Counter-Memorial of the United States of America

INTERNATICOURTOF JUSTICE

PLEADINGS, ORAL ARGUMENTS, DOCUMENTS

CASE CONCERNING MILITARY AND

PARAMILITARYACTIVITIES IN AND
AGAINST NICARAGUA

(NICARAGUAvUNITED STATESOF AMERICA)

VOLUMEIl

COUR lNTERNATIDJUSTICE

MEMOIRES,PLAIDOIETDOCUMENTS

AFFAIREDES ACTIVITÉSMILITAIRES
ET PARAMILITAIRESAU NICARAGUA

ET CONTRE CELUI-CI
(NICARAGUA c. ÉTATS-UNISD'AMERIQUE)

VOLUMEII Abbreviatedreference:

I.C.J. Pkudings, Military und Paramilitary Activities in and uguinst Nicaragua
(NicaraguaUnifedStares ofArnerica), Vol. II

Référencabrégé:e

Cet contre celui-ciragua c. fiafs-Unis d'Amérique),Vol. II

Salenumbcr
ISSN 0074-4433 iVde vente: 754 1
ISBN 92-1-070824-5 CASECONCERNING MILITARYAND PARAMILITARY
ACTlVlTlES IN AND AGAINST NICARAGUA

(NICARAGUA v.UNITED STATESOF AMERICA)

AFFAIREDES A~IVITÉS MILITAIRESET PARAMILITAIRES

AU NICARAGUA ET CONTRECELUI-CI
(NICARAGUA c. ÉTATS-UNISD'AMERIQUE) INTERNATIOCOURTOFJUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS

CASE CONCERNING MILITARYAND
PARAMILITARY ACTIVITIES IN AND

AGAINST NICARAGUA
(NICARAGUAv.UNITEDSTATESOF AMERICA)

VOLUME II

COURINTERNATIONDEJUSTICE

MEMOIRES,PLAIDOIRIESET DOCUMENTS

AFFAIRE DES ACTIVITÉSMILITAIRES

ETPARAMILITAIRESAU NICARAGUA
ET CONTRE CELUI-CI

VOLUMEII The case concerning Milirary und Parumiliiary Acriviries in und ugoinsr
h'icarugua (Nicrirugitu v. Unired Stores of Americu), entered on the Court's
General List on 9 April 1984 under number 70, was the subject of Judgments
deliveredon 26November 1984 (Milirary and Puramililary Acliviries in undcigainsr
Nicarugua (Nicuruguu v. United Slules of Americu), Jurisdicrion and Admi,ssibiliry,
Judgmenr, I.C.J. Reporls 1984, p. 392) and 27 June 1986 (Miliiur)' und

Paramilitory Acrii,iries in and uguirisr Nicaragua (Nicaragua v. Unircd Srnres of
Americcr), Juclgnteni. ICJ. Reporls 1986, p. 14). Following the discontinuance
by rhe applicant Government, the case was removed from the List by an Order
of the Court on 26 September 1991 (ibfilirary und Paramilirury Acrivirier in und
againsr Nicaragw [Nicaragua v. UnitedSralesof Americu), Order of26 Seplember
1991, 1.C.J. Reports 1991, p. 47).
The pleadings and oral arguments in the case are being published in the follow-
ing order:

Volume 1.Application instituting proceedings; request for the indication of pro-
visional measures and consequent proceedings; Memorial of Nicaragua
(Jurisdiction and Admissibilitv).
~$ume II. Countcr-Memorial Ztlie United States of America (Jurisdiction and
Admissibility); Declaralion of Intervention by El Salvador and obsen.ations

thereon by Nicaragua and the United States of America.

Further volumes will contain the remainder of the documentation in the case
(oral proceedings on jurisdiction and admissibility; Memorial of Nicaragua
(Merits) and supplemental documents; oral proceedingson the merits; Memorial
of Nicaragua (Compensation); correspondence)

In interna1 references hold Roman numerals refer Io volumes of thisedition;
if they are immediately followed by a page reference, this relates to the new
p~lginationof ihe volumein question. On the other band, the page numbers which

are preceded or followed by a reference to one of the pleadings only relate to
the original pagination of the document in question, which, if appropriate, is
represented in this edition by figureswithin square brackets on the inner itiargin
of the relevant pages.
Neither the typography nor the presentation may be used for the purpose of
interpreting the texts reproduced.

L'affairedes Acrivirésmiliraires er paramiliruires au Nicurugiiu er conrrc:celui-
ci (Nicaruyuu c. Erars-Unis d'Amérique), inscrite au rôle généradl e la Cour sous
le numéro 70 le 9 avril 1984,a fait l'objet d'arrêtsrendus le 29 novembre 1984
(Acliviiés ntiliruires el puranti1iraire.sau Nicarugua et conrre celui-ci (Nicarriguo c.
Erriis-Unis d'Amériqae). contpétenceel recevubiliré. orrér, C.1.J. Recilei/ 1984,
p. 392) et le 27 juin 1986 (ActivitEs milituireet paramiliruires uu Nicarugito et

conrre celiri-ci (Nicaragira c Etats-Unis d'Amérique). arrét, C1.J. Recueil 1986,
p. 14). A la suite du désistementdu gouvernement demandeur, elle a étérayée
du rôle par ordonnance de la Cour du 6 septembre 1991 (Acrivirésmilircrires elparamilitairesau Nicaragua et contre celui-ci(Nicaragua c. Etats-Unis d'Amé-
rique),ordonnancedu26 septembre1991, CLJ. Recueil1991, p. 47).
Les piècesde procédure écriteet les plaidoiries relatives à cette affaire sont
publiéesdans l'ordre suivant:
Volume 1.Requête introductived'instance; demande de mesures conservatoires
et orocédurev relative: mémoiredu Nicaraeu...com~étenceet recevabilité).
\'<ilurne II. C<intrc-mcnioirs de> I I L ~ d',\niCrique (~.ornp6ienic ci
rccc%;ibiliti); d>.dariiiiuii d'inicr\cniion d'El S~l\,ador cl ohicrv.ition, du
Niaragux ci des litdis-ilni, <I'AinCriqueYurceitc J2:laraiion

Les volumes suivants contiendront le reste de la documentation concernant
l'affaire(orocédureoralesur lesauestions de comoétence et recevabilité: mémoire
du '11cü;;~ua (hnd) ci d<,<umcnij additionnel; :roiCdurc orle sur Ic fi~nd:
inimoirc .IL Kicarqua (r:p~r;iticinj; c.>rreipoiidan:c)

S'agissant des renvois, les chiffresromains gras indiquent le volume de la pré-
sente édition: s'ils sont immédiatement suivispar une référencede page, cette
référence renvoieà la nouvelle parination du volume concerné. En revanche,les
numérosde .-.e oui ne sont o;é&désou suivis aue de la seule indication d'une
piècede procédure visent lapagination originale du document en question, qui,
en tant que de besoin, est reproduite entre crochets sur le bord intérieur des pages
concernées
Ni la typographie ni la présentation ne sauraient être utiliséesaux fins de
l'interprétationdes textes reproduits. Pqe
Counter-Memorialofthe UnitedStates ofAmerica(Questions ofJurisdiction
and Admissibility- Contre-mémoire desEtats-Unis d'Amérique(ques-
tions de la compétenceel de la recevabilité)

INTRODUCTI OND SUMMARY ............... 3
Introduction .................... 3
.................
Summary of argument 5
PART1.NICARAGU HAASNOT ~NVOKEU AN EFFECTIV TEITLEOFJUR~SO~CTION IO

Introduction ....................
Chapter 1.Nicaragua has neveraccepted theCourt's compulsoryjurisdic-
tion and therefore has no right to invoke that jurisdiction against the
United States ...................
Section 1. Nicaragua never accepted the compulsory jurisdiction of
the Permanent Court of International Justice .......
A. Only parties to the Protocol of Signature to the Statute of the
Permanent Court of lnternational Justice could accept that
Court's compulsoryjurisdiction...........
B. Nicaragua never became party to the Statute of the Permanent
Court ....................

1. 14 Septemher 1929: Nicaragua signed but did not ratify the
Protocol of Signature .............
2. 24 September 1929: Nicaragua made an ineffectivedeclara-
tion under the Optional Clause of the Protocol of Signature
3. 1930-1935: Nicaragua's domestic consideration of the
Protocol of Signature .............
4. 1936-1938: Nicaragura's withdrawal from the League of
Nations ..................
5. 1939-1946: Communications between Nicaragua and the
League confirmed that Nicaragua had not accepted the
Permanent Court's compulsoryjurisdiction ......
Section II. Because Nicaragua's Declaration wasnever an acceptance
of the compulsory jurisdiction of the Permanent Court, the Decla-
ration cannot be deemed under Article 36 (5) to be an acceptance
of the compulsory jurisdiction of the lnternational Court of Justice

A. According to the plain meaning of the words "still in force",
Article 36(5) applies only to declarations binding the declarant
to accept the compulsory jurisdiction of the Permanent Court
1. "ln force" rneans"biiiding"...........
2. The French text of Article 36 (5) of this Court's Statute also
requires that a declaration be binding under the Stdtute of
the Permanent Court in order to be deemed an acceptance
of this Court's jurisdiction..........
3. Article 36(5) cannot bring into force a dcclaration that had
never been inforce under the Permanent Court's Statut. . B. The purpose and history of Article 36 (5) confirm that il does
not apply to declarations, such as Nicaragua's, which were not
in force for the Permanent Court ..........

1. The general understanding ............
2. The United States understanding of Article 36 (5) ....
C. Article 36 (5) has been applied only to States that had accepted
the Permanent Court's compulsory jurisdiction ......
D. This Court has also interpreted Article 36 (5) to preserve,
not to expand, the compulsory jurisdiction of the Permanent
Court ....................
E. The King of SpainArbilralAwardcase .........
F. Nicaragua has been listed as having a declaration in force in
various publications only because of confusion over the status
of its declaration under the Permanent Court ......

1. The Yearhookof the International Court of Justice ...
2. United Nations publications ...........
3. Writings of puhlicists .............
(a) Professor Salo Engel ............
(b) JudgeManley Hudson ...........
(c) Professor Shabtai Rosenne ..........
4. Publications of the United States Government .....
5. Publications of Nicaragua ............
6. Conclusion .................

Section III. The conduct of the Parties cannot, and did not, create an
acceptance by Nicaragua of the compulsory jurisdiction of the
International Court of Justice.............
A. A State may not manifest its consent to accept the compulsory
jurisdiction of this Court except in conformity with the manda-
tory legal requirements of this Court's Statute ......
B. Nicaragua's conduct does not indicate any intent to accept the
comoulsorv iurisdiction of this Court .........

Chapter II. The Treaty of Friendship, Commerce and Navigation
provides no hasis for jurisdiction in this case ........
Section 1. Having failed previously to identify the FCN Treaty as a
hasis for jurisdiction, Nicaragua may not now invoke that treaty .
Section II. The FCN Treaty is wholly irrelevant to the dispute that is
the subject of Nicaragua's Application ..........
Section III. Nicaragua may not invoke the compromissory clause of
the FCN Treaty because it has made no effort to resolve by
diplomacy any disputes under the FCN Treaty .......

PARTII. STATEMEN OTP FACTSRELEVAN TO JURISDICTIO NND ADMIS-
SlBlLlTY ......................

Chapter 1.Nicaragua has engaged in armed attacks on its neighbors . .
Section 1. Nicaragua has promoted and supported guerrilla violence
in neighboring countries ............... Section II. Nicaragua has openly conducted cross-border military
attacks on its neighbors...............
Section 111.Nicaragua's neighhors have requested assistance from the
United States in their self-defense ...........
Chapter II. The underlying problems of Central America are region
wide and arise principally from interrelated social, economic, political
and security factors .................
Chapter III. Revolution in Nicaragua ............
Section 1. The 1979 Revolution in Nicaragua promised democratic
reforms and was widely supported internationally ......
Section II. The Sandinista régime has violated its domestic and
international promises ...............
Section111.The Sandinista régime'spolicies have generated an armed
interna1 opposition ................

Chapter IV. The United States. Nicaragua and the other States of
Central America have agreed to resolution of the conflict in Central
America through the Contadora dispute settlement process ....
Section1.The Central American parties and the United States as well
as the competent international political organs have agreed iipon
the nature of the dispute. the scope of the issues to he addressed in
a settlement and aspecificprocedure for the peaceful settlement of
the dispute ...................
Section II. The Contadora process has resulted in a draft "Acta"
addressing regional issues ..............
Section III. The United States and Nicaragua are engaged in nego-
tiations ancillary to the Contadora process ........
Section IV. The United States has actcd to help preserve the viability
of the agreed Contadora dispute settlement mechanism ....

PART111.NICARAGUAC 'LAIMS DO NOTCOME WlTHlN THE SCOPE OF THE
UNITEDSTATEC SONSEN TO THE COURT'J SUR~SDICT~ON ......
Introduction ....................
Chapter 1. The Court has jurisdiction over Nicaragua's claims only if
the United States had expressly consented to that jurisdiction in the
United States declaration in force on the date that Nicaragua filed its
Application with the Court ..............
Cha~ter II. The multilateral trcaty reservation to the United States
dèclaration expressly excludes Nicaragua's claims from the scopq of
the United States acceptance of this Court's compulsory jurisdiction
because any decision that the Court could render would affect States
not hefore the Court that are party to the multilateral treaties on
which Nicaragua relies ................

Section 1. Introduction ................ 78
Section II. The intent and etTectof the multilateral treaty reservation
are to preclude jurisdiction when treaty parties that would he
affected hy the Court's decision are not hefore the Court ... 79
A. The multilateral treaty reservation was adopted specifically to
preclude jurisdiction when treaty parties that would be affected
hy the Court's decision were not before the Court ..... 79XII CONTENTS - TABLE DES MATIERES

B. The exclusion from international arbitration or adjudication of

matters affecting the interests of absent third parties has heen a
consistent Unitid States oractice hefore andafter adootion of
the rnultil.iicr;trc~t)re~erv~iion ..... . .
C. ï'he muliil;iteral trsat! re,cri.ition proiï<ih the Uniicd St:itr.v
and ihird Sisicr from the inhcrentlv...cludi;ial eiTcïisof p~rlial
adjudication of complex, multiparty disputes ......
Section III. Because States that would be "affected hy" the Court's
decision are not present, the Court is without jurisdiction over
Nicarae-a's Aoo..cation ...............
A. Nicaragua's Application on its face affects the interests of
Honduras and Costa Rica .............
B. El Salvador will be affected hy a decision of the Court on

Nicaragua's claims .... ..........
C. Grant of the relief requested by Nicaragua would directly
interfere with the interests of the other Central American States
in the Contadora process .............
D. The multilateral treatv reservation excludes Nicaragua's
Appii~~Jiii>nfrotii the I!niteil Si;itcs ionrent ihc Ctouri'r
~uri~diclion bcs~urc an) ilerision on Nicar~gu~i'scl;iinis will
ailèci the Icral and praciicil intcrc,stoi Honduras. Co\ia Rica
and El ~dlvador
Seciion IV. 'Iicar~guJ's cl;iinii stylcd a, ii~~l.itionsol'iu,tiimary :ind
gencral iiitc~rnationalLu. riicrely reaiaie N1~3rag~i.i'rtr~rltv-h~i~cd
claims and cannot, in any event,he determincd without refeÏence to
those treaties, in particular the Charter of the United Nations . .

A. Nicaragua's customary and general international law claims
merely restate its treaty-based claims .........
B. Nicaragua's "evidence" of customary international law consists
of General Assemhlyresolutions tbat merelyreiterate or elucidate
the Charter ..................
C. This Court cannot determine the merits of Nicaragua's "custom-
ary and general international law" claims without interpreting
and applying the United Nations Charter and the Charter of
the Organiration of American States .........
1. The provisions of the United Nations Charter relevant here
subsume and supervene related principles of customary and
generdl international law ..... ......
2. The various multilateral treaties on which Nicaragua bases
its claimsare the applicable law among Nicaragua, the United
States and the other Central American States .....

Chapter III. The United States consent to this Court's jurisdiction over
Nicaragua's Application and the claims contained therein is suspended
for a period of two years by virtue of the modification of the United
States declaration eliected by the note of 6 April 1984 .....
Section 1. The United States declaration excludes Nicaragua's claims
from the United States consent to the Court's compulsory jurisdic-
tion hecause those claims (1) present a "dispute with a Central
American State" and (2) "anse out of or are related to events in
Central Amenca" .................Section II. The 6 April note efïected a modification temporarily
suspending in part the operation of the United States declaration
accepting the Court's compulsory jurisdiction; il did not terminate
that declaration .................
Section III. The 6 April note validly modified the United States 1946
declaration with immediate efïect ............
A. Declarations under the Optional Clause are subject to modifi-
cation at the discretion of the declarant State in anv manner
noi ini,>nri,içni w,th the Statutc at an). iimc until an application
has been liled wiih the Couri .... ....

1. Declarations are suigeneris in character; they are no1 treaties
and are not governed by the law of treaties ......
(a) It is incompatible with the terms of Article 36 of the
Statute of the Court to regard declarations as treaties .
(b) Declarations differ fundamentally from treaties in the
unilateral nature of their formation .......
(c) Declarations differ fundamentally from treaties in the
treatment of reservations ...........
(d) The right of unilateral modification of declarations sanc-
tioned bv the Riaht of Passu~e case 1salien to treaty law
(e) ~ublicist;generauyconcur that declarations are suigeneris

2. A State's sovereign right to qualify ifs acceptance of the
Court's compulsory jurisdiction is an inherent feature of the
Optional Clause system, as reflected in, and developed by,
State practice ................
(u) The system of reservations to declarations is based not
on the Court's Statute but on State practice ....
(6) A right to qualify acceptance of the Court's compulsory
jurisdiction necessarily derives from the consensual basis
ofjurisdiction and the principle inplussiai minus . .
(c) Reserved rights to modify declarations, or to terminate
declarations and suhstitute new declarations therefor
with immediateefïect, dominate the present-day Optional
109
Clause system ..............
(d) States have exercised their right to modify a declaration 110
to avoid prospective adjudication ........
(e) States have modified or terminated their declarations in
the absence of a reserved right ......... III
3. The Court has confirmed the evolution of State practice with
respect to declarations, and has recognised an inherent, extra-
statutory right to modify declarations in any manner not
inconsistent with the Statute al any time until the date of
filing of an application .............

(O) Thedate for determining jurisdiction is the date of seisin,
which is the date of filing of an application with the
Court .................
(h) Declarant States have an inherent right to modify their
acceptances of the Court's compulsory jurisdiction al
any lime until the filing ofan application CONTENTS - TABLE DES MATIERES

4. Denial of a right of modification to a State not making an
express reservation in an older declaration would he inequi-
table and cannot be justified in light of the fundamental
changes which have occurred in State practice under the
Optional Clause ...............

(a) The inherent right asserted by the United States is fully
consistent with the nature and operation of declarations
accepting compulsory jurisdiction as articulated by this
Court in the Right of Passagecase .......
(b) It would he inequitahle to treat States unequally with
respect to the right of modification by failing to interpret
older declarations, like that of the United States, in light
of the fundamental changes in the Optional Clause
system that have been brought about hy State practice

Section IV. Even if construed as a termination of the 1946declaration,
the 6 April modification ofthe United States Declaration effectively
suspended, hefore seisin, Nicaragua's claims from the scope of the
United States consent to jurisdiction ..........
A. Nicaragua's declaration, were it effective,would be immediately
terminable ..................

1. Nicaragua's declarationis indefinitein duration, not unlimited
2. Older declarations of indefinite duration, like that of
Nicaragua, are immediately terminahle .......
B. Nicaragua never accepted "the same obligation" as the United
States six-month notice proviso and may not, therefore, oppose
that proviso as against the United States ........
C. The principles of reciprocity, mutuality and equality of States
before the Court permit the United States to exercise the right
of termination with the immediate effect imolicit in the
Nicdragudn righi ùi terminaiion. rcg;irdles si th: ri-m<inth
notizs provisi) in ihc I;nited St;iies Jeilarûti<. . l?j

Section V. The United States 6 April 1984 note is effective under
international law and is valid under United States law ....
A. The 6 April note is effectiveunder international law regardless
of its status under domestic United States law hecause a foreign
minirtsr ha5 the Jpp:irr.iit ~utliorit) to bind the Statc rr.prejenicd
R. The 6 ,\pril note uai \.;ilid iindcr L'nitedStatc, liv ...

1. The United States declaration is not a "treaty" for purposes
of United States constitutional processes .......
2. The President may narrow or terminate United States obli-
gations under its declaration accepting compulsory jurisdic-
tion ...................

PARTIV. THE ~NADM~ss~B~L~TY OP THE APPLICATION ........
Introduction ....................
Chapter 1. The Nicaraguan Application is inadmissible because
Nicaragua has failed to bring indispensable parties hefore the Court

Section 1.Adjudication of Nicaragua's claims would necessarilyimpli-
cate the rights and obligations of other States ....... Section II. The Court cannot adjudicate the rights and obligations of
third States without their consent or participation ......
C'h.ipi:r II 1hr.,\~~IIC~IIU \IIIJILIrcquirr.the aJjiid~c.iiioriby the Court
af a subjr.ci-m~1ir.rrpïcifiiill) coniniiiiedti>i>therniodss oCrï>dluiion
h, tlirCharicr of the Iniied Nation.; .. .... . .
Section 1. The Nicaraguan allegations constitute a request for a
determination by the Court that there exists a threat to the peace,
a breach of the peace or an act of aggression . .....
Section II. The matters alleged in the Nicaraguan Application and
Memorial are committed by the Charter of the United Nations to
the exclusive competence of the political organs .......
A. The tex1of the Charter ..............

C. Subsequent practice of States and United Nations organs . .

1. The Nicaraguan Application is without precedent ....
2. The Corfu Channel case .............
3. Post-Charter efforts to define "aggression" ......
Chapter III.This Court may not properly exercisesubject-matterjurisdic-
tion over Nicaragua's claims ..............
Section 1. The Court should defer to the other organs of the United
Nations with respect to maiters confided to those other organs by
the Charter ...................

A. General considerations ..............
B. The Memel and Minori1.vSchools cases are not relevant to the
issue before the Court ... ..........
C. The Diplornaiic and Consulor ~toffcase does not estahlish the
competence of the Court tu adjudicate Nicaragua's claims . .
Section 11.Nicaragua is requesting that the Court review decisions
already taken by the political organs ..........
Section III. Article 51 of the Charter precludes impairment of the
inherent right of individual and collective self-defense .....
Chapter IV. The judicial process is inherently incapable of resolving
on-going armed conflict ................
Sccti~n I I'hc n.irurr.oi ihc ju.lici:il iunciion prr...ludr'*11s;ippli~aii<>n
10 the siib$i;incci~fNi~drdyu;t's.illr.gaii<~n. .... . .
Se~tionII.The ritii.itioii .illr.geJin ihc Kii~r.ig.i;in ,\ppli:aiion c;inriot
be judicially managed or resolved . . . . ~. ....
Section III.The conclusion that the Court cannot iudicialiv determine
the matters alleged in the Nicaraguan ~~~licajion dois not mean
that international law is neither relevant nor controlling ....

Chapter V. The Nicaraguan Application is inadmissible hecause the
established processes for resolution of the overdll issues of Central
America have not been exhausted ............
Section 1. The Contadora process, to which Nicaragua is party, is
recognired, both hy the political organs of the United Nations and
by the Organization of American States, as the appropriate method
for the resolution of the issues of Central America ......
Section II. The Contadora process has adopted, among its aims,
principles directed to the very claims and issues raised by the
Nicaraguan Application ...............XVI C0NTHh"I -STABLE DES MATIÈRES

Section 111.Nicaraaua is reauired bv the Charters of the United
Nations and or the Organization <ifAmeric~nSiatcs to 5cr.kregton;il
solutions io problcms concerniny the maintenancc ulrrgional pc;ice
and security.................

Section IV. Adjudication of only one part of the issues involved in
the Contadora process would necessarilydisrupt that process. .

Annexestu the Counler-Memoriulof the UnitedStates ofAmerica

Anner 1. Affidavit of Secretary of State George P. Schultz dated
14August1984 .................
Annex 2. Affidavit o'fStephen R. Bond, Counselor for Legal ARairs
with the United States Mission to the United Nations in Gcncva.
concerning file entitled "League of Nations Archives, 1928 G~Ï932:
Statute of the Court, signature and ratification by the Government of
Nicaragua", Registry Number 3C/12843/279'dated 31 July 1984 . .
Anne.r3. Letter from the Division of Foreign ARairs, Federal Political
Department, Government of Switzerland, to the Secretary-General of
the League of Nations, dated 22 Octoher 1929 (League of Nations
Archives, filenumber 3C/12843/279) ...........
Anne.r 4. Letter from the League of Nations Legal Adviser to the Chier
of the Federal Political Department, Division of Foreign Alhirs,
Government of Switzerland, dated 25 October 1929 (League of
Nations Archives, filenumber 3C/12843/279) ........
Annex 5. Letter from the Department of Foreign Aiïairs of the Kepublic
of Austria to the Secretary-General of the League of Nations, dated

29 October 1929 (League of Nations Archives, file number
3C/12843/279) ...................
Annex 6. Letter from the League of Nations Legal Adviser to the
Chancellor, Ministry of Foreign ARairs,Republic of Austria, dated
7 November 1929 (League of Nations Archives, file number
3D/12843/279) ...................
Anne.r 7. Letter from T. F. Medina, Nicaraguan Delegate to the League
of Nations, to the Secretdry-General of the League of Nations, dated
29 November 1930 (League of Nations Archives, file number
3C/12843/279) and French translation ...........
Annex8. XXXIX La Gaceta 386-387 (1935) (Referral to the Protocol
of Signature to the Nicaraguan Congress) and English translation
Annex 9. XXXlX Lu Guceiu 1033(1935) (Nicaragua's Senate approves
the Protocol of Signature) and English translati.......
Annex 10. XXXlX Lu Guceru 1673 (1935) (Nicaragua's Chamber of
Deputies approves the Protocol of Signature) and English translation
Annex II. Letter from thc Minister of Foreign ARairs of Nicaragua to
the Secretary-General of the Lcague of Nations, dated 4 April 1935,
and English translation. . .............
Annex 12. Letter from the ~e~aiAdviser of the Letagueof Nations to
the Minister of Foreign AiTairs of Nicaragua. dated 6 May 1935
(Leagueof Nations Archives, filenumber 3C/17664/1589) ....
Annex 13. Letter from the United States Ambassador to Nicaragua
to the Secretary of State, dated 13 May 1943,enclosing a letter from
the Ambassador to Judge Manley Hudson, dated 13 May 1943, and an unsigned copy of the decree of II July 1935 and English
translation ....................
Annex 14. Telegram from Managua to Secretary, League of Nations,
dated 30 November 1939,and English translation .......
Annex 15. Affidavit of Stephen R. Bond, Counselor for Legal Affairs
with the United States Mission to the United Nations in Geneva,
concerning file entitled "League of Nations Archives, 1933-1940,
Procoleet Statut établissantlaCourpernianente deJusticeinternation:
ale, signé à Genèvele 16 décembre1920, signatures et ratifications,
Turquie", Registry Number 3C/19181/1589,dated 31 July 1984 . .

Annex 16. Letter from the Minister of Foreign Affairsof the Republic
of Turkey to the Secretary-Cieneralof the League of Nations, dated
16July 1935(League ofNations Archives,filenumber 3C/19181/1589)
Annex 17. Letter from the Acting Legal Adviser of the League of
~~ti- ~ ~ ~the Minister of Foreien Affairs of the Renublic of Turkev.
dated 29 July 1935 (~eague -of Nations ~rchives, file numb;~
3C11918111589~ ..................
l n Y l'.citcriruni \l Hainm.tr>k,<,ld.K~~gistrar of the Pcrni.ineni
C'oiirt.io ihc I ?il Ailvi\cr oiihc Lcagiir.ofNaii~)ris.dtcd 18>l:irch
1936 Il.rxcur~id .Süti.>n\Ar,.hi\cr.tilniii!ibcr 3C'IV1811589)
Annex19. ett t rom the ~orwe~ian delegate to the'league of Nations
to the Legal Adviser of the League of Nations, dated 15 April 1936

(League of Nations Archives, file number 3C/19181/1589) ....
Annex 20. Letter from the Legal Adviser of the League of Nations to
the Norwegian Delegate to the League of Nations, dated 21 April
1936(League of Nations Archives, file number 3C/19181/1589) . .
Annex 21. Letter from the Foreign Office of the United Kingdom Io
H. McKinnon Wood of the Legal Section of the League of Nations
Secretariat. dated 8 Julv 1937 (L.apue-of Nations Archives, file
number 3~/19181/1589) ................
Annex 22. Letter from W. McKinnon Wood of the Legal Section ofthe
Leaeue of Nations Secretariat to the Foreien -flice of the United
Klngdoni. <l.itcil13Jul) 1.137,cncl,iriiügrioteprep.ircdh) ihc 1rcai)
Ilcpi,tr~tion Rranch <ilihr. Le;ig.ieoi N.iiii>n\Icgil Scr.tinLesgiic
ol'iY.iii~~n,\\r<I,~\c~,file~~i~nibc3rC 19181 15491 .....

Annex 23. Letter [rom the Acting ~egal ~dvisér of the League of
Nations to the Minister of' Foreign Affairs of Nicaragua, dated
30 November 1939 (Leaeil, of Nations Archives. file number
3C/17664/1589 ...................
Anne.\-24. Letter from Judge Hudson to Mr. Lester of the League of
Nations Secretariat. dated 4 Aueust 1942(.eaeue ofNations Archives,
file number 3~/17664/1589) .- .............
Annex 25. Letter from the Acting Legal Adviser of the League of
Nations to Judge Hudson, dated 15 September 1942 (League of
Nations Archives, Filenumber 3C/17664/1589) ........
Annex 26. Letter from the Acting Legal Adviser of the League of

Nations to the Minister for Foreien ARairs of Nicarama. dated
16 September 1942 (League of Nations Archives, fire number
3C/17664/1589) ..................
Annex 27. Leaeue of Nations Official Journal Suecial Suuo..mrr~r.
Number 193,ldated IOJuly 1944,~. 43 ... -. .....Annex 28. Nicaraeuan Instrument of Ratification of the Charter of the
-
l'niied N:iiiolis and th< St;iiidithe Intcrnatiunal Couri or Ju.ticc
.Atitr<21, Kcpi~riiiiSuhcommiiiec I> iiC'oniiiiiitceIV I uii Article 36
of ihc Siatuic JI' ilic Intcrri;itiuri;ilCu,ilJiirive. ddicJ 31 \la\
1945,document 702, UnitedNations Conferenceon Iniernational or&-
nization, Documents, Vol. 13, pp. 557-560(English), 562-565(French)
Annex 30. Proposais hy the Delegation of France relating to Article 36
of the Statute of the International Court of Justice,dated 5June 1945,
document 947, United Nations Conferenceon Inrernalional Organi-
zation, Documents, Vol. 13,pp. 485 (English), 486 (French) ...
Annex 31. Summary Report of Nineteenth Meeting of Committee IV/],
dated 7 June 1945, document 828, United Nations Conference on
International Oreanization. Documents. Vol. 13,A..282-284(E~eli-hl.,,
288-290(French). .................
Annex 32. Report of Rapporteur of Committee IV/1, dated 12 June
1945, document 913, Unired Nations Conference on International
Organization, Documents, Vol. 13, pp. 381, 384, 390-391 (English),
416, 419, 425-426(French) ..............
Annex 33. Signature by Turkey of the Protocol of Signature of the

Statute of the Permanent Court of International Justice and of the
O~tional Clause concernine-the Protocol..Leaeue ofNations Circular
Letter 58.1936.V ..................
Annex 34. Suhmission of the King-.f Sp.in Arbitral Award case, with
Appendices ....................
Annex 35. Letter from the Registrar of the Court tu Judge Hudson,
dated 2 Septemher 1955 (from Judge Hudson's papers on deposit in
the Manuscript Division of the Harvard Law School Lihrary) ...
Annex 36. Letter from the Deputy-Registrar of the Court tu Judge
Hudson, dated 28 Septemher 1955,enclosing a letter from Mr. Pelt,
Director, European Officeof the United Nations, tu the Registrar of
the Court, dated 14Septemher 1955(from Judge Hudson's paperson
deposit in the Manuscript Division of the Harvard Law School
Lihrarv) .....................
Ati,,<,ry7 Ilniira n Niairagus. An Opinion by M:,nlr'y O
IluJ\i>n", Mcmor;iniluni, I>eccniber 1955 (l'rom JiiJgc lIudwn'>
riîrierh <lnJc~~>s~iin ihc \l:in~,cri~i I>~iisioiiui the Ilart~rJ Lsii
School Library) ..................

Annrx 38. Letter from Judge Hudson Io the Foreign Minister of
Honduras. dated 12 Aueust 1955 ffrom Judee Hudson's vaners on
deposit in the ~anusch~t ~ivision of the-~arvard ~a\'~chool
Library) .....................
Anne.r 39. American Treaty on PacificSettlement (the "Pact ofBogota")
Annex 40 Treaty of Friendship, Commerce and Navigation hetween
Nicaragua and the United States of America, signed at Managua,
21 Januarv 1956. entered into force. 24 Mav 1958. 9 UST 449:
TIAS 402i; 367 UNTS 3 ....... '. ...... :
Annex 41. Cornmittee on Foreign Relations, Executive Report Nurnher
9. Commercial Treaties with Iran. Nicdraeua and the Netherlands.
US Senate, 84th Congress, 2d session, 9 JUÏ~ 1956,pp. 1,4 . . :
Annex 42. Intelligence Authorization Act for Fiscal Year 1984, Public
Law 98-215,$109 (a), 9 December 1983(excerpts) ....... XIX

Poge
Annex 43. "For the Record", from a statement, 29 March 1984, hy
Senator Daniel Patrick Moynihan (Democrat - New York), 10April

1984, WashingtonPosl, p. A-20 .............
Annex 44. Congre~sionalRecord, 2 August 1984,pp. H 8268-8269 . .
Annex 45. Report of the National Bipartisan Commission on Central
America, IOJanuary 1984(ercerpts) ...........
Anne,r 46. "Nicaraguan Bares Plan to Discredit Foes", WashingtonPost,
19June 1983 ...................
an ne,^ 47, "Bases for Ferrying Arms to El Salvador Found in
Nicaragua", Washington Posr,21 September 1983 .......
Annex 48. "Cuba Directs Salvador Insurgency, Former Guerrilla
Lieutenant Savs". Neiv YorkTimes. 28 Julv 1983 .......

Annex 49. "~al;ador Rebels Still ~aid to et Nicaraguan Aid", New
York Times, 11April 1984 ............... 284
"~-Fo~mer.~~lvadoran~ ~ ~l Chief Tells ofArms from Nicaraeua". -.
New York Times, 12July 1984 ............. 284
Anne.% 50. United States Department of State, "Communist Interference
in El Salvador", Special Report No. 80, 23 Fehruary 1981 .... 285
Annex 51. Interview with President Magana, ABC (Madrid), 22 De-
cember 1983 ................... 293
Annex 52. Inaugural address of President Napoleon Duarte, San

Salvador, 1June 1984,ForeignBroudcustInformationService, 4 June
1984 ......................
Annex 53. Press Conference with President Duarte (San Salvador),
27 July 1984, ForeignBroadcast Information Service,30 July 1984 .
Annex 54. Broadcasts, Radio Venceremos (Farabundo Marti Libera-
tion Front), Foreign Broadcast Information Service, June-August
1984 ......................
Annex 55. United States Department of State, Congressional
Presentation, "Security Assistance Programs", Costa Rica, El
Salvador, Honduras, FY 1981-FY 1985 ..........

Annex 56. United States Department of State, "El Salvador : Revolution
orReform?', Current Policy No. 546, February 1984 .....
Annex 57. Costa Rican Ministry of Foreign Relations and Worship, Las
Reluciones entre Costa Rica y Nicaragua (Relations between Costa
Rica andNicaragua), 28July 1982,attachments no1provided (English
translation provided) ................
Annex 58. "Honduran Amy Defeats Cuban-Trained Rehel Unit",
WashingtonPost, 22 November 1983 ...........
Annex 59.SpeechhyRoherto Martinez Ordoiïez, Honduran Ambassador
to the Organization of Aniencan States, 14 July 1983, Foreign

Broadcast Information Service,20 July 1983 .........
Annex 60. Remarks of Mr. Flores Bermudez, Representative of
Honduras. before the United Nations Securitv Council, 4 Auri1 1984,
-3- ,......r.,... . . ~ . ~
Annex 61. Diplomatic Notes from the Government of Honduras to the
Government of Nicaragua, OEA/Ser.G, CP/INF.2012/83 (5 July
1983); OEA1Ser.G. CP/INF.2016/83 (II July 1983); OEA/Ser.G.
CP/INF.2187/84 (20 July 1984) ............. 332
Annex 62. Honduran Ministrv of Foreign Relations, Resuméof San-
diirista Aggre.s,rionsin ~ondr<ran~er;tor~ in 1982, from the Em.XX CONTENTS -TABLE DES MATIERS

bassy of Honduras to the United States of America, 23 August
1982 ......................
A,iti<~.6i3I>iplom3iiciï,~ies(rom ihc Go\crnnient of C~lia Rica 10 the
Cj,lvernmenl ,IF Nicaragua. OCA,Ser.C; Ct3/INt'2051183 (3U Sep-
icnibcr 19831: OEA SerG CP,lNt-'2132 b4 (29 t'cbruary 1954);
OFA Ser G CP INI'.?I 52 84 (24 April 1984 J .....
A~III~ ~4.~I>iploniaticUott (rom G<>vrrnmeni oiC~>iia Rica 10I:orr'ign
Mini,tcrs of C,ilomhia. \Ieri~.o. P;ii~ ~n~a.ind Vc~~~~,iMsv. 1984
Annex 65. "Under ~alvador's ~uarte, Death Squad ~illings' Fall",
ChristianScienceMonitor, IOAugust 1984 .........
Annex 66. Editorial, "The Duarte Diilerence", New York Times,

2 August 1984 ...................
an ne.^67. "Program of the Junta of the Government of National
Reconstruction of Nicaragua", 9 July 1979 .........
Annex 68. "Estatuto Fundamental" ("Basic Statute"), Government of
National Reconstruction of the Republic of Nicaragua, LA Gacera,
22 August 1979(English translation provided) ........
Annex69. "Estatuto Sobre Derechos yGuarantias de los Nicaragüenses"
(''Law on Riehts and Guarantees of Nicaramans"). La Gacera.
17 ~eptemher- 1979 (English translation pr&ided)'(reprinted in
Nicaraguan Permanent Commission on Human Riahts, Decreesand
~rovisi&s oflhe PresenrNicaraeuanLeeislarionthot?hreatenHumans

[sic]~ighrsil983), pp. 32 el se;.) . ". ..........
Annex70. "Ley que Aprueba y Ratifica la Convencion Americana Sobre
Derechos Humanos Celebrada en San José,Costa Rica, 1969" ("Law
Approving and Ratifying the AmericanConvention on Human Rights,
Signed al San José,Costa Rica, 1969"), Decree No. 174, LA Gaceru,
November 1979(translation aone..s in document D. deo.sit.d with
the Court) ....................
Annex 71. United States Agencyfor International Development, Annual
Budget Submission F,Y 83 (Nicaragua), Vol. 1,June 1981(excerpts) .
Annex 72. United States Agencyfor International Development, "United
States Assistance Io Nicaragua", 13July 1979-31May 1981 ...
Annex73. Nicaraeuan Permanent Commissionon Human Riehts. Re~orr
- -.,
1983 (Annual Report) ................
Annex 74. "Pastoral Letter on Reconciliation from the Nicaraaua-
Bishops", 22 April 1984 ...............
Annex 75. Comments olCommander of the Revolution and Coordinator
of the Junta of National Reconstruction Daniel Ortega Saavedra,
Managua Domestic Services, 25April 1984as transcribed in Foreign
Broadcast Informarion Servic e, April 1984 ........
Annex76. "Leyde Emergencia Economica ySocial" ("Law of Economic
and Social Emergency"), La Gaceta, 10 September 1981 (English
translation provided) ................
Annex 77. "Ley de Emergencia Nacional" ("Law of National Emer-

gency"), La Gacero, 20 March 1982(English translation provided) .
Annex78. Organization of American States, Inter-American Commission
on Human Rights, Annuol Reporiof the Inter-AmericanCommission
on Human Righrs1982-1983 (excerpts) ...........
Annex79. The International lnstitute for Strategic StudieTheMiliiary
Balance1977-78, London, 1978(excerpt) .......... XXI

Pag
Annex80 1980Nicaraguan order of battle, based on figures compiled
410
by the United States Governinent from unclassified sources ...
Annex 81. 1982 Nicaram., order of battle. hased on fieu-es comnil.d
hy ihc Ci~iteJS1:iles(;ovcrnin-nr irom uncla,rilicd,ourses 410
Atrtlt,h2 I9o4 Si:;ir;igii~n oriler of h~itlh.14 iin iigurrr compilcd
b\ the United S1;iIclGiivcrnincnt l'r<iiiiuiicl.~ssifir.d,UJrics 411
~n&x 83. The International Institute for Strategic StudieThehfilitary
Balance1983-1984, London, 1984(excerpts) ......... 411
Annex84. Arturo Cruz, "Sandinista Democracy? Uniikely", New York
Times, 27 January 1984 ................ 411
Anner 85. Text of Nicaraguan Higher Council of Private Enterprise
(COSEP) Study on the Electoral Process, La Prensu, 26 December
1983.as excer~tedin ForeiznBroadcastInformationService. 5Januarv
-
1984 ......................
Annex86. "Face the People" Program with Commander Daniel Ortega
Saavedra and Junta Memher Sergio Ramirez Mercado, Managua
Domestic Service, 28 July 1984, as transcribed and excerpted in
ForeignRroadcasfInformarionService, 31 July 1984 ......
Annex 87. Alianza Revolucionaria Democratica (ARDE), For Peace
andDemocracvin Nicara~ua. 20 Fehruarv 1984 .......
Annex 88. ~ecl,&ztionof the ~icaraguan~emocroticForceof February
21, 1984, 21 Fehruary 1984 ..............
Annex89. Press Conference, Edén Pastora, AgenceFrancePress report.
renrinted in ForeiznBroadcastInformationService. 13June 1984 . .
~nnéx W. "Ley ~ok~leitientaria i del Decreto 147j" ("Supplemental

Law to Decree 1477"), 6 August 1984(unofficial text, English trans-
lation provided) ..................
Anna 91. "Cancun Declaration on Peace in Central America", annexed
to United Nations document A/38/303; S115877,19July 1983 . .
Annex 92. Note by the Secretary-General, "The Situation in Central
America", S/16041**, 18October 1983 ..........
Annex93. "The Situation in Central America: Threats to International
Security and Peace Initiatives", United Nations General Assemhly
resolution 38/10, 11November 1983 .... ......
Annex94. OAS General Assemblv Resolution of 18~ovemher 1983on
Pc.~ickiti>rtsIICcntr.tl ,\nic~ic.i.A<; Kr.675 (XIll-0 83). 4iidilicd
:iiAnnex II tiitJnitcJ 'ldiioiir Securiry Counril u.i.xmcnr S 16?ii8.

9 December 1983 ..................
Anncx 95. United States Denartment of State. US Efforts ro Achieve
Pe%e in central ~merica, Special Report NO: 115, fi March 1984 .
Annex 96. "Acta de Contadora para La Paz y la Cooperacion en
Centroamerica" ("ilcfa' on Peace and Co-operation in Central
A~~~~.a2'\,, ~a No~ ~ ~~, ~ ~ ~~~ ~II Julv~,984 and 12 Julv~ ~,~
(English translation provided) ............
Anna 97. Broadcast, San José~adio Reloj, Costa Rica, 14 July 1984,
as transcribed inForeignBroodcasrInformation Service (FRIS) (Costa
Rica), 16 July 1984; San Salvador Radio Cadena, 28 June 1984, as
transcribed inFBIS, 2July 1984(El Salvador); La EsfrelladePanama,
27 June 1984, as reprinted in FBIS, 28 June 1984 (Honduras);

Panama. ACAN. 4 Julv 1984. as transcribed in FBIS. 5 Julv 1984
(Guatemala); Managua, ~adio Sandino Network, IO JUI~ 1984,
as transcribed in FBIS, Il July 1984 (Nicaragua); Managua Dom-XXII CONTI~NTS-TABLE DES MATIÈRES

estic Service,25July 1984,as transcribeFBIS,25July 1984(Nica-

ragua) .....................
Annex 98. FSLN Comandante Henry Ruiz, Barricada,Managua,
25 July 1984(English translation provide.........
Annex 99. NOTIMEX, Mexico City, 28 June 1984, as reprinted in
Forei~nBroadcusrInformationService,2 July 1984 ......
Annex 100. "Nicaraguan Hails 'Fluid' Talkswith US on Security",

Wusl~ingtoPnosl,12August 1984 ............
Annex 101. United Nations Securitv Council resolution 53~ (19,,).
19 May 1983 ...................
Annex 102. Communication to the Registrar of the Court from Costa
Rica. 18Aoril 1984 .................
~nne.r'l03. ~ommunication to the Registrar of the Court from El

Salvador, 19April 1984................
Anner 104.Note EromHonduras to the Secretary-General of the United
Nations, 18April 1984 ................
Ani:e.r 105Ministry of Foreign AiTairsof Guatemala, Press Release,
16Apri1 1984 ...................
Anne.ï 106.Memorandum of John Foster Dulles conccrning acceptance

bv the United States of the comou, Arv iurisdiction of theInternational
court of Justice, reprintin'~ompulsoryJurisdicrion,Infernarional
Court of Jusrice;IleuringshefoaeSubcommirree of theSenuteCorn-
mirfeeon ForeignRelarionsonS. Res.19679th Cong., 2d Sess.(1946)
Annex 107. Report of SenureForeign RelurionsCommittee, No. 1835,
79th Cong.,2d Sess.(1946) ..............
Anne-r 108.Note from the Government of the United Statcs to the
~ ~~ ~~ ~~ ~~ ~ ~ ~
Secretary-General of the United Nations, 6 ~~ril 1.....
Anne.ï109.United States Department of State, Departmental Statement.
8 April 1984 ...................
Annex 110. Translation of news report inCriticof observations by
Foreign Minister Oyden Ortega Duran of Panama, 14October 1983
Anne-r111. Certification................

Dcclaration of Interventionof the Republic of ElSalvador (Article63 of the
Statute)- Déclarationd'intervention de la Républiqued'El Salvador

(articl63du Statut)

Written Observations on the Dcclaration of lnterven-ioObservations
écritcssur la déclarationd'intervention

L~TTER PROM THE AGENT OF NICARAGU AO THE REGISTRAS RUBMITTING
THE OBSERVAT~ OPNSICARAGU AN THEDECLARATI ON~NTERVENT~ON
OP El. SALVAUO DRAT~I>10SI~PTEMB1 E984 ..........

L~TTI~R FROM THE AGENT OF THB UNITEDSTATES OF AMERICA TO THE
REGI~TMR OF THE ~NTERNATIONAL COURT OF JUSTICE SUBMITTIN THE
OBSERVAT~O NFS THE UNITEDSTATFS ON THE DECLARATIO OF
INTI~RVI~NT OIOELSAI.VADO DRATEO 14SEPTEMBE 1984 .....
LETTllR PROM THE AGENT OF EL SA~,VA~> O0RTHE REGISTRA RF THE
~NTGRNATIONAL COURT OFJus~lcli DATE017SEPTEMBE 1984 ....COUNTER-MEMORIALOFTHEUNITEDSTATES
OFAMERICA
(QUESTIONSOF JURISDICTION
ANDADMISSIBILITY)

CONTRE-MEMOIRE
DES ÉTATS-UNIS'AMÉRIQUE
(QUESTIONSDELA COMPETENCE
ETDE LARECEVABILITÉ) INTRODUCTIONANDSUMMARY

INTRODUCTION

1. In its Order of 10May 1984,the Court decided that the written proceedings
in this case should first be directed to questions of the junsdiction of the Court
to entertain Nicaragua's Application of 9 April 1984against the United States
of America (hereafter the "Application") and to questions of the adrnissibility
of that Application. By Order dated 14 May 1984, the Court directed the
Republic of Nicaragua (hereafter "Nicaragua") to filewith the Court hy 30 June
1984a Mcmorial addressing those issuesand directed that the United Sttites of
America (hereafter the "United States") filea Counter-Memorial on the sarne
issues by 17 August 1984. The lJnited States submits the present Counter-

Mernorial in accordance with the Court's Orders of 10 and 14 May iind in
response to Nicaragua's Mcmorial of 30 June 1984(hereafter the "Nicaraguan
Memorial").
2. The United States responds in this Counter-Memorial to the questions of
jurisdiction and admissibility which the United States has determined to be
presented by Nicaragua's Application and Mernorial. The United States reserves
its nghts, including its rights under Article 79 of the Rules of Court, to object
to any other question of jurisdiction or admissibility arising in the course of
subsequent pleadings or proceedings.
3. The United States notes at the outset ihat, as Applicant, it is Nicaragua's
burden to prove that the Court kasjurisdiction and that ils Application is other-
wise admissible. The United States will demonstrate in this Counter-Memo-
ru1 thai hizaragu:~ h.1, nut met. aiid cinnot nicci. ihat hurden. Spcc~iiclill),ihc
clairni ici Cxth in 'Iirarügu.i'r App1ii;itidn ;ire n,ir uith~n ihc jurisd!~iion or
ihc Court bciaure Sicarücua ha3 noi itsclf accc~tcd ihe Couri'. cornnulsor)
iurisdicti~~ ~n anv resoect.-1n addition. ~icaraeua.'~clairns do not corne within

ihe scope of the unitid States acceptance of ths Court's jurisdiction. Further.
Nicaragua's claims are, in any event. inadmissiblebecause(1) they irnplicate the
riehts and interests of indlsoensable oarties. (2. t..v have been ororxrlv
c&unitted IO modes of peacef;l resoluti~n other than adjkdication by thk ciuri,
and (3) tbey cal1 for determinations entrusted by the Charter of the United
Nations to the political organs of the United Nations.
4. Nicarse-a's Ann,.cation nresents the Court with several imoortant issues
of lirït iniprc,*iiin. \Viih respect to jiirisdi.lion. 15ithe lir\t iirniIi;i;tSt;itc
hh ~iiernp~cd 10 jnvoke ihc C'ourl' compuls~~rjyiirisdiciion in thc iull knoulcJgc
ihat II hsd nc\cr itscli dcicoted ihai iuridiction. Thi. irulwi the Tirsitinic ih;ii
a State has filed an ~~~lic&on seekkg to invoke the Court's compulsory juris-
diction in the face of a properly and timely filed statement by the Respondent
explicitly suspcnding the claims in the Application from the scope of the
Respondent's declaration.
5. The most basic premise of the Court's contentious junsdiction is that it
rests on the consent of the parties. Where one party has not properly consented
to that jurisdiction, the Court has no authority to adjudicate the dispute. A4 MILITARY AND PARAMII.ITARY ACTIVITII9S

fortiori, where, as here, neither party has consented, the lack of jurisdiction
is manifest.
6. Nicaraeua's claims raise issues of first imoression of eaual eravitv with
respect to the fundamental allocation of instititional compeienc~ under the
United Nations Charter. This is the first time that an Application kas alleged
the existence ofon-eoinp arrned hostilities and reauested that the Court intervene
in thosc hostilitici. C\,cn-moreimportanily. it 1,the iirsi tinic that a St;itccngagcd

in armçd Iiggrebiiontig;iinstits neighhirrr h~ssought IO use the Court as a mcins
of preventing another State from going to the~assistance of those neighbors
pursuant to the inherent nght of individual and collective self-defense.
7. The United Nations Charter deliberately vested the political organs of the
United Nations with the competence to deal with alleged acts of aggression or
breaches of the peace. As evidenced by the very novelty of Nicaragua's claims,
the United Nations Charter never contemplated that this Court would resolve
allegations and counter-allegations concerning region-wide armed hostilities in

the midst of those hostilities. Nicaragua's attempt to bring such allegations
before the Court in the circumstances of this case thus attempts to circumvent
an important, agreed allocation of institutional competences under the Charter.
8. The political organs of the United Nations and of the Organization of
American States. rnoreover. have alreadv endorsed the so-called Contadora
process as the appropriate forum for the consideration of Nicaragua's security
concerns. Those negotiations, 10 which Nicaragua is a varty, permit, unlike the
prescnt ludicial prucecJing. 3 re~olutionoi Uiccrdgua'sgrici.;inccsInconjunction

uith thc gris\,:incc. i~iothcr C'cntrdl,\mcricdn St;itcs iigiiinsi Ni<aragua The
ContliJ<~rdnegoti:iiioii~.agdin unlikc the prcjent luJici.iI proreciling. perniil the
resolution of complex social,economic and politicdl problems of Central America
as a whole: unless those underlvi,e -ausal ~roblems are satisfactorilv addressed
nt the \ami timr..an? detsrminxti<~noicunipcting se;urity ;ldimr will ~ltini.iisly
hc illusor?. Uicdr~gua'sIiitcmpl IIIils i\pplic.iiii~n lu isoldtc Uiciiragud'r ~.ldim\
frorii ihosc<II I> ncighbors tliercl'a)rc;<>nir.>ntsth,, Cuiirt \i,ith the poi~ihilityof
~copardi/ingthc C:untadura ncg<>iiation,in :ichicieiiicnt ,>id suc;csiiul rcsoliition

ol'thc i.~mplr.r probleriir orthe r:gi.>n a.;.i uliolc. SUMMARYOFARGUMENT

9. As Aoulicant. Nicaroeua bears the burden of demonstratine that the Court
ha, ,uridi;.;ion and thït i; çlliims arc adniis,iblc Thls burclcn rcïogni/ed by
the Court'\ Ordcr of 14 May 1984dirccting Nicaragua icidddrcss thorc isiucs
Tirsi.The United States willdcm<,n,trstc inthisCountcr-hlcmorial thai Nir;iraeu;i -
h3s nut met. :ind cannot nicet. its burdcn Nicaragua h<ision\pi~.u<iuslyf:111ed to
pri>\cc\.cn ihr lirst prcrcquisiie ofc<>nipuls<irj)urirdtcii<>n.namely thai Nizir;iguï

has itselffiled an effectivedeclaration~accepting that jurisdiction.
10. The United States will de~o~strate in this Counter-Memoria~ ~~ ~. for
each of several additional rasons, the Court does not havejurisdiction over the
claims set forth in Nicaragua's Application. The United States will then demon-
strate that, even assumingarguen&> that the Court has jurisdiction, Nicaragua's
claims are inadmissible.
II. The Court lacks jurisdiction, first, because Nicaragua attempts to invoke

the Court's compulsory jurisdiction without itself baving accepted that jurisdic-
tion. This fatal defect in Nicaragua's Application goes io the very foundation of
the Court's compulsory jurisdiction system. Each State participating in that
system does so only with respect to other States accepting "the same obligation"
under Article 36 (21 of the Statute of the Court. This nrecondition is itself
derived (rom the &oit fundamental principles of internatio~allaw - reciprocity
and the equality of States. A State that has not acccpted "the same obligation"

may not, without seriously violating those principles, invoke the Court's cimpul-
sory jurisdiction.
12. Nicaragua's failure to accept the Court's compulsory jurisdiction and its
consequent inability ta invoke that jurisdiction against the United States are
discussed in Part 1 of this Counter-Memonal. Nicaragua maintains that a
declaration ilmade in 1929with regard to the Permanent Court of International
Justice must be "deemed" an acceptance of this Court's jurisdiaion under Article
36(5) of this Court's Statute. Article 36 (5),however, speaks only of declarations

"still in force" when the Statutc of the present Court became operative. This
Court has stressed on several occasions that the purpose of this language was to
secure a continuity in the compulsory jurisdiction of the Permanent Court, not
Io impose new, expanded obligations on States. Article 36 (5) thus did not apply
in 1945to Nicaragua's 1929 declar;ition and for a very simple reason: Nicaragua
had deliberately refrained from the necessary legal acts to bring the 1929
dcclaration into force under the Permanent Court system.

13. Nicaragua attempts to avoid the ineluctable implications of the plain
language and purpose of Article 36 (5) of the Court's Statute primarily by
referring to confusion in the lirerature concerning Nicaragua's slatus with respect
to the Court's comnulsorv iurisdiction. This confusion arises from eauivocal
statements by ~icara~ua the life of the permanent ~oürt that it ilonned
to take the necessary legal stcps to bring ils declaration into force. Nicaragua
did not take such steosl however. and in ils Memorial concedes that it never
undertook "a binding'acceptance of compulsory jurisdiction" of the Permanent

Court (para. 47). Nicaragua nevertheless now seeks to benefit from its own
equivocation and from the confusion that Nicaragua's conduct has created.
14. Thestatus of Nicaragua's declaration sincethe advent of the present Court
kas come under rigorous scrutiny only once before, in the negotiation and6 MILITARY AND PARAMILITARYACTIVITIFS

mediation effort culminating in the Kingof Spain Arbitral Award case.Nicaragua
and Honduras there entered into a specificcompromissubmitting the case to the
Court - an act wholly unnecessary had Nicaragua's declaration heen in force
as a result of Article 36 (5). In the course of the negotiations that led up to that

compromis, Nicaragua's Amhassador to Washington advised the United States
that Nicaragua's 1929 declaration was no1 legally effective, and former Judge
Manley O. Hudson advised Honduras that Nicaragua had no1 accepted the
compulsory jurisdiction of the Court. The Registrar of the Court at the time
concurred. After tboroughly examining, at Judge Hudson's request, the Court's
records, the Registrar in 1955advised Judge Hudson as follows:

"1 do not think one could disagree with the view you express when you
sav that it would bedifficultto reeard Nicarama's ratification of the Charter
ofthe IJniieJ Naiions as airectini thai ~i~tc'yii~c~~t~nce of the compulsory
jurisdiction Ifthr Dcclaraiion ofScptcmhcr 24th. 1929.was inP~ctincllcct~vc
bv rason ofi~ilure I~Ir.itiïy the Protocol ofSignaturc, 1ihinkiiisimpi,*~ihle
Io sdy that Nic.ir.igu.i'sr;itifi~.;iiionof ih: Charter could make ii ciTecti\c
;ind ihcreforc hring !ni<>pla) Article 36. p.ir.igr:iph 5. .if the SI:IIOSihc
present Court."

The Dircitor oi the I.c;igucof N\';itionArchi\,cr ai Ciencv:isub,cquentlv adviscd
the Kegisrry.and ihe Registr) adviscd JuJge Hudson. thai Nicaragua's "insiru-
ment of r;itific;iiionwas ne\er dcnoiiieJ with the I.sarue <ifSatiiins Serretariai".
therehy confirming the ~e~istra?s conclusion that ~7cara~ua's 1929declaration
was "ineffective" under the Statute of the Permanent Court and could not have
been hrought "into play under Article 36, paragraph 5, of the Statute of the
Court".

15. In short, the plain language and purpose of Article 36 (5) and the
overwhelming evidence since ils adoption indicate that Nicaragua cannot he
deemed to have accepted the compulsory jurisdiction of this Court under that
provision of its Statute. Had Nicaragua genuinely desired to accept the Court's
compulsory jurisdiction, it could have readily done so by depositing a proper
declaration pursuant to Article 36 (2) and (4) of the Statute. Nicaragua has not
done so. Nicaragua may not be considered a State that has accepted "the same
obligation" as other States under the compulsory jurisdiction system and,
accordingly, may not invoke that jurisdiction against the United States.
16. The question of the legal effectivenessof Nicaragua's declaration requires
only limited facts directly relevant to that declaration and its status. The
remaining United Statesarguments require a more general familiarity with events
in Central Amenca as a whole. In Part II, therefore. the United States offers a
hrief overview of the current region-wide conilict in Central America sufficient
to place in context the remaining United States arguments as to jurisdiction and

admissihility.
17. The United States will show in Part 11..irst..that contrarv to its assertions
to this Court, Nicaragua is engaged in an armed attack against'its neighbors. As
United States Secretary of State George P. Shultz observes in his affidavit of
14 August 1984:

"3. The information availahle to the Government of the United States
through diplomatic channels and intelligencemeans, and in many instances
confirmed hypublicly availahle information, establishesthat the Government
of Nicaragua has, since shortly after its assumption of power in 1979,
engaged in a consistent pattern of armed aggression against ils neighbors.
Other responsible officiaisof the United States Government, including the President and the responsible Committees of the United States Congress
having access to such information, share this view. In addition, responsible
officiaisof other States in the region have reacheda similarconclusion based
on their own sources of information.
4. The United States has abundant evidence that the Government of
Nicaragua has actively supported armed groups engaged in military and
paramilitary activities in and against El Salvador, providing such groups
with sites in Nicaragua for communications facilities,command and control
headquarters, training and logisticssupport. The Government of Nic;iragua
is directly engaged with these armed groups in planning ongoing military
and paramilitary activities conducted in and against El Salvador. The

Government of Nicaragua also participates directly in the procurement, and
transshipment through Nicaraguan territory, of large quantities of ammu-
nition, supplies and weapons for the armed groups conducting military and
paramilitary activities in and against El Salvador.
5. In addition to this support for armed groups operating in and against
El Salvador, the Government of Nicaragua has engaged in sirnibarsupport,
albeit on a smaller scale, for armed groups engaged, or which have sought
to engage, in military or parainilitary activities in and against the Republic
of Costa Rica, the Republic of Honduras, and the Republic of Guatemala.
The regular military forces of Nicaragua have engaged in several direct
attacks on Honduran and Costa Rican territory, causing casualties among
the armed forces and civilian populations of those States." (Ann. 1, paras.
3, 4, and 5.)

18. The United States will further show that the complex political, military,
economic and social claims and counter-claims in Central America are now
subject, by the agreement of al1governments concerned, including Nicaragua, ta
the multilateral negotiations known as the Contadora process. That process has
been endorsed bv the United Nations Securitv Council and the Oreanizadon of

American ~tatec The United States also enàorses the contadora-process and
has, in good faith, enteted into collateral negotiations with Nicaragua to suppo.~
that process.
19. The United States will show in Part 111of this Counter-Memorial that,
for two reasons, each having to do with the situation in Central America,
Nicaragua's claimsdo not come within the terms of the United States declaration
accepting the compulsory jurisdiction of the Court. Since the declarations of the
two Governments do not, therefore, concur in comprising the claimswithin their
scope, the Court lacks jurisdiction over Nicaragua's claims regnrdless of the
Court's conclusions with respect to the status of Nicaragua's 1929declaration.
20. Nicaragua's claimsdo not come within the scope of the United States
1946 declaration, first, because Nicaragua's claims arise under multilateral
treaties. and al1of the States that are ~arties to those treaties as well as ~arties

to thç underl)ing iliipuier aie noi priic., io the cass beforc.thc Court. Provi>< 'cm
(hercifiir ihr. ~~niuliil;iter~ltreÿty rcicri,aiii)n"j<)l'the Uniicd Staics 1946
dc~~lar~iion accentin&the r.omr>ulsiryiurisdiciion of ihi C<)urisiaicd thai the
declaration wouid no1apply 10:

"disputes arising under a multilateral treaty, unless . . .al1 parties to the
treaty aiTected by the decision are also parties to the case before the
Court . ..".
The United States thus expressly excluded from its consent to the Court's
compulsory jurisdiction multilater;il disputes arising under multilateral treaties8 MILITARY AND PARAMILITARY ACTIVITIES

unless al1of the treaty parties that would be aKectedhy a decision of the Court
were before the Court. Byadopting the multilateral treaty reservation, the United
States refused to be bound by a judicial construction of its rights and obligations
under a multilateral treaty in the context of a specific, multilateral dispute un-

less that judicial construction were also binding on al1of the treaty parties to
that dispute.
21. Nicaragua's Application is based on allegations about United States
compliance with ils obligations under the Charters of the United Nations and
the Organization of American States (hereafter the "OAS'). Those treaties
subsume al1the legal standards arguably applicable to Nicaragua's allegations
and are, in any event, the applicable law between the Parties. All of the other
Central American States are also parties to the two Charters and, moreover, are
parties to the disputes on which Nicaragua's Application is based. Those other
States are not, however, before theCourt and cannot be compelled to enter this
proceeding. Indeed, those States have expresslycommunicated to the Court their
views that adjudication of Nicaragua's claims would be inappropriate.
22. Nicaragua's claimsfall squarely within the multilateral treaty reservation.
It is apparent from the face of Nicaragua's Application that the relief Nicaragua

seeks cannot be granted without implicating the rights and obligations of its
Central American neighbors. In the absence of the other Central American
States, there cannot be a full and fair development of the facts relevant to
Nicaragua's claim. And in their absence, neither the rights and obligations of
the other Central American States, nor the rights and obligations of Nicaragua
toward those States, can be determined by this Court.
23. Most importantly, if the Court were to grant the relief Nicaragua requests,
only one affected State, the United States, would be hound by the Court's
interpretation of rights and obligations under the Charters of the United Nations
and the Organization of American States and the other multilateral conventions
on which Nicaragua's claims are based. This is precisely the situation that the
United States excluded from its declaration hy means of the multilateral treaty
reservation. Nicaragua's claims do not, therefore, come within the scope of the
United States 1946 acceptance of the Court's compulsory jurisdiction. The
implications of the multilateral treaty reservation are discussed in Part III,

Chapter II, of this Counter-Memorial'.
24. Further, on 6 Apnl 1984, the United States filed with the Secretary-
General a note modifying its 1946declaration. That note temporarily suspended
claims such as those presented in Nicaragua's Application from the scope of the
United States declaration. Nicaragua acknowledges this but challenges the
validity of the note itself. The United States will demonstrate in Part III,
Chapter III, of this Counter-Memorial that the 6 April 1984 note, under the
present law and practice of the Optional Clause system, was fully valid with
immediate effect. Even if not validerga omnes,moreover, the 6 April note was
effectivevis-à-vis Nicaragua, whose declaration, assuming for purposes of argu-
ment that it isvalid at all, is subject to immediate denunciation and modification.
25. Finally, in Part IV of this Counter-Memorial, the United States will
show that Nicaragua's claims are not admissible, irrespective of the validity of

Nicaragua's declaration and irrespective of whether the claims are comprised

' On the basisof Nicaragua'spleadingsto date, the UnitedStateshasdcterminednot
to invake praviso "b"to the UnitedStates 1946 declaration(the so-called"Connally
Rescrvatian")..Thisdeterminationis withoutprejudiceto the rightrofthe UnitedStates
undcr that provisoin relation toany subsequentplcadings,proceedings or cases before
thisCourt. COUNTER-MEUORIAL 9

within the terms of the United States declaration. On its face, Nicaragua's
Application asks the Court to determine that the United States is engaged in
aggression and a breach of the peace - in the midst of the armed hostilities on
which these allegations are based. Such a determination in this case is entrusted
by the Charter to the political organs of the United Nations. Under present
circumstances, moreover, any such determination as that sought by Nicaragua,
as well as the relief rcquested hy Nicaragua, would directly and necessarily
implicate the rights of other Central American States, including their right of
self-defense and their right ta request assistance from the United States to that
end. Those States are, accordingly, indispensable parties in whose absence this
case may not proceed.
26. General judicial discreiion arising out of the nature of thejudicial function
also counsels against consideration of Nicaragua's Application by this Court. A
court of law is not equipped to analyse and attempt to resolve the Ruidsituation
presented by on-going armed hostilities, particularly hostilities involving numer-
ous parties not before the Court. Nor is a court of law suited to addressing

underlying social, economic and political circumstances which, if unresolved,
will, as a practical matter, render illusory any determination of rights and
obligations relating Io armed hostilities. Such situations are more suitable for
the political processes ofnegotiatioi~,which are already engaged in the Contadora
process to which Nicaragua is Party.
27. The claims presented in Nicaragua's Application are, therefore, no1within
this Court's jurisdiction and are not admissible. The United States respectfully
suhmits that the Court must therefi~redismiss Nicaragua's Application with pre-
iudice. PART1. NICARAGUAHAS NOT INVOKEDAN EFFECTIVE
TlTLEOFJURISDLCTION

INTRODUCTION

28. As Applicant, Nicaragua kas the hurden of proving that the Court has
jurisdiction and that the claim is well founded in tact and in law (Statute of the
Court, Art. 53). As the United States will show in Part 1 of this Counter-
Memorial, Nicaragua has failed to establish an effective title of jurisdiction.
29. Nicaragua never accepted the compulsory jurisdiclion of the Permanent
Court and has taken no action to accept the compulsory jurisdiciion of this
Court. Nicaragua mav not. therefore. invoke the comoulsorv.iArisdiction of this
Couri againri ihe IJnlicii St;ttc,.In iirMimoriül. althr>iighnot in its ~Ippliw.
itiin. Nicxragu~ha5dlso iittcrnpinl io bas jurisdiiti<~nupon Article36 (1 )of the
Siatuii and ihe Fricnd>hip.Coninicrcc anJ N~viraiion ï're;itv beiwccn ihi IWO
States. That treaty, howevêpi,s irrelevant to the diGute which iithe subject-matter

of the Application and, by its lems, does not provide a hasis of jurisdiction.
The FCN Treaty may not, in any event, be invoked for the first time at this stage
of the proceedings.
30. The absence of a title ofjurisdiction is a deficiency of such gravity thit
should be addressed hefore any other issue as a plea in bar of fundamental
importance (Nolrehohm.Second Phuse,Judgmeni,ICJ. Reports 1955, p. 4, at
p. 12). Nicaragua's failure to identify any valid title requires that Nicaragua's
Application be dismissed. CHAPTER 1

NICARAGUA HAS NEVER ACCEPTED THE COURT'S COMPULSORY
JURISDICTION AND THEREFORE HAS NO RIGHT TO INVOKETHAT
JURlSDlCTlON AGAINST THE UNITED SI'XL'ES

Section1. Nicaragua NeverAcceptedthe CompulsoryJurisdiction of the
Permanent Court of InternationalJustice

31. Nicaragua now concedes that il never accepted the compulsory jurisdic-
tion of the Permanent Couri of International Justice (hereafter the "Permanent
Court") (Nicarapuan Memorial, vara. 47). It neverthelessis necessani to recount
the re&irements of the ~ermanent ~oht system and ~icara~ua's failure to
satisfy those requirements because Nicaragua's argument that this Court has
jurisdiction rests largely upon a fiction, namely that Nicaragua had accepted the
com~ulsorv,iu.isdiction of the Permanent Court exceot in resnect of some
"unimpi,rtlint tcchnicalitics" thdi ucrr "i~rcd" by iidhcrcnx to the I:niinl
N;tti<inrChiirier and the prcssnt Si:iiuic or h) suhscqucnt c<iiiduct<iI'lhcParti<>.
In fact, Nicaragua never accepted nor intended to accept any obligation under
the Protocol of Sienaturc to the Statute of the Permanent Court. includine
Article 36 of that eourt's Statute. Nicaragua's adherence to the charter an2

subscquent conduct cannot constitute compliance with the rcquircments of the
present Court's Statute for acceptance of compulsory jurisdiction

A. OnlyPartiesto rhePrr~rocoo lfSignatureIo theSraruieof rhePcrmunenlCourt
ofInternationalJusticeCouldArceprchatCourt> Compulsory Jurisdiclion

32. The Permanent Court of International Justice was established pursuant to
Article 14of the Covenant of the Leapue of Nations. The Permanent Court was
not an ore-n of the Leaeue. ~athër. its Statute was an indenendcnt leeal -
in,irument ahich Si;iic>c<iuldh~.corncpartiesby dcpositing lin insiruineni uf
rattlicaiion of separaie Proiocol or Signature (M. IluJsiin.71te Perfri<rtte,r!
' 1 i l 1 J.. IL2O-1942. DD. 122-120 11543 iIhcreliftcr"tluJson.
The ~e;manentCourt")). The Protocol of'signature was opin to Members of thé
League of Nations and to States listcd in the Annex to the League of Nations
Covenant (6 LeagueofNurionsïkeury Series380 (hereafter"LNTS")).
33. The Protocol of Signature stipulated the procedures by which a State
could become party to the Protocol and, thereby, become party to the Statute
of the Permanent Court:

"The present Protocol, which has heen drawn up in accordance with
the decision taken by the Assembly of the League of Nations on the
13th December, 1920, is subject to ratification.Each PoicersIzu11sendirs
rurificarionro rheSecrerary-Ge~ierolf rheLeagueof Nurions:rlteluifer shull
roke the necessarysreps IO noli/y such ratification to the n~hersignatory
Poivers.The rarificuiionshallhe deposiredin rhearclzivesof rhe Secretariar
of rheLeagueffNuiions." (6 LNTS 380; PCIJ.. Series D. No. 1(2nd ed.),
p. 7 (italics added).)

The 1929Protocol for the Revision or the Statute of the Permanent Coiirt of12 MILITARY AND PARAMILITARY ACTlVlTlES

International Justice also required the deposit of an instrument of ratification
with the Secretary-General of the League of Nations'.
34. Thus, thc Protocol of Signature and the Revision Protocol were both
treaties requiring ratification and the deposit of an instrument of ratification.

When a treaty expressly requires ratification as the means by which a State
exoresses its consent to hecome bound bv the treatv. ratification is an indisoens-
abie requirement? This sine qua non incl;des compiiance with stipulations the
treaty concerning the means by which ratification is to be made effective.
35: The law rëquires strict comoliance with formal orocedures for acceotine.
treaty obligations'in order to ensire certainty of obligation. "Parties to inter-
national compacts must know when they become irrevocahly hound hy the
compacts." (H. Blix, "The Requirement of Ratification", 30 British Year Book
of International Law, p. 352, at p. 356 (1953) .)So, too, parties to a treaty must
know with certainty which other States are hound. The requirements stipulated
in the particular treaty ensure such certainty. Accordingly, States could not
become party to the Protocol of Signature and the Statute of the Permanent
Court except by expressing their consent in the manner prescribed, namely by
deposit of an instrument of ratification of the Protocol of Signature with the

Secretary-General of the League of Nations (Hudson, The Permanent Court,
r.~ 125-128).
36. ~rticfe 36 of the Statute of the Permanent Court contemplated that parties
might undertake an additional obligation by acceptinn the Permanent Court's
comoulsorv . ,isdiction. that is. tlÏe oblieation io accent as res~ondent the
jurisdicti~~ii.iitlic Cour1 upon th: filin$ o.iiir\pplii.ili<~nigiin>i lh;il p:ir'r0
ï.i:tlitaic th13the 19211I'rotoiol oi Sign.irurc cont&~ncdthe so-~~ll:J "Opti~~ntl
Cl.~u,c" h\ uhi~h VJrliCrIo the I'r<,tii~.oloulil nitikc deil:ir;itionr di.cri-inr: the
~ermaneni court'; compulsory jurisdiction :

"The undersigned, being duly authorized thereto, further declare, on
behalf of their Government, that, from this date, they accept as compulsory,
ipso facto and without special Convention, the jurisdiction of the Court in
confonnity with Article 36, 52, of the Statute of the Court, under the
following conditions . . ."(6 LNTS 380.)

