal conceming rights of
passage over lndizn territory, lndia modified one reservation from "disputes ANNllXllSTO THE MIIMORIAI. 441

with regard to questions which by international law faII exclusively withinthe
jurisdiction of India" to "matters which are essentially within the domestic
jurisdiction of lndia as determined by the Government of India". 11955-561

I.C.J Yeurhook at 186-187;[1953-541 1C.J. Yeurhuok at 216(formerreservation) ;
Waldock,Decline ofthe Optional Clause, 32 Brir.YB. Inr'L.244,268 (1955-56).
2. UNITED KINGDOM (1955). In October 1955the UK terminated adeclaration
issued five months previously and substituted a new one containing a new
reservation excluding "disputes in respect of whicharbitral orjudicial proceedings
are taking, or have taken, place, with any State which, at the date of the com-
mencement of the procccdings, has not itself accepted the compulsory juris-
diction of the [ICJ]". This was in response to the breakdown of an arbitration
with Saudi Arabia due to Saudi bribery of potential witnesses. [1955-561 ICJ.
Yeurhook at 185; Waldock. supro, at 268.
3. Aus~nni.~~(1954). In 1954,to avoid a Japanese application to the ICJ on

riehts to oearl fisheries oil' the Australian Coast. Australia submitted a new
d~claratio; excluding "disputes arising out of or concerningjurisdiction or rights
claimed or exercised by Australia . . .in respect of the continental shelf of
Australia: . . in resoeit of the natural resources of the sea-bed and subsoil of
that continental shelf: including the products of sedentary fisheries; or in respect
of Australian waters . . .being jurisdiction or rights claimed or exercised in
respect ofthose waters . .., except a dispute in relation to which the parties have
first agreed upon a modus vivendi pending the finaldecision of the Court on the
dispute". [1953-541 ICJ Yearhook at 210; Waldock, supru,at 267-68.

bVul1SrreerJournul (April 1984): "Reagan Snubs World Court Over
Nicaragua - US Rejects Tribunal's Role In Central America; Foes Point
to Mining of Ports", by David Rogers

[Nor reproducedJ

Tl~eNew York Times (9 April 1984): "US Voids Role of World Court
on Latin Policy - Central America Cases Suspendedfor 2 Years" by
Bernard Gwertzman

[Nor repro<luced/ MILITARYAND PARAMII.1TARYACiIVITIES

S. Res. 196

[See supra, E.dlihi Sus mitredby rhe UniredStatesof America in Connrction
withtheOral ProceclureontheRequesftor rheIndicationof Provisionulme usure.^,
pp.310-3211

Treatg Termination

S. Res. 15,Resolution concerningutual Defense Treaties

April 9, 10and 11, 1979

1will submit thein. The staff will suhmit them to you in written form. Please
give us answers to those questions, too.
[Additional quesiions and answers follow:]

STATE DEPARTMEN RTSPONSE TO ADDITIONA QI. FSTIOSSOR THE RECORD

Question1. Given the spzcial role of the Senate in the ratification of treaties,
what would he the effectof a simple Senate resolution expressing its "advice" to
the President that Senate concurrence should be obtained prior to terminating
any treaty?

Answcr. A Senate resolution of the kind describedwould of course be politically
important. and would be given great weight by the President. It would not be
legally binding. Tlie Senate's special role in the ratification of treaties does
not mean that Senate resolutions on other aspects of treaties, including their
termination, are 1ej:allybinding. Nor would the President perceive such a reso-
lution as more than an expression of opinion by the Senate. As noted, there
are many instances in which the Presidentus1 make determinations that will
result in the termination or suspension ofa treaty.
Quesrion 2. Would you agree that the President is not able to alter the terms
of an existing treaty in any significant way without the consent of the Senate?
Ansiver.Yes. Hctwever, he may interpret a treaty and secure the agreement
of the other partyr parties for a particular inierpretation or method of imple-
mentation.

Question3. If th,: consent of the Senate is required in the case of a significant
amendment to a triraty, why is it not required in the case of the most significant
"amendment" of al1 - complete termination of al1its terms?
A~tswer.Termincition of a treatv. which ends an oblieation of the United
States, is not analogous ta amendment of a treaty, whichchanges, extends, or
limits an obligation of the United States. Assuming a significant change in a legally binding obligation Io another nation, il follows that the Senate should

give ils advice and consent to such a change. Normally a treaty is changed by
another treaty, although the characterization of the amendment may be different
(cg., Protocol).
But termination means the end of a leeallv bindinr oblieation to another state.
As noted in the responses Io previous iue;tions, t&nin&on may be necessary
for many reasons, such as violation, impossibility of performance. completion of
the terms of the treaty, formation of a new state, obsolescence,etc., which engage
the resoonsibilities of the President and reauire him to make determinations.
~herefAre,the practice of the nation, particul~rlyin the 20thcentury, as supported

by leeal scholars, kas been for the President to terminate treaties. The policy
dimerincebetwcen terminaiion and amendment of treaties exolains the diffeiencis
in the procedures used.
Question 4. What is the effect of a "termination clause" contained in the
treatv? Should it be construed as conferring autho-itv uoon th. Pr.sident -
und& domestic law - to terminale a treaty, or as simply providing an escape
clause under international Iuii'whilenot altering the domestic allocation of power?
Ansiver. A termination provision in a treaty has an eftèct under both inter-

national and d~m~ ~ic~ ~w~ U~ ~r international law. a termination nrovision
permits elthcr Party ti,tcrmtnliic the irc;ity, iisuiillyiin.Iipcrtiicd notice pcriod.
uithout obiaining the agreement of ihc trclity parincr IO ruïh lcrniination. Or
course under intërnatioil law a treaty may be terminated by one party even
without such a termination provision and without the agreement of the other
party if il is establishcd that the parties intended to admit the possibility of
denunciation or withdrawal. or such a right may be implied by the nature of the
treatv. See the Vienna Convention on the Law of Treaties. Article 56.
~Dderdomestic law,termination provisions, which are aiproved by the Senate.

constitute the Senate's authorization to the President to terminate the treaty.
The President gives the notice because he alone executes the Iziwsand implemenis
treaties. He implements al1 provisions of treaties, including termination pro-
visions. Just as he implements other clauses without coming back to the Senate
or Congress for approval, so too he implements termination provisions without
coming back to the Senate or Congress for approval. For purposes of Presidential
implementation of treaties, a termination clause is no different from any other
clause. This domestic law interpretation of termination provisions has been
acccpted in modern US practice and by scholarly opinion. See particularly, the

American Law Institute's Restatement of the Foreign Relations Law of the
United States, Section 163and comment thereon, at pp. 493-494.
Qiiestion 5. "Circular 175", as you know, is the State Department's basic
interna1 directive on the nrocedure for initiatine. neeotiatine and concludine
treaties and other agreeménts.While that document &es refer to the need f;
Congressional consultations in certain circumstances, it says almost nothing
about the termination of agreements and therefore about Congressional consuc
talion in advance. Shouldn't Circular 175procedures be reviewed inthis area,

particularly when - as in the case of the US-ROC treaty - the Congress was
on record expressing its particular interest in any policy changes aftècting
thdt trcaty?
Ansiuer. Section 723.1 of the Department of State's Circular 175 Procedure
provides that the officeor officer responsible for any negotiations is to keep in
mind, inter alia,

". . .That with the advice and assistance of the Assistant Secretary for
Congressional Relations, the appropriate congressional leaders and com-444 MILITAKY AND PARAMlLlTAKY ACTlVlTLES

mittees are advised ofthe intention to negotiate significant new international
agreements, consulted concerning such agreements, and kept informed of
develo~ments affectinr them. includinr es-.cialls whether anv leei.lat-on is
considéredneci:ssary or desirable for the implementation of the new treaty
or agreement."
This provision should he amended by the addition of a provision making it
clear that treaty termination is also a subject for consultation with Congress.

