Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) - Judgment of the Court

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INTERNATIONAL COURT OF JUSTICE
Peace Palace, 2517 KJ The Hague. Tel44 41 Cables: Intercourt.THague

Telex32323
Communiqué
unofficial
for ~mmediatrslsass

No. 86/8
Post Office Peace Palace 12.30 27 june 1986
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Military and Paramilitary Activi iniesd against
Nicaragua(Nicaraguv a. UnitedStatesof AmerIca)

Judgment of the Court

The followinginformation is communicatetdo the pressby the
Registryof the InternationaC lourtof Justice:

Today, 27 June1986,the Courtdelivered itsJudgment on the
meritsin the case concerning Militaryand Paramilitary Activiti ine
andagainstNicaragua brought by Nicaragua against t heitedStates
of Arnerica.

*

The Courtwas composed for this ca asefollows:

President NagendS rangh; Vice-Presiden te Lacharrière;
Judges LachsR ,uda,Elias,Oda,Ago,Sette-CamaraS ,chwebel,
sir-~obert Jennings,Mbaye, Bedjaoui,Ni, Evensen,
Judgead hoc Colliard. 1-erative part of the Court's Judgrnent

THE COURT

(1) By eleven votes to four,

Decides that in adjudicating the dispute brought before it by the

Application filed by the Republic of Nicaragua on 9 April 1984, the
Court is required to apply the "multilateral treaty reservation"
contained in proviso --l to the declaration of acceptance of
jurisdiction made under Article 36, paragraph 2, of the Statute of the
Court by the Government of the United States of America deposited on
26 August 1946 ;

IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrière;
Judges Lachs, Oda, Ago, Schwebel, Sir Robert Jennings, Mbaye, Bedjaoui and
Evensen; Judge ad hoc Colliard; W

AGAINST: Judges Ruda, Elias, Sette-Camara and Ni.

(2) By twelve votes to three,

Rejects the justification of collective self-defence maintained
by the United States of AmerIca in connection with the militarp and
paramilitary activlêies in and again~t Nicaragua the subject of this

case ;

IN FAVOUR: Prenident Nagendra Singh; Vice-President de Lacharrière;
Judges Lachs, Ruda, Elias, Aga, Sette-Camara,Mbaye, Bedjaoui, Ni and
Evensen; ad hoc Colliard;

AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.

(3) By twelvc vates to three,

Decides that the United Scates of America, by training, arming,

equippkng, ftnancing and ziupplying the --ntra forces or otherwise
encourrzging, aupporting arzd aiding military and paramilitary
activities in and agajnst Nicaragua, has acted, against the Republic
of Niceragua, in breec? of iLs abligation undes customary
international law not t~ intervene in the aftairs of another State;

IN FAVOUc: PresXQent Nag+?ndra Singh; Vice-President de Lacharrière;
----
Judges LaePa, Rua::, tUlas, A~Q, Sette-êi~mara, Mbaye, Bedjaoui, Ni and
Evensen; ad hoc Collit~rd;

AGAINST: J-rc=s .-Ma, Sei;webel. and Sir Robert Jenninge .

C43 Ey... (4) By twelve votes to three,

Decides that the United States of America, by certain attacks on
Nicaraguan territory in 1983-1984, namely attacke on Puerto Sandino on
13 Septenber and 14 October 1983; an attack on Corinto on
10 October 1983; an attack on Potosi Naval Base on 415 January 1984;
an attack on San Juan del Sur on 7 March 1984; attacke on patrol
boats at Puerto Sandino on 28 and 30 krch 1984 ; and an attack on
San Juan del Norte on 9 April 1984; and further by those acts of
intervention referred to in subparagraph (3) hereof which involve the

use of force, has acted, against the Republic of Nicaragua, in breach
of its obligation under customary international law not to use force
against another State;

IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrigre;
Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and
Evensen; Judge ad hoc Colliard ;

AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.

(5) By twelve votes to three,

Decides that the United States of America, by directing or
authorking overflights of Nicaraguan territory, and by the act8
imputable to the United States referred ta in subparagraph (4) hereof,
ha; actcd, againet the Republic of Nicaragua, in breach of its
obligation under custmary international law not to violate the
sovereignty of another State;

IN FAVOüR: President Nagendra Singh; Vice-President de Iacharriere;
Judges Lachs, Ruda, FJias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and
Evensen ; Judge ad hoc Colliard ;

AiGAINST: Judgee Oda , Schwebel and Sir Robert Jennings .

(6) By twelve votes to three,

Decides that, by laying mines in the intemal or territorial
waters of the Republic of Nicaragua during the first months of 1984,
the ünited States of America has acted, against the Republic of
Nicaragua, in breach of its obligations under customary international
law not to use force against another State, not to intervene in ita
affairs, not to violate its sovereignty and not to interrupt peaceful
maritime commerce ;

IN FAVOüR: President Nagendra Singh; Vice-President de Lacharrière;
Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and

Evensen; Judge ad hoc Colliard;

AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.

(7) By. .. (7) By foureeen votes to one,

Decides that, by the acts refexred to in subparagraph (6) hereof,
the United States of America has acted, against the Republic of
Nicaragua, in breach of its obligations undcr Article XIX of the
Treaty of Friendship, Commerce and Navigation between the
United States of America and theRepublic of Nicaragua eigned at

Managua on 21 Janunry 9956 ;

ZH FAVOUR: President Nagendra Singh; Vice-President de Lacharrière;
Judges Lachs, Ruda, ELlias, Oda, Ago, Sette-Camara, Sir Robert Jennings,
Mbaye, Bedjaoui, Ni and Evensen; hdge ad hoc Colliard ;

AGAINST: Judge Schwebel .

(8) By fourteen votes to one,

Decides that the United States of America, by failing to make
known the existence and location of the mines laid by it, referred to
in eubparagraph (6) hereof, has acted in breach of its obligations
under customary international law in this respect;

IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrigre;
Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Schwebel,
Sir RobertJennings, M'baye, Bedjaoui, Ni and Evensen; Judgead hoc
Colliard ;

AGAINST: Judge ûda.

(9) By fourteen votes to one,

-Finds that the United States of America, by producing in 1983 a
manual entitled "Operaciones sicol6gicas en guetra de guerrillas", and
disseminating it to contra forces, has encouraged the commission by
them of acts contrary es generail principles of hiimanitarian law; but
does not find a basia for concluding that any such acts which aay have
ken comitted are imputable to the United States of America as acts
of the ünited States of herfca;

IN FAVOUR: Pm-cldeait Nageaara Singh; Vice-President de Lachsrrière;
Judges Eachs, Ruda, Elias, Ago, Setke-Camara, Schwebel,
Sir Robert Jennings, Mùaye, Bedjaoul, Ni and Evensen; Judge ad hoc
Colli ad ;

Decides tliiatthe United Sratee of America, by the attacks on
Hicarapan territory ref+"rretd eo in giubpa-riiigrapll(4) hereof, and by
defiaring a genersB embnrgo on tnade wieh Nfca~agua on 1 hg 1985, has

coml tted.. .committed acts calculated to deprive of its object and purpose the
Treaty of Friendship, Comerce and Navigation between the Parties
signed at Managua on 21 January 1956;

W FAVOUR: President Nagendra Singh; Vice-President de LacbarriSre;
Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, NI and
Evensen; Judge ad hoc Colliard;

bGAINST: Judges Oda, Schwebel and Sir Robert Jennings.

(11) By twelve votes to three,

Decides that the United States of America, by the attacks on

Nicaraguan territory ,referred to in subparagraph (4) hereof, and by
dedaring a general embargo on trade with Nicaragua on 1 May 1985, has
acted in breach of its obligations under Article XIX of the Treaty of
Friendship, Comerce and Navigation between the Parties signed at Managua
on 21 January 1956 ;

IN FAVOUR: President Nagendra Singh; Vice-Preaident de IacharriCre;
Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, NI and
Evensen; Judge ad hoc Colliard;

AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.