37. As Judge Manley O. Hudson of the Permanent Court wrote in his treatise
on that Court, the Optional Clause was:
"a suhsidiary, not an independent,instrument. It was designed to serve only
as a text for the declarations referred to in oaragraph 2 of Article 36 of the
Statute. and as such declarations mav he made bv~embers or States onlv

uhcn jigiiiiig .Ir r.itii!~ng thc I'rc,i'i Sign;itiirc '.lit.iI:~tcrrn<>nlçni'.
tlic sign3tiirc ;and raiili:itiiof the 0ptiun;il CI:iure .ire rlcpcnilcnt ~poii
thc jigu.iii~rC"nd r~tili~.iii.~i>ithe Protoc,,l Sign.iiurc. :1 S'IUI,,'ii»z,,r

' 165 LNTS 357, Leagueof Nalions Ofici111 Journol(hereafter"LNOJ"), 10thYcar,
No. 12, 1929, p. 1843.Thc Revision Protocol came into forcc on 1 Fcbruar y936.
Thereafter,acceptances of thc PermanentCourt'sStatuteconstitutcdacceptancesof that
Statuteas arnended by the RcvisionProtacal.
No.'16. 1929. P.C.1.J. Series A.iNo.n23.n00.21-22: Amburielos.Preliminorv Ohiection.
~udxm~meLnC i,J. Reports1952,D.10,al p.4j:~avana~onvention an ~reaties,'2~ébruari
1928,Arts. 6 and8, 22 AmekironJoÜrnalof InternolionalLaw, Supp., p. 138(1928j;
ViennaConvention on theLaw ofTreatiesArt. 14;Harvard Law SchoolDraftConvention
on the Law of Treaties. 29 AmericanJournal of InternalionalLaw. Suoo.. ... 655. at
pp.739-778(1935); J. ~ervyn Joncs, Full ~owe;r and Ratificaario ;p.111-112(1946);
A. McNair, TheLaw of Treoties, pp. 130-134(1961). becomeo party IO the Opiional Clairseunlessir becornesor lias becomea
poriy also ro rhe Prorocol of Signaiure." (ThePermanenrCourt, p. 451
(italics added).)

38. In short, a Stale could no1 accept the Permanent Court's compulsory
jurisdiction unless it had properly ratified the Protocol of Signature and thereby
had become a party to the Statute of the Permanent Court.

B. NicaraguaNeverBecamePurly IO rheSluruteofilie PerrnunenlCourr

39. The following chronology shows that Nicaragua never becarne party 10
the Statute of the Permanent Court.

1. 14Seprember1929: Nicaraguasignedbu1didnorrarfy theProrocolof Signaiure

40. Nicaragua became a Member of the League of Nations on 3 November
1920,but did not sign the Protocol of Signature until 14 September 1929 when
il also signed the Revision Protocol (LNOJ, 10th Year, No. 12, 1929,p. 1811).

2. 24 Seplember1929: Nicaraguamadean inelpeciivedeclararionunderihe Op-
iional Clauseoj the Proiocol cf Signature

41. On 24 Septemher 1929, Nicaragua signed the Optional Clause and made
the following declaration:
"Au noin JI.1.1K6puhliquc J: Zi:;iiligu3js d6clar.' rcc$>nnditrer.,inmc

ohli~lii.iircci >.in,ioniliiion I;,juridi<ii,>nJe la COLIpcriiiJnente de Justicc
internationale.
Genève,le 24 septembre 1929.
(Signé) T. F. MEDISA."

(88 LNTS (1929), Ann. XXII, p. 283.)
This was translatcd by the Registry of the Permanent Court into English as

follows:
"On hchalfof the Kepublic $4'N~c;IIJ~~.I rrl.t~pnveilsivmpulr~ry uncon-
diti,inn.lv t.c iurid~ction orihe Pcm~ncnt Coun t ~Inteniaii~~ns us ri:^

Geneva, Septemher 24, 1929.
T. F. MEDINA."
(P.CIJ.. Series E, No. 6 (1929-1930), p. 485.)

42. The declaration, however, was not and could not be legally effective, as
Nicÿrÿgua had not ratified the Protocol of Signature and therefore had not be-
come a party to the Statut$ of the Permanent Court (PCLJ, Series E: No 6
(1929-I930), pp. 56, 146;A. Hammarskjbld, Juridiclion internalionale ,p. 669-
670 (1938)). Correspondence on file in the League of Nations archives confims
that the declaration was not in efict'.
43. By letter of 22 Octokr 1929, the Government of Switzerland enquired

whether Nicaragua's signatureof the Protocol of Signatureand of the Optional
Clause was subject to ratification(Ann. 3). The Lcgdl Adviser of the League of

' Furtherinquiricsat theLeague ofNations archive n Cenevahaveuncovcredanother
filerelatin10 Nicaragua,file No.3C/12843/279i,n addjtionIo lile No.3C/17664/1589,
reproducedand submittedto the Court in connectionwiththe pleadings on provisional
forrLcgalAffairsin Ceneva,concerningthe additionalfile.d,UnitedStatesCounselor14 MILITARY AND PARAMII.ITAA RYCTlVITlES

Nations Secretariat wrote in resoo,se ~ ~t ~ ~~Pr~t~c~ ~ ~ ~imatuue was s~hie~ ~ ~ ~
raiilic~iion and th31 Kicaragua's .ib(naturc uoulJ unly hdvc elfcvi on the datc of
deposit of ihc insirumrnt ofratilication (Ann. 4). Thc kgal Adviserslso cxshnnged
rimil.ir leiter\ wiih the 1:orcignMini,try of thc Kcpublic of Austria (Ann, 5.6)

3. 1930-1935: Nicaragua's domesiicconsiderarionof theProrocol of Signature

44. By letter of 29 November 1930, Nicaragua's permanent representative to
the League of Nations, T. F. Medina, advised the Secretary-General that the
Protocol of Signature to the Statute of the Permanent Court would be submitted
the next month for the approval of Nicaragua's National Congress (Ann. 7). In

fact, no action was taken by Nicaragua for four years. On 19 December 1934,
the Protocol of Signature (but apparently not the declaration) was introduced
in the Nicaraeuan Senate and was referred to committee (Ann. 8).
45. On 14I%hruixr) 1035.Utcaragui~'.:Scnatcg:i\c ils aiPrinal ;.iihc I>rotoisl
oi'Signaiure (Ann. 9). On II Jul) 1935 the Chambcr <IIDeputics lollou,cJ suit

(Ann. LU)
46. On 4 rlpril 1935.the I'orcign Mini\ter oiF\'ic;ir~guawroie Io the Sccrcliiry-
Grncral of ihe Irdguc oi Naiionr to report ihat the Prororol of Signaturc haJ
heen submitied t,?the X~caraguan Congrcbs and ihat. uhcn interna1 r;itificatiiin
had becn completed, he woÜld submi't the instrument of ratification to the

Secretdry-General of the League of Nations (Ann. 11).
47. On 6 May 1935, the Acting Legal Adviser of the League acknowledged
the Foreign Minister's letter and stated that the Secretariat would be ready to
facilitaie the deposit of the instrument of ratification (Ann. 12).
48. In 1943, the Foreign Minister of Nicaragua furnished the United States

Ambassador with an unsigned copy of a decree relating to the Protocols,
reoortedlv siened on 12 Julv 1935 bv the President of Nicaraeua'. the dav after
thé ~haibe; of Deputies approved the Protocol of signalGe (~nn. 13j. The
Foreign Minister indicated that the 12 July decree had never heen ~ublished in
Lu ~iceia. This was required by the second article of the decree and; apparently,

hy the Nicaraguan Constitution as well? The Foreign Minister also told the

' Nicaragua'sMemarialdoesno1mentionthisdccree(Ann. 1).
' Article100of the Constituiionof 1911(which wasin eKect in 1935) provided that:

"Al1draft legislalion.onceapprovedby both housesof Congrcss.shÿllbe sent to
thc Exccutivewithin thrcc days of such approval, so that hc may approve it and
~ublishit as lawwithintcn days."
1''ïodu prd)ivli) di Ir.)Ln2 \c, ulrrubddi,par il<'iinsre>or.n;jni:im, \r.para<l.i<.
,c phbard 31 I:JLC.UI~ :In?,.!ilardjr.~L.~UIIdc ire<cllinsJe hahir \id<>t<itîd.i.alin
dc ULC ICde SU iancion ) 10har3 nrum~lciircomo Irvdciit~ddc~ -~ dlc~ "1 t ,\
~eja'rra .m ~onrrirucio&sde i~co'rnguo, p.655,at p.k71 (1958).Dcporitedkhh the
Court by the United Statesin accordance wiihArticle50(2) of the Rulesof Court.)

In thecase of ireaties,theprocedure followinaissuanceof the ratificationdecreewas to
publirh in 11,<id<,.!,(hi.ïulltrxl ofihe irc:it!, iullo*rd hy hoth ih,z<rird#,- by uhiçh
ihc I'rcrdcni ga\.c hiapp<~\~l prnr 10 submi3run 12ihc Congrci, - .inJ ihçrstiiiiiii,oi>
.iecrc Art In51rUmc~ 01lc*i~lic~i~o>n~a~~hctdhuih thc l'r:\~dcniaod ~hcIzor~~-~~\I~n><icr
wasthen nublishedshortly~hcrcaftcr.~~hiisattcrn is illustratedb~thc~followinetreaties
raiiCcJ b; Nic.ir.igua J~ring 1935 I'rr.at).dn the Pruirri~i>nof'\lo\.tblr ~r<>~r.ri )i
N~n-~\ecrcs~ionXXand Conc,liai~oi>X. XXIS IA55.96ut.il.cu.nn 11,-IIJ.77X.7'197r.8'1.196-

797,8G805, 917(1935); ~enera1'~onventionto lmpr6&'ihe ~can; of ~revintingWar,
XXXlX L<iGrieero,pp.843-844,852.860,868-869,876-877,883-884,893(1935); Agrec-
ment for the Suppressionof the White Slave Trafic. XXXlX Lo Gocero, pp. 1187-
1188,1196-11971 , 260(1935). COUNTBR-MEMORIAL 15

United States Ambassador that there was no record of the instrument of rati-
fication having been sent to Geneva, but that he would have the instrument

prepared and sent.

4. 1936-1938: Nicaragua'swirhdraivaflrom rheLeagueof Narions

49. On 26 June 1936 Nicaragua announced ils withdrawal from membership
in the League of h'ations. The withdrawal became effective on 25 June 1938
(LNOJ, 17thyear, Nos. 8-9 (1936), p. 923; PCIJ.. SeriesE, No. 13 (1936-1937),
p. 70). Nicaragua apparently did not participate in League activities from 1936
onwards. Neither thc League Covenant nor the Protocols of Signature of the
Permanent Court Statute dealt with the effect of such a withdrawal upon the
capacity of a State to become a party to the Permanent Court's Statute or to

accept the Permanent Court's compulsory jurisdictionl. As far as the United
States is aware, the effect of Nicaragua's withdrawal on its signature and dec-
laration was never addressed during the life of the League.

5 1939.1446: Comrnunicarionh serweenNicaragua andrheLeaguecuiflrnzedchar
NicaraguahadnoraccepredrheI'ernianenrCourt'scompulsor~ yurisdiclion

50. On 29 Novcmber 1939Nicaragua sent a telegram Io the Secretary-General
of the League through commercial telegraphic chaitnels, reccived the following
day. The telegram provided:

"SECRETARIO SOCIEDAD NACIONES GINEBRA

FICACION =RI!I.ACIONES(.A " nn. 14.)

In English, this translates as follows:

"SECRETARY LEAGUE NATIONS GBNEVA
STATUTE AND PROTOCOL PERMANENT COURT INTERNATIONAI. JUSTICE THE
HAGUE ALREADY RATlFtED INSTRUMENT OF RATIFICATION WlLL BE FORWARDEV
IN DUE COURSE=RELATIONS".

51. As is clear from its text, this telegram merely informcd the League thdt
Nicaragua had conipleted its domestic ratification procedure and inrended to

fulfill the requirements for ratification of the Protocol of Signature on the
international plane'. The telegram was not intended to constitute the deposit of

' I'ur5jani iu thc C~~n;ilre,oluttooc 17 \1.i)1922,the 18r.rm2ncnCtouri u3r opcn
IO Stale, n<,lmcrnber, O( the I.e~gu' oi I\'.ttiour rncniiiii,einthe i\nlic\tu ihc
Covcnmi tl<>nrrrr.dcrlardtion,madcbv ;"ch Siatr\ mdîr Anlclc 36could ndt hcriIlcd
unon.withoutmial convention.vis-à-v;sMembers of the Leagueor Statesmentioned in
the Annexta th=Covenant (LNOJ, 3rd year,No. 6, 1922,p.545).
"Ratification"propcrlycefersIothe act by whichthe consentof a Stale to bbound
bv a treatv is establishcdon the internationaohinc.But often "ratification" is uscd
i~prcciselito denotethe approval ofihc instruménton thedomesticplane by p:iriicular
organs of a StateII isonlyratificatioon the internationalplane thut is relevantto the
entry into Forceof instruments.Scc Repon O/rhelnrernoriono Lluw Commission on Irs
Eighreenrh Session, 4 May-19 July 1966, p.7, al p. 23; Harvard Law School Draft
Convention on the Law of Treaiics, 29Americon Journal of hrernoriono lobv, Supp.,
p.655,at pp.757.765(1935).16 MILITARY AND PAIUMLLITARY ACTIVITB1S

the inrtrument of ratiîicaiiun. nor mas 11intcrpreted as suzh by the Leîgue' The
Sciretary-Gençral Jid no1 puhlish or notify other Membcrs of the Lcague iiithe
~iraraauan 1r.iearam.3s the Secrciary-Cenerai u<luidhavc done had h'icaraeua';

telegrah constiïuted ratification of ihe Protocol of Signature, thereby making
Nicaragua a party Io the Court's Statute (see, cg., LNOJ, 20th Year, Nos. 9-10,
1939, al p. 383; LNOJ, 21st Year. Nos. 1-3, 1940,p. 7).
52. On 30 November 1939, the Acting Legal Adviser to the League acknow-
ledged receipt of the telegram to the Minister of Foreign Afairs of Nicaragua
(Ann. 23). As in 1935, he stated that the Secretariat remained at the Minister's
disposal to facilitaie the deposit of the instmment of ratification.
53. By letter of 4 August 1942,Judge Hudson inquired of the League Secretary-
Gencral concerning the status of Nicaragua's accession to the Protocol of
Signature and Optional Clause (Ann. 24). The Acting Legal Adviser's letter of
15 September 1942stated:

"We have not received the ratification necessary to complete the signature
of the Court Protocol and at the same time to bring into force the obligations
concerning Article 36. But on November 29th. 1939, the Secretdry-General
was informed by telegram that the Court Protocol was ratified by the
President of the Republic of Nicaragua. We have however never received
the instrument of ratification itself, which should have been sent to us.

Nicaragua is therefore not bound either by the Protocol or by the optional
clause." (Ann. 25.)
54. The Acting Legal Adviser on the next day wrote also to the Nicaraguan
Minister of Foreign AlTairs (Ann. 26). He referred to the 1939 telegram and
noted that the League had not received the instrument of ratification that was

necessary to bring Nicaragua's obligations into force.
55. The League of Nations files contain no response to the Acting Legal
Adviser's letter of 16 September 1942, and there is no evidence that Nicaragua
took any further action with respect to ratifying the Protocol of Signature to the
Permanent Court's Statute. As noted above, in May of 1943the Foreign Minister
of Nicaragua told the United States Ambassador in Managua that Nicaragua
had not completcd ils ratification of the Protocol of Signature and that he
recognized that Nicaragua still needed to do so to become party to the Permanent
Court's Statute (Ann. 13). Nicaragua has now confirmed in its Memorial that
the instrument was not sent :

' Thc telegramdid na1conformto the usuallormalities,confirmingthat, as the tex1of
thc tclcgrammakes clear, itwas no1 intended to subqtitutcfor the instrument which,
accordingto the telegram,wasto "bc forwardcdin due course".See Horvord Drofl, op.
cil.pp.739-740("A ratificationis usualla highlyformaldocument'7.
Nicaragua'stelegrammay be camparcd with the lettcr of 16luly 1935,sent by the
ForeignMinisterof Turkey to the Secretary-General of the League(Anns. 15and 16).
Thc letier statcd that the Grand National Assernblyal Turkey had ratified Turkey's
ofhadhcsionwouldbe tranrmittedshonly.d to theOptionalClause,and that thcinstruments
The Leaguc'sActingLegalAdviser, H. McKinnonWood,rcspondedby letterof 29luly
1935,cmphasizingthat theProlocolsmus1 be ratified(Ann. 17).Turkeysignedthe Protocol
of Signature and madc a declaralion undcr the Optional Clause on 12 March 1936.
but did no1deposit an instrumentof ratificatio(PCIJ.. Seriex E, Nu.13 0936-1937).
pp.51-52,61-63).In kecpingwiththe provisionsof the Prolocol ofSignature. theRegistry
of the PermanentCourt and theLeagueol Nations consideredthat Turkcywouldno1 be
bound by the Statute or the Optional Clause until the instrument al ratification was
deposited,despitewhatevcrdomesticratificationrequircmcntshad been satisfied(Anns.
17-22). "ln connection with this proceeding, the Government of Nicaragua has
undertaken investieat-ons in the oficial archives in Nicaraeua. To-date. no
cvid:ncc h;ts hc:n unc6>\ered th:it thr. insirunient i>i ratidratiiin <II the
Protoccil of Signature ICIthe Siat~ie of ihc Pcriiisntnt Court of Inicrn~ii~~n~l

Justice was foÏwarded to Gencva." (Ann. 1.)
Thus, even if Nicaragua had completed ils domestic ratification procedures, it
did no1 attempt to effectuate its consent on the international plane'.

56. Through 1945, Nicaragua uas recorded in al1 official publications of the
Secretary-General of the League of Nations, as depositary, as not having become
party to the Permanent Court's Statute and as not having in force a declaration
accepting the Optional Clause'. Nicaragua was fully aware of its status, for it
was put on specific notice, no1 only by the Protocol of Signature itself but also
in 1935, 1939, 1942 and 1943, that the deposit of the instrument of ratification
was necessary for it to become party to the Statute of the Permanent Court and
to hring ils declaration into force.

57. Nicaragua does not dispute this history. Nicaragua now admits in its
Memorial that it never de~osited the instrument of ratification to the Protocol
of Signalurc (p;ir;is 6 (AJ: 13. 14. 86. dnd Ann II' Nir.~r2gua3lso aJmiis thai
iii dtclaraiion newr heramc cii'cciivcundcr thr. Permanent Court'. Statutc and
that Nicaragua never accepted the compulsory jurisdiction of the Permanent
Court. As Nicaragua states inits Memorial, its declaration was in an "imperfect"
state (pard. 13), "inoperative" (para. 31), "insufficient in itself 10 establish a
hinding acceptance of compulsory jurisdiction" (para. 47), and not "fully in

eiTect" (para. 27). The declaration, Nicaragua admits, required ratification "10
give il binding force" (ibrd.,para. 178 (e)). Nicaragua does nul contend that its
conduct evidenced an intent to be bound by the declaration4, nor could such a
contention be plausible in light of the many notices it received during this period.
Thus. .h~ Partie~ ~ ~ aeree ..at. with resncct to.~ ~ Permanent Court. Nica-
rlrgua's dcc~arati~iiincr hec~nie'bi~idin~.thdt 1,. thr. decl;ir;ii\on ne\er hc:ame
an acccptancc 01'tlic Pr.rrii;iliciiiCourt's c,>rnpiilsiiry~urisdictioii

' As notcd in para. 48, supru. and thc accompanyingfoolnale. the anly evidence
availablcindicatesthat Nicaraguadid not completeilsdomerticratificationproccdurcs.It
isnaw clcar. in any event, that Nicaragua nevcr attcmpted to send an instrumentof rati-
ficationduring thc war or afler. Compare Orderof10 May 1984, Reyuesrforrhe hdico-
lionScçPrLNOJ. SpecinlSupp.r,pa193,pp.37, 42-43(10 July 1944);reprintcd in Ann. 27;
P.C.I.J., SeriesE, No. 7 (1930-19311, pp.90, 159, 161; No 8 (1931-1932). pp.55, 113,
115: No. 9 (1932-lY33), pp. 53, 72. 73; No. 10 (1933.19341, pp.35, 47, 48; No. II
(1934-1935). pp.39, 50, 51; No. 12 (1935-1936). pp. 54, 103, 110; No. 13 (1936-1937),
pp.62,63.71 ;No. 11 (1937-lY38), pp.49.59,60; No. 15 (1938-1939). pp.40, 48: No. 16
(1939-1945). pp.37, 50,56(withfootnotc).
' In light of these admissions,the Unitcd States does no1 understand thc lcttcr of
24 April 1984 from the Agentof Nicaragua 10 the Regirtrarof the international Court of
Justice,claimingthat "Nicaragua ratilid in due course the Protocolof Signatureof the
PermanentCourt".
Nicaragua contends only that ilsuinduct in 1946andafter,ihat is.aftcrthedirsolution
ui thi.Pcrm~inr.iiCtJL~!.m;n~fc.ii.dwni Ir,the juridi;iiii of ihr Intcrnai~on~ l:u.tnrif
J~ll~icIFilciird~uilnhlemnri~l. pari p5 11,) Inan)i\:nt. "lrnpli~lçon%eni"is>uld n:rcr
\ub,liiui: for inc Ji,nusol th: in\ir..niîndi rilii.:itiu!nhen wch Jclioiiii*.i>r..iii.'~Ilv
required by thc tr&dtyin question, in thiscasc the ~;otocol of ~igiIalure (;etparai
33-35, supr").18 MILITARY AND PARnMlLlTARY ACTIVITILS

Section II. Bwauw Sicaraguî'~ 1)eclaralion Wai .\ricr an Acccptance of the

Cornpul*or?.lurisdirtion of lhc Permanent Court, the 1)eclaration cannol Uc
Ui~rnid undcr Article 36(5) Io Uc an Acccplancr of thc Corn~'l\or!
Jurisdiction ofthe International court of Justice

58. Nicaragua now contends that its declaration of 1929, although not in
efïect for the Permanent Court. was "deemed" to be an acceDtance of the
compulsory jurisdiction of this court when Nicaragua became a ~emher of the
United Nations on 24 October 1945. It is not clear whether Nicaragua's theory
is that an adrnittedly non-binding declaration under the ~ermanent Court wai

nevertheless "in force" for purposes of Article 36 (5) (see Nicaraguan Memorial,
para. 47). or that an ineiiective declaration somehow could be hoth brought
"into force" hy operation of Article 36 (5) and deemed to be an acceptance of
the new Court's compulsory jurisdiction (see ibid.,para. 178 (e)). In either event,
Nicaragua's theory is fundamentally inconsistent with Article 36 (5).
59. In this section, the United Stateswill review each of the evidentiary sources
Nicaragua kas relied upon in ils Memorial in support of its interpretation of
Article 36 (5). These sources demonstrate thal Article 36 (5) was intended only
to prexrve the efTectivenessof those declarations that were in efïect, that is, "in

force" for the Permanent Court, as of the date of the declarant's adherence to
the Statute of this Court. Article 36 (5) was not intended to expand the field of
compulsory jurisdiction hy giving effect to declarations that had never been
legally in force for the Permanent Court. As far as the United States has heen
able to ascertain, no one has ever advocated the interpretation of Article 36 (5)
that Nicaragua advanccs in ils Memorial.

A. Accordingta thePlain Meaningof ihe Words"Still in Force".Article36 (5)
Appliesonlytu BeclaraiionsBindingtheBeclaranito AccepttheCompulsory
Jurisdicrionofthe Permanent Court

1. "Inforce"means "hinding"

60. Article 36 (5) of the Statute of this Court provides:

"Declarations made under Article 36 of the Statute of the Permanent
Court of International Justice and which are still in forcc shall he deemed,
as hetween the parties to the present Statute, to he acceptances of the
compulsory jurisdiction of the International Court of Justice for the period
which they still have to run and in accordance with their terms."

The key part of this paragraph is the phrase, "Declarations . . which are still
in force". The words "in force" have a standard meaning - "binding". An
instrument that is binding upon a State is "in force" for that State; an instmment
that does not bind a State is no1 "in force" for that State'.

'Hanard Ilraft Convcniidnon ihrLaw <> frraitc<.29A»trriconJo,<rn<illn~r~rnuiii.nol
Iaii..Supp .p 633.si p. 787(15135()comc in10~J~CC'umc ar 'berumr Icg~llyhtndang".
"ULc e&l". 'eu tnio rlfîci". "hriomc npernti\.c"."niïitrrn i~gururo "r "rnlrercii
vigueur"): Vicnia Convention on theLaw of Treaties,23 May 1969,Arts. 24,25, 84;
InlernoiionolLnwCornmirsionVy. olII.D.l70.a1D.71l(''nitetrn10rorce"ramerbas"komcs the
legallybinding"); H. Briggs,~he L~~~~N~I~OR p.S8,61(2ndcd.,1952) ("inforce"means
"binding"); "Law of Trcaties, Reportby Sir HumphrcyWdldock.SpecialRapporteur",
1962 Yeorbookofike /niernarionalLaw Commirsion,Vol. II,p. 27,at p. 71 ("basicrule"
that "entry in10lorcc"means "binding"). 61. This was the case for declarations under Article 36 of the Statute of the
Permanent Court. Their sole purpose was to bind the declarant State to accept
as respondent the jurisdiction of that Court upon the filing of an Application
against it. Only declarations that so bound the declarant State were "in force"
under the Permanent Court system. And declarations only became binding or
"entered in10 force" if and when the declarant deposited an instrument of
ratification to the Protocol of Signature. In his treatise, Judge Hudson explained
this relat~o~shin in a oa.saee unti~ ~d "Entrv into Force of Declarations".~ ~ ~ ~ ~ ~
passage is set out here in full because it illustrates the standard meaning of the
phrase "in force" when Article 36 (5) of this Court's Statute was drafted:

"p49. Enrry into Force of Declararions. Article 36, paragraph 2 [of the
Permanent Court's Statute], does not require that a declaration be ratified;
on the contrary. as the French version of the paragraph and both the
English and French versions of the Optional Clause refer to the recognition
or acceptance ofjurisdiction 'from this date' (Fr., des à présenr),i.e., from

the date of the declaration, it would seem that the declaration was intended
to take effect at the time of signature. The text of the declaration may
indicate that it is not intendal to enter into force immediately, however,
and conditions mav be set hv the declarant to oost.one ,hat event. A
drclar~tilin a,h~<hdoes no! e~preislyrrquire raiiticilii~nnidy cnier iiito f,irce
di the ilmc oirignÿiurr ii ihc de2l~rani siniultanc<)u~lydcpositj or ha,
prcviously dcposiied a riiific<iiion <ifthe Proiocol oi Signiiurt; oihcr~ise
suih <idi.i.luriilioti!%i/o11~1irrrrnrojorcc itntrlu rur~i<ulro~iifrhc Prorocil/
ifSt,yi~ururc tid~p#,.irted \ drclar;iii@nwhich e\pre,.ly requirer riltificniion
mav cnicr inio forcc upon the Jer>us~iof Ihe r.itifiralion iithe Jecl;ir;ini
si&ltancously deposits or has pr&iously dïposited a ratification of the

Protocol of Signature; otherwise eventhough a ratification ofthe declaration
is deposited, it will not enter into force until a ratification of the Protocol
of Signature is deposited." (Tlte Permanent Court, p. 452 (italics added)
(footnotes omitted)'.)
62. Contemporaneous interpretadons of Article 36 (5) confirm that it uses the

phrase "in force" in its ordinary sense. Thus, for example, former Judge S. B.
Krylov of this Court, who par~icipated in the 1945 United Nations Conference
that drafted the Court's Statutc, wrote that Article 36 (5) had the object of:
"prcserving inforce those declarations concerning recognition ofjurisdiction
as compulsory (declarations as to the acceptance of the so-called 'optional

clause') ivhichhad heen made by States parries ro the Srorure~fthe Pernruneni
Corrrr of International Jusrice" (Marerials fi!r the History of rhe United
Nations, Vol.1, p. 281 (1949) (italics added)').
Judge Krylov clearly understood that declarations made by States which had
not become party to the Permanent Court's Statute were not "in force" and thus

were not preserved by Article 36 (5).
63. United States delegates to the San Francisco Conferencealso helieved that
"declarations . . still in force" rcferred only to declarations that actually hound
the declarant to accept the compulsory jurisdiction of the Permanent Court (see

' Accord, A. HammarskjcildJ,uridicrioninrprn~~ionri lp. 669-67(0 1938) (dcclaralions
"en vigueur" did no1jncludcthase, such as Nicaragua's.wherethe declaranthad not20 MII.ITARYAND PARAMILITARYACTIVITIES

paras. 81-83, infra).And this was the interpretation adopted in the first Yeorbook
of this Court (see para. 132,infra).
64. This Court, too, has interpreted the words "still in force" in accordance
with their customary meaning:

"The declarations to which Article 36, paragraph 5, refers created for the
States which had made them the obligation to recognize the compulsory
jurisdiction of the Permanent Courtof International Justice." (AeriulIncident
of27July 1955 (Israd v. Bulgaria), Judgmenr. LCJ Reports 1959,p. 127,
at pp. 142-143.)

65. Indeed, the United States has been unable to find any commentary on the
Statute of this Court suggesting that the words "in force" in Article 36 (5) were
intended to encompass a declaration under the Permanent Court's Statute not
hinding upon thedeclarant State. Nor hasNicaragua presented any commentaries
that suggest sucb an interpretation. Instead, Nicaragua has variously described
ils own declaration as "cxisting" (Memorial, para. 18), "in existence" (ihid,
para. 32), "on the books" (ibid., para. 27), and "alive and suhsisting" (ibid.,
para. 27). If these phrases are intended to imply that the declaration was legally
binding or "in force", they are simply wrong. By Nicaragua's own admission,
the declaration was not bindine for Durnosesof the Permanent Court: it needed
r;lt\ficatiu10 bhng it .'Cullyinïo ekzt'; (ihkl.pdu. 27: para. 57. xupru).
66 The absence of any hi\iiiry or coninicnlary suppiiriing Ni~iragua's con-
siruciion oi ,\rtrcl36 (51is sienificant 11thc drafiers iniended 10 u.c the uords
"in force" in an unusual seGe, indeed, in a sense contrary to their normal
meaning, then one would expect to find some comment on that point. This is
particularly tme because the same phrase "in force" is used seven other limes in

this Court's Statute and in the United Nations Charter of which the Statute is a
part, and each timc the words are used in their customary meaning of "legally
binding" (United Nations Charter, Arts. 102(l), 106, 108,110; Statute, Arts.
35 (2), 36 (l), 37).

2. TheFrench rexrofArticle 36 (5) ofrhis Courr'sSraiitreulsoreyuires rhara dec-
larotion be bindinl: under the Srorrireof the Permunotr Court in order ro be
deernedan occePrunccofrhis Courr'sjurisdiction

67. Although the French tex1of Article 36 (5) does no1use the precise phrase
"still in force", il, too, assumes that only declarations that had come into force
for the Permanent Court were to he preserved by operation of this Court's
Statute. The French text States:

"Les déclarationsfaites enapplication de l'article36 du Statut de la Cour
permanente de Justice internationale pour une duréequi n'est pas encore
exniréeseront considéréesd .ans les ramorts entre ~arties au ré sen ttatut.
comme comportant acceptation de Fa 'uridiction' obligatoiie de laCOU;
internationale de Justice pour la durée restant à courir d'après ces décla-
rations et conformémentà leurs termes."

68. The French tex1 dinèrs from the English only in ils focus on duration.
The French text makes explicit that for a declaration to be "still in force", its
duration mus1 not have expired; the English tex1 does not stress this point
separately. But the French tex1is in total agreement with the English that only
declarations "in force" are suhject to Article 36 (5), for only a declaration in
forcecan "expire" or "no1 expire", or indeed he said to have a "duration" at all.
69. Sir Gerald Fitzmaurice explained this point in his draft articles on the lawof treaties prepared when he was Special Rapporteur to the International Law
Commission. He distinguished formal validity, which concerns the conclusion
and entry into force of treaties, and temporal validity, which concerns the
duration and termination of treaties. Questions of temporal validity logically
may arise only for instruments which have formal validity, that is, which have
entered into force :

"1. In order to be valid (i.e., in the present context, operative) a treaty,
in addition to possessing formal validity arising from its regular framing.
conclusion and entry into force . . .must also possess temporal validity, or
extension in time - i.e.. duration.
2. A trcaty possesses extension in time, i.e., duration, so long as if has
cameinIOfi,r~eundstill remainsin fiirce, Le.,has no1 expired or lapsed, or
been terminated. Expiry or lapse hÏings the treaty to an end ipsoJacro and
for al1parties." (1957 Yearbookofrhe Iniernationol Luw Commission , ol.II,
p. 21 (italics added).)

In short, expiration presumesentry into force. The French iext emphasizestem-
poral validity and presumes the formal validity - the entry into force - of
the declaration. The English and French texts are thus entirely consistent. The
French tex1merely clarifies the English tex1by making explicit what is implicit
in the English text. the requirement of temporal validity.
70. The terms of trcaties authenticated in two or more languagesare presumed
to have the sdme meaning in each authentic text (Vienna Convention on the
Law of Treaties, Art. 33). Each of the other authentic texts of the Statute -
Spanish, Russian and Chinese - uses an equivalent of the English phrase "still
in force"'. The fiveauthentic texts of Article 36(5) thus have the same meaning

only if the French tex1 is understood to apply only to declarations that had
entered into force. As this is also the natural meaning of the French text: it is
the required interpretation2.
71. The drafting history of Article 36(5) at the San Francisco United Nations
Conference coniirms this result. The Article was originally circulated both in
English and in French, using respectivelythe phrases "still in force" and "encore
en vigueurm3.The French delegation proposed several changes, some of which
affected both the English and French texts of Article 36 (5). One change
introduced in10the French text the phrase "pour une duréequi n'est pas encore
expirée",but kept in the English text the phrase "still in force". (Proposals by
the Delegationof l'rance,doc. 947, UNCIO, Vol.13,pp. 485,486; Ann. 30.)The22 MlLlTARY AND PARA.UILITARYACTIVITIES

French delegate explained that the changes "were not substantive ones, but were
intended to improve the phraseology" (Summary Report of Nineteenth Meeting
of Committee 1V/1,doc. 828, UNCIO, Vol. 13, pp. 282, 284, 288, 290; Ann. 31).
This comment. as well as the use of "still in fo~c~ ~in ~ ~ ~ ~-~~h draft of t~e ~
1-rcnch proposiil. conlirm5 thai the French Jelegaie ,.iw no iliitinct~oi~hcttieen

the linglirh and French i,er>ioni. Indccd, the Rapp<~rtcurto Coiiiinissi<~nIV uieil
tnterchlnzr.ahl\ the ~hr~\e% "ji,ll ,n Ii,rcc" and "lor ncriod, oitimc uhtzh ha\c
not yet e~pirek". ~hus the legislative history indicaks that the French tex1was
intended to have the same meaning as the English. Both apply only to declarations
that (1) had entered into force, that is, became binding acceptdnces of the com-
pulsory jurisdiction of the Permanent Court, and (2) which were still in force,

that is, had not expired when the declarant hecame a Memher of the United
Nations.

3. Arlicle 36 (5) cannorbringinroforce a declararion rhathadneverbeeninforce
irnderr11e PermanenrCourr'sSrarure

72. Nicaragua argues:

"The practice of Nicaragua provides compelling support for the pro-
position that ils declaration of 1929 came inrofivce as a result of Article
36 (5) . . ."(Nicaraguan Memorial, para. 74 (italics added))

and, again :
"By ratifying the Statute of the new Court as an Original Memher of the
United Nations, before the Permanent Court was dissolved, Nicaragua

perfected its declaration and gave ir bindingforce." (Ibid., para. 178 (e)
(italics added).)

73. The plain language of Article 36 (5) precludes any such interpretaiion.
First, the Article applies to declarations "which are siillin force", that is, dec-
larations which were once in force and which remain in force. This excludes any
suggestion that Article 36 (5) of this Court's Statute itself could hring a
declaration made under the Permanent Court's Statute into force for the first
lime. Second, as the Court itself recognized, the text requires declarations to
have heen in force undertheStatureof the PermanentCourt. for that is thc onlv

lepai irniiieiiork Ici uhich ihe Arti;le r\>uld poriibl) refer (>ce para 63. .riipr<i.
para. 96. it~Jro) But Uicaragua's Jcclaraiion u3s neicr in I;>rccfor the Permanrni
Court. cithcr hefore or aliçr hicaragu;~ became part) io the St~tiite oi ihir Court.

B. ThePurposeandHisioryof Arricle 36 (5) ConJrmrhorIr Doesno1ApplyIo
Deciorarionss . uchasNicaragua's,ivhichWerenorinForcefor rhePermanenr
Couri

1. Thegeneralunderstanding

74. Participants in the San Francisco Conference debated whether to keep

compulsory jurisdiction optional, or to create universal compulsory jurisdiction.

' Rcport of thc Rapporteur of Cornmittee IV (1). doc. 913, 12 June 1945(English).
13 June 1945(French), UNCIO, Val.13. p.381, p.384 ("still in force"), p. 391 ("for
periods of lime which have no1expircd"). p.416. p.419 ("encore en vigueur"), p.426
("non cxpiri.csn)(Ann. 32).The Conference eventually decided against universal compulsory jurisdiction;
States would no1 have to accept conipulsory jurisdiction as a condition ofjoining
the United Nations. Although the Conference therehy rejected proposais to
cxpand the field of cornpulsory jurisdiction, il did agree to preserve as miich as
possible of the compulsory jurisdiction rhai already exisied for the Permanent
Court, whether by virtue of individual declarations already in force or by treaties
already in force'. This was the origin and purpose of Article 36 (5).
75. This Court kas previously described the origin of Article 36 (5):

"At the time when the new Statute was drawn up, it was anticipated -
and events confirmed this - that the Permanent Court would shortly
disappear and these undertakings consequently Iapse. It was sought to
provide for this situation, to avoid, as far as it was possible, such a result
by subsriruiingfi~rthecompulsury jurisdicrionof thePermunenrCouri, which
was to come to an end, theconlpul.r(irjyuri,rdiciionof theInrernaiionalCour1
oJJusrice. This was the purpose of Article 36, paragraph 5.This provision
effected, as between the States tu which it applied, rhe rran,fer io the neiv

Courtof rhecompulsoryjurisdirrio~ of~rheold. It thereby laid upon the States
to which it applied an obligation, the obligation torecognize, ipsofacto and
without special agreement, thejurisdiction of the new Court. Thiscons~ituted
a new oblipurionwhichwasdoubrless. no more onerousrhan the obligarion
whichwas io di.sappear but it was nevertheless a new obligation." (Aerial
Incident cf27 July 1955 (lsrael v.Bulgaria),Judgmenl.I.C.J. Reports1959,
p. 127, at p. 143 (italics addedj.)

76. The authors of the joint dissent in the Aerial Incidenr case, upon which
Nicaragua primarily relies (Nicaraguan Memorial, paras. 14-16), shared this
assessrnent of the Statute's purpose:
"Its purpose was tu safeguard the exisiing cornpulsoryjiirisdicrion in
relation ta the present Court notwithstanding the event clearly envisaged by
the authors of par~graph 5, namely, the dissolution of the Permanent

Court." (Aerial Incidenr,op. cil.p. 169 (italics added).)
77. Judge Philip Jessup agreed that Article 36 (5) only carried over pre-
existing obligations to accept compulsoryjurisdiction:

"It was clearly the intention in the drafting of the Statute of the In-
ternational Court of Justice tu preserve for the new Court just as much as
possible of the jurisdiction which appertained to the old Court. For this
purpose, Article 36 (5) provided for the rrunsferof rheobligationsossiimed
by Sraies ivhichmadedeclaruiions under Article 36 of the old Statute, and
Article 37 providcd for a sirnilar trdnsfer where a 'treaty or convention' had
contained a provision for the jurisdiction of the Permanent Court." (Souih

' At the WashingtonCommitteeof Jurists msting whichprecededthe San Francisco
Conference,il wai dczidcd that the dehatc about univcnal and optional compulsory
jurisdictionwauld require political resolution. The Committce ihereforc providcd the
Conferencewith alternativetexts reAectingeach view(UNCIO,Vol.14,p. 821,at p.841
(repartof Jurist 86))At thesame tinic, the concernedSubcommittccnotcd that many
nations had alrcady açceptedcompulsory jurisdictionunder the optional clause of the
Permanent Court's S1;itute.The Subcomm~ttcethcrefore recommcnded"that provision
should be madc ntthe San FranciscoConfcrcnccfor a speciolagrecmcntfor continuing
theseacceptanccsin forccfor the purposeof thc Siatutc" (UNCIO,Vol.14, p.289(report
of Jurist41)).24 MlLlTARY AND PARAMILITARY ACTlVlTlES

Wesl Africa, Preliminury Objeciions, Judgmenr, 1.CJ Reporis 1962, p. 319,
sep. op. at p. 415 (italics added).)
Similarly, Judge Tanaka, in his separate opinion in the B~ircelonuTraction case,

expressed his view that "the essential purpose" of Article 36 (5) was "the
continuity of the acceptance of compulsory jurisdiction" (Barcelana Traciion,
Lighr und Poiijer Company, Limired. Preliminury Objecrions. Judgmeni, 1.C.J.
Reports 1964, p. 6, sep. op. at p. 71').
78. In sum, Article 36 (5) was only intended to preserve declarations in force
under the Permanent Court's Statute and not to hring declarations into force
for the first time.

2. The Unired Srares undersranding of Article 36 (5)

79. The United States understandine. bo-h at the San Francisco Conference
and in ni;iking ils own dcilaration ior the ncii, Court undcr Article 36 (21. iras
al\<>th.11Article 36 151 applicd only ta dc:laration\ in Lirce for the Pcrrnancnt
Court. Ihe United Statcs s~ecifi~~llsundcrst~od that N1cara~ui1 \va, IIIIone of
those States that would hédeemed to have accepted this court's compulsory

jurisdiction for purposes of reciprocity under Article 36 (2).
80. The United States delegation to the San Francisco Conference reported
the proceedings to the President on 26 June 1945,and a copy of this report was
submitted to the Senate on 9 July 1945'. The Report described Article 36 (5) as

'MembersoftheCourthaveascribed a similarpurposcIoArticle37and Article36(5).
In BarceIonaVuciion, forexample,the Court statcdwithrespect 10Article37:
"11 was intendedto preserve a conventionaljurisdictionalfieldfrom a panicular
threat, namelythe extinctionwhichwouldothenvinefollaw from the dissolutionof
the PermanentCourt. But that wasal1it wasintendedIo do. II war nor iniendedru
ereoieany neivoblignroryjurirdiciionihorhodno1erirredbeforerhordissolurion.Nor.
in prescrvingthe cxirtingconventionaljurisdiction,was il intendedto prevcnt thc
operation of causcs of extinction otherthdn the disappearanceof the Permanent
Court." (Ibid.p. 34(italicsadded).)

dissenters,in thcfSourh Wesr Africanccases, wherehe and Judge Fitzmauricestated indeni
theirdissent:

"Lnour vicw.the clfectof Article37of the Statuteof the presentCourt - and ils
sole relevantelfectin the contextof this cas- was (as betwcenthe parties to the
Statute) to substitutethe prescntCoun for the former PermanentCourt in al1cases
inwhichundcr a 'trcatvor conventionin force'.the PermanentCoun would have
had jurisdiction andwohd have bec" compelent iohcar and determine the case."

***
'Xrticle37 couldonly operule so os to conferon the prrsenr Courrthe pre-exirring
eomperence- whoreverrhar tuos- of the PermnnentCour!,andnor so as roconfera
dtfferenor moreeriensivecompeience."(Op.cil., pp.469. 505(italicsadded).)

Charterof rhe UniredNorions - Reporr 10 ihe Presidenron the Rerulrs O/rhe Son
Srare,printedineHeoringsbeforerheCommirreeon ForeignRelolions.UniredSIBI~ Senaie,
on The Charrerof ihe UniredNorionsfor rhe MoVirenance O/ InrernaiionolPeoee and
Securiry,Submiriedby ihe Plesideni ojihe UniredStoles on July 2,1945, 79th Cong., 1st
Session, July9, 1945,pp. 34-206(hcrcaftcr "Report Io the Presideni":page citationsare
Io the Senatehcarings).Depositedwiththe Court bythe UnitedStatcsin accordancewith
Article50 (2) of thc Rulesal Court."muint<rining inforce with respect to the new Court, declarations made under
the old Statute whereby many States accepred thc compulsory jurisdiction of the
old Court" (Repuri Io the Presiiiertrat p. 124(italics added)).
81. Green H. Hackworth, the principal legdl adviser to the United States
delegation at San Francisco and later a memher of this Court, described Article
36 (5) in similar terms. In testimony before the Senate Foreign Relations
Committee in 1945 as it considered United States membership in the United

Nations, Judge Hackworth explained that Article 36(5) was intended Io address
the concern that -

"states that had accepted compulsory jurisdiction under the present Court
lthc Permanent Court1 would no longer he bound by their acceptance if a
new Court were set UD That was takei care of bv a. .ovisionin the Statute
in article36, thdi ih&e ,rot<-.ahtclihudiicc<,pi<~ id,»>pii/st,r,ii.tri.,~li.riu
rhi Pt~r»t<iniv(;~r,rr~flnrrrti~rri~,nl/ttrrL,iii~r<lilni,uh~rirtoerhepri,pi,,t,d
l,irrrti~itti~nl;.irrrioidi,rrh.s<rt>ii,r,>is(Hcoorr 1,rhi Prco~bvrr ai p. 333
(italics addcd).)

82. In the Senate hearings the following year on whethcr the United States
should acceDtthe Court's com~ulsorv iur.s.iction. this understandina was -ade
c\cn iiiorc expliiit. Ch3rlc.sI:ahy. then I.epl ,\dvisc.r iu ihe I>cparimc.ntoI'Si;iie.
and. as Soli~iiortienerïl i~fihc I:nitcd Stiiies. iormerly d nicniber of the I:n~ted
Sialcs deleratitin 10 San I'rünii\c.>.iold ihc Senaie Foreign K~~idiliinC r ommitier
that the pGposed United States dcclaration would be made only on condition

of reciprocity :
"As to particular states I think the situation as you point out is clear,

that this resolution makes our declaration reciprocal; that is, only with res-
pect to states which accepted similar jurisdiction.
Declarations of the followine 19 states thus came into force: Australia,
Holivia. Hralil. Can;ida. ~oloi~hiï, Denmark. I>oriiiriicdnRcpuble. H;i#ti.
India, Iran. I.u~cmh<>urgI.\'eiherl~nd. New %c;il;in<lN . 0ru:iy. Panania. L!I
Saltador. South Africa. Uniicil Kinrdom. Uruau;iv.
Itis to be anticipatcd that ;igreG many othcr States wiil deposit decla-
rations. Under the old Court statute the total numher who did this at one
time or another was 44. In addition to the 19 mentioned above, whose
declarations continue in force, this number included: Albania, Austria,

Belgium, Bulgaria, China, Eire, Estonia, Ethiopia, Finland, France,
Germany, Greece, Hungary, Itdly, Latvia, Lithuania, Paraguay, Peru,
Portugal. Rumania, Spain, Sweden, Switzerland, Thailand, Yugoslavia."
(Ileurings beforeu Subc<~mnritte of the Comntitreeon ForeignRelurionsof
rlte UniredSrutesSenare on S. Res.196, 77th Cong., 2d Sess., luly 11, 1946,
pp. 141-142'3

83. The second paragraph quoted here, which listcd "the 19[States]. .. whose
declararions continue in forcc3'.described the class of States which hy virtue of
Article 36(5) could satisfy the requirement of rcciprocity in the proposed United
States declaration. Nicaragua was no1 included among these States. Nor was
Nicaragua listed in the third paragraph among the 25 States that had at one26 MILITARYAND PARAMILITARY ACTIVITIES

tirne accepted the compulsory jurisdiction of the Permanent Court but which
were no longer bound. Thus. it was thc understandine of the De~artmenl of
State th31 ~klrragu~'~ declaration had ne\er ben in ?orcc fdr ihé Permdncnt
Ciiurt and thai iiic:ir;igus'~ dcilardiion wils no1 iransfcrrcd IOthe nrii Court by
operation of Article 36(5).

84. In ils Report approving the proposal for a United States declaration under
Article 36 (2). the Senate Foreign Relations Committee also adopted this view
of Article 36 (5). The Reporr stated:

"The San Francisco Conference added an additional paragraph to article
36 of the statute, according to which declararions occepting thejurisdicrion
of rhe old Court, and remaining inforce. ore deemed to remain inforce as
among rhe parries Io the presenf srarute for such period as they sri11have IO
run. Nineieen declorarions ore currently inforce under thisprovision." (Repurr
of the Senare Commirtee on Foreinn Reloiions on Comoulsorv Jurisdicfiun of
the lnrernarional Court of ~ustic; S. Re r No l835,'79th cong., 2d ~ess:,
at p. 105(July 25, 1946) (italics added) P.)-

85. In sum, the United States delegation to San Francisco, the Department of
State, and the Senate al1 understood (a) that Article 36 (5) applied only to
declarations that were in force under the Permanent Court's Statutc as of the
date of adherence to this Court's Statute and (b) that Nicaragua's declaration
did not fall within this category. Thercfore, when President Truman made the
26 August 1946declaration pursuant to Article 36 (2), it was the understanding
of the United States that this declaration would not be effective with respect

to Nicaragua unless and until Nicaragua had assumed the requisite reciprocal
obligation by making a declaration under Article 36 (2) of the Statute of this
Court.

C Article 36 (5) HU.Y BeenAppliedonly ro States

rhat Had Accepredthe Permunenr Corrrr's

86. In 1945 there were 24 States, including Nicaragua, which had submittcd
declarations under the Permanent Court's Optional Clause but whose declarations
were not in force (PCLJ, Series E, No. 16, 1939-1945,pp. 49-50). For example,
some States had become parties to the Statute and made declarations subject
to ratification but had never ratified the declarations2. Some States. includine
Sicilrilgua. 51gncJ thc Prut6icol of Signat~rc and made a dcil3r;itiiin under the
Oplionlil Clîusc bu1did n<>< t leposilthe inrirumeni of r;itilicsii<~ntu the Protocol
of Signaiurc ihiit wa> required in order io bring iniu forcc i.)r themrclvcs buih
the Pcrmaneni Court'i Situtc and thetr declarationi undcr ihe Optional CllruicJ
AI1ul'ihcsc dcclarations had thc silmc leg;il staius as Nicaragud's nunc iirthem

''lhc Lniicd Suir., is di.pu>iiin!hi< iloiumcni wiih the Co~ri iiia;i.,rillinwiih
,\ri,:li. 51)i<ii'ihK~le, ut Ci,.tri
''I'IIC,wcr2C,:<~O~GL.IL~A I!g\ni,G~.iicnx~l:~1.m.1,L~hcru.,LII'oI.A,uhaJ, n 501
'ThcscwcrcArgcntina,Costa R&, Nicaragua.;ind Turkcy(ihid.,p. 50),'Argc"tina's
Statcs which had brought declarationsintoon force.but whoseacceptanceshad expircd: 14
Albania.Bcleium.China. Ethiaoia. France.Gcrmanv.Grcece. Huneam. Italv. Lithuania.
Peru, ~~ain.Romaniaand ~ugXslivia (ibid, p50). .. . .was an effective acceptance of the Permanent Court's compulsory jurisdiction.
None of these declarant States, including Nicaragua, was among those "bound
by the [Optional] Clause" of the Statute of the Permanent Court (ibid., p. 50).

Despite this legal identity with Nicaragua's declaration, none of these other
declarations has been deemed under Article 36 (5) to be an acceptance of this
Court's compulsory jurisdiction.
87. Nicaragua contends that the drafters of Article 36(5) intended to draw a
distinction between one declaration which was not in force, Nicaragua's, and
23 other declarations which werc not in forcc (Memorial, para. 48). Such a
distinction would be inexplicable. None of these States had accepted the com-
pulsory jurisdiction of the Permanent Court. None of these declarations was
more or less "in force" than the others. Each of these declarations was "imper-
fect"; each of them could have been "activated if the declarant State had
taken the requisite steps to hring ils declaration in10 force. If distinctions need
to be drawn among these States, however, then those States which were party
to the Protocol of Signature and which needed only to ratify their decla-
rations were much "closer" than was Nicaragua to accepting the Permanent
Court's compulsory jurisdiction. They al least were parties 10 the Statute of the
Permanent Court, which was the subject of the declarations.
88. The only sensible distinction is that which appears in this Court's Statute,
the distinction between declarations "still in force" and declarations not in force.
This distinction is required by what the joint dissent in the Aeriai Incident case
described as -

"the unchallenged principle that the jurisdiction of the Court must be

invariably based on the consent of the parties and that il mus1 not be
presumed" (I.C.J. Reports 1959,p. 128, at p. 187).

To attribute consent to a State which previously had refraincd from hringing ils
declaration into force would violate this fundamental principle. Instead, the
Statute presumes consent only where there were actual amptances, that
is, declarations "still in force". The system under the present Statute is
straightforward :States that had not already consented to the Permanent Court's
compulsory jurisdiction at the lime they joined the United Nations could accept
this Court's compulsory jurisdiction by filing a declaration with the United
Nations Secretary-General; if they did not wish to consent to compulsory
jurisdiction, they did no1 need 10 take any action a! all. Nicaragua's rheory of
Article 36 (5) would have required such a State, that is, a State that had made
a declaration under the Permanent Court system, but had not brought it into
force and did not want to accept the compulsory jurisdiction of this Court, to
repudiate or terminate ils previous, non-binding declaration. This could not have
been the intent of the drafters of Article 36 (5). Moreover, no such State took
any action to repudiate or termiriate ils previous, non-binding declaration, in-
dicating again that no one understood Article 36 (5) to operate according to
Nicaragua's current construction of that Statute.
89. The distinction Nicaragua has sought to draw between ils declarations

and al1other declarations no1 in force for the Permanent Court is, in any event,
illusory. This is made particularly clear by the treatment of Costa Rica and
Turkey, two States whose status under the Permanent Court was essentially
identical to Niciiragua's. Both, like Nicaragua, signed but never ratified the
Protocol of Signature. and therefore never broueht their declarations into force
for the permanent Court. Yet, the declaration oïneither Costa Rica nor Turkey
has bcen considered subject to Article 36 (5). 93. In short, Turkey's declaration would hegin running for a period of five
years as soon as if was brought into force hy the deposit of the instrument of
ratification of the Protocol of Sigwature. Until then, Turkey's declaration sub-
sisted in the same state as Nicaragua's. According to Nicaragua's interpre-
talion, Article 36(5) nevertheless should have been applied to Turkey's declara-
tion under the Pernianent Court. But it has no1 been.
94. In surn, Nicdragwd'sargument reSts on the premise that, of the 24 dec-
larations under the Permanent Court that were not binding upon the declarant
in 1945, the drafters determined that 23 declarations would remain inellcctive
and that jus1 one, Nicaragua's, would be deemed an acceptance of the new

Court's compulsory jurisdiction. Such an argument is maniïestly implausible and
is contrary, in particular. to the treatment of the declarations of Costa Rica
and Turkey.

D. This CourtIlas alsolnterpreted Article36 (5) Io Preserve,
not tu Expand,theCompulsoryJurisdiction
of the PermanenC t ourt

95. Wheneverit has had occasion to address the issue, thisCourt has confirmed
that only declarations that had entered into force and bound the declarants to
the compulsory jurisdiction of the Permanent Court m,ereto be transferred to
the present Court. The issue first squarely arose in Aeriul Incidentof 27 July
1955 (Israel v. Bulguriu). Preliminary Objections(1 C.J. Reports1959, p. 127).

Israel sought to rely through the operation of Article 36 (5) upon a declaration
made by Bulgaria under the Permanent Court's Statute (ihid.,p. 135). Bulgaria's
declaration had entered into force on 12 August 1921and was for an unlimited30 MILITARYAND PARAMlLlTARY ACTlVlTlES

duration. Bulea-.a. however. had not been an original Member of the United
Nations. It became a ~ember on 14Decemher 1953,after the dissolution of the
Permanent Court. This Court held that Bulgaria's declaration was not "still in
force" at that date and accordinglv could noi he deemed to he an accemance of
the compulsory jurirdiciion of ihe.lntcrnÿiion;il Couri undcr Ariicle 3it5) Ihc
JI«~~»~c,I 1,Iimpurtdnt bciduj~ IIrtpudiuio thc thcory advanxd by iX~'içtr:iguii
in this case.
96. The Court interpreted Article 36 (5) to apply only to States whose dec-
larations were in force for the Permanent Court:

"Article 36,paragraph 5,considered in its application to States signatories
of the Statute, eiïects a simple operation: ii rrunsforrnsilieir occepiance of
rhe compulsoryjurisdicrion ofrhe Permanent Courr into an acceptance of the
compulsory jurisdiction of the International Court of Justice." (Ibid., p. 137
(italics added).)

Elsewherethe Court described those States suhject to the compulsory jurisdiction
of this Court in accordance with Article 36 (5) as those -

"uhich, ;ilthe iimc of thc~r;icccpt;inccof ihc Staiuic [of ihc Inicrnaiion;il
Couril, ticrt.hi~roiilh? rh<.rrd<i.<,prun'.e,/th<,<<in~pu/iorjj.ri.<dr<.riiin the
I'e'<.rn?unr('ruri" (thul., p. 145 (iialics addcd) Scc :ilro th#J. pp. 142-133.
para. 64, supra).

Thus. Article 36(5~,docs not aool..t, Nicaraeua'u declaration bccause Nicaraeua -
never accepted the compulsory jurisdiction of the Permanent Court.
97. The Court held more varticularly that BuIraria's declaration could not he

transferred to the lnternational Court because: -
"The legal basis for [Bulgaria's]acceptance in Article 36, paragraph 2, of
the Statute of the Pcrmanent Court of International Justice. ceased to exist

with the disappearance of that Statute. T11u.vi.he Bulgarian bdaraiion had
lapsed and was no longer inforce." (Ibid., p.143(italics added)'.)
The particulars of the Court's reasoning apply equally well to Nicaragua. The

legal eiïect, the "force", of a declaration under the Permanent Court system
derived from the Statute of the Permanent Court. If that Statute was not in
eîTectfor the declarant when the declarant joined the United Nations, then the
declaration under the Permanent Court system was not "in force". Bulgaria's
declaration was not in force in 1955because the Statute of the Permanent Court
had lapsed; Nicaragua's dcclardtion was not in force in 1945because Nicaragua
had never cven been a nartv to that Statutc.
98. The Court's anaiysis'also undermines Nicaragua's contention that Article
36 (5) both brought its declaration into force and transformed the declaration
into an acceptanie of the compulsory jurisdiction of the lnternational Court
(Memorial, para. 178 (E)). The Court confronted and rejected nearly the same
argument in Aerial Incidenr :

"Since these declarations [of States not original Members of the United
Nations] had not heen maintained in being, it would then have heen

' lhc Court 31.0 hcld thai,\riirlr36 15) dpplicd unly pnm dr~larlitiun,by SLair,
reprerrnicdai San 1r;inrircouhtrh hr.c.imeoriginalMcmhrri of ihe Unlied.idilon* (ihiJ.
pp 136-134). necessary to reinstate lapsed declarations, then to transport their subject-
matter to the jurisdiction of the International Court of Justice: norhing of
rhiskind isprovided for by Article36,pura~raph5 . . Article 36, paragraph
5. "~verned the transfer from one Court to the other of still-~ ~ ~ine ~ ~~~ ~ "
declarations; in so doing, ir maintainedene.ïistingobligurionwhilemodfiing
irssubject-marrer." (I.C.J. Reports1959, p. 138(italics added).)

99. Finally, the Court rejected the argunient that, in accepting the United
Nations Charter and the Statute of this Court, Bulgaria also accepted the Court's
compulsory jurisdiction :

"If Bulgaria, which at the time of ils admission to the United Nations
was under no obligation [of compulsory jurisdiction], were to be regarded
as subject to the compulsory jurisdiction as a result of its admission to the
United Nations, the Statute of the Court would, in the case of Bulgaria,
have a legal consequence, namely, compulsory jurisdiction, which that

Statute does not impose upon other States. It is difficult to accept an
interpretation which would constitute in the case of Bulgaria such a
derogation from the system of the Statute.
..........................
At the time when Bulgaria sought and obtained admission to the United
Nations, ils acceptance of the compulsory jurisdiction of the Permanent
Court had long since lapsed. There is nothing in article 36, paragraph 5,to
indicate any intention to revive an undertaking which is no longer in force

.. . Bulearia's acceotance of the orovision does not constitute consent to
the com~ulsory jurisdiction of t6e International Court of Justice; such
consent çan validly be given hy Bulgaria only in accordance with Article 36,
paragraph 2." (Ibd., 145.)

Since Nicaragua, like Bulgaria, was not subject to the compulsory jurisdiction
of the Permanent Court at the tirne it joined the United Nations, it is likewise
impossible to regard Nicaragua's acceptance of the Charter and the Statute of
this Court as manifesting also an acceptance of compulsory jurisdiction'.
100. Nicaragua in ils Memorial seeks to draw a contrary conclusion from
Aerial Incident, primarily through reliance on the dissenting opinion of a small
minority, three members. of the Court (paras. 14-16'), But even the dissent, like
the majority, contradicts Nicaragua's theory.

'The unstatedpresumptionin Nicaragua's theoryir that Nicaragua hadin somesen%
givenilsconsentto the compulsoryjurirdiction of the PermanentCourt and had withheld
manifestconsentto compulsoryjurirdiction; only if the declaralionis braught intodoesforce
isthercconscnt.In no sensehad Nicaraguaconsentedcithcrto theStatutc orta compulsory
jurisdiction. Nicaraguasignedthc Prolocolof Signatureand the OptionalClüuscin 1929
but railcdto bringthemin10force.Thismayhavcbecn becausc Nicaraguaobjectcdeither
to the Court system embodiedin the PermanentCourt's Statute, or to compulsory
jurirdiction,or both, but Nicaragua'sactions do na1permitthe presumption - whichis
absolutclvcsscntialto Nicaragua'stheorv - that Nicara-uahad in anv sense acceoted or
consentcdto compulsoryjuriidiction. .
'The Court held by twelvc votcr to four thar if was withoutjurisdiction. Judges
Lauterpachi, Koo and Spendcrappcndcd a joint dissentingopinion, and Judge ad hoc
Goitein ao..nded a seoaratedissentineooinion. Notablv.Judee Basdevant did notioin
br:inorcocConirrsnic~aJ~Jiprc,~rn~hl>cu:i, 1;imiliauithith:Jraltirigofrihr'IFrcnchtr\ioi
Ariiclc 36,Si. upon nhich ihc jxnl .II,,L'~clirJ hc:,\il).32 MILITARYAND PARAMILITARY ACTIVITIES

101. The majority and the dissent agreed that Article 36 (5) applies only to
declarations which had entered into force for the Permanent Court. Indeed, the
dissenters in the passage quoted in the Nicaraguan Memonal, paragraph 14,
specifically recognized the requirement that the Permanent Court declaration
had to be in force as of the time of adherence to the United Nations Charter
and this Court's Statute. The dissent wrote:

"This was the purpose of paragraph 5. They said, in elTect: Whatever
legal obstacles there may be, these declarations, provided that their period
of validity has not expired - that is providedthot theyoresri11inforce on
the day of the entry of the Charter intoforce or on the duy on whichthe
declorantStotebecomeso party ro theStutute- shallcontinuein respeco t /
the InrernationolCourt of Jusrice."(Aerial Incident, op.cil., pp. 167, 168

(italics added).)
102. The disagreement of the majority and the dissent concerned only the
reasons that might render a declaration no longer in force (ihid.p. 162). The
dissent believed that a declaration once inforce should not be inelieible for
u
tran<ier to the niu Staiuie iiniply through di~ppcar~nïe of the old Statute As
expresscd in a p;tssape quotcd by Nicaragu;~.the iniention airArticlc 36 (5) \va
"IO continue in beiÏÏg iomething which-was in existence, to preservee\-isting
occeptonces("ihid., p. 145(italics added)). The dissent retums to this theme time
and again. For example:

"The formal, and, in eiTect,insignificant changes in the Statute of the new
Court were not permitted to stand in the wdy of rhethenexistingcompulsory
jurisdictionof the PermanentCourt being taken over by the International
Court." (lhid.,p. 159 (italics added)'.)

Thus, according to the dissent, Article 36 (5) applied only to actual and effective
acceptances of the Permanent Court's compulsory jurisdiction - and not to
so-called "potential jurisdiction" (Nicaraguan Memorial, para. 12). Although
the dissent argued that Bulgaria should not he required to give what it regarded
as a "double consent" (Aeriol Incident.op. cil., p. 187; Nicaraguan Memorial,
para. 27), this was a reference to the fact that Bulgaria had previously given its
consent to the Permanent Court's comnulsorv iurisdiction. The dissent's intemre-
tation would not permit Article 36 (5jto to a declaration like ~icaraba's

which had never come into force at al1 for the Permanent Court and thus did
no1 constitute even a single consent2.

'Sec also ibid,p. 160("the purposc of paragraph 5 wasta provide'forthc continuing
validityal existingadherences'to the OptionalClduse"); p. 166("11 was for thepurpose
or preservingfor the new Coun the compulsory jurisdictionwhich had been conferred
upon the old Court" that Article 36 (5) was adopied); p. 169 ("11spurpose was 10
safeguardthe existingcompulroryjurisdiction").
Nicaraguacites one passagefrom the disnentingopinion that mentions Nicaragua's
Declaralion(Mcmanal. Dard. 37). Itisinslructiveto niacethisstatemcnlin context.Two

case,its rcsultwouidbe to invalidate.as from the date of the1;dment of the CO;^. the
eriiting drrhr.iiion< oa numhcr of St3tc1- <"ch < Colo~nhlif.Ili1111S~carilgua31111
Ilrugu~y" (ihid.p 19)) Ilapprari ih~ithr dls<cnirr,~nrliidrilN,c.iraganil ihes?oiher
Si;iicrin iheir Ii5ti<irnol,bec:,~<r ihev urre liricdinthe Counr )Firrh<,ok:ir Sial<,
and deemedto be still6innforce.r unspeified durations, not becausethey were analysed 103. The full Court next examined Article 36 (5) in Templeof Preulr I'ihear,

Preliminary Objecrions(I.C.J. Reporis 1961,p. 17). Cambodia sought to rely on
a document filedby Thailand with the United Nations Secretary-General in 1950
purporting to "renew" a declaration originally made in 1929 which had been
renewed in 1940for ten years. Since Thailand, like Bulgaria, had not joined this
Court's Statute until after the dissolution of the Permanent Court, Thailand
ar-~ed t~~~ ~ls ~~~ ~~ ~ion m~s~ ~ ~ ~lamed~ ~ ~re ils ~ ~ ~sion to this Court's
Statute and thus was incapable of heing renewed (ibid.,p. 26).

104. The Court disagreed that Thailand was not bound. It held, unanimously,
ihat Thailand's 1950"Ïenewal" of its declaration was, in fact, a new declaration
under Article 36, paragraph 2, of this Court's Statute, even if incorrectly worded.
In light of Thailand's admitted intention to be bound, the Court found that this
filing satisfied the critical fomality required by the Statute, the deposit of an
acceptance with the Secretary-General of the United Nations under Article 36(4)

(ihid., p. 31).
105. The case is of interest priinarily because the Court could have reached
the same result by reconsidering the Aerial Incidenrrationale. If declarations that
lacked a statutory basis under the Permanent Court system could be transferred
by Article 36 (5). then Thailand's declaration, which was made in 1940for ten
years, could have been transferred to the new Statute when Thailand became

party to that Statute late in 1946. But the Court did not adopt this approach.
As in Aeriul Incident, the Court considered Article 36 (5)'s field of operation to
exclude declarations under the Statutc of the Permanent Court, such as Thai-
l~n~. ..hic~ were . .~in force~wh~n the dec~ ~ ~ ~ioined th> United Nations.
IU6 The Court's decision in Rurri.lr>,td7iui.rliin. L~yhiufid P#~~ieC r i»iipu~i).
1.1,trircilI.'r~,linri,ryhjrcrtons(1C J H,.porri 1964. p 4). again lcfi ihc ration<ile

of ihe ..l<~rriIlriilmirdecih,<inundisturbcd. Ilclriuni soucht io invoke iurirJi:iion
against Spain in part on the basis of their 1927~reat~of conciliation, Judicial
Settlement and Arbitration, which provided in certain circumstanccs for rcference
of disputes to the Permanent Court (ibid.,p. 27). Belgium claimedthis provision
remained effectiveby operation of Article 37 of this Court's Statute.
107. Spain objected that, because il joined the Statute of this Court only after
the dissolution of the Pemanent Court, the treaty reference to the Permanent

Court must have lapsed as in the Aerial Incideniand Templecases and could not
be transferred. The Court by a vote of ten to six ruled in favour of Belgiumand
held that Article 37 of the Statute was applicable.
108. Articlc 37 provides:

"Whenever a treaty or convention in force provides for reference of a
matter. . .to the Permanent Court of International Justice, the matter shall,
as between the parties to the present Statute, be referred to the International
Court of Justice."

In the Court's view, Article 37 "was not intended to create any new ohligatory
jurisdiction that had not existcd" (ibid., p. 34). but rather to transfer sucb
jurisdiction as did exist, so long as the treaty on which it was based remained

"in force". Becausethe rreary between Spain and Belgiumhad remained in force,
"the obligation [to refer disputes to a court] remain[ed] substantively inexistence"
(ihid., p. 38). The Court held that this satisfied Article 37.
109. Several features of this holding are noteworthy. First, this Court stressed
that its focus was solely upon Article 37 of the Statute, which contains re-
quirements dinérent from those of Article 36 (5) (ihid., p. 29). In particular,

the requiremcnt of "being in force", which under Article 36 (5) refers to the
declaration itself, "is, in Articlc 37, formally relatcd not Io the clause as such,34 MILITARYAND PARAMILITARYACTlVlTlES

but to the instrument - the treaty or convention - containing it" (ibid.,p. 29).

Thus, the Court was careful to make clear that the only question before it was
whether the rrearv containine a comoromissorv clause Gmained "in force". The
Court interpreted "in force9'in its &dinary sinse of "legally binding". Indeed,
in addressing the particular features of the 1927Treaty, the Court stressed:
"it would bedifficulteither to deny the seriousnessof the intention to create
an obligation to have recourse to compulsory adjudication - al1 other

means of settlement Ming - or to assert that this obligation wasexclusively
dependent on the existenceof a particular fomm . . ."(ihid.,p. 38).
110. The holding of BarcelonaTraction is thus that Article 37 of the new
Statute aoolied to existine treatv oblieations. notwithstandine the fact that one
of the pa;tks to the treat;may iot h&e been an original ~eLber of the United

Nations. The fundamental premise of Article 37 is that a treaty obligation mus1
have previously been in forçe and must have continued to exist; up uitil the tirne
both treaty parties became parties to the Court's Statute. To the extent the
decision has any relevance to the interpretation of Article 36 (5), it reaffirms
that the drafters of the Statute of this Court did not intend to create additional
obligations for States or a new field of compulsory jurisdiction for the Court,
but only to preserve what had existed for the Permanent Court.
111. In its Memorial, Nicaragua has quoted portions of the judgment in an
effort to oortrav Barcelona Traction as confirmine the views that Nicaraeua
aitrihuto to ihc Jirrent in ~lcrr<~lInriili.(rsrsr. 16-18),In partiiulrr. Nicaragu.!

ïmphasi~es ihc pa,sïgc in Buri~rlon< ïiiurrionin whichihc Couri ohccrvcdthai -
"the notion of rights and obligations that are in abeyance, but not extin-
guished, is perfectly familiar to the law and represents a common feature
of certain fields" (Memorial, p. 36).

Nicaragua then characterizes Nicaragua's "obligation" under the Permanent
Court's Statute as having heen -

"'in existence',although 'inoperative'or 'in abeyance' because of its failure
to wrfect the ratification of the Statute of the Permanent Court. Like Suain.
hy'becorning a party to the present Statute and accepting al1its proviGons;
including Article 36 (5), Nicaragua activated its declaration." (lbid.,
para. 31.)

In fact. Nicaragua's declarationunder the Permanent Court could not possibly
have been "in abeyance" because that term implies a temporary suspension of
the operation of an instrument that had previously entered into force, whereas
Nicaragua's declaration never came into force or eiiect at all. More fundamen-
tally, however, Nicaragua's argument totally misconstrues the reasoning and
holding of BarcelonaTracri~~n .he Court's Judgment on this question speaks
for itself:

"An obligation of reçourse to judicial settlement will, it is true, normally
find its ex~ression in terms of recourse to a oarticular forum. But it does
no1 li~lliithai ihi. iiihc ebicnccol'ihe ohligaiion II uar thii 1;iII;icyuhich
undcrlay the conicniion adwnrcd during thc hcarings. ihat ihc allcged Iapic
of Arliçlc 17 14) lin the trcatvl\ras duc IO the disaooear~nceoi thc 'obiect'
of that clause; "ahy the pikanent Court. But ihit Court was neve; the
substantive 'ohject' of the clause. The substantive object was compulsory
adjudication, and the Permanent Court was merely a means for achieving
that object. Ir wasnor rheprimarypurposeIo specfy onerrihunalrarherrhan

anorher,but ro crearean obligariori oj compulsory adjudicatio n. . If rhe obligatione.ïisfsindependenilyof ~heparficularji,rum. ..rhenrit subsequenrly
happerisrhar theforum goes oirrof esisrence,and no provision is made by
the parties, or otherwise, for rernedying the deficiency,it will follow ththe
clauseco~training the obligarionivillfor rlie rimebeingbecome (and perhaps
remain indefinitely) inoperafivt:,Le., without possibility of effective appli-
cation. But i/rlie obli~arionrtmains subsranrivelyin e.xisrence hough not
functionallycapable of being implemented, il conulw<zybserendere<lopp<:rurive
oncemore, if for instance the parties agree on another tribunal, or if another
is supplied by the automatic operation of some other instrument by which
both parties are bound. The Statute is such an instrument, and its Article
37 has precisely that effect.
..........................
Whar rhereforehappenedin 1955, when this Iacuna was made good by

Spain's admission to the United Nations, wus rhat the operrrrionof rhe
obligalionrevived.becausethenieunsof implemenring ir hadoncemorehecome
available; bur rhere wasneirheranyneivcrearionoj: nor revisionof thebasic
obligarion."(Ihid.,pp. 38-40 (italics added).)
112. These extracts from the Judgment illustrate vividly the error in Nica-
ragua's interpretation of BurceloniiTrriction. The case did not hold that this
Court's Statute could create or revise an obligation to accept the Court's
jurisdiction where none had existed before. Nor, as Nicaragua contends, could

that Statute "perfect" an obligation which "may not have been perfïcted"
(Mernorial, para. 36). To the contrary, the case held that Article 37 required
a treaty actually to be "in force" before the obligation il created cotild be
transferred to the new Court, and that the ternporary inability to irnplement that
obligation while one party to the treaty was not a party to the Statute of the
new Court, could not defeat the efict of Article 37. Nicaragua's situation in
1946 was fundarnentally different : its "unperfected declaration" was no1 an
obligation in force conferring jurisdiction on the Permanent Court. nor was it
an obligation to recognize as respondent the compulsory jurisdiction of the
Permanent Court. It was never a legal obligation al all. The Statute of this Court
therefore cannot transfer any "obligatioii" of Nicaragua to this Court since there
was none, and never had heen one, under the Permanent Court.