Quesiion 6. 1s the President's authority to terminale a treaty any different
where he is acting within the terms of the treaty rather than in violation of il?
Answer. Prcsidential action to terminate a treaty in violation of its lems is
not likely Io occur. There are instances, as previously noted, in which the Presi-
dent will have Io niake a judgrnent whether termination or suspension is war-
ranted, and this will be true whether or not the treaty in question has a
termination provision. The conclusion reached by the President is not subject to
review. As Professor Henkin has noted. the courts do not "sit in judgrnent on
the political branches to prevent them from terminating or hreaching a treaty".
Professor Henkin :tates that "both President and Congress can exercise their
rcjpccti\e constitut.onal pourr regardIr>>of trraty ohlijations. and the courts
will gi\c ekct Icia:ts ivithin their powcrs cvcn if ihcy \,iol,~tetreaty ubligaiions
or othcr intern:itioi :ilau". (b;~r<,ig ~llu~ri <III<the C'(.>I.~IIIUII1~9». .p 171)

'fhc C~ini~\tns. ,\r Scnatur Ja\,its hiis said- and I eniphaiiïc thcil 1ii,:int to
;igreewiih him uhi~lchcdrirrlly - uc are not ticcd uith iih,~othctical uue\tii~n,
-éntlemen.We are faced with the necessitv to renort to thé'Senatea resolution
th31willaddres5itsrlfio ihc nccclfor c,~ngrc,,iunal cuncurrcnz in the tcrniinaiion
ufirc~ties Ithink ii iincumbcni on the administraiion. aiid very irnporlant io
the administration. to make the best case it can rirh- now because thiimav have
becn ;igray arca in the pari. The preïcdcni.: you ciicd u,ere noi iresiicr of major
ionscqucncc iihcrc th: President acicd in icrminate uiihoui ihr cuncurrcncc of
Cungrcss. and. ihc kict thcitthe Congrîss diJ niii challengr ihe Prcsidcnt in ihosc
cases in no way deprives the ~on~ress of ils constitutioial authority if it wishes
to challenge a1 some point in the future.
You know, con:ititutional powers don't rus1 simply because they are no1
asserted. WCarc now faced with the necessity of addressing this question and
making a deterinination. The Congress itself will pass upon it and the President
will have to deal with it.
One way or anotlier wehave been thrown into this grayarea of the Constitution
and we have been charged with the responsibility of trying to clarify it, of trying
to bring light and reason to the question and resolving it for the future. That is

not an edsy task. M'eneed al1the help wecan gel from the executive branch with
respect to ils views.as we will cal1upon the leading constitutional experts of the
country for theirs. ANNEXES TO THE MEMORIAL

AnnexIII

Exhibit A: United Nations Security Council Resolution 530, 19 May 1983
(S/RES/530 (1983))
Exhibit B: United Nations General Assembly Resolution 38/10, 11 November

1983
Exhibit C: Resolution 675 of General Assembly of the O.A.S., 18 November
1983(.GIR.S. 675 (XIII-0183), ,,
Exhibit B: Draft United Nations Security Council Resolution of 4 April 1984

(S/IM63) and Summary of Security Council Vote Thereon

Exhibit A

Resolution 530 (1983)

Adopted by the Security Council ut ils 2437th meeting, on 19 May 1983

(See supra, Exhibits Submitted by the United States of America in Connection
with the Oral Procedure on theRequestfor the Indication of Provisional Measures,
p. 2751

Exhibit B

38/10, The situation in Central America: threats to international security and
peace initiatives

[See supra, Exhibits Submitted by the United States of America in Connection
with the Oral Procedure onrhe Requesftor the Indication of Provisional Measures,
pp. 290-2921 MILITARYAND PARAMILITARYACTWITIES

E.~hibitC

AGlRES.675 (XIII-0183)

Peace Eiiorts in Central America
(Resolutionadopteriai theseventhplenarysessionh . eldonNovember18, 1983)

[See supra, Exhibiis Subrniitedhy the United Statesof America in Conneclion
with theOrul Procerlureonthe RequestfortheIndicationof ProvisM~na Mlea.sure.s,
pp.287-2881

ExhibitD

[Summarynorreproduced]

Nicaragiw: Draft Resolution

The SecurityCouncil,
Havingheurd the statement of the Permanent Representative of Nicaragua,

AIsohavingheurd thc slatcments made by the representatives of several Sfates
Memhers of the Uriited Nations in the course of the dehate,
Recalling its resoiution 530(1983), which reaffims the right of Nicaragua and
of al1the countries of the region to livein peace and security freefrom al1foreign
interference, -

Noting resolutioii 38/10 of the General Assembly, in which, inrer alia,the
States of the region, as wellas other States, are urged to refrain from continuing
or initiating military operations with the objective of exercising politicalpressure
which would aggravate the situation in the region and hinder the negotiation
eiiorts by the Contadora Group,

ReaJJirming al1 the purposes and principles of the Charter of the United
Nations, particularly the obligation of al1States to rcfrain from resorting to the
threat or use of force against the sovereignty, territorial integrityor political in-
dependence of any State,
Commending the sustained effortsbeing carried out by the countries that make
up the Contadora Group in the search for a peaceful and negotiated solution to
the conflictsthat affect the region,

Recognizing and welcoming the broad international support expressed to the
Contadora Groui, in its clïorts to bri-. peace and dcvclo~mentto the re-ion,
Noting withgreai concernthe foreignmilitary presencefrom outsidc the region,
the carrying out of overt and covert actions, and the use of neighhouring
territones for mounting destabilizingactions that have servedto heighten tensions

in the region and hinder the peace efforts of the Contadora Group,
Noringalsoiwithdeepconcern the mining of the main ports of Nicaragua,