(12) By twelve votes to three,

Decides that the United States of America is under a duty
immediately to cease and to refrain from al1 such acts as may
constitute breaches of the foregoing legal obligations;

IN FAVOUR: President Nagendra Singh; Vice-President de LacharriCre;
Judges Lachs, Ruda, Elias, Ago, Sette-Canara, Mye, Bedjaoui, Ni and
Evensen; Judge ad hoc Colliard;

AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.

(13) By twelve votes to three,

Decides that the United States of America is under an obligation
to make reparation to the Republic of Nicaragua for al1 injury caused
to Nicaragua by the breaches of obligations under customary
international law enumerated above;

IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrière;

Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and
Evenaen; Judge ad hoc Colliard;

AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.

(14) By. .. (14) By fourteen votes to one,

Decides that the United States of America is under an obligation

to make reparation to the Republfc of Nicaragua for a11 injury caused
to Nicaragua by the breaches of the Treaty of Friendship, Commerce and
Navigation between the Parties sfgnedat Managua on 21 Januarg 1956;

IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrière;
Judges Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Sir Robert Jennings,

Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;

AGAINST; Judge SchwebeB.

(15) By fourteen votes to one,

Decidea that the form and amount of such reparation, failing
agreement between the Parties, will be settled by the Court, and
reserves for this purpose the subsequent procedure In the case;

v
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrière;
Judges Iwchs, Ruda, Elias, Oda, Ago, Sette-Camara, Sir Robert Jennings,
Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;

AGAINST: Judge Schwebel.

(16 ) Unanimously ,

Recalls to both Parties their obligation to seek a solution to
their disputes by peaceful means in accordance with international law.

SUMMARY OF THE JUDGHMT

1. ~ualités (paras. 1 to 17)

II. Background to the dispute (paras. 18-25)

III. The non-appearance of the Respondent and Article 53 of the Statute
(paras. 26-31)

The Court recalls that subsequeaC to the delivery of ite Judgment
of 26 November 1984 on the jurisdiction of the Court and the
admissibility of Nicaragua's Application, the United States decided
not to take part in the preeent phase of the proceedinge. 'Ibis
however dses not prevent the Court from giving a decision in the case,
but it hao to du so whiXe respecting the requirements of Article 53 of

the Statute, which provides for the eit~ation &en one a£ the parties
does not appear, The Court's jurisaiction being estsblished, it has
in accordance with Article53 CO uatisfy itself that the ciaim of the
party appearing is well fovnded in fact and law. In thks respect theCourt recalls certain guiding principles brought out in a number of
previous cases, one of which excludes any possibility of a judgment
automatically in favour of the party appearing. It also observes that
it is valuable for the Court to know the views of the non-appearing
party, even if those views are expressed in ways not provided for in
the Rules of Court. The principle of the equality of the parties has
to remain the basic principle, and the Court has to ensure that the
party which declines to appear should not be permitted to profit from
its absence.

IV. Justiciability of the dispute (paras. 32-35)

The Court considers it appropriate to deal with a preliminary
question. It has been suggested that the questions of the use of
force and collective self-defence raised in the case fa11 outside the
limits of the kind of questions the Court can deal with, in other
words that they are not justiciable. However, in the first place the
Parties have not argued that the present dispute is not a
"legal dispute" within the meaning of Article 36, paragraph 2, of the
Statute, and secondly, the Court considers that the case does not
necessarily involve it in evaluation of political or military matters,
which would be to overstep proper judicial bounds. Consequently, it

is equipped to determine these problems.

V. The significance of the multilateral treaty reservation
(paras. 36-56)

The United States declaration of acceptance of the compulsory
jurisdiction of the Court under Article 36, paragraph 2, of the
Statute contained a reservation excluding from the operation of the
declaration

"disputes arising under a multilateral treaty, unless
(1) al1 parties to the treaty affected by the decision are
also parties to the case before the Court, or (2) the
United States of America specially agrees to jurisdiction".

In its Judgment of 26 November 1984 the Court found, on the baeis
of Article 79, paragraph 7, of the Rules of Court, that the objection
to jurisdiction based on the reservation raised "a question concerning
matters of substance relating to the merits of the case" and that the
objection did "not possess, in the circumstances of the case, an
exclusively preliminary character". Since it contained both
preliminary aspects and other aspects relating to the merits, it had

to be dealt with at the stage of the merits.

In order to establirih whether its jurisdiction was limited by the
effect of the reservation in question, the Court has to ascertain
whether any third States, parties to the four multilateral treaties
invoked by Nicaragua, and not parties to the proceedings, would be
"affected" by the Judgment. Of these treaties, the Court considers it
sufficient to examine the position under the United Nations Charter
and the Charter of the Organization of Arnerlcan States.

~300Zn / 7 The... The Court examines the impact of the multilateral treaty
reservation on Nicaragua's claim that the United States has used force
in breach of the two Charters. The Court examines in particular the
case of El Salvador, for whose benefit primarily the United States
claims to be exercising the right of collective self-defence which it

regards as a justification of its own conduct towards Nicaragua, that
right being endorsed by the United Nations Charter (Art. 51) and the
OAS Charter (Art. 21). The dispute 1s to this extent a dispute
"arising under" multilateral treatkes to which the United States,
Nicaragua and El Salvador are Parties. It appears clear to the Court
that El Salvador would be "affected" by the Court's decision on the

lawfulness of resort by the United States to collective self-defence.

As to Nicaragua's claim that the United States has intervened in
its affairs contrary to the OAS Charter (Art. 18) the Court observes
that it is impossible to Say thae a ruling on the alleged breach of

the Charter by the United States would not "affect" El Salvador.

Having thus found that El Salvador would be "affected" by the
decision that the Court would have to take on the claims of Nicaragua
based on violation of the two Charters by the United States, the Court

concludes that the jurisdiction conferred on it by the Unfted States
declaration does not permit it to entertain these claims. It makes it
clear that the effect of the reservation is confined to barring the
applicability of these two multilateral treaties as multilateral
treaty law, and has no further impact on the sources of international

law which Article 38 of the Statute requires the Court to apply,
including customary international law.

VI. Establishment of the facts: evidence and methods employed by the

Court (paras. 57-/4)

The Court has had to determine the facts relevant to the
dispute. The difficulty of its task derived from the marked
disagreement between the Parties, the non-appearance of the
Respondent, the secrecy surrounding certain conduct, and the fact that

the conflict is continuing. On this last point, the Court takes the
view, in accordance with the general principles as to the judicial
process, that the facts to be taken into account should be thoae
occurring up ro the close of the oral proceedings on the merits of the
case (end of September 1985).

With regard to the production of evidence, the Caurt indicates
how the requirements of its Statute - in particular Article 53 - and
the Rules of Court have to be met in the case, on the basis that'the
Court has freedom in estirnaLing the value of the various elemente of

evidence. It has not seen fit to order an enquiry under ktiele 50 of
the Statute. With regard to certain documentary material (press
articles and various books), the Court has treated these with
caution. It regards them not as evidence capable of psoving facts,
but as material which can nevetthelesw contribute to corroborating the

existence of a faet and be taken into account to show whether certain

E3Q02n/8 facts.. .factsare mattersof publicknowledge.
representative of States,sometimeat the highestlevel,the Court

whentheyacknowledgeufactsor conduct unfavourablto-theStateaelue
representedby thepersonwho made them. Withregardto theevidence
of witnessespresentedby Nicaragua £ivewitnesses gaveoral
evidenceand anothera written affidavit oneconsequencoef the
absenceof theRespondentwas that theevidenceof thewitnesseswas
not testedby cross-examination. Thuerthas not treaéeds
evidence anpyartof the testimony whiwchs amereexpression of

opinionas to theprobabilityor otherwiseof theexistenceof a fact
notdirectly knownto thewitness. Withregardin particular to
Courtconsiderssthatitacancertainly retaiesuchpartsof thistthe
evidenceas may be regardeas contraryto the intereetor

contentionsof theStateto whichthewitness has allegiance;for the
rest suchevidencehas to betreatedwithgreat reserve.
The Courtis alsoawareof a publicatioof theUnitedStates

StateDepartment entitled "RevoluB tionnd OuBorders,Sandinista
in any formor mannercontemplatebdy theStatuteandRulesof Court.
The Courtconsiders thati,n viewof thespecial circumstanc esthi~
case,it may, within limitms,ke useof informatioinn that

publication.