E. The King of Spain Arbitral Award Cure
113. The orecise status of Nicaraeua's declaration aooarentlv haï heen a
coiicreie i>rucoi roncern to Si.iirr ,>nl?once heïorc ihe5e procccdings - uhcn
Sir~rag~a and lionduras concidercd rekrring ihelr long-btanding boundary
disriuie to th15Court durina the 19jUs Ihc Unile<iStates ~~rliri~liteJwith the

~rganization ol. ArnericanStates at that tirne to facilitaie the kegotialion of
an agreement to refer the dispute Io the Court. In Annex 34 the United States
presents a somewhat more detailed history of these discussions hased upon dip-
lomatic records. The discussions aiid related activities of the varties revmilthat
h'iraraguli. Hi~ndurssinJ ihe IJniieJ SIJIC~a11hr.llc\ed anJ actcd on the prerni\c
ihai Niiardgu;i's 1929dcilîrÿiion w;i, no1 :ihinding ct;zepianïe iif ihe prcseni
Court's jurisdiction.
114. Honduras wished to brine the boundarv disoute before this Court as
ea& as1955. Üowever, ~ondurasdidnot file aisi pli catio necause, as stated
in a memorandum given by Honduras to the United States on 15June 1955:

'.Si~r~~u., h:is reluscd uiitii13K IOrtidgn!/i Ihe.onipulror) jlirisdiciion
iiithc Intr.rnatii~nal<:o.iri oiJusii,O that ihc Court coiild iakc iognidanic36 MILITARYAND PARAMILITARYACTIVITIES

of and resolvc the case which Honduras has considered filing against Nica-
ragua." (Ann. 34, App. C, para. 5.)

Shortly thereafter, Honduras engaged former Judge Manley Hudson to study,
among other issues,whether Nicaragua might be compelled to accept the Court's
iurisdiction in thematter. Judee Hudson evidentlv raised this auestion with the
~e~istrar of the Court, indic=& his doubts conierning ~icarigua's adherence
to the Permanent Court's Statute. By letter of 2 Septemher 1955,the Registrar
responded to Judge Hudson as follows:

"1 do not think one could disagree with the view you express when you
say that it would be difficultto regard Nicaragua's ratificationof the Charter
of the United Nations as aKectine tuat State's acceotance of comoulsorv
jurisdiction IJrhi~Brrlurori~n o/S<~pti,»ihcr24th. 1929,iwu,oifiii't int,fl;.<.rit<'
hy rruwti uf/urlrrri~tu rutr/i ilir.Pniri>i<.la~'Srgniri. rhi~iri13 rn~piasrhl~,
ri>wi. thut Virurunuu'r rurilii.<iriii tlii.C/iurr<,rrott~~ruk ~I<vB;.rtiiinil
thereyorebring inloplay ~iiicle 36, purugruph 5, ofrhe Stuluie ofthe presenl
Courr." (Lctter of 2 September 1955(italics added), Ann. 35'.)

Thc Kcgirtr.ir inquirsrl tiiL'niicJ Sationr :iurhoriiir.r at the Pslais Je, S:iiii)nr
in Ciencva - u.hcrc cu>r<>ilyobcr the archi\.es i>ithe I.eaguc uf Slaiions had
bccn ~l3cr.d - whcther Nicararua had c\,cr submitirrl ils insirumeni orraiili-
cation to the Protocol. A respinse came from Mr. Adrian Pelt, the Director.
European Ollice of the United Nations. The Deputy-Rcgistrar fonvarded Mr.
Pelt's response to Judge Hudson with a cover note advising Judge Hudson that
the letter would seemto "completely answer [the question] which you had raised"
(Ann. 36). Mr. Pelt's letter stated:

"In ordcr 10 make quite certain that the instrument of ratification had
not hecn receivcdat the time and put in the safe without a relevant mention
having been inserted in the file, 1 had a search made through the contents
of the safe. This search has not revealed the presence of the instrument of
ratification under reference . . . The insrrument of ruir$carion was never
depasire</iviihrhcLeugueof nation.Secreluriut." (Ibid., p3 (italics added).)

115. Jude- Hudson then oreoa. . a formal leedl ooin-.n for Honduras
(Ariii 27) Al'ttr rc~~e~ingthc lt~~i~~~~ibificLgruun~,1inJ thc Icpl ir;!ms%ock
of buth ihc Pcrmxncnt Cuurt >)stem uiconipuls~r). jiirisJi~iion anJ ihat ciiths
present Court, he concluded asfollows:

"34. It mus1he borne in mind that the International Court of Justice has
not determined whether there is any degree to which the Nicaragua
Government is bound bv the declaration of 24 Seotember 1929. as to the
International Court of ~istice. Without such deterrknation, it is impossible
to say definitely whether or not the Government of Honduras may proceed
arainst the Government of Nicaragua
-35. It would seem possiblethat cor ntherjurisdiction may be envisaged
in this connection; for example, the Parties might agree upon the dispute's
being handled hy a Tribunal ad hoc.
36. Ii is ulsopossible ihar rhe aciirrn.sllouldbe begun againsr Nicaragua in

'The items inAnnexes 35, 36, 37and 38 have been retricvedfrom Judge Hudson's
papers,which arc on deposit and opcn to thc publicin thc manuscriptdivisionof thc
HarvardLawSchoolLibrary. spite of rhefncr thar thrtr Store ü nor boundby the secondparagraph of
Article 36 of the Sraiureoj the IniernarioniilCouri of Jusrice. Nicaragua
larer agreesru thejurisdiction. tsiruorionivillbemuchrltcsumeas ifir had
agreed ro a specialogreemenrin advonceof ihe case . . .

..........................
40. It may he for othcr people to have their ideas as to what the Court
will decide. The writer cannot speak for them; but the writer u,ouldnorbe
surprisedif the Courtshouldsoythoi Nicaragua ;s no1boundru submiiro ils
jurisdiciion.(Ann. 37 (italics added).)

Later that same month Honduras apprised the United States of Judge Hudson's
conclusions (Ann. 34, Apps. F and G).
116. During the course of conversations with the United States, Nicaragua
confirmed to the United States that Nicaragua had no1 accepted the Court's com-
pulsory jurisdiction. On 21 December 1955,the Nicaraguan Ambassador to the

United States. Guillermo Sevilla-Sacasa, visited the Departmeni of State. The
memorandum of conversation for that meeting States:
"Reference was made to the fact that the matter had not been previously
referred to the Court because Nicaragua had never agreed to submit Io

compulsory jurisdiction.
Ambassador Sevilla-Sacasa indicatedthat an agreement between the two
countries would have to he reached to overcome this difficulty."(Ann. 34,
App. K. p. 2.)

117. In March 1957,Honduras moved troops into the border area as part of
a continuing effort to persuade Nicaragua to refer the long-standing dispute to
the Court or other neutral body (Ann. 34, App. N). Honduras wanted to take
the dispute to the Court and on 15 March 1957made public its willingnessto
do so. Followine Nicaraeua's refusal to resoond in a similar vein. Honduras
took the disputevto the 07~anization of ~meiican States. During the months of
May and June, a committn of OAS Memher States (including the United States)

faciiitated the negotiation and signature of an agreement hy Honduras and
Nicaragua to take the dispute to the International Court of Justice. All involved
appeared to believe that a special agreement was necessary because Nicaragua
had not acccpted the compulsory jurisdiction of this Court.
118. On 21 July 1957, Honduras and Nicaragua signed a compromis, known
as the Washington Agreement. The Agreement provided that Honduras was to
filean Application with this Court. AsNicaragua has noted (Memorial, para. 76),
Hondurds cited both the Washington Agreement and Article 36 (2) as bases of
jurisdiction in its Application and suhsequent Memorial. One can only speculate

as to its reason for including the latter, given the special agreement betweenthe
parties'. Whatevcr thereason. Honduras implied that Nicaragua had ratified the
Protocol of Signature and hrought its declaration into force in 1939, and not
that the declaration might have come into force for the first time by operation
of Article 36 (5) of this Court's Statute (ICJ. Pleadings,Arbirrul Award Made
by the Kingof Spain on 23 Derember 1906,Vol.1,pp. 8-9'39).

'
inviteNicarazuaak accelitiurisdictian,cvif iw6ld not othe$sc Ibcdboundtoordorso.
hlro. lionduiam5a, hariuiçd hrli~lc ih (21 in lJilImpi1,)crp~nJ th*sow $,I ihc
~35~ 1011sxdvi~ni~~ hqnnil uhai had kn 2grrr.Inthe W;l\hingi,inAgrirmrni Th,,
wai Ntrjracu.i'he1ir.i('1 Pll~<iJuiy~r.birrulAtt<ir,l.\hvJthe Xinu (4B<iin un 119. Nicaragua objected stronglyto the invocation ofArticle 36(2). According
to Nicaragua, the Court's jurisdiction over the case rested exclusivelyon the

Washington Agreement (ibid.,Vol.1, p. 131). Nicaragua also argued that the
case did not fall within Article 36, paragraph 2 (c), which Honduras had cited
(ibid.,p. 132).
120. In subsequent pleadings, Honduras dropped al1reliance on Article 36 (2)
and relied exclusivelyon the Washington Agreement as the title of jurisdiction

(ibid.,Vol. 1, p. 470; Vol. II, p. 13). And this Court in its Judgment nowhere
recognized Article 36 (2) as the basis of jurisdiction'.
121. In sum, both Nicaragua and Honduras believed throughout this entire
period that Nicaragua was not bound by its declaration of 1929,and Nicaragua
confirmed this to the United States. Those involved wereaware of Nicaragua's
failure to have accepted the Permanent Court's compulsory jurisdiction and

therefore of Nicaragua's failure to have satisfied the requirements of Article
36 (5) of this Court's Statute. No one suggested that ratification of the United
Nations Charter had altered Nicaragua's status with rcspect to the Court. Juris-
diction in the case was based upon a special agreement precisely because Hon-
duras could not rely on Nicaragua's declaration.

F Nicaragita Hus Been Li,stedas ftaloimin agDecloraiion in Force in Vorious
Publicarionsonly Becauseof Confusion11~~reh reSiaius oflis Declararionunderrhe

Permoneni Court

122. Notwithstanding ils own view during the period preceding the Kin~ of
Spain Arbiiral Awardcase that its declaration was not in force, Nicaragua claims
in its Memorial that its new interpretation of Article 36 (5) "is confirmed and
reenforced [sic]by the uniform practice of the interestcd States and international

organizations for the pas1 38 years" (para. 40). But Nicaragua has cited no
support for this proposition. Everyauthority referred to in Nicaragua's Memorial
either expresslyassumed that Article 36 (5) applied only to declarations in force
for the Permanent Court or simply copied its listings of States from other
sources. The only reason Nicaragua appeared on any of these listings was that,

despite being fullyaware of the confusion surrounding its declaration, Nicaragua
made no effort to apprise the international community of its failure to carry
through with its announced plans in 1935 and 1939 to ratify the Protocol of
Signature of the Permanent Court.

1. The Yearhook of rheInternational Couri ofJusiice

123. Nicaragua places primary reliance on ils appcarance in the I.C.J. Year-
book 1946-1947 as a State whose declaration was "deemed to he still in force"
(Memorial, paras. 41-55). Close inspection reveals, first,that the Registry never

listed Nicaragua's declarationas heing unequivocally in force, and, second, that
the Registryexplicitlyadopted an interpretation of Article 36(5) exactlycontrary
to Nicaragua's interpretation.

' S~c~r~g.i~\iatc>~n~orrc~~tn l),I,hlcm,>rr~1l h.d"[tlh: Cou1 ce:.>gnv:d~hch:~\c\ 01'
,undl;ilon ;ir\rric<lh! Ilnnd~ra," 1\lrrn<>n~l 771 Kdihcr.th? Coari niercl)ooi:d
\\LI~~Liammcnt uh~i h;iil becn arscricd in the ,\onliraiioa~ ~ii~r~i~rili7~~cit~~. ihe
Court didnot "rccagnire" ihoseassertionsto be cok&t (kbirrol ~word Modeby rheKing
o/Spoin on 23 December 1906.Judgmenl.I.C.J.Reports1960, p. 192,at p. 194). 124. The Registry took great care not to represent any of ils listings as
authoritative'. The Yearbook begins with a Preface stating:

"lt is to be understood that the Yearbook of the lnternational Court of
Justice is prepared and publishcd by the Registrar and in no way involves
the responsibility of the Court."

And the introduction to the Chapter on "Texts Governing the Jurisdiction of
the Court" contains the further disclaimer that, "under present conditions, the
particulars given below cannot be guaranteed as entirely accurate or complete"
(ibid.,p. 197?).
125. In addition to these general diselaimers, when the Registry first inçluded
Nicaragua on ils list. it did so with a prominent footnote:

"According to a telegram dated November 29th, 1939, addressed to the
League of Nations, Nicaragua had ratified the Protoçol of Signature of the
Statute of the Permanent Court of International Justice (December 16th,
1920), and the instrument of ratification vas to follow. Not$cution concern-
ing the deposir O/ rlie said insrrumenihasno(. however,beenrereivedin the
Registry."(Ibid, at p. 210 (italics added).)

"Notification" presumably referred to notification from the League of Nations
Secretariat. the de~ositarv and the authoritative source of information concemine
ratifications of the permanent Court's Protocol of Signature. Evidently the
Registry of this Court was uncertain whether the instruments of ratification had

hein deuosited and. ~erha~s because of conditions existinn in the immediate
post-wa; period, and becaise of the dissolution of the ~eaiue, did not receive
notice from the League of Nations Secretariat as to the exact state of affairs.
On the basis of Nicaragua's 1939 communication to the League, the Registry
apparently listed Nicaragua in the belief that the instrument of ratification of
the Protocol of Signÿture might have been deposited, but, quite correctly, noted
that deposit in fact had not yet been confirmed.
126. If this Court's Registry had adopted Nicaragua's theory of Article 36 (5).
the footnote in the Yeorhook would have been su~erfluous because the deoosit
ùl ihc mstriinirnt ofr;itiiic;it~onrroi~ll;iw bcen irrelci~ant.'lhem!, rxplanaii<in
ior ihr ii>otnote is thalIIuar ti> al~rt rcidcrsIO 3 pos~ibledciecl in Kicaraguli's
declaration under the Permanent Court and to put them on notice that they
could not rely upon the Registry's listingas conclusive3.
127. Thus, taken as a whole, the first Yearbook did no! treai Nicaragua as

a State bound Io the Court's cornpulsory jurisdiction by redson of ils 1929

' Nicaraguahaserroncouslyassenedthat informationfram ihe Regislryconcemingils
declarationwas neccssarily"authentic" (Memorial, para. 54). In faci, the Regisiryhas
never had direct rcsponsibilityfor thc Lcaguc of Nations archivcs,which alone can
determinewhetherNictragua everdcpoîitcd an instrumentof ratificationta the Permanent
Co'rThcPrYearhuokfwas later seento contain listingswhichwerc round to be inacçurÿtc:
Paraguaywaslater rcmovcd,and thedeclarationof Thailand(Siam)waslatcr dctcrmincd
no1to have been in forccin 1947.(Sec 'TempleofPreoh Viheor case,op.cil.ICJ. Reporrs
1961. p.28.)
' The Yeorbook alsolistcdPara uay'sdeclaration asin force,despiteParaguay'scarlicr
withdrawalof ilsdeclüration,but &d sosubjeçtto afaotnote.Thur. the Registryregarde*
thedcvicc of arooinoteassufficientIoindicategravedoubtsabout alisting (secNicarwuan
Memarial,para. 51).40 MILSTARYAND PARAMILl'rA RCTIVITIES

declaration. Rather, the Yearbook treated the declaration as one which mighr be
in force, subject to confirmation that Nicaragua had made itself party to the
Statute of the Permanent Court by actually depositing with the League the
instrument of ratification of the Protocol of Signature.
128. Subsequent editions of the Yearbooks through 1954-1955did not print
the text of the declarations but rcferred readers back to the I.C.J. Yearbook
1946-1947 and, in Nicaragua's case, to page 210 of that Yearhook, which con-

tained Nicaragua's declaration and the footnote discussed above. In this way, the
Yearbook continued to notify readers of the possible problcm with Nicaragua's
declaration.
129. The I.C.J. Yearbor~k 1955-1956 was printcd after the Registry's exchange
of correspondence with the custodians of the League archives and with Judge
Hudson. This edition retained the general format of the 1947 through 1954
Yearbooks but added a footnote to the listing of Nicaragua. This footnote,
however. was not identical to the orieinal 1946footnote. Instead. the last sentence
h3d bccn ch:ingtd to rcflcctthe inforiii~tiuiirs.ci\cd froiii ihc ~'cigii:of '1;ititins

archi\cs "Il dots not rppcar. htiwcvcr. that thc instrument <II'<iiiliilitiiv<i\
ei,ïr recri\cd hv the I.c<icueof Nations " (1 (.'J Kwrh,~ok1955.19j6, n 195 )
130. There ils0 appeGed, in the list of tat tethat had accepted the ~oukt's
jurisdiction, a footnote to the Nicaragua listing, instructing readers to "See
footnote 1 on page 195" (ibid.p. 183). A similar footnote was appended to the
listing for Paraguay.
131. Beginningwith the 1956-1957edition, the Yearbook again began printing
the full texts of declarations and continued to include the footnote to that of

Nicaraeua. In addition to the customarv disclaimer in the Preface that the
'.)r,iirhT,ois prepxrerl and puhlirhed hy the Rrgiriry and in no <vasinvolve\ the
rerpiinrihility of the Court".LInew dirclaimcr apprarcd ai the beginning of the
chapter on declarations:

"The texts of declarations set out in this Chapter are reproduced for
convenience of reference only. The inclusion of a declaration made by any
State should not be regarded as an indication of the view entertained by the
Registry or, aforfiori,by the Court, regarding the nature, scope or validity
of the instrument in question." (Ibid.,at p. 207.)

The Yeurbooks have continued to carrv such a disclaimer. 1See~~e.~. ". IC~.
Yeorbouk1982-1983, p. 50.)
132. In short, the Yearbook kas never listcd Nicaragua's declaration without
notine the oossible defect. and the Yearbuok kas never asserted that its listing of
decla;atiois is authoritati;e or final. Equally significant, tYeurhouk repudiates
Nicaragua's theory that its 1929declaration could have been brought into force
by Nicaragua's ratification of the United Nations Charter. Rather, the Yearbook
has been premised on the belief that Article 36 (5) of the Statute applies only to

States which were "bound" by their "acceptance" of the Permanent Court's
Optional Clause. The first Yearbook statcs in the preface to the list of acceptances
of this Court's compulsory jurisdiction:

"This list also includes communications and declarations of States
Members of the United Nations which are sri11boundby iheir occepronce of
the OprionulClauseof rhe Srarureof rhe PermanentCourr of International
Justicè,since rlieirobligarionunderrliar Clauseis exrendedro rlienew Cour!
by the terms of Article 36, paragraph 5 . . ."(I.C.J. Yearbook1946.1947,

p. 196(italics added).)The phrase "still bound" is used in two other places in the same book to describe
the States subject to Article 36 (5)'.
133. As in the original Yeurbook, subsequent Yeurbooks made clcar that the

Registry assumed that Articlc 36 (5) could only apply IO States which had
actually accepted the compulsory jurisdiction of the Permanent Court2.
134. T~e ~ Eururhook~ therefore not onlv never have listed Nicarag"a as havine -
J ilccllirattt~nin iiir~c wiilioui ii,?tln,! ihc lippuent Jefici. but al>,nc,irr hciic'
iniimliicd ihat a iIccl<irxti<,could hc Jcenied infor~.cif ihc Jccl.ir.int hd TililcJ
to accept the compulsory jurisdiction of the Permanent Court.

2. Unired Nurions prrblicorions

135. The various United Nations publications referred to by Nicaragua also
assumed that only declarations in force could have been transferred to the pre-
sent Court by Article 36 (5)). Where these publications cite their source of infor-
mation, they invanably refer to the Court's Yeurbook4. None purports Io carry
any authority, none reveals any analysis, and none reflects any support for
Nicaragua's interpretation of Article 36 (5). Lndced, as the 26 August 1946

edition of the Werkly Bullerin of the United Nations made explicit, they stand
only for the proposition that "[tlhe declarations which were made by Statcs
purries Io rhe Permanent Cour1 according to the Stdtute of the new Court ohtain
for the latter until they expire" (pp. 11-12(italics added)).

136. The same can be said for the publicists cited by Nicaragua (Mernorial,

paras. 66-73). Three deserve special mention hecause they appear to have ana-

' 1.C.J. Yeorhook 1946-1947,al p. 207 ("Communications andDcclürationsof Siates

&tianal~~siice").~
For examplc,the 1.CJ, Yeurhook 1948-1949p . .36,States:
"Thc ÇollowingStates have deporited wilh CheScretûry-General of the Unitcd
Nations thedeclaralion recognizingthe Court's jurisdiction as cornpulsory,or bod
alreody accrptrd rhejurisdicrionO/ the Per»to>tmrCourr of International Justiceas
cornpulsoryfor a period thai has not yctexpired."(Ilalicsaddcd.)

' For cxamplc.thc Secrelary-Gcncral's reeond Annuol Reporr ofthe Secrelory-Ceneru1
on rhe Work <$the Organization (sce NicaraguanMernorial,para. 61) dcscribesitalisting
as reponing Statcs "having under Article 36 of the Siatute of the Permanent Court of
I~ternationalJusticemade decl<iruli~,nr hichhaveno1yei e.xpireduccepringrhejurisdidir~n
ofrliar Courr..."(Cencrol Assei~dlyOflcial Recordr,Second Session ,upp No. 1(A/315),
Signoriires.Rririficurions.Aeccpr<rnc. cce~sions. tc. concerningthe MulriloierConven-
rionsand Apreenzenisin r~rpecr iij~rkichrbe Secreinry-Generolacrs u.~Dcposilory (Nica-
ragua" Memorial,para. 62). çntilles ils iablc "Slatcs whose DeclaralionsWere Madc
Under Article 36 of the Statute of the PermanentCourt of InternationalJustice and
Deemedto bc StillinForce".Sec, e.g.Vol.1,1949,p. 18.Scealio, Ymrhouk ofthe Unirrd
Narions 1946.1947(arsuminpNicaragua"dcclarationentcredinto forccin 1939and thus
was rubject 10 transfcra refercnce ihat wasdroppcd in al1subscqucni Yeurhooksofrhe
United ~Voriuns).
Sec. c.g..Sccrctary-General'sSignalures, Rori/icalions. Accepronce~,A~ccessionse.rc,
Vol.1, 1949.p. 18(rcfcrringto the I.C.J.Yeorhook 1947-1948).42 MILITARYAND PARAMILITARY ACTlVlTlES

lysed Nicaragua's status. Each concluded that Nicaragua's declaration was
no1 effectiveunder Article 36 (5). The other publicists cited by Nicaragua do

not support Nicaragua's construction of that Article and appear simply to have
relied on the Yearhook or other sources for their listing of Nicaragua.

(a)ProfessorSaloEngel

137. Professor Engel had been special assistant to the Registrar of the Per-
manent Court of lnternational Justice from 1941-1946,and thus may have been
directly familiar with the status of Nicaragua's declarationduring the lifeof the
Permanent Court. Professor Engel summarized his views in an article, "The

Compulsory Jurisdiction of the International Court of Justice", 40 Georgetown
Law Journal, page 41 (1951).
138. Professor Engel first set forth the requirements for Article 36 (5) of this
Court's Statute to apply to declarations made under the Statute of the Penna-
nent Court :

"(1) They [such declarations] were made by States which became parties
to the new Statute . ..; and (2) They had not yet expired at that lime. They
are then deemed, as between the parties to the Statute, to be acceptances of
thejurisdiction of the new Court for the unexpired period and in accordance
with their terms under paragraph 5 of Article 36." (Ihid.,at p. 52.)

Next, he applied these requiremenis to Nicaragua:

"Nor are they met in the case of Nicaragua. For though this State is a
party to the Statute [of the lnternational Court of Justice] and though it
had recognized thejurisdiction of the Permanent Court unconditionally and
without any lime limit, irsdechruriondid not hecomeefecrive hecauseonly
Statesparties tu the Prorocol of Signatureof tlzeStatute of the Permanent
Court were in a positionro make valid declur~rtions N.icaragua, however,
never deposited the instrument of ratification of the Protocol of Signature
with the Secretariat of the League ofNations, as stipulated in paragraph 3
of the Protocol. It merely notified the League of Nations by a telegram
dated November 29, 1939,that it had ratified the Protocol and that the
instrument of ratification was to follow. The instrument did no1 follow."
(Ihid.,at p. 53 (footnotes omitied).)

Professor Engel was well aware of the way Nicaragua had been listed in the
Court's Yearhook and by Judge Hudson (ihid.at p. 53, n. 56), thus emphasizing
al1 the more that he had actually analysed the question before arriving at his
conclusion. (Compare Nicaraguan Memorial, para. 69.)

(b) JudgeManley Hudson

139. Reference has already been made to the fact that Judge Hudson closely
scrutinized Nicaragua's status in 1955, and concluded that Nicaragua "is not
hound by the second paragraph of Article 36 of the Statute of the lnternational
Couri of Justice" (para. 115, .supra).Why, then, did Judge Hudson include
Nicaragua among thc States subject to Article 36 (5) in his earlier writings?
(See, e.g., M. Hudson, "The Twenty-Fourth Ycar of the World Court", 40

AntericanJournalof InternarionulLaw, p. 1, at p. 34 (1946).)
140. From al1available evidence,it would appcar that Judge Hudson initially
regarded Nicaragua's 1939 telegram as an effectiveratification of the Protocolof Signature of the Statute of the Permanent Court'. He never, however,
suggested that, if the telegram had not constituied ratification, Nicaragua might
nevertheless bebound by operation of Article 36(5)'. Over time, and upon close
examination, Judge Hudson recognized that Nicaragua's 1939telegram had not
been a satisfactory means of expressing ils consent, and therefore that Nicaragua
could not be deemed to be bound under Article 36 (5).
141. Afier Honduras retained Judge Hudson in 1955, he sent a preliminary
memorandum to Foreign Minister Mendoza of Honduras (Ann. 38). At this

point Judge Hudson already had serious doubts about the listing of Nicaragua's
declaration. Judge Hudson stated:
"Of course, Nicaragua should have sent a ratification of the Protocol and
the Statute of the Court. 1can't find that they did so.
..........................

A telegraphby Nicaraguawouldnot be a ivayfor themtu add to the legul
consequenceo sf theactionof 1929
..........................
However, on 26 lune 1945, Nicaraguasignedthe Charter of the United
Nations, und raiified it on 6 September 1945; it became etïective on 24
Octoher 1945. Thisdid nrit, in any wuy,affect the compulsory jurisdiction."

(Italics added.)
Judge Hudson's correspondence with the Registrar of the Court followed (see
para. 114, supra).
142. In hislegal opinion for Honduras in December 1955Judge Hudson again
emphasized his increasing doubts about the telegram:

"19. 11would seem that more emphatic action than sending a telegrarn

should be taken to make Nicaragua a Party to the Statute of the
Permanent Court of International Justice. It would be capable of
becoming a Party to the second paragraph of Article 36 of the original
Court Statute, only if it were a Party to the Statute as a whole.
Nicaragua seems to have been conscious of this, for it is to be noted
that she mentioned that ;iratification would follow. At any rate, no
ratification had been received at the Secretariat of the League of
Nations by the end of 1945. Nicaragua must, in this respect, have
changed hermind. At any rate, we cÿn only act on what she did.
20. It is admitted that at the time of Nicaragua's action in 1939 - on
29 November 1939 - a large part of the world was engaged in, or on

the eve of, a world war. Yet, this would not excuse Nicaragua's failure
to formalire its action.

' AlthoughJudge Hudson was natifiedby the Lcagueof Nations in 1942that no
instrumentof raiificationhabccn received(secAnn.25).helistcdNicaraguain his 1943
treatisas havin. a declaratianinforcc as of1939.(Sec Hudson. Tlie PerrnonenlCourr,
atp. 667.)
The listingof Nicaraguain Hudson's 1946art(c1eis expresslybascdon the premix
that Nicaragua had ben a parly to the Statutcor the Permanent Court (op. cilat
pp.51-52). 23. It would seem that under the Statute of the International Court of
Justice, the Secretary General of the United Nations has a larger power
than he had under the Statute of the Permanent Court of International
Justice; but the ratification of the declaration seemed necessary to the
men who guided the Permanent Court of International Justice. They
required the declaration, and it sccms to have becn understood at al1
times that it required a ratification which would pass anyone's muster."
(Ann. 37, paras. 19,20, 23.)

Judge Hudson ends this part of the discussionhyquoting a letter from M. Giraud,
Acting Legal Adviser of the League of Nations (Ann. 25), who had concluded
that Nicaragua was not hound either by the Protocol of Signature or by the
Optional Clause (ibid., at para. 25). Judge Hudson concluded that "Nicaragua
. . .is not hound by the second paragraph of Article 36 of the Statute of the
International Court of Justice" (ihid.,at para. 36).
143. In 1957'Judge Hudson published his last annual article on the Inter-
national Court. He continued to include Nicaragua on the list of States party
to the compulsory jurisdiction of the Court (perhaps in deference to his
client, Honduras), but introduced a new and cryptic footnote to Nicaragua's
listing: "See the relevant correspondence." (M. Hudson, "The Thirty-Fifth
Year of the World Court", 51 Anlericari Journal of Inrernati~~nuL l aw,
p. 1, al p. 17 (1957).) Although he did not explain himself further, one can
surmise that he had in mind not only Nicaragua's correspondence with the

League but also his own recent correspondence with the Court Registry and
League Archives.

(c) ProfessorShohtuiRosenne

144. Professor Rosenne's writings show an increasing concern that Nicara-
gua's declaration might never have been in force. In 1957, relying on the
I.C.J. Yearbook 1946-1947, Professor Rosenne implicitly viewed Nicaragua as
having had a declaration in force prior 10 1946 (The Internarional Court
of Jusrice, p. 310 (1957)). By 1960, however, in a more detailed analysis of
the declarations, Professor Rosenne had added a footnote to his inclusion of
Nicaragua :

"There esisrs doriht whether this instrumentwas rutiJied.The U.N. Sec-
retariat includes it in the list of multilateral conventions of which the
Secretary-General acts as Depository. Doc. ST/LEG/3, p. 1-24. This is
duuhtedhy Ihe Registry of the Court, I.C.J. Yearhook, 1957-8,p. 205. And
see Hudson, The PermanentCourtof InternationalJustice1920-1942,p. 696.
In the Arhilrul Award of 23 Decemher 1906 case (nendine). Honduras
invoked inter uliu the ~icara~uan declaration." (~hf Time'Fhclor in the
Jurisdicrionof theInternationalCoiirtofJustice, p. 19(1960) (hereafter "The
Time ~acior")(italics added).)

He also stresses in this work that in order for declarations to be transferred hy
Article 36 (5) they were "subject to the overriding condition that the State con-
cerned was a oa.tv ,o the Protocol of Sicna-ure of the Statute of the Perma-
nent Court . . ."(ihi<l..at p. 19).
145. Professor Rosenne's subsequent works also evidence increasing doubts about the reliability of Nicaragua's listing'. Thus, although he never published
an authoritative analysis of Nicaragua's status< he progressively qualified his
inclusion of Nicaragua in his published works. Like Professor Engel and Judge
Hudson, Professor Rosenne gives no support to Nicaragua's theory that Articlc
36 (5) might apply Io a declaration which had not entered into force for the
Permanent Court'.

4. Puhlicotions of the United States Govcrnment

146. In a section entitled "Practice of the United States", Nicaragua has cited
a variety of United States Governmcnt publications since 1946which have listed
Nicaragua among the States accepting the Court's compulsory jurisdiction
(Memorial, paras. 79-83). Of these publications - none of which represents
"practice" of the United States, as that term is customarily used - Nicaragua
places primary reliancc on Treaiies in 170rcean annual publication by the State
Department of bilateral and multilatcral treaties to which the United States is
party. In the case of multilateral agreements for which the United States is not
depository, Treories in Force relies entirely upon information furnished by the
depository, in this case the Secretary-General of the United Nations. Treaties in
Force should not be considered authoritative or admissible evidence of the text
or parties to a multilateral treaty for which the United States is no1 depository;

that role is reserved for other publications, none of which kas ever listed States
accepting this Court's cornpulsory jurisdiction".
147. The same may be said for the other United States publications cited
by Nicaragua. Most derive from Uociinirnls and Stale Paperu, an early Slatc
Department publication which listed Nicaragua's declaration as effective from

' InThe WorldCouri, p.96, n. 21 (1962). ProfcssorRosennelistedNicaraguaamong
Stateswith declarations"made in relation10the Permanent Court . . believedta bc in
force" (italicsadded). The 1973 editionchangcdthis to read "stillrecordedas in force",
p.233(italicsadded). In The Lnw and Prucliceof rheCouri,Vol.II,App. 10,p. 899(1965)
(hcrcaftcr "Low ond Procriceof ihe Couri"), he States,in a footnote to thc Nicürîgua
cn1ry:
"A ratificationsaidIOhavebeenmade on29 November1939is no1notified in the
Leagueof Nations Treoty Seris. Sec Yearbook, 1946-7,p.210. In the 2lrt List of
Signatures, Ratifications andAccessionsin respectof Agreementsand Conventions
concludedundcr the auspicesof the Leagucof Nations. itis statcd that Nicaragua's
signatureof thc Oplional Clause is 'no1yet perfected[by] ratification(LNOJ, Sp.
Sup.,No. 193,p.43.)"

exclusionof any declarationin thisAppendixtheisno1to beconsidered. as8an expressionof
the author'sviewsof any questionconnecicdwith the statunof that declaratian"). Ilis
notable in this regard that his warks rcflcan increasingtendencyto refer back to the
originalLeaguematerialswiihrespect to Nicaragua'sdeclaration,ratherthan referenceIo
the Court's Yearhook.
' Moreover,as Agent for lsrael in thAerinl Incidentcase, ProfessorRosennc ncvcr
suggcsled this theory.Instead,he assumedthat only declarationsthat had been binding
acceptancesof the compulsoryjurisdiction of the PermanentCourt could be dccmcd
scceptancesof the compulsoryjurisdiction of the International Court of lustice under
Article36 (5). (ICJ. i'leodings,Aeriol Incideniof27 July 1957, p.455,al pp.460,463,
471,473, 474, 477, 483, 485 (orastaiementof Mr. Rosenne).)
arcuPeoiies and Oihrr hiernotionol Agreements("TIAS").thandthUnitedStores Treoticsand
Orherinternoriono1Agreements("LIST').46 MILITARY AND PARAMILITARY ACTlVlTlBS

29 November 1939 but which pointed out the footnote in the I.C.J. Yearbook
1946-1947 and added: "General index No. 9 of the League of Nations Treaty
Series does not record deposit of the ratification, which had no1 been receivedin
the Registry of the Court." (Vol. 1,No. 3 (June 1948).) Subsequent publications,
which were concerned with updating earlier listings by listing new or renewed
declarations, omitted these references'.
148. In short, none of these publications purports to be authoritative, and

none endorses Nicaragua's theory of Article 36 (5).

5. Publicarions of Nicaragua

149. The United States is as yet unaware of any Nicaraguan official publi-
cations antedating this case which list, or have previously listed, Nicaragua's

declaration as in force. Nor is the United States aware of any officialstatements
made prior to this case hy the Government of Nicaragua during the 55 years
sinceit signed its 1929declaration that would indicate in any way that Nicaragua
itself believed the 1929declaration to be legally binding.

6 Conclusion

150. In sum, although Nicaragua's declaration never came into force for the
Permanent Court, Nicaragua suggests that the declaration nevertheless was "still
in force" within the meaning of Article 36 (5) or brought into force by that
Article when Nicaragua ratified the United Nations Charter. Although the record
does reveal a degree of confusion or ignorance concerning Nicaragua's failureto
become party to the Statute of the Permanent Court, tbere is ahsolutely no
support for Nicaragua's novel construction of Article 36 (5).

151. Nicaragua's novel interpretation is not only unsupported hy the text of
the Article, but contrary to the plain meaning of the words, "still in force"; not
only unsupported by the negotiating history of the Conference, but contradicted
by those travaux and by the statements of persons present at the Conference,
such as Krvlov. Fahv. Hackworth and Hudson: no1 onlv unsuooorted bv ex-
amples of ;the; ~tatés,but inconsistent with the treatmkt accitded the other
declarations which wereno1 in force for the Permanent Court and, in particular,

contradicted by the examples of Costa Rica and Turkey; not only unsupported
by any decision of this Court, but contradicted by both majority and dissenting
opinions in the Aeriol Incidents, Temple of Preali Vilfear and BarceIonaTracfion
cases; not only unsupported hy the Court's Yearbook and any other publication,
but ex~resslvcontradicted bv that Yearbook and bv the Reeiutrar of~the ~ ~ ~: .
ndt only uns~pportcd b) an). publicisi. but sirntradi~tcd h! Krylo,, Iludson.
Engcl and Koscnne: nrii only un>upporied h) ihr. r.i>nil~ctof thr. Partir.,, but
r.ontrîdicicJ bv Uniicd St;ite, Deriariment of Siatr. anil Lnitcd Siatcr Scnate
staternents made during consideraiion of the Charter and hy Nicaragua's own

conduct and statements prior to the Kingof SpainArbirral Awardcase. All these
autborities agree: Article 36 (5) applies only to declarations that were in force
for the Permanent Court at the time the declarant joined the United Nations.
Article 36 (5). therefore, cannot apply to Nicaragua's declaration of 1929.

' Sec,c.g., Deportmen1 o/Slote BulletinVol.24,No. 616 (23 April1951) COUNTER-MEMORIAL 47

Section III. The Conduct ofthe Parties Cannot, and Didnot, Create an
Acceptance by Nicaragua of the Compulsory Jurisdiction of the International Court

of Justice

A. A SrareMay no1Ma,ri/èstIts Consentto AccepltheCompulsory Jurisdictionof
rhisCourrExceptin ConformirywifhrlieMandatoryLegalRequiremenis rfrhis
CourrSStarure

152. In its Memorial, Nicaragua claims that the conduct of the Parties since
1946 "provides a second and independcnt hasis for the elfectiveness" of ils 1929

declaration (uara. 84). Nicaragua's arrument aupears to be, first, that Nicaragua's
.~~~-~t~ ~re3ed an imolied consent thal over&e ils failure to acceot the com-
pulsory jurisdiçtion OF the Permanent Court, and, second, that unitcd States
conduct constituted acquiescence in the effectiveness of this implied consent. The
argument is an atlempt to circumvent the Statute of this court. It assumes,
correctly, that Nicaragua has not consented to compulsory jurisdiction in
accordance with the provisions of Article 36 of the present Statute. Nicaragua

asserts incorrectly that the conduct of the Parties neverrheless has bound
Nicaragua to this Court's compulsory jurisdiction.
153. The consequcnces of accepting the Court's compulsory jurisdiction are
far too significant. and the requirements of law are far too rigorous, to allow
this casual approach. Indeed, even the authority upon which Nicaragua relies,
the Templeof Preah Vihear case, rccognizes that, where "the law prescribes as
mandatory certain formalities", these formalities "become essential for the

validity" of the transactions (Templeof Preah Vihear.Preliminary Objections.
Judgment, I.CL Reports1961, p. 17, al p. 31).
154. The Statute of the lnternational Court of Justice provides thrce means hy
which a State may manifest its consent to accept the jurisdiction of the Court:
under Article 36 (2) and (4), by filiriga declaration with the Secretary-General of
the United Nations; under Article 36 (5), hy having a declaration that was in force
under the Permanent Court system and remained in force when the Statute of this

Court came into force; or by treaty or convention under Article 36(1) or Article37.
The conduct of the Parties, even if Nicaragua's characterizations were accurate,
cannot satisfy the mandatory legal requirements of any of these Anicles.
155. The TempleoJPreah Vihear case identified the essential requirement for
declarations under Article 36 (2) of this Court's Statute:

"The onlv formalitv reauired is the de~osit of the acceptance with the
~ccretar~-~>neral of ihe ~nited Nations Lnder paragraph'4 of Article 36
of the Statute." (I.C.J. Reports1961, at p. 31.)

It was only because Thailand had complied with this requirement that this Court
held that there was no "defect . . .so fundamental that it vitiated the instrument
by failing to conform to some mandatory legal requiremcnt" (ibid.,at p.34).
Nicaragua does not contend that it has filed such a declaration'. Thus, thc con-
duct of the Parties is irrelevant so far as Article 36 (2) is concerned.

' A footnote in thc NicaraguanMcniorialimpliesthat the AmericanTreaty on Pacific
Settlement(the "Pact of Bogota) funciions as a declaralionunderAnicle 36 (2)(pqa. 93,
n.2). Nicaraguakas not actuallyinvokedthe Pact as a titlc of jurisdiction.andin any
r.\ini .u;h ;inarreri.aii J L ~h: ~ncorreciIhe Un1ir.dSiair, rc;ini.\al1righirin ohjnï
\h<>ulJth83bi~onir ;lnibsiirinihc prc,ciiiprocrrd~n$.Xr~rrihilc~r.furtheCourt', I>cncIii.
i~ ~ ~niicJ-~.~i~ ~ ~ l'c>rin Anne, 39 in !hi\ <-ii~nt:r.!lim<,ris.Sbrieldr.,:riiiiii.>i
the Pact of Bogoti. ~hc Pact of ~ogolkis entirelyirrelcvant 10 this procccding'ainceil
exprerslyapplicsonly io partiesIo thc Pact,and the UnitedStatm is no1 a Party. 156. The conduct alleged hy Nicaragua is also irrelevant 10 Article 36 (5).
Although Nicaragua's 1929 declaration was never in force for the Permanent
Court, Nicaragua seems to claim that its declaration hecame effective as a result

of the Parties' conduct ufter the Permanent Court ceused to exist (Memorial,
para. 85 ("conduct . . .over the pas1 38 years")). This rnight be called the "time-
machine" theory of consent hecause it assumes that later conduct can remake
earlier events. But, under Article 36 (5), a declaration under the Statute of the
Permanent Court either transferred on the date the declarant became party to
the United Nations Charter, or not at al1(AerialIncident of27 July 1955 (Israel
v. Bulearial. Judemenr.I.C.J. Reoorts 1959. o. 127. at o, 143). When Nicaraeua
joinedUtheÜnitedY~ations in 1945ils declaraîion could not have heen considered
in force for the Permanent Court as a result of conduct which had not yet even
occurred.
157. Even apart from the prohlem of chronology, the conduct alleged by

Nicaragua could not correct the failure to satisfy the mandatory legal requirement
of the Permanent Court's Protocol of Signature. the deuosit of the instrument
of ratifi:ntioii. Nicdrigua', assertion thdÏ..coii,cnt <an ;eïdily bc pcrïc:ied by
othcr mean," (Mcmori;tl. p;ir;i. 88. 1ssimply inci>rrcct,se< p.ir:ts. 34-35. wpru).
'fhc con~.eptof "c,,cnti.~I \alidit)" on uhich Nis;irdriid rel~e. 1,irrclci,.in18,thc
question of whether a treaty such as the Protocol ofSignature entered into force
for NicaraguaL.
158. Finally, Nicaragua does not attempt to relate the "conduct of the parties"
10 Article 36 (1). Nor could Nicaragua oossihlv claim that the conduct of the
P~TIICS CTC~IC~ arpcu.ial ïgrcemeni tosul;niit th; iïse to the Court. The Unitcd
Stïtcs JI^ noi agrcc to jurisdiciion prlur to the proïecd~ngr ;ind hïs cuntcsted
jurisdiction since the Application was filed.

159. In short. the conduct of the oarties alleeed hv Nicaraeua is altoeether
irrelevant to thémandatory legal requirements if an; of the Pertinent sections
of the Statute of this Court and therefore cannot provide a hasis for jurisdiction.

B. Nicaragua'sConduclBoes not Indicaieany Intent to Accepl the Compulsory
Jurisdicliunof this Court

160. The Parties agree that Nicaragua failed to take the steps necessary to
accept the compulsory jurisdiction of the Permanent Court. Nor does Nicaraguan
"conduct" during the pas1 38 years suggest any intent to accept the compulsory
iurisdiction of the oresent Court. Nicaraeua claims that ils oarticioation in the
San Francisco conference, the King of .SpainArbitral ~ivardCase, and ils silence

in the face of the Court Yearbuok listings manifest its consent to accept the

' Sec Nicaragua" Memarial. para. 87. "Essential validity".or "invalidity", as the
concept is express4 in the VicnnaCanvcniian on the Law of Treaiies,Articles 46-53,
concernserror, fraudand other issuesrelatingIo the intrinsicIcgalityof treaties."Fomal
validity"concerns the conclusion and entry into forceof treatiesand depcndsheavily on
matiersof Som, includingthc formaliticsof ratification.Questionsof cssentialvaliditydo
no1ariseunlcssthe requiremcntsof famial validityhavebeensatisficd:
"Essentialvalidity . ..isa tcm uscd to describethat intrinsicor inhcrentvalidity
which a trealymus1possçss.inadditionto ilsformalvalidity(regularity al conclusion)
and itntemporal validity(cantinuingexistenceand non-temination). in order io have
fullobligatory force and give rise to international obligations.Accordingly,the
question of essential validiiy prcsumes the existenceof an inrtnimeni regularly
concludedas to rom, and havingentereà intoforce. . ."("Lawof Treaiies",Report
by G. G. Fitmaunce, SpecialRapporteur, 1958 Yeorbook O/ rhelnrernorionn lntv
CommissionV , olIl,p. 20,a1p. 23.)Court's compulsory jurisdiction (Memorial, paras. 91-92). The evidence does
not support, indeed, il contradicts, such an assertion.
161. Many States participated in the San Francisco Conference and voted in
favor of the Statute, yet did not themselves accept this Court's compulsory
jurisdiction. As Professor Brownlie has written:

"States do not submit to the jurisdiction of the Court as a result of
signing the Statute, and some further expression of consent is required."
(Principlesof PublicInrernarir,nalLow 718 (3rd ed. 1979).)
By approving Article 36 (5). Nicaragua agreed that only declarations in force
under the Permanent Court should he deemed in force for the new Statute. In

San Francisco, Nicaragua was one of the States that specificallyopposed universal
compulsory jurisdiction (SummaryReport ojSevenleenrhMeeling of Comi~iiriee
IVII, UNCIO, Vol. 13, p. 246, ai p. 250). As Nicaragua was aware at the time,
uiven the corresoondence and discussions in 1935. 1939. 1942and 1943. that its
oun declir~rion u.as no1 ~iiforce. itiprefcrencc ior Articlc 36 (5) ovcr ~niierial
contpulsor!, ~ur~xl~cti\~lnndl.'ates ait undcrj~iinding 1h:tl11UOLI~ ,101bc bound
without the deposit of a new declaration.
162. As discussed ahove, the history of the KingoflSpainArbirral Award case
reveals that Nicaragua believed ils declaration uiider the Permanent Court no1
to he in force for this Court, that Nicaragua so informed the United States, and
that a special compromis was required precisely because Nicaragua's declaration

was not in force (sce paras. 113-120, .sltpra)Nicaragua's conduct as potential
respondent in that dispute now estops Nicaragua, as Applicant in this dispute,
from adoot.nr -he contrarv o. .tionas to the ëffectivenesi of its declaration
163. 1;inall). Nicaragua's i21Iure 10 ~lh~eilIJ lhc I('J Yvorh~<l/i'siiding of
11sdeclaralion with a conspicunus diclaimer can onl) he rcgardcd as;icquie,ccncc
hy Nicaragua in the representation that it had not, or may have not, accepted
the Court's compulsory jurisdiction. Nicaragua agrecs that it would be "difficult
to ignore" such a "prominent" footnote (1, p. 124). Certainly any State with
reason to be concerned about Nicaragua's status would he made aware by the
footnote that Nicaragua's declaration may not have entered in10 force. It was
Nicaragua's hurden to correct the problem; it was not the responsibility of other
States. Nicaragua could easily have filed a new declaration or protested the

footnote if there was reason to. It did neither. This indicates a desire not to be
bound or, at most, a desire to prcserve a degree of ambiguity and confusion'.

' Bven if thcre had beenno footnote to alert rcaders to the failure to bring thc
declarationinto rom. thc listingin the Court'Yeorhook could no1be taken as evidcncc
ofconsent ta acccprcompulser).jurisdiction.Suchsilenceconcerningthe listingcouldonly
be pertinent if the situation requiredsome responsefrom the State in order to avoida
changeintheStatc'sIcgÿlposition. (Templeof PreohVihcor, MeriisJudgmuni I.C.J.Reporlr
1962. p.6, at p. 23 ("the circumstanccrwere such as called for somc reaction"); 1. C.
MacGibbon,"The Scope of Acquicscenccin InternationalLaw", 31 British YeurBook (fl
lnrernoriono Lnw (1954),p. 143,al p. 182("Acquiesccnce isequivalentto tacitorimplied
conncnt.Ittakerthe formofsilenceorabsenceof protcstincircumstanceswhich,according
IO preserveacright").) ln this case, the listingin ICJda Yearbnokrcould no1prejudice
or bind Nicaraguasincethe question of jurisdictianis alwaysfor theCourt 10 dccide in
accordancewiththe Statute.As thisCourt has stated:

"where the contentionsof the partin disclosa 'disputeas to whetherthe Coun hds
shalldbetsettleù by the decision of the Coun', thnt ir to say byaaujudicial decis-
ion stalingthe reasonsan which ilis basedand rcnderedafter fullyhearingthe par-
ties.. ."(Orderof 10 May 1984. I.C.J. Reporrr1984,p. 178,para. 21).50 MII.ITARY ANI>PARAMILITARYACTIVITIES

After allowing this situation to persist, Nicaragua is now estopped from asserting

that its declaration became binding.

C UniredStores ConducrCannorCrearean Accepranceby Nicaragua ofrhis
Court'sCompulsoryJurisdiction

164. The law of acauiescence orovides that. under certain conditions. State
A Indy bc bound h! rrr iiiiinaiiion or failure IO pr<>tcrtil thc iircumsiaii<:j
dcmanded ihai Siaie A respond IO protecl il<<.I~,righis Ilut Siate A'sinx;ti<>n
can nevcr prcjudice ur iumprumire thc righir. or create oblig;iii<insLw,Stsic H
Unlied Si;iicssilcnrr ahout listings in the1 C'J Ytz~rhook or elrwhcrc could not
possibly çrcilic an acieptance by K~caraguaof the compulsi)ry juridiction of

this Court.
165. Even if in theow the silence of one State could create obligatiuns for
;inoihcr Sisic. silcncc ii,~uldonly hc relx.iniu herc ihc circumïianie.: r.allcilfor
sornereilcii~in(\cc para 163.n. 1,x<pru). The circumrt-incci hcre - p;iriiculiirl)
the non-authoritati\c Iisiinc oCNicaracua's declardii,)n in the 1C'J. ti,<rrhi,ok
did not cal1for sny ~lniird Sisies reGonsc The Iisiingconcerncd Nicarag~~n.
no1 Uniicd S13tr<i.nhligillions And the Iisiing contsined the hmous footn~itc.
which gave adequate notice of the defect. Nor was there any occasion for the
United States to study the listing prior to the Nicaraguan Application in this
case. Nothing, therefore, may be inferred from United States silence on the

suhject.
166. Finally, even if the law regarded al1 the other States that made no
comment as having acquiesced in the effectivenessof Nicaragua's declaration,
the United States could not he so regarded because Nicaragua had specifically
represented to the United States in 1955that it was not hound by iis declaration
(para. 116,supra). After having "disarmed" the United States in this fashion,
Nicaragua is estopped from pleading that the United States conduct constitutes
acquiescence or has created an obligation for Nicaragua that otherwise did not
exist. CHAPTER II

THE TREATYOF FRIENDSHIP, COMMERCE AND NAVIGATION
PROVIDES NO BASIS FOR JURISDICTION IN THIS CASE

167. In its Memorial, Nicaragua for the first time asserts that the 1956Treaty
of Friendship, Cornnierce and Navigation between Nicaragua and the United
States (hereafter the "FCN Treaty"') "constitutes a complementary foundation
for the jurisdiction of the Court in cornpliance with Article36 (1) of the Statute
of the Court in so far as the Application of Nicaragua implicates violations of
provisions of the Treaty" (para. 164). Nicaragua made no reference to the FCN
Treatv as a basis for iurisdiction either in its ..~iication or in the ~reliminarv
meiures proceedings Nor Jid Nicaragua asicri anyuhert in ils Applicaiion
cldimi arising undcr the t'Ch' l'reaiy. Nicaragua's irii~i1r~ariciii ihe l'rcaiy al
ihis laie date a\ ihc habisiur bolh iuri\diction and subst~ntiucclainis 1sfriv~loui
and is barred by the rules and pra-cticeof the Court.

168. The FCN Treaty cannot, tnoreover, provide a hasis for the Court's
jurisdiction in these proceedings because on its face icisirrelevant 10the claims
asserted in Nicaragua's Application. Further, even if Nicaragua's Application
arguably implicated the FCN Treaty, Nicaragua could not now rely upon the
Treaty as a tifle of jurisdiction. Thç FCN Treaty expressly requires exhaustion
of possible diplornatic settlernents as a precondition to invocation of the FCN
Treaty's cornprornissory clause, and Nicaragua has never even raised any of the
allegations it now rnakes under the Treaty in diplornatic discussions with the
United States.

Section 1. Hating FailedI'retiously tnIdcntifgthe FC.5'l'reatyaï a Basisfor
Juridiction, Sicarapuï .\In! not nnw Inioke that 'l'icslj

169. In ils Application, Nicaragua alleged that the Court has jurisdiction on
the basis of Article 36 of the Statute of the Court (Introduction, para. 13). In
its letter to the Court of 24 April 1!>84.Nicaragua asserted that there were also
treaties that provided the Court with jurisdiction over Nicaragua'sApplication.
As the Court observed, however. Nicaragua failed ta identify any such treaties
(Order of 10May 1984,I.C.J. Reporis 1984,p. 175,para. 14).The FCN Treaty
is mentioned for the first tirne in thï Nicaraguan Mernorial (paras. 163ef seq.).
170. In proceedings instituted hy rneans of an Application pursuant to Ar-
ticle 40 ofthe Statute of the Court, i.hejurisdiction of the Court is founded upon
the legal grounds specified in that Application. Article 38 of the Court's Rules

explicitly requires that the Application "specify as far as possible the legal
grounds upon which the jurisdiction of the Court is said to be hased. An
applicant isnot permitted to assertiiisubsequent pleadingsjurisdictional grounds
of which it was presumably aware al the tirne it filedits Application.
171. Thus, in the case of Ceriain Norwegian Loans, the Court refused to

TIAS4024; 367UNTS 3). 2A copyaofthefulltextoftheFCNfaTreatyMisappendcdasSAnn.40.52 MILITARYAND PARAMILITARYACTIVITIES

consider as bases for jurisdiction two treaties identified during proceedings on
preliminary objections but no1 identified in the Application (Judgmenl.1.C.J.
Reporrs1957, p. 9, at pp. 24-25). Just as inCertainNorwegianLoans, the Court
in this proceeding cannot allow a party to base jurisdiction on an instrument
different from that set out in the Application'.
172. Nicaragua purported in its Application (para. 26) to reserve the right to
amend that Application at some future time and invokes that reservation now
as the basis for adding the FCN Treaty to its pleadings (Nicaraguan Memorial,
para. 164, n. 3). This purported reservation cannot alter the requirements of the
Statute and the Rules. As the Court noted in the BarcelonaTraciion case. a
jurisdictional defect in the original application can be remedied by voluntarily

withdrawing the defective application and filing a new one (Barceluna Tracrion,
Linhi and PowerComnunv.Limired. Preliminarv Ohiecri,~nsJ .udrmenr. I.C.J.
Re>oris1964, p. 6, at p: 195.'Failure tb identifya basisfor the ~our?s jurisdiction
is such a defect. Withdrawal can be accomplished unilaterally beforethe respon-
dent kas filed responsive pleadings. Once the respondent has made such ires-
ponse, however,withdrawal requires the consent of the respondent (ibid.,p. 20).

Section II. The FCN Treaty 1swhollyIrrelevant 10the Disputethat 1sthe Subject

of Nicaragua'sApplication

173. Nicaragua admits that, if the Court were to find jurisdiction under the
FCN Treaty but no1 under Article 36 (2) and (5) of the Statute of this Court,
the only issuesproperly before the Court would be alleged violations of the FCN
Treaty itself (Memorial, para. 164). But Nicaragua's Application presents no
claims of any such violations. Thus, if the basis for the Court's jurisdiction is
limited to the FCN Treaty, there are no claims properly before the Court for
adjudication.Indeed, Nicaragua's failure to citethe FCN Treaty in itsApplication
as the basis for its claims is persuasive evidencethat it, too, considers the Treaty
irrclevant 10this case.

174. Nor may any of the claims set forth in the Application be construed as
arising under the FCN Treaty. As this Court held in the Amhrifielos case, "il is
not enough for the claimant Government to establish a remote connection
between the facts of the claim and the Treaty" upon whose compromissory
clause il relie(Amborielos.Merils. Judgmenl,I.C.J. Reporls1953, p. 10,al p. 18).
In order to establish the Court's jurisdiction over the present dispute under the
FCN Treaty, Nicaragua mus1 establish a reasonable connection between the
FCN Treaty and its claims. Nicaragua cannot establish such a connection.
175. The purpose and scope of FCN treaties was well summarized by
Herman Walker:

"IFCNI treaties are not oolitical incharacter. Rather. .he~,~re~fundamentallv
economic and legal. Moreover, though 'commerce'and 'navigation' complete
the title and accurately describe part of their content, their concern nowadays
is onlv secondarilv with foreien trade and shiooine. Thev are 'commercial'
in thé broadest Sense of that term; and they are above-al1 treaties of

'establishment'. concerned with the protection of persons, natural and

' Secalso Prince von PlessAdminisrrarion .rder of 4 Februar y933. P.CLJ. Series
AlB. No.52, p. II,al p. 14("under . . .the Statutcitis the Applicationwhichsctsout
the subjectal the dispute, and the Case, though il may elucidatethe tcms of the
application,mus1not go beyondthelimits of the daim as sctout thcrcin..."). juridicdl, and of the property and interests of such persons. They define the
treatment each country owes the nationals of the other; their rights to

engage in business and other activities within the boundaries of the former;
and the respect due them, their property and their enterprises." ("Modern
Trcaties of Friendship, Commerce and Navigation", 42 Minnesora Law
Review, p. 805, at p. 806 (1958)'.)

176. The United States invites the Court to read the FCN Treaty (Ann. 40)
-s the sure-. confirm~ ~ ~ ~f ~~s comme~cia~ character. The FCN Treatv deals
with such topics as the right of nationals of one party to direct enterprises in the
territory of the other party (Art. II (1)); consular representation if nationals of
one are arrestedin Che'territor; of the other party (Art. 111(2)); national
treatment for nationals of one party in the territory of thc other with respect to

laws providing compensation on account of injury, disease, or death arising out
of employment (Art. IV (2)); etc. There is simply no relationship between these
wholly commercial provisions and Nicaragua's allegations in its Application,
which rocus exclusively on purportedly unlawful uses of armed force.
177. Nicaragua asserts that alleged miliiary and paramilitary activities of the
United States directly violate Articles 1, XIV (2), XVll (3), XIX (1) and (3)
and XX of the Treaty (Memorial, paras. 163.172). Nicaragua, in fact, discusses

in ils Memorial only Articlc XIX, paragraph (1) of which provides: "Between
the territories of the two Parties, there shall be freedom of commerce and
navigation." (Para. 165.) As is apparent from reading Article XIX in ifs en-
tirety, paragraph 1 merely serves to introduce and summarize the more specific
provisions contained in the remaining paragrdphs of the Article. Essentially,
these orovisions annlv to the t~ ~ ~ent ~f ~essels of one oartv within the
territorial waters of the other party. They provide specilically that. :vessels under

the flar of the other Party shall be deemed to be vessels of that party (para. 2);
national and most-favoured-nation treatment shall be accorded e-ach party's
vessels within the other party's ports and waters, particularly with respect to
customs duties (paras. 3 and 4); and assistance will be provided to vessels in
case of distress (para. 5). Paragraph 6 provides definitions for the preceding
provisions. The obligations therehy credted for the Unitcd States pertain to
treatment of Nicaraguan vessels in United States waters. These commercial

navigation provisions have nothing IO do with Nicaragua's claims that the United
States is unlawfully using force against Nicaragua1.

'Walkerwasspeakingof 16FCN treatiesconcludedby the UnitcdStatesaflcr World
War II,includingthat with Nicaragua. Thesecondaryliteraturc on FCNtreatiesendorses
Walker'svicwthat such trcaticsarc "not political"but are fundamentally"cconomic and
legal". Sec,e.g., Wilson,US. Commerciulïieuries andInrernarionalLaw,,pusim (1960).
See also, Commirree on Foreign Relafi~,rrs, epl Ab. 9, Comm~rciulTrcaries wilh Iran,
Nicnrogua ond The Nerberlondr,U.S. Srnatc, 84 Cong., 2d Sess.. July9, 1956. p. 1.The
Report ir appended as Ann. 41.
The purposc,histoiy,and intent of the provisions of ArticleXIX and likeprovisions
of orher UniicdStates FCN treatiesarc exhaustivelycxaminedin D. Piper, "Navigation
Provisionsin United States Commercial Treaties", 1I AmericonJournnlofComporolire
Law, p. 184(1962). Pipcrnawhcresuggeststhat ÿnyonehas evcr considcredthcsccom-
mercial navigationprovisionsto cncompasspoliticaldaims. such as thase made by Ni-
caragua here, relatingto an allcgedunlawfuluse of armed iorcc. The dccisionin Oscor
Chinn,Judgment.1934, PCLJ. SeriesA/B, No.63, p.65,al p. 84,reliedupon by Nica-
ragua(Memorial,para. 168)is no1to the contrary.The"trade" underconriderationtherc
involvedthc transport or goods within a single,dchncdgeographicalarea in Africa,the
Congo Basin. Each of the European Statcs party ta that tccaty agrccd ta commercial
eqiialiiyand rreedom of tradc withrespectto the nationals althe other States wirhinrhe
CongoBuin (ihid., p.79). 178. Nicaragua purports to reserve the right to explain later the relevance of
the other provisions of the FCN Treaty that it cites in passing, namely Articles

1,XIV (Z), XVll (3), and XX (Mernorial, para. 173). On the face of the Articles
themselves, however, their irrelevance Io Nicaragua's claimsis manifest. All, like
Article XIX (l), relate to the treatment of the nationals of one party, or goods
or property belonging to those nationals, in the territory of the other party.
Thus, Articles XIV and XV also address the treatment of vessels of one party
within the territory of the other. Paragraph 3 of Article XVII provides that
neither vartv will.im~ose "anv measure of a discriminatom nature" to hinder
imporlc;s O; cxporte;s froni obtaining marine inwriinie ii produsis rrom the
other pdrty. And Article XX cstahli.;hes the right of naIlonal3 of ont part) IO
frec transit ihr~iughthe irrritorv of ihc oiher pari\. Article I ismerclv3 \tatement
of the general principle that eaih party will accord "equitahle treaiment" to the

interests of nationals and companies of the other party - a principle in the light
of which the following operative provisions are to be read.
179. Any possible doubts as to the applicability of the FCN Treaty to
Nicaragua's claimsis dispelled by Article XXI of the Treaty, paragraph (1) of
which provides :
"The present Treaty shall not preclude the application of measures: . . .

(d) necessary to fulfil the obligations of a Party for the maintenance or
restoration of international peace and security, or necessary to protect its
essential security interests. . ."(Ann. 40, at p. 17.)
Article XXI (1) (c), moreover, excludes from the FCN Treaty's coverage
measures regulating the traffic in arms or other materials carried on directly or

indirectly for the purpose of supplying a military establishment. Article XXI bas
been descrihed by the Senate Foreign Relations Committee as containing "the
usual exceptions relating . . .to trafic in arms, ammunition and implements of
war and to measures for collective or individual self-defense" (Sen. Exfcutive
Repr.No. 9, Ann. 41, at p. 4').

Section III. Xicaragua ,Maynot lnvoke the CompromissoryClauseof the FCN
'I'reatyBecauseIt Has Made no Effortto Resolveby Diplomacyany Disputes
underthe FCh'Treaty

180. Any claim based upon the FCN Treaty must, in any event, be dismissed

as inadmissible at this lime. Article XXlV of the Treaty provides:

"1. Each Party shall accord sympathetic consideration Io, and shall aRord
adequate opportunity for consultation regarding, such representations
as the oth&Party may make with respect to any matter-aRecting the
operation of the present Treaty.
2. Any disputeberiveenthe Purtie.s as Io the interpretation or application
of the present Treaty, nul suti~fucturilyudjusledhy diplomacy,shullbe
submirredIo rhe internationalCourt of Justice, unless the Parties agree
to settlement hy some other pacific means." (Italics added.)

An attempt to adjust a dispute "satisfactorily" bydiplomacy is thus a prerequisite
to submission of that dispute to the Court.
181. This Court has recognized that title to jurisdiction may specify prior

'ArticleXXI includesprovisionsstandard inal1FCN treatie(seePiper,op ci:.atp. 93).recourse to diplornatic negotiations as a precondition tu the institution of
proceedings. Indeed, when faced with treaties conferring jurisdiction in such
circurnstances, hoth the Permanent Court and this Court have ascertained
whether a reasonable prohahility exists that further negotiations would lead Io
a settlernent 1MavrummatisPulestineConcessions J.udumeritNo. 2. 1924.P.CI. J.

series A, NA.2, p. 13; South Wesr~fricu, ~relimiiar~ 0bjection.v.Judgment,
[CJ. Reports1962, p. 319, at pp. 327. 335, 344-346).
182. Nicaraeua does no1 allere that there have been ne~otiations tu resolve
any dispute under the FCN ~reat~, or that such negotia&ns have led to a
deadlock. Instead, Nicaragua baldly asserts that the alleged violations "quite
obviously have not been satisfactorily adjusted by diplomacy" (Mernorial,
para. 165). But Nicaragua has never even raised in negotiations with the United
States the application or interpretation of the FCN Treaty tu any of the factual
or legal allegations in its Application'.
183. In surn, Nicaragua has invoked the FCN Treaty in its Memorial as an

afterthought. The FCN Treaty has no relation to the jurisdictional or substantive
clairns in Nicaragua's Application. Nicaragua kas failed to satisfy the FCN
Treatv's own terms for invokinr the corn~romissow clause. The rules and orac-
tice if this Court do not an applkant to change the entire basis fUr ils
Application in the middle of the proceedings. Nicaragua's FCN Treaty claims
should, accordingly, he harred in limine,

--

\i.it:iand NI;AT.I~L>dur.\liinranill~Meif..,. ha\ec~ilcniifiedoa<l.lrc~~riin)Crlirpui:
~ctderrhc ICN 'l'rrai~ ln *nii\r.ntihc,: Ji.:u>u,,nj:uo,iiiLtan un-minenroceirihai
can hardly becharacierized& deadiockcd See discussioninPart II,supra.- PART II.STATEMENTOFFACTS RELEVANT TO

JURISDICTIONAND ADMlSSlBlLITY

184. Parts II1 and IV of this Counter-Memorial set forth additional argu-
ments with respectto jurisdiction and admissibility. In thisPart, the United States
provides that information essential to an understanding of certain of the argu-
ments in Parts III and IV.
185. The United States will describe in Chapter 1 Nicaragua's aggression
against its neighbors - aggression including both conventional attacks by
regular military forces and the direct support of armed opposition groups within
those neighboring States directed toward the violent overthrow of their
Governments. The United States will describe the rcsponse of the neighbouring
States to this aggression and the support that the United States has provided at
their request.
186. The United States will describe in Chapter II the interrelated social,
economic, political and security issuesthat underlie the region-wide problems of
Central America. The United States will then explain how those problems have
led to generalizedconflictboth among the States of Central America and hetween
the Governments and armed groups within several of those States.
187. Thc United States will discuss in Chapter III the origins of armed op-
position within Nicaragua itself. The United States will review the promises of

democratic reform, in the name of which the new Government of Nicaragua
took power in 1979 and on the basis of which it received wide international
support.The United States willdiscuss the subsequent violationof these promises
by the Sandinista Government, and the interna1 opposition to which those
violations have given rise. This discussion will demonstrate that Nicaragua has
fundamentally mischaracterized the origins and nature of the interna1 conflict
now taking place in that country.
188. The origins and interrelationship of the various aspects of the conflict in
Central America have induced the States of the region to choose multilateral
rather than bilateral negotiations to seek a peaceful settlement of the dispute.
The United States will reviewin Chapter IV the status of the Contadora dispute
settlement process to which Nicaragua and the other Central American States
have agreed. The United States will describe how the nature and causes of the
dispute have been defined in that process, and will discuss the issues which
the States of the region have agreed must be addressed to achieve a durable
settlement. The ancillary bilateral negotiations in which the United States and
Nicaragua are now engaged in support of the Contadora process will be noted.
Chapter IV will further demonstrate how Nicaragua's unilateral effortsto obtain
adjudication by this Court of selective aspects of the region-wide dispute now
being addressed within the Contadora framework would adversely affectthe
prospects of that process. CI-IAPTER 1

NICARAGUA IlAS ENGAGED IN ARMED ATTACKS ON ITS
NEIGHBORS

Section 1. Skaraguî Hnu Promotrd and Supportcd Gurrrilla Violencein
Xcighhorine <:ounrrics

189. Nicaragua solemnly denies that it is engaged in armed attacks on its
neighbors (Nicaraguan Memorial, para. 194). The current Nicaraguan Govern-
ment, however, has for years provided guerrillas in neighboring countries, -
particularly in El Salvador - with arms, munitions, finance, logistics, training,
safe havens, planning and command and control support.
190. Thus, in a May 1983 report, the Permanent Select Committee on In!el-
ligence of the United States House of Representatives - a source in which
Nicaragua places confidence in its arguments before this Court1 - observed:

"[Tlhe Committee believes thet the intelligence available to it continues
to support the following judgments with certainty :
A maior ~ortion of the arms and other material sent by Cubd and
ntlicr iummuniSt countricr trithe S;ili,üdoriininstirgcnts tr.insiis Nicdraguli
uiih the pcriitissi<in:iiiüjjiit'incc sin theSinJiniitds.

The ~alvadoran insurgents rely on the use of sites in Nicaragua, some
of which are located in Managua itself, for communications, command-
and-control, and for the logistics to conduct their financial, material and
propaganda activities.
The Sandinista Ieadershio sanctions and direcilv facilitates al1 of the
above functions.
Nicaragua provides a range of other support activities, including secure
transit of insurgents to and from Cuba, and assistance to the insurgents
in planning their activities inEl Salvador.
In addition, Nicaragua and Cuba have provided - and appear to
continue providing - training to the Salvadoran insurgents.

Ccb:<n anJ SanJinist.i p\,littcalsupport Carthc Sa\i:«lorsn inxurgcnt, h.is
bccn uncquii~<h;ihlr Isirll'or )cars. The Co~niiiittcc.oncluilci lhit ~intilarl~
strong miiitary support has becn the hidden complement of overt support."
(Application, Exhibit V. Tab 10, p. 6.)
This opinion is shared by the authorities in the United States who have had
access to intelligence information rclating to Nicaragua's regional activities,
regardless of their attitudesconcerning United Statcs policy in the region'.

' 1, pp. 51-52,53-54;Application,Ann. A ("ChronologicalAccount of U.S. 'Covert
Aclivitin'in and againstNicaragua")(hcreaftcr"ChronologicalAccount"!;
Shulu affidavit,Ann. 1,para. 3.Thescconclusionsare rciicciedaswellinsec. 109fo)
of Pub. Law98-215, 97 Stat. 1475,YDec. 1983,whlchcontains a formalCongressional
6ndingthai :
"(2) [the Nicariiguangovcrnmciithüs ~rovided]militdrysupport (includingarms,
training,and logistical,command and control, and cornmunicarionsfacilitics) to
groups seeking 10 overthrow theGovcrnment of El Salvador and other Central
Arncncangovernmcnis ..."(Ann. 42.)58 MILITARY ANDPARAMILITAR AYCTlVlTlES

191. Working closely with Cuba, the Sandinistas began their support for
guerrillas in other countries soon after their assumption of power in mid-1979'.

By mid-1980, they were exporting large volumes of arms and other military
material to the guerrillas in El Salvador, an activity that has continued to the
r.---... .....-.
192. Publiclv available evidence shows a lonn-standing vattern of Nicararuan
participation in, and tolerance of, arms trafficEing, proiision of command'and

control facilities and logistics, training and other support dirccted at overthrowing
the Salvadoran Government2.
193. Former President of El Salvador Magana stated in late 1983:

"While Managua draws the world's attention by claiming for the past

two years that it is about to be invaded, they have not ceased for one
moment to invade Our country.
There is only one point of departure for the anned subversion:
Nicaragua3."

194. Similar views were expressed by President Duarte in his inaugural address
less than three months ago:

"With the aid of Marxist governments like Nicaragua, Cuba and the
Soviet Union, an anny has been trained and anned and has invaded Our
homeland. Its actions are directed from abroad. Armed with the most

sophisticated weapons, the Marxist forces harass our Anned Forces and
constantly carry out actions intended to destroy Our economy, with the loss
of countless human lives and the suffering of hundreds of thousands of
Salvadorans4.."

The Chaiman of the Senate SelectCommittee on Intelligencehas recently confimcd, on
the basis of intelligence availablc to his Committee, that this judgment remains valid.
(WashingtonPosi, 10Apr. 1984,p. A-20(Ann. 43).) nie Chaiman ofthe HousePcmanent
Select Committec on Intelligence has similarly acknowledgcd thc continuing validity of
these conclusions.(CongressionalRecord, 2 Aug. 1984, pp. H8268-H8269.Ann. 44. Sec
also theRepori of ihe Norional BiporrlsunCommission on Central America, 10Jan. 1984,
pp. 26-27,87, 91 and 93. Ann. 45.) EntirReportdeposited by the United States pursuant
to Article 50 (2) or the Rules of Court.
'The value of exlernal support and bascs was impresred on thc Sandinista National
Liberation Front (FSLN) during the rcvolution against Somoza. In 1978.1979, FSLN
guemllas, forming the larges1military clcment of the revolution, operated openly out
Costa Rica and receivcd major malerial, organizational and political suppon from
Cuba.
Ss, e.g., Wa~hin,qlonPost,19Junc 1983,p. A-1, Ann. 46; WashingtonPost, 21 Scp.
1983,p. A-29,Ann. 47; New YorkTimes, 28July 1983,p. A-IO,Ann. 48; New York Times,
11Apr. 1984,p. A-1,and 12July 1984,p. A-8,Ann. 49.A considerableamount ofevidcncc
has been oublishcd bv the United States Governmcnt. See.ex..United States Deoartmcnt
or State,'~ommuniri InrerJerence inEl Suli,udor,~peciai ~ëport Na. 80, 23 Fcb. 1981
(Ann. 50). Secalso supporting documents contained in United States Department of State,
Communor InrerJereneein El Solvodor. Dommentr Demonslrnring CommunisiSupport of
the Solr~doronInsurgenq, 23 Feb. 1981,deposited by the Unitcd Statcs pursuant to Art.
50 (2) of the Rulcs or Coun. See also United States Departments of State and Defenre,
BackgroundPope,: Nicnroguoi Military Build-upand SupportforCentral Americnn Sub-
version,18 July 1984(hereafter Background Paper), depasited by the United Statcs pur-
suant to Art. 50 (2) of the Rules of Court.
' Interview,ABC magazine (Madrid). 22 Dcc. 1983(Ann. 51).
Inaugural addrcss of Prcsident Jase Napoleon Duarte, San Salvador, 1 June 1984,as
transcribed in Unitcd Statcs Government. fioreign Broadcast Information ServiceBaily COUNTËR-MEMORIAL 59

195. The actions of the Nicaraguan-supported guerrillas have increasingly
been aimed al destroying the economy and infrastructure of El Salvador'. Roads
have been mined, bridges and power transmission facilities destroyed, and bombs
emplaced in buses and other forms of public transportation. Despite extensive
economic assistance from the United States and others designed to mitigate the

effect on the Salvadoran economy2, in the years since the outbreak of major
fighting gross domestic product hits dropped by 23 per cent in real ternis, and
by 30 per cent if considered on a per capiro basis. Unemployment bas climbed
to over 30 percent'. While specifjc attribution is impossible, it is unquestionable
that rnuch of this cos1 - and a large portion of the thousands of deaths which

have taken place in the pas1 four years - would not have been incurred but for
the substantial support provided by and through Nicaragua to the Salvadoran
guerrillas.
196. Although Nicaragua's greatest efforts have gone toward supporting
Salvadoran guerrillas, it kas also promoted violence in other Central American
countries'. An official 1982 Costa Rican report described actions of sabotage

and terrorism sponsored by Nicaragua in that countrys.
197. Nicaragua - working closely with Cuba - has also on at least one
occasion trained and inliltrated guerrillas in10 remote areas of Honduras in an
attempt to foment arrned guerrilla warfare in that country6. Honduran territory
bas long been used for the clandestine conveyance of supplies to Salvadoran

rebels7.