1. Condemnsancicallsfur an immediate end to the mining of the main ports ANNEXESTO THE MEMORlAL 447

of Nicaragua, which has caused the loss of Nicaraguan lives and injuries to
nationals of other countries as well as material damage, serious disruption to its
economv and the hamoeri.ie o- free navieation and commerce. therebv violatinn -
international law;
2. Afirms the right of free navigation and commerce in international waters
and calls on al1States to ieswct ihis r-.ht bv refrainine from anv action which
would impïde the erercire of ihis right in ihr waters <><theregion,
3. K<~uJir,>ithe righi of Nicaragua and ,if al1 the countries ailthe rcgion tu
Iivcin neaïe .ind securitv and to determine ihcir own future fTccïrom 311fore-cn
interference and intervention;
4. Calls on al1 States to refrain from carrying out, supporting or promoting
any type of military action against any State of the region as well as any other
action that hindcrs the peace objectives of the Contadora Group;
5. Expresses its firm support to the Contadora Group for the efforts it has so
far carried out and urges il to intensify these eiïorts on an immediate basis;
6. Requests the Secretary-General to keep the Security Council informed of
the development of the situation and of the implementation of the present
resolution;
7. Decides to remain seized of the matter. MlLlTARYAND PARAMlLlTARY ACTIVlTlFS

AnnexIV

DOC~IMENR TSLATIN GO THECONTADOR PROCESS

ExhibirA: Text of Joint Note issued on Contadora Island, Panama, by the
Ministers of Foreign Aiïairs of Panama, Colomhia, Mexico and Venezuela,

9 January 1983
E.rhibirB: 1nform;ition Bulletin of Ministers of Foreign Aiïairs, Contadora
Group, 12 May 1983
ErhibirC: Cancun Declaration of Heads of State of Contadora Group, 17July
1983
ExhibiiB: Document of Objectives ofMinisters of ForeignAlTairsof Contadora
Group, 9 September 1983

E.xhibirE: Statemi:nt of Ministers of Foreign AiTairs of Contadora Group,
"Measures to BeTaken to FulfiIthe Commitments Entered into in the Document
of Objectives", 8 January 1984
ExhibirF: Communique of Ministers of Foreign Affairs ofthe ContadoraGroup,
8 April 1984
ExhibirG: Commeiits of Foreign Minister of Mexico, 13April 1984

Exhihil II: Joint Cleclaration of Ministers of Foreign Relations of Nicaragua
and Costa Rica, 15 May 1984
Exhibir1: By-lawsof Commission of Supervision and Prevention Established hy
Nicaragua and Costa Rica, Signed 31 May 1984
ErhibirJiReport <ifthe Inter-American Dialogue, May 1984(Excerpts)

ExhibirK: Chronology of Nicaragua's Participation in the Contadora Process

EshibirA

Tlatelolco, D.F., January 9, 1983.

In response to the invitation extended by thenistcr of Foreign Affairs of
the Repuhlic of Panama, Lic. Juan Jose Amado III, the Ministcrs of Foreign
Affairs of Colomhia, Dr. Rodrigo Lloreda Caiccdo, Mexico, Lic. Bernardo
Sepulveda Amor, and Venezuela, Dr. Jose Alherto Zambrano Velasco, met on
January 8 and 9, 1983,on Contadora Island.

The Foreign Ministers met with His Excellency,the President ofthe Republic,
Lic. Ricardo de la Espriella T., and with His Excellency, the Vice President of
the Repuhlic, Dr. Jorge Illueca.
At this cordial meeting, the strong feelings of brotherhood, solidarity and
reciprocal understanding which the governments and peoples of Colombia.
Mexico, Panama and Venezuelahave traditionally shared were reallinned.
The Foreign Ministers dealt withvarious topics of regional intercst, and agreed
on the need to intensify the dialogue at the Latin American level as an effective
means to deal with the political,economic and social problemswhichjeopardize
the peace,democracy,stabilityand development ofthe countriesof the hemisphere.
They studied the complexsituation existing inCentral America, as well as the ANNEXESTO THE MI<MORIAI. 449

political processes whichare under way in the area, their interrelation and their
effectson stability and peace in the region. In expressing their deep concern with
the foreien interference - direct or indirect - in the conHicts of Central
~merica,-and in pointing out that it is highly undesirable to place those conflicts
in the context of the East-West confrontation, they agreed on the need for re-
moving the external factors that aggravate those conflicts.
They urgently called upon al1the countries of the Central American area Io
reduce tensions and to establish the basis for a lasting climate of friendly relations
and mutual respect among the states, through dialogue and negotiation.
Upon reaffirming the obligation of the states not to resort to threats or to the
use of force in their international relations, they urged al1 of them to refrain
from acts whichcould aggravate the situation, creating the danger ofa generalized
conHict that would spread throughout the region.
Likewise.there was an account of the various mace initiatives and their effects.
In this regard, rcspecting the principlcr ofno~iinieneniii>n anclsclf-dcicrmin;ition
of nations. ihc I;orcign Minirters an;ilyrcd p<issiblene%,actions. and pointed out
the dcsirabilitv of includinc in thiisc ciinris ihc \aluahlc contribution and the

necessary support of other Countries of the Latin American community.
They reaffirmed their decision to continue contributing to the economic
strengthening of the Central American and Caribbean countries through initia-
tives such as the Energy Cooperation Program sponsored by Mexico and
Venezuelaand the Financial Cooperation Plan advanced by Colombia. They felt
that these and other economic cooperaiion measures serve the purposes of
political stability and social peace.
With regard to the upcoming meeting of the Bureau for the Coordination of
the Movement of Nonaligned Countries, to be held in Managua, Nicaragua,
from January 10 through 14of this year, the Foreign Ministers emphasized the
imoortance of the movement to the develooine.na-ions.
Best wishes were expressed for the successful outcome of that meeting, in the
conviction that the final conclusions willconstitute Factorsconducive to balanced
and constructive solutions to the reeional oroblems.
They agreed on the importance of expanding participation of the Latin
American nations in the Movement of Nonaligned Countries, either as members
or as observers, because ihis would assure better systems for consultation,
dialogue and negotiation, and would strengthen the bases of nonalignment and
political pluralism.
Upon examining international economic matters, the Foreign Ministers noted
with~concernthe downturns in the world economy. They pointédout the negative
effects this situation has had in Latin America in terms of financing, trade,
investment and employment, and they stressed the need to reorganize an in-
ternational economic system which, in its imbalanced condition, is causing the
develooine couniries serious maladiustments.
~hc'~u;ci~n hiiiii\tcrs c.~amincd'thcdeclinc in wiirld tr;ide. the prei,alçncc of
protcctioniim in the indu~tri:ilizc(lcountries. ihc ierms imporecl for crierna1
credit. and the insuiliciencvof such credit. The, .ointed out ihat the oromotion
oi dc\,clopmcnt linancing rcquircs the îorcign c.xchangcobt~incd from i*irc~gn
trade and Trilmothcr financi~ls<lur;c>iupplcmenting 11.in ~ddiiion io doms\iic
savinas. These Factorswhich are essential to the Latin American economies, will
make-it possible,to the degrce inwhich they materialize, to consolidate prod"ctive
investment and to ensure the creation ofjobs.
The Foreign Ministers emphasized the importance of the periodic consultations
at the ministerial level to deal with economic topics of interest in the Latin
American sphere. In view of the obvious usefulness of coordination in SELA,450 MILITARYAND PARAMILITARYACTIVITIES

