D ECLARATION OF VICE -PRESIDENT Y USUF
Territorial integrity Territorial sovereignty Parties’ claims of violation of territorial
integrity not adequately addressed Inviolability of boundaries as a basic element of territorial
integrity Inviolability not conditional on the use or threat of force Territorial integrity
breached by incursions Lack of emphasis on territorial integrity inconsistent with Court’s case
law.
1. While I agree with the decision of the Court and have voted for all the operative
paragraphs, I feel obliged to address briefly in this declaration some issues which the Court did not,
in my opinion, deal adequately with in the reasoning of the Judgment, particularly as regards the
principle of respect for the territorial integrity of States which was invoked by both Parties in their
final submissions to the Court (see Judgment, paragraph 49).
2. The Court deals with certain aspects of these submissions in paragraphs 91 to 93 and
concludes that “[s]overeignty over the disputed territory . . . belongs to Costa Rica” (paragraph 92)
and that, as a consequence, the various activities carried out by Nicaragua in the disputed territory
“were in breach of Costa Rica’s territorial sovereignty” (paragraph 93). In a situation where both
Parties have clearly invoked the principle of respect for the territorial integrity of States, and the
obligations arising therefrom, I find the reasoning of the Court to be rather inadequate and too
economical.
3. Generally speaking, it is my view that the reasoning of the Court should not only be
explicit, but should amply elaborate on the rules and principles of international law which are in
contention in a dispute submitted to it, particularly when such principles or rules are of
fundamental importance not only for the Parties but also for the international community as a
whole. As the principal judicial organ of the United Nations, the function of the Court is not only
to “decide in accordance with international law such disputes as are submitted to it”, but also, in the
exercise of such judicial functions, to contribute to the elucidation, interpretation and development
of the rules and principles of international law. To this end, the Court must engage in a considered
elaboration of such principles as they apply in a factual context to the case before it.
4. Both Costa Rica and Nicaragua refer in their final submissions to the “obligation to
respect the sovereignty and territorial integrity” of the other (Judgment, paragraph 49); while the
Court both in its conclusions and in the second operative paragraph of its decision refers to the
“violation of the territorial sovereignty of Costa Rica”. I believe that the Parties chose to refer
specifically to “territorial integrity” to denote an intrusion by the other Party of a portion of
territory, albeit small, which each of them claimed to be its own. By taking the approach it has, the
Court has failed to engage with the Parties’ claims of violations of territorial integrity due to
incursions or other measures of force. The inviolability of boundaries is indeed a basic element of
the broader principle of territorial integrity and the Court should have squarely confronted this
issue in the present Judgment.
5. As clearly stipulated in Article 21 of the Charter of the Organization of American States:
“The territory of a State is inviolable. It may not be the object, even temporarily, of military
occupation or of other measures of force taken by another State, directly or indirectly, on any
grounds whatever.” The Court regrettably decided not to comment upon or pronounce itself on the
legal consequences of this fundamental rule in light of its factual findings in this case. - 2 -
6. The United Nations Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among States (General Assembly resolution 2625 (XXV)), which the
Court considers to be declarative of customary international law, sheds more light on the concept of
inviolability and suggests that violations of territorial integrity are prohibited independently of
considerations of the use of force. In other words, a State might violate the customary rule on
territorial inviolability without breaching the prohibition on the use of force.
7. The first principle of the declaration provides that “States shall refrain in their
international relations from the threat or use of force against the territorial integrity or political
independence of any State or in any manner inconsistent with the purposes of the United Nations”.
The eighth subparagraph of the first principle provides that the “organizing or encouraging the
organization of irregular forces or armed bands including mercenaries, for incursion into the
territory of another state” is prohibited.
8. Whilst the other sub1aragraphs of the first principle link the legality of the action to the
use or threat of use of force , the eighth paragraph does not. This suggests that the organization of
irregular forces or armed bands for incursion into the territory of another State breaches the
territorial inviolability of that state, whether or not those forces actually use or threaten to use force.
It must a fortiori be the case that sending armed forces, even though small in number, onto the
territory of another state breaches territorial inviolability, whether or not those forces use or
threaten to use force.
9. Moreover, under paragraph (d) of the sixth principle, “the sovereign equality of States”,
the Declaration states that: “[t]he territorial integrity and political independence of the State are
inviolable”. Unlike the first principle, this provision does not generally link the inviolability of
territory to the use or threat of use of force. Instead, the territorial inviolability of the State
flows directly from the sovereignty of a State. This reflects the approach taken in the
Helsinki Declaration of the CSCE, which also recognizes the territorial integrity of States as
inviolable, whether or not such violation stems from the use of force:
“The participating States will respect the territorial integrity of each of the
participating States.
Accordingly, they will refrain from any action inconsistent with the purposes
and principles of the Charter of the United Nations against the territorial integrity,
political independence or the unity of any participating State, and in particular from
any such action constituting a threat or use of force.” (Helsinki Declaration,
Sec. (a) (IV); emphasis added.)
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For example, the first subparagraph provides that:
“Every State has the duty to refrain in its international relations from the threat or use of force
against the territorial integrity or political independence of any State, or in any other manner inconsistent
with the purposes of the United Nations. Such a threat or use of force constitutes a violation of
international law and the Charter of the United Nations and shall never be employed as a means of
settling international issues.” - 3 -
10. The Court in its case law has described the principle of territorial integrity as “an
essential foundation of international relations” (Corfu Channel (United Kingdom v. Albania,
Merits, Judgment, I.C.J. Reports 1949, p. 35) and as “an important part of the international legal
order” (Accordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010 (II), p. 437, para. 80). The Court has
also previously clearly stated that the principle “is enshrined in the Charter of the United Nations,
in particular in Article 2, paragraph 4” (ibid.), as well as in customary international law (Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 424, para. 73). The failure to
recognize as much, and not only to reiterate it, but to emphasize it, is, in my view, manifestly
inconsistent with the Court’s previous case law.
(Signed) Abdulqawi A. Y USUF .
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Declaration of Vice-President Yusuf