Repan, Latin Amenca(hereafler FBIS). 4 June 1984. p.P-5(Ann. 52). In a 27July 1984
pressconference,President Duane stated funher that:

"uc h;irrA proh.cmof :iggrc<rlob,v :XnationcsllritSic4raàu:ingtiinrtk.1S2h:idor
hl this\:r) ni n~tcilic.ireusing ri,liingbo~tsar aJirgutsr.nu arc iniroduiiiig
uc;ipi,nintu I:ISal\ad,,r In b,vdlrni nighi"
(Pressconîercnce,San Salvador,27 July 1984,as transcnbcd in FBIS, 30July 1984, p. P-2
(Ann. 53).)
' Radio Yenceremos(clandestine siation of the Farabundo Marti Liberalion Front
(FMLN)). 25 June 1984.24 July 1984.3 Aug. 1984.7 Aug. 1984,as lranscribedin FBIS.
26 June 1984,25July 1984,8 Aug. 1984.9 Aug.1984(Ann. 54).
Vhe greatbulk of UnitcdStatesassistanceta ElSalvadorsince 1979has beeneconomic
rather than military in nature. Total cconomic assistancesince 1979has been @ver$600
million: secuniy assistancerince chat limc totals samc $200 million. UnitedStates De-
partment of Stale, Congression0P 1re.renlolio, eorrityAssblonceProgroms, Fiscal Years
1981ihrough 1985,submisrionscancerningCosta Rica. ElSalvador, Honduras(Ann. 55).
Developmcnt Assistance, PL-480 (food aid) and ESF (Econornic Support Funds) arc
generally considered cconomicassistiincc; MAP (Miliiary Assistance Program), IZMS
(Foreign MilitarySales),and [MET (lntcrnational Military Education and Training) are
considercdmilitaryand secunty assistance,
' United States Department of Stiite. U Solvodor; Revohtlion or Rejorm?, Currcnt
PolicyNo. 546,Feb. 1984.p. 3 (Ann. 56).
Examplcsof ifs actions are described in Anns. 46 through 50. Scc also Background
P,p,r.
Cosfa Rican Ministry of Foreign Relationsand Warship, Lus Relucir~neesntre Coslo
Ricoy Nicaragua(RelorionrberweenC,ura RicaandNicuroguo), 28July 1982(attachments
nat providcd) (English translation providcd)(Ann. 57).
WmhingronPOSI, 22 NOV.1983,p. A-l (Ann. 58).
' Sec Ann. 49. See also Address by Honduran Ambassador to the Pemiancnt Council
of the Organizationof AmcricanStates (OAS), 14July 1983,as transcribed in FBIS. 20
July 1983.p. A-6(Ann. 59). Seealso flockgroundPuper. pp. 18-20.60 MILITARYAND PARAMILITA R ITlVlllES

Section II. Nicaragua Has Openly Conducted Cross-Border Military Attacks on
Its Neighbon

198. In addition to its eiTorts to destahilize its neighhors, Nicaragua has
engaged in direct military attacks on hoth Honduras and Costa Rica. As des-
cribed in Section II of Chanter 111.the militaw forces of Nicaraeua have achieved
regionally intimidating dimensions.
199. The size and threat posed hy the Sandinista rnilitary forces, and the
Sandinista Government's manifest willineness to use them aaai-st neiehh-rine -
States, have forced Nicaragua's neighhors to divert to defense scarce resources
hetter devoted to addressing social and economic problems. As the Honduran
Permanent Rcprcsentative to the United Nations stated hefore the Security Coun-
cil on 4 April of this year:

"Mv countrv is the obiect of aeer--sion made manifest throueh a nu--
ber of incidents hy Nicaragua against our territorial integrity and civilian
population. Those elernents, which have obliged [Honduras] to strengthen
~tsdefenses, are mainly the disproportionate amount of arms in Nicaragua,
the constant harassment alon- our borders. the ~romotion of euernl-a
groJps rihich seck IO undcrniine our denioirdtii institiiticinr. ;ind the uar-
mongcring atiiiude 01'the Ssndinirt ii>mmsndersl "

200. Nicaraguan armed incursions across its horder with Honduras hegan
soon after the Sandinistas look power. These incursions have taken place with
Irequency, and have included both direct entry of Nicaraguan military personnel
into Honduras and mining of the Honduran road which runs along the
border2.
201. Nicaraguan armed forces have crossed into, fired upon or hombed the
territory of Costa Rica - which possesses no army and whose security forces
are armed only with light weapons - on several occasions since 1981'. resulting
this spring in the institution of a horder commission hy the four Contadora
mediator countries at Costa Rica's request4.

Section III. Nicaragua's Neighbors Have Requested Assistancefrom the United
States in their Self-Defense

202. El Salvador. Honduras and Costa Rica have each soueht out-ide assist-
ance. principally rroni the Unitcd States, in thcir self-deiense ;ig:itnst Nicaragu;i'r
aggrerrton. Pursurnt to ihr inherent right <>ftndi\idual and ~.olleiti\c sclf-ùcfcn~c,

'S/PV.2529,4Apr. 1984,pp. 37-38(Ann. 60).
Honduranhas orotcstcdsuchintrusions on numerousoccasions.See.e.c..diolomatic
noie. fromt1ondu;an Xlintrir) or toretgn i\lF..ii~Is NlcJrnguan \liniri;) ol'l.orcign
AiTairj.5 Jul)1983. IIJuly 19x3.20 July 1984 (An". 61 Secalrd Ilundur;inlinistry df
I:orzlgnAflair, "Rcrunic 01 'i3nilln15~ ggri\~ii,n> iIlanduran Tcrrii<>rin IYX?" 21
&ntrv natianals.includinrUnitedSlatcsCiGzensh~ ~ .aGebccnkilledin the courseof such<i-
directattacks.
'Cmsta Rica,tao, has protestedsuchincursions.Sec,cg., diplomaticnotes fromCosta
RicanMinistry or ForeignAKairsIo Nicaraguan Ministryof ForeignAKain,30Sep.1983,
29 Feb. 1984, 24 Apr. 1984 (Ann. 63).
Diplornaticnote[romCostaRicanI:orcignMinistry10ForeignMinistersofColombia,
Mcxico,Panama andVcnczuela, 2 May 1984(Ann. 64). and in accordance with the lems of the Inter-American Treaty of Reciprocal
Assistance. the United States has resnonded to these reauests'. At the same tirne.
the cornmon threat has resulted in çxpanded defense co:operation within central

Amcrica, particularly between Honduras and El Salvador.

'Shultz affidavit,Ann. 1,para. 7. In addition to the assistanccta El Salvador dcscribd
in footnote 2 to para. 195,the United States has betwren 1979and 1983pravided Ilunduras
wilh some $84 million in securily assistance (rising from $2.250 million in 19to$37.3
million in 1983as the Nicaragua" threat incrcased) and approrimately $290 million in
econamic assistance. Over the same period, thc United States provided Costa Rica with
less than S5 million in swurity assistance (rising over the same period from $0 ro $2.6
million)and $230 million ineconomic assistance (Ann. 55). CHAPTER II

THE USI>I.:RI.YIS(; I'HOHI.I.:>lSOFCEXTRAI. A3IERICA ARE RF<;IOS

\\'[DI.:,\SI> AKISI.:I'RISCII',\l.I.\' FRO\I ISl'F.RREI.A'l'F.I> SOCI,\l..
ECONOMIC, POLITICAL AND SECURlTY FACTORS

203. It has been widely recognized, including by the parties to the Contadora
process, that the current security problems of Central America cannot be resolved
in isolation from their social, economic and political catalysts. The interrelation-
ship of these problems was emphasized in the 10 January 1984 Report of rhe
NarionalBiparrisanCommission on CentralAmerica, which noted that :

"the tortured historv of Central America is such that neither the militarv
nor the political no;the economic nor the social aspects of the crisis can bé
considered independently of the others. Unlessrapidprogresscan be made
on rhepolirical,economicand socialfronis,peaceon rhemiliiaryfiont will he
elusiveand wouldhefragile. But unless the externally-supported insurgencies

are checked and the violence curbed, progress on these other fronts will be
elusive and would be fragile." (Ann. 45, p. 4 (italics added).)
204. The problems of Central America are long standing, complex and region
wide. They include a legacy of poverty, economic underdevelopment and instabi-

lity, social inequity, disrespect for human rights, weak and unresponsive political
and judicial systems and - largely as a result of the foregoing factors -
endemic cyclic violence, bath criminal and politically inspired. Particularly in
Nicaragua, El Salvador and Guatemala, the dominance of a wealthy land-
holding class allied with authoritarian elements of the military forces has until
recently impeded economic, agrarian and political reforms.
205. In addition, every country of the region kas sulïered from a series of
major economic shocks: sharp increases in ail prices in the 1970s a prolonged
decline in the pnces paid for the commodities upon which the economies of the

region are al1dependent, and high interest rates on their foreign deht. At the
same time, the elïectiveness of regional trade and financial institutions has
declined.
206. These hurdens have led to pressure for reform throughout the region. In
El Salvador and Nicaragua, this pressure manifested itself in violent resistance
ta the traditional power structures of those countries and the coming to power
of new governments pledged to programs of political, economic and social
reform. The results of these pledges in Nicaragua are discussed in Chapter III.
207. ElSalvador has made suhstantial progress in implementing this program'.

Since 1979,El Salvador has implemented far-reaching land and hanking refonn,
begun profound institutional changes in the security forces, undertaken a refonn
of the judiciary and other legal institutions, and elected a constituent assembly
which prepared and enacted a new constitution. This process kas culminated in

'See, cg., Chrbrbn ScienceMonilor, 10Aug. 1984,p. 1(Ann. 65); New, York Times,
2 Aua. 1984,P. A-22 (Ann. 66).The Dcpanmentof Staiehas periodicallyissuedreports
to Congrcrs on dcielnpmcnt< in 17S~1v~dor Sm. rg .UnlicJ Sldlc~I>~.parlmint<>l'Sid~..
Rrp<.rl i.rhr Siii<<ilir.ntl .Sul~r>l>I? Jul) 1084 I>rpo~ilrilh) the I:nliedSiair<
pur\u.inIO ,\ri511(2, orthc Rules olCodriihc rcceni ina~guratinii of 1'rr.iiJcniJO,; Sapolr.un Duartr. lolloaing his clc~tion
in Creeand open voting in which somr. 80 pcr cent oi the Siilvador~nclcctordte
participated.
208. Although Honduras has also sufered from many of the same problems

of poverty and weak government, ils social structure has never been as sharply
stratified, nor its political system historically as unresponsive, as those of Nica-
ragua and El Salvador. In recent yçars, Honduras has consolidated a more open
and democratic political system, thus strengthening the means for peaceful
expression of political diiîèrences.
209. Costa Rica bears many of the same economic burdens as the other
countries of Central America. Costa Rica, however, has long been a regional
model of democratic government.
210. Guatemala has a long hisiory of civil strife and a succession of military-
dominated eovernments. but it too has moved in the direction of nrovidine
peacefu~means of dissent as an ciement of national rcconciliation. A constituent
assembly to draft a new constitutii~nand to prepare for governmental elcctions
was democratically elected in July 1984 CHAPTER Il1

REVOLUTION IN NICARAGUA

Scetion 1. The 1979Rcvolution inNicaragua Promised Democratic Reforms and
Was widelySupportcd Internationally

211. The uprising against General Somoza that began in 1978was a response
to the oresence in Nicaraeua. often in extreme form. of al1of the social. economic

raguan people to the Somoza regime, and the sympathy of the-international
community for the goals of the revolution.

212. Upon thedeparture of Somoza, power was assumed by a broad coalition
of opposition forces', headed by the Junta of the Government of National
Reconstruction (JGRN). The coalition came to power on a platform of electoral
democracy, pluralism, respect for human rights, a mixed economy, a non-aligned
foreign policy, full observance of human rights in accordance with the United
Nations Universal Declaration on the Rights of Man and the American Con-
vention on Human Rights, and the holding of free municipal and national elec-
tions2.
213. The early policy statements and legislation issued by the new government
gave the Nicaraguan people, Nicaragua's neigbbors and the international com-
munity as a whole reason to hope that the patterns of the past had bcen
broken3.
214. In anticipation that, given adequate resources, the new regime would
attempt to implement fully its program of reform, the JGRN enjoyed immediate

- thoughi,pconscienceand worship;rightsincludingfrccdom of the pressand of
- the unrestrictedlunctioningofpoliticalpartiesrcgardlcssof idcolog;
- an independent and non-aligncdforcignpolicy;
- a mixedeconamyand supportfor CcntralAmencaninlegration;
- establishment of unionriehtsand Euarantcc of the r.eht to strike: and
- a "minimum"pemancn<miliiary;stablishmeni. and generous material support from the international community. The United
States was the larges1 single donor, providing some $1 18 million in assistance in

the first 18 months of the new Government's existence'.

Section II. The Sandinista Régime Ha. Violated Its Domestic and International

Promises

215. The Sandinista régime did inove to implement certain of its promises -
.most notably in the fields of agrarian reform, health care and literacy. In other

spheres, however, the new Governinent almost immediately began to ignore the
platform on which it came to power. The FSLN has focused from an early date
on the consolidation of its interna1 political control over the Nicaraguan State
and society, progressively reducing the role of individuals, parties and groups

no1 allied with the 17SLN and incr-easing that of their own sympathizersz. The
promised constitution has not yet been promulgated to replace that abrogated

Thcsc undertakings, and otherr, are io be found in the 9 July "Pragram of the Junta aî
the Covernmcnt oî National Reconciliation" (Ann. 67): the 20 Julv 1979 "Estatuto
I:unJameni.i" ( FunJamcntaI St~iuir'~. lu (;ui.<.tu.22 ,\ug 1979 (l?ngli,h iran4aiiao
proriilr.1) (,\no 6x1, nJ thr 21 AL& 197')'T\iaiuio Sohrc Dcriuhu, y Ciarlinius dc. los
Nic.ir.,eleniei" I'I..iu $1"Kirhi, anJC,uarinitc\ iilSiwrÿcu~n>"l. 1.~<;u:eni. 17 S:0

(her&fte;"CPDH"), Decrees and Provi.vionsof the Prereni Nicuruguun Legislalion $zut
Tlire~len Hwnons [sic] Rights, Managua, 1983,pp. 3244) (Ann. 69). Noteworthy as wcll
i~ ~c~ ~ ~ ~ ~ 174 which cave the Amcrican Convention on Human Riehis the rorccof
intcrnal law in ~icara&ar"ie~ que ~iieba y ~atifica ~aConvenci&Ameri&ti sobre
Dcrcchas Humanas Celcbrada en San José, Costa Rica, 1969" ("Law Approving and
Ratiîying the American Convention oiiHuman Rights, signed al San Jose,Costa~Rica,

1969"). Lo GoceIo, 26 Nov. 1979 (Iznglish translation in IACHR Report on Nicarquu,
'.10) (An". 10).
' ~lihoueh kat assistance was terminated in lipht of Nicaragua's assistance 10 the
Sal\adurangu:rrillÿr in their Jlnuary 1931 "1in:il 6lTeniivc". uniil thdl timc ihr United
Siairi Giivtrnmcni hlidaniicip~tid prciiidlng funhcr subsiaiii,:il:iiiin subsequeni yidrr
iCnlicJ Srair., ,\rrnii T<,rIntirn~1ion:il Dc>cl~iornrni rhrreaftsr "rlli>"i.Anni«il hi id^<-t
~;hmiss;on. FY~? (~;cori?&~), Vol. (>une 198iI pp. 1:9(&m. 71). AID "United ~tiicr
Ass,.tance to Nicaragua", 13July 1979-31May 1981,Ann. 72.)
- 1ho orlglndi rion-S~n.lini>i*nicmhcr,<if thr.J~ii. 4lI~i1,o Kobelo .xnil Vio1ei.i
H~rrior Je Ch~morio. hroki ulih the PSI.\ in ,\prll I98Urulloutng thr J-ciri~n nî ihe
1'SI.Nl>irwiorate iomoJii, thi iomno.iiion oi ihïCduniil u(Siai<:ro 4%tu ;,>sureISI.?!
control of that body (IACHR Reporl unNieoroguo, pp. 127-131).From this date the FSLN
and the Governmcni of Nicaragua mus1 be considercd as essentially idcntical. and are so
trcatcd in this Countcr-Memorial.
The targets of FSLN rcpression have not been limitcd to parties and political opponents.
The régime'ssystcmatic oppression of thu Miskito lndian rninority in thc Atlantic region,
leading to the large-scale flight of Miskitos fram Nicaragua, is well-documcnted (IACIIR,
R<,porÏ #,P!lie SiÏuurioribjilum<in K,~hir i.1u .Si~qniivr01 I~P .\'r,uropizunI%pulolii>nil/
IIrrkr~n Oririn. 0.4sdviuiniiit 0I'A.Si.r 1, V,II 62.dnr 10.rcv 3. ?Y Nov 1983 Deposiicd

-.
(CPDH, Report 1983(ànnual rcpart), !>p.17-21(Ann. 73)).
Recently, following the Nicaragua" bishops' call, in an Easter "Pastoral Letter"
(Ann. 74). for a dialogue with the amed opposition. JGRN Co-ordinalor Daniel Ortega
described the letter as oart of an "irilîmal destnbiliwtion dan" (Mananua Domestic
Service, 25 Apr. 1984, a; tranrcribed in FBIS, 26 Apr. 1984, P-14 (~nn. 75)).66 MILITARYAND PARAMILITARYACTIVITIES

in July 1979; since il assumed power the Junta has governed on the basis of
decree'. In September 1981, the Junta suspended important parts of the "Fun-
damental Statute" and "Law of Rights and Guarantees", and declared a one-
year "State of Economic and Social Emergency2". This declaration substantially
restricted the civil and political rights of Nicaraguans by making it a crime to
spread "false" economic news; strikes and work stoppages were made illegal.
216. Those rights were further limited in 1982hy the imposition of a "State
of National Emergency'". The State of Emergency, inter alia,expanded the
restrictions on freedom of assembly, of speech and of travel within the country.
It extended the ore-nuhlication censorshio "reeardine matters that relate to the .
country's domesÎic iecurity" first institutid in ï9804.-
217. The censorship has been complemented by direct or indirect FSLN
control of al1 electronic media. The one maior newsoaoer remainine outside
FSLN control, Lu Prensa- which was also ihe principal organ for Gpression
of dissent against the Somoza régime - has frequently heen unable to print due
to extensive cens or of ti^news material'
218. The ~andinista régimehas also engaged in a massive military huild up.
Far from the minimal force envisioned in its 1979 pronouncements, since the
earliest days of the régimethere has ken an unprecedented expansion of military
forces. The military establishment of the Somoza régime peaked at roughly
14,000 during the 1978-1979 revolution6. Already by 1980 - a year before the

first of thealleged incidents upon which Nicaragua hases its Application to this
Court - Nicaraeua's armed forces were rouehlv twice as lare- as thev had been
under Siimi,~~' hy 1982. thcy had doubled agibnh
219 As of mid-1984. the military and security forcer of Nicaragua <inaiiive
Jutv numbered some 57.000with 45.000 well-iraincd rcscrvei and militia ai,ailable
forhohilization on short notice - some ei5ht times the size of Somoza's forces
at their peak during the 1978-1979 fighting .The proportion of the population
in arms has more than quintupled since 1977". Moreover, the equipment at the
disposal of these forces is vastly heyond that required for self-defence or interna1
security purposes. It includes in excess of 100 medium tanks - although no
other country of the region possesses even one - as well as over 100 other
armored vehicles. These land forces are far larger and hetter equipped than those

'While in theory sharing this power with thc Councilof Statc. that body was Ars1
convcncdonlyin May 1980and iscontrollcdbythe FSLN(IACHRReport onNicoroguo,
PP; 2?-27).
Lcyde Estado de EmergenciaEconomicay Social" ("Lawof Ecanomicand Social
Em'r"Ley de emergcnciaNacional"("Law of NationalEmergency"),d)(LonGoceto,20 Mar.
1982(English translation provided)Ann. 77). See also IACHR Report on Niroroguo,
pp.60-62.
IACIlR Report on Nicaragua,pp. 115-118The censorshiphas rangedso braadly as
to include denial ofpermission to publish storicson the sharp rise in the pricc of
children'stoys.
Internationallnstitule for StrategicSiudiThe,MilirnryBolonce1977-78,London,
1978(cxcerpts),p74 (Ann. 79).
' Bascd on figures compiled from unclassified sourccs by the Unitcd Siaics
Govemment(Ann. 80).
Based an figures compiled from unclassified sources by the United States
Govcmment(Ann. 81 ).
Govcrnment(Ann. 82). compiled from unclassified sources by thc Uniied Siatcs
'OAnn. 56,p. 7. COUNTER-MBMORIAL 67

of any other country in the region'. The threat posed hy the size and offensive
capahilities ofthese forces has greatly increosed the level of military tension in
the region.

Section III. The Sandiniita Rfgime's Policies Have Cenerated an Armed lnternal
Opposition

220. The policies of the Nicdrdguan Government and their enéctshave given
rise to increasing opposition among the Nicaraguan population. This opposition
derives essentially from the fact that the FSLN has effectively reinstated and
expanded upon many of the restrictions which had led to armed opposition to
the Somoza régime. Nol surprisingly, the interna1 opposition to FSLN policies

has been led by many of the same groups and individuals who led the fight
against Somoza.
221. The earliest opposition to FSLN policies look place within the Gov-
ernment. These efforts to modify the FSLN divergence from the original pro-
gram of the revolutionary Governinent met with failure, and many important
early supporters of the revolution and of the FSLN soon left the Government'.
222. Opponents of FSLN policy also attempted to express their opposition
through the media and in other peaceful ways, but the FSLN progressively
closed off the opportunities for such non-violent expression of opinion3. By 1981
it had hecome clear that the régimewas unprepared to respond to or permit
continued serious criticism of its policies. Since that time, many groups in
opposition to FSLN policies have begun to turn to violent resistance. Large-

scale armed resistance to the Government did not begin until early 1982 -
significantly post-dating the commericement of the currentGovernment's mililary
build-uo. exoort of subversion and re~ressive interna] oolicies herein described.
223. '~hegoals of the opposition, &d hy contrast t6e intentions of the FSLN
régime,have been crystallized in divergent policies toward participation in the

' International lnstitute CorStralegicSrudicThe Milirnry Balonce,1983-84,pp. 110
(El Salvador),11I(Honduras), Il2 (Nicaragua),116(Costa Rica)(Ann.83). Themililary
build up has been greatly assistcdby the prcscnceof a large number of military and
securityadviscrsfrom Cuba and cxtra-hemisphericcountries. and by the provisionto
Nicaraguaof large amounts of wcapans and munitions by those countries (see Anns.
46;50,Background Pnper).
OriginalJunta membenViolctaBarriosde Chamorro andAlfonsoRobeloarguedfor
adherenceto the announced programmeof the rcvolution.This viewwas supported by
such individualsas Vice-Ministcrof Defensc(and principal FSLN military commander
thc Central Rank,memberof the JuntaaiandalaterAmbassadorIo the UnitedStatesunderof
the new government(sec Arturo Cruz,"Sandinista Dcmocracy?Unlikcly", Nrw York
Times, 27Jan. 1984(Ann. 84)). Robcloand de Chamorroleftthe Govcrnment in protest
in April 1980Edén Pastara Icfilaterthat ycar; CruzIcftin late 1981.
' The30 Junc 1981IACHR Repnrr on Niroroguu dcscribesindetailthe intemalsituation
al the iimc thai Nicaraguaarrcnsthe Unitcd States instigated amed anti-govemmeni
activi[y.Thalreponmakesabundantlyclearthereasonswhysignificantdomesticopposition
Io the FSLNhad arisen,and whyelements ofthat opposition had concluded thaw t accful
opposition*vasno longer a feasiblcpolicy.That conclusionwasbolstcrcdno1onlyby the
Government'sactions, but by statcmentssuch as that by Defensc MinisterHumbcrla
stated that ihcrcwouldbef-1980announcedposlponementofelcctionsuntil 1985,and

rlrvtiun, tu imprdlc thc pducr ul thi. wiolutiun. but nu;iram eu rrvwho h:is
pourr. hr~3~1cihcpcoplchaic p<>uctrhruughthcir \angu.irJ.thr SanrliniriaV:itionnl
Ithcration I:rontanditrN~tion&Il)ir~~ior~ii"IIACHK Repir~8,.YICLIIII~Up.135168 MlLll'ARYAND PARAMILITARY ACTIVLTIES

elections scheduled for Novemher. In addition to other continuing restrictions
under the State of Emergency, the electoral law adopted by the Nicaraguan
Government orovides fora weeklv total of onlv 30 minutes of television time.

and 45 minuics of radio tinic. in hc d~\,idcdcquïlly Iimong sci,cn pariics. <ilthough
thoc arc IO bc the lirst tlccilons following fi\,cye.irs of conilnuous and i,irtually
dh~~lutcITSL'*c Iontrtil <i\,crlhc mcdia and the Slatc Thc r>riniir>~clo~litiori of
non-FSLN oolitical oarties within Nicara-ua - the ~emicrati; Co-ordinatine
Group (the'so-callei "Coordinadora") made clear in December 1983 the con-
ditions it considered necessary for a free campaign'. Because the FSLN refused
even to discuss most of those-conditions, the coordinadora has determined that
it could not genuinely participate in the elections. In response, the FSLN accused
Arturo Cruz, candidate of the three opposition parties making up the Co-
ordinadora, of being a traitor'.
224. Similarly, the leaders of the armed opposition have indicated readiness

to lay down their arms and participate in elections if conditions for a free and
open çampaign are implemented? The Government refused to discuss this ofler;
rather, it extended the State of Emergency until three weeks hefore the election,
and announced that in absenlia criminal trials of the principal leaders of the
armed opposition would be held.
225. While, as requested hy the opposition almost eight months ago, the
Government has recently relaxed certain restrictions on civil rights "to further
perfect" the electoral process4, this action was taken one day ofter time had
expired for registration by the Democratic Co-ordinating Group to participate
in the elections. The régime has stated that as of midnight on that date
unregistered parties lost the right to engage in political activity5.

'Tcxt al nineconditions.La Prenso,26Dec. 1983,Managua,pp. 1, 10, asrcprintedin
FBIS, 5Jan. 1984,pp. P-20-23(Ann. 85).
Junta memberSergioRamirezMercado,on "Face the People",Managua Domestic
Scrvicc,28July 1984, astranscribedin FBIS, 31July 1984,p.P-8(Ann. 86).
' AlianzaRcvolucionariaDcmocrhtica(ARDE). For Peuce and Democrucy in Nieara-
guo, 20 Fcb. 1984(Ann. 87). Nicaragua" Dcmocratic Force (FDN), Beelomlion O/ rhe
iVicoroguun Demoeroiic Force qfFebruory21. 1984, 21 Fcb. 1984(Ann. 88). Press con-
ference,EdbnPastora, II June 1984,AFP repon, as rcprintedin FBIS, 13 June 1984,
p. P-26(Ann. 89).
"Lcy Complemcntariadcl Decreto 1477"("SupplementalLaw to Decree 1477").6
Aug. 1984 (unofficialtcxt) (Englishtranslationprovided(Ann. 90). Thc rightsrestored
only in cascsthcreafterarising-rithc law of "ampliro"of personallibcrtyand securily
(roughlyequivalentto hohens corpi~s). urther easingof restrictionshas bec" announced
subsequcntly.
'Theyare lhusprecludedfromthe nghts to moveïreely in the country,promatetheir
politicalpositionsor hold public meetings.Ia draconianimplementationof thispolicy,
everyarticle, photograph and commentary inla Prenso even rnarginallyrelated to the
DemocraticCo-ordinatingGroup or any personassociatedwith itwascensored,and the
newspaperrefusedto publishunderconditionsof suchcenrorshipthc morningfollowing
expirationof the registrationpcriod. CHAPTER IV

'îHE UNITED STATES, NICARAGUA ANDTHE OTHER STATES OF
CENTRAI, AMERlCA HAVEAGREED TO RESOLUTION OF THE
CONFLICT IN CENTRAL AMERlCA THROUGH THE CONTADORA
DISPUTE SCITLEMENT PROCESS

Seciion 1. The Central Amcrican I'artieçand the llnited St3tcs a5HCIIas the
Comptent Iniernational Political Organi tla,e ,\grrcd uponthe Sniure of the
I>i.oute.the Sceoe ofthe Ihsun 10HehddreïsedinsSettlement and a Swilic
~rkedure for the Peaceful Settlement of the 1)ispute

226. Rerional concerns over Central American violencehave resulted in efforts
by cc\~cr;il%t.ites.includine ihc UniicJ States- hoth hilaicrally and in wppiirt
of rr.gion:ilrlll>r-s liri.\t>l\c th', >crurit) sit~:iti<>iiin Ccntr,il Arncri~i pc.i:c-
IùIIt Sc\cr:il of thcje St~t:s, r>~rtiiularlvJuriiir: thc p;isi )car. h3\,c deJi<-teJ
co&iderable attention and resoirces ta faiilitatinga comprehensiveregionalagree-
ment for peace and CO-operatiori through the so-called "Contadora pro-
cess".
227. The fundamental thesis uoon which these efforts have been built is that
the violence in Central America ;n\,olves interrelated connicts among the States
of the region - the product of Nicaraguan aggression against its neighhors -
and. internallv. within several States, driven bv under. -.a ~roblems ofa social,
eco~omicand~olitical nature. Thesc eKorfsrefject theconclusion thaf the current
violence cannot be effectivelycurbed without at the same lime comprehensively
addressing its underlying social, political and economic roots.
228. This approach kas been accepted explicitly in the negotiations involving
the nine countries making up the Contadora Croup: Colomhia, Mexico, Panama,
Venezuela and the five Central American States, including Nicaragua. As the
four mediator States noted in their 17July 1983Cancun Declaration on Peace
in Central America :

"Peace in Central America can become a reality only in so far as respect
is shown for the basic principles of coexistence among nations: non-
intervention; self-determination; sovereign equality of States; CO-operation
for economic and social development; pcaceful setllement of disputes; and
frec and authentic expression of the popular will'."

229. This analysis has heen adopted as well hy the political organs of the
international system, which have uniformly endorsed and deierred to the Con-
tadora negotiating structure as the most appropriate and best-suiied forum
for addressing the comolex of oroblerns facina Central America. The Secretarv-
General of tG Unitcd Nation; set forth in hk October 198.7report on central
America to the Security Council his own view
"that any attempt at a solution should take into account the profound

' "Cancun Declaralion",Annex Io "Letter dated 19 July 1983from the Permanent
Reprcsentativesof Calombia, Mexico, Panamaand Venezuelato the United Nations
addressedto the Secretary-Gencral", 138/303;S/15877,19 July1983(Ann.91).vided the five Central American çountries with a draft "ilcru' on Peace and
Co-ooeration in Central America". Althouah not a final text, that document
-
reflect, the underiaking in ihc I>i>suincntoi~hjecti\c\ 10 arritc .IIIcg~llyhinding
commitmenis rclating IO devclopnient of open dcmocraiic politiwl sysrcms,
fosterine economic co-orxration and develo~Ïnent, reducina the size of military
cstah1ish~ ~ ~ ~ ~d haltihe sunoort for suhv~rsion'.
u ,.
234 I'hc Ai.!<,h~i n<>tihccn acccpieil in principlr hy al1li\c C;cntral ,\mcris.in
Statet'. I hc ninc inemhcrs ,Bith: t:i>nt;idora group arc io mcei agaiii <<>i~rt.i
determinethe besi way to proceed in ~ompletin~negotiation of the comprehensive
regional treaty. Development of the Aciu, it need hardly he stated, represents

"important progress" in the peace process'.

Section III. The United States and Nicaragua Are Engaged in Negotiations
Ancillary Io the Contadora Process

235. Nicaragua has suggested that the United States has no role in the
C-ntad~ ~~~~ ~rocess ~.emonal. vara. 230). To the contrarv. while no! a direct
par1i;ip;ini in ihe nicciings of the ninc Siales eiig~ged in ih.11proiess. co~isislclil

iviih ihcir oirn prefcrenie tu niaintain ;isuhrcpioiial dialrigur. ihr Ilnitcd States
initiated, with the support of the Contadora and i<currently conducting,
bilateral discussions with Nicaragua in direct support of the Contadora nego-
tiationss.

236. These discussions were initiated by Secretary of State Shultz on his I June
1984 visit to Managua. Since that time, the Special Envoy of the President of the
United States, Amhassador Hany W. Shlaudeman, and Vice-Minister of Foreign
Aîiairs of Nicaragua, Victor Hugo Tinoco, have met on a number of subsequent

occasions. While the Iwo Governments have ameed that the conlent of those
discussions shall rcniain siricil! confidential, IIiGhc Uniied Siatcs btcrr,that ihe
oilcr the prùspc.ctoi'contributing grcdil) icithe >uiccrs oiihc C<int:idor.iiniii;iti\,c 2

Section IV. The United States Has Aeted to Help Preserve the Viability of the
Agreed Contadora Dispute Scttlement Mechanism

237. The negotiations now takiiig place among the Five Central Amencan

States under the aegis of the four Contadora mediators - as well as the

'La Nocion, San Jose, II July 1984, ]>p.16A-17Aand 12 July 1984,pp. 16A-17A
(English translation provided)(Ann. 96).
Radio Reloj, San Jost, 14 July 1984.as transcribed in FBIS, 16 July 1984,p. P-l
(Costa Rica); Radio Cadcna, San Salvador. 28 Junc 1984,as trinscribed in FBIS, 2 July
1984.p. P-3 (El Salvador); Ln EsIrelIode Ponnmri,27 Jnne1984,as reprintedin FBIS,
28 June 1984,p. P-6 (Honduras): ACAN. Panama, 4 July 1984,as iranscribed in FBIS,
5 July 1984,p. P-IO(Guatemala): Radio Sandino, Managua, 10July 1984,as transcribed
in FLIIS, II July 1984. p.P-8 (Nicaragua); Managua Domerlic Service,25 July 1984,as
iranrcribed in FBIS, 25 July 1984,p. P-7 (Nicaragua)(Ann. 97).

' FSLN National DirectordtememberHenry Ruiz, Barricada, Managua, 25 luly 1984,
p. 1(English translatioii provided) (Anii. 98).
"m. ~~,~-,..NOTIME~.~MexicoCitv. 28 J>.c 1984.as reorintcd in FBIS. 2 Julv 1984.
p. P-l (Ann. 99).
The United States has sevcraltimcs since 1981aitempted to initiale a constructive
bilatcral dialogue with Nicaragua (US Efforts IO Achieve Peuce in Cenlrol Amcrica.
(Ann. 95)).
Nicaragua,100,appears to considerthesctalksconstructive. WarhingtonPosl, 12Aug.
1984,p. A-I (Ann. 100).72 MII.rrARYAND PARAMILITARYACTIVITIES

complementary bilateral negotiations hetween the United States and Nicaragua
- are explicitly founded on the conclusion that it is impossible eifectively tu
resolve the inter-State anned conflicts in Central America without addressing the
social, economic and political factors that give rise tu interna1 violence. This
thesis is also reflected in the negotiating tex1 recently put forward by the

mediators.
238. The United Nations Security Council', the United Nations General
Assembly', and the General Assembly of the Organization of American States',
have al1recognized that the Contadora process oifers the prospect of achieving
a cessation of hostilities and a durable peace in the region. 11is the first such
prospect since the inception of the conflict in Central America.
239. The achievements of the Contadora process tu date do not, however,
ensure ultimate success. As with any international agreement, the definition of
the dispute, identification of the issues tu be addressed, and agreement on the
mechanism tu be utilized reflect a carefully negotiated compromise among the
various parties.
240. During the proceedings hefore this Court in April 1984,the United States
descrihed Nicaragua's efforts tu use fora other than the Contadora process
to characterize the dispute in ils own preferred manner and tu address ils
own priority concerns in isolation from those of the other parties4. These
efforts threatened tu unravel the carefully constructed achievements of the
Contadora mediators and were rebuifed by the various international political
organs.

241. When the United States learned that Nicaragua might seek tu utilize this
Court for similar purpuses, it sought tu ensure that Nicaragua could not
jeopardize the Contadora process in this manner. The United States was
concerned that, should Nicaragua succeed in the tactic of initiating, outside the
Contadora framework, protracted adjudication of selective issues, such adjudi-
cation - regardless of its ultimate outcome - could substantially delay, if not
prevent, a peaceful settlement of the Central American conflict.
242. At the time the United States became aware that Nicaragua might
attempt tu engage this Court, however, the United States could not foresee what
specificlegal bases would be availahle tu avoid these adverse consequences. For
example, the United States could not know whether Nicaragua would take the
steps necessary under Article 36 (2) and (4) of the Statute of the Court tu accede
tu its compulsoiy jurisdiction prior tu filing ils Application. The United States
also could not be aware of the fonn or scope of any Nicaraguan Application,
and hence could not assess with any precision the issues of jurisdiction and
admissibility tu which it would give rise.
243. Under these circumstances, the United States modified temporarily the
scope of its own acceptance of the compulsory jurisdiction of this Court in
advance of Nicaragua's filing an Application. The United States modification

temoorarilv susoended from the United States acceotance of comoulsorv iurisdic-
tion dispu;es $th Central American States or arising out of e;ents (necentral
America. The United States thus intended tu give the Contadora process time tu

'SUNGA.res.38/10,18M11 Nov. 1983(Ann.93).).
'GcneralAssemblyrcsolution of 18 Nov. 1983on Peace ERorts inCentralAmerica
(A"". 94).
A 1,pp.81-82,83,100-101,102.succeed. As their communications to the Court indicate', the other Central
American States concurred that the rnultilateral Contadora process, not hilateral
adjudication, is the most promising avenue for the achievement of a lasting peace
in Central America.

' Communication 10 the Rcgistrar of the Court from Costa Rica. 18 April 1984
(Ann. 102).Communication tothc Rcgistrarofthe Court from ElSalvador, 19April 1984
(Ann. 103).Note rrom Honduras la the Secretÿry-Generalofthe United Nations,18April
1984 (Ann. 104). Guatemalan Ministq of Forcign Affairs,Press Release, 16April 1984
(Ann. 105). PART III.NICARAGUA'SCLAIMSDONOT COME

WlTHlN THESCOPEOFTHE UNITEDSTATESCONSENT
TO THECOURT'SJURISDICTION

INTRODUCTION

244. Unlike Nicaracua. the United States has made a declaration (the "26
August 1946 declarati:n1;) accepting the Court's compulsory jurisdiction pursu-
ant to Article 36 (2) of the Statute of the Court. The contentious iurisdiction
of the Court reaukes the consent of the resoondent State as well as-that of the
dppliiani ~ic;ira~ua mtist. thcr:fore. show ihdt ils claims çonie tiithin the scopr
<il'the United St.iies 26 Augu\i 1936decl.~raiiiin as uell J, u,ithin the ri,~pr.of
an efiitive declaration b) Vicaragw ilself'. The Unitcd Statcs uill \hou, in
Pa11111 or thth Counter-\lemurial that, for cach of Iwo reÿsons, the clainis set
forth in Nicaragua's Application do not. in fait. corne within the scope 01'the
Cnited States consent IOthis Cuuri'sioniriulsurv iurisdiction. TheCourt ihrreforc
lacks iurisdiction over Nicaracuu's ~~6l..ati&. irrcsoective of the validitv of,
~icart~ua's 1929declaration.
245. First, Nicaragua's claims arise out of multilateral treaties, notably the
Charters of the United Nations and the Orcanization of American States. The
claims also invol\,e region-wiJr disputes. al1ol'the partirIO which are not heforc
ihi, Court. The Ilnitcd Siaie\ e~pre>\ly itateil in the 1946 Ikclar;ition that its
eonwnt tiithis Court'.: iur~rd~cttondicl not extend IO such niultir>~rt, dis~utes

based on multilateral tÏeaties unless al1 of the varties to those 'disoutes'were
before the Court. Nicaragua's claims do not, thirefore, come within the terms
of the 26 August 1946declaration.
246. Second. the United States modified the 1946 Declaration on 6 A~ril 1984
Io suspend from the Linited States conscrit to thc Cuurt's lurisdiiti;n. ior a
pcriod of ttrs)cdrs. sny claimr prcsenting a "di~pute with a Central Amcricin
Stat:" and an!, cl~tmsthat ".iri\r. uut oi". dr ;ire "rel;it10". "e\erits in C'eiitr,il
America". ~he claims in Nicaragua's Application come squarely within the terms
of the 6 April note in both respects. There can, accordingly, be no question that,
when Nicaragua's Application was filed on 9 April 1984, the United States did
norconsent to the Court's adiudication of the claims set forth therein.
247. The United States will examine in Part III of this Counter-Memorial
each of these fatal dcfects in Nicaragua's contention that this Court has juris-

' The United Statcs declarationwas signcdby PrenidentTmrnan on 14August 1946
and dcpositcdwith the Secretary-Generalon 26 August 1946 (I.C.J.Yeorhook 1982-1983,
pp.88-89).Since,in accordancewith the lems of Article 36 (4) of the Court'sStatutc.
thc dcclarationbecarneclleclivon thc dateofdeposit,the UnitcdStateswillrefcrto thc
declarationas the"26 August 1946declaration".
Court'sjurisdictionovcryils Applicatioonnthe 26August 1946declaration (Application,c
para. 13; Nicaraguan Memarial,paras. 2, 5).In ils Mernorial, Nicaraguaalso contends
for the firsttirnethat the UnitedStatcsconsentedto jurisdictionia bilateralTreaty oi
Fricndship,Cornrncrccand Navigation.That contentionisdiscussedin Part 1.Chapter II,
oi thisCounter-Mernorial.diction ove1 Nicardgua'sAppliration. Because the Parties'argumentsraise fun-
damentalquestions as to the natureof this Court'sjurisdiction,the United States

will first examine the consensual basis of that jurisdiction and its relevance to
the presentcase. CHAPTER 1

THE COURT HAS JURISDICI'ION OVER NICARAGUA'SCLAIMS ONLY
IF'I'llI.:IISI'I'EI)SI:\l I.:SHAI) I.:XI'RI.:SSI.\'CO\SES'I'EU 'I'O'I'tIA'l'
.ICRISI>ICI'lOS IS 'I'IIF.L'SI'I'EU Y1;i'I'ES I>I.:CI.ARA'I'IOSIS FORCI.:
OS 'l'III.:I)AI'E~I'HSI'SICAHAGI:,\ FII.I.:U Il's ~\t'I'I.ICA'I'IOS \Vl'I'H
THE COURT

248. The consensual basis of thisCourt's contentious jurisdiction is axiomatic.
In one of the first cases to come before the Permanent Court of International
Justice, that Court observed that it is:

"well established in international law that no State can. without its consent.
be r.,>mpr.llr.O uhmit itr diyutes with cither State, eithcr mcdistiiin or
tri2rbitr;ition. orIO ;iiiother kinil df pdcifir ~çttlr.mcni"IS1ur1i.r1/'1:~1~t<rt1
CUri,lrd.A</i'l.uir, p~~lioti1.923. P ('1 J St~rrt,B~,.\'<i5, at p. 27).

Similarly, the Permanent Court stated in the ChorzoivFaciory case that:

"the Court's jurisdiction is always a limited one existing only in so far as
States have accepted it . . The Court's aim is always to ascertain whether
an intention on the part of the parties exists to confer jurisdiction upon it."
(Fucroryut Chorxiw. Juris<licrionJ ,udgmeniNo. 8. 1927, P.C.I.J.. SeriesA,
No. 9, at p. 32.)

249. In the present Court's first judgment, Judges Basdevant, Alvarez, Wini-
arski, ZoriGiE,De Visscher, Badawi Pasha and Krylov aîlirmed that this funda-
mental jurisdictional principle applies to this Court's jurisdiction as well :

". . . Under the régimeof the Charter [of the United Nations], the rule
holds good that the jurisdiction of the International Court of Justice, as of
the Permanent Court of International Justice before it, depends on the
consent of the States parties to a dispute." (Corfit Channel, Preliminury
Objection,Judgmenf,1948, I.C.J. Reports1947-1948, p. 15,sep. op., p. 31.)

In the following year, the majority of the Court stated that a claim "cannot, in
the present state of the law as to international jurisdiction, be submitted to a
tribunal, except with the consent of the States concerner (RepuraiionfurInjuries
Sufferedin theServiceof the Uniied Nu1ion.s.AdvisoryOpiniun,IC J. Reports
1949, p. 174, at p. 178). And in 1950, the majority of the Court observed

that "[tlhe consent of States, parties to a dispute, is the basis of the Court's
jurisdiction in contentious cases" (Interpreruriono/Peace TreariesivirhBulguriu,
HungaryundRomaniu,First Phuse.AdvisoryOpinion,I.C.J. Reporrs1950, p. 65,
at p. 71).
250. Many similar statements by this Court and its predecessor could be
recited here. Suffice it to Say that in a judgment rendered earlier this year the
Court expressly reaffirmed "the basic principle that the jurisdiction of the Court
to deal with and judge a dispute depends on the consent of the parties thereto"
(ContinentalShelf (Tunisiu/Libyun Arab Jumahiriyu), Applicalion by 1luI.vfor
Permission to Inrervene,I.C.J. Reports1984, p. 3,at p. 22).

251. Jurisdictional determinations are made as of the time of seisin, that is, COUNTËR-MIIMORIAL 77

the date on which an application is filed with the Court (see discussion in
Chapter III of this Part, infia). As the United States will now show, Nicaragua's
clairns did not corne within thescope of the United States declaration in effect
on date of seisin, and the Court does not, therefore, have jurisdiction over
those clairns. CHAPTER II

THE MULTILATERAL I'REATYRESERVATION TO THE UNITED
S.I;VI.I.:SD~:CLARAI.IOS ESI~KFSSI.YÇ.XCI.L.I)~:SSICAK~(;U,\'S

CI.AI>IS FHO>l I HÇ: SCOI'E OF'I HE U\l'l'EI> S'l',VIES,\CCI:I"I;\SCE
OF'I'11ISCOIJHT'S CO\IPL'I.SORY JURISDIC'I'IOS Bk:CAIJSk:,\KY
DECISION THAT THE COURT COIJI.1) RENI>ERWOlJ1.n AFFECT

Section 1. Introduction

252. Proviso "c" of the United States declaration of 26 August 1946, the
"multilateral treaty reservation", provides that the United States acceptance of
the Court's compulsory jurisdiction shall not extend to -

"disputes arising under a multilateral treaty, unless (1) al1 parties to the
treaty aflèctedby the decision are also parties to the case hefore the Court,
or (2) the United States of America specially agrees to jurisdiction . . .".
The United States has not specially agreed to jurisdiction here. The Court may,
therefore, cxcrciscjurisdiction over Nicaragua's claims consistent with the mul-

tilateral treaty reservation only if al1 treaty parties aflected by a prospective
decision of the Court are also parties to the case. In this Chapter, the United
States will show that al1of the States likely to be aflected by adjudication of
Nicaragua's claims are not hefore the Court, and that, in accordance with the
multilateral treaty reservation, Nicaragua's claims therefore do not come within
the scope of the United States consent to the Court's compulsory jurisdiction.
253. The multilateral treaty reservation reflects three specific concerns: (1)
the United States does not wish to have ils legal rights and obligations under
multilateral treaties adiudicated with resDectto a multilateral disoute unless the
rights and ob~i~ationsof oll the treaty parties involved in that dispute will also
be adjudicated; (2) adjudication of bilateral aspects of a multilateral dispute is
potentially unjust in so far as absent States may have sole possession of facts
and documents directlv relevant to the nght..of the narties to the adiudication
;nr<.r.SP;and (3) adjudic3tion of biliiieral aspects of a multilatcr~l dispute tvill
incvitdbly :i~Tccithc Icg;ilrights and prdiriidl inicrests ,>ithe :ibscnt Stiites.
254. iiic~rdei~d'sclüimr Itr1.r undcr multilatcral trelitics and int~l3inultilü-
teral disputc. 6ther Central American States that are parties to hoth the trcaties
and the dispute on which the Application is hased are not before the Court

and cannot be compelled to enter this proceeding. Under these circumstances,
Nicaragua's Application cornesdirectly within the terms of the multilateral treaty
reservation and gives rise 10 al1 of the concerns that underlie that reservation.
Adjudication of Nicaragua's claims: (1) may prejudice the United States hy
binding the United States to a decision of the Court without similarly binding
the other treatv oarties involved in the region-wide disoute in Central America:
(2) may also Gejudice the United States b; determini& the ~Ated States &htS
and duties in the absence of directly relevant facts and documents that are in the
sole possession of absent States; and (3) may prejudice the rights of the other
Central American States by determining, in their absence, the lawfulness ofresponses to Nicaragua's armed attacks against them, including their inherent
rights to engage in self-defense and to request United States assistance in resisting
N~caragua'iattacks.

Section II. The lntent and Eiïecl of the Multilateral 'l'reatyReservation Are to
Preclude Jurisdiction whenTreaty Partiesthat Would BeAffected bv the Court's
DecisionÀre not Before the Court

255. The Parties agree that the multilaleral treaty reservation'

"would appear to creÿte an exception to the United States' acceptance of
the cornpulsory jurisdiction of the Court with respect to disputes arising
under a multilateral treaty where not al1 of the parties to the dispute are
present hefore the Court" (Nicaraguan Memorial, para. 264').

In this Section, the United States will show that this exception to the United
States acceptance of the Court's compulsory jurisdiction resulted from funda-
mental concerns that the rights of the United States and of absent States not be
prejudiced by adjudication of hilateral aspects of multilateral disputes.

A. TheMulrilur~!ra TlrearyReseriuiion WosAdopied Specij?callyfo Preclirde
Jurisdictionwhenïkeory Purriesthur WuuldBeAjjctedhy iheCovri'.~Becisiun
WereNot be/ore theCourt

256. The drafters of the United States declaration were concerned that the
Court mieht. when resolvine au international disoute arisine un-er a multilateral
tieaty, e6ctively bind some, but nr>tall, of thektates involved in that dispute.
This fear was addressed by the United States Senate in ils consideration of the
proposed declaration accepting thc Court's compulsory jurisdiction. To ensure
that the United States would no1 be bound by a decision of the Court arising
under a multilateral treaty unless other States involved in the same dispute were
also bound, the Senate added the multilateral treaty reservation to the proposed
declaration.
257. The idea of adding to the Unitcd States declaration a proviso that would

address these concerns originated with the Honorable John Foster Dulles, who
submitted a memorandum to the Senate Foreign Relations Cornmittee advocating
-
'ln 1 hml i b h mllil r i r i J th fin-
~lçnbcrp,\minJmrni". rclcrringIOihe UnlieilSidiclStndi~ruhu rpunrsrediherc\r.rraii<>li
on ihs fluoruf ihc bnild Staiei Scnaic (nard. 1591.
beingambiguous(Mcmorial,para. 262).Nicaraguaoverlooksthe fact thatthe rcservation as
has, ingeneral,becncriticircdbecauseit issusceptibleof a braad interpretdlion- that it
prccludesthe Court'sjurisdictionunlcssal1parties 10 a ireatyare before theCourt. (See,
og., J. G. Merrills,"The OptionalClaiiscToday", 50 Bririrh YeorBook 0fInrernarional
lzw, p. 87,al p. 107(1979).)
It is tme that severalscholarscommcntingon the rescrvdtionat the timc orils adoption
expressedthe vicw that the multilateral treatyreservaiionrequiresthe prcscncc of al1
partiesto tk multilatcraltreatiescitedhy the Applicanl,notjust thoseparticsihai would
beaiTectedbytheCourt's decision (Sce,tg., M.O.Hudson, "Thc WorldCourt: Amenca's
DcclarationAcccptingJurisdiction", 32 Arnerican Bar AssociationJournal, p832, al p.895
(1946).)But such an inlerpretation"undoubtedlygoesbcyondthe intentof the Senate".
I>/InternotionaLriw,ip. 669,atpp.714-716(1946).)If the rcservationwereintcrpretediurasl
Judge Hudson suggested,thc Court wouldneverthelessbc without jurisdictionover ihis
casebecauseno1al1partiesto the trcaiiescitedbyNicardguaare parties tathis case.80 MILITARYAND PAFLAMILITARYACTIVITIES

acceptance of the Court's jurisdiction, but also recommending that several aspects
of compulsory jurisdiction should "be clarified"'. "Oftentimes," Mr. Dulles
observed, "disputes, particularly under multilateral conventions, give rise to the
same issue as against more than one nation." In such cases -

"it might he desirable to make clear that there is no compulsory obligation
to submit to the Court merely because one of several parties to such a
disoute is similarlv bound. the others not havine bound themselves to
be~ome p.irtics heforc ihc Court :id, conrcquently. not bcing ri.bjc~t IOthe
[United Nati<in>]Charter prii\i\i<>n(Art 94) rcquiring rncnihcrs IG comply
trith decision\ of the Court in cnsci idwhish thev arc a .lir.v'"

258. Article 59 of the Court's Statute provides that only parries to a case are
bound hy decisions of the Court. The drafters of the United States declaration
recognized that the effect of Article 59 was that treaty parties involved in a
multilateral dispute that were not before the Court would not be bound hy a
decision of the Court? AAn indeed, since the majority of Stateshad not accepted
the Court's compulsory jurisdiction in any respect, many States involved in a
multilateral dispute could not be compelled to come before the Court in the
same or a related proceeding. The drafters concluded that, in cases when al1
affected treaty parties were not, and could not he brought hy the United States,
hefore the Court, the United States itself should not consent to have its nghts
and ohlieations adiudicated.
259. euring fkther consideration of the proposed declaration, the Senate
Foreign Relations Committee received a memorandum from Mr. Charles Fahv.

LegaÏAdviser to the Department of State, suggesting how the proposed declar-
ation could be amended to respond to the concerns raised hy Mr. Dulles. In
response to Mr. Fahy's suggestions4, the Committee's report to the full Senate
recommended :
"If the United States would prefer to deny jurisdiction without special
aereement. in disoutes amone several states. some of which have not declared
1; hc hoiinil, ori;cle 36 (3) Grmils il1%)ni:ike ils Jecl;irati<in conditl<ins>
id ihe rc:iprocitv i~iscicr~l or ceriain statcs

hlr. Dulles'ohicction niiaht ~ossihl. bc .ruvidcd idr b* Iinother suhsectidn
in the first proviiion of thereSolution . . reading:
'c. Disputes arising under a multilateral treaty, unless (1) al1 parties to
the treaty aiïected by the decision are also parties to the case before the
Court, or (2) the United States specially agrees to jurisdiction4.'"
260. The concern voiced by Mr. Dulles and hy various members of the Senate
Foreign Relations Committee that adiudication in the absence of al1 affected
pusc<lsub3iantiIil ri.ks ior the i'nited Statcs iias ihlircd in rhc Scnatc at

large. A5 a rcruli. when Senxtor Viindcnbcrg intr~iduccd the proviso suggcstcd
hy the Senate toreign Relatidns Commiitee in the full Scn:iic. urging th;it ihe

'Mcmorandum of John Foster DullesconccrningAcceptanceby the United Statesof
Memor~ndum"),reprinted in CompulsoryJuri~dicliun.Interno~ion«lCourt(hereafO/rJuslice:
/leoringrBcfore o Subcommiltee of ihe SenareCommiltee on ForeignRelorions on S. Res.
196. 79thCong, 2d Sess.,p.44 (1946). A copy of thc DullesMemorandumis appended
as Ann. 106.
' Ibid.
' Report O/ theForeignRelationsCommillee, No. 1835(hereafter"CommirreeReporl"),
al 6. A copy of the CornmiriceReportisappcndcd asAnn. 107.
P.~ommitreeReport,al pp.6-7.United States should "spell out" this concern', the reservation was accepted
without o~position and becamc part of the United States declaration approved
hy the senate"

261. The multilateral treaty reservation was a natural evolution of long-
standing United States practice in this area. The United States bas never
considered it appropriate to arbitrate bilateral aspects of multilateral disputes.
This policy is reflected in the extensive experience of the United States with
international agreements regarding dispute resolution, both hefore and since the
Senate adopted the multilateral treaty reservation.
262. States concluded a large numher of general bilateral arbitration treaties
during the first two decades of this century. Most of these agreements specifically

excluded from the "dikrenccs . . of a legal nature" that were to he referred to
arbitration al1 matters that "concern the interests of third parties3". Among
these were bilateral treaties entered into between the United States and 22nations
during 1908-1909, each containing an identical refusal to suhmit claims that
"concern the interests of third Parties4".
263. United States experience with one early international tribunal confirmed
its resolve to preclude the exercise of jurisdiction over claims involving absent
third parties. Aftcr conclusion of the Bryan-Chamorro Convcntion of 5 August
1914 between the United States and NicaraguaS (affording the United States
certain rights regarding construction of an inter-oceanic wateway in Nicaragua),

Costa Rica and El Salvador sought to annul the treaty hy asserting claims
against Nicaragua in the Central American Court of Justice. Notwithstanding
its lack of jurisdiction over the United States, which was not a party to the
instruments establishing that Court, the Central American Court rejected
Nicaragua's contention that the Coiirt was withoutjurisdiction to hear the Costa
Rican and Salvadoran claims in the absence of the United States. The Court
maintained that it had sufficient jurisdiction, despite the absence of the United
States, to adjudicate the Costa Rican and Salvadoran claims against Nicaragua,
and found for each against Nicaragua6.
264. The United States ohjected, in a letter to the Government of Costa Rica,

that the Court had exercised jurisdiction over the case despite the fact that the

' 92Cong. Rec., p. 19618 (1August 1946).
92 Cong. Rec., p. 10706 (2August 1946).
' Thisgroup ofapproximately 40 treatiewas modelled on the Anglo-Frenchtrcaty of
gcneralarbitrationof 1903. Trnirésgénérriuderbirroge, 1 ser.p. 33.Seealsa H. M. Cory,
Conrpuljory Arbilralionof Inlernolionol Dispulepp. 51-53(1932).
See, e.g., Arbitraiion Conventionbetwcenthe Gavemment of the French Republic
and the United Statesor America,March 14. 1908,Art. 1; 1.W. Malloy, Treolie.Con-
venrions,hrernalional ,Icls, Prolocols oiid Agreemenls belween the Uniled Sloles ofAmer-
ica md Olher Power,~,1776-1909, p. 549.A complctelistingor thcsc treaties appcars in
li3Mrirrcry2~op.cil.,p.55,n. 8.
"" ." "&-.
rcprinted incIIvAmerifun JournalolO/dInlernulionol Law.cp. 181 (1917);nEl Solvodor v.,
Nicoroguo, 6 Anales. p. 171,rcprinted inihid,p. 674. Nicaraguarcrurcdto abide by the
Court's decisions,clainiingthat the Coun was without jurisdictionIo rendcr them. Scc
A. S. Bustamantc, "The First Coun of International Justice and theCauses aï ils
Dissolution",in N. Bentwich, JusriceundEquily in rhe Inlerniiliunol Spherp. 37(1936).82 MILITARYAND PARAMILITARYACTIVITIES

United States could no1 be made a Party, noting that it was "manifestly not

contemplated" that the Central American Court -
"established for the settlement of difficulties between the Governments sig-
natory to the Convention, would undertake jurisdiction of matters concer-

ning the diplomatic relations between those countries and the United
States'".
265. lniiuenced by the Central American Court's attempt to adjudicate a
matter affectine one of its treaties desnite
United States absence. the United
States subsequ~ntly insirted upon thc c.'xclu\i<>C nrim thc jurisdictjon ol inter-
natiunal tribunal\ t~ldirputes ini,i~lvingthe righii or obligations oi'abscnt prtier.
Thub. when the uucstion of United States accentancc of thc comnulso~ turisdic-
tion of the permanent Court of ~nternationd Justice came bkore the United
States Senate, various Senators insisted on a number of reservations that would
have prevented adjudication in the absence of al1concerned parties. Among these
was a provision proposed in 1926that would have provided that the Permanent
Court shall not

"without the consent of the United States, entertain any request for an
advisory opinion touching any dispute or question in which the United
States has or claims an interest'".

266. A large number of bilateral arbitration treaties was concluded during the
1920s.As Judge Manley Hudson noted, for most States this generation of treaties
"favored the extension of jurisdiction to disputes, as it was put in the Locarno

treaties of 1925, 'even whenother Powers are also interested in the dispute3"'.
The United States, however, rejected this approach. In a series of 28 arbitration
treaties concluded in 1928 and 1929, the United States instead required the
inclusion in each treaty of a provision that il "shall not be invoked in respect of
any dispute the subject-matter of which ... involves the interests of third Parties4".
267. The United States required a similar preclusion in the General Treaty of
Inter-American Arbitration, concluded in 1929,Article 2 of which excludes from
arbitration matters "which affect the interest or refer to the action of a state not

a oartv to this treatv5". A member of the United States deleeation to the
unf fer e nhatedraftéd the Inter-American Treaty, Charles ~vans~u~hes, later
Chier Justice of the United States Supreme Court, described the United States
position on absent parties:

"[llf a third state has an interest in the controversy, or if the action of
the third state is to be the subiect of discussion. it,i.sm~nif~sr,~~ar r~e~e ~ ~~
oughr no1 Io be an urbirration khich dwws on that interes1 or action even
though the aivord might no1 he binding upon the rhird srate6".

'Lïticr frum Irmk 1. Polk.AcilngSivrrlwy ul Slaic.i<>the hlin!ricroFCo<13 KIC;I.
??,.May 1916.rcprinicd in1916 bijrrcpnRelurionso/~h<Unii*d.$ruli.> p.p 837-XlS
PermonenrCourt,pp.218-219. So 45. OYih Cana.. Ir1S:r, i IY?hl Src sl\o IluJ\<>n.?%.~
' M. O. Hudson,~lnrernoriunaT lribunois,p. 97(1944).
Sec, c.g.,Treaty of Arbitration BetweenFranccand the Unitcd States of America,
6 February1928,art. 3, 38Stat. 1887.Afulllistingaf the UnitedStatestrcatiercontaining
this provisionmaybefound in UniredNotionsSyslemuricSurvq ofTrcoliesfor rhePoelfic
Seirlemenr of Internoriono1Bispures,1928-1948p , 37 (1949).
GcncralTreatyof Inter-AmcricanArbitration,49Stat. 3153.
ProvisionalMinutes of the ConFerenceA . rbitrationCommittee~~.3~~~n~ ~, ~929.n. 17.
as cited inJ. O. Murdoch,"Arbitrationand Conciliation in Pan Amcrica",23 Americon
JournolofIniernarionnl Lowa,p. 273,al pp.283-284(1929)(italicsaddcd).MI. Chief Justice Hughes described this principle as "an histoncal exception
which has always been made" in bilateral arbitration treaties'.
268. United States oractice subseauent 10 the adootion of the multilateral
treaty reservation also reflects a refusait0 participate in ktemational adjudication
in the absence of affected third parties. In Riphls of Nulionulsof Ihe Uniied
Sfaies of America in Murocco,France, acting apparently in ils roleas Protector
of Morocco, asserted a claim against the United States regarding certain fiscal

immunities claimed by the United States for its nationals resident in Morocco.
France hiled to make clear whether both France and Morocco were to be
considered parties to the case and thus bound by the Court's decision (Judgmenl,
ICJ Reporls1952,p. 176,al pp. 179.181). The United States raised a preliminary
objection requesting a suspension of the proceedings pending clarification of the
hinding efïect of the Court's decision. The United States withdrew the objection
only upon receiving assurances that both France and Morocco would consider
tliemselves bound by the Court's decision (Prelirninary Objection of the United
States of America, 15 June 1951, I.C.J. Pleodings, Righis of Norionuls <y'the
UniiedSloresofAmerica inMorocco,Vol. 1,at pp. 235-238, pp. 253-254(1952)').

269. In addition, nurnerous more recent international agreements conclu-
ded by the United Siates, including a series of bilateral economic co-operation
agreements relatine to the "Marshall Plan". have contained commitments 10
sibrnit controversi& under the agreements 10ihis Court, but have excepted from
the Court's jurisdiction matters precluded by the reservations contained in the
United States declaration3.

270. The multilateral treaty reservation thus evolved frorn a long-standing
United States oractice with resuect Io international arbitration ~e-erallv and was
dralisd in rcsponse IO specificcuncerns A.;in how hilateral ;ispecis or niultilaierJl
disputci rnighi c<imsbcfore thii Court. In light of ihii hi,turivÿl and lcgislatiic
background, il will be scen that the i-eservation serves several important interests.
271. First, it ensures the United States that al1 treaty parties involved in a
multilateral dispute will he bound by a decision of the Court applying the treaty

'23 ..inzrrti.JiiurnatlJl~~rrrnori~~ /niii;ilp 15 Mr ChicfJJ'IICL IIL~~c ~is;ribi.d
:iiI~u<liiaii<o>inihr righi, ;inJ inicr<ii';idu>s!iiiliird p;lrA. ''lndcc<>r<>uilhlrl.
- I:unhermorr..hi;.au,c xri:iin rnuliil:~tcrailre:iiirccarilincmmdnlttii in ht.,ruiro
foniid par ,,f thc bn,tr ~f th', I'rcnch 4(rpliwiion.rhc'~1niid Silitc, mdde putni ui
5piiiall)agrrring tu ihr.Couri'sjurirdiciion.cloing so c\prerrl) uith<,.tiprCJUdl.'tu 11,
luturc abilityinar,rn ihr.rïrcrvaiion, .uni;iinein itdcclaraiioii
"The Uniteà States Governmentdocs not raise any jurisdictional issue in [ihis]
proceeding,even though it does not concur in the allegalionswiih respect 10 ihe
compulsoryjurisdiction of the Criurt which have been prescnted by the French
Govcrnment, ilbeingils understandingthdt itsabstainingfromraisingthe issuedoes
not afcct ils legalright to relyin any futurcase on ils reservationscontained in ils
acceptanccofthecompulsoryjurisdictionoftheCourI."(Countcr-Memorialsubmitted
by the Gauernmentof the UnitedStatesol America, 20 Dccember1951,fiid p. 262.)
' Se, c.g.. EconomicCooperaiionAgreementBeiweenthe UnitedStatesand France,
June 28. 1948, 62 Siat. 2223, TIAS 1783(Art. X); EconomicCooperaiion Agreement
Retweenthe United Statcs of Arnericaand Iialy, June 28, 1948, 62 Stat 2421. TIAS
1789(Art. X).84 MILITARY AND PARAMILITARY ACTIVITIES

to the dispute. The United Statcs does not agree to be subject to the unequal
treatment of heing bound by a Court decision that does not also hind al1treaty
parties involved in a dispute. Nor does the United States believe that States
should be bound onlv as to sel~ ~ed ~ ~ narties to a disnute: each State befo~e ~he
Court should he houid as against allrother States i'olvéd in the dispute.
272. Second, fundamental considerations of justice require that both the facts
of a case and the legal positions of al1parties be fully prësented before a binding
legal decision is issued by the Court. When a dispute involves more than two
States, the rights even of those two States inler sr may be dependent on legal

interests of third States and on facts that are only availahle to third States. An
adjudication of bilateral claims in the absence of directly related facts and legal
interests is inherently unjust.
273. Third, the United States does not believe that absent States should, as a
practical or legal matter, be afïected by decisions of the Court. To be sure,
Article 59 of the Court's Statute provides that a "decision of the Court has no
hinding force except hetween the parties and in respect of that particular case".
Article 59, however, does little more than deny re.7judicata effects of Court
decisions to States that are not parties to a case'. Court decisions may well

establish definitive interpretations of a treaty for al1parties to that treaty. And,
as the present case graphically illustrates, an adjudication of the rights of two
States before the Court may efïectively delimit the legal rights and practical
interests of third States that are not before the Court but which are involved in
multilateral disputes with the parties to the case.
274. These fundamental considerations underlvine t.e multilateral treatv reser-
\alion arc %ini:iarto jumc 01ihç icinrirlc.riti~~n\undr.rlyin&thc iiitcr\cnii,in rule,
of tlic Cciurt and thr Court', oirn .intlijpcns.iblc pari)" pr.icticr. Ihc cilnccrns
01 ihr UniieJ Statrr with rcswct IO ~3rtl;ll arl~udicatttln<IIrnu1tilatcr;ildij~utes.

however, go considerahly béyond tie courlis intervention and "indispetkable
party" standards. In particular, neither the intervention mles nor the indis-
pensable party standard addresses the conccrn of the United States, directly
relevant here, that it not be the only one of several parties to a multilateral
dispute bound by a decision of the Court.
275. Article 63 of the Court's Statute provides for intervention as of right by
parties to a convention when construction of that convention is in issue. Article 63
recognizes that every party to a convention will be anècted hy its construction
and "necessarily has an interest in the matter'". As Judge Oda has explained,

"there is little douht that, in a case wbere the construction of a particular
convention is in dispute, the construction placed on it hy the Court in a previous
case will tend to prevail" in a suhsequent case brought under the same con-
vention'. This Court's Statutc therefore makes clear that any party to a multi-

'The UnitedStates Senatcdrafiers wcreawareof the elTectof Articlc59 (Commiitee
Re~orf. D. 6). and concludedthat Article59 was insuflicient 10Drotectthc rie-ts of the
UnitedStatii in disputesarisingundcrmultilatcralconventions. '
G. Fitrmauricc,"The Lawand Procedureofthe International CourtofJuslicc,1951-4;
Questionsollurisdiction,CompctcnccandProcedure", 34 BritLrliYen,Bookof lniernurionol
Low, p. 1, ai p. 125(1958). Indeed,the relationrhipbctweenArticles 62 and 63, and the
conclusionthat any State wauldbc lcgallyatïectedby a decisionconstruing a convcniion
to which il isa party, led Judgc Hudson to concludethat al1treaty parties would be
"afectcd by" a dccisianconstruingthe treaty, and thcrcforcthat the multilatcraltreaty
dictiont(M.rO. Hudson, prop. cil.atp.l895).aty partiesbcrorcthe Court can excrciscjuris-
' ConrUientulShey (Tunlrio/l~iby<inArob Jomohiriyo) (Applicafion IO Intervene), Judg-
men!, ICJ. Reportr 1981, p.3,at p. 30 (sep.op. of JudgeOda). lateral treaty being construed by the Court has a legal interest that may be
aiTectedby the Court's decision.
276. Article 63 thus permits a third State that helieves its interests will be
afected by a decision of the Court construing a multilateral convention to which
itis a party to intervene and protect ils rights. The third State cannot, however,

be compelled to appear in the proceeding'. Thur, the United States, when
confronted with an Application that presents claims arising out of multilateral
treaties and involving multilateral disputes, has no means or bringing before the
Court al1 the other parties to those disputes. The United States cannot ensure
that its own rights and obligations will be adjudicated in light of directly related
rights and obligations of the absent States, or in the light of facts or documents

that may he directly relevant to its rights and obligations but are in the sole
possession of absent States. Most importantly, the United States confronts the
possibility of a legal determination of its rights and interests when the legal rights
and interests of other parties to the disputc - including the obligations of the
applicant Stdte vis-à-vis the absent States - will no1 be determined. These are
the interests thdt the multildteral treaty reservation was designed to protect.

These interests go far beyond the protections afiorded by the Court's inter-
vention rules.
277. For similar reasons, the multilateral treaty reservation is broader than
the Court's indispensable party praçtice. In Monerary Gold, op. cil., page 19,at
page 32, the Court held that, because of the consensual nature of ilsjurisdiçtion,
it cannot adjudicate claims where the rights of absent States fom the "very

subject-matter of the dispute". The Court's practice in this regard protects the
interests of absent States - one of the concerns underlying the multilateral
treaty reservation. But even though an absent State's interests may no1 fom the
"very subject-matter of the dispute" and thus preclude adjudication under the
standards of Munerarv Gold2. the State's absence mav brinr into ~lav the other,

more fundamental cGcerns underlying the multilateÏal treSy resémation.
278. The absent State, for example, mdy have Iegal interests directly relatcd

- -
' .\l,.nrlrirCIiiIJNt,n.ii+,d/ri.niK,.niiin 1443 Ji<dy,rti.tirCIJ Rcporl, 145). p IV. :ii
p. 3 th: t . / l I I SI l..hj<rrifrun Jcor,ul!rro<ii..t/<il~.,,
IAoolitdli,!t,Ir> /rllrrir!r. 1L'J Kcn#~r/,IV>$.n 1..iln ?i \or ï.in Ih: t.nl1r.JSt~ic\
bc'issuredthat atherpa;ties 1; the disp;te w&id /ver ippear beforethe Court sinccthe
majorityof States havc not acccptcdthe Coun's cornpulsoryjurisdictionin any respect,
and lhereforccouldno1be brought belorethe Court even in an unrelatedproceedingto
ad'udicatetheir "ghts and duticsin the disputc.
' As the UnitedSiatesdemonstratesin Pan IV, Chapter 1,thc "vcrysubject-rnattcr"of
Nicaragua's Application in lac1is the interestsof absent States, and the Application is.
ln xi,Ïrd;in;e .rlih .\l.,n.idr) (;,,IJ. ~nidrni,.ihlrIt hc~ri cmphs\i*. h,>uc<,ir, ihÿi lhi.
muliil~1ir;ilirrat) rcwr\;iiion ir bro;idcr b) iirIirrnr ih~tisiiher ihe "ioJi,pr.n.abl~.pxriy
rulr" of .Aloner<irvCi,/,/ur ihc CJL~', ~~,n~ra ~lnl~.rv~nllil.itand~r<lsundcr r\ri!clr h2
The plainlanzuaic of the resen.ationprkludes the Coun'siu"sdictionwhenevcr a treaty
pani uill he 'ïiT&ic<l" hy thr Court'<d~~.i,ionT .hccllwt, :ÜnieiiiplntrJbythercrrr\;~itn~
arc nui Iirn,mlti>rlfcctr on lryl righi,and .>blig.~liun c~lthcabrzntSiatr Thc rcreriaiiuo
aoolier if ihc ciTcciI< .inr~rt,rll imc. f.>rirdmnlc. il th: Cwrl wrrc lu dctiilcln ;ic.iie
bkiwccntwo States ihai'one oî them could noi iikovideaid to a third State.that third
Siati uuuld ruilcr !hi.pr;iciic:rlconrc.luencr., In ihli rril>ril. ihc rr\c.riali<JiiTc.r(rom
r\rtt;lih: O( ihc Cuun', Statuic. uliiili~pplicionl) uhcn A Si;iich~sai >t.ikr'"8ntcrc>l\
or a Icmlnature" {Sis.Cunivwniul Sl~:(lcl'r1rwt,wll.,hiuAr,h /<~nuihirli<,,.i'..ou/~~ur~10,
/nierv&e). I.C.J. ~eporls 1981, p. 3,a1 b.'19.)
Moreover. the Court's decision in Monerary Goldmakes clcar that the Article 62
iniiricntiriiistanddrds Ior :in.~iT:citdIsl::iliniL'ret rcIir. .tringcntth~nthc~nJi>pc!ivÿble
p:tri)rul'. litt/<.,,..,~riti<.lJihCo~ri <Ic;l.nr.J1%)rr.,iil>~':Jii\piiii bri<iiIIJIV .inJihe
Unilid Kirig~iom brx.iu<r.r:.ol~iion {kit .I,<pdlruoulJ hivc r:quirïJ ,ilu ";\Jj~J\il>t~. international peace and security" (Request of the Republic of Nicaragua
for Provisional Measures of lntenm Protection, para. 9 (italics added) ').