the Foreign Ministers noted the importance of the Ministerial Meeting of Latin
America and Caribhean Countries, to he held in February in Cartagena, and the
Ministerial Meeting of the Group of 77, which will be held in Buenos Aires
next March.
To these ends, they reaffirmed their desire Io make an etTectivecontribution
so that those meetings may accomplish their purpose, which is to coordinate and
estahlish the joint inegotiating position of the developing countries at the VI
UNCTAD, to he hrld in Belgrade. This forum should hecome the driving force
of a series of global negotiations which, in the content of the United Nations,
are to set the standzirds for international cooperation for development.
The Foreign Ministers agreed on the importance of faithfully complying with
the Panama Canal Treaties, and they ohserved with approval the progress
made from the iurisdictional stand~oint in the imolementation of those treaties.
Nevertheless, they expressed concein over the un'favorableetfects of the use of
discriminatory legal instruments in other aspects of the Torrijos-Carter treaties
which are in the prcicessof implementation.
On the occasion of the bicentennial vear of the birth of the Liberator Simon
Ilolivar. the Foreign Ministers stresscd the significanic of thai niitahle ewnt iind
the opportuniiy itrirovidcd io sircngthcn fricnilrhip :ind rosier the cooperation
among al1the Latin American nations.
The ministers of foreign atfairs of Colombia, Mexico and Venezuela thanked

His Excellency the President of the Repuhlic of Panama. MI. Ricardo de la
Espriella, and the Panamanian Government, for their hospitality in holding this
meeting, which they called highly useful. They also expressed their appreciation
to the people and aiithorities of Panama for the many kindnesses shown to them
during their stay in the isthmus nation.

ExhibiiB

The Ministers for Foreign Atfairs of the Contadora Group, at their meeting
held al Panama City on II and 12May 1983,considered the following subjects:
(a) The request of the Govemment of Costa Rica for the establishment of an
observer commission;
(b) The course of the debate in the United Nations Security Council convened

at the request of Nicaragua;
(c) The programme of work of the next meeting of the Ministers for Foreign
Atfairs of the (:ontadora Group with the five Ministers for Foreign Aîïsairs
of the Central American countries, to be hcld at Panama beginning on
28 May 1983.
The Govemment of Costa Rica has made a request to the Organization of
American States for the establishment of a "peace force, capable of effectively
monitorinr-the aren of Costa Rica borderinr -n Nicaraeua"- As eroun-s for
JI..rcqucii, ilpoinird oui thai Coita Kicli ha no lirnly ;inJ has Jitficulry in
patrolling 8 long 3r.d irregular Irontier. The authoritier of Cmta Kic~advanrcd
,imilar ron~ider~ti<;nsio the C;oi.crnmcni\ of Colombia. ,Vcrico, P;inanin and
Venezuela through special envoys, indicating their desirc that an observer com-
mission should be established for that purpose.
The Ministers for Foreign Affairsof the Contadora Group, acting inaccordance
with the principlcs which guide their conduct, recalled that the original and
essential purpose of the formation of the Group was to fulfil a diplomatic roledesigned to seek the settlement of conflicts through political means, relying on

the co-o~eration of the ~arties involved.
l.rorn'ihis perspecii~~ci.hc ConiaJora Groiip helir.\es ihlii iis work should
iuius un ihc coiiccnir:iii<>n~>lpiilitiralciluris io promiitc dialiigur. unJcrsianrling
and. in neneral, the deveio~mentof~olitical rnachinervwhich, with theco-opera-
lion of Ïhe States concerned. can ensure the full attahrnent of their obiectives.
In the circumstances of thecase, the proposal to set up an observercommission
is closely related to the efforts to create conditions of peace in the region. The
successof this proposal requires the co-operation of boih countries.
In viewof the foregoing, the Ministers for Foreign Aiïairs of the Contadora
Group havedecidedto sendan observercommission,consistingof two representa-
tives from each of their countries, which will have the task of carrying out a
study insitu in order to establish the facts, evaluate the circumstancesand submit
appropriate recommendations.
For the pcrformance of these functions, the members of the commissionmay
be accomoanied bv such advisers as. in the view of each countrv. are,.ecessarv. ..
and they kay, if they deem it appropriate, consult international experts.
The Ministersfor Foreign AffairsofColombia, Mexico, Panamaand Venezuela
note with deep concern the development of the Central American conflictover
the pas1 few days and the repeated violation of essential principles of the inter-

national legal order.
These circumstances have given rise to various initiatives aimed ai seeking
the intervention of multilateral organizations. The initiatives includethe recent
requests made by Central American countries to the United Nations Security
Council and the Permanent Council ofthe Organization of American States.
It would be hie-,v desirable that in the deliberations takine d".e in the said
forums. and cspcci;illytho,c currcntly undcr way in ihc Securiiy Cuuncil. ihcrc
bhould he iisirrngihening <II'rinciplcsuhirh shiiuld guidc ihc aciii,iticsiiiStiiics
in the international arena.
These ~rinciolesinclude: self-deterrninationand non-interference in the alTairs
of other States: respect for the territorial integrity of other States, the obligation
not to allow the territory of a State to be used for committingacts of aggression
against other States, the peaceful settlement of disputes andthe prohibition of
the threat or use of force to resolve conflicts.
The countries of the Contadora Group once again cal1 upon the Central
American counvies to help attain the goal of peace and, to that end, Io apply
their political will to the search for ways leading to dialogue and understanding
to settle their current difirences. This constructive and open attitude will largely
determine the successof the peace initiatives.

With a viewto achieving these objectives, aformal invitation has been sent to
the five Ministers for Foreign Affairs of Central America to hold a working
meeting al Panama on 28, 29 and 30 May 1983.The meeting will operate within
the framework agreed upon during the most recent meeting held in April re-
garding the procedure for consultations and negotiations. A time-frame con-
cerning the organization of items, their discussion in working groups and, lastly,
their consideration in plenary meeting has been worked out.
The Ministers for Foreien Afiirs of Colombia. Mexico and Venezuelaexoress
apprccixiion liir the hosp~alit) anJ gcncroui façilii!ei pri)\iJcJ idr thcir ùiirk.
uhish once again cnlihlcd ihem ii) fullil ihc purpow for uhiih ihc Cont;iJ<>rr
Group had been convened on this occasion.

