INTERNATIONAL COURT OF JUSTICE
Peace Palace, 2517 KJ The Hague. Tel. 92 44 41. Cables: Intercourt. The Hague
Telex 32323
m
unofficial
NO 84/18 for rmmediate release
/ 10 May 1984
Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America)
The International Court of Justice indicates
vrovisional measures
The following information is communicated to the press by the
Registry of the International Court of Justice.
Today, 10 May 1984, the International Court of Justice has made
an Order in the case concerning Military and Paramilitary Activities
in and against Nicaragua, by which:
A. It rejects the request made by the United States of America
that the case be removed from the list and
B. It ind icates the following provisional measures, pending the
final decision;
B.1. The United States of America should immediately cease and
refrain f rom any action restricting access to or from Nicaraguan
ports, and, in particular, the laying of mines;
B.2. The right to sovereignty and to political independence
possessed by the Republic of Nicaragua, like any other State of the
region or of the world, should be fully respected and should not in
any way be jeopardized by any military and paramilitary activities
which are prohibited by the principles of international law, in
particular the principle that States should refrain in their
international relations from the threat or use of force against the
terri tori al integrity or the political independence of any State, and
the principle concerning the duty not to intervene in matters within
the domestic jurisdiction of a State, principles embodied in the
United Nations Charter and the Charter of the Organization of American
States;
B.3. The United States of America and Nicaragua should ensure
that no action is taken which might aggravate or extend the dispute
submitted to the Court;
B.4. The United States of America and Nicaragua should ensure
that no action is taken which might prejudice the rights of the other
Party in respect of the carrying out of whatever decision the Court
may render.
-.-
i- -5. q*
These.. \.* *-34) These decisions were unanimously adopted, except in respect of
paragraph B.2 which was adopted by fourteen votes to one (for details
of the vote and the full text of the operative clause of the Order,
see p. 7).
The Court was composed as follows:
President T.O. Elias, Vice-President J. Sette-Camara, Judges
M. Lachs, P. Morozov, Nagendra Singh, J.M. Ruda, H. Mosler,
S. Oda, R. Ago, A. ~l- ha ni, S.M. Schwebel, Sir Robert Jennings,
G. de Lacharrière, K. Mbaye, M. Bedjaoui.
Judges Mosler and Sir Robert Jennings appended a joint separate
opinion to the Order of the Court. Judge Schwebel, who voted against
paragraph B.2 of the Order, appended a dissenting opinion. (A brief
summary of these opinions may be found in the annex hereto.)
The printed text of the Order and of the opinions will be
available in a few days' time. (Orders and enquiries should be
addressed to the Distribution and Sales Section, Office of the United
Nations, 1211 Geneva 10; the Sales Section, United Nations, New York,
N.Y. 10017; or any specialized bookshop.)
An analysis of the Order is attached for the use of the Press.
It in no way involves the responsibility of the Court. It cannot be
quoted against the text of the Opinion, of which it does not
constitute an interpretation.
Analysis of the Order
Proceedings before the Court (paragraphs 1-9)
In its Order, the Court recalled that on 9 April 1984 Nicaragua
instituted proceedings against the United States of America, in
respect of a dispute concerning responsibility for' military and
paramilitary activities in and against Nicaragua. On the basis of the
facts alleged in its Application, Nicaragua requested the Court to
adjudge and declare (inter alia): - that the United States of America had violated and was
violating its obligations to Nicaragua, under several
international instruments and under general and customary
internat ional law;
- that the United States of America was under a duty to cease and
desist immediately from al1 use of force against Nicaragua, al1
violations of the sovereignty, territorial integrity or
political independence of Nicaragua, al1 support of any kind to
anyone engaged in military or paramilitary actions in or
against Nicaragua, and al1 efforts to restrict access to or
from Nicaraguan ports;
- that the United States of America has an obligation to
pay Nicaragua reparation for damages incurred by reason of
these violations.