281. Nicaragua supports ils contention that there are tensions between itself
and Honduras by s ecific allegations against Honduras. Nicaragua asserts that
a "mercenary arm& created by the United States is "rerrui~pd and rrained in
Ilonduras", and installed in "base camps in sourhern Ilondurus" (Chronological
Account, para. 5 (italics added)). Nicaragua further asserts that these "groups
of armed men, basrd in Honduras" have carried out attacks on Nicaragua (ibid,
para. 1(italics added)). Nicaragua contends that these forces "carry out hit-and-
run attacks against targets inside Nicaragua, always returning to their hase camps
in Honduras" (ihid.. para. 6 (italics added)).
282. Nicaragua alleges that Honduras, in addition to making bases available,
has assisted the United States in arming the "mercenaries" and transporting
them into Nicaragua. According to Nicaragua, "arms and other military equip-
ment were provided to this force hy the United Slates fhrou~hHonduran military
depots .. ." (ihid., para. 7 (italics added)). Nicaragua contends that "llondi~ran
armed forces" have transported these forces to the Nicaragua-Honduras border
(ibid., para.IO(italics added)).
283. Nicaraeua also alleces that United States trooos have carried out militarv
niancui,er\ in fionduras, nczarthe Nirarilg~an bordcr iihul..112). ihat the ~lniteh
Si'itei dnd Hondurar haw carrird i>iitjoint mancuver, in tlondur-\ ncar the
Sicardciidn bordcr. anclth;ii "military r.quipmcni tI<iwiiin Tortlic loint iiianeui,r.rr
was tuÏned over to the mercenaries. :."-(ihid, para. 8). I.'urthe%ore, Nicaragua
asserts that the United States and Honduras have conducted joint naval maneu-
vers (ibid., para. 1)and that "mercenary" naval vessels "/bJasedaar the Honduran

porl of San Lorenzo" have attacked Nicaraguan ports and facilities (ibid,
para. 22 (italics added)).
284. In the exhibits that Nicaragua submitted to this Court during thc oral
proceedings concerning Nicaragua's Request for Provisional Measures (25-
27 Anril 1984)...icaraena submitted as an exhibit a "draft treatv between the
~cpublirr of 1lundur;is-iind h'1iaragu.i" In thc intr<iJuction to th; drafi ircaiy.
Nicaragua claim, tu haic propu,cd tlie trr':ity"wiih thc ohlertii,e ol'halting the
rapiJ detcrior;ition ni relati.rn13u1c.J hv I~Ccontinii.il iiii,i:ks on ISic~r~fiua'rl
national territory and by the incrc~sini purticipnlion O/ ihe ~rmed orc ofces
Ilonduras in counter-revolutionary activities that are promoted by the Covernmenr
"/the Unired Srores .. ."(Exhibit lx, p. 43 (italics added)3).
285. While Nicaragua has named only the United States as a party to this
case, ils allegations thus make clear that they are premised on actions that,

' The Presidentof the Court. in sumrnarizingNicaragua's Applicational the bcginning
allcgcsaseneseofevcntrovertheperiodfromMarch 1981Iothe prscnt datein Nicaragua, ...
in ilteeighbouringlerriloryof/ionduros,and in theseasatl the coastsof Nicaragua . .."
(1,p. 35(italicsadded)).
Nicaraguacharactenzesthe forcesopposedto the presentGovcrnment of Nic;iragua
as"mercenaries"althoughthaseforcesarcmadeupof Nicaraguannationals andthcrcfore
could not be "mercenaries" as that trrm inuscd in internationallaw and practicc.See
Protocol 1, Protocols Additional to the Gcneva Conventions of 12 Augurt 1949.and
Rc'aMoreover,in an affidavit,Migueld'EscotoBrockman,ForeignMinislerof Nicaragua,
assertsthat Nicaraguahad "initiated a dialoguewith Honduras inan eKon ta terminate
the flowof arms and attacks by armed bandsin the border arca" and blamesHonduras
for failedbilatcral ncgotiations,maintainingthat Honduras "unilatcrallywithdrcwfrom
the negotiations"(ExhibitII,para.6).88 MILITARYAND PARAMILITARYACTIVITII~S

according to Nicaragua, have been çdrried out in and by Honduras, together
with the United States. The United States in no way addresses here the truth or
Palsityof Nicaragua's allegations. But it is clear, on the face of the allegations,
that the Court could not conclude, for example, that the United States had
cxercised its rights to individual and collective self-defensewithout determining
that Honduras had exercised the same rights.
286. Honduras itsclfhas advised the Court that it could bc profoundly affected
hy a decision in this case, if this Court were to grant the relief requested by

Nicaragua :
"[A] decision hy the Court could aflect the security of the people and the
State o-~H--.uras. which denends to a laree exteut on the bilateral and
multilatesal agreements on international cooperation . . .if such dccision
attem~ted to limit these agreements indirectly and unilaterally and therehy

left mi country defenselesi'."
Honduras' own representation to the Court that a decision in this case would
"affect" Honduras - in concrete and practical ways - is entitled to great

weight'.
287. Costa Rica is also a target of Nicaraguan allegations. Nicaragua argues
that Costa Rica is involved, along with the United States, in specific actions
on which Nicaragua bases its claims. Nicaragua has told the Court that there
are 2,000 mercenaries on its southern border (Afidavit of Miguel d'Esçoto
Brockman, Exhibit II [submitted during oral proceedings on Provisional Meas-
ures], para. 5) and that "mercenary groups originaringfrum Costa Rican rer-
rirory" have engaged in attacks upon Nicaraguan territory (Afidavit of Luis
Carrion, Nicaraguan Exhibit 1(suhmitted during oral proceedings on Provisional
Measures), para. 4 (italics added)). According to Nicaragua, mercenary forces

have "received extensivesupport from airplanes,helicopiers as well as ships, that
al1took ofl from hasesin Costa Rican rerritury"(ibid. (italics added)).
288. Costa Rica, like Honduras, based solely on Nicaragua's own allegations.
would therefore be alTectedby a decision of this Court as to whether or no1 the
United States had unlawfully used force against Nicaragua. Nicaragua alleges
that hoth of ils immediate neighhors - Costa Rica and Honduras - have,
toe0ther with the United States. oermitted "mercenaries" to locale bases. shins . .
2nd milit;ir) vehlilr.,in iheir territiirir..;.The Court cannot adjudi~dte Nicaragua's
allcg;itions ;ig;tinsi ihr. L'niicJ Si.~ir.swiihi>uttilso passing upun the laufulnesb

of the icti<>n\in u.hich Hunduriis and Costa Kiid arc i~llcge~ lO be inv,il\cd

B. El SalvadorWill BeAJjëcledbya Decisionof rheCourionNicaragua'sClaims

289. As the United States has demonstrated in Part II of this Counter-
Mcniorial. 'licaragua 1,surrentl) cngaged inan tirnicd ai1ar.kagdin.i hl Salvador
Th15 i,?\ideni isom N~çÿr:ipiia'% <iu,n\ubmi,ritins. Onc oi ihc cxhibiis submiiied
by Nicaragua at oral proceédingson provisional measures concludes:

"A maior vortion of the arms and other material sent bv Cuba and other
~ommuiist Eountries to the Salvadoran insurgents transits Nicaragua with
the permission and assistance of the Sandinistas." (Exhibit V, Tab 10,p. 6.)

' This quotation from Honduras' letter makes patently dear the inaccuracy of Nica-
ragua'sassertionthat "Honduras does not claim: that it is oneof the countriesaliec-
ted. .."(Nicaraguan Mernorial.para.255).This conclusion is supported hy the statements of El Salvador's leaders', the
Affidavit of Secretary of State Shultz (Ann. l), and the findings of numerous
bipartisan bodies in the United States that have had access to much relevant
information.
290. Under Article 51 of the Charter of the United Nations, El Salvador has
an inhercnt right of self-defenceagainst suïh armed attacksand a right to rcquest
that the United States ~rovide it with assistance in resistine such attacks. The
United States presentli does provide economic and militGy assistance to El
Salvador, in accord with ils rights and consistent with the Rio Treaty (see paras.

291. ~icdragua requests the Court to determine that the United States must
"cease and desist immediately . . from al1support of any kind . . to any nation
. . . engaged or planning to engage in military or paramilitary actions in or
aeainst Nicaraeua" (Ao~lication. nara. 26 lei). If such relief is erantcd. El
S~ivador couid: as a><ndition of further ~"zéd States aid, hi pre&ded from
defending itself from Nicaraguan supported attacks on ils territory. Thus. Nica-
ragua's ~pplication - again, on itiface - requests relief ihat would directly
interfere with the legal rights and practical interests of a third State, El Salvador.

C. Crunrofihe Rrlic/Requested by NicuraguuWouldDirecilyInierferewilhihe
lnreresisofihe OiherCentrrrlAmericunStates in the ConiadoruProcess
292. As discussed in Part 11 of this Counter-Memorial, al1 of the Central

American States, including Nicaragua, have agreed to negotiate region-wide
problems in the Contadora process. Adjudicating and determining Nicaragua's
claims in this Court would have an ohvious adverse impact on the negotiations.
Each of the other States has so advised the Court.
293. Thus, El Salvador has advised the Court that, as one of the parties to
this dispute, itconsiders the Contadora process
"as the uniquelyappropriate forum . . in which to seek a realistic, durable,
regional peace settlement that would cake into account the manifold legiti-
mate interests of each participating State in10full account2" (italics added).