Panama City, 12 May 1983.452 MILITARYAND PARAMlLlTARY ACTIVITIES

General Asiembly; Security Council (Doc. A/38/303; SI158771

Leiter Bated 19July 1983from the PermanentRepresentativesof Colombia.
Mexico. Panamaand Venezuelaro the Uniied Nations Addressedtu the

Secretary-Ceneral

We have the honciur ta transmit ta you the text of the Cancun Declaration on
Peace in Central America, drawn up by the Presidents of Colombia, Mexico,
Panama and Venezuela at the close of the meeting which they held on 17 July
1983at Cdncun, Mi:xico.
We would request you to have the tex1 of this Declaration circulated as a
document of the General Assembly, under items 64, 66, 78 and 125 of the
preliminarylist, and of the Security Council.

(Signed)Carlos ALBAN-HOLQUIN,
Ambassador,
Permanent Representative of Colombia.

(Signed) Miguel MARIN-BOSCH,

Ambassador
Deputy Permanent Representative of Mexico, Chargéd'affaires a.i.

(Signed) Leonardo KAM,
Ambassador,
Deputy Permanent Representative of Panama, Chargé d'affaires a.i.

(Signed)Alberta MARTINI-URDANLTA,
Ainbassador,

Permanent Representative of Venezuela.

Annex

[See supra. Exhibits Submitted by the United States of America in Connecricm

wirh the Oral Procedureon the Reguestfor the Indication of Provisional Measures,
pp 278-2811

ExhibitB

(On September 9, 1983,the Central American Governments, under the auspices
of the Contadora Ciroup, adopted the following Document of Objectives.)

[Sec supra, Exhibi's Submitted by the United Siaies of America in Conneciion
with the Oral Procedure onrhe Requeslfor the Indication of Provisional Measures,
pp.283-2851 ANNBXFS TO THE MEMORIAL

Erhibit E

General Assemhly; Security Council (Doc. Al39171 ;S/16262)

Lerter Dared 9 January 1984 from rhe Chargéd'AJjairesa.i of ihe Permanent
Missionof Panamaro the UniredNationsAddressedto theSecrerary-Ceneral

[See supra, Exhibits Suhmitredhy the UniredSrulesof Americu in Conneclion
iviihihe Oral ProcedureonrheRequesrfortheIndicarionof Provivii~naM l easures,
pp. 296-2991

Communiqué of rheForeignMinistersofthe ConrudoraCroup.Caracas,Venezuela,
April 8. 1984

"The Foreign Ministers of Colombia, Mexico, Panama and Venezuela meton

April 8, 1984,to evaluate the critical situation in the region, and the most recent
events that have taken place in Central America as well as the progress of the
workine-commissions created within the framework of the Contadora vrocess
dealing wiih poliiiciil miiticrs. seçurit) :ind social dnJ cr<)nii;ilTiiir,.
As rcp:irds ihe riiu.~tii~nin Ccntral Anicrica. the .Minirierscxilminedthe dcgrcc
of fullillnicni tif the Docunient of Ohjcciivcs ratilird in Sepicmber 1983 by the
fivcCentral Amcrisan G<~\.crnmcnistvhich objectives ertablish the c~)mmitmeni~
undert;ihen in the negoliaiion procers They look noie of the neccssiiy that the
üovcrnmcni5 ,if ihe rcalon çonform iheir intcrnati<~nalconduci IO ihe spirit of
conciliation which derGes from the noms of execution adovted in Januarv of
this year. They warned that in the course of the pas1weeks the regional situation
had deteriorated seriously. Actions of irregular forces have intensified aided hy
suvvlies and communica~tionscenters Iocsed in the territories of neirhborine.

c&ntries and oriented toward the destahilization of the ~overnmenrs of th;
region. Sophisticated arms, new military tactics and dangerous methods of attack
have been-introduced.
Operations such as the mining of the ports have been carried out which drain
the economy, disrupt trade and militate against freedom of navigation. At the
same time they expressed their concern at the presence, each time more visible,
of foreien trooos and advisers. the increase of the arms race. the vroliferation of
militïry action\ and mancuicr,. all of whlch contribute IO the increarc of tcn,i<>nh
and the dcepcning of disirust. That 15why they consiiter itindispensable ihat the
countries of the region demonstrate with concrete actions the support which they
have expressed for the Contadora Group underlining once again that a conflict
of greater proportions would have serious repercussions in al1 the countries of
the region and would afïect the entire continent.

As far as the political situation is concerned the ministers look note of the
electoral processes that are underway. And they affimed their value in the sense
that they can contrihute to interna1 reconciliation and the lessening of regional
tensions to the degree that proper guarantees are granted by an independent
electoral organ and the effective participation of al1political currents is assured.454 MILITMY AND PARAMILITARYACTlVlTlES

As fÿr as social and economic matters are concerned, they referred to the
fomal estahlishmeiit and the beei~i~ine of the works of the action committee
of asris1:ince to the Social 2nd L:conomic Dei,el<~pmcniin Ccnirdl Ameriia

(CAUIISC,\) u.hiçli ha, ,>pr.neil :i useful ;inJ oppiJrtiine pc.rrpc<ii\,1,)ch.inni.1
intcrnxtion:il Carthe iiittrnal ctfortr inicer.ttii>iiithe Cenir:il Americi
counirie.. in cooperition 2nd ci,i>iJin.it~i>n with the eioliortii; orgiins :tIrc.id)
t.iahlirhr'd by thç po\erniiieniz ihciiirel\ss oi Ciiitr.il ,\mcric~.
Evaluating the j>rogress made hy the working commissions the Foreign
Ministers of the Contadora Group agreed that in certain aspects significant
progress had been made, but in others there persisted obstacles derived from
attitudes that on oci:asionwereno1always flexibleand ciïcctivelyoriented toward
negotiation.
In the light of al1these considerations, the Foreign Ministers of the Contadora

Group exhorted the Governments of Costa Rica, El Salvador, Guatemala,
Honduras and Nicaragua to rcncw their political disposition and to intensify the
preparations for the final phase of the working commissions which should be
entrusted with theirjuridical projects, sludies and rccommendations al the joint
meeting of Ministers which will take place the 29th of April, with this purpose
and to prepare for that meeting tbey will establish direct communication with
their Central American counterparts."

1certify that this is a correct English translation of the Communiquéof the
Foreign Ministers of the Contadora Group, issued on April 8, 1984.

(Sixned) Carlos ARC~ELLO GOMEZ,
Agent of the Republic of Nicaragua.