On the same day, Nicaragua urgently requested the Court to
indicate provisional measures:
"- That the United States should immediately cease and desist
from providing, directly or indirectly, any support -
including training, arms, ammunition, supplies, assistance,
finances, direction or any other form of support - to any
nation, group, organization, movement or individual engaged or
planning to engage in military or paramilitary activities in
or against Nicaragua;
- That the United States should immediately cease and desist from
any military or paramilitary activity by its own officialç,
agents or forces in or against Nicaragua and from any other use
or threat of force in its relations with Nicaragua."
Shortly after the institution of these proceedings, the United
States of America notified the Registry that it had appointed an Agent
for the purposes of this case and, being convinced that the Court was
without jurisdiction in the case, requested the Court to preclude any
further proceedings and to remove the case from the list (letters of
13 and 23 April 1984). On 24 April, taking into account a letter of
the same date from Nicaragua, the Court decided that it had then no
sufficient basis for acceding to the request of the United States.
Jurisdic tion (paragraphs 10-26)
Declaration of Nicaragua and request for removal from the List made by
the United States (paragraphs 10-21)
Nicaragua claims to found the jurisdiction of the Court to
entertain this case on the declarations of the Parties accepting the
compulsory jurisdiction of the Court under Article 36, paragraph 2, ofthe Statute of the Court, namely the Declaration made by the United
States of America dated 26 August 1946 and the Declaration made by
Nicaragua dated 24 September 1929. Under the system of international
judicial settlement of disputes in which the consent of the States
constitutes the basis of the Court's jurisdiction, a State having
accepted the jurisdiction of the Court by a declaration may rely on
the declaration by which another State has also accepted the
jurisdiction of the Court, in order to bring a case before the Court.
Nicaragua claims to have recognized the compulsory jurisdiction
of the Permanent Court of International Justice by its declaration of
24 September 1929, which, it claims, continues in force and is deemed
by virtue of Article 36, paragraph 5, of the Statute of the present
Court to be an acceptance of the compulsory jurisdiction of that
Courtl.
The United States contends that Nicaragua never ratified the
Protocol of Signature of the Statute of the Permanent Court of
International Justice, that Nicaragua never became a party to the
Statute of the Permanent Court, and that consequently the declaration
by Nicaragua of 1929 never came into force and that Nicaragua cannot
be deemed to have accepted the compulsory jurisdiction of the present
Court by virtue of Article 36 of its Statute. The United States
therefore requests the Court to preclude any further proceedings and
to remove the case from the list.
For its part, Nicaragua asserts that it duly ratified the
Protocol of Signature of the Statute of the Permanent Court, and sets
forth a number of points in support of the legal validity of its
declaration of 1929. The two Parties explained their arguments at
leng th during the oral proceedings.
The Court finds that in this case, the question is whether
Nicaragua, having deposited a declara tion of accep tance of the
jurisdiction of the Permanent Court, can claim to be a "State
accepting the same obligation" within the meaning of Article 36,
paragraph 2, of the Statute, so as to invoke the declaration of the
United States. As the contentions of the Parties disclose a "dispute
as to whether the Court has jurisdiction", the matter has to be
settled by the decision of the Court, after having heard the Parties.
The Court is therefore unable to accede to the United States' request
summarily to remove the case from the list.
Declaration ...
Under Article 36, paragraph 5, of the Statute of the Court, a
declaration made pursuant to the Statute of the Permanent Court which
is "still in force" is to be deemed, as between the Parties to the
Statute, to be an acceptance of the jurisdiction of the International
Court of Justice for the period which it still has to run.Declaration of the United States (paragraphs 22 and 23)
The United States also dispute!; the jurisdiction of the Court in
this case by relying on a declaration which it deposited on 6 April
1984, referring to its 1946 Declaration, and providing that that
Declaration "shall not apply to disputes with any Central American
State or arising out of or related ro events in Central America" and
that it "shall take effect immediately and shall remain in force for a
period of two years". Since the dispute with Nicaragua, in its
opinion, clearly falls within the terms of the exclusion in the
declaration of 6 April 1984, it conçiders that the 1946 Declaration
cannot confer jurisdiction on the Court to entertain the case. For
its part, Nicaragua considers that the declaration of 6 April 1984
could not have modified the 1946 Deelaration which, not having been
validly terminated, remains in force.