El Salvador has told the Court explicitly that "the complaint hy Nicaragua, if
considered bv the Court. would damaee -. Droso.cts for success of multilateral
negotiations within the contadora framework .. .lm.
294. Honduras and Guatemala4 also expressed concern that a decision of the
Court in this case would interfere with sensitive multilateral neeotiations beine -
c.~nJuctcd uiidcr ilic ;iu,plvcri>iihc "C<intlid<ir;i.-oiiniric," I lic*r.ncg.iti.iiiunr
arc ~liwur\id in grr.ti1L.Jr-taiiiILri II. Chdptcr IV. itdpn,.;ind in P.rrIV. Ck.~p-
icr V. !!,fi<And Ci>.;i:iIlic.i has crrircssed ts the Ci>ur11.\icu. ,in Xiwraeu-i's
~~~licaiion, noting that the
"'case' presented hy the Goveriiment of Nicaragua hefore the Court touches
upon only one aspect of a more generalized conflict that involves other

' PrcsidentDuarte, in hisrcccntinauguraladdrcss,statedthat with "the aid of Marxist
governmcntslikcNicaragua,Cuba and SovietUnion,an amy kasbcentrainedandarmed
and has invadedour homeland" (seepara. 194,supro).FormerPrcsident Magsna noted
elscbut Nicaragua''(para. 193,supro).lvadorarc "suppliedfrom Nicaragua andnowhcre
Ann. 103.
' lhid
Anns. 104(Ilonduras)and IO5(Cuatemüla).90 MILITARY AND PARAMILITARY ~cTlvlTlES

countries within the Central American area as well as countries outside the
region '".

295. All four of the Central American States that are not parties to this case
have therefore taken the unusual step of coming forward 10advise the Court of
~ ~ ~ ~-~~~~ ~ ~ ~ ~a decision bv the Court in this case would affect them bv
interrering with and jcoparilizing rcnsiii\.c on-going multil~icral ncpoiiations ihat
hdvr the prospect of rc\ol$ing ihc regtan-uide ct>nfliclin <:entra1Amcrica.

1) 7hi. .Ili~lr~l<ir~rT <rir/uri, K~~st~rv<rrtirl~Jit~, .\'rcuruguo'r.Ipplri~~irion/'ro[ »~i,
Unirrd Srurr'sLo~isrnr ru rhe C<ii<ri'Jsuri,s<licrioheruii<i9uny Be<.i.iro~(~II
.$'tc~r-u~i,aCklarnis IViIlAflecrrhc LrgiiIutidiJrurrirul Inr<'rt'>r<.iq'llon~htra.~.
cosla Ricaand El Salvador

296. Even assuming the tmth of Nicaragua's allegations, an issue that the
United States does not address in this Counter-Memorial, Nicaragua's own suh-
missions to this Court demonstrate that Nicaragua could not prove its allega-

tions without re~uiring the Court to determine the legal rights and obligations
of its Central Arnerican neighbors.
297. It is no enswer 10 assert that the other Central Amencan States would
not he "affected" hy a decision of the Court because, under Article 59 of the
Court's Statute. only the United States would be bound by the Court's decision.
To the ~o~ ~arv. as discussed in Secti~n II~ C. . -.sumo. it is ~reciselvbecause of the
cunccrn ihri alTccicilireaiy pariics u~uld noi hc io ho~nd ihat ihc Cniied Staier

addcd ihe multildteral truiy reu.r\,.dii,int.1itr Jecl.ir:itioir Ir the Court ucr: in
erant the relief reauested bv-Nicaraeua. -.d were therefore to find. as Nicararua -
rcqucirr. ihiii ihs Uiiiird Siaies haï a ilut! io Lcasc"al1 rupport of an) kind . .
IO i,tiytriirion. .cngagrd in military and paramiliiary aciiiinï againsi S~c;~ragua",
the llnited Siaiei would bc bound bv ihc Ci>uri'rdecirion. but the States ihai II
is alleued to~ ~ su~o..tine would béfree to continue the verv activities that the
Couri had dctcrmincd iu he violaiionï or muliilaicral trciiiirs. Such an untcndblc
siruaiion - in which iivo Siates uo~ld have Jiifering obligations undcr a siiiglc

multilateral convention with respect to the same dispute - is preciselythe resÜlt
that the multilateral treaty reservation was intended 10 prevent.
298. Moreover, adjudication of allegations against the other Central Ameri-
can States in a case to which only the United States and Nicaragua are parties
unavoidably denies those States an opportunity to address Nicaragua's alle-
gations. The Court cannot adjudicate the lawfulness of alleged United States
assistance to other States in the region without passing judgrnent on whether

those States are engaged in the lawful exercise of their inherent right of self-
defense against Nicaragua's armed attacks. In addition, adjudication in the
absence of other affected States would deprive the Court of a full and fair factual
record, which could not be developed without their participation. Many of the
key facts relating to Nicaragua's activities vis-à-vis the other Central American
States are likely to be in the sole possession or control of those States. If the
other Central Amencan States are not before the Court, a decision of the Court

would be based on incomnlete evidence.
299. P3rt II of this C~>unlcr.Meniorul.the I-dcti Kclc\ant Io Juri\dicii<inand
rldmi~rib~lit). undcr,corcs ihc complc\iiy of the rcgioii31 turm~iil in Central
,\men:.<. ;in<\emohasirch the imn~~.;sihiliio ~f th,, Court rcachini: a \Lecisionth.it
does not'afïect the other ~entrai~mericin States. Rut the COU; need not awaitexamination of the merits of Nicaragua's allegations 10 conclude that the
multilateral treaty reservation precludes it from exercisingjurisdiction over this
case. Nicaragua's own submissions make clear that other Central American
States would beaffected bv a decision of this Court. The Court's lack of iuris-
diciion iner iïi~iiragua's~'~~licaiionuridcr thc United Stÿtcs multilatcral ;relity
rcscri,ation i,thr.rcii>rçclcar

Section IV. Nicaragua'sClaims Styledas Violatiomof Customaryand General
International LawmerelvRestate Nicaraeua'sl'reatv-BasedClaims and Cannot.in
any Event,Be~eterminedwithout~efgence to thoseTreaties, in Particular the
Charter of the UnitedNations

300. In addition to its contention that the United States "has bredched ex-
press obligations under the Charter of the United Nations, the Charter of the
Organization of American States and other multilateral treaties", Nicaragua
asserts that the United States has "violated fundamental rules of eeneral and
customary international law . ."(Application, para. 14). The ~nitGStates will
show that Nicaragua's allegations based on "general and customary" inter-
national law are no more than restatements of Nicaragua's assertions that the
United States has violated the provisions of Article 2 of the Charter of the
United Nations and the related provisions of the OAS Charter.
301. The United Nations Charter, moreover, subsumes and supervenes other
sources of international law in this area. The United Nations Charter, in effect,
isthe "customary and general international law" with respectto questions con-
cerning the lawfulness of the use of armed force. It is also the lex inter parrrs
for the United States,Nicaragua aiid the other Central American States involved

in the reuion-wide disn.te. The Court will not. therefore. be able to consider
Nicaragua's "customary and general international law" claims without inter-
preting, construing, and applying the multilateral treaties on which Nicaragua
bases ils nrincioal claims. in oarticular the Charter of the United Nations. Since
the multiiaterai treaty reseriation specifiesthat the United States has not con-
sented, under the circumstances of the preseni case, to adjudication of claims
that require construction of multilateral treaties, Nicaragua's ostensibly"custom-
ary and general international law claims" are also excluded from the scope of
United States consent to the Court's compulsory jurisdiction.

A. N;curaguu'.s CustomuryundGeneralInrcrnaiional Law CluimsmerelyResrure
Ils Trealy-BusrdCluims
302. Nicaragua admits in ils Memorial that ils claims rest primarily on alleged
violations of the Charters of the United Nations and the Organization of
American States:

"Nicaragua's Jiundanlenru lontention is that the conduct of the United
States . . . is a violation of the orohibitions on the use of force in the
Charters or the United Nations an'dthe Organization of American States."
(Para. 193(italics added).)

In fact, Nicaragua's "customary and general international law" claims against92 MILITARYAND PARAMILITARYAC'I'IV~~IFA

the United States do no more than paraphrase its allegations based expressly on
these multilateral treaties'.
303. The claims that Nicaragua bases expressly on multilateral trcatics allcge

violations of three noms, contained in cited provisions of four multilateral
treaties:

- the prohibition on the unlawful use of force, contained in Article 2 (4)
of the United Nations Charter and Article 20 of the Charter of the
Organization of American States';
- the prohibition on intervention in the interna1 affairs of other States,
contained in Article 18of the Charter of the Organization of Amcrican
Statcs and Article 8 of the Convention on Rights and Duties of States;
- Article 1, Third, of thc Convention concerning the Duties and Rights
of States in the Event of Civil Strife, which, il is alleged, obligates the
United States "10 forbid trafic in ams and war material to Nicaragua
except when intended for the Government of Nicaragua" (Application,
paras. 15-19).

304. Each of Nicaragua's "customary and general international law" alle-
galions is directly subsumed by these allegations of violations of treaties, and,
in particular, by the allegcd violation of the norms in Article 2 of the United
Nations Charter. Thus, Nicaragua's allegations that the United Statcs has
violated its obligations "no1 to use force or the threat of force" (ibid, para. 21),
not to "kill, wound or kidnap citizens of Nicaragua" (ibici.,para. 24). and "no1
10infringe the freedom of the high seas or interrupt peaceful maritime commerce"
(ibid., para. 23) are al1no more than paraphrases of Nicaragua's allegation that
the United States has violated the orohibition of Article 2 (4) of the United
Nations Charter against the unlawfGl use of force and the rciaied provision of
Article 20 of the Charter of the Organization of American States. The alleration
that the United States has vio~atedits oblieation "to resoect the sovereieitv of

Nicaragua" (ibid, para. 20) is also subsumed within lie allegations expr&sly
based on Article 2 (4), by Nicaragua's allegation that the United States has
violated the principle of "sovercign equality of States" in the closely rclated pro-
vision of Article 2 (l)', and by Nicaragua's allegations with respect lo unlawful
intervention under Article 18 of the OAS Charter and Article 8 of the Conven-
tion on Rights and Duties of States.

' In ils Memorial,Nicaragua rcfersto the UnitedStates-NicaraguaFriendship,Cam-
mcrcc and NavigationTreaty (parüs. 163-177),which is addrcsscdin Part 1, Chapter
IV, n<prri.Thc Court's lack of jurisdiction ovcr Nicaragua'sclaims arising under the
Chartcrsof the UnitedNationsand the OASis an additional rcasan for no1adjudiçating
Nicaragua'sclaims based on the bilateral FCN. Ifthc Court is no1 free to determine
Chartcn for the lawfulnessof the use of amed forcc,it certainlyshouldno1attempt to
cvaluatethc conformityof thc allcgedactions with the whollyirrelevantprovisions of a
bilateralcommercialtreaty.
To the rameeKcct,Nicaraguahas allegcdthat, underArticle20of the Chartcrof the
OrganirationofAmericanStatcs,the UnitcdStatesisobligatednot to "violatethc territory
of Nicaragua andnot to subjcct ilcven temporarilyto militaryoccupation or any orher
rncorurm ~TTorce.directlvor indircft,.on an> "raundswhatsocvcr" (.~..ication...ara. 17
(italicsad<i;d))'
' 11 is a "fundamental principlcof thc Charter that al1States have the duty na1 to
ofolher Srorese..."e(GeneralAsscmblyrcsolutionNo.361103(italicsaddcd)).erritorial intcgrity H .\I<i,nigia3 'Ci.i</<wi.~,.jCi,iro,tror!lirr~~rnu/ti,i?1ul 1. ;!ir.ii%r~>,/'Geti~~ru/
A;icnlhlj H,~si~lur;~iln ivrnieri,li,K~~irr,rarurr, /-llr,cl<r/16C%ilrlcr

305. Niiaraguï supporta 11srclianre on thecnislenceof "general and custoniary
inlern;iiion;il 13~" indcpendcnt of the Charter h) ciiing ccrtain rc\<~lutiiinstif

the Citnrral Arremhl\ i,\o~lA.atiuii. nard 251. IIir not inc<sisJrvta .iildrcij thc
legal nature, if aiiy, of such resolut'ions qua General ~ssemhl; resolutions to
reach the conclusion that none of them evidencessome "general and customary
international law" independent of the substantive and procedural norms estab-
lished hy the Charter of the United Nations. Indeed, the resolutions cited by
Nicaragua expressly refer hack to the Charter.

306. The firstresolution reliedon by Nicaragua isGeneral Assembly resolution
361103of 9 December 1981,adopting the Declaration on the Inadmissibility of
Intervention and Interference in thc Infernal ARairs of States. That declaration
sets forth a number of specific "rights and dulies" 01-States and specifically
declares that "ltlhe riehts and dtities set out in this Declaration are interre-
lated and are i; accordance with the Charter" (Declaration, para. 3), and that
"[nlothing in this Declaration shall prejudice in any manner the provisions of
~ ~
thecharter" (ibirl,para. 5).
307. Second, Nicaragua cites resolution 3314 (XXIX], by which the General
Assembly adopted the "Definition of Aggression".The Definition of Aggression
and its relevance to the adrnissibility of the Application will he elahorated in
greater detail in Part IV of this Counter-Memorial. It is sufficient for present
purposes to refer to Article 6 of the Definition, whichprovides as follows:

"Nothing in this Definition shall he construed as in any way enlarging or
diminishing the scope of the Charter, including its provisions conceming
cases in which the use of force is lawful."

308. Nicaragua cites, third, resolution 2625 (XXV) of 24 October 1970,
wherehy the General Assembly adopted the "Declaration on Principles of lnter-

national Law coiicerning Friendly Relations and Co-operation among States
in Accordance with the Charter of the United Nations". That Declaration is, hy
its own lems, not declaratory of "general and customary" international law
independent of the provisions of the Charter, but raiher reaffirmsand elaborates
the legal principles cmhodied in the Charter. This is mode clear by the General
Part of the Declaration, which provides in pertinent part as follows:

"[The General Assembly] [d]eclares that:
..........................

Nothing in this Declaration shall he construed as prejudicing in any
manner the provisions of the Charter of the United Nations or the righü
and dulies of Member States under the Charter ... rakinginroaccounfrhe

elaborarionof theserigkis in rhisDeclaraiion.
..........................

3. Declaresfurther that
The principles of the Cliarrer which are embudiedin this Dec/araiion

constiturebusicprinciplesof infernarionalIaiv .. ."(Italics added.)
309. The fourth resolution relied on in the Application is resolution 2225
(XXI) of 19 December 1966on "The Status of the Implementation of the Dec-

laration on the Intervention in thc Domestic Affairs of States". This resolution
constitutes little more than a reafirmation of resolution 2131 (XX) of 2194 MILITARY AND PARAMILITARYACTlVlTlES

Decemher 1965 (discussed infra)and a cal1upon States "to carry out faithfully
their obligations under the Charter of the United Nations . . .".
310. The fifth resolution cited hy Nicaragua is resolution 2160 (XXI) of
30 Novemher 1966on the "Strict Observance of the Prohibition of the Threat
or Use of I'oric in International Relations. and of the Righi of Peiiplcr t<iSelf-
I)ctcrmination" 1 hat resolution constitutcr ;in additional reafirniation of the

"fundamental obligations incumhent upon [States] in accordance with the
Charter of the United Nations to refrain in their international relations from
the threat or use of force against the territorial integrity or political

independence of any State, or in any other manner inconsistent with the
purposes of the United Nations . . .".
In other words, that resolution is a reaffirmation of the obligation imposed hy

Article 2 1. .f the Charter. rather than a declaration of the existence of some
in<lepcn,lent principlc of inicrn;itioii;il I.in The intiniate coniic2tlon with the
Charter Ir rcinii>r2cdby a rcniin<lcr tu Statcs in the rc,<iltitiun "tu a,,i,t the
0rc;inization in discharainr ils rcr~onsihilitics as assiancd tu it bv the Chdrtcr
fo;the maintenance of &ternational peace and security".
311. Finally, Nicaragua cites resolution 2131 (XX) of 21 Decemher 1965,
whereby the General Assemhly adopted a "Declaration on the Inadmissihility

of Intervention in the Domestic AfTairs of States and Protection of Their
Indcpcndencc anil Sovcrcignty" After rcziting re\cral Jcclar~tiuns conccrning
the ,ubjcct-niaiter. thc rle;lardti.in in paragr:iph4 ,t31<\:

"The strict observance of these obligations is an essential condition to
ensure that nations livetogether in Face with oneanother, sincethe practice
of anv rom of intervention not onlv violates the soirit and Ierrer of rhe
~harier of rhe United Nations but al& leads to the'creation of situations
which threaten international peace and security." (Italics added.)

312. Thus the General Assembly resolutions adduced in the Application for
the proposition that there exists "general and customary international law" on
the use of force independent of the Charter do not in fact establish that propo-
sition but, rather, underscore the Charter as the source of law on such matters.

C. This CourtconnotDeterminetheMerirsolNicororua's "Cuslofnarvand

I. Theprovisionsof the United NationsCharterrelevantheresub.suma endsuper-

venereloredprinciples of cu.sromarayndgeneralinrernarionallaw
313. Nicaragua's contention that there are "customary and general inter-

national law" hases for its claims apart from, and without reference to, the
United Nations Charter is incorrect. All of Nicaragua's claims amount to no
more than a paraphrase of the contention that the United States is unlawfully
using armed force against Nicaragua. With respect to the lawfulness of the use
of armed force hy States, however, Article 2 (4) of the Charter iscustomary and
general international law.
314. As the International Law Commission ohserved in 1966':

' Ar theCommir~ion'sstaicn,ent~ndtc.itc; h~rc U~S a SC~JIJTI d)lsput~25 10u.ht~hcr
cdstuixiaryinlcm.itiJnal law uas codlfizddr :rc~iid by Aniclc 2 (4) i,Ithe ('hdrtcr
Comp~rc I Rrdunlir.h~~.rn<i~iii n.ul und rhrUYP O] li3rih, SIOIPY p. I13(lS)h3) .tih "[Wlhatever diflèrences of opinion there may be about the state of the
law prior to the establishment of the United Nations, the great majority of
international lawyers today unhesitatingly hold that orricle 2. paragraph 4,
together with other provisions of the Charter, aurhoriiurively declares rhe
modern customary law regarding rhe llrrear or use of force . . ."' (Italics
added).

Although the formulations and theories sometimes differ, a broad range of
scholars concurs. Professor Brownlie charactcrizcs the principles of Article 2 as
"general international law "" Professor Henkin calls Article 2 (4) a "universal
norm'" and "the principal norm of contemporary international law'". The late
Jud e Baxter referred to the principles of Article 2 as "universal international
law F". Similarly, Professor Tunkin called the obligatory principles of the Charter
"universally recognized principles of international law6". Professor Verdross calls
the principles of Article 2 (4) jus cogens7, and, to the same efTect,Lord McNair
indicated that they have a: "semi-legislative character, with the result that
member States cannot 'contract out of' or derogate from them by treaties made
bctwcen them . ..'".

315. Numerous other authorities could be cited. It is sufficicnt here 10 note
that Nicaragua's counsel agreed with this position during the hearing on pre-
liminary measures :
"It requires no citation of authority to show that the use of force hy one
State aeainst another .. . is a violation of eeneral international law. In-
dwd. 11-1sgcncr~lly c<insiJcred by publicists th;it Arri<Ir,2(4. o/rlii,(.'iir<?l
.\'urio~ici.hiirrr~iin this reïpc.1 un i,i~rh<.dinir,rr <,i,>rpc~i<.riilprini.rpl<~i

<8Jiirit~rnurtonulIUI."(1. p 5')(~tdli;\ addeil1.1
316. This Court, morcover, kas recognized that a norm-creating provision of
a multilateral treaty can emhody customary international law, when such a
provision -

"has constituted the foundation of, or kas generated a rule which, while
only conventional or contractual in ils origin, has since passed into the
general corpus of international law, and is now accepted as such by the
opinio juris, so as to bwme binding even Corcountries which have never,

Vol.eIIp.s1,atIp.12(1953).But,e asothe Commissionfurthcrindicates.chatdispute innow,
whollyxademic.
'1966 Yeurbook"/the Internutirna1Lows Commisi(ionV ,ol.II, p.247(italicsadded).
1.Brownlie,Iniernorionnl Low andrhe Ure o/Force hy Stores,p. 113and n.4 (1963).
' L. Henkin,"International Law and thc Bchaviourof Nations", 114Recueil der cours,
Vol.1,p. 171,at p. 225 (1965). To tht:same cfTectisProfessor Ssrcnson, who observes
that Artidc 2 (4)is:
"l'exempled'une dispositionconientionncllequi produit desefits erga omnes car
elle formule un principe qui correspond à unc conviction juridiqueunivenelle"
(M. Ssrensan, "Principes dcdmit internationalpublic", 101Recueildesours, Vol.II.
p. 5,at p.236(1960)).
L. Hcnkin H,ow Nation!Behove, p. 129(1968).
' R. Baxter,"Trealiesand Cuslom", 129Recueildes cours, Vol.1.p. 31,at p. 71(1970).
G.Tunkin,"Coexistenceand Internation~l Law", 95Recueildes courr,Vol.1,p. 1,at
p.5 (1958). In this regard. PrufcssorTunkin mükcs ~articularrefcrenccto Articlc2 (3)96 MlLtTARY ANI) PARAMILITARYACTlVlTlES

and do not, becorne parties to the [treaty in question]. [This] constitutes
indeed one of the recognized methods hy which new rules of custornary

international law rnay be formed. (Norrh Sea ConrinenralShelf.Judgmenr,
1.C.J Reporrs1969, p. 4, al p. 42.)
And the Court has recognized that the Charter is a multilateral treaty of the
character that creates customary international law (ReparufionforInjuriesSuflered
in the Serviceofrhe Uniied na lion. ^.dvisoryOpinion.1.C.J. Reporrs1949, p. 174,

at pp. 180-18.5).
317. In sum, the provisions of Article 2 (4) with respect to the lawfulness of
the use of force are "modern custornary law" (International Law Commis-
sion, /oc. cil.and the "emhodiment of general principles of international law"
(Counsel for Nicaragua, 1, p. 62). There is no other "customary and general
international law" on which Nicaragua can rest its claims.
31s I'hisioncl~sion should ,urpr;\r no one Hccauseofthc pre-cmincni <talus
of the Chiirtcr of the C'niicdNationi in this .ires.,iibscqucnr State pr.iitiiï ha,
nc.xss~rilvc\,oli.r.Jonly h\, rcicrenc18,th: Chartir. \\'h:n .idJrc.~ini?.;illci?..iiiuiis
of an unlawful use of force, States have analysed the legal aspect2 s such
allegations in light of Article 2 (4). As one comrnentator observes:

"The principle contained in [Article 2 (4)] kas become a customary rule
of international law. Numerous declarations hy states, the interpretations
which they adopt when prohlerns regarding the use of force arise, and the
explanations which they submit whenever accused of unlawful employment
of force hear witness to the acceptance of the viewthat Article 2 (4), besides
being part of the law of the United Nations, is a principle of law that
governs the relations of al1states'".

319. It is. in short. inconceivahle that this Court could consider the lawfulness
of an allcged use of armed force without referring to the principal source of the
relevant international law - Article 2 (4) of the United Nations Charter.

2. The variousmuliilureralrreoiieson ivhichNicaruguuhasesils claimsare ihe
applicableluw among Nicaruguu, rhe Unired Srares and the oiher Cenlral
AmericunSlules

320. Nicaragua, the United States, and the other four Central American States
are al1parties to each of the four multilateral treaties on which Nicaragua bases
itsclaims, most notably the Charters of the United Nations and the Organization
of Arnerican States. Regardless of the status of the Charter of the United Nations
as customary and general international law, those treaties constitute the 1e.rinrer
partes, and Nicaragua's clairnscannot he adjudicated by referring to sorne other,
unagreed sources of law.
321. Article 38 (1) of the Statute of the Court dirccts the Court in applying
international law to look first to "international conventions, whether general or
particular, establishing rules expressly recognized hy the contesting States". Sir
Hersch Lauterpacht explained why the Statute requires the Court to apply con-

ventional law before any other source:
"The order in which the sources of international law are enurnerated in
the Statute of the International Court of Justice is, essentially, in accordance

'K. Skubisïcwski, "Use of Forcc by State. CollecliveSecunty. Law of War and
Neutrality",in M. Ssrenson (cd.)MonuolofPubliclnrernoriono law, p.739, at p. 745
(1968). CHAPTER III

THE UNITED STATESCONSENT TO THIS COURT'S JURISDICTION
O\'I.:R'iICAH,\(;IJA'S ,\IIPI.IC.\'I IO> ASI) 'l'HI..CLAI\IS CO\'I:iISF.I>
I'HEHi:IS ISSI'SI'ESI>EI> FOR .\I'EKIOD OFT\\'O Yi:,\HS Hi' \'IKI'UE

OF Ttli: \IODIFICA'l'lOS OF 'l'Hi:IJSll'E1) Sl'til'lnj I>ECI.,\WATIOS
EFFECI'EII BK THE NOTE OF 6 APRIL 1984

323. The United States demonstrates in Chapter II of this Part and Part IV
infra that it did not consent in its original 1946 declaration to this Court's
adjudication of the claims set forth in Nicaragua's Application. Even were it
assumed, arguendu,that jurisdiction over Nicaragua's claimscame within the
terms of the original 1946declaration, the United States, in a note signed hy the
Secretary of State and filedwith the Secretary-General of the United Nations on
6 April 1984,effected a valid modification temporarily suspending the consent

of the United States to the adjudication of those claims. Nicaragua's Application
did not. accordinalv. come within the scooe or the United States declaration in
ciltct on ihc datethe Court hesame \eilcj of the iaic and htnce dots not corne
uithin the comp~lsory,iirisd~ctionof the Court.

Section 1. The LinitcdStates DeclarariunKrcludn Sicaragua's Claimclrom the
UnitedStates Conwnt to the Court'sCompulsoryJuridiction becauw thow
Claims (I) I'rcscnta "l>isoutc~ilh a Central AmericdnStatc" and(2 I"Ariw out
'
ofor ~re'Helatedto EventsinCentral America"

324. On 6 April 1984,the United States Secretary of State, in accordance with
Article 36 (4) of the Court's Statute, sent the Secretary-General of the United
Nations a note with respect to the United States 1946declaration which read in
pertinent part :

"The Declaration shall not apply to disputes with any Central American
Stdte or arising out of or related to events in Central America, any of
which disputes shall be settled in such manner as the parties to them may
agree.
Notwithstanding the terms of the aforesaid Declaration, this proviso shall
take effect immediatelv and shall remain in force for two vears. so as to
foster the continued ;egional dispute settlement process which seeks a. ~ ~~ ~ ~ ~

negotidted solution to the interrelated political, economic and secunty
problems of Central America." (Ann. 108:)
325. Nicaragua's Application, filed on 9 April 1984,falls squarely within the
terms of the United States declaration as thus modified in two respects. First, it

presents a "dispute with a Central American State". Second, it "arises out of"
and is "related to events in Central America".
326. The purpose of the United States in thus temporarily qualifying its con-
sent to the Court's compulsoryjurisdiction was set out in hoth the 6 April note
itself and in a Department of State statement of 8 Apnl 1984(Ann. 109). The
United States helieved that Nicaragua's anticipated allegations could not be
severed from the inter-related security, political, economic and other issuescompriseJ by the ncgotiatiiig agenda of thc Contadora procc.cs,nor, In pïriirular,
from the right. i~l'Vicaragu;t'\neighhtlrs IO t<ikrappropriatc mcÿsurcs. including
ille çolicitation of ;issistance from the United Statcr. in resi\tinr U-caracuan -
aggression against them.
327. All of the Central American States, including Nicaragua, have agreed
to the Contadora process, which has heen endorsed hy thc Security Council
and the Organization of American States, and has the active support of the
United States, as discusxd in Part 11,supra. The Contadora process is thus a
means for definitively resolvingpending disputes in the Central American region
"in such manner as the parties to them may agree", consistent with the 6 April

~ ~ ~
328. The United States was concerned that it would jeopardize the objectives
anreed upon in the Contadora process to sever selectivesecurity issuesof concern
to ~icaraaua for adiudication at this time in isolation from thésecuritv concerns
of the other States and from other directly related regional issues. ~iat this is
not the view solely of the United States is demonstrated by the communications
to the Court and other statements from Nicaraeua's - nei-hhors and co-parti-
~.ipïnt, in the ContaJ<ira prticrs,, intercd into thc record during oral argiinierit
iiiApril oi IYdl ($te Ann, 1112.107. l(l4 and 1115,.
329 Tlic United St;iies uished t~ ;i;iprsmptl) IO preicr\i the intexrit, of'the
reeional oeace orocess and to defeat the oossibiiit; of a tactical aine of an

~P~licatiLn by Nicaragua, but the United &tes coujd no1anticipate the-precise
manner or nature of a Nicaraguan Application. The United States thus wos not
in a oosition to assess the ~otential efectiveness of alternative arguments relating
to jurisdiction and admisSihility in meeting such a contingencyr It was in these
circurnstances that the United States took the precaution of depositing the note
of 6 April'. In the event, the Nicaraguan Application and Memorial present
several fatal jurisdiclional and admissibility dcfects, addressed in this Counter-
Memorial.
330. As a result of the 6 April note, there can be no question that. when
Nicaragua's Application was filedaiid the Court was seizedof Nicaragua's claims
on 9 April 1984,the United States did norconsent to this Court's adjudication

of those claims.

Section II. Thc 6 April Sole Ellecicda \loditicalion TcmporarilySuspcndingin
Part the Operntiun olthc UnitedStatn 1)eclaratinn.\cceptinp ihc Court's
Cumpulsur~Jurisdiction; It I>idnui 'ï'crminaicthat Ikclsration

331. The modification to the United States declaration cffected by the note of
6 April was carefully delimited in both time and geography. The consent of the
United States to this Court's compulsory jurisdiction was modified only with
respect to certain disputes, relating to Central America. The modification elfected

by the United States 6 April note, moreover, is no1 only partial, but also tem-
porary. Ccrerisparibus, the siarus quo anre will, by its own terms, be restored
on the expiration of the modification. The United States consent to the Court's
coitipulsory jurisdiction as set forth in the 1946declaration was not otherwise

preventingNicaraguaîromsubsequentlyaltemptingtoded Icureoitslackeofeffectiveacceptance
ofcompulsaryjurisdictionbydcpositing a new declaration,and thenAling, or re-filinan
Application.100 MlLlTARY AND PARAMILITARY ACTlVITlES

muJificJ or suspendcd and remlin. in r.tTcct.The n.>tr. iru,th.>ut prejuilic: in
an) respect id ihc po,sihlc rcc<)ur,c tiithe Court thdi ma) be inc<~rp<~raicidniu
any agreement resulting from or complemeniary to current efforts to resolve the
complex of problems affecting the Central American region.
332. The United States 6 April note was thus a modification in the nature of
a temporary, partial suspension of the operation of the United States acceptance
of this Court's com~ulsorv iurisdiction. It was not a termination of the United
Si~te, 1946 decl.ir.itiun in ternis or iritcnilon. 91c.ir.ipiia :ir;cpis [hir dr the

preferablc chara.tcri/ation of ihe 6 April notc (Nicaraguan Mcm<>ri.ilp . -ra 137:
1, pp 74-75.)
3 Nicaragua, houevcr. <lespiteiis stiiied preferenec. aitcmpti IO charaitcri~r
thc 6 April note in the aliernati\r. a, a termination (ilthe 1946declaration and
ii~ubstiiut~on of a new Jeclaration ihcrcl'cir.(Mernorial. para. IO? (!il) This
construction is inconsistent with the ourDo. .of the note as set forth in the
,taiemeni <ii 8 April and I<~gic.illyin.c>nip~iihlewith ilic terrtis or th: notc. The

b April notc onl) purports IO si~v/~l,rtic operaiion or the lY46dcclarati<~nwith
resDect to a limited caterorv of claims andthus defers anv.adiu.ication relatinc!-
to such category for a ieriod of two years. ~icara~ua's alternative argument
implies that the Court should deem the United States action to constitute an
implausibly complex sequencc of events, entailing a termination of the original
declaration, a substitution of a new declaration, and an automatic resubstitution
of the original in two years.
334. The technical distinctions between a limited action in the nature of a

sus~ension and a termination are well understood in treatv law'. The ~artial
susp~.nsi<in ol'the opcration of the 1946 decliiriiiion WJS clfc:ctcJ in [hi, :archy
a modifiçation2 oi the dcclarliiion. II thus ir also important IO noie ihc JiITcrencc
between modification and termination of a declaration of acceDtance of the
compulsory jurisdiction of the Court. Professor Bourquin addresséd the distinc-
tion in his arguments on hehalf of Portugal in the Right of Passage over Indian
Territory case :

"La dénonciation met finen totalité à l'engagement. La réserveportugaise,
s'il en était fait usage, aurait simplement pour effet de réduire le champ
d'application de cet engagement.
Quelle différencey a-1-il entre une réduction de ce genre et une dénon-
ciation totale?

On peut soutenir qu'au point de vue de la technique juridique, les deux
opérations différent de nature. Nous sommes en présence ici, en réalité,
d'une clause de revision et non d'une clause de dénonciation.
\!air prdtiqucmcnt. Id \CLICdilTI:rcncc qui r.\iric ciitrc elles c,t une
dilrcrcncc de dcgrc. une Jiflcrence Je qiianiite 1.4 Iihiration. sije puir ainbi
dire. est plu? complctc dani un s~s que dans l'autre.

' Jdgc Dillard rioird ihr dirtlnciiuwiih rcbpivi 12triais ILWln ihr .IppculHt.lotvi~
tu rbi.Ji<ri<ih<irr#i /hc /CAO L:,!<n<-ilJ!4<lgnzc.n1rCJ K<,p<.ri>1972 p 46. irp op.
D W. ;iln 102. uhcrc h<*roi< ih.itIhr c~>n<r.n .tf'i~lncn,a<>n'hich i,;ls.i,lkcb,~~
Sir Humphrey Waldock. "Second Reportsthc canionucthexLawtenof Treaties",t1963 Yearboukso
of the lnrernnlionol Law Conmission, Vol.II, p.71. Termination of a trcaty entails
the totalextinction or the obligation(C. Rousscau. Droit iniernaiionnlpublic,Vol.1, 212
\.,,",,.
Thcterm"modification"iruscdhereininterchangeablywiththcconccptsof"revision".
"altcratian" and "amendment", with respect Io declarations undcr the Optianal
Clause. COUNTER-MEMORIAL 101

L'Ela1qui dénoncesa déclarationse libèrede tout engagement. II répudie
toute obligation en ce qui concerne la juridiction de la Cour.
Si le Portugal usait du droit qu'il s'est réservé,il resterait soumis à
certaines obligations. II continuerait à reconnaitre, dans certaines limites, la
juridiction obligatoire de la Cour. Ces limites seraient plus étroites que
précédemment, maiselles laisseraient subsister un domaine de juridiction

obligatoire." (I.C.J. Pleadings, Vol.IV, pp. 138.139.)
Later in the same argument Professor Bourquin stated:

"Quelle différence y a-t-il entre les deux cas? C'est que dans le premier
- celui de la dénonciation -, l'obligation prendrait fin complètement:
tandis que, dans le second - celui dela reviiion -, elle ne prendrilit fin
que partiellement. Elle serait simplement restreinte, au lieu d'ètre anéantie."

(Loc. cit., p. 254.)
335. TheCourt accepted this distinction between modification and termination,

noting that modification of a subsisting declaration affords reciprocal benefitsto
othcr States in an adjudication (jus1 as Nicaragua could now protect ilself from
an Application from the United States hy invocation of the 6 April qualification).
The Court round "no essential difierence" between the level of uncertainty in
the Optional Clause system caused by the right of termination on notice and
that entailed by a right of modification on notice, and noted the equivalent
practical results where either right is invoked wilh the intention of eflecting a
revision of the terms of acceptancc of compulsory jurisdiction ; these conclusions,
however, did not anèct the Court's confirmation of their fundamentally distin-
guishable functions and purposes (Righi of Passage over lndian Terrilory, Pre-

liminary Objecrions.Judgn~erir.1.C.J. Reporrs 1957,pp. 142-144).
336. The distinction between a modification and a termination mus1be simi-
larly respected in this case, particularly since the modification rcsults in but a
temporary suspension of the opcration of the declaration. The distinction is
important since the 1946declaratioii speaks 10termination procedure but not to
modification.

Section III. The 6 AprilNote ValidlyModifiedthe UnitedStates 1946Declaration
withlmmediate ElTecl

337. I\'i?~r~guadocs no1disputc ihai its i1;iiniscorne sqwrely uithin ihr icrm,
of the 6 April noie (Mcniorlal. par;i%. 102 ei \url) Nicaragua arpucr, rathrr. that

thc noie u,.i\niit Icgslly ciic;iive. Yicdragu;t'\ îontriition ihat the Cnitrd States
1946Jecl;ir;ilic>n ~1.dnst r:srric ;iright o(tii~~Jific;ition,inil thcrcljrs coi.ld no1
\sliJI) bc modifird IIIail) respc:t will bc ei;iminrd itithis Se~iton.

A »ccl<irarr,,,isir>i/errlipOprr<8tri1IUIIJ~A.rt,Si,hje'.rru .riorI~Jic~rrcrirhe
I)ivcreri~~(~,/rrhr, »c<./aru!irSrurt,inuny .llan!ic!i<>hi, o~i.ri~.r~i.rirhrhr .Yr.ir~~r<~
ri1u,ij7ïmv iozlilo~i,lppli~<i~,~I>oc Hi.<,I.)/i.<iltirh rki,Cotir1

1. Beclarations are sui generis in character; ihey are nor trearies and are not gov-
erned by the Ia~i, f treaiies

338 Nic;ir;igua'sconteniions ;is 10 the modifiability or dcclaraiions under ihe
Optional Clnuse miriunrtruc in ,cvcral import;ini rc>pscisthc nature :inil ctlrctof such declarations. Declarations are nor treaties. On this, both Applicant and
Respondent would appear to be in agreement (see Nicaraguan Memorial, paras.
115and 157). Nicaragua nevertheless seeks mechanicallyto apply to the modifi-
cation or termination of declarationsrigid les whichit contends should be derived
from the law of treaties (ihid.paras. 118and 119). This leap is not warranted.
339. The law and practice of this Court make clear that declarations are no1
subiect to the law of treaties. Thev are unilateral instmments. Their terms and
re,er\alions 3re n,it neg<>iihieJon d hilateral h~.is nor are the). \uhje~.I<Ithe

procedurer li~re\iabli,hing bil:iieral oblig.iiionr undcJ multilareral tre:irv. 'lhe
unilateral character of declarations mus; be taken into account when assessing
the conditions under which they may be modified. Modern State practice under
the Optional Clause, the opinions of this Court, and the opinions of ledding
publicists, al1 indicate that declarations become binding between any two
declarant States only when the Court is seized by the filing of an Application.
State practice demonstrates that declarations are, accordingly, inherently modifi-
able up to the date the Application is filed.

(a) Ir is incompatiblewirhtherermsof Arricle36 of rheSlaiureufrhe Courrro
regard declarariona ssrrearies

340. Article 36(1) of the Statute of this Court veststhe Court withjurisdiction
over matters "specially provided for" in "treaties or conventions in force". If
declarations under paragraph (2) of Article 36 constituted "treaties or conven-
tions", that paragraph would simply be redundant to paragraph (1).
341. This was recognizcd in the Sourh WesrAfrica cases by Judges Spender
and Fitzmaurice. After reviewing the International Law Commission's then
recent definition of a "treaty" as meaning "any international agreement . . .
concluded betweentwo or more States", they observed:

"It will be seen that this concept of what constitutes a treaty, though
wide, is not a limitlessone. A declaration containing a unilateral assumption
of obligations would not be an international agreement at all, sincean inter-
national agreement must be concluded between 'two or more' parties.
The auasi-treatv character which 'o~tional clause' declarations made
under paragaph fol~rticle 36of the ta tuareesometimessaid to possess,
would arise solely from the multiplicity of these declarations and their
interlocking character, which ives them a bilateral or multilateral aspect.
A sinelesuchdeclaration. if it sïood auite alone. could not be an international

agreement. Optional cla& declaratihns are clearlynot covered by the words
'treaties or conventions' in paragraph I of Article 36, or there would have
been no need for paragraph 2, except perhaps for reasons of convenience
or emphasis. If a State making a declaration of willingness to accept the
jurisdiction of the Court compulsorily for certain classes of disputes were
held thereby to have entered into a treaty or convention, a dispute of the
class specified would rank as a matter 'specially providedfor' in 'treaties or
conventions in force' within the meaning of paragraph 1." (Sourh West
Africa. Preliminary Ohjeclions,Judgmenr,ICJ Reports1962, p. 319, diss.
op., Spender, J. and Fitzmaurice, J., p. 465 at pp. 475-476.)

See Sir Gerald Fitzmaurice, "The Law and Procedure of the lnternational Court
of Justice, 1951-4; Questions of Jurisdiction, Competence and Procedure", 34
Brilish Year Book O/ InternationalLow, page 1, at pages 74-76 (1958); D. W.
Bowett, "Reservations 10Non-Restricted Multilateral Treaties", 48 British Year
Bookuflnrernarional LAW, page 67, at page 76, n. 3 (1976.1977). (b) Declararions dfir fundumenrully/rom trearies in rhe unilaieru1nature of
iheirformarion

342. This Court esrly declined an invitation to construe a declaration as if il
were a treaty, like the Statute of the Court itself, in the Anglo-Iraniun Oil Co.
case: the Court deemed it inappropriate to adopt, as it would have in the case
of a treaty, a literal or "grammatical" interpretation of the lranian declaration
(Anglo-lrunianOil Co.. Judgmenr. I CJ. Reports 1952,p. 93, al pp. 104-105). See
Dubisson, La Couri~iternatiunaledeJusrice, page 104(1964), and C. De Visscher,
Problèmes d'interprétation judiciaire en droit internationul piihlic, pages 202-203
(1963). The Court noted a fundamental distinction between treaties and declar-
ations because of the unilateral nature of the generation of declarations:

. . .the ttxt 01thc Iraninn I)cclardtion i$ni)! a trcnty ttit rcrull~ngiruni
ncgotiaiions hc~ucc.niui, i>rmort Statt5. It ISthe reiult of unilateral Jr;ifting
bv lhe Govcrnnisnt olIran." t:lnplo-lritnlon OilC,> .Jr<Jw~,l<,t1.<.'J Ri.~>,,ru
. " . -
16% '.93, at p. 105.)

Seealso the Permanent Court's description of a declaration as a "unilateral act",
Phosphaies in Morocco, Judgmenr, 1938 (P.C.I.J. Series AlB. No. 74, p. 10 at
p. 23); Cerrain NornzeyianInans, Judgmenr (ICJ. Reporrs 1957, p. 9, al pp.
23-24); and Barcelona Traction, Lighr ancl Power Company Limired, Prelimi-
nory Objecriuns,Judgmenr (1.CJ. Reporis 1964, p. 6, at p. 29).
343. The eminent lndian scholar R. Anand States that "[tlhe making of a
declaration is a unilateral act, entirely in the discretion of a state, which be-
comes a bilÿteral agreement only nhen an application is filed with the Court"
(Compulsory Jurisdiction of the Iniernario~nulCourr O/ Jusrice, p. 147 (1961)).
Other publicists also stress the unilateral nature of the creation of declarations.
(See De Visscher, loc. cil. ;J. L. lglesias Buigues,"Les déclarationsd'acceptation
de la juridiction obligatoire de la Cour internationale de J-lice: leur nature

et leur interprétation", 23 Osrerreichische ZeirschriJI für Offeniliches Recl~r,
p. 255, at pp. 257-259,262-263 (1972); J. Charpentier, "Affaire de la Barcelona
Traction", 10 Annuaire frunquis di:droir inrernafional, p. 327, at pp. 343-344
(1964): Rosenne. The Time Factor. ... 26-27: B. Maus. Les ré.rervpsdans les
,'l~cliir<tfr<idr<.<.,,,,rar,nelulurtdtcrlon ohlrpur<irrc<leIii C<ir<rr»rrrnirii~,~obd~e
Ju~ricî. pp. 57-55)(19591: ;tnd I>ubiison. op c~r .ut pp. I9?-191.) D~bisson th~s
succinctlv ron~.ludi.iu,iih ropzii tiiJccl<iriitionsthat ''leirkglei d'interprétation
qui s'appliquent généralemehten matière de traités doivent ...ètre écartées"
(ibid, p. 193).

(c) Beclarations difer /undumentally /rom ireuties in the frearment O/ reservu-
rions'

344. The conclusion that declarations are not treaties and are no1 governed
by the Iaw of treaties also flows necessarily from the manner of treatment of

' "Rescwation"inthis rcgiirdisgenerallyconstruedbroadlyloencornparsany fom of
condition 10a dedaration.Sec,cg., Brig~s",Raewations totheAcceptance ofCompulsory
Jurisdictionof the Lntema1io"a loun of Justice",93 Remi1 de cqurs, p. 223,al p. 230
(1958). The ternis "reservalion". "condition", "proviso", "limitailon" and "qualilica-
lion"are used interchangcabliynthisCowiter-Mernoriaw litrespect10 thetems ofdcclara-
tians.104 MILITARY AND PARAMILITARYACTIVITII!~

conditions or reservations placed upon them. As former President of the Court
Jiménezde Aréchagaobserved:

"These declarations [under Article 36 (2)] are often accompanied by
limitations or conditions which are commonly described as 'reservations'.
It is questionable, however, whether these conditions are strictly reser-
vations within the meaning given to this term in trcaty law, particularly in
the Vienna Convention. One of the essential features of treaty reservations
is that the other oarties ar- eivenan ..nortunitv to take a oosition on them.
ciiher Iiwcpiing or rejectinp ihcm. Thi, i,ni,[ the L.Iirci>fthe 30-calledrescr-
taiiiins Io ilte accepiancccii thî <ipli6>nlicllliurc In thRl~lll~ uj P'rswye
vt,t,ln<lru~iI;~rriri,rcae th? Couri reïched the conclus~uiithai drrlarÿ-
tions under Article 36(21, including the reservations attached to them, have
immediate legal eiiects, 'ipsofucto and without special agreement' [ICJ
Reports 1957, p. 1461vis-à-vis the other parties having made a declaration,
even hefore they rcceived the text and consequently without giving them
any opportunity to take a position on those reservations. It follows that
there can be no element of tacit consent by silence to the reservations
unilaterally attached to each individual declaration.
The so-called reservations to the optional clause are based on a diiierent
legal principle:'inplusstarminus'. If any party to the Statute is allowed to
remain totally apart from the system of the optional clause, then a party
must be oermitted to acceot onlv oartiallv the Court's iurisdiction bv
subordinating its acceptance to certain conditions or limitations.
It results from this principle that the régime of'reservations' allowed
under the optional clause has to be by its veÏy nature more liberal and less
restrictive than the discipline of reservations which may be agreed by the

parties to a treaty providing for compulsory jurisdiction of the Court."
("International Law in the Past Third of a Century", Recueil des cours,
Vol. 159,p. 1, at p. 154(1978).)
345. Professor Crawford similarly observes that there is:

"a material diiierence between treaty reservations and reservations in Op-
tional Clause declarations. In the former case there is a single agreed text:
both conceptually and temporally the reservation is subsequent to agreement
on the content of the treatv from which it derorates. -n the case of
the Opii<>n<C illause. itis csi,ibli,heJ ihat rescri,aii<>n.can hc irccl)
made. thcrc simpl) 13no prior iigreenient. the re\cr\ati<iI. sn integral pirt
of the xct u,hich constiiutes the agrccmcni. ï hc bciiïr \ieu uould secni to
be that the applicability of trea6 reservation niles cannot be settled by
abstract analysis of the nature of Optional Clause declarations; rather, the
question is to what extent those rules have beenapplied in practice, by other
Statesand bythe Court itself." ("The LegalEKectof Automatic Reservations
to the lurisdiction of the International Court", 50 Briti.shYear Book of
lnternationalLaiv, p. 63, at p. 77 (1979).)

Crawford then examines relevant State practice and holdings of the Court and
concludes that "treaty reservation rules are not applicable here" (ibid p.79;
also see Maus, op. cil.pp. 93-95).
346. The treatment of reservations or conditions to declarations under the
practice of this Court, particularly open-ended rights to make further modifi-
cations as approved in the Righrof Passage case, clearlyhas not been governed
by the rules set out in Articles 19 to 23 of the Vienna Convention (Crawford,
op. cil.p. 79). (d) The righi of unilurerolmodificarionrlfdeclarations sunctionedby rheKight
of Passage case isalienIO rreorylaiv

347. The Court sanctioned in the Righr of Passage over lndiun Terriiory case,
discussed more fully below in Suhsection 3 (h), the incorporation in declarÿtions
of a reservation of a right to Varytheir conditions at will until the date of seisin,
without prior notice to or the consent of other memhers of the Optional Clause
svstem. Such a result is oerfectlv comoatible with the obiect and ou.oos's of the
system, but is not andlogous ta treaty practice. The revision, amendment or
modification of treaties can be accomplished only by the express agreement of
some or al1 of the parties, by the implementationof rules laid down in the
instrument itself, or by procedures of an international organization under whosc
auspices the treaty was concluded and is monitored. See D. P. O'Connell,
Inlernori~~naL l aw,Volume 1,page 278(1970);A. McNair, op. cit., pages 534-535
(1961): T. O. Elias. Tl~eModern Law of Trealies. oaees 88.1-0 (1974): and . .
6. DC'L~Guarditi iind M. Dclpcch, b:ï/)t&rlio di Liis Troriirl<,s)1; CiininiriGn
d., V~cnii.pages 354-362(1970).
348 Modifi~~tionof dcclaratii~nsar ihus wnctioncd bv ihis Court cannot hr
accomrnodated to the rules regarding amendment and modificationof trcaties in
the Vienna Convention (Arts. 39-41).

(e) Publicisrsgenerullyco,nci<rrhardeclaruiionsare sui generis
349. Because it is internally inconsistent with the terms of Article 36 of the

Statute of the Court to regard the relationship created under Article 36 (2) as a
treaty; beçause the Court h;is recognized the unilateral nature of declarations;
and hecause the complex system of reservations to and modifications of declar-
ations has not heen governed by the law of treaties, the consensus of modern
scholarship is that declarations create legal relationships that aresui generis. See,
for example, Waldock, "Decline of the Optional Clause", 32 Brilish YeorBook
of Internaiional Laiv. page 254 (1955.1956); lglesias Buigucs, op. cil., pages
257-258 ;Crawford, op. cil.. page76: Maus, op. cil., pages 59-62; and Nicaraguan
Memorial. paragraph 111.
350. As Dr. ShihaVa riehtl-,observes in his examination of the Court's
jurisprudence, there are unilateral, bilateral and multilateral elements to
declarations. Which of those elements should be emphusized depends on the
specific issue presented (The Puii'er of rhe ln~ernatiunal Coirrt lu Detern~ine
lis Own Juri.sdiction, p. 147 (1965)). Rules of treaty interpretation are thus
not directly transferable to this hybrid legal system. Professor Crawford çon-
cluded after an exhaustive examination of al1Court opinions discussing dcclara-
tions :
"(llt is significant that the Court has not applied to declarations under
the Optional Clause rules of treaty interpretation as such; rather, such
principles are extended hy analogy, or similar principles are generaied
independently of their application to treaties." (Op. cil., p. 76; see also,
Roscnnc, Law and Pruciice olfrhe Courl, Vol.1,pp. 405-409(1965).)

351. The issue here is whethcr a derlaration is subject to modification hcJore
an Application is filed. The United States will show that State practice and
decisions of this Court indicate that until an Aoo.i.ation is filed. at which time
sciiin <>iiur\.the unil;~trraIrlrmcnr rifthe i)stcm oi de~.laratiiinsprcdoniinatcs,
diid .idccl;ir;iiionma)'hr.m<xJiiicJ.whcthcr or $101 ihr. righicimodiiy h;ir bccii
expressly rcserved. Once the Court is scized of a case hy ~~~IicaÏion, how-106 MILITARY AND PARAMILITARYACTIVITIES

wer. the bilsieral elcmcni of ihc tuo dccldraiiun5 heiiimc\ prcilominani, and the

States bccomc bmnd ici cach uther by the icrms of ihcir Jcslarations then in
effect, subject to the rule of reciprocity.

2. A Sroie's sovereignrighr ro qualfy ils acceptanceof the Courr's Compulsory
Jurisdicrionis an inherenifeoiure ofrhe Oprional ClauseSysiem, osrefleciedin.

anddevelopedby. Sioie prociice

(a) The systemof reservalionsro declararionsisbosedno1on the Courr'sSrarure
bu1onSrorepracrice

352. Article 36 of the Statute of the Permanent Court, on which Article 36 of
the Statute of the present Court is closely modelled, did not expressly provide
for reservations 10 declarations. The drafters of the Statute of the Permanent
Court appear to have contemplated, rather, that States would specily in their
declarations which of four enumerated catcgories of legal disputes would come
within the scope of the declarant's acceptance'.
353. Despite the absence of textual authority, States almost immediately hegan

qualifying their declarations with a wide range of reservations. Indeed, the
Leaeue of Nations ex~resslvencouraeed the orocess2. This combination of State
prdt.iirc and Lcliguc ;ansiion firrnl) i~,tahlishe~ a right on the pari of dcclardnt
Stliies tu cntrr rcscrvaiions to thcir di.i.larati<~n~untlcr the Optional CIau~c
s!sienl oi the Permdnent C<~urt.Sir Huni~hrc. Wol.,,ik iri!,r>ic.ilol'~.ommcn.
tators in observing that

"it was a recognized interpretation of the Statute that Srareshadan inhereni
righrroqiralfy iheir occepionce of the Court's jurisdiction under the Optional
Clause by limitations, reservations, and conditions" (op. cii.,pp. 248-249
(italics added)).

Many commentators have noted that this development of the right of reservation
was entirely a matter of State practice. See, for example, Hambro, "Some
Observations on the Jurisdiction of the international Court of Justice",
Recueil des cours, Volume 1, page 125, at page 183 (1950); Shihata, op. cit.,

page 153; Crawford, op. cil.,page 79; and Maus, op. cir.,at pages 12-23, and
pages 86-90.
354. When this practice has come before the Permanent Court and the pre-
sent Court, such reservations or conditions have heen accepted, without excep-
tion, beginning with the Pho.phaies in Morocco case, Judgmenl. 1938. P.C.I.J.,
SeriesAlB. No. 74,page 10,al pages 21-24. SeeJ. Merrills, "The Optional Clause
Today", 56 British Yeor Book ofInternarional Law, page 87, at page 89 (1979).

'Smdiscussionin Waldock, op.cil.p.257.Article36of the PermanentCoun'sStatute
also indicated(in terms on whichthe presentArticle36 (3) is bascd) that Statescould
makc declarations"unconditionallyor on condition of reciprociton ihc part of several
or certain States,or for acertain lime". This provisioncontcmplatcdlimitations on a
declarationroiioneremporir and, further, permittca Statc to condition the cominginto
forcedits dcclarationon theagreementofothcrStatesto besimilarlybound.Reservations
werc no1othenviseintendedto besanctianed.Sec in/ro,at para.406.
SeeLeagueofNationsdocs., Records oJFf~hAssemblyC . ommiriees1.11,l pp. 198-199
(1924); ibid.,Plenoryp. 225(resolutionof October2, 1924); Records oJNinlh Asremhly.
Plenary, p. 183(resolutionor Sep. 26,1928). Sec also M. Hudson, op. cil.pp.467-468
(1943);and Rosenne, TlzeInrernorionnCl ourioJJusiice,pp.310-311 (1957). 355. The principal reason for the evolution of this right was 10 reconcile
the political realities of State sovereignty with promotion of the availability

of the adjudicatory mechanism of the Court. The promotion of use of the
Court is necessarily linked to the flexihilityaRorded States in fashioning their
current acceptances in light of changing conditions. As Sir Humphrey Waldock
observed :

"ln the old Statute wide frerd~~ of choice was deliberatelv left to the
individus1Sixte in order Io niakc 11as easy as p<issiblc lor Siiter ici\ubrcrihe
to compiilsory jurisdicti<inunder the [Opii<>nalIClauw' "

356. During the drafting of the present Court's Statute, it was proposed Io
amend Article 36 to make explicit the right of reservation. This was expressly
reiected as unnecessani (see. UNCIO, Vol.XIII, DD.391-392). Article 36of the
. . ..
pksent Statute does not treat the question or reservations any more extensively
than did its predecessor, and the uriderstanding of its framers was that Article
36 permits reservations'.

(b) A righr ru qualfy acceprunceof rhe Courr'scompulsory jurisdicrionneces-
sarily derivesfrom the consensuab l asisofjurisdicrionand theprinciple in

plus Statminus

357. The drafters of the Statute of this Court deliberately determined thet the
Court's iurisdiction should no1 be compulsory. States are frce to accept it as they
choose and to the extent they choose.~he right to limit the scope of acceptanci
derives not from the terms of the Statute but from a principle implicit in the
consensual nature of the Court's jurisdiction and in the political reality that, if
sovereign States are to accept the Court's jurisdiction, they mus1 he
free to limit that acceptance. Ta repeat the view of former President Jiménezde

Aréchaga :
"The so-called reservations to the optional clause are based on . . .'in

plus srar minas'.If any pdrty to the Statute is allowed to remain totally
apart from the system of the optional clause, then a party must bepcrniitted
to accept only partially the Court's jurisdiction hy siibordinating its accep-
tance to certain conditions or limitations." (Op. cil., p. 154.)

As Sir Arnold (later Lord) McNair ohserved:

"The machiiieryprovided ... isthat of'contracting-in'not of 'contracting-
out'. AState, beina free either to make a Declaration or not, is entitled, if
it decides to makeone. to limit the scone of its Declaration in anv wav it
chooses, subject always to reciprocity. ~nother State seeking to fiund ihe
jurisdiction of the Court upon it mus1shew that the Declarations of both
States concur in comprising the dispute in question within their scope . . .

when the papplicant]filedils Application." (AngloIranian Oil Co.,Judgmenl,
ICJ. Reporrs1952, p. 28, McNair, J., sep. op., p. 116.)

358. Thus, this Court's compulsoryjurisdiction, no less than other bases for

' 00. cil..o.247. Scc also, c.g., liambro, op. cil.,aip. 183: and Iludson, op. cil.,
pp. 452-453.
Seediscussion inCrawford, clp.cil.at p.79; Shihata, op.cil., 0p. 153;Waldock, op.
cil.at p. 248; and Maus, op. cil.ai pp.20-23.108 MII.ITARYAND PARAMILITARYACTIVITLES

itsjurisdiction, is founded on the consent of the parties. Sir Gerald Fitzmaunce

explained that compulsory junsdiction is -
"compulsory in the sense that once a dispute of the class covered arises, the

jurisdiction of the Court is automatic, and the parties are ohliged to submit
to it, if either of them invokes il. As this is preciselythe situation that each
party has, in elïect, agreed to be placed in, the jurisdiction is jus1 as much
based on consent as if the consent had been given ad hoc." ("The Law
and Procedure of the International Court of Justice, 1951-4; Questions
of Jurisdiction, Competence and Procedure", op. cil.,at p.74, n. 2; also see
pp. 66 K.)

359. The commentators, and the statements issuing from this Court, invariably
stress the "voluntary" and "unilateral" nature of the political decision to adhere
to the Optional Clause system. See,for example, individual opinion of President
McNair, /oc. cil. dissenting opinion of Judge Hackworth in the Anglo-Iranian
Oil Cu. case, ICJ Repurts1952, pages 139-140: and observations of P. De

Visscher, 1957 Annuairede I'lnsiiiur de droit inrernatiunal, Volume 1, page 313,
at page 321'. A corollary of this freedom to "contract in" is the right of the
State to "limit the scope of ils Declaralion in any way it chooses, subject always
to reciprocity" (McNair, J., lac cil.).
360. Professor Bourquin elaborated on this fundamental feature of the Op-
tional Clause system during oral argument in the Right O/ Passage oveIrndian
Territory case :

"II n'est sans doute pas superflu de rappeler ..qu'aucun Etat n'est obligé
de faire usagede la disposition de l'article 36permettant aux Etats d'accepter
d'avance. dans certaines conditions, la juridiction de la Cour.
Etant libres de ne pas y souscrire, les Etats sont égalementlibres, quand
ils le font, de limiter le champ de leurs obligations.

Les auteurs du Statut ont voulu, tout le monde le sait, encourager
l'acceptation de lajuridiction de la Cour, et, pour obtenir ce résultat,ils ont
donnéau systèmeune grande souplesse.
..........................
Quelles sont donc les limites qui circonscrivent leur liberté? Elles sont
inscrites dans le Statut lui-mgme. C'est le Statut de la Cour, et lui seul, qui
les prescrit.
Pour établir aue la réserve oortugaise serait entachée de nullité. le

Gouvernement ie l'Inde devrai; donc démontrer que cette réserve'est
incompatible avec telle ou telle disposition du Statut. Aussi longt-mps ~ ~il
n'administre vas cette meuve. sa~rétention ne Deut Das êtreadmise. La
libertéqui est'laissée,en principe, aux Etats de déterminerla portée deleur
engagement, cette libertédoit êtrerespectée." (Op.cil., Vol. IV, p. 135.)

Sir Hersch Lauterpacht, generally a critic of resewations to the Court's compul-
sory jurisdiction, also acknowledged that

"in accepting the jurisdiction of the Court Governments are frcc to limit its
jurisdiction in a drastic manner . . .[Tlheir right to append rcservations

' "C'est précisément dans la mesure où les Etats rnteront conscientsdu caractcre
volontairedecette compétencequ leon peutespérerlesvoir souscrirà laclause facultative
de juridiction obligatoire(Loc cil.) whicharenot inconsistent withthe Statute isno longer in question." (Certain
NorwegianLoans, Jiidgn~rnr,I.C.J. Reports 1957, p. 9, sep. op., p. 34, at
p. 46; also sec Maus' op. ci!.at pp. 90-91.)

361. Bydefinition, a decision of a Stüte to remain outside thc Optional Clause
system altogether, or to join it under specifiedconditions excluding certain cate-
gories of cases or imposing other qualifications, is a decision to avoid adjudi-
cation in whole or part. Such decisions by States are intrinsically political
(see 1. Merrills, "The Justiciability of International Disputes". 4CanudianBar
Review, p. 241 (1969)). Certainly, there is no issue of "good faith" raised by

such decisions; this is an inherent feature of the Optional Clause system itself.
Consistent with Article 33 of the Charter, a decision to refer al1 or certain
categories of dispute to non-adjudicatory means of settlement can hardly he
presumed to be impermissihle. Twenty-six States maintain reservations in their
declarations which expresslyaddress deference to other means of settlement in
specifiedclasses of cases'.

(c) Reservedriglztslo modifydeclurafionso , r io terminatedecluraiionsandsuh-
slilutenewdeclaralionstherefir nmirhimmediaieeflect,dominufethepreseni-
day OprionulClausesysient

362. From the outset of the Ootional Clause réei-eof the Permanent Court.
certain States made declarations for a specified number of ycars, terminable
thereafter upon notice. In 1940the Union of South Africa made a newdeclaration
that, [rom the outset, was to remain in force only "until notice of termination is
given" (P.CI J AnnualReport1939.1945.Series E, No. 16,p. 326)'. This practice
kas becomeeven more common under the Optional Clause régimeof the present
Court. Of the 46) declarations currently in effect,22 have expressly reserved the
right to terminate on notice4.
363. In 1955,Portugal made a dcclaration, the third condition of which rcads

as follows:110 MILITARYAND PAIUMILITARY ACTIVITIBS

"The Portuguese Government reserves the right to exclude from the scope
of the present declaration, at any time during its validity, any given category
or cateeories of disoutes. bv notifvine the Secretarv-General of the United
~ations and with elfeci fiom thé moment of skh notification." (ICJ.
Yearhnok1982-1983,pp. 82-83.)

Fifteen of the declarations currently in eiïect have followed Portugal's lead, in
whole or in part, and reserved the right to modify with immediate eiïect'.
364. Of the 46 declarations now in eiïect, only 19are not expressly subject to

either unilateral termination or modification on Seven of these 19,
moreover, are dated acceptances of the Permanent Court's jurisdiction that are
now recognized as being terminable on notice4.

(d) Sraieshaveesercised iheirrighrromodifya declararionroavoidprospecrive
adjudication

365. States have on numerous occasions exercised reserved rights to terminate
on notice existing declarations and substitute therefor new declarations of
narrower scopeS. On at least six occasions, changes in the scope of a State's
consent have been effected through this means with the specific intention of
avoidinr! adiudication of matters that came within the scooe of the orevious
-.
deilaraiion and, in wvcral casr5. 01'ai,iiiJing the liling of an Application in a
particular pcnding di,pute. Thus. in 1954,in order IO avoid a Japanoe xpplicati<in
1,)detcrmine richts Io ~earl fsherics iiif the Australian coa.1. Ausirali;i n~rrowcd
the scopc of %s accLptance of the Optional Clause (see Waldock. op. cil.,
pp. 267-268). In the following year, the United Kingdom rwice terminated its
existing declaration and made a new, narrower declaration in order to avoid
possible adjudication of a dispute involving Saudi Arabia (ibid; and Merrills,
"The Optional Clause Today", op. cil., at p. 94). In 1970 Canada declared an
anti-pollution zone extending 100 miles into its Arctic waters and promptly
amended its declaration to exclude any related disputes (see statement of Prime
Minister Trudeau to Canadian House of Commons, H.C. Deb. (Canada), 8 April
1970,pp. 5623-5624). In two other instances, after an Application was brought,

' Australia, Botswana,Canada, El Salvador,Kenya, Malawi.Malta, Mauritius. New
Kingdom.(limited), Norway (limitcd), Poriugal, Somalia, Swaziland,Togo and United
' Of ihc 22 declarationswith immediaterighis of temination, 10alsa have rcservcd
riahtsIoimmcdiatemodification.Fivededarationswhichhavercscrvcdriehts-f immediate
m>di6caiiondo no!conlaincxprisi nyhir <>imm:Jiair.ieminîiiiin
' Ibe mort r::e:2itrvlîrdtiun iiccspiingihcC<>un' iompulsas )~nsdictiun.ihdtor thc
'1'oprilcs~cpubli;.diJ %c,uhjr.,10 ihs Il>llouingpr8nl.o
"The present declaraiion has been made for an unlimitedperiod subjcct IO thc
power of denuncialion and modificationattached io any obligation assumed
by a sovereign State in its international relations." (I.C.JYeorbook 1982-1983,
pp.86-87.)
Seediscussion al paras.408 elseq, infra.
For example:Australia(6 Feb. 1954); Canada(7 Apr. 1970);France(10 July 1959
and 20 May 1966); lndia (18 Scp. 1974); Philippines(18 Jan. 1972);South Afriça(13
Sep. 1955);UnitedKingdom(2June 1955.310ct. 1955,18Apr. 1957and 26 Nov. 1958).
See Rosenne. Doamenis on the InrernoiionolCouri of Juslice (hereafter "Donunenis"),
2nded., pp. 345-416(1979). COUNTeR-MEMORIAL III

declarations were terminated and a new declaration suhstituted with protective
modifications to exclude the suhject-matter of the pending Application from any
subseauent filinu .lsee Waldock. o,. ,ir.. ,..268: Merrills. ",he~ ~ ~on.l~ ~ ~ ~ ~ ~ ~ ~ ~
Today", op. cil., at 93-94). Quite properly, in neither case wss the termination
of the former declaration invoked to attempt to divest the Court of iurisdiction
in resoect of the Anolication ~reviouslv filed.These modifications angear to have
been ;notivated hy'ihe desireio preverh future Applications should);risdictional

defenses Io the pending Application have succeeded; in other cases, the same
motivation has prompïed the temination of acccptdncc (ibid.).
366. The process of terminating or modifying an existing declaration pursuant
to a reserved right to do so with an intent Io avoid adjudication of particular
matters, and in certain instances, w,ithspecific States, is thus firmly estahlished
in Court practice. h'one of the actions discussed supra provoked protests hy
other States'.

(e) Siures have mud$ed or terminuied their declurations in the absence of a

reservedrighr
367. Because most States have expressly reserved the right to terminate or

modify their declarations on notice, the number of instances where States have
modified or tenninated their declarations in the absence of an express reservation
of a right 10 do so is consequently limited. Nevertheless. States have effectively
done so on al least fiveoccasions prior to the action taken hy the United States
on 6 April.
368. Colomhia made a declaration accepting the Permanent Court's com-
pulsory jurisdiction in 1932, which reserved no right to modify or terniinate
the lems of its acceptance (117 LNTS, p. 47). In 1936, however, Colombia
modified that declaration to exclude matters arising prior to 1932 (Thirreenih
Annual Reporr oj'lhe P.C.I.J., 1936-1937,at pp. 276-277). The following year,

without provoking any objections, Colomhia filed a new declaration incorpo-
rating the 1936 modification (181 LNTS, p. 347; I.C.J. Yearbook 1982-1983,
p. 61).
369. In 1938 Paraeua-,denounced its declaration. which (like Nicaraeua's) u .
uïs unci>ndiiion~lon 115i;irr.Paraguay cvidcntly wishcd IO avoid an Application
b) Holi\'iau,ith rc?pe<l IO thc Chaco dispute (\Vlild,ick, #ip cil. ai p. 263,. Sis
S13te5ohieclc<lto kir3culi,'s dcnunci;itii>n2 ï'hc Couri'\ r.rrli, Yi,iirh<~uk cion-
tinued to list ~aragua; &ong the States accepting the court's compulsory
jurisdiction but (as in the case of Nicaragua) indicated in a îootnote that there
was some question in this regard. (See, e.g., ICJ. Yearbook1946-1947,p. 211.

See also Waldock, op. cil., p. 246.) Since the 1959-1960 Yeurbook,however,
Paraguay has no1 heen listed; the Court's Registry has indicated that "the
omission was not inadvertent" (sec Shihata, op. cil., p. 167,n. 1). There has heen
no objection to the removal of Pariiguay from the Yeorbook.

' For good rcason, the subjcct-mattcrof the instant Applicationis without parall~l
in theseexamriles: the unnrecedentcdnature of the casc is in itselfa reflectionof ils
inadThe incidentisdiscussedin Fachiri."Repudialionof theOptionalClausc", 20 Brirish
Yen, Bookof InrernolionalLow, p.52 (1939). It iinlercslingto note that al1 sixof the
States(Bruil. Bclgium,Bolivia,Czechoslovakiat,heNelherlands andSwcden) thatobjectcd
to Paraeuay's action had made declarstionsthat were terminahlc on natice aîter the
expiration Ofiixedperiods.112 MlLlTARY AND PARAMILITARY ACTIVITIES

370. In 1939, France, the United Kingdom and five other Commonwealth
States amended their declarations, which were for speciiied periods that had not
yet expired, to exclude disputes ansing out of events occurring during World
War II (see Leque of Notions Ofici01 Journul, 20th Ass. (1939), pp. 407-410;
ibid., 21st Ass. (1940), p. 44). Eleven States objected to these modifications made
in the absence of a reserved right (P.C.I.J.nnual Reporr 1939-1945. Series E.
No. 16,pp. 333-343). Nevertheless, these actions have been approved consistently
by suhsequent commentators'.
371. El Salvador accepted the compulsory jurisdiction of the Permanent Court
in 1921 without reserving the right to modify or terminate the declaration. In
1973, citing the need "to accord . .. with present circumstances", El Salvador
replaced the 1921declaration with a new declaration (I.C.J. Yearbook1982-1983,
pp. 64-65). Honduras, in a letter suhmitted to the Secretary-General of the

United Nations on 21 June 1974, objected that "a declaration not containing a
time-limit cannot he denounced, modified or broadened unless the right to do
so is expressly reserved in the original declaration" (Rosenne, Documenls, p. 363,
auotine C.N.144.1974.TREATI oEfS- 2ue. 1974). The Government of El
~alvadir responded that such a coniention "~Dm~~eté~ la~cks any basis or sup-
port in international law". El Salvador observed:
"To seek to apply to such declarations of acceptance of compulsory juris-
diction the ~rovisions of the reneral law of treaties. is to go be~ond the
re:ility of th; Iau and inir.rnati~inlilpr~ciicc on ihc subjcci.
To assrpi the ronicntiiins of Honduras uould bc ianixnouni in acccpl-
ina ihat al1 thosc Staics which had mîdc declaralions with time-liniits sir
wzh reservations would be in a nrivileeed nosition vis-à-vis al1 those
. .
otlicr States \\hich haJ made Jcclarat~ons ior dn indcliniis tcrm or wiih~~ui
revrr\atiiins." ilhr<l. p 368. quiiting C :.?1974.ï KFAl'lt:S-3. of 9 0ci
1974 )
372. On 28 February 1984, lsrael notified the Secretary-General of two modi-
fications 10 the declaration it had deposited on 17 October 1956 (C.N.41.
I984.TREATIES-1, of 23 March 1984). The previous declaration contained a
provision for denunciation on notice, but had reserved no right of modifica-
tion (LC.J. Yeurbook1982.1983, pp. 69-70).
373. It is notable from this history that objections to Paraguay's 1938denun-
ciation and to the modifications at the lime of World War II were limited. There
was but a single objection to the Salvadoran action in 1973. There were no

objections to the Colombian modification, to the dropping of Paraguay from the
Yeorbook, nor, to date, with respect to the two modifications this year
(Nicaragua's contentions in the present case, of course, excepted). The current
Yeorbook reproduces the modified El Salvadoran and Colombian declarations
without qualification as to theirlïectiveness.
374. This record thus lends no credcnce to Nicaragua's bold assertion that
"the practicc of Statesprovides no support for the view that Declarations can
he terminated or modified at will" (Nicaraguan Memorial, para. 132). The
record, on the contrary, demonstrates general acquiescence by States in this

Commonwealthcountry communications,5. Nwhile describingthe circumstanccsjustifying
ihcir actions, do not themselvcsarticulatelegalconclusionstherefromin support of the
modifications.hether based on Optional Clausepraciice,or ircaty or other leprin-
ciplcs. COUNTER-MEMOKIAI. 113

practice'. Moreover, the disposition - or, rather, non-disposition - of those
few objections that have been registered over the years underscores how far
removed the Optional Clause system is from a formal treaty context with ils
rules on reservations and objections2.

3. The Court lias con$rmedthe evolutionof Store practicewirh respectio decla-
rations, andIras recognized aninherent, exfra-stattrtory righf to titodijy
declararionsin any monnrrnu! iirconsistenw r irh the Slaturea! any rimeirntil
thedateoffiling of anApplication

(a) Thedatefi~rdetermining jurisdiciionisthe dateof seisin.which isthedate of
filing of onapplicationwiththeCourt

375. Because of the consensual nature of the Court's contentious jurisdiction,
and because each State accepting the Court's compulsory jurisdiction pursuant
to Article 36 (2) of the Statute does so only with respect to other States accepting
"the same obligation", it has long been recognized that "the Declarations of
both States [must] concur in comprising the dispute in question within their
scope" (Anglo-lranianOil Co., Judgment,I.C.J. Reports1952, p.93, Sir Arnold
McNair, J., sep. op., p. 116). It is, however, necessary to determine as of what
date the declarationr must concur3.
376. The Court soecificallvaddressed this issue in the Rizhl of Pnssazeover
. .
11,iliun7;rrrror) cdre Indiii. ,i~ilic gribunilthai il rcnJercJ unicriain ihc rispc
jf Pùrtugiil'i .on,eni tu juriiiliitii>n. hd challciiged I'ortu&il'sreser\ed righi to
exclude chierc-ries of dis~utci fronl ils dcilaratiiin The Court reicited India's
contention :

"When a case is submitted to the Court, it is always possible to ascertain
what are. ar tkut momenr. the reciorocal oblieat-ons of the oarties in
accordance with their respective Declarations." (Preliniinary Objections,
Judgment,I.C.J. Reports1957, p. 125, al p. 143(italics added).)

377. The Court's holding in the Right of Passage ovelrndian Territory case,
moreover, is consistent with the Court's jurisdictional determinations in earlier
cases, which were invariably made :asof the date of filing of the Application. Sir
Perey Spender and Sir Gerald Fitzindurice descrihed the key event as "the date
when the Court is seized of the case by Application, this heing the date when al1

the elements necessary to give the Court jurisdiction must be present" (Soulh
WestAfrica, PreliniinaryObjectionsJ ,udgment,I.C.J. Reports1962, p. 319,jt. diss.
op., p. 495).
378. Events aKecting the scope or validity of the parties' declarations have
been giveneffectby the Court if they precedethe filingof an Application. Bvents
subsequent to the iiling have not heen given efect. Thus, the expiry of a dec-

'See Rosenne, The TimeFactor.op. CU.,p. 24,n.2.
Note that thc Court. in upholdinethe Portu~uça third conditionin thc Ripht of
ohjccilonwhichJih;idbec"IoJgeJ.~gsln,iuiihaiiundliiunlJIhciSuetliihohjeriiuni.Ippcdr,ic,
hr.lhcdnlvrrvordcùoblcCI!~> (nihc>uh<iiinr 'fa rcrcn.aii>iin;i~ubseaucntld \ cno*iicd
dmlarilion (XY Cruwl~rd, GI> ci!.al p 77) . ..
'SirArnoldc~~nri<lcric haliihr crilicalJain thaicabcu.~s uIir.ihcCnitcJKingdnm
tild 11,,\ppllc;iiloinIliisC'ourlon 2h 11s). 1951" (ep <.II,114 MILITARYAND PARAMILITARYACTlVlTlES

laration hefore the date of filing has properly heen viewed as precluding juris-
diction'.
379. Conversely, the expiry or denunciation of a declaration ajler an Appli-
cation has heen filed has been held not to divest the Court of jurisdiction. In
the Noriebohm case, Guatemala's declaration expired shortly after proceed-
ings had been instituted, and Guatemala argued that this expiration divested the

Court of any jurisdiction it may have had on the date of filing. The Court re-
jected this argument unanimously:
'21 rhe rime whenrhe Application wasfiled, the Declarations of Guatemala

and of Liechtenstein were both in force. The regularity of the seising of the
Court hy this Application has not heen disputed. The subsequent lapse of
the Declaration of Guatemala, hy reason of the expiry of the period for
which it was suhscribed, cannot invalidate the Application if the latter was
regular : consequently, the lapse of the Declaration cannot deprive the Court
of the iurisdiction which resulted from the comhined anolication of Article 36
of the-statute and the two Declarations." (~reliminar;'~bjecrion, Judgmenr,

I.C.J. Reports 1953, pp. 122-123(italics added)'.)
380. Professor Briggs summarized the rule from the cases thus:

"[Ill is no1 the date of deposit of a new Declaration which constitutes
the crucial date for purposes of the jurisdictional requirement of reciprocity,
but the date on which an Application is filed." (Op. cil..pp. 262-263.)

He continued that:

". . . Declarations are made unilaterallv bv States and can in oractice be
limited hy reservations, conditions, and éxciusionsnot inconsistent with the
Statute of the Court .. .
The critical date for estahlishinr whether two Declarations coincide in
conferrine iurisdiction and for determinine their common eround is the date
on which-an Application is filed with the Fourt. ~lihou~ha consensualbond

acceptingcumpulsoryjurisdicrion exisrsberweenIwo declarunr States asfrom
rhe rime of enrrv inro force of rhe larer Declaration and ~ermirs rhe li*in~..f ,
'in Appliciirio~iusfront rhurdurr. ir is nr>rncrvsnur?rhur rhe .sutirei,hliguri,~n'
hr irrriorahl) firrd ur rhp rittie rhr nins<,nranlho~id 1%e.,ruhli~h<~d' (Ihid.
p. 267. (Italics added).)

' In the P*. Cdky. Eslerhoiy case,Hungaryattemptcd 10 invake the compulsory
jurisdictionof the CourtalthoughYugoslavia'sdeclarationhad expired a fewdaysbefore
Hungary'sApplicationwas filed (Order of 23 Moy 1936. PCLJ., SeriesAIB. No.66,
p. 36).At the proccedingson the merits,Hungarywithdrewthatjurisdictional contention,
admittingthattheexpiryofYugoslavia'd seclarationcausedthattitleofjurisdictia10lapsc:
"[Tlhe Hungarian Government . . .no longer rcliesin the present case on the
third of the clausesadduccdby it asconferringjunsdictionon theCourt, namclythe
Optional Clausc of Article 36 al the Court's Slatule, in viewof the fact that
Yugoslavia's acceptanceof that Clauseexpiredwhilethe Application was in process
of drafting,afewdays heforeit wasfiled, andhas stifar no1 been renewed." (P<ljis.
CsOky,Esrerh<izyJ ,udgnteni,1936. P.C.I.J.. SeriesAIE. No. 68. p. 41. The Court
accededto this oasitian.Ibid...65..
Expiry or denunciationof d-larations subsequent to the filingofan Applicationwas
no1invokd as aground for objectionto jurisdictionin Losinger.Orderof27 Jme 1936.
PCLJ. SeriesAIB, No. 67, p. 15;Phosphales inMoroceo.Judgmenrs .upro;Anglo-lrmim
Oil Co..supro;and RighroJ'Passag evrrIndian7'erritory.upro: sccdiscussionin Roscnne,
Low ondPradiceofrhe Courr, Vol.1,at pp. 501-506:and Shihata, op.cil.,p. 164. 381. Other scholars concur. In perhaps the most exhaustive examinarion of
the Court's jurisprudence, Professor Rosenne has concluded as follows:

"When a State denosits a declaration under Article 36 (2) of the Statute.
it makes a general Gfferta al1cither States doing likewi&,'to recognize as
defendant thejurisdiction of the Court in a future concrete case, and on the

terms specified. ..The terms upon which that oKerismade are no1constant,
but consist in the area of coincidence with the terms of like declarations
made, or to be made, by other States .. .There is, as yet, no element of
direct agreement between any of the States making declarations. That
agreement will only corne about when a legal dispute is concretized by the
filing of an application. That step alone sets the process of compulsory
adjudication in motion." (Law and Praciiceof rhe Court, Vol.1, pp. 413-
414.)

382. Another thorough analysis of the Court's jurisdiction arrives at simildr
conclusions :

"[EJven in [the realm of theory] the insistence on applying the rules
relating ta the termination of treaties, and therefore of invalidating any
unilateral termination not anticipated in the instrument, is not always
iustified. It kas been exnlained before that the 'bilateral element' is not
ihe only element in the klationship created by the declarations of accept-
ance, and that this element becomes particularly important only after the
seisin of the Court of a given case. AUagree that ainilateral Grmination
will then have no effect on thc Court's jurisdiction. Before the Court is
seized, however, the vague relationship between each two declaring States,
with its three elements [unilateral, bilateral, and multilateral] present,
can hardly be called a treaty suhject to the rules governing the tennina-
tion of treaties. If the application of such rules is found 'desirable' as it
results in widening the Court's scope of continued jurisdiction, it may al
best be suggested as an instance of the 'should be' as compared with
the 'is' in the realm of international adjudication." (Shihata, op. cil.,
pp. 167-168.)

Likewise, Julius Stone observes that -

"[tlhe distinction 'compulsory'-'voluntary' is only accurate when the
matter is regarded as or the momenrafrer a disputehas orisen.and when
oneparry seeksro invokerhe Courr. As at that moment, and as regards
the other disputant, the Court's jurisdiction is sdid ta be 'compulsory' if
the dispute is within the class of disputes which it has already agreed ta
submit; it is 'voluntary' if, there being no such prior agreement, the

other party then agrees fo submit the particular dispute. In bath situa-
tions, the Court has jurisdiction because, and only because, the parties have
sa agreed." (Legol Conrrolsof InternationalConjlcr' p. 123 (1957) (italics
in original).)

383. Thus, the ddte of the filing of an Application is critical in distinguishing
between commitments under the Optional Clause system that retain, before that
date, a variable and unilateral charticter, but hecome fixed for the purposes of
anv eiven case on that date. The iurisorudence with resnect to the seisin of the
cou: constitutes yet another deions;ration of the divergence between the law
of treaties and practice under the Optional Clause.116 MLLITARY AND PARAMILLTARYACTIV~T~FS

(h) Declaranr Srutes have an inherenr right to modfy rheir occepiances of the
Court'scompulsoryjurisdicrion ar any rimeunrilrhefiling of an applicarion

384. In the case concerning Riglirof Passage over Indiun Terrirory, the Court
affirmed that a right of modification al will is compatible with the Optional
Clause. The focus of the controversy over the terms of adherence to the Optional
Clause was the third condition of Portugal's 1955 declaration (tent, supra, at
para. 363). Close scrutiny of the arguments and the holding in the Righi of
Passage case is pertinent since the right asserted hy the United States in the
instant case is in every respectequivalent to that asserted by Portugal, including
the source of the right, with the sole exception that Portugal had expressly
reserved this right in its declaration.
385. The Righi of Passage case isalso germane hecause the attack on the third

condition hy Sir Humphrey Waldock on hehalf of India' made, inter alia, the
same points as does Nicaragua now in its Memorial. Sir Humphrey Waldock
areued that Portueal's condition or reservation was "an abuse of the Ootional
C~~USC" Thc pusii~~inherent right iifmodifiration. hc ~.onicndeil.rrÿsan i\lusory
2nd \~riahlr arîcpianrc oijurisiliçiion thxi fundiiincnially dcfcsicrl ihc idca ihat
iurisdiction was "com~ulsow": the svstem would he deoleted of contractual
operation and elïect ;i~perm~ssibleelements of retroactivit~would he introduced,
which conflicted with the Court's powers under Article 36 (6) of the Statute;
and the Portuguese condition, equally with the circumstances of its declaration
and immediate filing of the case against India, demonstrated "opportunistic"
political tactical purposes from which other declarants should he "protected".
(Compare paras. 125and 131 of the Nicaraguan Memorial with Sir Humphrey
Waldeck'sargument, I.C.J. Pleadings. op. cil., at pp. 27-30, 45-49.)
386. The Court approached the third condition from two key premises:
(1) that the critical date of the seisin of the Court, as demonstrated supra, is the
date of the filing of an Application; and (2) that only modifications in clear
conflict with the Statute are im~ermissihle~(lC.J Re~ur1.s1957.oo. 142-144).

387. TheCourt accepted thai the optionai Clause iystem contak an inhcrént
degree of uncertainty in the scope of each declarant's acceptance of compulsory
junsdiction at any given time. ~lthough the Court posited a contractual relation-
ship between declarant States as from the date of the later of their declarations
(ibicl.,p. 146), the Court indicated that this is a relationship the scope and extent
of which is variablc at al1times until the date of an Application (ibid., p. 143).
On that date, al1the elements of jurisdiction expressed in the declarations of the
parties then in force, as well as rights of further modification or termination, are
elïectively frozen in respect of that case. TheCourt found such a system rctaincd
ils vitalcompulsory and contractual character, whileaffording States the flexihility
that lies at the heart of the consensual nature of the Article 36 (2) régime (see
siipra, at paras. 357 er seq.). In upholding the validity of the third condition, the
Court ohserved :

"While it mus1hc admitted that clauses such as the Third Condition bring
about a de-ee of uncertdintv as to the future action of the accc~tine . -
go\,crnnicni. ihai uiiccrrainiy dors noi aiiach IO ihc position ;iciually
ctiahli,hcd hy ihc I)crlaraiion of Acccpi~nce or as IInilghi hc c>idhlished
in consequence of recourse to the Third Condition

' SirIlumphrcy ihu,br.,ughidirccil!h:idrr. ihCouri the .irgi.mc,nhc h.11made ln
ihc"l)iillnci,i ihOpitoniilCl~d~e" op <il
' Cj drgumcniol I'rolcisorHourq~inq . ~oicdsupro.ai pdra 3611 COUNTER-MEMORIAI. 117

As Declarations, and their alterations, made under Article 36 mus1 be
deposited with the Secretary-General, it followsthat, whena caseissubmirred
ro the Courr,if i. alwayspossiblcro ascerrainwhatare, al rharmoment, the
reciprocul ohligaiionsof the Parties in accordancewirh rheir respective

Beclararions."(Ibid., p. 143(italics added).)
388. The Court further concluded that the third condition injected no more
uncertainty into the operafion of the Optional Clause system than rights of
denunciation at will (a feature of hoth the Portuguese and lndian declarations)

(ibid.,pp. 143-144).The practical affinitieshetween termination and modification
where States, like India, had exercised a termination right in order to substi-
tute a new, modified declaration, Iiad been emphasized by Professor Bour-
quin, arguing for Portugal (ICJ. Pleadings, supra ,l pp. 138-140)(see supra,
para. 334).
389. The Court, having articulated this conception of the operation of the
Optional Clause system,brieflydisposed of the argument that the third condition
deorived lndia of the henefits of the orinciole of reci~rocitv: al the date of lilinr!

ofin Application, the right of recipricity iould attaih to ail condiiional demen<
notified bythat date pursuant to the third condition (ibid,p. 144). With respect
to arguments of retroactivity, the Court found that "construed in their ordinary
sense, these words mean simply that a notification under the third condition
applies only to disputes brought berore the Court after the date of the notifi-
cation", thus raising no conflict with Article36 (6) and the rule in theNottebohm
case (ihid, p. 142).

"lt is a rule of interpretation that a text emanating from a Government
must, in principle, be interpreted as producing and as intended to produce
ekcts in accordance with existiriglaw and not in violation of il." (Ibid.)

390. Thus the Court considered and rejected the concerns of Sir Humphrey
Waldock and other commentators who argued thaf the evolufion of extensive
rights of modification in State practice was inconsistent with the Statute and
would undermine the Optional Clause system (I.C.J. Pleadings.op. cil., pp. 28

and 30). The Court confirmed that, in the absence of a direct conflict with the
Statute, the fundamental changes in the Optional Clause system king wrought
by State practice mus1bc upheld.

4. Denialof, rie.. of,modificationtou Storenormtikinean exnressreservationin
<r,~l<ler~leilururr~titoiildhi.in<.yu,rubl~tiiI<.iinn<ir,~,,usl~i~idltrhr i,frhc
ji~n~lu~iir~,iihlutiwrsidrrcl~/roi,<.iurrt3tn .Srar<,ru<rircii~t<lerhcnOpr~unul
Clause

(a) Tlreinherenrright assertedhy the UnitedSrutesisfully consistentwith the
nrrtureandop<iraiion of declarationsoccepring compulsorjyurisdicrionasarti-
cularedby thisCourtin rhe Right of Passage case

391. The United States submits that, contrary IO the arguments advanced hy
Nicaragua in ils Mçmorial, express confirmation by this Court of prior practice

premised on an inhcrcnt right to modify declarations represents no departure in
theory, in operation, or in practical rcsult, from the inherent right to reserve
such a modification vower sanctioned hv the Court in the Ripht of Pussape case.
392. 11is incunib&iton Nioiraguli. g;în ihc broad cvolut;on of ~t;itepraciice
in respci ol'm~iil~ticatiunrt.o dcnionrtr:iie that iliil111exprcbsin ildccl~r;ition
ihc inhcrcnt right ofinirdiliciti<~nupheld in ihc Rr~hro/l'u~w~e circ r.ii,r... in COUNTER-MEMORIAL 119

and I.C.J. Pleadings. op. ci!., Vol. IV, at pp. 27-28, and 45-46). As discussed
supra, at paragraphs 357 er seq., decisions to accept or decline the jurisdiction of
the Court are inherently political. In the instances cited supra, paragraphs 365 et

sel/., States have modified existing declarations precisely to avoid adjudication
of particular disputes with other specific States, without challenge. No issue of
"good faith" arises where, as here, alternative means of dispute resolution
consistent with Article 33 of the Charter are availahle, have been invoked, and
are clearly no1 exhausted.
398. Finally, the only hasis on urhich to require that the inherent right of
modification of declarations he expressly reserved in the declaration would he

application, not of the Statute, but rather of forma1 rules dcrived from the law
of treaties. As has been demonstrated suora. at oaraeranhs 338 el seo.. however.
declarations under the Optional Clause a;e nit t;eatiG; îhe reservatiok; attaching
to declarations are not handled in a manner in any way analogous to that
aoolicable to treaties: and the modifiabilitv of declaÏations. confiÏmed bv this
&urt in the Riglrt o/Passoge case, cannot be assimilated to treaty law ruies on
amendment or modification. The Right ojPus~age case assumes the existence of
a legal undertaking sui generis, resistant to mechanical application of concepts

derived from the law of treaties. Here, the line drawn hy such an application
would be artificial and formalistic. Since in substance the position of the United
States does not dilfer from that of Portugal in the Righr oJ'Pavsagecase, reliance
on treaty law concepts is inapposite'

(b) IIieouldbe inequirable ru irear Srores unequally wiih re.ypecttu rhe righi of
mod$caiion byjailing rn inierpret older ~leclarorions.like rhar ojtlre United

Stores, in lighr ofrhejrrndamenral changes in the optional clause sysiem thor
have beenbrought ahour hy Statepraclice

399. The United States has demonstrated that no distinction between the rieht
to reserve the power of modification sanctioned in the~ight n/~assoge case Ad
a similar, but unexpressed, right of modification is required by law, logic,
ooeration of the Ontional Clause svstem or oractical results. The conceut ol an
~nhereniright ofni~,d~fi'atii>rtrJri be ~~~,immodateJ~lisily~vtthlnthc fr:imcuork
;irticul<iieJ hy thlitarc. Thc Co~rt hdr )CI to impoh~. sny Iimitb oii thr. poucrs
of reservation lo and modification of declarations, other than that such actions
bc consistent with the Statute. The United States believes that the Court should

record regarding ifs status beforc the Court; iust as this recordwauld have uermiited
>is;ir;igu;.;i.re\pon.icniin 3 CJIC IIJIJ ni)(choo$cto ificl)u<i~~~10r:J.cn)ti3C;ipiani~.
,,i'ihc Co~rt's;ompuI~r) jun\d~ci~on~lihout 1c.t~ <)ir:li-~~nir.~d~~i~ <niN!;AC.L~L~
mwhi hs\. : CIICon ;iuihoni,csfinclinrihdi ttha, ;in~nhcri,~uridhi~iTi~nnin.iil.,ns-îin
Liihout &v statement bv Nicaranuaihthe record IO contradicc sucha wsition.
and the reasons which induced thir Court in thoment caseoconcerning Rerervoiionrru rhes
Convention on rhe Preventionond Punishmento/ihe Crime O/ Genocide.Adi,&oryOpinion,
1.C.J Reports 1951, p. 15,to findan inhcrent"ght ta attach rescrvaiionsIo certainmul-
tilateraltreatics.Thisdecision,whichconfirmedthecvolution of trcaiylawwithrespectIo
rricn.tiion~. \purri.Jihr Js\ildpm~.ni ailthe ruler nou. .ici lorthin thr Vir.nn;iCun-
vcnt8~11 i. ,\riizlri 1PI ieg Whilr. a, Ji.c.i,rc.J wpru;ai pdrJ> 341 r> wy . ihrrun5cn-
ru:ilconicxi for ihr owrdiiiin iiftrîatv rr\:n:ttioor ilearli diiiinrui<htredtv Pau lrum
uracticeunderthe ~~iionalClause,th; rcasonsgivenin thédecisiZn(seeibid ..PD2.2 and
il,and \n rhc uorir or kc) )iuhlii~~i~.iplaininpthis çvoluiion mirror man) of the
ii,n%iJir;itiunsuhichappf;tr io ha\c nioiiidrcJ ihc Gi~rt', :on6rniati~noisrnrc pr3irlr.c
uiih re,nsr r<idi.cl.trsiii,cis~i~derthc Ooiion.ilCl.iu.e.ci.-.c. O'<.~innil.,. :il. xi
pp. 232 ind 236; and Elias,op. <:il..pp29-35.120 MILITARY AND PAIUMILITARA YCTlVlTlES

no1 begin to do so here. Quite apart from ils impact on States which have

previously invoked an inherent right to modify, it would not seem possible to
articulate a decision rejecting such a right in terms that did not cal1 for
reconsideration of the analvsis of the Riehr of Pussuee case. The flexibilitv
inherent in the Optional clause system is no<dist&ted in iny way by confirmation
of an inherent right of modification; rdther, this should enhance prospects of
~ ~
promoting new declarations, maintaining current acceptances, and avoiding
encouragement of excessive express reservations.
400. The bounds of a practice with respect 10 reservations that is already
premised, no1 on the Statute, but on an inherent right of declarants, should not
be drawn on an artificial basis or a literalism that the svstem does not reauire.

To "em rPson" declarants, to borrow a phrase from thé League's former &al
Adviser , by strict and literal application of the express lems of declarations,
when these have evolved in such~in unregulated and spontaneous fashion, would
place those declarants with older documents, drafted prior to the fundameutal
changes in practices of termination and modification that have occurred, in an

unequal and prejudicial position in relation to other, later declarants2. Such a
lack of eaualitv. mutualitv and reciorocitv cannot be sustained under the Statute.
401. hile ihe issue p;eviously Las nit been expressly decided by the Court,
the rationale for upholding an inherent right of modification has already heen

' See commcnts of Emile Giraud in 1957 Annuairede I'lnsiirurde droit infernafional,
Vol.1,al pp. 281-282:
"Si un Etat est librede s'engagerou de ne pas s'engager, ildoit logiqucmcntpouvoir
se dégagcr.Autrement lesconventions seraient des canvcntions prisons et ce caractère
serait fait pour enleveaux Etats ledfsir d'y devenirparties. En fait. il ne peuy avoir
raisonnablement d'engagcmcntéternel.et I'cngagementfait sans indicationconicrnant
la durécct la dénonciationcrt en réalitéle plur précaire de tous..."

Edvard Hambro, like Giraud, was a member ofthc Institute Commissionwhich examincd
the compulsoryjurisdiction of the Court. In this conneetion, he wrote that -
"En principc il vaudrait la peinede lutter contre Icsréserves les plusextravagantes.
Mais je doute s'il serait sage de déclarer que des réservcs de grande portée sont
illégales.Cela pourrait décourageruneacceptation plur large.Je regrette ces réserves,
maisje nc suis passûr quc la Cour serait plus forte sans déclarationsmCmeassorties
de réscrves."(Ibid, at p. 298.)

Thr. ri)p,~~,rdr4Jin,\lair.d ih.ii ihe que,iion of niodifi:~tiun\ tsnd miidilir.iiilon>illwtid
h) iirrntn.itlon an.1\ubrcqiir.niiiling a ncu dicl;ir~t~~,n)d hmn clo%sl)riamin:<l, .~nd
nh~lciht c\n,ind~n<or:i.w~.~ df rc~:n~i~on~ N.I\rcc~ciicd.ihe C.>rnn,~,\~.>nn~>t.~hlc$l~d
no1deem il bseful Ïo'deal with rmammcndations onthe mattcr in ils resolution .ib.d.al
pp. 206-207).
Nicaragua arguer that certain legislaiivehirtory regarding the inclusion of the proviso
for sixmonths' notice of termination in the 1946deelaration should also apply to the right
of modification invoked in this case (Mernorial. oaras. 125 and 126). This areument
ovcrlooks the fact that the feature of modification' as op~ased to ierminatio; - as
no,,r,nir:!i;hsd Ir! pwiliii ~ndcr ihi Opiional Cldu\r. w.i; c\.r.piisnal .il ihc iinitllr.
Uniid Si.iii<J~vI~r.ii~on u.i.irndr Ihe Uii~ir.cSi i;iir.\ Senait diii nrit cunsi;ilih.11
iimc. ihr uur.,iiun uirnoditiiaiion ai311.bdi r~iher onl, ihe ooritbil~tvui a iuial rmiurr
of the ac&ptance by the Unitcd States of the Optional elauré.The ~(caranuan areiment
uould have thlr C;un urcrlduk ihe iund~mrnial rhing;~ lnwhiequcnïSi:itr praitiie
regardin,! rn%,Jifi:~ii<nnd icrminiiiiin di dmlaritt.rni io :iltcr ihr icrnis of accsptanci.,
and 1%)nrir.lu<l:~Jiuili;;iiioIi u.,ulil h;i\e ihc Court nrcrLnis bJ i:ttih lnthi. r:li.~nic