VII.Thefactsimputable to the UniteStates(paras. 75 to 125)

1. TheCourtexaminestheallegations of Nicaraguthatthe
miningof Nicaraguanports orwaters wascarriedoutby UnitedStatee

countriës-itnhepay of theUnitedStates.na~fterexaminingthefacts,
the Courtfindsit éstablishedthat,on a datein late1983or early

Government agencto layminesin Nicaraguan ports;athatin earlya
1984mineswerelaidin or closeto the porto sfEl Bluff,Corintoand
PuertoSandino,eitherin Nicaraguaninterna1watersor in ite
territorialseaor both, by personsin thepayandactingon the
instructionosf thatagency,underthesupervisioa nndwiththe
logisticsupportof UnitedStates agents; thatneitherbeforethe
layingof themines,nor subsequently,did the UnitedStates
Government issuany public andofficia1 warninto international
shippingof the existencaend locatioof the mines; and that
persona1and materialinjurywas causedby theexplosionof themines,
which alsocreatedrlskscausinga risein marine insuranc rates.

2. Nicaraguattlributeto the directactionof UnitedStates
or personsin itspay,operations against oil
installations ,navalbase,etc.,listedin paragraphglof the
Judgment. The Courtfindsal1 theseincidentsexceptthree,to be

established...established. Although it is not proved that any United States
military personnel took a direct part in the operations, United States
agents participoted in the planning, direction and support. The
imputability to the United State~ of theae attacka appears therefore

to the Court to be established,

3. Nicaragua clamplains of infsingement of its air space by
United States military aircraft. After indicatinn the evidence
available, the Court finds that the only violations of Nicaraguan air
space imputable to the United States on the basis of the evidence are
high altitude reconnaissance flights and lm altitude flights on
7 to 11 November 1984 causing "sonic booms".

With regard to joint military manoeuvres with Honduras carried out

by the United States on Honduran territory near the ~onduras/Nicaragua
frontier, the Court considers that they may be treated as public
knowledge and thus sufficiently established.

4. The Court then examines the genesis, development and
activities of the contra force, and the role of the United States in
relation to it. According to Nicaragua, the United States "conceived,
created and organized a mercenary army, the contra force". On the

basis of the available information, the Court is not able to satisfy
itself that the Respondent State "created" the contra force in
Nicaragua, but holds it established that it largely financed, trained,
equipped, armed and organized the FDN, one element of the force.

It is claimed by Nicaragua that the United States Government
devised the strategy and directed the tactics of the contra force, and
provided direct combat support for its military operations. In the
light of the evidence and material available to it, the Court ia not

satisfied that al1 the operations launched by the contra force, at
every stage of the confliet, reflected strategy and tactics solely
devised by the United States. It therefore cannot uphold the
contention of Nicaragua on thla point. The Court however finds it
clear that a number of operations were decidcd and planned, if not
actually by United States advisers, then at least in close
collaboration with them, and on the basis of the intelligence and
logistic support which the United States was able to offer. It is
aleo established in the Court's view that the support of the
United Statea for the activitiea of the contras took various forms
over the years, such as loglstic support, the supply of information on

the location and movements of the Sandinista troops, the use of
sophisticated merhods oL'communication, etc. Xhe evidence does not
however warrant a finding that the United States gave direct combat
support, Zf that is taken to mean direct intervention by United States
combat forces.

The Court has to determine whether the relatiouship of the
contras to the United States Goverriment was suchthat le woald be
right to equate the rontrns for legalpurposes, with an organ of the
United States Gove~ment, or as acting on behalf 06 tht Government.The Court considers that the evidence available to it is insufficient
to demonstrate the total dependence of the contras on United States
aid. A partial dependency, the exact extent of which the Court cannot
establish, may be inferred from the fact that the leaders were
selected by the United States, and from other factors such as the

organization, training and equipping of the force, planning of
operations, the choosing of targets and the operational support
provided. There is no clear evidence that the United States actually
exercised such a degree of control as to justify treating the contras
as acting on its behalf.

5. Having reached the above conclusion, the Court takes the view
that the contras remain responsible for their acts, in particular the
alleged violations by them of humanitarian law. For the United States

to be legally responsible, it would have to be proved that that State
had effective control of the operations in the course of which the
alleged violations were committed.

6. Nicaragua has complained of certain measures of an economic
nature taken against it by the Government of the United States, which
it regards as an indirect form of intervention in its interna1
affairs. Economic eid was suspended in January 1981; and terminated
in April 1981, the United States acted to oppose or block loans to

Nicaragua by international financial bodies; the sugar import quota
from Nicaragua was reduced by 90 percent in September 1983; and a
total trade embargo on Nicaragua was declared by an executive order of
the President of the United States on 1 May 1985.

VIII. The conduct of Nicaragua (paras. 126-171)

The Court has to ascertain, so far as possible, whether the
activities of the United States complained of, claimed to have been

the exercise of collective self-defence, may be justified by certain
facts attributable to Nicaragua.

1. The United States has contended that Nicaragua was actively

supporting armed groups operating in certain of the neighbouring
countries, particularly in El Salvador, and specifically in the form
of the supply of arms, an accusation which Nicaragua has repudiated.
The Court first examines the activity of Nicaragua with regard to
El Salvador.

Having examined various evidence, and taking account of a number
of concordant indications, many of which were provided by Nicaragua
itself, from which the Court can reasonably infer the provision of a
certain amount of aid from Nicaraguan territory, the Court concludea

that support for the armed opposition in El Salvador from Nicaraguan
territory was a fact up to the early months of 1981. Subsequently,
evidence of military aid from or through Nicaragua remains very weak,
despite the deployment by the United States in the region of extensive

technical...technical monitoring resources. I'he Court cannot however conclude
that no transport of or traffic in arms existed. It merely takes note

that the allegations of arms traffic are not solidly established, and
has not been able to satisfy itself that any continuing flow on a
significant scale took place after the early months of 1981.

Even supposing it were estsblished that military aid was reaching
the armed opposition in El Salvador fram the territory of Nicaragua,

it still remains to be proved that sueh aid is imputable to the
authorities of Nicaragua, which hes not sought to conceal the
possibility of weapons crossing its territory, but denies that this is
the result of any deliberate officia1 yolicy on its part. Having
regard to the circumstances characterizing this part of

Central America, the Court considers that it is scarcely possible for
Nicaragua's responsibility for arms traffic on its territory to be
automatically assumed. The Court considers it more consistent with
the probabilities to recognize that an activity of that nature, if on
a limited scale, my very well be pursued unknown to the territorial
government. In any event the evidence is insufficient to satisfy the

Court that the Government of Nicaragua was responsible for any flow of
arms at either period.

2. The United States has also accused Nicaragua of being

responsible for cross-border military attacks on Honduras and
Costa Rica. While not as fully informed on the question as it would
wish to be, the Court considers as established the fact that certain
trans-border military incursions are imputable to the Government of
Nicaragua.