Conclusion (paragraphs 24-26)
The Court observes that it ought not to indicate provisional
measures unless the provisions invoked by the Applicant appear,
prima facie, to afford a basis on wlhich its jurisdiction might be
founded. It does not now have to determine the validity or invalidity
of the declaration of Nicaragua of 24 September 1929 and, the question
whether or not Nicaragua could thus rely on the United States
Declaration of 16 August 1946, or the question whether, as a result of
the declaration of 6 April 1984, the Application is excluded as from
this date from the scope of the United States acceptance of the
compulsory jurisdiction of the Court. It finds that the declarations
deposited by the two Parties respectively in 1929 and in 1946
nevertheless appear to afford a basis on which the jurisdiction of the
Court might be founded.
Provisional Measures (~araera~hs 27-40)
The Order sets out the circumstances alleged by Nicaragua as
requiring the indication of provisional measures, and the material it
has provided to support its allegations. The Government of the United
States has stated that the United States does not intend to engage in
a debate concerning the facts allegled by Nicaragua, given the absence
of jurisdiction, but it has admitted no factual allegations by
Nicaragua whatever. The Court had available to it considerable
information concerning the facts of the present case, including
officia1 statements of United States authorities, and has to consider
whether the circumstances drawn to its attention require the
indication of provisional measures, but it makes it clear that the
right of the respondent to dispute the facts alleged must remain
unaf fected by its decision.
After setting out the rights which, according to Nicaragua,
should be urgently protected by the indication of provisional
measures, the Court considers three objections raised by the United
States (in addition to the objection relating to jurisdiction) against
the indication of such measures.
First.. . First, the indication of provisional measures would interfere
with the negotiations being conducted in the context of the work of
the Contadora Group, and would directly involve the rights and
interests of States not Parties to this case; secondly, these
negotiations constituted a regional process within which Nicaragua is
under a good faith obligation to negotiate; thirdly, the Application
by Nicaragua raises issues which should more properly be committed to
resolution by the political organs of the United Nations and of the
Organization of American States.
Nicaragua disputes the relevance to this case of the Contadora
process - in which it is actively participating -, denies that its
claim could prejudice the rights of other States, and recalls previous
decisions of the Court, by virtue of which, in its opinion, the Court
is not required to decline to undertake an essentially judicial task
merely because the question before it is intertwined with political
questions.
The Court finds that the circumstances require that it should
indicate provisional measures, as provided by Article 41 of the
Statute, in order to p,reserve the rights claimed. It emphasizes that
its decision in no way prejudges the question of its jurisdiction to
deal with the merits of the case and leaves unaffected the right of
the Government of the United States and of the Government of Nicaragua
to submit arguments in respect of such jurisdiction or such merits.
For these reasons, the Court gives the decision of which the
complete text is annexed hereto. '
Operative ... Operative part of the Order
The COUR?,
A. Unanimously,
rejects the request made by the United States of America that the
proceedings on the Application filed by the Republic of Nicaragua on
9 April 1984, and on the request filed the same day by the Republic of
Nicaragua for the indication of provisional measures, be terminated by
the removal of the case from the list;
B. Indicates, pending its final decision in the proceedings
instituted on 9 April 1984 by the Republic of Nicaragua against the
United States of America, the following provisional measures:
1. Unanimously,
The United States of America should immediately cease and refrain
from any action restricting, blocking or endangering access to or
from Nicaraguan ports, and, in particular, the laying of mines;
2. By fourteen votes to one,
The right to sovereignty and to political independence possessed
by the Republic of Nicaragua, like any other State of the region
or of the world, should be fully respected and should not in any
way be jeopardized by any military and paramilitary activities
which are prohibited by the principles of international law, in
particular the principle that States should refrain in their
international relations from the threat or use of force against
the territorial integrity or the political independence of any
State, and the principle concerning the duty not to intervene
in.. .
*
Composed as follows: --resident Elias; Vice-President Sette-Camara;
Judges Lachs, Morozov, Nagendra Singh, Ruda, Mosler, Oda, Ago, El-Khani ,
Schwebel, Sir Robert Jennings , d.e Lacharrière, Mbaye, Bedjaoui. in matters within the domestic jurisdiction of a State,
principles embodied in the United Nations Charter and the Charter
of the Organization of American States.