by the ~nited taies on Article 33 of the Charter reeardinr its orefcrcncc and that of
?iicdragu.*'snc ghbourr (:iiiJ indecd ui ihr Pcunt) CÜuniil.%y \i;lur <>i iiiinJ.inerneni
of ihc C'ontadorl proce,r). tu Lre .iltirn~itr: rnciin, 01p~ctlicJi\puir. .ietilrmrniin iht;
case. niean, Io whlch Sii;irdgu;i i, ilella pari). Whiii ihr Irgi<lsiivchirtory of ihc 1946 furnished by the decisions of the Court, State practice, and recognition by the
commentatorsof the necessarv adaptability of the Optional Clause svstem. The
Court should thus confirrn th& the inclusion in a deciaralion of an eXoress rieht

ofmodification =long the lines of that sanctioned in the Ri& of PU.T.T;~~ case iç
ex uhundante cuutela, and not in itself the determinant of the existence or scope
of the inherent right of modification consistent with the Statute.

~ ~tio~ I~. Even il Construe~~~-~a lèrm~n~tion of t~e ~946Declaration. the
6 ,\pril .\ludilirliliun "1 the United Slatn I>eclardtion ~ITwtisrl) ~uspcndtvi; belurc
Scisin. Sicdrdaud's Claims lrum the Scupr 01 the United States Conwnl IO

402. The United States explained in Section II, sitpru, that its 6 April note

effected a modification. not a termination, of its 1946 declaration. Neverthe-

declaration suggerts in both that the case now bcfore the Court would no1then have been
deemcd ;idrnissible, and that, in any cvcnt. nothing in the acceplance war dcemed to
precludc usc of appropriaic alternative mcchanisrns. In including the proviso of the
declaration cxcluding "disputes the solution of which the partics shall entrust to ather

tribunils by virtue of agrecmcnts already in existence or which may be concludcd in the
futurc". the Senatc virtually incorporated Article 95 of the Chaner. See Scnate Rcport
No. 1835,"lntcrnational Court of Justice". op. cil.,al p. 5 ("The rame provision is found
in the Charter of the United Nations, Article 95"); and Wilcox. "The UnIrcd Srates
Accepts Campulsory Jurisdiction", 40 American Journul of Iniernefional Low. p. 699, al
p. 709 (1946). This proviso, howcvcr, w;is givcn a very broüd iiiterprelation by Senatar
Morse, thc drafter of the Senate resolution to confer advicc and canscnt to thc deposit of
the declaralion:

"ln othcr wordr, if we should accept. tomorrow, the compulsory jutisdiction of the
World Court. it would na1 revoke or rc~cal or endanaer in anv dearee whatsoever
any existing agrccmcnt that wc have wiih any other rkiion asto the settlement of
J#$JIL,I bciw&n Lr and rhar n.itl.i,i h) ~rhiir~iion r.rh! ~n, i,rh,.r p<.,a.tfpr<ii-.-
d,,rc, <t~:/c!,~~2~~0~~1! ,,~~~1nk!i<ui.,,t~ ''ttIi.ilt:,;idJcJj. ~.~.t,1,,z,I5~.r!J<!rz$./tt,J,
Ini~,rii,~~i,rpul (;.,<r1 i.1 ,,<Ilc.iriii:r Ilciar.< F.il~omniiticc 01 ihs C<>mmiit..r in
Foreign Relations, 0;. cil..p.36.)

John Foster Dulles rubmirled a memomndum Io the Cornmirlm in which hc noted in
iri!inrvtiun uilh ihe praviio th.ii"il msy hr th.11dl,puir> h.1.iu.w rncmkrr ul the Pln
,\rniri=an Uni<,n Inou. thc O,\S[ coulil prcfcr.ibl! bc ,uhjizicJ io hcmi.phirir pro;rduri>"
t~hd, p 451 Ch:irlc\ Chqncy 1Iyd~'swr~ttcn>c.bm>won<I.IICCI

"11may be thought wisc that amprtince of the optional clause should no1serve to
prejudice the right of the partics to hnvc iimcly rccoursc to other methods for the
pcaccful sciilcmcnt <ifinicrnational disputcs . .. Inarmuch as artide 36 of the statute
mur1 be interprcted in harmony with thc Chaner, it is suggcrted that provisions for
acccptancc of the optional clause arc no1 to be deemed to forbid the cxercise of the
right of the parties ta have iimcly recoursc to other methods of the peacefulsettlement

of international disputes, and that, siccordingly,tcms of acccptance in bchalf of the
Unitcd States need iiol go into the mattcr." (Ihid., p. 121.)
This legislative history suggcsts that whilc thc ramifications of acccptance of compulsory
jurisdiction were no1 closely enamined ililems of the rcquircmcnts of practical dispute
managcmcnt consistent with Article 33 ctf thc Chaner. thc proviso regarding other solu-
tions was inicnded by kcy cornmentalon 10 have a broadcr scope than thc prmrc tcrms

employcd. The availability of rccourse to non-adjudicatory dispute settlement means,
including "hemisphcric proccdurcs", was nut only underriood by these commentatorr no!
to be prccluded, but war vicwcd as implicit in the inter-rclütionrhip of the tcrms of the
Charter and the anncxcd Siatuic of thc Court. Thus, the position of the Unitcd States in
this casc that other mcans of resolving the currcnt diflicultics in Central Amcrica are
preferable Io adjudication is quite consisicnt with the flcxibilitywhich the Scnatc appears
to have assumed in approving the declar:ition deposited in 1946.122 MII.ITARYAND PARAMILITARY ACT1VITIIiS

less, Nicaragua has attempted to characterize the note in the alternative as a
termination of the 1946 declaration and the substitution of a new declaration

therefor. Nicaragua has founded on that premise many of ils contentions that
the note was invalid (Memorial, paras. 137 el seq.).
403. Nicaragua's intention in thus characterizing the 6 April note is plain. A
proviso of the United States 26 August 1946declaration provides as follows:
"[Tlhis declaration shall remain in force for a period of five years and

thereafter until the expiration of six months after notice may be given to
terminate this declaration." (I.C.J. Yearbook1982-1983, p. 89.)
By characterizing the 6 Apnl note as a "termination", Nicaragua hopes to make
the six-month notice proviso applicable to the note and thereby render it efective
only on 6 October 1984,that is, after the Application was filed.

404. The short answer to Nicaragua's arguments is that the 6 April note on
its Facewas not a "termination", and thc six-month notice proviso was, accor-
dingly, inapplicable.
405. Even assuming. arguendo, that (1) the six-month notice proviso is ap-
~licable to the 6 Avril note and (2. .hat the note was not valid erra omnes. the
noir ts ncvr.rthclor ciTcciii,e\,i\-i-i,is Nicaragu:As the Uniicd States uill ihou,.
Nicarsgua'r ou,n Jeclaraiion. if IIc\.cr cnterrd iiito force. is tcrmindble wiih
immcdidic eiTectl Ni.xr~iiu:i's arKumeni nece\aaril? ininlie\ that tlic United
States was unilaterallv bound bv i< own declaration-not io efect a termination
or modifi~~ti~~e iixcepi upon \lx-nionihs' noiix, iihile Niidrdgud na, frcc Ji.ring
ihose same \lx months to tcrmin.itc or m<,dify 11% decl.ir.ition at uill. S~ch a

situation is intrinsically inequitable and contrary to the Statute's tenets of re-
ciprocal and equal treatment.

A. Nicaragua'sDeclarafion,Wereir Efecrive, WouldBe ImmediatelyTerminuble

1. Nicaragua'sdeclararionisindeJinileindurarion, no1 unlimifed

406. Nicaragua's 1929declaration purports to "recognize as compulsory uncon-
dirionallythejurisdiction of the Permanent Court of International Justice" (1.CJ.
Yelirhook1982-1983, p. 79 (italics added)). The term "unconditionally" (French,

"purement et simplement") must be construed as a direct reference to the wording
in Article 36 of the Permanent Court's Statute (now Art. 36 (3)) permitting a
State to accept the jurisdiction "unconditionally or on condition of reciprocity
on the part of scveral or certain States . . .". To accept jurisdiction "uncon-
ditionally" meant only to accept it with immediate efïect, that is, not "on
condition of reciprocity on the part of several or certain States". The phrase kas
no other recognized meaning'.
407. Nicaragua's declaration, therefore, is simply silent on duration. It is "in-
definite" in duration, not unlimited.

'This subsectionassumcs,salely for the purpose of argument. that Nicaragua'sdec-
laration is infarce.Noihing the United Statcsarguesin the followingdiscussionshauld
bc read as indicatinga contrary position to its argunieni in PartI that Nicaragua's
dcclarationir inektivc and that Nicaraguahas nevcracceptedthe compulsoryjurisdiction
of thisCourt.
litcraturc,and thepublicistsarevirtuallyunanimousintheaboveconstruction.(SeeBriggs,
op. cil.pp.240-242;Waldack, op. cil.p. 255; Shihataop. cil.pp. 149.150;Hudson, op.
cil..p.465; J.F. Williams."The OptionalClause", II Bri1i.h YeurBook of Inrern«rional
Law, pp.63-84(1930);and Anand, op.cil.pp. 159-lm.) COUNTEK-MEMORIAI. 123

2. Olderdeclarutions of inilEfniireduration,like rhaiof Nicurugua,ore immediately
rerminable
408. As the United States has shown, declarations under the Optional Clause

are no1 treaties. Because of their unilateral nature, thcy are inherently more
readily suhject to unilateral termination or modification than a negotiated bi-
lateral treaty binding hoth parties ob initio.
409. Paraguay's denunciation of its declaration in 1938,the limiied objections
at the lime, and the lack of any objection when Paraguay was dropped from the
1959-1960 Yeurhook. discussed supra at paragraphs 369 and 373, constitute the
clearest demonstration that older declarations like that of Nicaragua are in-
herently terminable and thus modifiable with immediate eKect'. The tenor of
Nicaragua's argument with respect to unilateral termination of treaties (Mem-
orial, para. 143) is both inconsistent with Article 56 of the Vienna Conven-
tion and the rationale hehind it (see Elias, op. cil.pp. 105-l07), and, more im-
portantly, inapposite to the Optional Clause system and its now uncontested
practice of immediate denunciation and modification. Since, from the nature of

the obligation as analysed in the Notiebohm and Righr of Passage cases, vari-
ability and terminability of declarations are accepted until the date the Court is
seized with a case. the conclusion would seem ineluctable that these older
Jrclarat~ons. II icrniin.ihlc or rnoJili~hsi :III.niurt bcso ;IIu,ill.cqu;illy with
the m:iji>rii).oiJç~laraiioiis thal prc>cntl) ciprc\<l) rcseri,cr sdcli righir.
?IO. An inhercnt rirht 01'tcriiiinaiioii or suc11c11J1.Jrc~~ldr.iis ninlirnlcd
hy Shihata (op. cir.p. 167), Rosenne (Luiv and Pracriceof rhe Court, Vol.1,
pp. 417 and 472), Giraud (loc. ciland 1959 Annuairede i'lnsrirutdedroit inter-
national, Vol.Il, p. 126), and Charpentier (op. cil.,p. 344). In the Fisheries
Jurisdicrion(Uniied Kingdomv. Iceland), Jurisdicti«nof the C«urt. Judgrnent
(ICJ Reports1973, p. 3), the Court was at pains to state that its decision with
respect to the compromissory clausein that case did not imply any position on
the opinion of authonlies that -

"declarations of acceptance of the compulsory jurisdiction of the Court . . .
may be suhject to unilateral denunciation in the absenceof expressprovisions
regarding their duration or termination" (ibid, at pp. 15-16),

These judgments are doubtless inîiucnced by the age of the instruments in
question, the subsequent practiceof the Court, and the "unreality'" ofassuming
a perpetual and unilterable obligation of such a character3. As argued above, 2124 MILITARYAND YARAMII.ITARY ACTIVITIES

ir tlillicult to ascribc a mutually hinding obligation I~Ithe rclationship bciuccn.
on the i>iichand. a Sttiie th;ii has ac~cptcd thc Opt~onnl Clauw in rcccnt )cars
with iull knou~led~c i>lthe mnner in which this Court and SI~ICS hait COII)IIUL.~
il, and, on the other, a State like Nicaragua that, even by Nicaragua's own hypo-

thesis, has not examined, applied or clarified the terms of ils "unconditional"
declaration in 55 years.

B. Nicaragiranever Accepied "lheSame Obligurion"as the UniredSrares Si.r-

Monrh Norice Proviso und May noi. rherefore. Oppose r~~i Proviso as againsi rhe
UniredSrares

411. Nicaragua has ncver accepted and cannot be deemed Io be hound by a
requiremsnt of six-months' notice, and thus has no legal right to invoke the six-
month notice proviso and oppose it againsl the United States in the instant case.
412. Article 36 (2) of the Statute of the Court binds a declarant State only

"in relation to any other State accepting the same ohligation". The United States
declaration itself reiterates that the United States only intended to bind itself
with respect Io other States "accepting the same obligation"'.
413. The proviso in the 1946declaration stating that the United States would
terminate the declaration only upon six months' notice was an "obligation",
indeed, an obligation of substantial practical significance co-cqual in form and
status to the other expressed conditions or provisos in that declaration2. The

six-mont11notice proviso is certainly consistent with the object and purpose of
Article 36 (2) of the Statute. A numher of other States have accepted the same
or a similar obligation3. ln so far as the six-month notice proviso is binding in
any respect, and even assuming that it was not modifiable by the note of 6 April,
it is, by the terms of Article 36 (2) and the declaration itself, binding only vis-à-
vis those States that had acceptcd "the same obligation" as thc United States.

414. The nature of reservations under the Optional Clause requires this result.

"Takcn as a whole,State practiceunder the optional clausc. and especiallythc
modcrn trcnd lowards Dcclarationstenninablc upon notice.sccmonly Io reinforcc
theclcarconclusion 10 be drawn (rom treatiesof arbiiration,conciliationand judicial
settlcment.ihat these trcaties are rcgardedas esscntiallyof a tenninablecharactcr.
Regrettablethaugh this conclusionmaybe,it sccmsthat this typeof trcaty ought,in
principlc, to be included in [the paragraph pertaining to treatics terminablc by
nature]." (Ihid)
,\fier ihoroughlyeramti>,iigthe irruc hdh Ihrorcttc~lly and in Iighlaf Sidtr pr.i;t,;iSir
Iluniphri,) th,, ri\erir.dthi, cunclu\ion hi hdil re.xched in hi, 1,155srlicle. .,iiuhi;h
S~c~r.~pu~ h::~t!l>rel~c,!hx;~r~g.,.in\lcmc>,~:~ p~~r,tbl Illl?~),132 .inJ,ln ~J~IIL.UIXC,
137 dnJ I-121
' SeeWilcox, op. cil.at 709:
"II iulluur ih;iuhin ihc Uiiiic<S Iiai:, JcpurlirJII>Je;lnr.~ttunuiih theSr~rei.ir)-
Ciinertiuz brume huundonlyuith rzspvi tu (ho* otherSi.<\.>uhich hare <Lçyoritç\l
or vhich ma!. itcpo%i inlhc fulurc \ini~l;dicl.iraiions"

Wilc<> ni, Ilad 1nicrn:iitonalKcl:itionrAml)\i 01'ihi I.ihrin ol C<ingrï\\ .il~hc iini~.
N%tic ih: \irJctur< .,fili:fin.tp.ir.>$raph\sf th< IJtb Jc.l~r~tii>n.uhich ,ci l'.>rth
thr~t~~c,nit~i~ ~o'~'r,~~~~lih.,1ih~,d:.'Iac.!l~orh.!Ilna1.!ml\, ia "1.~h~cl! IL,I?J
in subparagraphslcttered (0)-(c). and then immediatclyrkiioihc duralion and termina-
lionelemcnts inidcnticalconditionaltcnns ("Providcd furrhe .. .")
Sec thc declarationsof Dcnmark (ICJ Y~orhook 1982-1983, ai p. 62); Finland.ai
pp. 65-66: Luxembourg, a1 p.73; Mexico,al pp.76-77; the Netherlands.ai p. 77: New
Zealand, ai p.78; Nonvay, al p 80: and,Swedcn.al p. 85: two declarations,thosc of
Switzcrland,al pp.85-86, and L~cchtcnsteina,t pp. 72-73.are terminablc on one ycar'sAs noted above, when States file a declaration, they do not accept or object to
reservations in existing declarations; indeed. there appears to have been but a
single instance of an objection to a reservation in a subscquently fileddeclaration
(see para. 374, second notc, supra). The mutual effect of such reservations is
determined onlv aftcr a case is instituted. The normal effect of reservations be-
tween Iwo declarant States before the Court is to narrow their mutual obliga-
tions tothose that are congruent; that isto say, reservations of eachState are given
effectdcs~ite the tv~içallack of anv ri oacccotance or obiection to the rcserva-

415. Nicaragua may terminate or modify ils declaration on notice. Nicaragua
is thereforeunder no obligation cquivalent to that of the United States suçh that
it could be arnued that oirallel. conouent declarations created a mutual. or the
lisamerr obligation. By undertaking nu obligation in this regard, Nicaragua has

failed ta bring the United States notice provision into elfcçt bilaterally and may
not now invoke that provision to invalidate the 6 April note

C. TlzePrinciplesof Recipruciry.MurualityrrndEqualityof Statesbeforerhe
Court Permit the United Statesto ErercisetheRighr of Terminariunivitktlre
ImnfediureEficr ltnplicirin theNicaraguanRight of Terminurion,Regardless of

rheSix-Month NoticeProvisointhe UniredStaresDeclaralion
416. Nicaragua's failure to accept the "same obligation" with respect 10 ter-
mination as did the United States may also bc viewed from the perspective of

the rights of the United States. It is axiomatic that each declarant Statc under
the Optional Claiise is entitled, in accordance with the principle of reciprocity,
to invoke the rights, conditions and limitations enjoyed by another declarant
Statc against that latter State. Hcrc, since Nicaragua's declaration must be
deemed to reserve implicitly the right of immediate termination, the United
States is cntitled to exercise such a right vis-i-vis Nicaragua, regardless of the
right of the United States in this regarderya omnes.
417. The reasons for this were well stated by Sir Humphrey Waldock:

"Reciprocity would seemto demand that in any given pair of States each
should have the same right as the other to terminate the juridical bond
existing betwccn them under the Optional Clause . . The inequality in the
positions of the two States under the Optional Clause, if the principle of
reciprocity is not applied to lime-limits, becomes absolutely inadmissible
when State A's declaration is without lime-limit while that of State B is
immediately terminable on notice to the Secretary-General. It would be
intolerable tha! State B should always be able, merely by giving notice, to
terminate at aiiy moment its liability to compulsory jurisdiction vis-à-vis
State A, whilst the latter remained perpetually hound to submit to the

Court's jurisdiction at the suit of Stote B. The Court has not yet had
occasion to examine this aspect of the operation of reciprocity in relation
to time-limits.In the liehr. hoirever. ofils inreroreiaiionof the condirionof
reciprocityin regard to;eservutions,the Court.;t is helievédm , usilrold thai
undertheOprionalClauseraclrState, w,ithrespectIo unyotherState. Irasthe
sanzeright riterminoreirsucceprance of compulsorjyurisdrciionasispossessed
by thar orherSrare." (Op. cit.,pp. 278-279 (italics added).)

Sir Humphrey continued his analysis by reference to a hypothetical case directly
analogous to the present circumst;inces:
"The point çan, perhaps, beillustratcd by considering the declardtions of126 MILITARYAND PARAMILITARYACTlVlTlES

Norway, Sweden and the United Kingdom in the year 1950, when the
United Kingdom filedils Application in the Anglo-NorwegianFisheries case.
At that date, the United Kingdom's declaration was terminable on notice
to the Secretary-General, while those of both Norway and Sweden had fixed
time-limits expiring in 1956.Assuming the application of reciprocity to time-
limits, Norway would then have been entitled to givenotice to the Secretas..
General of the termination of her declaration with respect to the United
Kingdom in virtue of the right of termination contained in the latter's
declaration. If she had done so hefore the filing of the United Kingdom's
Application in the case, she would have defeated the Application. On the
orherhund,the terminali<,nof her declararionvis-a-visrhe United Kingdom

ivouldhave le/r her declararionin Jiu11 /orce vis-à-visSir,eden. A question
might be raised as to whether Norway's termination of her declaration
would operate only with respect to the United Kingdom or also with respect
to al1other States which had reserved a right to termination upon notice to
the Secretary-General. It seemsclear, however,that if Norway had purported
to terminate her obligation under the Optional Clause only with reference
to the United Kingdom and on the basis of a right derived reciprocally from
the United Kingdom's declaration, Norway's declaration would remain in
full force with resoect to other States. The relations established between ~~
Siatcr uiidsr ihr Oiiiiin~l Clsu,c. ;i,ha, bwn cniph~si~cd.dreol'li hilaterdl

rather ihan muliilaicral ch;iracicr. ,\ noiifiiliti<~nto ihc Seçrïiars-Gencral
intended to alter State A's obligations with respect only to tat te- Bas no
elïect therefore on State A's obligations under the Optional Clause with
respect to other States. To allow a State, on the ground of reciprocity in
regard to time-limits, the right to terminate its obligations under the Optional
Clause with reference only to a particular State or States may add to the
complexity of the Optional Clause system. To refuse it such a right would,
however, be to establish a gross inequality between States in regard to the
termination of their obligations under the Optional Clause." (Ibid.(italics
in original).)

It is the hypothetical case stated in the sentence preceding that which Sir
Humphrey chose to italicize, and not the totally inapposite example proferred
by Nicaragua at paragraph 149 of its Memorial, that covers precisely the case
at hand.
418. While the Court has dealt in prior cases with both temporal and sub-

stantive limitations, the issue of fundamental fairness raised by Sir Humphrey,
and presented by this case, isone of first impression hefore the Court. Nicaragua,
in its Memorial (paras. 145-148), principally relies on this Court's decision in
the Righr O/ Passage case to attempt to distinguish the application of the princi-
ple of reciprocity to time-limits on duration and termination. This cmphasis is
misplaced. There is no basis in the prior decisions of the Court applying the
principle of reciprocity to temporal and substantive conditions for concluding
that the principle applies any the less to such a time-limit which, as has been
discussed supra, was a material condition of the United States declaration
CO-equalto other qualifications.

419. In the Righr of Passage case, lndia argued that it should have been
entitled to exercise vis-à-vis Portugal that State's reserved right to modify ils
declaration on notice to exclude particular categories of disputes'. The Court

' See,in particular,the argumentof theAttorney-Genera lf India,ICJ. Pleadings,op.
cil.Vol.IV,pp.209-210.ruled that since, as of the date of the seisin of the Coun, lndia had not exercised
such a right, it was not entitled to do so subsequently. This was no more than
an affirmation of the rule in Nattehohmthat the seisin of the Court may not he
affccted by subsequent acts. The Court simply did not address whether a
modification by lndia beforethe date of filing of the Application would have
heen effective hecause of the reciprocal effect of Portugal's reservation'.'.

420. Sir Humphrey's logic applies directly to the situation now hefore the
Court. It would be a "gross inequality between States'' to bind the United States
to a six-month notice provision when Nicaragua was not similarly bound'. Fun-
damental principles of reciprocity, mutuality and cquality of States before the
Court require that the United States note of 6 April bc recognized as immedi-
ately effective vis-à-vis Nicaragua.

Section V. The United States 6 April 1984 Note 1s Eiïective under lntcrnational

Law and 1sValid under United States Law

421. Nicaragua asserts that the United States 6 April 1984 note is invalid
under United States law and ineffective in international law (Memorial, paras.
150-162). These assertions are both irrelevant and unsupportable.

'The position of lndia inThe Righro/Pa.~sage case is distinguishablein two important
respects.The attcmpted reliance on the Portuguese condition was not truc rcciprocity; the
Portuguese condition merely reserved the right to add further substantive or temporal
qualifications, which would have required on Portugal's pan the second stepof notifying
the Secrctary-Gcneral of such a new rcscrvation. There was the patential of a concrete
future action ta narrow acccptance; the third condition was no1 itself a substantive or
tcmporal proviso ta which recipr~ity could mcaningfullyattach. More im ortdntly, lndia
had not takcn any step. priar ta the scisin of the Court. in the natuO?& modification
relevant to thc case ("or had Portugal)In this case, the UnitedStates has made a timely,
substantive qualification: thc issue is what elTectivedate to apply to ilinlight of the
pri?ciples of reeiprn'ity and cquality under ihe Statute. Thc facts of this case. as
distinguished from those prescnted by theRighr of Possogecasc. corne squarely within Sir
tlumphrcy's cxample involvingNorway cited in para. 417,supra.Nicaragua's argumentin
para. 148of ils Mernorial is oblivious to thcsc factual distinctions, and sccms ta cantend
that the United States might have a reciprocal rightof immcdiatetermination solclyin the
event thatNieoropu had so terminated her own declaralion (assuming, orguendo, il to be
effective)before Rlingthe Application. The lack of merit of this argument is patent; were
a State to terminale an effectivedeclaralion immedialelyb&e filingils Application, the
Coun would surely lack compulsory jurisdiction ovcr that Stalc, and the Application
would simply be dismissed. Nicaragua'senample does no1advance analysis of the holding
of the Court in the Righi of Paxsage casc, and does not address what clcmcnts of the
Statute or the practice of this Court require the resultthat rclianccby the respondent State
on the principleof reciprocitywith respectto the timeelementof the applicant'stermination
rightbe preeluded, where. as here, there was a timcly excrciscof the respondent's right
before the Application war filed. and the time elemcnt was a material condition of
the respondent Statc's acceptance.
' Maus, op. cil.,p. 101, n.18, appears not to appreciate the important distinctions
between the issue presscd by Sir Humphrey and tho facts al the Righiof Passagecasc;
however, he concludes that the question posed by Sir Humphrey noncthcless remains
unrcsolved by that case(ibid.p. 102).
' Also see Maus, op. cil.at p. 101:

"Nous avons vu plus haut que certains Etats avaient acceptéla juridiction de la
Cour internatianalc pour un délai indéterminé O.n peut se demander si, vis-à-vis des
Etats ayant bit une telledéclaration,les outres Etats pcuvcnt se prévaloir du principe
de la réciprocité pourabrogcr leur acceptation seulementà leur égard.
cette interprétation rétabliraitun certain équilibreentre les dinërents Etats ayantais
accepté lajuridiction obligatoire."reason to look behind the 6 April note and no credible basis Io question its
effectiveness under international law'.

B. Tl~e 6 AprilNote Wos Validunder United Slafes L<lw

1. The United Baies decluruiion is no1 o "treuty" for purposes of United Stores

com~i~utionalprocesses

427. Contrary to Nicaragua's allegations, the 1946 declaration was no1 re-
garded as a treaty at the time that it was being considered. Francis 0. Wilcox,
Head International Relations Analyst of the Library of Congress, noted shortly

after the Senate approved the declaration :

"Clearly such a declaration, deposited by the head of a state, caniiot be
considered a treaty in the strict sense of that term. It is rather, as the
Permanent Court pointed out in the Phosphatescase, a unilateral act." (Op.
cit., at p. 705.)

428. In 1946. when the form that the ~ ~ ~d States declaration should take
u13\ heing ioniidzred, il w;is rcc~fni'eJ chat <:~ii&re~siiin.<lp;irii~~ipliiii~nriar

requircd2. hui thüt II r<>uldtakc ilny iifse\craI ïorm, and ,tiIIbc clTect~\c'

2 The PresiJrnl mu), narra», or tern~inate United States ohligafions under ifs declo-

ration uccepting compulsory jurisificfion

429. It is recognized that the President could act alone to terminate the United
States declarafion. In 1960, Secretary of State Herter made this point clear during
Senate hearings :

' Nicaragua's invocationof Articlc46 of the VicnnaConvention on the Law of Treatics
i\lrmon~l.~~r~ 1531ir itiijplnïc.i. II \land<thai ,\rticle un 11;lir.;iil.the (:niid Suirr is

;onfimlng ihr.ialidii) uf thi.6 April :iciten. no1challcnglngil (lilan) e\cni. dh.ldr~tii~ri~
Are no1 irr.:i~is,Parab 338 rt .szu dk~ru i SIC.!~JEUL kd. no ka>!\ under 1h:ti,\ri~clc 10
assert a lack of authoritv on the ;art of the ~ccreiiry of Statc.
unJ~r long.,i~t~l,n~l.'n~~~~J~Sip ~r~d!.rc, !hi I:\L,:LIVLm, h) :L:Ihlonc ta commli
thr. Lnii~.J Sidtir icibc bmnd hy ihe ri.uli ol prù<c,,cr of inizrndt~i~nlliirhltrdiiuiidr
-.,..dir.iiion r~ ~ ~~ ~ ~ ~~ ~.uill no1 rriult tnan inlr.rnalmn~l oxiint.in. 1ernti~n.il.or
other obligation on the part of thc GKited ~mtes, requin&. inder thé'United ~tatcs
Constitution. Congressionalaction (sce Mernorandum of Crecn II. Hackworth. then Legdl
,\d\l\cr IO thc I>C~J~IIIICo IIfISisie. ln\\'hilimao. ,up <.i, \'JI 12.pp 1267.l269i. Thur.
I\,rcv~i~ipl~ihe. I:r:cuii\: hs hr.i~J p<iircr\irrcttl~~a.rhiir;iiir.~dj~dt;iltc~I~lm3 ~d:1111S1
A i<>rr.cnvo\crnnient il)ii»ii,~n<l 1ft.orev Rcrun. .4!3 C'S 6% tIORI II Smie aiccni.iiicc
of theCiurt's comp;lsory jurisdiction would eipose the United siiles Io a range of
potcniial liabiliiics. rhere warno question in 1946thai Congressional approval in somc
fom was necessary

"While na onecould doubt thc authority of the United Statcs Government 10make
such a declarüiion, a legitimatcquestion arosc as to the praper mcthod to be followed
undcr the constituiion in order ro legally bind our Government Io the rems of
Article 36. This uncenainty was reflnted in the variely of procedures sct forth in thc
threc resolutionr [considered]." (Wilcox. op. eir., at pp. 705-706.)
(Sec alsa Under Secrctary of State, Dean Acheson, Compulsory Jurirdirrion. hiemaiional

Courr ofJusrice. Ifearings Eq/ore u Subcommirreco/t/re Corniiles on Forcis" Rrlolionx,
UnircdSrores Senaie. op. cir., p. 134; Lester II. Woolsey,Vicc President of the Amencün
Socictyof International Law,ihid.,al p. 107;and Hackworth mcmoründ"m, in Whitcman,
op. cil.. alp. 1267.)Nicaragua's quomiion aï Mr. Hackwonh (Memonal, para. 153), in
itself underscores that the 1946declaration might have secured Congressionalapproval by
means other than scckingthe advice and consent of the Senatc.130 MILITARY AND PAMMILITARY ACTIVITIFS

ln the vieu oi the Department of State. termination of the US
acceptanic tif the Ct~urt'scumpulsi)ry ~urisilictianwould bc elie:ted b, thc
filing, at the direction of the- ~residënt, of a notice with the secre;ary-
General of the United Nations stating that the United States withdrew and
terminated ils acceptance of the Court's compulsory jurisdiction under
article 36, paragraph 2, of the statute of the Court. This action by the
executivebranch mieht be taken followine a Senate resolution. or a resolution

of both Houses ofihc~~on~ress. on the other hand, the ~residenr could
decide tu file a notice of rerminarion in his own discrerion." (Whiteman, op.
cir.,Vol. i2, p. 12, p. 1318(italics added)'.)
430. For the same reasons that the President may act alone to submit certain

claims to arbitration or adjudication, the President may also act alone to ter-
minate a United States declaration, or to suspend or modify it provided the
effect is not to extend, but rather to limit potential United States exposure to
international liabilities. Nicaraeua,"~enorin" thi~ ~ ~ ~ed nractice with resDectto
the scope of Executive and legislative powers, attempts to demonstrate that
Senate advice and consent mus1be ohtained for anv and al1modifications to the
1946declaration (Memorial. oaras. 151-156).
,
431 The cxim~ics iited hi Nicaragua tu show that Scnatc tipproral ir nece,-
sap are inappusiic In 'iddition IO puiniing IO the Scnate's in\ol\emr.nt in the
1946 declaration 1Memorial. narai. 151-153 i. N~raraeua ~.itcsSenate cun\iJcr-
ation of whether'to submk'to the jurisdiction of ?he Permanent Court of
International Justice (Memorial, para. 154), and consideration of whether to
delete from the 1946 declaration the self-judging clause dealing with domestic
jurisdiction (the "Connally amendment", Memonal, paras. 154-155).Submitting
to the Permanent Court's jurisdiction or deleting the "Connally amendment",

however, like submitting to this Court's compulsory jurisdiction, would have
ex~anded rather than contracted notential United States oblieations.
432. Treaty Iaw an.ilogie\ do n;>trupport Siraragui's posiiian. The PresiJcnt
has the authurity tu act ilonc to ierminatc 3 treaty2 Sic;ir;igua rciçri fur support
10 Srnatc dehater rcaardina the termination of the muiual \r,curity trrats with
Taiwan (Memorial, para. 156). In that case, the President terminaied the-treaty
without the approval of the Senate. Nicaragua fails to note that this action was
upheld by the United States courts against a challenge by certain members of
the Senate in the Goldwvrer v. Curter case3. The United Statcs Court of Appeals

for the District of Columbia Circuit noted the scope of the President's treaty
powers and his authority to exercisethem independently of the legislativehranch :
". .. [Tlhe determination of the conduct of the United States in regard

to treaties is an instance of what has broadly been called the 'foreign alTairs
power' ofthe President . . .[Tlhe President is 'the sole organ of the federal
govemment in the fieldof international relations'.That status is not confined
to the service of the President as a channel of communication . . . but
emhraces an active policy determination as to the conduct of the United
States in regard to a treaty in response to numerous problems and circum-

' Nicaragua.ai oara.155 of ils Memorial.admits thatterminatingthe 1946dcclaration
ira rtepthit "couid perhaps bc takcnby the Presidentactingalone".
American Law Inslitule,Restatcmenl of theLaw, Second. Foreign RelorionsLaw oJ
rhe UniredSruirs. Sec. 163.no. 493-495:and memorandum or Leeal AdviscrHerbert
Hansell,in~igesi'ofUnired~ia'res~racriiein Inrernarionnl aw, 1978,pp. 735K
' 617 F. 2d 697 (D.C. Cir. 1979), rocotedond remded ro theDisrricr Courr with
direciionsto dürnissthecomplovlr ,44 U.S. 996(1979). stances as they arise." (Goldwarer v. Carier, 617 F. 2d 697, at 706-707
(footnotes omitted).)

The President also has the power to suspend the operation of a treaty'.
433. Since the President may act alone to terminate or suspend the operation
of a treaty obligation of the United States2, a forriori he may act to suspend
partially, through the modification çfïected on 6 April, a formal comrnitment,
like the 1946 declaration, that is not a treaty. Nicaragua's contentions to the

contrary, in addition to being irrelevant, constitute a significant distortion of
applicable United States legal authorities.

'American Law Iiisdtuic. Rcslaterneiiof the Law, Second, ForeipnRelorions Law of
riteUOZI+.,.srut,,,,1h tr ,O~LLILU~di \:t,ng ,\IIo~~c)Gcncrd IhdJi~ n~rh r~~pccrIO ihi
Inli~rn:llion~I1.o.iJ I.ine\ Conieniion40 Optnt~!is id Alfi>rnt,>Cic,ner<ilu. 24 !1941 J.
Ilackuorih. I>~ueo<iiIn<ern<iriinuIl~i~tVol \'.on 338-339 119431. and Btui.,~ol 1hi1d
Stores~rocrice" in hrernorionolLaw, 1979.pb.'i46-747. q"oring '~lcxander ~imilton.
LerrersO/ Poclficusand Helvidiuson ihe Proclornolion o/Neurralily o/1793, p. 13.
Coldwoler v.Carrer. 617 F. 2d 697. CHAPTEK 1

THE NICARAGUAN APPLICATION IS INADMISSIBLE BECAUSE
NlCAKAGUA HAS FAILED TO BRlNC IXDISPENSABLE PARTIES
BEFORE THE COURT

Section 1. Adjudication of Nicaragua's ClaimsWouldN~ccssarilylmplicate the
Rights and Obligations of Other States

437. Nicaragua seeks to invoke the jurisdiction of this Court for a detemi-
nation of what it claims to be the international responsihility of the United
States for a varietv of alleeed unlawful activities in and arainst Nicaraeua
(i\ppl~cstion. par3 '14) HO& thc >\ppI\cation and 11s aniic~cd .~hronolc*f;cal
A~uiuni". houcser, on their c~ccimplisaic third Si;itcs. in particulîr Honduras.
in the îlleccd unlxulul ;iiti\,itirr (sec 1'3rt III. Chao II.strnru'1.Thcv du su. in
large partrby alleging that such chird States have permittcd th& terhtory 1; he
used as a staging and launching ground for alleged unlawful uses of Torceagainst
NicaraguaZ. It is well settled that a State that permits its territory to he used for
the commission of internationallv wroneful acts aeainst another State itself
r<,mmit, an intc.rn;itionÿllywrongïul xi for whirh iibcar5 intsrn.itional respon\i-
hilit)' The adjudic;~tion of ths i~llcgcJintcrnaii<~naIresponsibility of the United

~ta&s o.dve. for bv Nicaraaua "n 3s Aoolica..on would necessirilv involve the
iIzt:rminxtion <,l'the;ttte~iJ~~iti~iter~iaiion;~rlc<p<~n.ihiliiy tht~rciliird States.
438. Morc.i>vcr,thc adjudicdtii,n <,INicara~ua's rlainis u.c>ulilncrïinar~l) in-
volve the adiudication of thc rirhts of those ihird States with respect to meas-
ures taken 16 protect themselve; against unlawful uses of force. ln this regard,
the Nicaraguan Application requests, inier alia, a determination that the United
States must "cease and desist immediately" -
"from al1support of any kind - including the provision of training, arms,
ammunition, finances, supplies, assistance, direction or any other form of

support - to any nation . . .engaged or planning to engage in military ar
paramilitdry actions in or against Nicaragua" (para. 26 (g)).
The relief sought by Nicaragua in this respect would require the Court to proceed
without regard to the inherent rights of individual and collective self-defence
guaranteed-to any such other ~taG hy Article 51 of the Charter, including the
right of States to provide reasonahle and proportionate assistance to friendly
States in order to respond to externally-supported and directed subversion. To
the extent that the relief sought by Nicaragua would prevent the United States
from acceding to rçquests from any such other State for assistance in resisting

' The consideraiionsrelcvant 10 the indispensableparly argument herc are similarto
II, rupro,although,as explainedinhthat Chaptcr,the applicablestandardsdilfcr..Chapter
See. for cxample,Application, para. I.and ChronolagiciilAccaunt, paras. 1,2, 5, 7
and 9.
' Corfi Cltonnel.Merirs. Judgtnerr,LCJ. R~eports1949, p. 4,al p. 22; 1. Brownlie,
Svsremofrhe bit, o/Narions: SfareResponrihilify (Pori 1).pp. 180-182(1983); cf.C. De
Virscher,Théories eiréolirisendroirinrernario»<pilublic, pp.328-329(4thcd.,1970).134 MILITARYAND PARAMILITARYACTIVITIES

armed intervention being conducted by Nicaragua against such other State or
States, the Article 51 rights of those States must necessarily be impaired.
439. Evenassuming, orguendo, that the Court had the competence to adjudicate

with resnect to claims of self-defense under Article 51 of the Charter. a full
and complcte rcsolution of thc matter prciented to the Court in thr Sicsraguan
Applis~ti<~nunniit. thcrr.forc. be ii~.hicicJ \iith<iui ihc psrticip.ition of ihosc
third States in the ~rocczdines beiiirc thc Court. Ki~nrneua -dniiot ilaim thst
such States are "engaged or planning to engage" in the use of force in or against
Nicaragua, and at the same tirne deny that either the rights (in particular the
inherent nght of individual and collective self-defense, including the right to
protect against unlawful armed intervention) or the obligations (including in
particular the duty to refrain from the unlawful use of armed force) of such
States are necessarilyimplicated by Nicaragua's allegations and prayers for relief.
A determination bv this Court that the United States must refrain from eneaeine
in collective self-défenseetTortsin co-operation with those other States cannot, -

il is submitted, be distinguished from a determination that those other States are
not entitled under the Charter to the exerciseof those rirhts in the circumstances
of the present case. The actions of those States areeither lawful under the
Charter, or they are not. If they are lawful, then the United States cannot by a
judgment of this Court be enjoined from co-operating in those actions under
Article 51 of the Charter.
440. The Court cannot reach a determination with respect to Nicaragua's
claimed relief in this regard without determining the rights and obligations of
those other States. Nicaraeua. havine itself alleeed the com~licitv of third States
in the allegcd unlawlul a&ns of the Lnitcd Gaies. canncit no& claim that thc
I~ct of ih;it iompliciiy rcm:<insto bc cst;iblishçd. and thai IIcan bc cstablishcd
in their absence.

Section II. The Court cannot Adjudicate the Rights andObligations ofl'hird
States withouttheir Consentor Participation

441. It is fundamental to the jurisprudence of the Courtthat the Court cannot
determine the rights and obligations of States without their express consent or
participation in the proceedings before the Court. This rule derives from the
principle of the sovereign equality and independence of States, and lies at the
root of this Court's jurisdiction in any contentious proceedings'. It is also closely
related to the considerations that led the United States to the adoption of the

multilateral treaty reservation to its declaration of 26 August 1946accepting the
jurisdiction of this Court under Article 36 (2) of the Statute of the Court,
discussed supra.
442. This rule was first formally articulated by this Court's predecessor in the
EasrernCarelia case2,and bas been restated by the Court on numerous occasions3,
including, in particular in Monerary Gold Removedjrom Rome in 1943. op. cil.
The Nicaraguan Memonal of 30 June attempts to avoid this fundamental mle

'AegeanSen Conlinenta1Shelj: Judgment,1.C.J Reporis1978, p. 3, sep. op. Vice-
President Nagendra Singh,ai p. 48.
Statu 0fEn.sierirCarelia,Ahirory Opinion.1923,P.C.I.J., Series B.No. 5,ai p. 27.
'Sce, e.g., Righror Minoririesin UpperSilesia(Minurily School~),JudgmentNo. 12,
1928. P.C.1.J..SeriesA. No.15, alp. 22:CorJi Chonnel,PreliminaryObjeciiun.Judgmenl,
1948, 1.C.J. Reports1947-1948, p. 15:Anglo-lronionOil Co.. Judgnzeni,1.CJ. Report3
1952, p. 93, ai pp. 102-103; Amborielos.Merils, Judgmeni.1.C.J Reporrs1953, p. 10,
al p.19.hy drawing an artificial and specious distinction hetween the adjudication of
"responsihilities" and othn adjudications (Mernorial, paras. 238, 243 et spq.).
The interests of third States not before the Court would be as seriously damaged
hy the adjudication of the rights of a party hefore the Court that resulted in the
prohibition of the exercise hy that party of an othenvise existing right affecting
such third States (Forexample, the right to engage in collective self-defense under
Article 51 of the Charter) as by the adjudication of a derivative responsihility,

as in the Monetary Gold case. In the instant case, a determination by the Court
that the furnishing by the United Statcs of assistance to third States was unlawful
would necessarily affect the right of those third States to engage in individual or
collective self-defense against armed intervention conducted or controlled by
Nicaraeua. The riehts of those third States cannot he determined hv th. Court
withouï their consent or participation in the present proceedings'.
443. The participation of those tliird States is also required for the full de-
velopment 'f the facts necessarily predicate to any judicial determination of
the rights and duties of the two Parties now hefore the Court. The Court cannot
adjudicate the lawfulness of United States assistance to third States in the region
without passing judgrnent as to whether those States are engaged, or are planning
to en.ae-. in the lawful exercix of thçir inherent ri-ht of individual and collective
~eILiifcn.;c agnin;t htc,~rÿgi.an ~nil Siia~igiian-\p>nii>rcd atia;ks. That in iurn
neccsj:iril) requircs thc Jcterminatioii 01thc iacti rclating ti>Kicaragulin ;rctiritics
in and aaainst thi,~ thirrl Statcr I:.~itsconccrnine thc activities of thiid Silites
and ~icara~ua's actions regarding those States may not be in the possession or
control of a party hefore the Court and cannot legitimately and fully be de-
termined in the absence of such States (Eastern Curelia. op. cil., at p. 28). The
Court cannot make determinations of such fundamental significance to the se-
curity of States on the basis of a partial record.

' The Nicaragua"rclinncc(Memorial. para. 247). ontheCoun'srcccntdecisiondenying
Italy'sapplication for interventionin thecasc concerningthe Conrinenial Shev (Libyan
Arab Jamahiriyo/Malral,Applicaiion IO Iniervene,Judgmeni,ICJ. Reports 1984, p. 3,is
aiïcctany,poientialthird-partyclaimtos;iportionof thc continentalrhelfon eitherside of
the Libya-Malta line. In the prescritcasc, in conirast,a decision that United Statcs
assistanceto third Stateswasunlawful,vouldinevitablyand irrevacablyanèctthe rights
underArt. 51of the Charter of the third Statesreccivingsuchassistance. CHAPTER II

THE APPLICATIOX WOULD REQUIRE THE AI>JUDICATION BYTHE
COURT OF A SUBJECT-MA'ITER SPECIFICALLY COLM~MITI'ED TO
OTHER MODES OF HESO1,UTION BYTHE CHARTER OF THE UNITED
NATIONS

Section 1. The Nicaraguan Allegations Constitute a Request for a Determination
bythe Court that there Exists a Threat to the Peace, a Breach of the Peace or an
Act of Aggression

444. Nicaragua seeks to claim a breach by the United States of a wide variety
of allegedly separate and distinct international legal obligations (Application,
para. 26). Each of Nicaragua's numerous allegations. however, constitutes no
more than a reformulation and restatement of a single fundamental claim by
which al1others mus1 stand or fall, namely that the United States is engaged in
an unlawful use of armed force amounting to a threat to the peace, a breach of
the peace or acts of aggression against Nicaragua.
445. This essential claim is evident, in the first instance. from the entire tenor
of the factual and legal allegations set forth in the Application. The "Statement
of Facts" al the very beginning of the Application commences with a sweeping,
conclusory allegation that the United States -

". ..is using military force against Nicaragua and intervening in Nicaragua's
interna1 afiairs, in violation of Nicaragua's sovereignty, territorial integrity
and political independence and of the most fundamental and universally
accepted principles of international law" (para. 1).

Although put forth as an allegation of "fact", the quoted passage is in actuality
a statement of legal conclusions. The significance of these conclusions, il mus1
be assumed. was well known to ~icaraeua inasmuch as it is clearlv an adaotation
of Article 1'of the Definition of ~~~Gssion adopted by the ~ineral ~s'sembl~
of the United Nations on 14 December 1974.That Article provides as follows:

"Aggression is the use of armed force by a State against the sovereignty,
territorial integrity or political independence of another State, or in any
other manner inconsistent with the Charter of the United Nations, as set
out in this Definition'."

' G.A. rcs.3314(XXIX), Annex. The corrçlationbctwcenthe Application andthe
Aggressianincludesamong the acts that "qualifyr as anlactral aggression"(unlessthef
SecurityCouncil determinesothenvise)thc following:

"(f) The action of a State in allowingits territory, which il has placed at thc
disposal ofanother Statc,to bc used by that other State forperpctratinan act of
agg(g)sThe sendingbyhior onabehalfof aStatc ofarmed bands, groups.irrcgulars or
mercenaries,whichcarryout actsof armcdforceagainstanother Statcof suchgravity
as to amountto the actslistcdabove,or ilssubstantialinvolvementtherein."

Cf. Application.interlio.paras.1, 3,10and IIIndeed, the cited Definition is expressly relied upon by Nicaragua as a basis for
Nicaragua's alleged claims against the United States (Application, para. 25).
446. Similar legally significant characterizations of allcged facts pervadc the
Application. The United States is alleged to bc engaged in "illegal activities"
(ibid., para. 1), that tire claimed to be "mounting in intensity and destructiveness"
(ibid., para. 3). Nicaragua allegcs "repeated attacks across ils own horders"
(ibid., para. 5). Nicaragua also asseris that the United States is engaged in the

use of "armed force against Nicaragua" in the form, inter 'iliu, of "large-scale
asçaults intcnded to capture portions of Nicaraguan territory" (ibid., para. IO).
All these allegations of "fact" conclude with the concession that makes crystal
clear Nicaragua's fundamental claim:

.ln the rrlcnt pii\t1. Slcor:iguÿ ha, callcd the ;ittcntion of the Sei.urtty
C<>un~ia lnd tht C;enr.r:il~\\,cmhly ,if ihe Uniieil S:ili<~n. 1,)ihcse iicti, itics
of the United States, in their churacler us threats or hreuches of the ptme,
und ucrs of aggression." (Ibifl., para. 12 (italics added).)

447. Nicaragua sccks both to mask what it is in fact asking the Court to de-
termine, and to avoid the consequences of such a claim for the admissibility of
the Application, by purporting to bring beforc the Court the "strictly juridical
aspects of the matter" (ibid). But that itselfcannot confer jurisdiction over the
subject-matter on this Court. Whether or not the determination of a "thre;it to
the peace, breach of the peace or act of aggression" in this case involves a
conclusion of a "juridical" nature, il is one that is committed to a difirent
. .-~~ As the United States will dcmon~ ~ ~e. the artificialitv of the distinction
s.iught to hc tti;iint;iineJ h! the ,\l>plii~iioiin thi, rcspcct isn only hc undcr~tos~i
in icrnis of an attcntpt icia\oiJ the necc\ur) ion\equc~~ce~of Art~cI: 39 of ihc
Charter2 on the com~ctcnce of the Court to entertGn the Aoolication and the
..
daims set forth therein'.
448. Nicaragua's essential claim tliat the alleged actions of the United States
constitute a "ihrcat to the peace, hreach of the peace or açt of aggression"
(Application, para. 12), is carried forward into the Nicaraguan Mcmorial (paras.
1, 3, 179, 193, 195, 197, 210, et ul). Again Nicaragua. perhaps mindful of the
implications for the competence of the Court that allegations couched in the
precise language of Article 39 of the Charter would cars., has employed diferent
terms. These terms ncvertheless mus1 be regarded as leg;illy synonymous with
that language, as has heen recognizeclin the Definition of Aggression, supra. The

' Hy rccr.nt p.tri"ihc ,\pplt;:it,o!19pre\.imihlg rrfcrring io Sic:ir:igui'uniuc.';~alul
.itieiiip$1".I,\pril l93J- ti\ciId!i hcf<>rishc iiling<>ILI,\,ppli:;iiion *.th ihe Rcg~>tr~r
.>I(hi.Court ii, h.i<iinc Sc<i.rit\C ii.n.im.,*< the di.tc~r!iiiii:itioi\~;.ira-~.i i,
askingihc Court to makc.
Arlidc 39 providcs as follows:

breach ofcthe peace.iorsactofdaggrcssianeandiirhallmakerccommcndations,to thorpdccide
what mcasuresshall be taken in accordancewith Articles41 and 42, Io maintain or
rcstorcinternationalpcacc and scçurity."

' Nicarÿeuafurthersecksto avaid thc oroceduralçonseouenccs undcrthe Chancr ofa
actiofhaggrcssion"(Charter. Art.cts39). bytrefomulating the idcnticalclaimsin tcnns of or
whatthe Application iisscnsiobc "gcncral and mstomaryintcmationallaw"(Application,
paras. 20 through 26). Thc UnitcdSiatcskasexplaincdin Pan Ill, Chaptrr II, «rpm. chat
Nicaragua'sclaims in tliis rcgard constituteno marc than a piar;iphraseof ils Chartcr
claims,andthat theGcncralAssemblyrcsolutionson which ilrcliearc mcrelyelucidttions
of thc Chartcr.138 MILITARY AND PARAMILITARY ACTIVITIES

nature of the Nicaraguan claims is also evident from the oral presentation of
counsel for Nicaragua on 25 April, which in large part entailed a restatement of
the Application's allegations in terms of,inreralia, "use of force" (1, p. 38), "use
and threat of force" (ibid., p. 43), "armed attacks" (ibid., pp. 46, 50).
and similar consequential terms under the Charter.
449. Nicaragua is in faet requesting of the Court a determination that the

alleged actions of the United States constitute "a threat to the pcace, a breach
of the peace or act of aggression" within the meaning of Chapter VI1 of the
Charter of the United Nations. Nicaragua's efforts tu characterize the funda-
mentals of that claim as evidencina the existence of a solelv "lceal" disvute
cannot overcome its real nature, one that, as will be shown, is con-fidde10the
competence of the political organs. Nicaragua cannot allege the existence of a
thredt tu the peace,-breach of ihe peace, oract of aggression without accepting
the treatment spccifically prescribed hy the Charter for the determination of
such matters.

Srclion II. The Matters Allegedinthe Xicaraguan Applicationand Memorial Are
Committed by the Charter of the UnitedNations to the ExclusiveCompetenceof
the Political Organs

A. TheTexrof the Clfurler

450. Under the Charter of the United Nations, al1 allegations of on-going
threats tu the peace, breaches of the peace and acts of aggression are confided
tu the political organs for consideration and determination. This is evident from
the face of the Charter, its history and consistent practice thereunder.
451. The svcciriclan- -ee of the Charter makes clear that decisionsconcernine
the resorr t~ ~irmcdforce Juring on-goiiig srmcd conIlici. ihat ir.sltuaiionr th31
mu). ionititutc ihreat~ in the pciiic. breiichc. of the pcaie. iictr oi sggressior.
e.xerci>esof thc inherent riaht of indiviJu.il or colleiti\r seli-defensc. are rc\erved
to the exclusive cornpeten& of the political organs. Article I (1) of the Charter
numhers among the "Purposes of the United Nations" the following:

"Tu maintain international peace and security, and to that cnd: tu takc
effective collective measures for the prevention and removal of threats tu
the peace, and for the suppression of acts of aggression or other breaches
of the peace, and tu bring about by peaceful means, and in conformity with
the principles of justice and international law, adjustment or settlement of
international disputes or situations which might lead tu a hreach of the
peace."

Article 24 (1) of the Charter confers upon the Security Council "primary res-
ponsibility for the maintenance of international peace and security", and Article
24 (2) enjoins the Secunty Council tu carry out that responsibility "in accord-
ance with the Purposes and Principles of the United Nations", including
necessarily those set forth in Article I (1).
452. The "primary responsibility" ofthe Security Council for the maintenance
of international peace and security under Article 24 (1) of the Charter is given
two distinct facets by the Charter. one that relatcs tu the pacific settlement of

international disputes, and one that relates tu the determination of a threat tu
the peace, a breach of the peace, or an act of aggression. The former is governed
principally hy Chapter VI (Arts. 33through 38). the latter by Chapier VI1(Arts.
39 through 51, of which Arts. 39 and 51 are of fundamental imporlance). 453. Pacific settlement of disputes is directed toward "any dispute" or "any
situation which minht . . .nive rise to a dispute" the continuation of which is
"likelv to endaneerihe mainienance of internitional neace and securitv" (Charter.

~rts.'33, 34 (italics added)). In such circumstancés the parties are ti seek to
resolve their differences by pacific nteans of their own choosing, including -
"bv.neeotiation. enaui.v.,mediation. conciliation. arhitration. iudicialserrlemenr.
resort to regional agencics ur arrangcmentb. or Jthcr peaiclul meanb . . ."and
the Securiiy Council mliy cal1upon the partie> iciprocecil in such hshion (italicc
;iddc<l1 hlorco~cr. ihc'ecuriir. C'ounciliscnirioricre~l IOmakc roc.'iticreconiiiien-
dations to the

"1. The Securitv Council mav. ar anv slaae of a dis~ureof the nrriure
referredruin ~rriGe 33 or a siru~lionof ike niruri, reconkend-appropriate
procedures or methods of adjustment.
..........................
3. In making recommendariuizs under rhis Ariicle the Security Council
should also take into consideration that legal dispuresshould asa general
rule be referred by the parties fo fhe Inrernarionul Couri of Jusrice in
accordance with the provisions of the Statute of the Court." (Charter,
Art. 36 (italics added).)

The Charter thus recognizes the appropriateness of judicial settlement to the
resolution of disputes and situations which are considered "likely" to endanger
the maintenance of international peace and security if permitted to continue,
that is, circumstances which have not yet given risc to an actual threat to the
peace, breaçh of thc peace or act of aggression'.
454. The second facet of the role of the Security Council in the scheme of the
Charter concems the question of adual threats to the peace, breaches of the
peace,and acts of aggression. Article 39 of the Charter provides in deliberately
plain languilge that -

"The Security Council shall determine the existence of any threat to
the peace, breach of the peace, or act of aggression and shall make re-
commendations, or decide what measures shall be taken in accordance
with Articles 41 and 42, to maintain or restore international peace and
security."

Nowhere in Articles 39 through 51, thc Charter provisions dealing specifically
with situations of the sort alleged in the Application and Nicaraguan Memorial,
is there a reference to iudicial settlemcntais means of resolvine on-noine armed
conflict Cnlike dispu~csor situntionc ihe continuation of *hich mliy -gii,criw in
liitivc hosiil~t~es;ind iviih respcct io which the porstbility of ;id,.idiz.ition hy the
Cwrt is prcser\.cd in Artiilcr 33 ;,ni136 ~f th: Ch;irter, la><<il. ihc proi,i\idns

'In thir respect, Article33 ihrough 38, and in particular Articl36, confom pre-
cisclyto the pattern establishcdby Articlc 1 (1) of the Charter, under which "adjust-
of thepeace"imus1nbefbroughtabout "in conîormitywiththe pnnciplesoljusticc and intcr-
national law" whercas no such limitation extcnds10 "thc prcventionand rcmoval or
threats ta the peace,and . ..the suppressional acts of aggressionor other breachesor
the peace". As will be subrequentlyshown, this dtsiinction, lar irom being accidcnfal,
was the product of a considered anddeliberalechoicc an the pzirtol the dralterof the
Charter.140 MILITARYAND PARAMILITARY ACTIVITLES

of the Charter dealing with the on-going use of armed force contain no recog-
nition of the possibility of settlement by judicial, as opposed to political,
means.
455. The textual commitment of such matters to resolution by the political
organs iscarried fonvard in Article 51 of the Charter, which provides in pertinent
part as follows :

"Nothing in the present Charter shall impair the inherent right of in-

dividual or collective self-defence ifan armed attack occurs agdinst a Mem-
ber of the United Nations, until the Security Council has taken measures
necessary to maintain international peace and security."

The precise language of Article 51 leaves no room for a judicial determination
to terminate a resort to armed force in the midst of on-going armed conflict,
which necessarily involves the exercise of the inherent right of self-defense by
one or more of the parties to the conflict. The evaluation of claims concerning
the exercise of the "inherent rieht" of individual or collective self-defenseis the
necessary concomitant of the evaluation of claims that a particular resort to
armed force constitutes a "threat to the peace, breach of the peace or act of
aggression". The determination of the latier ipsofacto determines the former,
and is committed by Article 39 of the Charter to the competence of the Security
Council. Article 51, in its last sentence, expressly reserves this "authority and
responsibility of the Security Council under the present Charter". Moreover, as
"the principal judicial organ of the United Nations" the Stdtute of which "forms
an integral part of the present Charter", Charter, Article 92, the Court is bound
by the categorical prescription of Article 51 that "[nlothing in the present Charter

shall impair" the inherent right of individual or collective self-defense.
456. Article 24 (1) of the Charter vests in the Security Council the "primary"
responsibility for the maintenance of international peace and security. In this
particular respect Article 24 (1) takes into account (a) the functions accorded
bv the Charter to the General Assemhlv in connection with auestions concernine
the maintenance of international peaceand security, and (b) ihe role of "regionaÏ
arrangements or agencies" in the same connection that is recognized and
preseÏved by ~rticl'52 of the Charter.
457. The relevant functions of the General Assembly in this regard include
the general power to discuss and make recommendations respecting "any
questions or matters within the scope of the present Chartcr or relÿting to the
powers and functions of any organs provided for in the present Charter"
(Charter, Art. 10); the power to consider and make recommendations concerning
"the general principles ofCO-operationin the maintenance of international peace
and securitv" (ibid.. Art. II): the oowcr to discuss "anv auestions relatine to
the mainte&"& of international peace and security" thatiay be brought before
it by a member State (under Art. 35 of the Charter) or by the Security Council

and to make recommendations thereon (ihid); the power to cal1the attention
of the Security Council to "situations which are likel; to endanger international
peace and security" (ihid) ; and the powcr to recommend measures "for the
peaceful adjustment of any situation . . .including situations resulting from a
violation of the provisions of the prcscnt Charter setting forth the Purposes and
Principles of the United Nations" (ibid., Art. 14). Tbese responsibilities of the
General Assembly are, on the other hand, expressly qualified, and the primacy
of the Security Council preserved, by Article 12, which prccludes the General
Assembly from making any recommendations concerning "any dispute or
situation" with respect to which the Security Council "is exercising . . . the142 MILITARYAND PARAMILITARYACTIVITIES

bring the mattcr befurç ihc Court in accordancc with ils St3lule u.<>ulJhe hoth
appropriate and efictivc in thc circuin,tanics <)i'thçcase (In an) case before il.
even one involving a threat to the peace, breach of the peace or act of aggression,
the Security Council can, of course, avail itself of a request to the Court for an
advisory opinion under Article 96 (1) of the Charter, whenever the Council
believes that the Court's advice concerning the legal aspects of matters under
consideration in the Council would assist the Council in dealing with the
situation.)

B The Origins and Hisrory ojrhe Charrer

460. The allocation to the political organs of responsibility for the resolution
of on-going amed conflict that emerges from the tex1 of the Charter is further
confirmed by the background and history of the development of the CharterL.
461. The Charter, and the Organization that it established, had their birth in
the flames of war and the collapse of the bague of Nations systcm. In the
Moscow Declaration of Octoher 1943, the Governments of the United States,
the United Kingdom, the Soviet Union and China jointly declared that
"they recognize the necessity of estahlishing at the earliest practicable date
a general international organization, hased on the principle of the sovereign

equality of al1 peace-loving states, and open IO membership by al1 such
states, large and small, for the maintenance of international peace and
security" (United States Department of State, Toward the Peace Documents,
Publication 2298 (1945), at p. 6).
462. The United States had for some time been deeolv ene.,ed in--tudvine , -
poslihle mr~hanisms for an elTcvii\~c post-uar internstional organbaiion. in u,hich
"pnmary attention" wa? iaKuu.J on the problem of prilviding ia)r"munty agÿinrt
arnelsion'". Rathcr ihan rcsurrcct ihc Leacuç of Satit~ni an~roach. whercin the
p<>liiicali)rg:ins ucre iejtcd \iith c\rçntiall) concurrent powcr. the I.'niieJ State,

iissumed ihe nreJ li~ra "plenary. conierencc-t)pc organ comhined with a sclective.
council-type organ" and for making the smaller oÏgan "an executive agent" in
which "control of the security function" would be centred3. In these early efforts
relatively little consideration was given to the problem of post-war judicial
mechanisms, beyond the broad assumption of the need for an international court
on the pattern of the Permanent Court of International Justice4.

' Secgenerally. K. Kussll A Ilr.rory o/<hp UntirJ Voiunc Chorrrr(1958,: S Kqlor.
Ifot.~rwl~k Irtdr,i Or,wni:<ir.ii Ohrdinenn>khVorrii So:.*ina Teknu lluuio Org<ini:<ir,,i
Ohcdmcnnilh \'ui<iiAr<~lrmi of S;ience, i,f thc IJSSK 1. Koncli~i~nÿ>.
~usscll,op. cil.ai p. 227. .. . .
' Russell,op. cil.ai pp.228-229.
In an intemal drafi prepared in 1942-1943 itwas proposed that Article 36 of the
Statutc ofthe Pemancnt Coun be revisedto permit the Councilunilaterallyto refer to
theCourt any disputethat wasconsideredto bethrcateningthe peace.Asrevised, Article36
would have readin pertinentpart as follows(italicsaddcd):
"The jurisdictionof the Court shallcomprise oll casesinrolvingdoputesas to the
respective"ghts of the partieswhichthe partiesreferto itor w,hich.in rheewnr ihor
o rhreor IOthepeoceexixts,moy be rehrred ro it by the Couneil.. ."(Draft Statute,
Art. 24, United States Dcparimcnt of State, Postwor Foreign Poliey Prepapurnrion,
1939-1945,Publication3580(1950).App. 15,p.485,at p.488.)
Workon this draftwas suspendedin latc 1943.11 issignificantthai thispanicular proposal
was not retained in the United States Tentative Proposais for a General International
Organizatianof 18July 1944, i&. 463. The work of the United States in developing plans for a post-war
international oraanization resulted in the issuance, on 18Julv 1944,of the United
State~~eniaii\~~rofp or aticnsr.r;il Intcrnahonal ~r~a~r~aiion' (hcre~naitcr
"ï'cntlitii,c Propi)sals"). The propo\ed international iirgani*.ition irould h~vc
four principal organs: a "general assembly", an "executive council", an "inter-
national court of justice". and a "general secretdriat" (Tentative Proposals,
part 1, sec. D (1)). The proposed executive council would have

"primas. responsibility for the peaceful settlement of international disputes,
for the prcvention of threats to the peace and breaches of the peace, and
for such other activities as may be necessary for the maintenance of inter-
national security and peace" (ibid., partIII, sec. B (1)).

Its specific powers would includc the power "to determine the existence of any
threat to the peace or breach of the peace, and to decide upon the action Io be
recommended or taken to maintain or reslore peace", and to "seek the advice
and assistance of the general assembly in any matter in this connection, and of
the international court of justice in any matter within the cornpetence of the
court" (ibid., part VI, sec. A (1)). The proposed general assembly, for its port,
would be empowered to assist the executive council, al its request, in connection
with the latter's responsibilities with respect to the settlement of disputes "likely
to endanger security or to lead to a breach of the peace" and in connection with
the "maintenance or restoration of peace" (ibid., part II, sec.B (2) (b)).
464. The ovcrwhelmine e-.hasis of the Tentative Pro~osals ison the resolution
or question, conccrmng pr.ice xnd srcurityhy the political srpns of th< proposcd
organiration: thcre isno comp3r~biy comprchensi\,e tre.itmen1 \if thc proposcd
intcrnalri>ndl couri. The Tcnt;iti\,t. Pror>~oslrrovided onlv that lhc Pcrmlincnt

Court of International Justice shotild'be "r&onstituted ;n accordance with a
revision of its present Statutc", and that the revised Statute should form part of
the "basic instrument" of the new organization (ibid., chap. IV).
465. The Tentative Proposals were furnished to each of the other threc
Governments that joined in the Moscow Declaration (supra). Alter a period of
consideration and revision, they emcrged in the form of the four-power
Dumbarton Oaks Proposals for the Establishment of a General International
Organization of 9 October 1944' (hereinalter "Dumbarton Oaks Proposals").
The Dumbarton Oaks Proposals carry forward the preoccupation with inter-
national peace and security and, in that respect, the exclusive emphasis on
political mechanisms for dealing wiih situations of on-going armed conflict3.
466. The Dumbarton Odks Proposals envisaged an Organizauon comprised
of four principal organs: a GeneralAssembly, a Securit~Council, an international
court of justice4, and a Secretariat (Dumbarton Oaks Proposals, chap. IV,

' UnitedStatcsDepartmentof State,PorrwurForeignPolicyPreparalion,1939-1945 o,p.
cil.United States Depanmcnt of State, Bumbarlon Ouks Booimenis on Inrernurional
Or onirolion,Publication2257(1945),at pp.5-16.
ln assigningprincipalresponsibilityfor the maintenancof internationalpeaceand
securitytoa singleorgan of the new organiration,the rrûmen of the Dumbarton Oaks
Proposai wserernindfulof the weakncssof theLeagueof Nationssystcmin that regard:
IIn consisténon olusà imiterGenève. maisau contrairetimodifierlesystèmeantkricur
pour en éviterla faiblessesreconnues et pour les adapter aux nou<ellesconrlitions
mondiales."(Kopelmanas, op.cil.,alp.20.)
a IImay be noted that the Dumbarton OaksPraposalsdeliberatelylcft "international
court of iustice" uncaoitalized.Thc Souroowcrsleft undccidedwhethcrthe court would
cntirclyncwstatutc(Russell,op.cil.atp.430; Krylov,dop.cil.,al pp. 52-53,58-59).an COUN'rER-MBMORIAL 145

conceived of such functions, and of their allocation among the several organs of
the new Organization, is clear.

471. First of all, the provisions of chapter Vlll of the Dumbarton Oaks
Proposals, relating to arrangements for the maintenance of international peace
and security, undenvent little substantive change. In so far as the Security
Council is concerned: the two issues that occupied most attention were whether
the exclusive responsihilities of the Council for determinations of threats to the
peace, breaches of the peace or acts of aggression, implied inchapter VIlI of the
Dumbarton Oaks Proposals, should be shared to a greater or lesser extent by
the Generdl Assembly, and whether the Charter itself should incorporate, as
guidance to the Council, a definitioii of "aggression".
472. The conclusions reached by the Conference on both questions, and
reflected in the language of the Charter, are neatly summarized in the report of
Committn 3 of Commission III (Security Council) of the Conference, which
report States in pertinent part as follows:

"An initial category of amendments proposed by the various powers
referred to the procedure contemplated in Section Bof Chapter Vlll [of the
Dumbarton Oaks Proposals] for the determination of the existence of threats
to the peace or of acts of aggression, and of the role of the Security Council
in this procedure.

A. Purriciparionby rheAs.remhly Br Enlargemen1of thr Cr~ru~cil

A general discussion wasfirst entered into on the proposal to supplrment
the action of the Securitv Council bv oarticination of the Assembly in

..........................

[The majonty of the powers that expressed their opinion] stated that the
application of enforcement mcasures, in order to be effective, must .: .
ahove al1he swift ;they recognized in general that it isimpossible to conceive
of swift and effectiveaction if the decision of the Council must be suhmitted
to ratification by the Assembly, or if the measures applied by the Council
are susceptible of revision by the Assembly. This, moreover, would be
contrary to the basic idea of the Organization, which contemplated a
differentiation hctween the fiinctions of the Council and those of the
Assembly.
Under these conditions, the Committee fonnally declared itself. by several
votes, against intervention by the Assembly in this procedure." (Doc.
943/111/5,11 UNCIO, p. 12,at pp. 14-15(italics in original).)

473. With particular regard to the question of defining the term "aggression"
and of allocating responsibility for determining the applicahility of the concept
in a particular case, the reportrecites in pertinent part:
"A more protracted disussion devcloped in the Committee on the possible

insertion in paragraph 2, section B. Chapter Vlll [of the Dumbarton Oaks
Proposals] of the determinution of ocrsof aggression.
Various amendments proposed on this suhject, notably one by the Dele-
galion of Bolivia', recdlled the definitions written into a numbcr of treaties

' One may note thesimilaritiesbctweenthe definition or "aggressipn"proposed by
Boliviaalthe Sÿn FranciscoConference and thefactualand legalallegationorNicaragua
in thepresenicase:146 MIL~TARY AND PAUAMIISTARY ACTIVITIES

concluded before this war but did not claim to specify al1 cases of ag-

gression. They proposed a list of eventualities in which intervention by
the Council would be automatic. At the same time they would have left to
the Council the power to determine the other cases in which it should
likewise intervene. There was no question of defining aggression, but simply
of cnumerating the particularly flagrant cascs.
Althoueh this or. .sition evoked considerable su~~ort...t n.vertheless
becamc clear to a majority of the Committee that a preliminary definition
of arnression went beyond the possibilities of this Conference and the
ourooses of the charter. The oroeress of the tcchniauc of modem warfare
;enders very difficult the definition of al1 cases of &gression. It may be
noted that, the list of such cascs heing necessarily incomplete, the Council

would have a tendencv to consider of less imoortancc the acts not mentioned
therein; these omissions would encourage the aggressor to distort the
definition or might delay action by the Council. Furthermore, in the other
cases listed, automatic action by the Council mig.t bring about a premature
application of enforcement measures.
The Commiiiee rhereforedecided to adhere to the text drawn up at
Dumharton Oaks and io leavero ihe Counciltheeniiredecision, andalsothe
enrireresponsihiliiyfor ihar decision,as ro what consiiiuiesa threai 10 the
peace, a hreucliof thepeace,or an act of aggression." (1I UNCIO, at p. 17
(italics added).)

The view of Committee 3 of Commission III was entirely consonant with the
United States understanding of the matter:

"The Conference finally agreed that even the most simple and obvious
cases of aggrcssion might fall outside any of the formulae suggested, and,
conversely, that a nation whichaccording IO O formula srricily interprered
couldbe deemedthe ()&der in any parlicular instancemight aclually -
whenal1 circumstunceswere considered - be found to be the victim of
rtiri>l<~r<rplrii,i,oi.utiu,i Sincc it \ras adrnittedli impo>rihlr. to provids
coniplctc Iisi. the Sccurit) C:ouncilmighi have a tenJcncy in consider of lcss

iniporiance arts or aggression not specilicslly coi,crcd thcrcin " (Kcport io
ihë President, at p. 9Ï[italics addedj.)
474. The cumulative eRect of the foregoing is to establish the incontrovertible
intention of the draftcrs of the Charter that situations involving the on-going
use of amed force, such as that claimed to exist in the Nicaraguan Application

of 9 April, are to bc addressed by the political organs in ordcr 10 facilitate a

"A state shalbe designatedan aggressorif ithas committcdany of the following
acts Io the detnmcnt ofanotherstate.
/<ilInvasionofanotherstate'rterrito. .vamcd farces.
(hj Declarationof war.
(c) Attackby land,sea, orair forccs,withorwithoutdeclarationofwar, on another
state'sterritory.shippinor aircraft.
(d) Supportgivcnto amed bands forthe purposeof invasion.
(/) Refusaltoisubmit the matter whichhar causeda disputers10the peacefulmcanr
providedfor ils selllcment.
(g) Refusal to comply with a judicial decisionlawfullypronounced by an Intcr-
nationalCourt."
(Proporolsofihe BelegorionoftheRepuhlic ofBolivia/orrhe Orgunizalionofa Syxlem
ofPeoce and Securiry.doc.2/G/14(r). 3 UNCIO,p. 577, alp. 585.)quick and efective response, which prior determinations of legal fault would
jeopardize.

475. That the use of force during on-going conflict could properly be dealt
with only by political mechanisms is further underscored by the negotiating
hislory of Article I (1) of the Charter. As included in the Dumbarton Oaks
Proposals, that Article would have read as follows:
"The purposes of the Organization should be:

1. To maintain international peace and security; and to that end to take
effective collective measures for the vrevention and removal of threats 10
the oeace and the suo..ession of acts'of aeuuession or other breaches ol the
peale, and to bring about by peaceful means adjustment or settlement of
internationaldisputes which may lead to a breach of the peace." (Dumbarton
Oaks ~ro~osals,~cha~.1, para. 1.)
Various delesations. concerned lest the new Orranization eniov too much freedom
of action in de.iling uiih on-goinp ionilict. suggesied ;tnienilnieniIO the gciir.riil

zllcci ,~l'r.xprr.>limiiingthe rangr of p,zsthlu rcsp>n>u\ IOtliose \lut confornlcd
io iurtice and inicrn<ition;il la'.,\iier c~~n~iderahleJisuursion, the Conicrcnce
chose instead to include language to the desired efect only in the second part of
Article 1 (I), relating to adjustment or settlement of international disputes or
situations. It did so on the ground that the Organization's first priority was 10
take measures intended to bring a given conflict to a halt; imposition of a test
based on "justice" or "international law" would tend to provide "a loophole for
questioning any specific action, and a possibility for delaying measures and
procedures while discussing abstract definitions"'. Once the eonfliet had been
dealt with. then the Oreanization ''wi>uldhave the latitude to a..,v the .rincioles
ofjusi~cc and internat&n;il law"; by w~yof conirasi. situarioni which havc'niit
vet gtven \isy 10 armud conilici arc thor: in ivhich the "concept of JUSI~CC anif
inteÏnationailaw . . can find a real scope to operate, a more precise expression
and a more practical field of application3".
476. Preoccupation with the role of the political organs in dealing with
on-going uses of armed force dominates the history of the San Francisco
Conference. The virtual silence of the neeotiatine record. in so far as a role for
the court in that respect is concerned, is ïherefo; doubl; significant. A Turkish
amendment to preclude the Security Council from intervening in a matter before
the Court was~understood Io aooiv onlv with resvect to a~disuute which was
"likely" 10 endanger internati&i peace and security, and would no1 have

constrained the Council from acting in cases where such a dispute had ripened
into an actual "threat to the peaee"'. A Uruguayan proposal to broaden the
subjeet-matter jurisdiction of the Court to reach "any difference, opposition
or conflict among nations, whatever ils character", made no headway at the
Conference (Summury Report of rhe Sevenieenrh Meeiing of CommirreeIVII, doc.

' Secgenerallyproporalr by Bolivia, Cuba, Crechaslovakia, Ecuador, Egypt, France,
Grecce, Iran, Mexico, Panama, Turkey and Uruguay(Dommentnrion /or hfeeringrof
Co'mReportlOJComntiiler1 (Preamble,Purposes,5and Principfer)ofCommission I (Generol
Provisions],doc.944/1/1/34(1),6 UNCIO,p. 446, at p. 453.
Ibid.Sn also Krylov,op.cil.,atpp.100,103.
' SummaryReport of the lorh Meering O/Commirree 2 (Pecce/u/Setr/emenl)of Com-
mission1(SenirtiyCouncil), doc.530/111/2/201,2UNCIO,pp. 7344. No actionwasiaken
on theTurkish proposal.148 MILITARY AND PARAMILITARY AC'I'IVI'I'IES

759/IV/1/59/Ann. B, 13 UNCIO, p. 246, at p. 253; Beclaration of rhe Belegarion
<J/Uruguay, doc. WD 35/111/2/21, 12 UNCIO, pp. 82-84').
477. The essentiallv political character of the Charter's ao~roach Io dispute
settlement in situationsif on-uoineuarmed conflict was. moreGer. central 1; the
Unit:d St;itcs ~nderïtantling of the rerultr of the San &ÿnris~o Conference' As
Jescribeci hs Leo Pasi.~lrks. Spccial ,\i,tstaiit Sc:ret;irs of Stdtc Stctliiiii.~for
internation aleanization ~fiairs. during the hearines on the orooosed Charter
before the ~om&ittee on ~oreig" el aï io ofs the United 'Staies Senate on
10July 1945:

"the question of the definition of danger to international peace and security
or threat to international peace and security necessarily has to he left to the
determination of the Security Council.
..........................

[Tlhe Security Council has to determine that a particular dispute in fact is
of such a nature that its continuance would be likely to endanger the
maintenance of international peace and security. Now, international peace
and security, 1 should say, is understood broadly here. A dispute may
involve only two nations at the start, and if the Secunty Council thinks that
the dispute will grow and involve other nations, it will want to act. The

Security Council, however, has to be the judge as to whether the dispute is
of such a nature that it should intervene and take action. It will also have
to decide whether or not its intervention might make the situation worse3."
With particular regard to Article 39 of the proposed Charter, Dr. Pasvolsky ohser-
ved that -

"article 39 envisages a situation which has hecome so aggravated that it is
no longer a question of whether or no1 il may result in a threat to the peace,
but an actual threat to the peace exists.

..........................
[The failure of the Charter to define 'aggression'] wasdone deliherately,
hecause il was found imoossible to find a com~rehensive. all-inclusive de-
finition, and it was felt ihat unless the definition of the &rd 'aggression'
were left to the Security Council itself, we would simply he setting up stan-

' In th,ronnmilon II irworihyof noie ihdiiluringihc zoi<ricof the<lclibenilonroisr
Siair.nJnvmelu3pdlsn~l~VkI~rcththe Swuril\ Counrllrtr>bcck an 3dv1\ori<>niniunnl'romihc
courias io whcther "a recommendation or adecisionmadc by the ouic c orlproposed
in ilinfringeson [sic]its essentialrights"(Agenda for rhe Eighth Meering of Commiiree
111/2,doc.432/111/2/14 ,2 UNCIO. p.55). An "esscnlialright" wascharactcrizcd asone
"grantedby positiveinternationallawasan essential rightofstatehood (Summary Reporr
ofrhe SevenrhMeeiing of Commitlee 111/2, doc. 433/111/2/15 hid, p.47,al pp.48-49). In
the eventof an allimaiive opinion from theCourt, the SecurityCouncilwouldhave had
either to reconsiderthe matter or to referil to the Ceneral Assemblyfor decision. The
Belgianproposalwasheavilycriticized, inter aliobecause itwould"rcsult in the decirion
by thc Coun of lntcrnationalJusticcof politicalqucstiansin addition to lcgal questions"
(SumrnoryRepuri 4Ninrh Meeting of Commiltee 111/2, dac. 498/111/2/19 hid.,pp.65-66;
sec also Krylov, <y. cil.,al pp. 181-182;Russell, op. cil..al pp.664-665).The Belgian
amcndmcnt was withdrawn.
' Scegenerally,Report to rhe Presidenl.op. cil.
Securiry HenringsofberorerheSenateCommirteeon Foreign Relorionr,rer79thCong.,1steaSess.,
pp.284-285(1945). dards which would provide an easy escape for a would-be aggressor. The
definition would bejust a signal as to what should he avoided.
Senaror Brooks. That is a change, however, in the usual practice in
drawing up an international agreement, is it not?

Mr. Pasvolsky. Well, it is certainly customary in many cases to leave
matters of that sort to the discretion of a body that will have to do the
administering '."

478 Ihe hisi<~r)orthe Ch:iricr. the intcntii>iisof iis ,ponlors dnd ihr. r~.cords
of ihc Sdn Fr;incisco Conierïnce, anJ the coiiiempinaneou. undcruanding of
thc 1;niir.d Si;iicr O~rl,CiD3rll5thus prilvjdc ~ivrrwhelriiingçviticncc for ihe
proposition that thrcats toihe peace, breaches of the peace and acts of aggression
were to be treated cxclusively hy the political mechanisms estahlished by the
Charter for the purpose. Conversely, that same history provides no support
whatever for the notion. imolicit in the Niearaeuan A~oliciition and rather more
explicit in its ~emorial,'thai this Court may inïervene;; that process by reaching
its own determinations and judgments on the merits of any such question.

C SubsequenrProcriceojSruies and United Narions Organs

479. The Charter of the United Nationsand the Statute of this Court constitute
together a comprehensive international agreement, and itis well established that
the suhsequent practice under an international agreement mdy be looked to
as a guide to its interpretation! With respect to the instaiit case, the consistent
practice of the Member States of the United Nations, and of the constituent
organs of the Organization itself, demonstrates the Charter's exclusivecommit-
ment of questions concerning the resort to force during on-going hostilities Io
political organs Corresolution.

1. The Nicaragiran Applicatio~zis wirhuulprecedeni

480. It would be impracticable to include within the confines of this Counter-
Memorial a recitation of al1 the instances since 1945 in which an unlawful use
of armed force was alleged to be in progress, and it is not necessary to do so. Il
is sufficient merely to obsewe that, to the extent that one or anotber of the
disputants hds soughi to appeal the rightness of its cause to the international
community, or to seek the intervention of that community with a view toward
achieving a resolution of the conflict, that party has brought the matter to the
attention of a poliiic~l organ, whettier ibe the Security Council, the General
Assemhly, or a regional agency or arrangement. By the opposite token, one
cannot identify, prior to the Nicaraguan Application of 9 April 1984, a single
instance in which the lawfulness of an allegedly on-going use of armed force was

submitted to the Court for determination.

' The Charrer of rhe Uniied Narionfir Ihe Mainlenonce,f InlernarionnlPace und
Securirv:Henri-.sbeliirrheSenoleCornmirieeonFoiri.nRelnrionf79thCong., 1stScss.,
at 287.
l>S eg.cA,.McNair. TheLaw of Tri,aries,pp. 424429 (1961); Inrernoil loluof
E.xpenpeonsrseUnired~\'ation(Article 17,prirogr2. oftheCharrer).AdvisoryOpinion.
1.CJ. Reporls1962, p. 151;Vienna Conventionon the Law of Trcaties,Art.31, 1155
UNTS 340.150 MILITARYAND PARAMILITARY ACTIVITIES

2. TheCorfu Channel case

481. Indeed, the only case in which the lawfulness of the use of armed force
has heen placed in central issue hefore this Court was in the Corfu Channel case
(op cit.). The manner in which that case came to he hefore the Court is
instructive with respect to the relative role of political and judicial modes of
settlement.
482. The Corfu Chunnel case arose from an incident in which two British
warships were damaged by the explosion of mines, alleged to have heen laid by
Albania or for which Albania was otherwise alleged to he responsible, in the

Corfu Channel on 22 October 1946. Efforts to arrive at a bilateral settlement
having failed, the United Kingdom brought the matter before the Security
Council on 10 January 1947. On 25 March, a draft resolution ascrihing res-
ponsihility to Albania failed of adoption in the Security Council. The matter
continued before the Security Council, and on 9 April 1947the Council adopted
resolution 22 (1947) recommending that the disputants "should immediately
refer the dispute to the International Court of Justice in accordance with the
~rovisions of the~S-~~~~~~~f-~h~ ~ ~ ~rt"^~

483. ~he~uestion of whether the Security Council was the appropriate forum
for consideration of the Corfu Channel incident was in large measure res~onsible
for the Council's recommendation that the matter be referred to the Court. On
24 February 1947 the representative of Poland observed, after a reprise of the
various legal issues raised in connection with the incident:

"[We] cannot decide upon al1 these legal problems in this Council. We
cannot discuss here al1these facts which. as in a detective storv. first Drove
and then disprove various theories. ~uch deliberations are noi'required of
this Council. Its task is to decide essential questions connected with the
maintenance of international peace and security . . .
This, of course, does not mean that the Security Council is helpless in the

British-Albanian dispute, but it is not Our task to solve puzzles. Article 34
of the Charter states clearly that 'The Security Councilmay investigale any
dispute .. .in order to determine whether the continuance of the dispute or
situation is likely to endanger the maintenance of international peau and
security.'
There is no danger to peace in this dispute. The Corfu Channel has been
cleared, and there remains only the question of indemnities and not one of
world war or peace. We dono1believe1hut.aihrear fopeaceconresulifrom

lhot unforrunaleincidenr.ivhichtook placemanymonrhsaga.
..........................
There remains another way out, of course. We can use Article 36, para-
graph 3, of the Charter and cal1upon the parties to direct their dispute to
the International Court of Justice'." (Italics added.)

On 3 April the representative of the United Kingdom admitted that the case
"may involve no probability of an immediate breach of the peace2", and the
representative of Brazil elaborated the notions implicit in the Polish statement
of 24 February :

"The Security Council is not and cannot be a tribunal. It ispar excellence

' United Nations, Securily CouncilOficwl Records (hcrcinaftcr"SCOR"), 2nd Yr..
No.18,111thMtg., 24 I'cbruary1947,pp. 375-376.
SCOR, 2nd Yr., No. 32, 125thMtg.,3Apd 1947,p. 684. the political and executive organ of the United Nations. Ours is not a
judicial function, nor do we meet here as international judges.
..........................
While vesting the Council with ample and even elastic functions. the
Charter circumscribed them within the orovision that thev mus1 be dis-
charged in accordance with the princi$es and purposes'of the United
Nations. Whatevcr the nature of a dispute, it can become the ohject of the
Council's consideration only if its continuance is likely to endanger the
maintenance of international peace and security'."

484. The Corfu Channel dehatcs as such indicate an understanding of the
process involved that is antithetical to the construction of the Charter urged
upon the Court by Nicaragua in its Application and Memorial and that gains
al1the more force from beiiig nearly contemporaneous with the establishment of
the Charter system for the maintenance of international peace and security.
Decisions concerning the resort to force during on-going armed conflict are the
exclusive Dreserveof oolitical modes of resolution. which bv their nature need
not entaif determinat;ons of legal fault. onv vers e th^,cher structure can
accommodate, and in fact expressly contemplates, the possihility of judicial
settlement of disuutes that have not vet evolved into armed conflict, or that
involve questions'arising out of conflicis that had themselvescome to an end, so
long as the disputants consent to have the matter dealt with on that basis.

3. Posf-Chorrerefirts rodefine"aggression"
485. Of suhstantial relevance to the present case are the lengthy efforts to

achieve a definition of "aggression" that reached their culmination in the
adoption hy the General Assembly of the consensus definition set forth as part
of resolution 3314 (XXIX) of 14 Decemher 1974.
486. As earlier iioted, the drafters of the Charter deliberately dcclined to
include a definition of "aggression" in the Charter, for the principal reason that
no such definition could encompass al1 possible circumstances, and hecause a
technical and legalistic approach to the question could be exploited by a
transgresser for its own purposes. Active consideration of the issue was resumed
in 1950, when the General Assembly, responding to a Soviet initiative in the
First (Political and Security) Commiltee. adopted resolution 378(V) B of 17No-
vember 1950,whicli referred the matter to the lnternational Law Commission.
The International Law Commission was unahle to reach agreement on a
definition of "aggression", and so reported to the General Assembly at its 6th
Session2. The General Assembly at that session instructed the Secretdry-Gen-
eral to submit a report on the suhject to the General Assembly al ils 7th Ses-
sion'.
487. It is no1 the United States present purpose to address itself to the
multitude of legal and conceptual questions concerning the substantive aspects
of the question of defining "aggression" that confronted the participants in
these early discussions in the General Assembly and the lnternational Law
Commission; a useful summary may be found in the Report of rhe Secretory-

' Report ofthe /"ternntion~LowMiCo~nmissioCnoreringrhe6Workof /t.~ThirdSussion,
UnitedNations, CentralArsemblyOJJcirilRecord1(hereinaftcr"CAOR). 6th Sess.doc.
A/l85S,Chap III, pp8ff.
' Rerolution599 (VI) of 31 January1952.152 MILITARY ANI> PARAMILITARY ACTIVITIIS

Generaltu theGenerulAssemblyontheQuestionof DefiningAggression suhmitted
in response to resolution 599 (VI) (hereinafter "Secretury-Ceneral'sReport") '.
It is, rather, the United States intention to estahlish that these various issues
were addressed in an institutional context that went virtually unquestioned,

namely that the purpose and utility of any such definition of "aggression" would
be as euidance to the oolitical oreans in the exercise of their resoective
respon$bilities under the bharter; therecord is nearly silent with regard'to any
references to iudicial settlement of international disputes. In this reaard the
~ecretar~-Cenërul'rReport observes -
"98. In the first place, there was a discussion to determine which acts the

organs and Members of the United Nations should regard as constituting
aggression for the purpose of applying the collective security system.
99. Secondly, a study was made of the question of offencesagainst peace,
chief of which is the crime of aggression.
100. Though closely related, these two questions are distinct and were
considered separately hy the General Assembly and the International Law
Commission.
101. The qiiesrionof definingaggression concernth se political organsof
the UnitedNutions, since it is their duty to organize collective action to
check aggrersltm. anil to do so they niight h;ii,c Cudeterrnlnc the sggrcriir.
IO?. I'hc quesiion of the crime of aggrcswn al><> cilnccrn, iniernaiional
pcnal Iaw. ,incc perrons who commii acts decmed io cnnïiiiuic the crinie of
aggression must be punished. In normal circurnstances, the crime of ag-
gression will be tried some time after ils commission . . .(Italics added.)

The Secretary-Cenerai'sReport discusses, interalia, the "entent to which a defi-
nition of aggression would he hinding on the organs responsible for determin-
ing or punishing an aggressor" (ihid.,paras. 487-520). It is in that connection,
andthat connection only, that theSecretury-CeneraïsReport makesany reference
to this Court. Under the heading "legal value and authority of the definition
with respect to an international tribunal", the Report Statesthe following:

"503. In the Sixth Committeethe internationalcourt visualizedas the organ
responsible for applying the definition was a criminal court; but it is con-
ceivable that the International Court of Justice or an udhoc tribunal miuht
have occasion to deal with a matter relating to a case of aggression.

504. Mr. Abdoh (Iran) said:
'.. .that definition could serve as a guide to United Nations bodies and at
the same lime have mandatory force for a judicial body to be established in
the future'."

The Secretary-Cenerai's Repo orfïers no citation for the proposition referred to
in the second part of paragraph 503, and the Sixth Committee appears not
to have addressed the auestion. In anv event. the auestion of concern is not
wheiher ihe Court ma). niit. under ;in) .ircunirtiinccr. Iiaic u:<asioiitiJetermine
the ronsequcn.cr oi pJr1 "aggrc~riun" or unlawl'uluser uilrmed for:: @ener~lly:
rather, the question concerGhe comvetence of this Court. or anv iud.c.al oredn.-.
to evaluate'competing claims conceking the use of force during an on-going
anned conflict notwithstanding the Charter's allocation of such matters to the
political organs.

'CAOR, Anns. (VII) 54,pp. 17iT (doc. NO.A/2211).154 MII.ITARYAND PARAMILITARY ACTIVITIES

'Xrricle2

The first use of armed force by a State in contravention of the Charter
shall constitute prima facie evidenceof un acf of aggressionalrhoughthe
Securirv Council mav. in conformirv wirh rhe Charier. concluderhai a
dererm;narionihor a>;acr of aggresiionhas beencommiriedivouldnor be
jusrified in thelighr of orher relevanr circumstanciens c,luding the fact that
the acts concerned or their consequences are not of sufficient gravity

.......................
Arricle 4

The acts enumerated above are not exhaustive and rheSecuriryCouncil
may deferminerhar orheracis consiiiureagares..onunder the provisions of
the Charter.
..........................

Arricle6
Nothing in this Definition shall be construed as in any way enlarging or
diminishing the scope of the Charter, including its provisions concerning
cases in which the use of force is lawful." (Italics added.)

To similar eiïect is the fourth operative paragraph of resolution 3314 (XXIX):

"[The General Assembly,]

4. Calls the atrenfion of the Security Council to the Definition of
Aeeression. as set out below. and recommends that it should. as aoorooriate.
taie account of that ~efini~ion as guidance in determinini, in aLco;dancé
with the Charter, the existence of an act of aggression."

491. These features of the Definition of Aggression and resolution 3314
(XXIX) were not the product of chance. From the very beginning of the Special
Committee's work, there existed general agreement on the central role of the

Security Council'. It was also considered that the General Assembly had the
competence to provide guidance to the Security Council in this regard in view
of the Assembly's general competencies under Articles 10, 11 and 13 of the
Charter 2.The records of the Special Committce and of the consideration of its
work by the Sixth (Legal) Committee of the General Assembly contain no
mention of the possibility of the performance of such functions by an international

judicial tribunal, in particular this Court3. Indeed, one of the more difficult
problems with which the drafters of the Definition had to contend was that of
reconciling a formal definition of "aggression" with the discretion inherent in
the Sccurity Council under the Charter scheme. This problem was ultimately

'Secgenerally,Reporr of iheSpeclnl Commirie en iheQuesrioo nfDejining Aggression,
CAOR(23rd Sess.),doc. No. A/7185/Rev. 1.
Ibid, para. 39.
'Sec gcnerally, the Rcports of the Special Cornmittee on the Question of Defining
Aggression, GAOR (23rd Scss.). doc. A/7185/rcv.l, CAOR (24th Sess.), doc. A17620.
CAOR (25th Sess.),doc. A18019,GAOR(26th Scss.),doc. Al8419. GAOR(27th Scss.),
doc. A18719,CAOR(28th Scss.),dac. A/9019,and GAOR(29th Sess.),doc. A19619and
Corr.1,and the Rcports orthe Sixth(Legal) Committce.GAOR(23rd Scss.),doc. Al7402.
CAOR(24th Sess.),doc. ,417853,CAOR (25th Scss.).doc. A18171,CAOR (26th Sess.),
doc. Ai8525. CAOR (27th Sess.\. doc. Ai8929. GAOR (28th Sess.\. doc. Ai9411 and
~orr.1.'and GAOR (29th ~css.),doc. ~i9890.'Sn. alro' the summary recoidr of thc
c<>n>lJcrationof the ihruc tn thc Sitih lI.rg~l) C'oniitiiiiw. GAOR (2ir.i Sc,,),
dor ,\,C 6,SK 1020-IWY(lb2Rlh ~nd1073rdihrough 1052ndmeet!ngo. GAOR(24th
Sor i.doc i\C 6,SR I lllO-I175i I 164tihruugh I1701hmcciingr). GAOR1?5ih Ss\\ ). COUNTER-MEMORIAL 155

resolved in Articles 2 and 4 of the Definition, supra, which articles not only
affirm the primary responsibility of the Security Council, but underscore the

inherently political nature of the Charter scheme in so far as thedetermination