3. The Judgment recalls certain events which occurred at the time
of the fa11 of President Somoza, since reliance has been placed on
them by the United States to contend that the present Govemment of

Nicaragua is in violation of certain alleged --surances given by its
immediate predecessor. The Judgment refers in particular to the "Plan
to secure peace" sent on 12 July 1979 by the "Junta of the Govemment
of National Reconstruction" of Nicaragua to the Secretaxy-Cenersl of
the OAS, mentioning, inter alis, its "firm intention to establish full

observance of human rights in Our country" and "to cal1 the first free
elections Our country ha6 known in this century". The United States
considers that it has a special responsibility regarding the
implementation of these commitments.

IX. The applicable 3aw: customnry international law (paras. 172-1821

The Court has reached the conel.uoion (section V, in fine) that it
has to apply the multflateral treaty reservation in the United States
declaration, the eonsequential exclusion of rnwltilateraP treaties
being without prejudice either to other treaties or other sources of

law enumesated %n Article 38 of the Stotute. In order to deternine
the law actually CO be applied to the dispute, it has to aecertain the
consequences of the exclualon of the appllcability of the multilateral
treaties for the defirition of the content of the cuhtomary
international law which remains appl. cable.

The. *. The Court, which haslready commentebriefly on thisubjectin
the jurisdictiopnhase(I.C.J.Reports1984,pp.424and 425,
para.731,develops its initialremarks. It doesnot considerthatit
canbe claimed,as the UnitedStatesdoes,thatal1 the customary
ruleswhichmay beinvoked hava e content exactly identit cathatof
therulescontained in the treaties which canb noappliedby virtue
of theUnitedStates reservation. Evenif a treatynormanda
customary norm releva totthepresentdisputewereto have exactly
thesamecontent, thiswould not be a reason for theourtto takethe
view that theoperatl.oof the treatyprocessmustnecessarilydeprive
the customarnyormof itsseparate applicability. Consequentthe,
Courtis in noway bsund to upholdcustomaryrulesonlyin so faras
they differ fro thetreatyruleswhichit is prevented by the
UnitedStates reservatio from applying.

In responsto an argumentof the UniteSdtates,the Court
considersthatthedivergence betweenthecontentof the customary
normsand thatof thetreatylawnormsis not suchthata judgment
confinedto the fielodf customaryinternational lawouldnot be
susceptible ofcompli.ancor executioby the parties.

X. Thecontentof theapplicable la( wparas.183to 225)

1. Introduction:generalobservation(sparas.183-1861

TheCourthasnextto consider whatare therulesof customary
lawapplicable to the present disputeForthis purposeithas to
considerwhethera customaryruleexistsin the opinio juri of
States,and satisfyI.tseltfhatit is confirmeby practice.

2. The prohibitioof theuse offorce, and therightof
self-defence(paras.187 to 201)

The Courtfindsthat bothPartiestaketheviewthatthe
principlesas to the useof forceincorporateidn theUnitedNations
Chartercorrespond, in essentiat lsthosefoundin customary
internationallaw. 'ikeytherefore accepattreaty-law obligati ton
refrainin theirinternationarlelations fro mhethreat or usoef
forceagainstthe territorial integri orypolitical independen ofe
any State,or in any othermannerinconsistenwtiththe purposesof
theUnitedNations(Art.2, para. 4, of thecharter).The Court has
howeverto be satisfiedthatthere existisn customary laawn
opinio juriass to thebinding characteof suchabsténtion. It
considersthatthis opinio jurm isy be deducedfrom,interalia,the
attitudeof the Partiesand ofStates towards certain General Assembly
resolutionsa,nd part.icularleysolution 2625XXV)entitled
"Declaratioonn Princ:ipleof Internationalaw concerningFriendly
Relationsand Co-operatioanmongStatesin Accordance witthhe Charter
of the United Nations"C.onsentto suchresolutionsis oneof the
formsof expressionof an opiniojuriswithregardto theprinciple of
non-useof force,regarded as a principlof customaryinternational
law,independentlo yf theprovisions,especiallythoseof an
institutionaklind,t:owhichit is subjecton the treaty-laplaneof
the Charter. The general rule prohibiting force establisheà in customary law
allows for certain exceptions. The exception of the right of

individual or collective self-defence is also, in the view of States,
established in customary law, as is apparent for example from the
terms of Article 51 of the Unitea Nations Charter, which refers to an
"inherent right", and from the declaration in resolution 2625 (XXV).
The Parties, whs con~lder the existence of this right to be

established as a matter of customary international law, agree in
holding that whether the respcnse to an attack is lawful depends on
the observance of the criteria of the necessity and the
proportionality of the measures taken in self-defence.

Whether self-defenee be individuai.
or collective, it can only be
exercised in response to an "armed attack". In the view of the Court,
this is to be understood as meaning not merely action by regular armed
forces across an international border, but also the sending by a State
of armed bands on to the territory of another State, if such an
operation, because of its scale and effects, would have been
classified as an armed attack had it been carried out by regular armed

forces. The Court quotes the definition of aggression annexed to
General Assembly resolution 3314 (xXIX) as expressing customary law in
this respect.

The Court does not believe that the concept of "armed attack"
includes assistance to rebels in the form of the provision of weapons
or logistical or other support. Furthermore, the Court finds that in
customary international law, whether of a general kind or that
particular to the inter-Aaerican legal system, there is no rule

permitting the exercise of collective self-defence in the absence of a
request by the State which is a victim of the alleged attack, this
being additional to the requirement that the State in question should
have declared itself to have been attacked.

3. The principle of non-intervention (paras. 202 to 209)

mie principle of non-intervention involves the riakit of every
sovereign State to conduct its affairs without outs3.de iriterference.
Expressions of an opinio juris of States regarding the existence of

this principle are numerous. The Court notes that this principle,
stated in its own jurisprudence, has been reflected in nmerous
declaratione ~nd resolutions adopted by international organizations
and conferences in uhich the United States and Nicaragua have
participated. The text ehereof testifies to the acceptanêe by the

United States and Nicaragua of a customary principle which has
universal a2plication. As to the content of the principle in
customary law, the Court defincs the constitutive elements which
appear relevant in this case: a prohibited intervention must be one
bearing on rnatters in whlcta eacfi State is permitted, by the principle

of State sovereignty, to decide freely (for ex am pl^ the choice of a
political, econosfc, social and cultural ~ystenn, and forrnellation of
foreign policy). Intervention is wrongful when it uses, in regard to
such choirres, methods cf coercion, particularlg fnree, either in the
direct form of militnry action or in the indirect farm of support for
subversive activities in znother State. With regard to the practice of States, the Court notes that there
have been in recent years a number of instances of foreign
intervention in one State for the benefit of forces opposed to the
government of that State. It concludes that the practice of States
does not justify the view that any general right of intervention in
support of an opposition within another State exists in contemporary
international law; and this is in fact not asserted either by the
United States or by Nicaragua.

4. Collective counter-measures in response to conduct not

amounting to armed attack (paras. 210 and 211)

The Court then considers the question whether, if one State acts
towards another in breach of the principle of non-intervention, a
third State may lawfully take action by way of counter-measures which
would amount to an intervention in the first State's internal
affaira. This would be analogous to the right of self-defence in the
case of armed attack, but the act giving rise to the reaction would be
less grave, not amounting to armed attack. In the view of the Court,
under international law in force today, States do not have a right of
"collective" armed respofise to acts which do not constitute an
"armed attack" .

5. State sovereignty (paras. 212 to 214)

Turning to the principle of respect for State sovereignty, the
Court recalls that the concept of sovereignty, both in treaty-law and
in customary international law, extends to the internal waters and
territorial sea of every State and to the airspace above its
territory. It notes that the laying of mines necessarily affects the
sovereignty of the coastal State, and that if the right of access to
ports is hindered by the laying of mines by another State, what is

infringed is the freedom of communications and of maritime commerce.

