Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) - Opening of the public hearings

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IN ATKZN' O F JU L ST - Im E
Peace Palace, 25117KJ The Hague. Tel. 92 44 41. Cables: Intercourt.The Hague

Telex 32323

Communiqué

No. 84/32
8 October 1984

Military and Para.military Activities in and against Nicaragua
(Nicaragua v. -nited States of America)

The following information is made available to the press by the
Registry of the International Court of Justice:

On 8 October 1984 at 3.00 p.m. the International Court of Justice
commenced its public hearings on the case concerning Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America) in the Great Hall of Justice of the Peace Palace. In the
course of these hearings, the Court will consider the oral arguments
put forward firstly by Nicaragua and then by the United States, regarding
the questions ofwhether it has jurisdiction to decide on the merits of the
caseandwhether the application filed by Nicaragua against the United States
is admissible. At this initial hearing, Nicaragua, by agreement of the
Parties, as approved by the Court, began to present its arguments.

nominatedthebybNicaraguaof to takehepart inMrthe case,llimade thethsolemne ad hoc

declaration required by Article 20 of the Statute of the Court.
Mr. Colliard's biography is attached.

Before giving the floor to the Agent of Nicaragua, the President
of the Court read out: the operative part of the Order that had been
adopted by the Court on 4 October 1984 regarding the Declaration of
Intervention by El Salvador (cf. Press communiqué No. 84130) .

The operative pirovisions of the Order are as follows:

"The Court .,

(i) By nine votes to six,

Decides not to hold a hearing on the Declaration of Intervention
of the Republic of El Salvador,

IN FAVOUR: President Elias; Vice-President Sette-Camara;
Judges Lachs, Morozov, Nagendra Singh, Oda, El-Khani,
Mbaye , B,edjaoui.

AGAINST: Judges Ruda, Mosler, Ago, Schwebel, Sir Robert Jennings,
de Lacharr ière .

(ii) By. .. (ii) By fourteen votes to one,

Decides that the Declaration of Intervention of the Kepublic
of El Salvador is inadmissible insofar as it relates to the present
phase of the proceedings instituted by Nicaragua against the United
States of America.

IN FAVOUR: Pres--ent Elias; Vice-President Sette-Camara;
Judges Lachs, Morozov, Nagendra Singh, Ruda, Mosler, Oda,
Ago, El-Khani, Sir Robert Jennings, de Lacharrière, Mbaye,
Bedj aoui .

AGAINST: Judge Schwebel."

Judges Nagendra Singh, Oda and Bedjaoui appended separate opinions
to the Order; Judges Ruda, Mosler, Ago, Sir Robert Jennings and
de Lacharrière appended a joint separate opinion and Judge Schwebel

appended a dissent ing opinion.

A brie£ account of these opinions is attached. Annex 1 to Press çommuni~ué No. 84/32

Biography of Claude-Albert Colliard

Born in Marseille~ on 14 July 1913.

Doctor of Laws in 1938, Doctor of Literature.

--régé of the Faculties of Law (public law) in 1945.

Professor of international law at the Faculty of Law of Grenoble in

1946; Dean of that faculty from 1952 to 1955, 1955 to 1958 and 1958 to 1959.

Professor at the Faculty of Law and Economic Science of Paris
£rom 1959 to 1971. Dean's Assessor £rom 1967 to 1971. Professor at the
Université Paris 1 Panthéon Sorbonne from 197 1 onwards. Director of the

Department (UER) "Développement, 6tiides internationales et comparatives"
£rom 1971 to 1982. lJrofessor Eincritiis of the Universit6 Paris 1. Ilon«r:~ry Dean.
Director of the Centire d'étude5 et de recliercties de droit iiitcrn<it ioii:il f I'ii-it;T
Professor at the Institute of Pol itic.31 Studies in Paris.

Member of the Iristitute of International Law. Member of the Société
française de droit international. Memher of the Académie astronautique
internationale. Vice-Chairman of the International Association of
Constitutional Law. Honorary doctorates £rom the IJniversities of Lodz
(Poland), Fribourg (Switzerland) and Belgrade (Yugoslavia).

Various teaching posts (as guest professor) at foreign Universities:
Algeria, Morocco, Tunisia, Cameroon, Madagascar, Egypt, Turkey, Yugoslavia,
Romania, Czechoslovakia, Poland, United Kingdom, Canada, Mexico, Chile,
Belgium and Iran. Took part in nurnerous colloquia, seminars and

scientific meetings in Algeria, Egypt, Yugoslavia, Czechoslovakia, USSR,
Poland, Mexico, Chile, Canada.

Courses at The 1-Iague Academy of International Law:

In 1968: Internaitional rivers; in 1976: General Course on Public
International Law.

Chairman of the jury d'agrégation de droit public in 1974. Chairman
of the jury for the admission to the Ecole nationale d'administration

in 1981.

Member of the French delegation to the United Nations General Assembly
(1953 and 1954) Sixth Committee. Member of the French delegation to the
Third Conference on the Law of the Sea in 1981 and 1982. French
representative (head of delegation) on the United Nations Commission of

Human Rights (1982, 1983, 1984). Member of the Committee of Tndependent
Experts set up by Unesco in 1972 on the problems of aiidin-visiial communications.
A Consultant to OECD in 1976 and 1977.

Member of the group of eleven legal experts of Intelsat to settle
disputes (elected in 1976 and again in 1978, 1980 and 1983). Author of several works on public internat ional lnw and public
munici al law, in particular: Institutions des relations internati-onales,

the 8" edition of vhich is in course of publication (translated into
Spanish and Russian). Libertés publiques, 6th edition, 1983. Author of
more than one hundred articles on international law, European law,
administrative law, consti-tutional law and financial law.