[Spanish resr nui reproduced]

The New York Times(14 April 1984): "Mexican OfficialCondemns Mining of
'iicaragua's Ports", by Richard J. Meislin

[Nor reproducrdl

The Ministers of Foreign Relations of Costa Rica and Nicaragua, meeting in
Panama City, Rcpublicof Panama, on May 15. 1984. inthe presenceof the Vice- ANNEXESTO THE MEMORIAL 455

.Viiiisiersor I'oreign Kclaiionl of thr CcinilidoraGroup. :tnd in ar.c<~rJr,ith
the politiclrlwil01'iheir rcqxciii,e g.~\crnmentIO mlike thc erri~risnecebsarti~
bring an end to tensions and incidents in the border area, and to foment a
climate of trust hetween hoth countries, have decided to create a Commission of
Supervision and Prevention, the characteristics of which will be the following:

(I) The Commission will be made up of one representative and one alternate,
both high level,from Costa Rica and Nicaragua, and by one representative from
each of the countries of the Contadora Croup. The responsibility of the repre-
senvativesof the Contadora countries will be to mediate disputes. They may be
designated from among the memhers of their diplomatic missions, two in San
Joséand two in Managua.
(2) The principal function of the Commission will be the on-site inspection,
as wellas veriiications, of facts surrounding events thai may giverise to tensions
or border incidents.
(3) Both statcs commit themselvesto taking mcasures necessaryfor correcting
the situations that giveriseto such investigations, in accordance with the previous
paragraph.
(4) This Commission will he in a position to visit any part of the territory of
both siates.
(5) Costa Rica and Nicaragua commit themselves to establishing the system

of direct telephone and radio communication for the benefitof the Commission,
as recommended in the July 1982 meeting of thebilateral commission.
(6) Both states will orovide the Commission with the facilities to allow for
the ireaiest mohility and for necessary protection, so as to allow for the proper
carrying out of its mission, and for its recommendation of measures to be taken
by both siates.
Costa Rica, Nicaragua andthe countries of the Contadora Group willdesignate
their representatives soon enough so that the Commission of Supervision and
Prevention can begin functioning at the border post of Pends Blancas Saturday,
May 26.

The Ministers of Foreign Relations of Nicar;igua and Costa Rica reaffirm their
trust in the efforts of the Contadora Group and the necessity offavoring direct
dialogue between both states. They also recognized the positive efforts that can
he developed through the channels of communications and exchange in order to
promote relations of friendship, cooperation and mutual understanding between
both sister nations.

Panama, May 15, 1984.

Miguel D'ESCOTB O. Carlos JoséGUTIÉRREZ,
Minister of Foreign Relations. Minister of Foreign Relations.

Vice-Ministersof Foreign Relations of the Contadora Group:

Laura Ocrlon DE AROILA, Ricardo VALERO,
Colombia. Mexico.

JoséMaria Cabrero JOVANE, Germin Nava CARRILLO,
Panama. Venezuela.

[Spanish test no:reprorlucedl
- BY-LAW S8FTHE COMMISSIO OF SUPERVISIO ANND PICEVENTION

Memhership

Article 1

The Commission of Supervision and Prevention, hereafter called "the Com-
mission", will be composed of a Representative and an Alternate, from both
Nicaragua and Costa Rica, both of high level, designated by the Govern-
ments of Costa Rica and Nicaragua and by a permanent Representative of each
one of the Contadora countries.
The members belonging to the Commission may be accompanied by as many
as two consultants irom their respective governments.

Arlicle2

The permanent Representatives of the Contadora countries will mediate and
may be designatcd from among the oflicials of their respective Diplornatic Mis-
sions. Two must re:;idein San Joséand two in Managua.

Ohjecrives

Article 3

The Commission's objectives are to achieve the diminishment of tensions
and incidents in the border areas, and to foster understanding and trust hetween
Costa Rica and Nicaragua, to which end they maymdke suggestions and recom-
mendations relevant to the matters submitted for the Commissions's consider-
ation.

Procedurefor Convening

Article 4
Towards the end of fulfilling the duties charged to the Commission by the
Joint Declaration, written 15 May 1984in the city of Panama, the Commission

may be convened by either of the two governments of Costa Rica or Nicaragua,
throu-h their reoresentative on the Commission. The Commission mav be
convened when it i:;considered that there are indications that an event, capable
of producing tension or incidents between the Iwo countries, may occur, and in
thecases where such an event or condition kas already occurred.

Article 5
The authorities of hoth countries willseek at al1times to cornmunicate to their
counter-parts the situations or indications that may produce or have produced
tensions or incidenïs. When possible, these communications will be in writing.

Article6

The Goicrntncni, tiiCosta Riiii.iiiJ Nicaragua u.proviJr. tu the rncmhers
OCthe Cornmi\sioii the trsnrportation. protcçtion. and mran, neccivar). Corthe
fulfillment of their work. ANNEXI5 TO THE MI!MORIAL 457

ConsulrunrsundSpeciulisis

Arricle7

The Commission, when it considers itnecessary, may seek from the respective
governments the assistance of consultants or specialists for specificcases which
require them.
Infr>rmurion

Article 8

The Governments of Costa Rica and Nicaragua promise to provide to the
Commission the data which supports their assertions, in order that it rnight be
analyzed and verified.

Adoprionof Meusures
Article 9

The Governments of Costa Rica and Nicaragua promise each other to adopt
immediately the means necessary to correct al1acts and conditions that might
produce or have produced tension or incidents between the two countries, in
conformity with the recommendations that the Commission makes.

Done in the City of Managua, Republic of Nicaragua, on May 31, 1984.

(Signed)

Johnny CAMPOS, JoséLeon TAI.AVEM,
Vice Ministro de Seguridad Publica Vice Ministro del Exterior
de Costa Rica. de Nicaragua.

Gil MILLER PUYO, Luisa Maria LEAI.,
Embajador de Colombia Embajador de Mexico
en Costa Rica. en Costa Rica.
Reynaldo Rivera ESCWDER~, JoséRafael Zapata LUIGI,

Embajador de Panama Embajador de Venezuela
en Nicaragua. en Nicaragua.

[Spuni~hrexrnui reproducedl

"The Americas in 1984: A Ycar for Decisions"

Report of the Inter-American Dialogue
May 1984

(Elrccrpts)

The Inter-American Dialogue hrings together leading citizens from the United
States, Canada, Latin America, and the Caribbean to discuss issues affecting the458 MILITARY AND PARAMILITARY ACTIVITIES

future of the N'estcrn Hemisphere. Participants in the Dialogue include former
presidents; banker:;, industrialists, and labor officiais; scholars and foundation
heads; religious, political, and military leaders; and former ministers and cabinet
secretaries. The chairmen of the Dialogue are Sol M. Linowitz, former US
Ambassador to the:Organization of American States and Co-negotiator of the
Panama Canal treaties, and Galo Plaza, former President of Ecuador and former

Sccretary General iofthe Organization of American States.
The Dialogue is a private, nonpartisan activity supported by grants from
foundations and corporations. It first convcned in late 1982and early 1983under
the auspices of the Woodrow Wilson International Center for Scholars in
Washington, D.C. In April, 1983, the Dialogue puhlished its first report, ïïie
Americas al riCrossroods.
In March, 1984,the Inter-Amencan Dialogue reconvened under the auspices
of the Aspen Inslilute for Humanistic Studies. Additional copies of this year's
report, The Americas in 1984: A Yearfor Decisions,may be obtained from:

Inter-American Dkilogue
c/o Aspen lnstitute for Humanistic Studies
1333 New Hampshire Avenue, N.W., Suite 1070

Washington, D.C. 20036
Telephone: (202) 466-6410

. . .are interna1 to each nation; even whcn external support of insurrection is
present, as in El Salvador, the underlying problems are domestic. Even though
there is a mililary dimension to the conflict, the solutions ultimately lie in eco-
nomic and social development and in political dialogue, not in more weapons,
military advisors, and troops.
The United States and the other nations of the Hemisphere should work

together to keep Soviet and Cuban combat forces and military bases out of
Central America. and to orevent Cuba and the Soviet Union from disru~tinr . -
the sra lanes iiianil ar.iunil thc rcgioii. Agrcsincni \h<,uldhc rc.i~.hcJiinidng ilic
souniries oi'the A~iieric~s ii<i10 c,iiiblibh In). oiTcnsi\s iir rtrxtegic facilities In
Central America, rior to threaten the territorial integrity of any country. At the
same time, the United States should make it clear to the Soviet Union tbat any
attempt by the USSR to introduce combat forces, bases, offensive weapons, or
strategic facilities into the Caribbean Basin would be met by whatever measures
are necessary to prevent or reverse it.
The danger of regional conflagration in Central America could be reduced by
regional agreements to permit international inspection of border regions, bar
new military bases, limit and reduce the number of foreign military advisors,
and restrict the wcapons being introduced into Central America. All Central
American nations should guarantee that they will not assist forces seeking to
destabilize other governments.

In El Salvador, the just-concluded elections are a positive step, but by them-
selves they cannot produce peace. Elections without prior negotiations among
the belligcrents will not resolve the conflict. Appropriate interim arrange-
ments mus1 be devised to win the confidence of Salvadorans in their country's
elcctoral process. To bar any such agreement in advance by labelling it "power- ANNEXESTO THE MEhlORIAL 459

sharing" is to be imprisoned in a semantic trap, and to prejudice negotiations
before they begin.
The underlying problems that feed Central America's conflicts must be faced.
It is essential to stop the death squads that have cursed the political life of
Guatemala and El Salvador,undertake socialreforms and economic development
oronrams throuahout Central America. and exoand effective oolitical partici-
patGn in al1cointries of the rcgion. A plan for peace in central ~meriia must
also help the millions of victims of the rcgion's violcncc, cspecially thc displaccd
persons and refugees.
The Contadora nrocess the dinlomatic initiative Colombia. ,exico.
Panama, and ~enezuela - aiïords thébest chance for building pcace in centrai
America, and deserves strona, consistent backing. As a concrete step, the United
Statesshould immediately end support for the military and paramiliiary activities
of the contrasagainst Nicaragua. If Cuba and . . .

-

. . alter its ties with the Soviet Union. Most infonned analysts agree, however,
that Cuba now sceks to avoid a further escalation of violence in the Carihbean
Basin, and we share this appraisal.
In the United Statcs. thcre have been some oositive siens as well.Alter several
months of study and testimony from many Litnesses,-includi& several mem-
bers of our Dialogue, the National Bipartisan Commission on Central America,
chaired bv forme? Secretarv of tat t eenrv Kissineer. reached a number of
importani findings: that economic injustice and poliïical oppression are at the
heart of Central America's turmoil and that basic change there will be needed
to resolve these causes of continuing insurrection; thatthe establishment of a
military presence by or on behalf of the Soviet Union in Central America should
be strenuously resisted; that indigenous revolutionary movements in Central
America are not in themselves a security threat to the United States; that
neeotiations in Central America should be nursued and that the Contadora
iIiplon1:iiicproccis dircrvei US support : ihat CS ici,nomir arsi\tancc io Central
l\mirtca hhuuld bi ~u~~IJIII~JIIc\pdndcd C>IIJrcg~dn~lbas,,: snd thal c:orioniic
and military assistance to Central America should devend on cach nation's

c.tp.iai!. Io iiscthe ciidcire~ti\il) and on ils respr.:! for hum.in righis. Ii trsnrlatiJ
int<>poli+ and ~ttipliniented.thisc .'ollilil~l~\idiiIJconirihuti .igniIii.intl1,)
making pCdCepossible in Central Amcrica.
Other aspects of the Commission's report, however, trouble most of us. The
report portrays Central America as a geostrategic crossroads of global dimensions
and as a prime arena of Edst-West confrontation. This characterization contri-
butes unnecessarily to making the region a focal point of the Cold War. The
Commission's revort defines Central America as a zone of vital se~u~ ~v interest
to the United tat teIs ugge& that the exclusion of Soviet basesis noithe only
or even the main security concern, but it contains no clear statement of iust
what, in fact, is at stake. The report avows that indigenous revolutionary mive-
ments in Central America do not threaten US security, but it employs a
definition of "indigenous revolution" so resrricted that many of us believe there
is little if any possibility that an actual insurgency could fit the category. The
report endorses the principle of nonintervention, but does not oppose the US
Government's support for the counter-revolutionary war against Nicaragua, a460 MILITARYAND PATUMILITARY ACT1VITIF.S

practice that violates the principle. It expresses support for the Contadora pro-
cess, but makes Contadora peripheral to US policy. More generally, rhe Nurionul
Biparrisan Commi,ssion',sreport seems ro mosr of us Io lreur (lie Cenlral
Americancrislrpriniarily asa fniliraryproblemwirha polirical dimensionrarher rhan.
os we al1 see ir. on essenriullypolitical and econonlic problem wiih an impor-
rani milirary dimension,
Weare deeply ccincernedabout several aspects of the US Governrnent's policy
toward Central Arnerica. Alihough lhe US Governmenthas repearerlly voicedils
backingfor the Conradoru process, Washington'spracrict?has been ur odds wiih
major elemenls ($the Conrudoru approach. Support for the raids by armed in-
surgents (the conruas)into Nicaragua and the mining of Nicaragua's harbors
violate the basic principlesof respect for national sovereignty, territorial integrity,

and nonintervention emohasized bv Contadora and traditionallv esooused hv
the linited ~tate,. ï'he malor CS n;lliÏ4ry build-up in Ilondura. sont;adicis ih;
Contadord 0bie:tives ofe~sluding L~rcignmilitar). ~L>L.\fr<imCentriil Anierica.
reducing ancl;\cn'ually reinoving forciin truopj;ind advisors frorn the region.
and >rpÿrjtingC~ntral Arncricafrom thc Easi-iV~,~~<~nlliil.The US Govcrnmcnt
has shown no willingnos SI far tiiie.1 the propoials ollrred by Nicaragua and
hy Cuba within the pas! year as means to advance discussions. And the continucd
strong US support for El Salvador's government despite ils failure to end gross
abuses of human rights - as well as the proposed renewal of US military
cooperation with Guatemala - directly contravenes the Kissinger report's
emphasis, and OUI own, on the importance of human rights.