6. Humanitarian law (paras. 215 to 220)

The Court observes that the laying of mines in the waters of
another State without any warning or notification is not only an
unlawful act but also a breach of the principles of humanitarian law
underlying the Hague Convention No. VI11 of 1907. This consideration
leads the Court on to examination of the international humanitarian
law applicable to the dispute. Nicaragua has not expressly invoked

the provisions of international humanitarian law as such, but ha8
complained of acts committed on its territory which would appear to be
breaches thereof. In its submissions it has accused the United States
of having killed, wounded and kidnapped citizens of Nicaragua. Since
the evidence available is insufficient for the purpose of attributing
to the United States the acts committed by the contras, the Court
rejects this submission.

The.. . The question however remains of the law applicable to the acts of
the United States in relation to the activities of the contras.
Although Nicaragua has refrained from referring to the four

Geneva Conventions of 12 August 1949, to which Nicaragua and the
United States are parties, the Court conaidcrs that the rules stated
in Article 3 which is common to the four Conventions, applying to
armed conflicts of a non-international character, shsuld be applied.
The United States is under an obligation to '"espect" tiie Conventions
and even to "ensure respect" for them, and thus not to encourage

persons or groups engaged in the conflict in Nicaragua to act in
violation of the provisions of Article 3. This obligation derives
from the general principles of humanitarian law to which the
Conventions merely give specific expression.

7. The 1956 treaty (paras. 221 to 225)

In its Judgment of 26 November 1984, the Court concluded that it
had jurisdiction to entertain claims concerning the existence of a

dispute between the United States and Nicaragua as to the
interpretation or application of a number of articles of the treaty of
Friendship, Commerce and Navigation signed at Managua on
21 January 1956. It has to determine the meaning of the various
relevant provisions, and in particular of Article XXI,
paragraphs 1 (c) and 1 (dl, by which the parties reserved the power to
derogate from the other -provisions.

XI. Application of the law to the facts (paras. 226 to 282)

Having set out the facts of the case and the rulea of

international law which appear to be in issue as a result of those
facts, the Court has now to appraise the facts in relation to the
legal rules applicable, and determine whether there are present any
circumstances excluding the unlawfulness of particular acts.

1. The prohibition of the use of force and the right of self-defence w
(paras. 227 to 238)

Appraising the facts first in the light of the principle of the
non-use of force, the Court considers that the laying of mines in
oX1 installations
early 1984 and certain attacks on Nicaraguan ports,
and naval bases, imputable to the United States, constitute
infringements of this principle, unless justiffed by circumstances
which exclude their unlawfulness. St also considers that the
United States has committed a prima facie violation of the principle
by arming and training the contras, unless thia can be justified as an
exercise of the right of self-defence.

On the other hand, Pt does not consider thst military manoeuvres
held by the United States near the Micaraguaa borders, or the supply
of funds ts the contras, arnounts ko a use of force. The Court has to codsider whether the acts which it regards as
breaahes of the principle may be justified by the exercise of the
right of collective self-defenceb and has therefore to establish
whether the circumstandes required are present. For this, it would
first have to find that Nicaragua engaged in an armed attack against
El Salvador, Honduras or Costa Rica, since only such an attack could

justify reliance on the right of self-defence. As regards
El Salvador, the Court considers that in customary international law
the provision of arms to the opposition in another State does not
constitute an armed attack on that State. As regards Honduras and
Costa Rica, the Court States that, in the absence of sufficient
information asto the transborder incursions into the territory of
those two States from Nicaragua, it is difficult to decide whether
they amount, singly or collectively, to an armed attack by Nicaragua.
The Court finds that neither these incursions nor the alleged supply
of arms may be relied on as justifying the exercise of the right of
collective self -defenc:e .

Secondly, in order to detemine whether the United States was
justified in exercising self-defence, the Court has to ascertain
whether the circumstauces required for the exercise of this right of
collective self-defence were present, and therefore considers whether
the States in question believed that they were the victims of an armed
attack by Nicaragua, and requested the assistance of the United States
in the exercise of collective self-defence. The Court ha8 seen no
evidence that the conduct of those States was consistent with such a
situation.

Finally, appraising the United States activity in relation to the
criteria of necesaity and proportionality, the Court cannot find that
the activities in question were undertaken in the light of necessity,

and finds that some of them cannot be regarded as satisfying the
criterion of proportionality.

Since the plea of collective self-defence advanced by the
United States cannot be upheld, it follows that the United States has
violated the principle prohibiting recourse to the threat or use of
force by the acts referred to in the first paragraph of this section.

2. The principle of non-intervention (paras. 239 to 245)

The Court finds it clearly established that the United States
intended, by its support of the contras, to coerce Nicaragua in

respect of matters in which each State is permitted to decide freely,
and that the intention of the contras themselves was to overthrow the
present Govenunent of Nicaragua. It considers ttirat if one State, with
a view to the coercion of another State, supports and assists armed
bands in that State whose purpose 1s to overthrow its government, that
amounts to an intervention in its interna1 affairs, whatever the
political objective of the State giving support. It therefore finds
that the support givem by the United States to the military and
paramilitary activities of the contras in Nicaragua, by financial
support, training, supply of weapons, intelligence and logistic
support, constitutes a clear breach of the principle of
non-intervention. Humanitarian aid on ttie ot her Iiand cannot be

regarded ...
E3002nl17regardedas unlawful intervention.
the UnitedStates Congress hrasstricted the uosefundstoer1984,
"humanitariaanssistanceto the contras. TheCourtrecallsthatif
the provisioonf "humanitarianssistanceis to escapecondemation
as an interventionn theinternal affairof anotherState,it must
be limitedto the purposehallowedin the practicoef theRed Cross,
and aboveall be given withoutiscrimination.

Withregard to th feormof indirect intervention whNicaragua
seesin the takingof certain actionf an econominatureagainstit
by the UnitedStates,the Courtisunableto regardsuchactionin the
presentcaseas a breachof thecustomarylaw principleof
non-intervention.

3. Collectivcounter-measures iresponseto conducnot
amountingto armed attac(paras.246to 249)

Havingfound that interventionn theinternal affairof another
Statedoesnot producean entitlementto takecollective
counter-measureinvolvingthe useof force,theCourtfindsthat the
actsof whichNicaraguais accused,even assumintghem to have been
establisheadnd imputablto thatState,couldnot justify
counter-measuretakenby a thirdState,theUnitedStates, and
particularlcyould not justiifytervention involving utheof force.

4.Statesovereignty(paras.250 to 253)

The Courfindsthat the assistanceto thecontras,thedirect
attackson Nicaraguan ports, oilstallations,etc. themining
operations iNnicaraguaports,and theactsof intervention
involvingtheuseof force referre to in theJudgment,whichare
alreadya breachof theprincipleof non-use offorce,arealsoan
infringemenotf theprincipleof respectforterritorial sovereignty.
Thisprincipleis alsodirectly infringb edthe unauthorized
overflightof Nicaraguaterritory. Theseactscannotbe justifiedby
theactivities iEnl Salvador attributtedNicaragua;assuming that
suchactivitiesdid in factoccur,theydo not bringintoeffectany
rightbelongingto theUnited States. The Courtalso concludes that,
in thecontextof the presenptroceedings, thlayingof mines in or
near Nicaraguaportsconstitutes an infringeme tnt,icaragua's
detriment,of the freedomf communicationand ofmaritimecommerce.

5. Humanitarianaw (paras.254to 256)

TheCourthas foundtheUnited Statesresponeibl e~r thefailure
to give noticeof the mininof Nicaraguaports.