Appeared before the Court as Counsel in the case concerning the
Continental Shelf (TunisiajLibyan Arab Jamahiriya) and took part in
the stage of the proceedings - concerning the Italian ap.-ication for
permission to intervene in the case concerning the -Co--inental Shelf
(Libyan Arab JamahiriyaIMalta).
-- - Annex 2 to Prrss rommuniau6 No. 841'12

Sumary of opin-ons appended to---p.- Order o-- --- Co-r---

Separate opinion by Judge Nagendra Singh

In his separate opinion Judge Nagendra Singh pointed out that since
El Salvador's Declaration to Intervene at this stage of the proreedings
really pointed to merits of the case and if a hearing was granted now there

would inevitably be arguments on merits of the case wliich would lead to
two hearings on merits - the first now and the second if and when the Court
deals with the merits of the case. This would be confusing and undesirable
as well as untenable. The Court, therefore, has put tliings in their proper
order and sequence and noted the intention of El Salvador to intervene at

the next phase of the case if and when the Court considers the merits of
the dispute. El Salvador has therefore not had a raw deal, as it were,
because the Court has kept alive the righrof intervention whicli could be
examined at the subsequent phase of the case. Ttiere was no point in givinp,

a hearing at the present phase when the Court liad by 14:1 corne to the
conclusion that the intervention of El Salvador was inadmissible. In the
circumstances El Salvador will be heard at the proper tinie, taking into
consideration the reasoning and arguments that had been srihmit ted to the
Court by El Salvador in support of their intervention.

Joint separate opinion by Judges Ruda, Mosler, Ago, S-r Robert Jennings
and de Lacharrière

Judges Ruda, Mosler, Ago, Sir Robert Jennings and de Lacharrière
appended a joint separate opinion to the effect that, although agreeing

with the Court that El Salvador's Declaration of Intervention is
inadmissible at the present stage of the proceedings, they are of the
opinion that it would have been more in accordance with judicial propriety
if the Court had granted a hearing to the State seeking to intervene.Separate Opinion by Judge Oda

Judge Oda considered that El Salvador's Declaration of Intervention

of 15 August 1984 was vague and did not appear to satisfy the requirements
of Article 82 -(b) and -(c) of the Rules of Court for an intervention at the
present stage, but it was later supplemented by its communications of

10 and 17 September which might meet the terms of Article 82. To his
regret, the Court, which only had before it the views of Nicaragua and the
United States on the first submission of El Salvador, did not ascertain

their views on the two subsequent communications from El Salvador, in
particular on the admissibility of El Salvador's intervention at the
j ur isd ic t ional stage .

ri'
If Nicaragua's observations had been interpreted, as Ji~dge Oda
believed they should,as objecting to El ~alvador's intervention at that
stage, Article 84, paragraph 2, would have clearly applied. He voted

against a hearing only because liis interpretatioti of thc Coiirt 's view was
that Nicaragua had not objected.

Judge Oda also regretted that 8 October Iiad alrendy heen f ixed for
the commencement of the oral liearings between Nicaragua and the United States,
even before the Court met to deal witli El Salvador's Declaration on

4 October. In fact, El Salvador's request for an oral hearing and the
admissibility of its intervention at the present jurisdictional stage were
both dealt with on 4 October, after only one dny's deliberations.

Had it not been for the above, El Salvador's Declaration might well
have been the first case of intervention under Article 63 of the Statute

to be considered by the Court at a jurisdictional phase of a case.

Se~arate o~inion bv Jud~e Bediaoui

Judge Bedjaoui indicated that in his opinion one could not be in
favour of dismissing the request for intervention and at the same time
in favour of holding a hearing in order to examine siich a request. Since

the Court had reached the conclusion that El Salvador's rcquest for
intervention was inadmissible, the holding of n hearing no longer logically
had an object. Dissenting opinion by Judge Schwebel

Judge Schwebel dissented from the Court's Order on two grounds. He
maintained that the decision of the Court not to hold a liearing on the

declaration of El Salvador was a departure from the due process of law
which the Court has traditionally observed. He Toncluded tliat, while the
matter was not altogether clear, El Salvador was entitled to intervene,

and that, once the Court had declined to hear El Salvador, any doubts
should have been reçolved in favour of the admissibility of its declaration
of intervent ion.

Judge Schwebel interpreted EL Salvador's derlaration as a request to
intervene on the construction of articles of the Statute of the Court,

the United Nations Charter and three inter-American treaties, as well as
of declarations submitted to the Court under its Statiite accepting its
compulsory jurisdiction. In his view, Nicaragua, while purporting not to

object to El Salvador's intervention, had raised object ions whicti required
a hearing under the macdatory provision of Article 84(2) of the
Court's Rules, which provides that, if an objection is f iled to the

admissibil ity of a cleclaration of intervention, "the Court sliall hear
the State seeking to intervene and the parties before deciding". He
maintained that El Salvador's declaration was admissible, first, because

intervention under Article 63 of the Court's Statute may take place at
a jurisdictional stage, and, second, becaiise it may relate to the
construction of conventions which include the United Nations Charter

and the Court's Statute as well as the inter-American treaties which
El Salvador had cited. If declarations adhering to the Court's
compulsory jurisdiction were not to be treated as conventions, then the

Court should have barred only that aspect of El Salvador's intervention.