Breukingihe Cycleof Despair

The past year, then, has seen a slide toward wider war in Central America,
accompanied by some glirnmers of hope that peace may still be achievable. A
grim race is under~vayin Ceniral America between the escalarion of violenceund
rhe pursuir of peace. Initiatives are needed now to break the cycle of despair.
Central America niust be helped to move toward peace.
A plan for peacc in Central Arnerica must address six different but intercon-
nected orohlems: (1)Central Arnerica'sentanelement witb the East-WestconRict:
(2) ihe growing dangcr ol'intcr-\iate mars in Cenird America, a dangcr ihat has

alrcady siartcd a rcg~onalarms rxe; (3) c~tern~ilaid to iosurgenis in the regii)n;
(41 the civil itrifc within Ccniral Amcrica's nations. (5) ihe human sulTcrin~or
ihévictims of violence; and (6) the underlying soci~l,'economic, and poliGcal
problems that both cause and exacerbate Central America's seething tensions.
None of these six problerns can be fully and finally resolved without facing
the others. But they are separate questions, and they are best analyzed and
approached as such.

TheEa.sr-WestDimension

Tube sure. there is an Eusr-Wesrdimensionto evenrsin Cenrrul

.. . They must understand that further escalation of violence will bring new
dangers. And they know that if the wars are not to widen, they needIo be stopped. ANNEXESTO THE MEMORIAL 461

Srrengrhening Conradoro

We~ ~ ~ ~ ~ ~~n~s ~f~the las1 vear have shown that the Conradorainirialive
affordsihebesrchonce for buil&~i~eace in CentralAmerica. The four Contadora
nations have some influenceand leverage in Central America but are not widely
reearded as interventionist or intrusivë. Each of the Contadora countries k
committed to helping bring peace to the Central American isthmus. Their efforts

have been cautious, to be sure. The four Contadora countries have somewhat
diiïerent perspectives and priorities; they have encountered some resistance at
home and in the region, as well as mixed signals from the United States; and
the conflicts in Central America they seek to mediate seem intractable. It is
unlikely, however, that any better avenue will be found for bringing external
influence for Face to bear on the Central American conflicts.
We cal1 upon the Contadora presidents to redouble their eiïorts in Central

America. We hop they will give their personal and prompt attention to the
reports now emerging from the Contadora-initiated working groups on security,
political, and economic-social matters. If these reports warrant, we recommend
that the Contadora presidents discuss next steps not only with the Central
American presidents but, in separate meetings, with the presidents of the United
States and of Cuba.

We urge the other nations of the Americas to make clear their readiness to
support the Contadora process: by political solidarity; by economic assistance
contingent on Central American pcace; and by providing personnel and technical
backing, on request, for peace-keeping measures, verification,and monitoring.
In particular, we urge rhe Covernmentof the UniredSraresro rake concrete
initiativesrofoster peace. Over recent months, the contras have stepped up their

activities with the "covert" support of the United States. The Unired Srares
shouldimmediarelyend supporftor rhemilitary undparu-miliiaryacriviriesof rhe
contras againsrNicaragua. Although some of us think that pas1 pressures may
have influenced Nicaragua to be more conciliatory, we believe that further
support for them is unjustifiable. It would be ineffective, counter-productive.
and, in the view of most of us, plain wrong.

TheConradoracounfriesshouldobrainjrm ussurancefs rom CubaandNicaragua
rharneirhercounrrywillprovidemili~aryor . . .

ExhibirK

Chronologyof Nicaragua'sParriciparionin the "Conladora"Process

1. 9 Seorember1983: Nicaraeua siened the Document of Obiectives issued bv
the kontadora Croup. (Seethis Annex, Exhibit D.)
2. 17 Ocrober1983: Nicaragua officially presented to the Contadora Croup a
four-part proposal to establlishlegal bases to guarantee peace and security in
the region. This proposal addressed those portions of the 21 objectives in the

Document of Objectives that related to peace and security issues.Nicaragua's
four proposals consisted of: (1) a draft treaty between Nicaragua and the
United States, (2) a draft treaty hetween Nicaragua and Honduras, (3) a
draft accord between Nicaragua and El Salvador, and (4) a draft treaty for al1 the Central .4merican Republics. (See Nicaragua's Exhihit IX submitted
to the Court inconnection with the 25A~ril 1984hearing .n interim measures.
p. 217, supro.)
3. 1 December 1983: Nicaragua officiallypresented to Contadora, at a meeting
of the Contadora Technical Group in Panama, a proposal addressing the
rest of the 21 points in the Document of Objectives: a Draft Documcnt of
Commitment Cmcerning Militiiry AiTairs,a Draft Declaration and a Draft
Accord to Promote the Economicand SocialDevelopment of Central America.
At the meeting of the Contadora Foreign Ministers held in Washington on
14Novemher 1983,it was agreed that concrete and detailed proposals would
be submitted hy 1 Decemher. Only Nicaragua presented such proposals by
that deadline. (!tee Nicaragua's Exhibit IX submitted to the Court in connec-
lion with the 25 A~nl 1984hearine on interim measures. o. 217. suoro.)
4. 8 Jonuary 1984: ~icara~ua signedutheContadora Statekni on ~éas&es to
be Taken to Fulfill the Commitments Undertaken in the Document of Ohjec-
tives. (Seethis Annex, Exhihit E.)
5. 31 Jonuary to .IOApril 1984: Nicaragua participated fully in the tasks of
the Contadora working commissions, whosework was presented to the Joint
Meeting of Ministers of Foreign Afiairs of the Contadora Group on 30

April 1984.
6. 15 May 1984: 'TheMinisters of Foreign Relations of Nicaragua and Costa
Rica, meeting iriPanama with the Vice-Ministersof Foreign Relations of the
Contadora Grcup, signed a Joint Declaration creating a Commission of
Supervision and Prevention, in an effort to bring an end to tensions and
incidents in the border areas of the two countries. The Commission is to
he made up of representatives of both countries, and will conduct on-site
inspection and verification of facts surrounding events that may give rise to
tensions or border disputes between Nicaragua and Costa Rica. (See this
Annex, Exhibit H.)
7. 26 May 1984: 'TheMinisters of Foreign Relations of Nicaragua and Costa
Rica met at Peiïas Blancas, Nicaragua, with other representativcs of their
respectivegovernments to inaugurale formally thc Commission of Supervision
and Prevention. On 31 Muy 1984, the Vice-Minister of Public Security of
Costa Rica and the Vice-Ministerof Foreign Relations of Nicaragua, signed
the By-laws ofthe Commission. (Seethis Annex, Exhibit 1.)By 18and 19lune
1984,the Conirnission hÿd met four times addressing subjects that included
Commission procedures and methods of improving communication between
the heads of border security forces of both Nicaragua and Costa Rica and
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