It has alsofoundthat,undergeneralprinciplesof humanitarian
law,theUnitedStateswas bound Eorefrain from encauragem ofnt
personsor groupsengagedin theeonElict in Nicaraguao commitviolations of common Article 3 of the four Geneva Conventions of

12 August 1949. The manual on "Psychological Operations in Guerrilla
~arfare", for the publ.ication and dissemination of which the
United States is responsible, odvises certain acts which cannot but be
regarded as contrary to that article.

6. Other grounds mentioned in justification of the acto of the
United States (paras. 257 to 269)

The United States has linked its support ts the contras with

alleged breaches by the Government of Nicaragua of certain solemn
commitments to the Nicaraguan people, the United States and the OAS.
The Court considers whether there 2s anything in the conduct of
Nicaragua which might legally warrant counter-measures by the
United States in response to the alleged violations. With reference
to the "plan to secure peacen put forward by the Junta of the

Government of National Reconstruction (12 July 19791, the Court 1s
unable to find anything in the doeumeats and communieations
transmitting the plan froni which ft can be inferred that any legal
undertaking was intended to exist. The Court cannot contemplate the
creation of a new rule opening up a right of intervention by one State

against another on the ground that the latter has opted for some
particular ideology or political system. Furthermore the Respondent
has not advanced a legal argument based on an alleged new principle of
"ideological intervention".

With regard more specifically to alleged violations of human
rights relied on by the United States, the Court considers that the
use of force by the United States could not be the appropriate method
to monitor or ensure respect for such rights, normlly provided for in
the applicable conventions. With regard to the alleged militarization
of Nicaragua, also ref'erred to by the United States to justify its

activities, the Court observes that In international law there are no
rules, other than such rules as may be accepted by the State
concerned, by treaty or otherwise, whereby the level of armaments of a
sovereign State can be lhited, and this principle is valid for al1
States without exception.

7. The 1956 Treaty (paras. 270 to 282)

The Court turns to the claims of Nicaragua based on the Treaty of

Friendship, Commerce and Navigation of 1956, and the cPaim that the
United States has deprived the Treaty of its object and purpose and
emptied it of real con~tent. The Court cannot however entertain these
clalms unless the conduct complained of ia not "measures ... necessary
to protect the essential seeurity Pn~ercsts" of the United States,
since Article XXI of the Treaty provides that the Treaty shall not

preclude the application of çuch measures. With regard to the
question what activities of the United States might have been such as
to deprive the Treaty of its object and purpose, the Court makes a
distinction. It is unable to regard al1 the aets complained of in
that light, but considerç that there are certajn eetivlties which
Tnest- are the mlning of
undermine the whole spirit of the agreement.
Nicaraguan ports, the direct atfacks on ports, pil installations,
etc., and the general trade embargo.

E3002n The.. . The Court also upholds the contention that the mining of the

ports is in manifest contradiction with the freedom of navigation and
commerce guaranteed by Article XIX of the Treaty. It also concludes
that the trade embargo proclaimed on 1 May 1985 is contrary to that
article.

The Court therefore finds that the United States is prima facie
in breach of an obligation not to deprive the 1956 Tseaty of its
object and purpose (pacta sunt servanda), and has committed acts in
contradiction with the terms of the Treaty. The Court has however to
consider whether the exception in Article XXI concerning "measures ...
necessary to protect the essential security interests" of a Party may

be invoked to justify the acts complained of. After examining the
available material, particularly the Executive Order of
President Reagan of 1 May 1985, the Court finds that the mining of
Nicaraguan ports, and the direct attacks on ports and oil
installations, and the general trade embargo of 1 May 1985, cannot be
justified as necessary to protect the essential security interests of
the United States.

XII. The claim for reparation (paras. 283 to 285)

The Court is requested to adjuge and declare that compensation is
due to Nicaragua, the quantum thereof to be fixed subsequently, and to
award to Nicaragua the sum of 370.2 million US dollars as an interim
award. After satisfying itself that it ha8 jurisdiction to order
reparation, the Court considers appropriate the request of Nicaragua
for the nature and amount of the reparation to be determined in a
subsequent phase of the proceedings. It also considers that there is
no provision in the Statute of the Court either specifically
empowering it or debarring it from making an interim award of the kind
requested. In a case in which one Party is not appearing, the Court

should refrain from any unnecessary act which might prove an obstacle
to a negotiated settlement. The Court therefore does not consider
that it can accede at this stage to this request by Nicaragua.

XIII. The provisional measures (paras. 286 to 289)

After recalling certain passages in its Ordar of 10 *y 1984, the
Court concludes that it is incumbent on each Party not to direct its
conduct solely by reference to what it believes to be its rights.
Particularly is this so in a situation of armed conflict where no
reparation can efface the results of conduct which the Court may rule

to have been contrary to international law.

XIV. Peaceful settlement of disputes; the Contadora procese
Iparas. 290 to 291)

In the present case the Court has already tnken note of the
Contadora process, and of the Eact that it Ziad been endorsed by the

United Mations...United Nations Security Council and General Assembly, as well as by
Nicaragua and the United States. It recalls to both Parties to the
present case the need to CO-operate with the Contadora efforts in
seeking a definitive and lasting peace in Central America, in
accordance with the principle of customary international law that
prescribes the peaceful settlement of international disputes, also
endorsed by Article 33 of the United Nations Charter. Annex to Press CommuniquéNo. 86/8

Summaryof the Opinionsappendedto the Judgmentof the Court

SeparateOpinionof Judge NagendraSingh, President

The operativepart paragraph292 (16) of the Judgment adopted
unanimouslyby the Courtwhich enjoinspartiesto seek a peacefulsolution
of their disputes in accordancweith international law, reallyrests on
the due observance of two basic principles: nameltyhat of non-useof
force in inter-State relationsand that of non-intervention in the affairs
of other States. This inthe President viewis the main thrustof the
Judgmentof the Court rendered with utmost sincerity to serve the best
interestsof the community.

In fact, the cardinalprincipleof non-useof force in international
relations has beenthe pivota1point of a time-honouredlegal philosophy
that has evolved particularlayfter the two worldwars of the current

century. The Charterprovisionsas well as the Latin American Treaty
Systemhave notonly developedthe conceptbut strengthenedit tothe
extent that it would stand on its own, evenif the Charterand theTreaty
basis wereheld inapplicable inthis case. The obvious explanatioi ns
that theoriginal ciistomaraspectwhich hasevolvedwith the treaty law
developmenthas come now to stay and survive asthe existingmodern concept
of international law, whether customary,becauseof its origins, or
Ia general principle of international lawrecognizedby civilizednationst'.
The contribution of the Court has been to emphasize theprincipleof
non-useof forceas one belongingto the realm of jus cogens and henceas

the very cornerstone of thehuman effort to promote peacein a world torn
by strife. Force begetsforceand aggravates conflicts, embitters
relations andendangerspeacefulresolutionof the dispute.

There is also the key doctrineof non-intervention in the affairs
of States whichis equallyvital forthe peace and progress of humanity
being essentiallyneeded to promote the healthy existence t ofe community.
The principle of non-intervention t is be treatedas a sanctifiedabsolute
rule of law.

Statesmust observeboth these principlesnamely that of non-useof

force and that of non-interventionin the bestinterestsof peace and
order in the community. The Court has rightlyheld them bothas principles
of customary international law althoughsanctifiedby treatylaw, but
applicable inthis case inthe formercustomarymanifestationhavi.ng been
reinvigoratedby being further strengthene by the expressconsentof
Statesparticularlythe Partiesin disputehere. This must indeed
have al1 the weight that law could evercommand in any case.