FOR: President Elias; Vice-President Sette-Camara;
Judges Lachs, Morozov, Nagendra Singh, Ruda, Mosler, Oda, Ago,
El-Khani, Sir Robert Jennings, de Lacharrière, Mbaye, Bedjaoui.
AGAINST: Judge Schwebel.
3. Unanimously,
The Governments of the United States of America and the Republic
of Nicaragua should each of them ensure that no action of any
kind is taken which might aggravate or extend the dispute
submitted to the Court.
4. Unanimously,
The Governments of the United States of America and the Republic
of Nicaragua should each of them ensure that no action is taken
which might prejudice the rights of the other Party in respect of
the carrying out of whatever decision the Court may render in the
case.
C. Unanimously,
decides further that, until the Court delivers its final judgment in
the present case, it will keep the matters covered by this Order
continuously under review.
D. Unanimously,
decides that the written proceedings shall first be addressed to the
questions of the jurisdiction of .the Court to entertain the dispute and
of the admissibility of the Application;
And reserves the fixing of the time-limits for the said written
proceedings, and the subsequent procedure, for further decision. --nex to press communiqué 84118
Summary of opinions appended to
the ordcr of tlic Court
---A - -- - --
Separate opinion of ,Judges !<[oslei and Sir Robert Jennings
Judges Mosler and Jennings, In a separate opinion, emphasised that the
duties to refrain £rom illegal use of force or threat of force, and £rom
intervention in the affairs of another State, are duties which apply to
Nicaragua as well as to the Uiii ted States; and that both States are under an
obligation to pursue negotiations in good faith in the context of regional
arrangement S.
--)issenting opini---Pm--of Judge Schwebel
Judge Schwebel voted in favour of the Court's rejection of the United States
reques t to dismiss Nicaragua's case on jurisdictional grounds, and voted as well
for the Court's indication that the United States should not restrict access to
and £rom Nicaraguan ports, particularly by mine-laying. He "emphatically"
dissented £rom the provision of the court:'^ Order holding that the right to
sovereignty and to political independerice possessed by Nicaragua "should be
fully respected and should riot in any way be jeopardized by any military or
paramilitary activities which are prc~hibited by the principles of international
law". Judge Schwebel characterized tliat provision's "emphasis upon the rights
of Nicaragua - in a case in w11ich Nicaragua itself is charged with violating
the territorial integrity and political iiidependence of its neighbours" - as
"unwarranted" and "incompati bl e wi tli ttir principles of equality of States and
of collective securi ty" .
Judge Schwebel observed that the charges advanced by the United States
against Nicaragua were "O€ a gravity no less profound" than the charges of
Nicaragua against the LTnited States, and that like charges had been made
against Nicaragua by E 1 Çalvadcir, Honduras and Costa Rica. Those three Central
American States were not parties to tliis case. Nevertheless, claims that
Nicaragua is violating their security may properly be made by the United States
and acted upon by the Court. For the rights at issue in the case "do not
depend", Judge Schwebel he ld, "iipon nai-row cons iderat ions of privi ty to a
dispute before the Court. 'Chey depend upon the broad considerations of
collective security". Every State lias "a legal interest" in the observance of
the principles of ccillective security. The United States accordingly was
justified in invoking before the Court what it saw as wrongful acts of
Nicaragua against other Central American States "not because it can speak for
Costa Rica, Honduras and El Salvador but because the alleged violation by
Nicaragua of their security is a violation of the secyrity of the United tat tes".
Judge Schwebel declared that he irlt able to vote for the provision of
the Court's Order cclncerning rnine-laying - which is addressed only to the
United States - because the United Staies had not alleged before the Court that
Nicaragua is mining the ports and waters of foreign States.
Judge Schwebel supported tlie (:0ilrt \ rej ection of the United States
challenge to jurisdi ction hecause, at tlie stage of indication of provisional
measures, al1 Nicaragua had to do was to inake out, prima facie, a basis on
which the Court's juri sdictiori inight he foilnded.
- The International Court of Justice indicates provisional measures
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) - The International Court of Justice indicates provisional measures