The decisionof the Court is in the resultof a collegiateexercise
reachedafter prolonged deliberation andfa ull exchangeof views of no
less than fifteen Judgeswho, working according to the Statuteand Rules

of the Court, haveexaminedthe legal argumentsand al1 the eviderice
before it. In this,as in al1 other cases,every care has been taken to
strictlyobservethe procedures prescribed ant dhe decisionis upheld
by a clearmajority. What is more, the binding character of the Judgment
under the Statute (Art. 59)is made sacrosanctby a provisionof t:he
UN Charter (Art.94): al1 Membersof the UnitedNations have undertaken
an obligationto complywith the Court'sdecisionsaddressedto tIiem and
to always respectthe validityof the Judgment.

Separate...SeparateOpinionof Judge Lachs

Judge Lachs begins by drawingattentionto the requirementsof the
Statutein respectof the persona1qualitiesand diversity of origin
that must characterize Members of the Court,and deprecates any aspersion
upon their independence.

On the substanceof the Judgment hewould havepreferredmore attention
to be given to foreignassistanceto the oppositionforcesin El Salvador,
and differentformulaeto have beenused in variousplaces.

Judge Lachs returns to some aspectsof jurisdiction, consideringthat
insufficient weight had previously been givento the fortyyears thathad
elapsed beforeany public objectionhad been raised against the validity
of Nicaragua'sacceptanceof the Court'sjurisdiction. When that validity

had been privately questioned in connection witha case inthe mid-19501s,
action shouldhave beentakenby the United Nations: Nicaragua should have
been asked to complete anynecessaryformalitiesand, if it failedto do so,
would have been removedfrom the list ofStatessubjectto the compulsory
jurisdictionof the Court. The United Nations having takenno action,it
was legitimateto view the imperfectionas curedby acquiescence over a
very longperiod. The jurisdiction of the Courtbased on the FCN Treaty
of 1956gave no cause fordoubt.

Judge Lachsalso deals withthe questionof thejusticiability of the

case: the close relationshipbetween legaland politicaldisputes,as
betweenlaw and politics. Internationallaw today covers such wide areas
of international relationt shat only veryfew domains- for instance,the
problemof disarmament,or others,specifically excludeb dy States- are
not justiciable. He specifically instancet she case concerning
United States Diplomatic and ConsularStaff in Tehran.

Referringto the Coi~rt'srefusalto grant a hearingto El Salvadorat
the jurisdictional st.age,Judge Lachs states that he has come to view it as

a judicialerrorwhich does not, however,justifyany unrelated conclusions. 1

The broad confrontation between the Parties should,in Judge Lachs's
view, be settledwithin the frameworkof the ContadoraPlan, in CO-operation
with al1 Statesof the region. The area,torn by conflicts,suffering
from under-development for a longtime, requi-res a new approachbased on
equal considerationof theinterestsof al1 concernedin thespiritof
good-iieighbourl relations.

SeparateOpinionof Judge Ruda

The sepurateOpinionof Judge Ruda deais with four subjects. Ln the
first place,Judge Rudadoes not accept the reser7?atioe ripressedby the
United Statesin the letterdated 18 January 1985 "ln respectof any
decisionby the Court regardingNicaragua'scl.aims".Ln 3udge Ruda's
view, pursuant to Article94, paragraph !, of the Charter of the

UnitedNations,the >lember Statesof tk-.Uenited Nations have formally
accaptedthe obligation to com2l.ywith the Court'silecisicns.

The secondpi~t of the Opiriion refers to Che VandenbergAmendment.
Judge Ruda votei agairis the app!iîat:on of the Ameridmen;,for the reasons
statedin the separate0pin;ori wfi:c;o, ~~lbniitrein 1984. In the third part, Judge Ruda deals withthe questionof self-defence.
He explainsthat his conclusions are the same as those reachedby the
Court,but in his view it is not necessaryto enter into al1 the factual
details, becauseassistanceto rebels is notper se a pretext for
self-defence£rom the legal point of view.

The fourthpart is devotedto the reasonswhy Judge Ruda, despite

havingvoted in 1984againstthe Treaty of Friendship,Commerceand
Navigationas a basis of theCourt'sjurisdiction,believeshe is bound
to vote on the substantiveissues submitted to the Courton this subject.

SeparateOpinionof Judge Elias

Judge Eliasconsidersthat, followingthe Court'sJudgment in the
jurisdictionalphase, the multilateraltreatyreservationattachedto
the United States declarationacceptingjurisdictionunder the Optional
Clausewas left in abeyanceand hadno further relevance unless
El Salvador, Honduras or Costa Rica intervened itnhe phase on merits
and reparation. For the Court to have appliedit was therefore incorrect
and tantamountto invokinga power to revise its decisionon jurisdiction
and admissibility on behalf of non-partiesto the case.

SeparateOpinionof Judge Ago

While subscribingto the Judgment asa whole and approvingin

particularthe position adopted by the Court concerning the United States'
multilateraltreatyreservation, Judge Ago remains hesitant about certain
points. For example,he feels that the Court madea somewhattoo hasty
finding asto the quasi-identityof substance betweencustomary
international lawand the law enshrined incertainmajor multilateral
treatiesof universal character, and was alsosomewhattoo ready to see
the endorsementof certain principles by UN and OAS resolutionsas proof
of the presenceof those principles inthe opiniojuris of members of
theinternational community. JudgeAgo also feels obligedto draw attention
to what he views as some partiallycontradictory aspects of theCourt's
assessmentof thefactualand legal situation. He furthecronsidersthat
some passagesof theJudgmentshow a paucityof legal reasoningto

supportthe Court'sconclusionsas to the imputabilityof certainacts
to the Respondentqua acts giving rise to international responsibility,
and would have preferredto see the Court includea more explicit
confirmationof its case-lawon this subject.SeparateOpinionof Judge Sette-Camara

Judge Sette-Camara fully concurswith the Judgmentbecausehe firmly
believesthat "the non-useof force as well asnon-intervention - the
latteras a corollaryof equalityof Statesand self-determination - are
not only cardinalprinciplesof customary international law but couldin
additionbe recognizedas peremptory rules of customary international law
which imposeobligationson al1 States". His separateopiniondealsonly
with subparagraph(1)ofthe operativepart, againstwhich he has voted.
He maintainsthat the multilateraltreatyreservation, appendet do the
United States 1946 Declarationof Acceptanceof theJurisdictionof the
Court accordingto Article 36, paragraph2, of the Statute,cannot be

appliedto thepresentcase, sincenone of the decisionstaken in the
operativepart can in any way "affect1'third States, andin particular
El Salvador. The caseis between Nicaragua ant dhe United Statesand the
bindingforce of the Court'sdecisionis confinedto these two Parties. W
Judge Sette-Camararecognizesthe right of any State makingDeclarations
of Acceptanceto append to them whateverreservationsit deems fit.
However, he contendsthat theCourt is free,and indeedbound, to
interpretthose reservations.He regretsthat the applicationof the
multilateraltreatyreservationdebarredthe Court £rom restingthe
Judgmenton the provisionsof the Charterof the United Nations and the
Charterof the Organizationof AmericanStates, and forced it to resort
only to principlesof customaryinternational law and thebilateral
Treaty of Friendship, Commerceand Navigationof 1956. He submitsthat
the law appliedby the Judgmentwould be clearerand more preciseif the

Court had resorted to the specificprovisionsof the relevantmultilateral
conventions.

SeparateOpinionof Judge Ni

Judge Ni's primaryconcern,as expressed inhis separateopinion, is
with respectto the "multilateral treatyreservation" invokeb dy the
United States. In his view,any acceptance *
of its applicability entailed
(1) the exclusionof the Court from exercisingjurisdictioninsofaras
~icaragua'sclaims werebased on the m~ltilatera~treatiesin question,
and (2) the preclusion,if the case was on other groundsstill inthe
Court for adjudicationof themerits,of theapplicationof such
multilateraltreaties. In the instantcase, however,the United States,
while invokingthe multilateraltreatyreservationto challengethe
exerciseof jurisdictionby the Court, had in the meantime persistently
claimedthat the multilateraltreaties,which constitutethe very basis
of its reservation,should alone be appliedto thecase in dispute. That
claim amountedin effect to a negationof its own reservation and,taking
into accountal1 the relevant circumstances, ough to have been considered
as a waiver of themultilateraltreaty reservation.Such being the case,
Judge Ni differedfrom the majorityof theCourt in that he considered

that therules contained inmiiltilaterrz trea~ies,as well ascustomary
internationallaw, should, where appropriate, have bee appliedto
the case.Dissenting Opinion of Judge Oda

Judge Oda agreeswith the Court'srecognitionof the applicabilityof
the multilateraltreatyproviso attached to the UnitedStates' 1946
declarationbut considers that,having thus decidedthat the disputehad

arisen under a multilateral treaty, it should haveceased to entertain
the applicationof Nicaraguaon the basis of that declaration. The Court
had been wrongto interpretthe exclusionof thedisputeby that proviso
as merely placing restriction upon the sourcesof law to which it was
entitledto refer.

Judge Oda further believesthat, to the extent that the Nicaraguan
claims presupposed the Court'sjurisdiction under declarations made
pursuantto Article 36 (2)of the Statute,which refers to "legal disputes",
they should have bee.ndeclarednon-justiciable, since the dispute wasnot
"legal"within the meaning and intentionof that clauseor, even i.fit

were, it was not onethat theCourt could properly entertain: as a
politicaldispute,it was more suitablefor resolutionby other organsand
procedures. Moreover,the facts the Court couldelicitby examiningthe
evidence inthe abse.nceof theRespondentfell far shortof what wasneeded
to show a completepicture.

Judge Oda thus considersthat, in so far as the Court couldproperly
entertainthe case, it could do so on the basis of Article 36 (1) of the
Statute,where the term "al1 matters speciallyprovidedfor in...
treaties...in force'' gave nosuch groundsfor questioningthe "legal"

nature of thedispute. The Court couldtherefore legitimately examine
any breachof the concrete termsof the 1956 Treaty of Friendship,Commerce
and Navigation. In Judge Oda's view, the mining of the Nicaraguanports
had constituted such a breach, for whichthe United Stateshad incurred
responsibility.

Judge Oda emphasizesthat his negative voteson many countsof the
Judgmentmust notbe interpretedas implyingthat he is opposed to the
rules of law concerningthe use of force orintervention,of whose
violationthe United States has beenaccused,but are merelya logical

consequenceof his convictionson the subjectof jurisdiction under
Article 36 (2) of the Statute.

Finally,Judge Oda regrets that the Court has beenneedlessly
precipitate in giving its views on collective self-defence in its first
Judgmentto broach that subject.

Dissentine...Dissenting Opinion of Judge Schwebel

Judge Schwebeldissentedfrom the Court'sJudgmenton factualand
legal grounds. He agreedwith the Courtin itsholdingsagainstthe
United Statesfor its failure to make known the existenceand location

of mines laid by itand itscausing publication of a manualadvocating
acts in violationof the law of war. ButJudge Schwebel concluded that
the UnitedStatesessentially acted lawfull in exertingarmed pressures
against Nicaragua, both directly and througihts supportof the contras,
becauseNicaragua'sprior and sustained support o armed insurgencyin
El Salvador wastantamountto an armed attack uponEl Salvador against
which the United Statescould react in collective self-defence in
El Salvador'ssupport.

Judge Schwebelfound that, since 1979, Nicaraguahad assistedand
persistedin providing large-scalev ,ital assistanceto the insurgents

in El Salvador. The delictual acts of Nicaraguahad not beenconfined
to providingthe Salvadoran rebels with large quantitiesof arms,
munitionsand supplies, whichof themselves arguably might be seen as
not tantamountto armed attack. Nicaraguahad also joinedwith the
Salvadoran rebelsin the organization, planning an trainingfor their
acts of insurgency,and had provided them with command-and-control
facilities,bases, communications and sanctua which enabled the
leadershipof the Salvadoranrebels to operatefrom Nicaraguanterritory.
That scaleof assistance, in Judge Schwebel'sview, waslegally
tantamountto an armed attack. Not only was El Salvador entitled to
defend itselfagainstthat armed attack;it had calledupon the

United States to assist it in the exerciseof collectiveself-defence.
The United States wasentitledto do so, throughmeasuresovert or
covert. Those rneasurescouldbe exertednotonlyinELSalvadorbut against
Nicaraguaon its own territory.

In Judge Schwebel'sview, the Court'sconclusionthat theNicaraguan
Government was not "responsiblefor any flow of arms" to the Salvadoran
insurgents wasnot sustained by "judicialor judicious" considerations.
The Court had "excluded, discounted an dxcused theunanswerable evidence
of Nicaragua'smajor and maintained intervention t ine Salvadoran
insurgencyn. Nicaragua'sintervention in El Salvador in support of the 1

Salvadoran insurgents was, Judge Schwebel held,admittedby the President
of Nicaragua, affirmedby Nicaragua'sleadingwitness in the case, and
confirmedby a "cornucopiaof corroboration".

Even if, contraryto his view,Nicaragua'sactionsin supportof the
Salvadoraninsurgencywere not viewed as tantamountto an armed attack,
Judge Schwebelconcludedthat theyundeniably constituteu dnlawful
intervention. But theCourt, "remarkably enoughl'while findingthe
United States responsible for interventionin Nicaragua,failedto
recognizeNicaragua's prior and continuing interventio in El Salvador.

For United States measure sn collective self-defenct eo belawful,

they müst be nec?ssarvand proportionate. In JudgeSchwebel'sview, it
was doubtfuf whether the questionof necessityin this case was
justiciable,becausethe factswere so indeterminate, dependin as they
did on whtthez mc;~suresnnt involvingthe use of forcecould succeedin
terminatingNicarr,gi'3 interventior in El Salvador. But it could
reasonablybe held that the ngcessityof thosemeasureswas indicated
by 'Ipersistenhticaragcanfailureto cease armeci subversionof El ~alvador". Judge Schwebelheld that "the actionsof the United States are

strikingly proportionate. ThSalvadoran rebels,vitally supported
by Nicaragua,conducta rebellion inEl Salvador;in collective
self-defence,the United States symmetricallysupportsrebelswho
conducta rebellionin Nicaragua. Threbels in El Salvador pervasively
attack economic targets of importancein El Salvador;the United States
selectivelyattackseconomic targets of military importance" in Nicaragua.

Judge Schwebelmaintainedthat, in contemporary internationa law,
the Statewhich first intervenes with the use of force in anotherState
- as by substantialinvolvement inthe sendingof irregularsont0 its
territory - is, prima facie, the aggressor. Nicaragua'sstatusas
prima facie aggressor can only beconfirmedupon examinationof the facts.
IMoreover",Judge Schwebel concluded, "Nicaraguahas compounded its
delictual behaviourby pressingfalse testimonyon the court in a
deliberate effort to concealit. Accordingly,on bothgrounds,Nicaragua
does not come before the Court with clean hands. Judgment in its favour
is thus unwarranted,and would be unwarranted even if it shouldbe

concluded - as it shouldnot be - that the responsiveactionsof the
United Stateswere iinnecessaryor disproportionate."

Dissenting Opinion of Judge Sir RobertJennings

Judge Sir Robert Jenningsagreedwith the Court that theUnited States
multilateraltreatyreservation is valid and must be respected. He was
unable to accept the Court'sdecisionthat it could, nevertheless, exercise
jurisdictionover the case by applying customary law in lieu of the
relevantmultilateraltreaties. Accordingly,whilst able to vote in favour
of certainof the Court's findings,he felt compelledto vote againstits
decisionson the use of force,on intervention,and on the questionof
self-defence,because in his view the Courtwas lackingjurisdictionto
decide thosematters.