of such auestions is concerned. It is difficult to avoid the conclusion that the
drafters ckd not address the role ofjudicial settlement for the simple reason that
none considered it relevant to decisions on the resort to force during on-going
armed conflict, in particular determinationsof threats to the peace, breaches of
the peace and acts ofaggression.

492. In sum, the lengthy and complex history of the question of defining
aggression confirms the existence of a virtually universal understanding of
memher States that matters involving on-going armed conflict are the exclusive
province of the political organs- in particular the Security Council- under
the structure established in the Charter.

doc. AIC.6ISR. 1176-1244(1202nd ihrough 1209thand 1211ththrough 1213thmcciings),
CAOR (26th Sess.).doc. A/C.6/SR. 1245-1307(1268th through 1276th, and 1281st
meetings).CAOR (27th Sess.),doc. A/C.6/SR. 1308-1393(1346ththraugh 1352nd.1366th,
and 1371stmectings). GAOR (28th Sesr.), doï. A/C.6/SR. 1394.1459(24391hthrough
1445thmeetings). aiidGAOR (29th Scss.), doc. A/C.6/SR. 1460-1521(1471~1through
1484th,1486ththrough 1489th.and 1502ndthrough 1505thmectings). CHAPTER III

THIS COURT MAY NOT PROPERLY EXERCISE SUBJECI'-MATïER
JURISUICI'ION OVER NICARAGUA'S CLAIMS

Section 1. 'I'heCourt Should Defer to the Other Organs of the United Nations with
Respect to Matters Coniided to thox Other Organs by the Charter

493. One of the ~rincioal distinctions between this Court and ils oredecessor.
the Permanent CO& of'lnternational Justice. is that this Court is in organ of
the United Nations. Article 92 of the Charter provides in this respect:

"The lnternational Court of Justice shall be the principal judicial organ
of the United Nations. It shall function in accordance with the annexed
Statute, which is based upon the Statute of the Permanent Court of
International Justice and forms an integral part of the present Charter."

The inclusion of the Court as a "orincival or-an" of the o. .osed new eeneral
internliii<>nali,rgdni,aiionWY, agriL.L"~ion without niuih d~lli~ult? in <onkitioii
with the dr.\elopnient of the I>unibcirtun Oakr Pr~~osals' :ind \ras rcadil\
accepted by the San Francisco Conference2.
494. The Charter. in addition to beine an iuternational aereement'.is an
instrument of a cons~itutional character3. In order for any organirational ;cherne
to function in the intended manner, each clement of it mus1 exercise particular
caution to avoid infringing the designated spheres of action of the oihers. The
position of the Court in the United Nations system oNers no exception to this
basic principle:

"The meaning of the statement that the Court as an organ is an integral
part of the United Nations as an Organization has to be elucidated from
the general principles of the law of the United Nations regulating the
relations hier se of the organs; and those of the organs individually with
the whole, the Organization . . .[Tlhere is no reason to suppose that it
would attribute to itself, as a principal organ, a general character any

diferent from that which it would attrihute to other principal organs . ..
The will of the Organization is made manifest hv the actions of those
organs within whose Ghere of competence a particular matter lies. This was
made clear in the interpretation given by the Court to the phrase 'judgment

' Russell.<>p.cil.at pp.429-430;Krylov, op. cil.al pp.52-53.
"Thcjudicialproccsswillhave a centralplacein the plansof thc UnitedNationsfor
the scitlcmentofintemotionaldisputesby peacefulmeans. An adcquatctribunalwillcxist
for the exerciseof thejudicial funciion, and it will rank as a principal organof thc
Organiration." (R~porlO/ ComnxilreeIV11 (Inrern<ilional Courof Jusrice) ru Comnzisrion
IV (Judicial ODrgonizoliondoc. 913/1V/1/74(1),13 U,VC% p.381,al p.393.)
See gcnerally,Kopelmanas, op. cil.Vallat,"The GeneralAsscmbly and the Sccurity
Councilof the United Nations",29 BrirLrhYeor Book o/lnlernolionr>l /ah', 63,al p. 66
(1952); Reporr IOihe Prerident, op. cil. of the Organization' appearing in Article 4 of the Charter '.'The judgment
of the Oreanization means the iudement of the two oreans lthe General
~ssembl~and the Security C/un$] mentioned . . .'-~urtkermore, 'to
ascertain whether an organ has freedom of choice for its decisions, teference
must be made Io the terms OSils constitution'. It then depends upon the
terms of the Charter whether such expression of will is binding upon the

other principal organs, or merely persuasive for them: but in general it
cannot be doubted that the mutual relations of the principal organs ought
to he based upon a general theory of co-operation hetween tbem in the
pursuit of the aims of the Organization.
This approach opens the way to afunciional cimceptiori<$the task ofthe
Courr in ils cuoocilvof u orincinulorean of the United Naiions. occordine Io
which,suhject ;i>ovérr;dinicons~deruti~ns o~lutv(incl~dingj~dicialpro~ri~i~),
rhe Court musr CO-operarein the aiiainrnent of rhe aims of the Organizarion
and srrive IO givc efcct Io rhc decisionsof rltc~oiherprincipal organs, and no1

aclrieveresults buhichworrlrlrrnder them nufllory." (S. Rosenne, The Law
und Practice of the Internutionul Court, Vol. 1,pp. 69-70 (italics added).)
495. The jurisprudence of the Court contains ample recognition of the
proposition that the Court, in the exercise of its judicial functions under the
Charter, must act with due regard for the functional responsibilities of ils

co-ordinate orgaus :
"lt is the acl of the Applicant which seiscs the Court but even if the
Court, when scised,finds that it kas jurisdiction, the Court is not compelled
in every case to exercise that jurisdiction. There are inherent limitations on

the exercise of the judicial function which the Court, as a court of justice,
can never ignore. There may tlius be an incompatibility bctween the desires
of an applicant, on the one hand, and on the other hand the duty of the
Court to maintain itsjudicial character. The Court itself,and not the parties,
mus1be the guardian of the Court'sjudicial inlegnty" (Ni,rllrcrrrCa~~reroons,
Judgmenr, 1CJ Reporrs 1963,p. 15,at p. 29.)

496. The Norihern Cameroonscase involved a claimed breÿch by the United
Kingdom of ils obligations under the Tmsteeship Agreement for the Territory
of Cameroons of 13 Decemhe~~1946. On 21 Aoril 1961 the General Assemblv
,iJopted ;ircw>luii~~incrminating ~hat,\grsenlent. iiisu 13r.is iho>e;i~pc<t> %il'
princip,il intcrcst 10 tlte .ipplii;int wcrc c.>nccrncrl.~~lfi~tirr. Junc 1961' On
3(1Ma\ 1961.thc dnnliisnt instituteJ nrscsedincs in th? Ci~urt F.lah<~ratinron
the gekral &incipie of judicial prop;iety statèd in the preceding paragGph,
the Court found that it could not adjudicate upon the claims of the applicant

(Judgmenr, op. cit., at p. 38). In doing so, the Court made certain observations
of direct relevance to the present case:
"lt was not IO this Court but to the General Assemblv of the Unitcd
Nations that the Republic of Cameroon [i.e., the applic~nt] directed the
argument and the plea for a declaration that the [complained-of] plebiscite

' Thc rcferenccis to Article4 (1)ol theCharter:
"Mcmbershipin the UnitedN;itionsis open Io al1ather peacc-lovingStateswhich
acceptthc obligaiionscontaincd i~ihe presentCharter and, in thcjudgmentof thc
Organization, are ableand willingIo wrry out theseobligations."158 MII.ITARYAND PARAMILITARYACTIVITIBS

was nuIl and void. In paragraphs numhered 2 and 3 ofresolution 1608(XV),
the General Assemblv reiected the Cameroon le a.Whatever the motivation
of the General ~ssimbi~ in reaching the c8nciusions contained in those
paragraphs', whether or not it was acting wholly on the political plane and
without the Court finding it necessary to consider here whether or not the
General Assembly based its action on a correct interpretation of the
Trusteesbip Agreement, there is no doubt - and indeed no controversy -
that the resolution had definitive legal efect . . .

If the Court were to decide that it can deal with the case on the merits. ~.
and ti'therealier. ii)llowing argument on the nierits, ihc ~ourtdçci&d, inrrr
uliu.ihat the establishment and the maintcnanse of the adm~nistrati\e unlon
hetween the Northern Cameroons and Nigeria was a violation of the Trus-
teeship Agreement, it would still remain true that the General Assembly,
acting within its acknowledged competence, was no1 persuaded that either
the administrative union, or other alleged factors, invalidated the plebiscite
as a free expression of the will of the people . . .

If the Court were to proceed and were to hold that the Applicant's
contentions were al1sound on the merits, it would still be impossible for the
Court to render a judgment capable of effective application. The role of the
Courr is no1 rhe same as rhar of rhe General Assembly. The decisionsof the
GeneralAssemblywould no1he reversedhy thejudgment of the Courr." (lbid.,
at pp. 32-33 (italics added).)

The Court has similarly recognized that one organ of the United Nations can-
not exercise the authority expressly vested in another co-ordinate organ hy the
Charter '.
497. The Court should be guided by the foregoing considerations and, as a
consequence, should hold the Nicaraguan Application of 9 April to be inadmis-
sible. The United States has demonstrated that the necessary enect of the Nica-
raguan Application is to require the Court to determine that the alleged activi-
ties of the Respondent constitute an unlawful use of armed force amounting

to a threat to the peace, a breach of the peace or an act of aggression within the
meaning of the Charter. Such matters are expressly confided to the political
organs and, as will be demonstrated, those organs have acied, and are acting,
in respect of virtually identical claims placed hefore them by Nicaragua. Any

' Thecitedparagraphnprovideas follows:

"[The CentralAssembly]
2.Endorses theresulrso/ihe plebircirerrhot:

(a) The peopleof the Northem Cameroons have,by a substantialmaiority,dnided
Ir.irhic\s in<lrpcndencbg loining thr~ndcpcndini1-rdrraii<>o nl-Nigfri.1.
(0 'hcpeopleolths SouthcmCsmiruunr hii\~,~mil~rlydecldcdio actiic\r indcp;".
Jcnïe b) loinin&the indcpcnd~nlRcp~hlic.,iCamr.roon.
3. Considersrhar,the people of the two parisof the Tmst Territoryhavingîreely
andsecretlyexpresscdtheirwishcswithregardto theirrespectivefutures in accordance
with the General Assemblyresolutionr 1352(XIV)and 1473(XIV), the dccisionr
made by them ihrough democraticprocessesunder thc supervision of thc Unitcd
Nations should bc immcdiatelyimplemented."

Comperenco e/the GoierolAssembly/nrrheAdmission o/n Srarc 10theUnitedN<iii<ins,
Phme.JudgmenrI.CJICJ. Reports1966,, p.6,atap.49.. Seealso, Suuih WestAJricn.Second COUNTER-MEMORIAL 159

judgment on the merits by the Court could neither invalidate the conclusions
reached by those organs, nor the actions consequently taken by them.

B. The Memel und Minority Schools CasesAre no1Relevant Io theIssuehefiire
ihe Court

498. The reliance in the Nicaraeuan Memnrial on certain nrior decisions of
this~ourt and itspredecessor in thjsre ardimispla&d. ~wL~ofthe decirions
relied on, Memel' and Minoriiv Scliools 5, are decisions of the Permanent Courl
of International Justice which...nlikc this Court. was not an orean of a eeneral
international organization and was consequently under no comparable insti- u

tutional constraints with respectto the exerciseof ilsjudicial functions. Moreover,
in neither case was the subject-matter one which had heen confided to the
competence of anothcr organ. Indeed, in both cases, the suhject-matter had heen
expressly put before the Court by special agreement.
499. The question in Memel was confined to the interpretation of Article 17
of the Convention of Paris of 24 Mav 1924concernine the Territorv of Memel.
The caseconcerned whether the to that instrument had intendid Article 17
thereof to establish reference of "any infraction" of the Convention to the

Council of the Lea-ue of Nations as a condiriosine au0 non to the reference of
ÿny difkrenze of opinbon rïgarding "qursiions ul'lkiu or of fari concerning" lhc
Convention tu the Perniÿnçnl Court The Courl closcly exliminrrl the tcxl of thc
nro\irion at \>rueand cun~luded ihai therc wai nothing thçrcin "10 show ihxi it
kas the intention of the Parties to make proceedings before the Council a con-
dition precedent to proceedings before the Court" (Memel, op. cil.,at p. 248).
Moreover, the Court carefully noted that -

"[tlhe actual text of Article 17 shows that the two procedures relate to
different objects. The object of the procedure before the Council is the
~ ~ ~ ~tion of an 'infraction of .~e orovisions of t~~ Conven~i~n'. which
presuppose an act already committed, whereas the procedure hefore the

Court is concerned with 'any diKerenceof opinion in regard to questions of
law or fact'. Such diferen& of opinion may arise without any infraction
having been noted. It is truc that one and the same situation may give rise
to proceedings either beforc the Council under the first paragraph, or before
the Court under the second; but that will not always he the case, and this
sufficesto prove that the two procedures are not necessarily connected with
one another." (1bid)

The narrowness of the Court's inquiry is underscored hy the final paragraph
of its decision, in which the Court

"desires to emphasize that nothing that il said in this judgment is to be
regarded as prejudging in any way the interpretation of the jurisdictional
clauses in [other minority treaties]" (ibid.,a1p. 253).

500. The Court's decision in Minorify Schools is to comparable effect. That
case involved the constmction of certain provisions of the Polish-German Geneva
Convention of IS May 1922, one of which provided that "any difference of
opinion as to questions of law or fact arising out of these articles" would be

' lnrerprernrio"/the Slorure O/ rheMemel Terriiory,PreliminaryObjeclionJ . udgmeni,
1932. P.CI.J.,SeriesAIE. No.47, p.243.
Righl~ O/ Minoririesin Ilpper Sileria (Minoriry Schoold, Judgmenr Na. 12, 1928.
P.C.1J., SeriesA. No. 15.submitted, on the demand of one of the parties, to the Permanent Court.
Germany made such a demand, and both parties entered written pleadings. It
was only in ils rejoinder, however, that Poland objected to the jurisdiction of
the Court. The Court held that Poland had submiit~d~to t~ ~ ~~isd~,~~~~~~~~~~~~
Court by ils previous filings on the merits (Minoriry Schools, op.rit., at p. 24).
In respect of Poland's untimelyjurisdictional objection the Court observcd:

"The Court's jurisdiction depends on the will of the Parties. The Court is
always competent once the latter have acceptcd its jurisdiction, since there
is no dispute which States entitled to appear before the Court cannot refer
to it. Article36of the Statute, in ils first paragraph, established this principle
in the following tems:

'Thejurisdiction of the Court comprises al1cases whichthe Parties refer
to it and ail matters specially provided for in treaties and conventions
in force.'

This principle only becomes inoperative in thosc exceptional cases in
which the dispute which States miaht desire to refer to the Court would fall
within the exclusive jurisdiction Ïeserved to some other authority. That,

however, is no1the position in the present suit; for thejurisdiction possessed
by the Council of the League of Nations under Articles 147and 149 of the
Geneva Convention to decide upon individual or collective petitions, is
entirely distinct from, and in no respect restricts, the Court's jurisdiction to
hear and detcrmine disputes between States." (Ihid., at p. 23.)

,\s in .!1i,ni?I.thc C<>urtin .\lrii(irrS<.hi~<icmpha\i/cd ih.11in t':icino question
crironilieting conipeteri<icr wd3 involi.cJ. in thai the rub,c~t.niaIters of cÿch
werc Ji>tinci.
501. Morcoicr. hoih hlt,»irl and .\lini,rin. S~hools ini,iili,edthe jurisd~ci~onof
ihe Perniÿneni Couri 1,)enteriain quesiloni çubniiited under i\riiclc 36(1) of iih
Staiuic, rathcr than Article 26 (1) (the so-isllcd "<iritii>nal clause"^ The fait
that the parties had previously c&s&ted, by special agreement, to ihe exercise

by the Court of a specificsubject-matter jurisdiction is a fundamental distinction
from the present case, in which the Applicant is seeking to derive the existence
of a specific subject-matter jurisdiction from the general language of Article
36 (2) of the Statute of this Court, notwithstanding the express allocation of
such matters 10 the political organs under the United Nations Charter and the
absence of jurisdiction over either Party.

C. The Diplomatic and Consular Staff Case Doesnor Establish the Compelenceof
rhe Cour1roAdjudicareNicaragua's Claims

502. The Nicaraguan Memorial fundamentally misconstrues the decision of
this Court in the UniredSrores Diplornaricand ConuulrirSiafcase'. The Court
in that case was at no time called upon to adjudicate an on-going use of armed
force alleged to be contrary to the Charter, nor any other matter committed to
the competence of the Security Council or any other CO-ordinate organ of the

United Nations, or that was othenvise under consideration in those fora.
503. On 4 November 1979 the United States Embassv in Tehran was seized
anil ii,cntire Cnited St:ite\ siair takcn hi~ri;tgc Kcpei~tcd3ppc:ilr to the Iranian
C;o\criiiiicni Il>rthe relca,r.3f lhe hosi;i&csucrc una\ailing.ind, on 23No\eniber COULITER-MI~MORIAL 161

1979, the United States instituted proceedings before thts Court, not under
Article 36 (2) of the Statute of the Court, but under Article 36 (1). In doing so,
the United States claimed violations of Iran's obligations undcr several hilaterdl
or multilateral instruments, each of which provided specificallyfor the suhmission
of disputes arising thereunder 10 the jurisdiction of the Court1. The United
Statesapplication was acconipanied by a request for an indication of provisional
measures of protection2.
504. Oral proceedings were heldon that request on 10December 1979.During

the course of those proceedings, the United States look pains to emphasize that
the legal claims of the United States were grounded solely in the aforementioned
international agreements and their respective compromissory clauses. and to
stress that no question of the unlawful nsc of force under Article 2 (4) of
the Charter of the United Nations was before the Court3. On 15 December
1979, the Court indicated provisional measurcs to the effect, inter alia, that
"[tlhe Government of the lslamic Repuhlic of Iran should ensure the immediatc
release" of United States diplornatic and consular personnel heing held hostage
in Tehran 4.
505. On 9 November 1979,the United States addressed a letter to the President
of the Security Council, calling the attention of the Council to Iran's actions in
seizing the United States Embassy and holding its personnel hostage as violative

of "the very basis for the maintenance of international peace and security and
of comity hetween Statess." On 25 November 1979, the Secretary-General, in
the exercise of his authority under Article 99 of the Charter, addressed a lettcr
to the President of the Security Council in which he expressed his opinion that
the "dangerous level of tension" between the United States and lran posed "a
serious threat to international peace and security6". On 4 Decemher 1979 the
Security Council adopted resolution 457 (1979), noting the Council's deep
concern that that tension "could have grave consequences for international peace
and security", calling upon lran 10 release the hostages, and upon hoth the
United States and Iran "to take steps to resolvc pcacefully the remaining issues

between them".
506. lran did not honor the Court's Ordcr of 15 December 1979and, al the
request of the United States, the Security Council met again in late Decemher
1979 to consider measures to induce Iran to comply with its international
obligations. On 31 Decemhcr 1979,the Security Council adoptcd resolution 461
(1979) which. inrrruliu. exnresslv look into account the Court's 15 December
1973 Order and depl<,rcdtic ioniitiucd Jr.t~ntiiin iiiihs h<>stsgonriiuithrtanil-
ing that Order and Sccurity Cuunril resoluiion 457 11'>7\))T . hai rcsolui~i>nalso
encompassed a decision to mect subsequently "10 review the situation and, in

' I.C.J. Pleudinga, Uniled Sialo. Diplomalic und ConrulorSrafl in7Chrrin,p.3. The
agreements in question werc (1) thc VicnnaCorivcntionson Diplamaticand Consuldr
Relations,and theOptionalProlocals IObath,(2) thc UnitedStates-IranTreaty of Amity,
EconomicRclations and Connular Rights of 1955,and (3) thc Convention on the
PrcventionandPunishmeni ai Crimesapinst lnternationallyProteclcdPersons.tncluding
Di lomaticAgents.
lbid.at p.9.
' I.C.J. Pleading., p. cia1 p.24(oralargumentor Counsel for the UnitedStates).
UnitedSioies Diplornoticond ConscilorStaff in Tehrari.ProvirioMeusures. Orderof
15 December1979. 1.C.J.Reports1979, p. 7.
SCOR, 34th Yr.,Supplenienrfor Ocrober.Novemberand Decemher1979, p.61 (doc.
S/13SCOR, 341hYI., Supplemenr forOclober.Novemherund December1979, p.83 (doc.
S/13646).162 MILITARYAND PARAMILITARY ACTIVITIES

the event of non-compliance with this resolution, to adopt effective measures

under Articles 39and 41 of the Charter of the United Nations".
507. It is therefore clear that the questions before the Court arose under
specifictreaty obligations, none of which related inand of itselfto the maintenance
of international peace and security or to any question concerning the lawfulness
of the use of force'. and al1of which could be adiudicated without reachine anv
legal or factual determination confided by the clkirter to the competence if the
Securitv Council. The Council, on the other hand, had before it a dispute which,
for reaions separate from the legal questions before the Court, thrëatened the
maintenance of international peace and security and could be dealt with on that
basis2. Moreover, it was also quite clear that no action by the Court in favour

of the United States legal claims would have been inconsistent with the actions
taken by the Security Council; indeed, the Security Council took specific note
of the Order of 15December 1979indicating provisional measures in itsresolution
461 (1979), and called upon Iran to comply with that Order. The Court took
this into account3. A suhsequent judgment on the merits in favour of the United
States would not have been in conflict with that resolution or with any other
action of the Council already taken4.
508. There is yet another distinguishing Factor hetween the Diplomaiic and
Consular Staffcase and the present case. In the former case the Court was faced
with a naked assertion by Iran, neither briefed nor argued to the Court, that its

seizure of the United States Emhassy and staff was but a part of an "overall
problem" involving what was alleged to be "more than 25 years of continual
interference by the United States in the interna1 aîlidirsof Iran5". The Court
quite properly rejected that vague and unsupported assertion as a bar to its
exercise ofjurisdiction 6.
509. More fundamentally, the Court in the Diplomaricand Consular Staffcase
was at no point called upon to adjudicate an alleged on-going use of armed force
contrary to the Charter, nor any other matter falling within the competence of
the political organs. The United States neither claimed, nor called upon the
Court to determine, that such a situation existed. The legal claims put before the
Court by the United States werc wholly independent of its appeal to the Security

Council for the assistance of that orean in achievine. bv ~eaceful means. a
resolution of a dispute that threatenedthe maintenance O? international peace
and security; the two organs could act concurrently without infringing each
other's resnonsibilities under the Charter. No third States not Dresentbefore the
Court wek involved.

'The Court explicitlyacknowlcdgcdthis in commcntingupon the United States
unsuCf. the uncontestedsiatementmadebeforeihcSccurityCouncilon 4 December1979
by the Pcmanent Rcprescntativcof the UnitedStatcs to theeffectihat

"[nleitherthe UnitedSiates nor any other Memberintends that ihc adoption of
[rcsolutio457 (1979)lshallhaveany prejudicialimpactwhatcvcr on the requestof
thc Unitcd States for the indicationof provisionalmeasurcsof proieclion by the
I.C.J.Pleodinpxu.p.cil.,at p34).SCOR,34th Yr.,2178thMtg., para. 23; see also
. ~
' Jud~men! . n. ri!at P.21. 510. By contrast. the claims asserted by Nicaragua before this Court are
indistin~uishable from the claims asserted bv Nicaragua in the Securitv Council.
The cannot adjudicate upon the ~icara~uan App~icationwith&t dealing
with the very claim that was not before the Court in the Diplornuticand Consular
Staffcase - a claim of an on-going use of armed force contrary to the Chaner,
a claim which is confided by the Charter to the political organs.

Section II. Nicaragua 1sRequestingthat the Court ReviewDecisionsAlrcad)
Taken by the Political Organs

511. On 4 April 1984 - îive days hefore Nicaragua moved to institute
proceedings in this Court - Nicaragua presented essentially identical claims
before the Security Council (Application, para. 12). A draft resolution corre-
sponding to those claims failed to achieve the requisite majority for adoption

under Article 27 (3) of the Charter. The Application constitutes a request that
this Court hand down a determination that the Security Council, in the proper
exercise of its functions under the Charter, did not make. Nicaragua is thus
calling upon this Court to serve in the nature of an appellate tribunal over
decisions taken by a co-ordinate organ of the United Nations acting within ils
designated competence under the Charter. These efforts should be rejected
(Norritern Cameroons, op. cil.).
512. Nor should Nicaragua be heard to argue that the failure of ils claims
to attain the requisite support in the Security Council. or that the perceived
likelihood that similar claims in the future would fail to secure the majority
specifiedin the Charter for Security Council action, vests this Court with subject-
matter jurisdiction over the Application. The architects of the Charter system,
in delegating to the Security Council and to regional arrangements the responsi-
hility for dealing with circumstances such as those alleged by Nicaragun, did so
with the clear and deliherate knowledge of the procedures that they chose to
prescribe for Security Council action, both as to the political nature of the

decision-making process and to the inajority required'.
513. Nicaragua may find the fact that the decision-making proçess estahlished
by the Charter for dealing with on-going armed conflict functions as it was
designed to function to be a source of dissatisfaction, as it may he to any other
memher State, including the United States, whose requests are not satisfied. But
that alone cannot he an adequate hasis for the assumption of subject-matter
junsdiction by the Court (South WestAfricu. op. cil.,at p. 46). Adjudication of
Nicaragua's claims would place the Court in the positioii of reviewing, at the
behesi of a Member Siate. the acts of a co-ordinale orean of the United Nations
syst&. A party to an alleged dispute, ha& failed to ibtain the action it desires
from the Security Council, cannot thereupon turn to this Court and submit for
adjudication substantially identical claims, without necessarily asking for a
judgment that, in so far as it would be hinding on the parties under Article
94 (1) of the Charter, would effectively rerider the Council's previous action

'See generallyRussell,op.cil.,al pp.713K; Krylov, op.cil.al pp. 169A; II UNCIO.
pp. 232-238,304-362,487-495.Nicaraguawasamongthosedelcgationsal San Francisco
that votedagainrteKons 10 modifywhaibecamcArticle27 (3) ofthe Chaner (Suntnrory
Reporro/rhe NineleenthMeetingo/Cominillee111/1d ,oc.956/111/1/47 11 UNCIO. p. 486,
at p.495).164 MILITARYAND PARAMILITARYACTIVITIES

"nugatory '". It must be emphasized that these difficultiesinhere in the substance
oftheNicaraguan allegations; they cannot becured through mere artful pleading.

514. Rejection by the Court of the unique and unprecedented burden that
Nicarae-a seeks to thrust unon it would no1 affect ils continued abilitv ,o ~l.,
LIsigniiicant role under the Charter in relation to ihc inaintcnancc of intcrn;iiion;il
pcace 2nd sc<uriiy. ï'hc iunct~~ins (ii thc Court in conncctioii ivith pacilic
scttlcment undcr Articles 33 dncl 36 t31oithc Chdrtcr. the renderinc <~l'~Jvi.i.>r!
.ipinion\ at the requcst uf ilte piiliti>al iirgdns iiiidcr ArticY6.of-the ~h;irte;.
and ils power 10 adjuJ~:~te conlcntious çldints regariling spcçilic Icgdl ir\ue\ no1
involving resolution of on-going uses of force alleged to'be contrary to the
Charter (Biplonzaric and Consular Srafl op. cil.), or that related to past occur-
rences (Corfu Channel, op. cil.), would in no way bejeopardized.

Section III. Article 51 of the Charter Precludes Impairment of the lnherent Right
ofIndividualand CollectiveSelf-Defense

515. As previously shown, Nicaragua is, in effect, demanding that the Court
adjudicate a claim of "aggression" or, at the very least, a claim of the on-going
use of armed force contrary to the Charter in or against Nicaragua. In order to
reach any such determination, however, the Court must necessarily decide that
the alleged actions by the United States and other States, no1 present before the

Court, are in fact unlawful. More specifically, the Court would necessarily have
to decide whether or not the countewailing claims of the exercise of the right of
individual or collective self-defenceare without merit, or that the right recognized
and guaranteed by Article 51 of the Charter in this regard is not implicated.
Indeed, Nicaragua has attempted to avoid this prohlem by implicitly claiming
that the United States enjoys no such "inherent right" in the present case2. This,
however, merely begs the question, since its validity would inevitably depend

'Rasennc, loc cil.It would bedifficultto speculateon the consequencesshould a
victoriousapplicant in sucha case thereaftcrbring ilsjudgment ta thc SecurityCouncil
for enforccmcntunderArticlc94 (2)of the Charter,beyondnotingthe potentiallyserious
damageto the prestigeand eiiectivenessof both co-ordinaleorgans(cf. O. LissitzynTlie
lnrernaiinnol Couri ofJusrice; lis Role in rhe Afninlenanceof lnlernurionnl Penceand
Seeuriry,p.96 (1951)). The amendment proposed by Belgiumal San FranciscoIo allaw
a mcmberStateto seekan adviroryopinionconcerning a decisianof thc SecurityCauncil
wasrcjected, Torsimilarreasons (seesupra,para. 476,n. 4).
Al 1,p.62.Nicaraguadoesso by assertingthat ihcreexists no "amcd attack" giving
riscto the inherent rightsrecognizeand guaranteedbyArticle51.Thecxccssivelynarrow
constructionofthe phrasc"if an amed attack occurs"advancedbycounselfor Nicaragua
auconvcntional,crors-bordcrmilitaryassault. Nicaraguawould thus dcny Io States the
right under Article51to engage.individuallyand collectively,in proportionalemeasures
to respondto unlawful usesof rorcc havingdiiierent, lessconventional,characteristics.
This isa distinctlyminorityvicw (sec,cg., D. Bowett, Sel/-Defencein lnrernorionnllaw,
pp. 187.193(1958); 1. Brownlic, Inrernniionol Law and ihe Use of hrce by Slures,
pp.365-376(1963); M. McDougaland F. Fcliciano,Low and Minimum World Public
Order, pp.223R (1961). Secalso the discussion ofthe questionof countcr-mcasurcsin
respectof internationallywrongfulacts fallingshort ofan "armed attack" in the Repori
of the InrernniionalLuw Commissionon rhe Workof Ils Thor?-Fir.rrSemion,GAOR, 34th
Sess..Supp. No. 10(doc. A/34/10)). It is inany event the case that competingclaims
rcgardingthe lawfulncssof individual andcollective measurestaken in rnponse to an
on-going use of amed forcc arc rcservedbythe Charterfor detemination by the political
organs, in particular the SecurityCouncil (as thc expresslanguagcof Article51 itsclf
makcsclcar).upon the adjudication of an Article 51 claim in the midst of the alleged on-going
armed conflict, a matter that is confirled hy the Charter 10the Security Council.
516. It is well settled that the right.of individual or collective self-defence is
an inherent right of States'. The special and extraordinary nature of the right of

individual or collective self-defense is explicitly recognized in the prescription
of Article 51 that "[nlothing in the present Charter shall impair" that right.
Article 92 of the Charter makes the Court an "organ of the United Nations",
and further provides that that Statute of the Court is an "integral part" of the
Charter. Action taken bv the Court is therefore a matter under the Charter. and
any such action that ha2 the effect of impairing the inherent right of a tat tte
engage in individual or collective self-defense cannot he reconciled with the
express language of Article 51, whichprovides a role in such matters only 10the
Security Council. Article 51 permits only the Security Council to take action

with respect to claims of self-defense, and a judgment on the question by the
Court would constitute an entry in10 the field of competence rcscrved to the
Council in this reg-rd.
517. A ~udgmcni i)ithe Court th11purportcd IO den) the salidit! of :ISi>ic'\
claiin IJ he engagcd in self-JeC:n,e u,heiher indi\,iJuall!. <ir collcciivel), riiusi
newsiïril\ "imnïir" thc "inh~.rcnt" richt cu;irdniced to thai Siïie bv r\rticlc 51
of the ~harter.'To the extent that that ~ïate claims, as does the united States
here, to be engaged in parlicular in the exercise of the inherent right of sel(-

defense byproviding, upon request, proportionate and appropriate assistance to
third States not before the Court. anv such iudement would necessdrilv imoair
the inherent rights guaranteed to'thise thiri ~Gtes as well. The relie<claiked
hy Nicaragua (Application, para. 26), in particular the denial of assistance to
third ~tat&, wouid~haveprec;sely this resujt.
518. Ajudgment of the Court could no1al once he incompatible with Article 51
of the Charter, and hinding on the parties under Article 94 of the Charter and
Article 59 of the Statute of the Court. Such a contradictory result could no1

have been intended by the architects of the Charter, whose clear design was to
leave the resolution of on-going amed conflict to the exclusive competence of
the political organs.
519. It is, moreover, unnecessary for an adjudication of a Party's Article51
claims to proceed to judgment for that Party's inherent right of individual and
collective self-defense to be impaired. The fact that such claims are heing
subjected to judicial examination in the very midst of the conflict that gives rise
to ~ ~ ~ ~ ~ ~ ~e~be ~ ~ficientto constitute such imnairment. This is oarticularlv
the case where, as here, the Party instituting proceédingshas evidenily donc si

for the purpose of securina political and other extra-legal advantages in order to
further ;ts own aims in reGct of the underlvine c.nll~ct.An eveGual iudeinent . -
In ihe othcr Party's hvor could no1rr~>tgirtrh .e impairmeni ih;it tir inicresis niay
le und in te ri. ï'hc Court sli<~ulJnoi :iilmii yuch an ahu\c or
the j~dicial~rocess

'In ihi prerenicor< [herc i<no c1;iim in connwii<in uiih i\riiclil thai the Sccuriiy
Cuuncllha, no1 hLwl madeanarc ofthe :iiuaiianil;ilmrJby Siiaragu.i iui.&~,i iCcniral
r\mirii:,.2nd ~ndmdsuch A cl.Iimk<>~ld hl.inconri>tini*#th Sicdr.tl?ii..iuiiallccliion\
l~r>r>lic>ion wra. 12).The Councll has debatcdtheconflict in ~entmlAmerica onscvcral
oc&sionsand:in rcsoiution530.discussed infra,hasacted upon il CHAF'TERIV

THE JUDICIAL PROCESS 1SINHEREhTLY IXCAPAB1,EOF
RESOLVING ON-GOING ARMED CONFLICT

520. Bearing in mind that, at this stage in the proceedings before the Court,
the Parties must address the issues raised in the Application without regard to
their truth or to other issues on the merits, the Application alleges an on-going
armed conflict involving the use of armed force contrary to the Charter. That
allegation is central to, and inseparable from, the Application as a whole, and
is one with which a court cannot deal elîectively without overstepping proper
judicial bounds.
521. The following arguments, while distinct from the previous arguments
concerning the Charter's allocation of functions among the various organs of
the United Nations, are yet related to them. As has been shown', the overriding
concern of the framers of the Charter was to devise mechanisms for dealing with
situations of on--oineuarmed conflict that were hoth swift and effective.To that
clid, th..). deliberdieih.ise iciarrlgn iunitii>nal rcspnnsih~lit) for such ni'iiicrj
io ihc poliiical iirgan., and in pariirular in the Sccuriiy Counal. ïhey JiJ su ai
lea\t in vari in recocniiion of the inhcreni Iimiiatiuns of the iudicial function in
settling &ch situations.

Section 1. The Nature of the Judicial FunctionPrecludes lts Applicationto the
Substance of Nicaragua's Allegations

522. The nature of the judicial function is, first and foremost, the evaluation
of competing legal claims by means of the application of settled legal principles
to facts that are both provable in law and of sufficient stability to permit the
definitive resolution of those legal claims. The judicial process is capable of
addressing a pattern of legally relevant facts only if that pattern is discernible by
the means availahle to the adjudicating tribunal, establishable in conformity with
applicable norms of evidence and proof, and not subject to further matenal
evolution during the course of, or subsequent to, the judicial proceedings.
523. The resort to force during on-going armed conflict almost invariably
lacks precisely the foregoing attributes. The pattern of facts necessary to the
achievement of a legal conclusion, and to an effective resolution of the conflict
itself, is incapable of judicial ascertainment through the technical and formal
procedures and evidentiary standards applicable to proofs at law. None of the
parties to such a conflict can be expected to be prepared to disclose to a court

~otentiall. .rohative information that it determines that it must strictlv control
for rc~isonsof nalional 5ecuriiy. Inli>rmatiiinçilnccrning the inicniions or aciiuits
uf onr or anoihcr <ifihe pariicr in an on-going amwJ conflici Jeriied from ihtrd
parties would invariably have little or no probative value; newspaper accounts
concerning what may or may not be taking place are inherently unsatisfactory
even as historical, let alone legal, cvidence. Eyewitness accounts to armed

'See, inredia, the discussionofthe hisioryofArticle1 (1) oftheCharter, supra.hostilities are invanably and inevitably colored by subjective factors that render

such testirnony fundamentdlly untrustworthy regardless of the good faith of the
deponent'. These difficultiesapply regardless of the nature of the on-going armed
conflict; they are greatly exacerbated in situations such as thal alleged in the
Nicaraguan Application. There, a State is alleged to be engûging in covert
support of groups engaged in uses of rnilitary forces, which groups have their
own motivations and are not part of the regular armed forces of any State. The
State making such allegations rigidly controls virtually al1aspects of its society,

including in particular the dissemination and availability of any and al1 infor-
mation conceming that State's own ;ictivities2.
524. In addition, for the legal signifiçance of such "facts" to be determined
- in other words, for them to serve as the basis for a judicial determination of
the respective rights and duties of the parties to an alleged armed conflict - a
suficiently coherent and legally static pattern of facts must be found to exist.
The validity and applicability of any legal conclusion extends only as far as ils

factual predicate; rights and duties can be determined only with reference 10
facts proven to exist at a point in time that is either contemporaneous with or
anterior to the judgment. Such a determination can therefore have no neccssary
application with respect to facts that mdy develop subsequently ;the principle of
res,udicuia is inherently retrospective. Hence the judicial process is unsuited to
dealing with situations that are by their nature exceptionally fluid.
525. It is for reasons such as the foregoing that on-going armed conflict musi

he confided to resolution by political processes, as it has been by the Charter.
The political process, unlike the judicial process, is not constrained by inherent
institutional limitations regardin& inrer dia, the nature and quality of evidence,
and can, rnoreover. cmploy techniques such as diplornatic investigation3. In
addition, the political process is not limited, as is a court, in the scope of ils
enquiry or in the range of possible solutions. Its function is analogous to that of

a policeman, whose first duty is Io restore and mdintain order without determin-
ing legal fault, rather than to that of a court, whose duty is to assign legal
responsibility after the fact, on the bdsis of a formally-proved and closed set
of facts 4.

Section II. The Situation Allegedin the Nicaraguan Application cannot Be

Judicially Managed or Resolved

526. The effectiveness of any judgment of the Court does no1 depend solely
on its binding nature under Article 94 of the Charter and Article 59 of the

' TheCourt itselfhusrecognircdthesefundamentaldilficulties,inparticularthedoubtful
probativevalue of "eyewitness"testimony,in ilsjudgrncnt in the Cogu Channel casc (op.
cil.,at pp. 13-18).It willbe recalledthat thc Court in Corfi Channel waidcaling,no1with
a situationinvalvingthe on-going use of a& farce,but witheventsthat transpiredin
their entirctysomeeight manths beforethe institutionof procecdingsbeforethe Court.
and mare than two-and-a-halfyearsprior ta the Court'sdccision on the mcrits.
This vrcsents yet anather factor distinguishingthis casc fram the Uniied Siaies
O!plr,niur,<~in< i,a%i<ldr Uq) rlrï wprJ IlÏih~i c'.Lairi,p,,ndi,niIr.<".3lihough incn
ihc opparimli) IO dii i<>rndc ncicili>ri1.drn) or <iihcrui\c .'<intr.an) .#ihi.miilcrial
Pxtr allteed ag.ilnriil b\. ihc UniiedSiaicr iJurlu,?ir~nii cil.;II n Il11 'TheCi>uri ua,
thus reli6ed oianv buricn of determiningt.; ~Gb.tive;=lue offictuaiallegations made
b) an ;iuihoriian;inSiliie.
'CI. Unlle<lSI~IIP I~8plim>olhc.u~tC'mt~ul< .airi1ji>pCII. .LIpp ?Il.22
" Cf ihr ctol~ilon df Ariiilc I1 IIi,fihcChiincr3nd ihcSivuni, Cuuniil dcbaicsorcr
the Carfu Channel incident, rupro: '168 MILITARY ANI) VARAMILITARYACTIVITIES

Statute. A judgment mus1 also he capable of hcing executcd by the parties in a
manner that ensures that its purpose is achieved. A decision on a question of
law can onlv ,u-de the conduct of the oarties if the oarties have a clear and
uorklihlc underit;iriding or rvhdt pr;ictical mcaiurcs arc ihcreb) rcquircd oithcm.
In ihc \,as1m3jt1r11)o1f C~SCSth . tlw mcaiurcs arc both sclr-evident 2nd inhcreni
in the iudement itself. for exam~le. the release of Dersons held hostaee (Unired
~rores~~i~omaiic and Consular or the paymint of a certain suk in dam-
ages or as reparations (CorJu Channel). The more complex and uncertain the
circumstances to which the judgment is directed, however, or ihe more critical

the interests involved or the consequences of error, the greater the possibility of
failure regardless of the good faith of the parties.
527. The Court has recognized that giving such practical guidance to the
parties lies outside the proper scope of the judicial function (Ha.vade la Torre,
Judgment,I.C.J. Reporrs1951, p. 71. at p. 79). Such guidance is, however, critical
to the effective control of situations of amed conflict such as that allcged to
exist in the Nicaraguan Application'. Assuming, arguendu, that adjudication of
Nicaragua's claims results in a judgment grdnting the relief sought by Nicaragua,
the Court could not exercise the continuous supervision and direction that would

be required to assist the parties in giving effect to such a judgment. Nor does
the Court command the personnel, financial and other resources that would he
necessary.
528. In addition, it must he recalled that the circumstances alleged in the
Niçaraguan Application involve the activities of groups indigenous to Nicaragua
that have their own motivations and that are hevond the control ~~ anv State.
A juJgmeni granting IO Nicaragua the relicipra)ed I;>ragÿin\t ihc liniied States
uoulil noi, and could noi. have any clTcctan thc alIcacd aciivitlcj of such rroup,.
Nicaragua, by seeking to portray ihe matter as onearising solely betwee; ~ica-

ragua and the United States, gives a seriously misleading impression concern-
ing the true nature of the amed conflict alleged to be in progress and of its amena-
bility to settlement by a judgment or this Court.
529. As provided in the Statute of the Court, any judgment of the Court is
binding only upon the States parties to the case before it, and only in respect of
that case (Statute, Art. 59), Third States, whose interests could he aîTected, but
not determined. bv the iudement would he able to carrv on the conflict. A State
in who~ iator ;udgmcnt was rcndcrcd could. ii11chose. icck IO gain immcdiatc
adi,xniagc h) hringmg unlaii,ful foric io bcar ;ip>insi those ihirtl St;itcs. Whcihcr

or not the succesiful party chose to take a&antage of that success in such
fashion, there can he no assurance that the Court's intervention would have any
matenal impact on the continuation of the conflict.
530.Moreover, the judgment of the Court could not, consistent with Article 51
of the Charter, impair the inherent right of individual or collective self-defense
enjoyed by the State against whom judgment was rendered. Even if it is assumed,
arguendo, that the Court has the competence to deny that State's Article 51
claims with remect to events trans~irinp ~rior to the Court's iuderncnt. there
can be no doubt that that judgmeni coild not operate to precfudcthat tat te's

suhsequent exerciseof the inherent rights guarantecd hy that Article2.Conversely,

p ~
'Scr gcnrrall~.I>.Buucii. l'oi~cr.\'u<irt#int,ur<A 1.~~~ Stuilir,/llnrrrd.\'urii.nl
Pronire (1964)for :<cdrnprchcns,v: e\por!l8onof ihemyriad hiion ;ninlvrJ
occurringasilDiacertain date wouldnonctheless>otbcconstrainedfromrespondingunderz\rnt~
Article51 to rcquestsfor assistancearisingsubsequcnt tathat datc,based on evcntstaking
placesubsequentto that datc.it is in the naturc of things that a State in whose favor the Court has given
judgment is likely 10portray such'a judgment as a vindication of ils legal position
not only with respect to the unsuccessill State but also with respect to third States
not before the Court. Thus. a iudicial determination on the lawfulness of the use
of .inncd for~rby a p:lrty to ïn.on.going arinïd conilici uould impos an ilniTi;i;iI.
hut politiwlly poucri'ul. di~dd<~ntügcupon other pxrtter to th:)! ionnici

Srciiun III. 'l'heConclusion ihat ihc <:OUI! cannot .ludicially I>ctcrmincIhc
.\latien AIIcgrdin thc Sicaraguan Applicaiiun I>ws nui \lean thai Internaiitinnl
Law Irneither ~elevant nor Cuntrolling

531. To conclude that the Court cdnnot adjudicate the merits of the complaints
alleged in the Nicarazuan Application does not require the conclusion that
international law is neTther d&&tlv relevant nor of Su-ndamentalimportance in
ihc rcttlrmciit of interniltioii;~ldispuics It mcrely medns that the ap~liriitiott of
intïrnatii>nal legxl priticiplcs. incluJiit& th,i,c est;tblished by or cnilirinc<l in lhr.
Charter iii the UniteJ Kati.inr, to tlic rc,oliitioii,BIsn-coin< drntcd conflicts is
the responsibility of other organs set up under the ~hirte; 10 deal with such
situations. As Lauterpacht ohserved with respect to limitations on the judicial

function in municipal legal systems:
"Here as elsewhere çarc mus1be taken no1to confuse the limitation upon
the unrestricted freedom of iudicial decision with a limitation of the rule of
Idw . . .[Tlhc Iinilt;,t~onsupon the freedim ~~i~uilici~d leci\i<~n.iar irom
amouniing io surpcn,ion 01 the rule of IAW.are the expresiidn of a

Jillcrcnti;ition oi (~n21ionr " 17%~tioii.t!<ini!//.uh ttr III</~~t~~rfr~rte~/iol
Communily, p. 389 (1933).)
Lauterpacht's point is of evengreater relevance to the less-structured international
system. The Court possesses broad, but not plenary, jurisdiction, and is not the
only organ of the United Nations competent Lo apply international law to

disputes hetween or among Memher Statcs, or to interpret the Charter of the
United Nations'. Nicaragua would have this Court assume a burden that is
without either precedent or founddtion. The Nicaraguan Application should be
dismissed.

' Cr. Comperence"/ rhe Gen<mldssenthly Ji), ihe Admi,s.~ionfa Slure IOthe Uniied
,Varionso, p.cil.,ai 9; Kopclmanas, op. eii.,at p.201and note.
Lautcrpacht'sobservationsconceming the abscnce of "machinery . . .for a legal
regulationof the rccourseto sclf-defencc"in the Pact îor thc Renunciationof War of
27 Augurt 1928. 94 LNTS.p. 57, areof directrclcvance 10the point:
"Such a machinerycxistsin the <:ovcnantof the Leagueof Notions.A powcrof
this natureis, for insiance,exerciscdby the Council or Assemblyof the Leagucof
Nations in dcterminine whcther there has been a violation of Aniclc 12 of the
Covenant obliging tacs not to go to war beforehavingrecourscto the machincry
whetherthe rccounc to force not intendcdncilas war is contrary to thc provisionsof
Article 12, 13.or 15 of the Covenant.Suchdetermi~slionswnuldnccessarilyincludc
cijudicialcxprcssionof opinion an ihe admissibilityin agivencase.of the pririciplc
of self-defcnce.In gcncral,the Counciland the Assemblyof the Lcdgueprovidc a
possibilityfor cvolvingno1only a moral but a lcgaljudgmcnt on the observance of
ihe provisions ofthe Covenant as to recourseto war." (Op cil.al p. 182,n. 2.)
Lauterpachtwratc. of coursc, prior to the establishmentof the marc highly-dcvclopcd
systemof thc Charter for thc rcsolutionof such questions,with rcspcctto which his
observations,muroiismuiundiu,applywithcvengreaterforce. CHAPTER V

THE NICARAGUAN APPLICATION IS INADMISSIBLE BECAUSE THE

Section 1. 'fhcContadora I'rncrrç. Io whichSicaragua Ir Party, Ir Recugnild,

buth b>the I'oliticalOrganqof the llnited Sation* and by the Organixati~inof
~merican States. as the ~oo.. .iate Method for the Resolutionofthe Issuesof
Central America

532. The phrase "Contadora process" refers to the comprehensive diplomatic
initiative undertaken by the countries of the region to address the overall security,
political, social and economic problems of Central America. It derives its name
from the meeting of the Foreign Ministers of Mexico, Panama, Colomhia and
Venezuela that look place at Contadora Island, Panama, in January of 1983
with a view to developing a framework within which those Governments, and
those of the five Central American States, including Nicaragua, could achieve a

regional solution to the security and other, interrelated, problems besetting
Central America'. The ensuing Contadora process was recognized bythe Security
Council of the United Nations as the appropriate mechanism for seeking the
resolution of those problems by its resolution 530 (1983). adopted unanimously
on 19 May 1983'. That resolution provides in its pertinent operative paragraphs
as follows:

"/The Securily Cuuncil,]
1. Reosfrms the right of Nicaragua and of al1the other countries of the
area to live in peace and security, free from outside interference;
2. Cumrnendsthe efforts of the Contadora Group and urges the pursuit

of those eîiorts;
3. Appeals urgently to the interested States to co-operate fully with the
Contadora Group, through a frank and constructive dialogue, so as to
resolve their differences; [and]
4. Uwes the Contadora Groun to mare no eîiort to find solutions to the
problem< of the region and to keep ihe Security Council informed of the
results of these eîiorts. . ."

The United States voted in favor of Security Council resolution 530 (1983), and
has otherwise strongly supported the Contadora process from its very inception.
The United States is now engaged in bilateral discussions with Nicaragua de-
signed to support the Contadora process (Part II, supm).
533. The Contadora process has also been recognized by the United Nations
General Assembly as an appropriate regional mechanism. On II November 1983
the Assemhly adopted, without vote, resolution 38/10, which in its pertinent
operative paragraphs provides as follows:

13~ndinmit'.<rII,Bith,, Couniir-hlrmori~lIIand niliur: c>itCnnt:~d.,r.troicbi ;.ln bc
* Thr fullisiioire\i>luiin53U (19811 isaiiachrd ai Ann 101. "[The GenerulAssembly.]
4. Urges the States of the region and other States to desist from or Io
refrain from initiating, military operations intended 10exert political pres-

sure, which aggravate the situation in the rcgion and hamper the efforts to
promote negotiations that the Contadora Group is undertaking with the
agreement of the Governments of Central America;
..........................
5. E.\prc~.~si, j,r,>,crr,iipporr for the Ci)ntiidi~rliGroup dnd urgcs11 io
pcrscicrs in 11sclTorii.\rhiclt cnjuy the ~.tTccteupport of the international
c<immunitsand ihc f~~rthrir-tco-t)ix.rxtion OCthe interestcd rountrics in or
outside théregion."

534. Similar action was taken bv the General Assemblvof the Oreanization of
American States, which on 18 ~ovember 1983 adoptéd resoluti& AGIRES.
675 (XXIl-0/83), in ordcr "to expressits hest support for the efiorts of the Con-
tadora Croup and io urge it io persevere in iis efforts"'.
535. The foregoing actions by the political organs of both the United Nations
and the Organization of American States constitute clear recognition of the
Contadora Drocess as the apvro~riate mechanism bv which resolution of the
security and other prohlemsof cintra1 America is tohe sought. As will be de-

monstrated, the Court cannot adjudicate the merits of the Nicaraguan Appli-
cation without frustrating the expressed will of those orgdns,

Section II. The Contadora Process Has Adopted, amongIts Aims,Principles
Directed to the VeryClaimsand IssuesRaised by the Nicaraguan Application

536. The Contadora process has achieved agreement among the States of the
region, including Nicaragua, on aims which go to the very heart of the ckiims
and issues raised hy the Application. Nicaragua in its Memorial concedes this
fundamental point, but in a way that seeks to mask its actual significance(para.
---,.
537. On 17 Julv 1983. the Coniadora Group met at Cancun. Mexico. and
i\\ued a dccllirliiiiproposing IO ihs 1ii.c~eittril Aiitcric;in St;iies ihc ad<iptii>n

or d i<imprehr.n,i\c dgCnc1.tiu <Ir.3rrlih the seLurit), c.'onJiiii;. s<i~,.<>iiii.'al
and ciirn~lilincei5,uc.S~CIIIKthe rcgion. 'Iiiaragua reiponded vith propu,lil%of
its own which, while c~nce~rÿtin~~lmost entirely on security issues, did accept
the need to address such prohlems on a regional basis. The other four Central
American States offered an eight-point plan covering the entire range of issues
addressed by the proposals of the Contadora Group, emphasizing both security
concerns and the need for the develo~ment of democratic and re~resentative
institutions throughout the region.
538. These three sets of proposais were considered together by al1 nine
governments. Meeting in Panama Srom7 Io 9 Seplember 1983,the governments
achieved agreement on a set of 21-point Document of Objectives, constituting
the first agreed, comprehensive listing of the issues and principles to serve as the
basis for regional peacc, and to esiablish the framework for the negotiation of
implementing agreements on a wide range OSsocial, politicai, economic and

security issues and providing for efiective verification . The stated objectives

' The Sulltexts of rcsoluiions38/10and AGIRES. 675 (XXII-0183)are atrochcdat
Annr. 93 and 94,respeciively.
TheCulltcxt oftheDocumentoSObjectiver can beSound as anattachrnenttoAnn. 92.focus on the need for an end to external support for terrorism, subversion and
destabilization; for national reconciliation and respect for political and civil
ri-.ts: for reduction of foreien militarv oresencesand of levelsof national armed
forces; and for renewed economic CA-bperation.The following objectives are
among those agreed upon by the nine governments:

"To create political conditions intended to ensure the international secur-
ity, integrity and sovereignty of the States of the region;
To stop the arms race in al1 its forms and bcgin negotiations for the
control and reduction of current stocks of weapons and on the numher of
armed troops;
To prevent the installation on their territory of foreign military bases or
anv other tv.. of foreic- militarv interference:
To concludr Jgrremenli ts rcduic thr prr,encr <>CCorclgnniilit;iry.id\i>rr.
and other forcipn elcmcnir initilvcd inniilitary and rccuriiy ;icii,itiri. uiih
a view to their elimination;
To establish interna1control machinerv t, or.vent the trafic in arms from
the territory of any country in the region to the territory of another;
To eliminate the trafficin arms, whether within the reaion or from outside
it, intended for persons, organizations or groups seekiig to destabilize the
Governments of the Central American countries;
To prevent the use of their own territories by persons, organizations or
rrouos seeking to destabilizethe Governments of Central American countries
ànd io refusëto provide them with or permit them tu receive military or
logistical support;
To refrain from inciting or suv~ortina acts of terrorism. subversion or
sabotage in the countries of the aria . ..'

539. It is clear from the context in which the 21 objectives were arrived at
by the Contadora and Central American States that the achievement of those
objectives wasto be a co-operative undertaking on the part of al1the governments
concerned, working together to develop a regional framework for peace and
economic development. This basic understanding is underscored by the final
paragraph of the Document of Objectives:

"The Ministers for Foreign Afiirs of the Central American countries,
with the participation of the countries in the Contadora Croup, have begun
negotiations with the aim of preparing for the conclusion of the agreements
and the establishment of the machinery necessary to formalize and develop
the objectives contained in this document, and to bring about the establish-
ment of appropriate verification and monitoring systems."
This understanding was shared by the General Assembly of the United Nations,
as reflected in its resolution 38/10 of II November 1983,which in pertinent part
provides as follows:

"[The Cenerol Assembiy.]
Beuringin mind . .. the endorsement by States of Central America of a

Document of Objectives, which provides a basis for an agreement on the
negotiations, that should be initiated at the earliest possible date with the
aim of drawing up agreements and adopting the necessary procedures for
formalizing the commitment and ensuring appropriate systems of control
and verification,
.......................... 7. Welcomeswirh sali.fuctiu . . the Document of Objectives endorsed
by the Governments of Costa Rica, El Salvador, Guatemala, Honduras and
Nicaragua, which contains the basis for the start of negotiations 10 ensure
harmonious coexistence in Central America[.]"

It would be incompatible with the purpose and spirit of the 21 objectives for a
party thereto to seek to invoke them in pursuit of ils own aims in other fora, to
the deliberale detriment of the other States party to the agreed objectives. This
is precisely what Nicaragua is seeking to accomplish by urging ils claims upon

the Court.
540. lt is in the latter connection that Nicaragua's assertion in its Memorial
that, inter ulia, the United Nations General Assembly resolution 38/10 of
II Novemb~~ 1983 and Securitv Council resolution 530 (19831 establish
Nicaragua as the "object of spec$l concern" notwithstanding the contadora
process (para. 2211,can be seen in its true light. Both resolutions were responscs
io ~icaiaeuan efforts. consistent with ~icaÏaeuan tactical oreferences. to have
issues of particular concern to it, and to it alone, severed from the regional
negotiating process. Contrary 10the impression sought to be conveyed hy Nica-
ragua, other participants in the Contadora process objected 10 Nicaragua's

tactics. In Octoher 1983 the Foreign Minister of Panama stated in an interview
that:
"Panama and the Contadora Group are concerned about Nicaragua's
inclusion of the Central American situation in United Nations debates, since

this could weaken the authority of the Venezuelan, Mexican, Colomhian
and Panamanian effort'."
511. ïi~~twithrtaniling ihît the resoluti~ins adoptcd by hath thc Se~urit)
Ci~unciland the Ccnerdl Ajscmhl~ c.hprc\sl) tti<>gni/e [hi C<~nt;idot;iprcrL.eis as

the appropriate means of addressing and resolving these issues, Nicaragua now
seeks to invoke the jurisdiction of this Court for the purpose.

' The tcxt of the interviewis attached at Ann. 110.Similarly,the PermanentRepre-
debate of8 Novembcr1983thai:tedNationsdcclaredin thecourseof thcGeneralAssembly

"[Tlhrough this debate Nicaraguais attempting Io attain severdlends. First. il
wishesto escape from thc future Contadora Croup negotiationsbccauseof rhcir
global and rcgionalcharactcr.Secondly, ilwishesto obtain the support of countries
outsidethecontinent.Thirdly, ilwirhesta polarizetheCentralAmericanissuethrough
American processof negotialion.Fifthly,il wishesta obtain suppon for ils recenlin
proposal to concludefour trcaties: one multilatcraltreaty among the fiveCentral
Amerjcancountrits,twobilatcraltrcaties - betweenthe UnitedStstesand Nicaragua,
on theone hand,and Hondurasand Nicaragua, on theother - and a fifthtreaty,Io
becalledan agreementamong thecountricsinterestedin helpingto salvethecrisisin
ElSalvador.The latterprojectisaimedonlyai protectingNicaragua,guaranteeingil
impunity for its acts of intervention; it does not provideeven the very minimum
guaranteesforthcothercountricsofthc area - leastofall forHonduras.Furthemorc,
the four treaticsdo not fulAllthe Contadora agenda, nor do they dcal with the 21
objectivesrecentlyapprovedbythe fivcCentralAmericancountries.
By meons o/oll rhoseiociicr.rhe GorernmenrqfNicarawa ixtryingIo escope/rom
ihe/uture negoriotiomwiihinihe Contadora Group. Io obroinpoliricalsupporruguimt
olleged ociso/oggrcssion. ond no1robe renrured/or ilsown oeiso/ng.qressionogoinsi
AJ38JPV.48pih. p.52-53.)nericanco,vztries."(Italics addcd. GAOR,38th Sess.,dac. %ion III. Sicaragua Is Requircù by the Charter5 01the LinitcdSalions and of
the Oralinilaiion of AmcricanStatn to Seek RecionalSolutionsio Problems
eoncerningthe Maintenance of ~egionai~eace and Security

542. Article 52 of the Charter of the United Nations provides in pertinent
part as follows :

"1. Nothine in the oresent Charter orecludes the existence of reeional
arrangementsuor agenCies for dealing with such matters relating Co the
maintenance of international peace and security as are appropriate for
regional action . . . ~ ~ ~
2- T~ ~Members ~f ~ ~ United Nations enterine into such arraneements
- -
or constituting such agencies shall make every effort to achieve pacificsettlc-
ment of local disputesthrough such regionalarrangements or by such regional
agencies before referring them to the Security Council."

As has been sbown. the Contadora orocess has been recornized bv both the
Scîurity Councd and thr Gcncral ~sscnibl) of ihc unicd aii ions as ihc
appropriate rcgional nicchanism for dealing with the iccurity and rclatcd problcms
Facin,:the ~.<iuniries <irCcntral Aincri;a. 'fhcrc ciin bc nu doubt thcrcli)re thlit
the Contadora process constitutes a "regional arrangement" within the meaning
of Article 52 (1) of the Charter, as it bas been accepted as such by the organs
swcificallv vested by the Charter with responsihilitv in connection with the main-
ténance of internatioral peace and security, and by the Organization of Ameri-

can States.
543. Under Article 52 (2) of the Charter, Nicaragua is ohliged to make every
effort to achieve a solution to the security problems of Central America through
the Contadora process. While Article 52 (2) specifically contemplates the ex-
haustion of such regional processes as a precondition to the reference of a dispute
to the Security Council only, to assume that such disputes could therefore be
referred to other modes of non-regional settlement notwithstanding the con-
tinuation of the regional process would require a narrow construction of that
Article that would be hard to reconcile with its logic and purpose. That Article,
rather, refers only to the Security Council because the Security Council is the
onlv,or~"n of the United Nations exoresslv.chare,d bv t-, Charter with the
responsibility for the settlement of disputes threatening international peace and
security. Any limitation imposed by the Charter on the reference of disputes 10
the Security Council must, a fortiori, apply with even greater force with respect
to the Court, which has no specific responsibility under the Charter for dealing

with such matters.
544. Nicaragua is under a functionally similar obligation under the Charter
of the Oreanization of American States. Articles 20 and 21 of which orovide
as follows:
'Article20

All international disputes that may arise between American States shall
be submitted to the peaceful procedures set forth in this Charter, before
being referred to the Security Council of the United Nations.

Article 21
The following are peaceful procedures: direct negotiation, good offices,
mediation, investigation and conciliation, judicial settlement, arbitration, and those which the parties fo the dispute muyespeciullyugree upon ut any
lime." (Italics added'.)

545. The Contadora process, and in particular the 21 objectives agreed to hy
Nicaragua on 9 Seplember 1983,iall precisely within the scope of these Articles
in so far as Nicaragua's obligations to the other participants in the Contadora
process are concerned.
546. The Nicararuan Memorial observes correctlv that the United States is
not a iornial particip,iiit in the Contadora proie,, (p~m 2301.ïhe (Inited Siaici
15noi a partiopant primarily hrrause the Coniador~ proccss ij the product of
ihe desirrs ofthe roncerned I.atin Ameri:ÿii States to loin IIIa Liitin Amcrii;in
efirt 10resolve the security and related problems hesitting Central America as
a whole. The United States has repeatedly enunciated its strong support for that
regional effort and is of the view that that process, provided that al1the par-

tic.oants therein co-ooerate in eood pdith. offers bv f~, the best ho~e for the
resolution of those regional prob~ems.Moreover, the United States is currently
engaged in ancillary hilateral discussions with Nicaragua in support . .the Con-
tadora process.
547. The Nicaraguan Memorial asserts that United States non-participation
in the Contadora process somehow establishes that the alleged dispute that
Nicaragua has requested this Court to adjudicate is not a matter that can be
resolved hv the Co~~adora oroc.ss ~ ~ ~.. 230 else~,.. To the extent that there
exists a dispute bciuccn '1icaragu;i ;ind the Uniied Stries. it 1%relrred directly
IO the qursiionr heing addres,eil in thc frameu,ork cstablishcd by ihc Coniadora
nroccss Indccd. the Unttcd Siaics h;issolcninlv dcclarcrl thai "TuIland i,eriliahlr

~mplcmcnta~ionof ihc Cuntddur;~ditiument of ob,citives iiuuld iully meet the
goals of Ilnitcd Stiitcbpollcy in C'eiiti.~\ni~.riciias wellas the expresscd rr~.urity
Eoncems of Nicaragua2"

Section IV. Adjudicationof Only One Part of the IssuesInvolvedinthe Contadora
Process WouldNecessarilyDisrupt that Process

548. Nicaragua is asking this Court to adjudicate only certain of the issues
involved in the Contadora process: those issues of importance to it and on the
basis of assertions that characterize those issues in a manner wholly favourable
to Nicaragua. Such adjudication would have the inevitable effect of rendering

those issues, about which Nicaragua has agreed Io negotiate in the Contadora
context, largelyimmune to further adjustment in the course of those negotiations.
This would in turn necessarily disrupt the balance of the negotiating process, a
balance that has been carefully and skilfully worked out by those countries
working under the aegis of the Contadora Group and expressly approved by
both the United Nations and the Organization of American States.
549. The situation thus presented by the instant case finds no precedent in the
jurisprudence of the Court. Unlike the situation considered hy the Court in the
Aegeun Seo Continent01 Shelf case. there is more at stake here than a mere
inChoale possibility that judycial abstention would "create a more favorable
political climate for an agreed settlement3". Under the Contadora process,

' Itmay be notedthat herc, as in Articlc33 (1) of thcCharter ofthe United Nations,
spccialmeanschoscnby thepartics are givcncqualstatuswithjudicialsettlement.
' AegeonSeodavConlinentoSIl helfop..cil.al p.12(Turkishnoteverbale).matters have progressed to a far more developed stage, where al1 the Central

American parties, including Nicaragua, have "agreed to agree" with respect Io
achieving, through negotiations, a settlement of, inter uliu,the very issues that
Nicaragua now seeks to have adjudicated. outside of that regional process, in
this Court'.
550. The oarties are now in the orocess of considerine a draft aereement to
that very end. The Nicaraguan ~i~lication is no1 me& differeit from the
approach settled upon in the Contadora context hy Nicaragua and its neighhoring
countries; itis incompatible with il.
551. Given the commitment of hoth Nicaragua and the United States to the
Contadora process, the endorsement of that process hy the competent political
organs of the United Nations and the Organization of American States, and the
comprehensive, integrated nature of that process itself, the Court should refrain
from adjudicating the merits of the Nicaraguan allegations and hold the Nica-

raguan Application of 9 April to be inadmissible.

May it pieuse the Court, on behalf of the United States of America, to adjudge
and declare, for each and al1of the foregoing reasons, that the claims set forth
in Nicaragua's Application of 9 April 1984 (1) are no1 within the jurisdiction of
this Court and (2) are inadmissible.

17 August 1984
(Signed) Davis R. ROBINSON,

Agent of the United States
of America.

'This identityofissuesisofcoune, theprirnaryPactorthat fundarnentallyditTerentiates
thiscase lrorn thoscbcforcthis Courtin UnitedSlatesDiplomoricondConsulorStaff, op.
eit.,and before the Permanent Court of InternationalJustice in Memel and Minority
Sehoolso , p.cil. ANNEXES TOTHE COUNTER-MEMORIAL OF THE
UNITED STATESOF AMERICA

Annex1

1. 1,George P. Shultz, hereby declare and state as follows: 1am Secretary of
State of the United States of America. I have held this ofice sinceJuly 16, 1982.
As Secretary of State, 1am responsihle, pursuant to the guidance of the President
of the United States, for the formulation and execution of the foreign policy of
the United States.
2. As Secretary of State and as a member of the National Security Council,
1 have access ta the entire range of diplomatic and intelligence information
available 10the Government of the United States.
3.The information available to the Government of the United States throueh-
diploniaiii channels and iniclligenic nienns, and in niany insrancesconfirmed by
puhlicls iii.ailiihle inf<,rmrtion. ebiiihli\he.:ihai the Cio\,ernmrnt ui Kicsr:irud
has, since shortly after its assumption of power in 1979,engaged in a consistent
pattern of armed aggression against its neighbors. Other responsible officials of
the United States Government, including the President and the responsible
Committees of the United States Congress having access ta such information,
share this view. In addition. res,onsible officials of other States in the uceion
have reached a similar conclusion based on their own sources of information.
4. The United Stateshas abundant evidencethat the Government of Nicaragua
bas activelv suoooned armed erouos eneaeed in militam and m ara mi lit am
activities in and' against El ~ivati'or, p;oGding such g&ups iith sites in
Nicaragua for communications facilities, comrnand and control headquarters,
trainin" and loristics ..mort. The Government of Nicaraau" is directl. en--eed
~,~thihrse armed group, in planning on-poing miliiary and paramiliiary aciiviiiei
con~iucieJ in and againsi El S.ilv~iliir 'The CJovcrnmeni of Si;drdgua iilso
participates directly in the procurement, and transshipment through Nicaraguan
territorv. of laree auantities of ammunition. suo~liesand weanons for the armed
gruups~~nduc~g'military and parari~iliiaryaçii;hies in and a'g;+insi lSal\,ador
5 In additinn io ihir \uppi)ri ior armed group\ gipcratingin and agrinii El
Sal\,ailor. ihe C;oi,crnmeni of Si~.iir:iauah.ti cncaccd in similar sunpori. iilheit
on a smaller scale, for armed groupsèngaged, which have soughi to engage,
in military or paramilitdry activities in and against the Republic of Costa Rica,
the Republic of Honduras, and the Republic of Guatemala. The regular military
forces of Nicaragua have engaged in several direct attacks on Honduran and
Costa Rican territory, causing casualties among the armed forces and civilian
populations of those States.
6. 1 am aware of the allegation made by the Republic of Nicaragua in ifs
Application ta the International Court of Justice dated April 9, 1984,that the
United States is engaged in an unlawful armed attack against Nicaragua,
conducted by means of "mercenary" forces employed and directed by the United
States, which has as its objective the overthrow of the Government of Nicaragua.178 MILITARY AXD PARAMILITARYACTIVITIES

1am furtheraware that the Government of Nicaragua has sought to characterize
the current dispute between the Republic of Nicaragua and the United States as
exclusively the product of United States opposition towards the domestic and
foreien oolitical orientation of the Government of Nicaramia.

7.Ï l;crehy ailirm ihat the Ilnitcd Statsi recognile. and reipr.dr the prcihi-
hitioni conrerning the threat or u\c ofli~rce u.1 iorth in the Charisr i)iihc Cnited
Sationa, anil th.it the United Siates consider, iis ~olicieiand a~ti\iiics in Ccnirïl
America, and with respect to Nicaragua in part;cular, to be in full accord with
the provisions of the Charter of the United Nations. Pursuant to the inherent
nght of collective self-defense,and in accord with its obligations under the Inter-
American Treaty of Reciprocal Assistance, the United States has provided
support for military activities against forces directed or supported by Nicaragua
as a necessary and proportionate means of resisting and deterring Nicaraguan
military and paramilitary acts against its neighbors, pending a peaceful settle-
ment of the conflict. 1 further affirm that the ov~ ~hrow~of the Government of ~ ~
tiiilir:igudi,not the objcit nor the purpo,e of UniieJ Sixte. piili;) in ihs rrgi.in.

Our ~osition in this rcswci is clcdr dnd oublic As President Kcae~n s-ûted in a
publ<shedletter to senaior Baker of A~R 4I, 1984:
"The United States does not seek to destahilize or overthrow the
Government of Nicaragua; nor to impose or compel any particular form of
government there.

Weare trying, among other things, to hring the Sandinistas into meaningful
negotiations and constructive, verifiable agreements with their neighbors on
peace in the region.
We believe that a pre-condition to any successful negotiations in these
regards is that the Government of Nicaragua cease to involve itself in the
internal or external affairs of its neighbors, as required of member nations
of the OAS."

8. 1am aware of the diplomatic efforts made hy the Central American States,
otber hemispheric nations including particularly the "Contadora Group" of
Colombia,Panama, Mexico and Venezuela,the United Nations Security Council,
the Organization of American States, and the United States over the pas1 five
years to resolve the conflict in Central America. In this regard, 1have personally
engaged in a dialogue with the Nicaraguan leadership, as wellas with the leaders
of the other nations in the region. There has heen widespread recognition that,
despite Nicaragua's efforts to portray the conflict as a bilateral issue between
itself and the United States, the scope of the conflict is far hrodder, involving
not only cross-border attacks and State support for armed groups within various

nations of the region, but also indigenous armed opposition groups within
countries of the region. It has been further recornized that under these circum-
stances. efforts to ;tao the f-ehtine in the reei6 would likelv he fmitless and
inrllècti\,cahwni measurr.5to adJrc.r the legitimatcrci~niimic.social and political
pric\ïncc\ i>fthe people, of thc region rvhich h3ie gvcn rise tu such indigcnùus
armed opposition:
9. In this regard, States in the region, including the Contadora Group, the
United States, the leadership of the Catholic Church in both El Salvador and
Nicaragua, and others have called for a dialogue between the respective govern-
ments and their armed opponents aimed at achieving internal reconciliation. The
Government of El Salvador has called for a dialogue with the armed groups in
that country and has offered them the opportunity to lay down their arms and
participate in free elections. The United States has supported and facilitated

these efforts at reconciliation, including meetings between United States represen- ANNEXES IO THE COUNTER-MEMORIAL 179

tatives and members of the Salvadoran opposition. The armed opposition within
Nicaragua is a manifestation of dissatisfaction with the failure of the Government
of Nicaragua to carry out the commitment to broadly representative demo-
cratic government that it made to the Organization of American States and the
Nicaraguan people prior to its assumption of power. The armed opposition
groups in Nicaragua have offered to lay down their arms if given an opportunity
to participate in free and fair elections. The Government of Nicaragua has thus
far refused this offer. and has condemned. inter alia, the leadership of the

CatholicChurch for suggesting a dialogue. The leaders of the armed opposition
in Nicaragua were allies of the members of the current government during the
Nicaragua revolution and many were senior officiaisof the current government
prior to going into opposition. It is my judgment that these groups would
continue their acts of opposition against the Government of Nicaragua, regardless
of any arrangements made between Nicaragua and other States that failed Io
address their legitimate grievances.
10. The need for intem~l ~ec~ ~ ~ ~ ~ ~ ~s well as inter-State arraneements is
re~ected~inthe définedobjectives of the~dispute settlement process Gtahlished
under the ausuices of the Contadora Groui, and endorsed bv the United Nations
Securitv Council. the Orcanization of ~ierican States aid the United States.

These Objectives' - a&ed upon by each of the Central American States,
including Nicaragua - include political, economic and social reforms designed
to deal with the indigenous causes of conflict, as well as a cessation of hostilities,
address of cross-border security problems, the establishment of arms limitations,
and the creation of effective verification mechanisms. These agreed objectives
have been incorporated by the Contadora Group into a detailed text of a
proposed comprehensive negotiating document, which is now under discussion
by the Parties.
II. The United States Sullysupports the objectives already agreed upon in the
Contadora nrocess as a basis for a solution of the conflict in Central America.
Thc objecili,e\ of \Jniied St;ite<polic) iowards iiiidrilg~d arc cntlrcly ron\i\idni

u.ith iho\e hrodder agresd objccii\cs dnd iull dnJ \,eriiixhlc iniplcmr.nt;ition of
the Coiiiddora di?cument iL <~hie<ii\c< uould full, niect iltc mdlc <ilIlnitcd
States policy in Central ~merica as well as the exéressedsecuhty concerns of
Nicaragua.
12. On June 1, 1984,1personally travelled to Managua, Nicaragua, to initiate
a dialogue directly with Nicaraguan leaders designed to facilitate the achievement
of the Contadora objectives. On the basis of my meeting with leaders of the
Government of Nicaragua, senior representatives of the United States and
Nicaragua have subsequently met on several occasions. While the substance of
these dinlomatic discussions is beinc!kent confidential bv both sides. Nicaraeua
is fulliyaware of the seriousnessof ihe ~nited Sta&s commitment to ïhe

achievement of a comprehensive solution on the basis of the agreed Contadora
obiectives. Nicaraeua has soueht nubliclv to Dortravas intervention in its interna1
alfairs United Siaïes expressi~ns Ofsupport tu) foc an end to Nicaraguan armed
acts against its neighbors, (6) for political pluralism in Nicaragua, (e) for
reductions in the maisive arms inventory of that nation, and (d) for the removal
of foreign advisers from ils territor). These charges are belied by the fact that
(a) the termination of al1support for armed insurgencies in the region, (b) the
development of democratic and pluralistic political institutions in each of the
countries, (c) arms rcductions to achieve regional balance, and (d) the eliinina-
tion of foreign military advisers throughout the region are objectives expressly
agreed to by Nicaragua in the Contadora process.
13. As indicated ahove, the United States recognizes the applicability to the180 MILITARYAND PARAMILITARYACTIVITIFS

conliict in Central America of international law relative to the use of force, and
considers its own policiesand activitiesto be fullyconsonant with its international
obligations. The United States considers, however, that in the current circum-
stances involving on-going hostilities, adjudication is inappropriate and would
be extremely prejudicial to the existing dispute settlement process. Achieving
agreement on both the nature of the dispute and the scope of the issues to be
addressed in a settlement was a major accomplishment of the Contadora Croup,
fully supported by the appropriate international organs. To permit one party to

create a parallel dispute settlement process dealing with only one aspect of the
disoute and of the issues reauired to be addressed in a com~rehensive solution
would ï1Tc~.a idverscly the currcni m~liilatcral iind bilaier;il ncgoiiaiing proce.;rei
cncompïsscd in ihe Conladora li<imrwork. and could. in ihc opinion of ihc
I'niied Siaics, dclay. ifnot rorcstall. an end in ihc fighiing.

(Signed) George P. SHULTZ.

Signed and sworn before me this 14th day of August, 1984.

(Signed) [Illegible.]
(Notary) ANNEXES TOTHE COUNTER-MEMORIAL

Annex 2

AFFIDAV IPS.TEPHE R. BOND,COUNSELO FRRLEGA AFFAIRS WlTH THE
UNITE~ -TATE MSISSIOTO THE UNITWNATION ISG~NEVA CO.NCERNINGFILE
E~IIIL I) 'Liin<;OF N,\riiiAni.iiili1928 IO 1032Slrii:ri(IF iiii: <:oi:nr.

Siiis,t.r~.n~: nui> R.iiiDYcIHF~G~OVIKS~II.~<~SICAKACU,\".RI CISIHI
Siini~i.3<' I?X.l279.I>.\ri31Jci.~1984

[Nor reproduced] MILITARYAND PARAMILITARYACTIVlTlES

Annex3

Monsieur le Secrétairegénéral,

Vous avez bien voulu, par vos lettres des 8, 11 et 12octobre, porter à notre
connaissance que l'Australie, le Canada, l'Inde et le Nicaragua ont signéle
protocole de signature concernant la disposition facultative prévueà l'article 36
du Statut de la Cour permanente de Justice internationale et que le Pérouet le

Nicaragua ont signé,de leur côté,le protocole, du 16décembre1929,concernant
le Statut de la Cour.
Tout en vous remerciant vivement de cette obligeante communication, nous
vous serions reconnaissants de consentir à nous faire savoir si les signatures
donnéespar le Nicaragua et le Pérousont sujettes à ratification.

Veuillez agréer, Monsieur le Secrétaire général, l'assurancdee notre haute
considération.

(Signé) [Illisible.] ANNEXES TO THE COUNTER-MEMORIAL

Monsieur le Conseiller fédéral,

En réponseà votre lettre du 22 de ce mois, no B 561614-UE,j'ai l'honneurde
porter à votre connaissance que le protocole de signature du Statut de la Cour
permanente de Justice internationale, en date du 16décembre1920étantsujet a
ratification, ainsi qu'il est prévuaux termes mêmesdu protocole, les signatures
apposées parle Nicaragua et par le Péroune produiront leurs effetsqu'a partir
de la datedu dépirtdes instruments de ratification au Secrétariat.Je ne manquerai
pas de vous informer de ce dépirtaussitôt qu'il aura eu lieu.

Je saisis cette occasion pour vous renouveler, Monsieur le Conseiller fédéral,
les assurances de ma haute considération.

Pour le Secrétaire général,

le conseillerjuridique du Secrétariat,
(Signé)J. A. BUERO. MILITARYAND PARAMILITARACTIVITIES

Annex5

LE~ER FROM THEDEPARTME NFTFOREIGNAFFAIR SPTHE REPUBLI CFAUSTRIA
TO THESECRETARY-GENE OFTLE LEAG~ OF NATIONSD,ATEO29OCTOBE1 R929
(LEAGUE OFNATIONA SRCHIVEFS,ILENUMBER3C/12843/279)

Monsieur le Secrétaire général,

Me référantà votre note en date du 12 de ce mois, no C.L. 246.1929.V,j'ai
l'honneur de vous prierde vouloir bien me faire savoir sil'adhésiondu Nicaragua
au protocole concernant le Statut de la Cour permanente est définitiveou si elle
ne produira seseffets qu'après la ratificationde la signature par ledit Etat.

Veuillez agréer, Monsieur le Secrétaire général, l'ade ma haute
considération.

(Signé) [IlliJ.ble ANNEXES TO THE COUNTER-MEMORIAL

Annex 6

Monsieur le Chancelier fédéral,

J'ai l'honneur de vous accuser réceptionde la lettre du 29 octohre dernier,
no26.391-15/1929,par laquelle vous avezbien voulu me demander, vous référant
à ma note du 12 octobre 1929, C.L.246.1929.V, si i'adhésiondu Nicaragua au
protocole de signature du Statut de la Cour permanente de Justice internationale
est définitiveou siellene produira seseffetsqu'aprèsla ratification de la signature
nar ledit Etat.
r ~En réponseje m'empresse de porter à votre connaissance que la signature par

le Nicaragua du protocole susmentionnéest soumise à la ratification, ainsi qu'il
estprévuau troisièmeparagraphe de ce protocole
Veuillez agréer, Monsieur le Chancelier fédéral,les assurances de ma haute

considération.

Pour le Secrétaire général,

le conscillerjuridique du Secrétariat,
(Signé) /Illisiblr] MILITARYAND PARAMILITARY ACTIVITIES

Annex7

LÈITERFROM T.F.MEDINAN , ICARAGUA DNELEGAT TOTHE LEAGU EFNATIONS,
TOTHE SECRETARY-GENE OFTHE LEAGU EFNATIONS D,ATED29NOVEMBER
1930(LEAGU OP NATIONA SRCHIVEF SI,LENUMBE3RC/12843/279)AND FRENCH
TRANSLATION

9, rue Louis David
Paris XVI.

Le 29novembre 1930.

Monsieur le Secrétairegénéral,

Jisui> heureu\ tic poriciotrc <unnaissance qujc\.icni LICrcce\.~~riinc
note du niinistre~fTaire\étrdn~ede Ni~..iraauiini'iiiforniasoumettra
à l'annrobation du Conerès national. lors de ses orochaines sessions ordinaires
qui &nmenceront le 15-décembreprochain, le p;otocole relatif au Statut de la
Cour permanente de Justice internationale et la disposition facultative prévue
dans le protocole.
Le ministre des affaires étrangères m'aàdéclarerau Secrétaire général

qu'en attendant la résolutiondu Congrès,il ne voit aucun inconvénienta ce que
les réformesa~~ortéesau Statut de la Cour, résultantdu protocole en question,
entrent en vigueur dès avant la ratification de tous les gouvernemënts qui
l'ont souscrit.

Veuillezagréer, etc.

(Signé)T. F.MEDINA. ANNEXE TO Tm COUNIER-MEMORIAL

XXXIX LAGAC~TA 386-387(1935)(REFERRA OI.THE PROTOCO OI. SIGNATURE
TO THE NICARAGUA CNONGUESS A)ND ENCLLST IIRANSLATION

[Source: La Gacera, Managus, No. 49, February 27, 19351

6. The notes were read bv which the Minister of Foreien Relations transmitted
ihchllowing Ire:ities.rigneS ai the Se,,enth ~ntr.rn~tional~onler~ncc<iT,\riirrrsan
States ai Monievideo. whiih have alrcady becn approb'cdby the t;~ei~tivcPowcr
and are IOhe ratified by the LegislativePower:

Conventions signed at the Seventh International Conference of American
States at Montevideo.
Statute and Protocol of the Permanent Court of International Justice.
Convention to facilitate the international circulation of films of an edu-
cational nature.
Convention incorporating the proposal by the United States delegation,
included in the 81st Resolution of the Seventh International Conference of
American States concernine the commitment to refrain from invokine the

obligations of the most-fav6ed-nation clause in order to obtain the advaGages
and benefits enjoyed by the parties to multilateral economic conventions of
general applicability.
Treaty on the protection of movable property of historical value.
After being considered they were sent to committee.

'Not reproduced. MlLlTARYAND PARAMILITARY ACTIVITIES

[Source: La Gocela, Managua, No. 130,lune 12, 19351

3. The decree ratifying the Statutc of the Permanent Court of International
Justice was read, together with its Protocol of Signature, the arnendrnents to said
Statute, and their Protocol of Signature. Also ratified was the Protocol of
Accession of the United States of America tu the Protocol of Signature of the
aforesaid Statute.
On the motion of Senator Sandoval. the second reading. of t-is decree
was waived. ANNEXES IO THECOUNTER-MEMORIAI

XXXIX LAGACBTA 1673(1935)(NICARAGUA C'SAMBE RFDEPUTIEA SPPROVES
THEPROTOCO OF SIGNATURE A'D ENGLISHTRANSLATION

[Source: La Gaceta, Managua, No. 207, September 18, 19351

122 - A Senate proposal to ratify the Statute of the Permanent Court of
International Justice of The Hague and its Protocol of Signature, signed at
Geneva on December 13 and 16, 1920, wereread and approved, with a waiver
of the second reading, together with the amendments to said Statute and their
Protocol of Signature, and the Protocol signed at Geneva on September 14,

1929,concerning the accession of the United States of America to the Protocol
of Signature of the aforesaid Statute, [all] approved by the Executive Power on
Decemher 4. 1934. MlLlTARY AND PAIUMILITARY ACTIVITIES

Annex 11

ENGLISH TRANSLATION

Department of State, Division of Language Services

(Translation)

Ministry of Foreign Afiairs of the Repuhlic of Nicaragua

[Stamp: Received League of Nations Registry Apnl 23, 19351

Managua, D.N., April 4, 1935.

No. 3A/15353/1000

MI. Secretary:
1have the honor to refer to your note No. C.L. 34.1935.V. of March 5, 1935,

in which you reproduce the resolution adopted by the Assemhly of the League
of Nations on Octoher 3, 1930,regarding the assignment given to the Secretariat
to ohtain from the member and non-memher States of the League of Nations
timely information concerning their intentions with respect to the ratification of
any conventions concluded under the auspices of the League of Nations that
have been signed but not ratified one year after the closing of the Protocol of
Signature.
1 am pleased to provide you with the following information regarding the
Repuhlic of Nicaragua:

The President of Nicaragua issued a decree on February 15, 1932,acceding to
the Convention. sianed at Geneva on March 19. 1931.~rovidine a uniform law
for cheques and the corresponding Protocol, the Con;éntion f& the settlement
of certain conflicts of laws in connection with cheques and the corresponding
Protocol, and the Convention on the stamDlaws in connection with cheiues and
the corresponding Protocol. Al1these instruments have been submitted to the
National Congress for its consideration but they have not yet been approved.
The President also acceded, hy a decree dated May 16, 1932,to the General
Convention to improve the means of preventing war signed at Geneva on

Septemher 26, 1931.That Convention was approved hy the National Congress
in a decree dated February 19, 1935,which was sanctioned hy the Executive ANNEXES TO THE COUNTER-MEMORIAL 191

Power on February 22, 1935. The instrument of ratification was sent by this
Ministry to the League Secretariat on March 2, 1935.
The llnternationall Convention for lthe su~~ressionof1 the traffic in women
and chLldrenof sept&her 30, 1921,and the ffnternationai] Convention for the
suppression of the traffic in women of full age, of October 11, 1933,as well as
thé~conventions for suppression of the white slave traffic, signed inParis on
May 18, 1904,and on May 4, 1910, have just been ratified simultaneously by

the Congress of Nicaragua in the LegislativeDecree of February 26, 1935,which
was sanctioned hy the Executive Power on March 1, 1935. Within a few days
the res~ctive instrument of ratification will he sent.
The Convention, signed at Geneva on October 11, 1933,under the auspices
of the League of Nations, to facilitate the international circulation of movies of
an educational nature has also been ratified hv the National Conrre-s hv the
I>r.crccuf l'cbru~ry 1').1'135.rrhich uar aiictioned h) the Executi\c l'.~ivc~111
1Tbru:ir) 22, 1935.As soim 1i 11 irproniul~~t~Jin Lir ti~icc~luOIfii'[UIFicidI
<;;r,etie]. tlic instriimüfiratilirstion uill bc sticithc LedgucStcrctliridt.
Iinally. th? Stliiut:i)l'ihe Per~ii;iiienrC<>urtof International Justicr.. <IV

Dtccmhcr 13, 1920.and its I'rotwu ui Signaturc. oi I>t;r.mher 16. 1310, ia wcll
as amendments to the Statute which are annexed to the Protocol signed at
Geneva on September 14, 1929,and the other protocol whose purpose was to
obtain the accession ofthe United States of America to the Statute of the Court
have al1been signed by Nicaragua and have been suhmitted to the Congress of
the Reoublic for its constitutional ratification. As soon as that formalitv is
compleied, 1 shall have the pleasure of sending the appropriate instrument; of
ratification to the League of Nations Secretariat.

1remain, Mr. Secretary, with al1consideration,

Very truly yours,

(Signed) Leonard ARG~ELLO,

Minister of Foreign Akirs

Annex12

[See 1,Exhibits Submitted by the UnitedStatesof America in Connecriorlwith
the Oral Procedureon the Request for rhe Zndicarioriof ProvisionalMeasures,
pi]. 258-2601192 MILITARYAND PARAMILITARYACTIVITIES

Amex 13

LLTW FROMTHE UNITED STATEASMBASSAU TORNICARAGU TO THESECRETARY
O,:STATED,ATED13MAY1943,ENCLOSIN GLm FROM THEAMBASSAD OOR
JUDGE MANLEV HUDSOND , ATE13MAY1943, AND AN UNSIGNEC DOPYOF THE
DECRE EF II JULY193'AN0 ENGLISH TRANSLATION

(For the letrerssee 1, Exhibits Submittedby the United States of America in
ConnectionwiththeOralProcedureontheRequestfortheIndicationof Provisionai

Measures,p. 2621

ENGLISH TRANSLATIOOF ~SIGNED cow OF THE DECREEOFII JULY1935

Department of State, Division of Language Services

(Translation)

LS No. 113576
ALK/BP
Spanish.

C~PY
Senate of Nicaragua

The President of the Republic
to the people of Nicaragua
Be it known that:

The Senate and Chamber of Deputies of the Repuhlic of Nicaragua Decree:

Article:The Statute of the Permanent Court of International Justice ofThe
Hague and the Protocol of Signature of said Statute, signed at Geneva on

December 13and 16, 1920,are hereby ratified, together with the amendments to
said Staiuandihe Protocol of Signature of ihese amendments, and the Protocol
signed al Geneva on Septemher 14, 1929,concerning the accession of the United
States of America to the Protocol of Signature of the aforesaid Statute, al1
approved by the Executive Power ina decree dated Decemher 4, 1934.
Article 2: This law shall enter into force upon publicaLa Gacera
[OfficialGazette].

Done in the Senate Chamher, at Managua, D.N., on February 14, 1935.

JoséD. ESTRADA,
President of the Senate.

Leonidas S. MENA, Alberto GOMÉS,

Clerk of the Senate. Clerk of the Senate. ANNEXES TO THE COUNTER-MEMORIAL 193

the Executive Power [from the] Chamber of Deputies, Managua, D.N.,
To:
July 11, 1935

S. RIZ0 G.,
(Seal of the Chamber of Deputies)

J. Ant. BONILLA, J. N. SANDINO,

Clerk of theChamber of Deputies. Clerk of the Chamber of Deputies.

(Seal of the Charnher of Deputies)

Therefore :This shall be executed

Presidential Palace,
Managua, D.N., July 13, 1935

Juan B. SACASA,

Minister of Foreign Relations.

Leonardo ARGÜELLO.

(Great Seal of the Nation)

(Seal of the Ministry of Foreign Relations) MILITARYAND PARAMILLTARA YCTIVITIES

Annex14

LS No. 113613-B

(Telegram)

19781Managua Nic CL340 22 29 1710via CIAL RS

No. 2959 3C/17664/1589

Secretary, League of Nations, Geneva

Statute and Protocol of Permanent Court of International Justice, The Hague,
already ratified. Instrument of Ratification to be sent in due time. Ministry of
Foreign Affairs.

[Stamp: Received November 30, 19391

' Notrcproduced. ANNEXESTO TH6 COUhTU-MEMORIAL

Annex15

ABL LISSALACOUR PERMANENTEDEJUSTICIETERNATIONAL. IFNÀGENBVE

[No, reproduced] 6

MILITARY AND PARAMILITARYACTIVITIES

Monsieur le Secrétairegénéral,
J'ai I'honneurde vous faire savoir que la grande Assembléenationale a, par
une loi en date du 12juin 1935,subna 2774, ratifiél'adhésionsans réservesde
la Turquie aux protocoles suivants:

1) proiocolc Js 3igndlurc ;onccriiünt Ic Stdiui Je 1.1Cour perriiiincnir Je Ju,ilcc
intcrnationdlr (<ien?vc,Ir.16Jcccnihrs 19?0).
2) prut.ir<ile;oncr.rnanl13 rsvlslon du Sldlul de 1.1Cour pcrm.inenlc Je Jujiicr'
internationale (Genève. le 14 sentembre 19291
3) protocole concernant l'adhésion'des ~tats-Unis d'Amériqueau protocole de
signature du Statut de la Cour permanente de Justice internationale (Genève,
le^4septembre 1929),

En ce qui concerne l'adhésion à la disposition facultative prévuà l'article 36
du Statut de la Cour, celle-ci setrouve êtresubordonnée par la même loiaux
réservessuivantes :

1. L'adhésionde la Turquie comportera la condition de la réciprocité.
2. Elle sera valable pour une période decinq ans.
3. La juridiction obligatoire de la Cour ne sera applicable qu'aux différends
ainsi qu'aux faits qui en sont la cause, postérieursa la date de l'adhésion.
4. L'adhésionimpliquera pour la Turquie la reconnaissance de la compétence
obligatoire de la Cour permanente de Justice internationale pour les différends
énumérés à l'article 36 du Statut de la Cour sauf les différendss..rannortant soit
directement soit indirectement à l'application des traites et des conventions que
la Turquie a conclus et pour lesquels une autre procédure de solution est
prévue.

En portant ce qui précèdea votre connaissance j'ai i'honneur d'ajouter que je
ne manquerai pas de vous transmettre sous peu l'instrument d'adhésion des
protocoles susvisés.
Veuillez agréer, Monsieur le Secrétaire générall,es assurances de ma haute
considération.

Pour le ministre,

le secrétairegénéral,
(Signé[) Illisible.] ANNEWS TO THE COUNTER-MEUORIAL

Annex17

Monsieur le Ministre,

J'ai l'honneur d'accuser réceptionde la lettre du 16juillet 1935,na 14661J64,
par laquelle vous avez bien voulu me faire savoir que le Gouvernement de la
Républiqueturque a décidéde devenir partie aux protocoles suivants:
1) protocole de signaturedu Statut de la Cour permanente de Justice internatio-

nale (Genève, le 16décembre 1920);
2) protocole concernant la revision du Statut de la Cour permanente de Justice
internation~ ~ ~ ~n~ ~ ~e 14 se~tembre 1929):
3) protocole concernant l'adhésiondes Etats-~nk d'Amériqueau protocole de
signature du Statut de la Cour permanente de Justice internationale (Genève,
le-14 septembre 1929)

De plus, vous voulez bien m'informer que la Turquie a décidéd'adhérer à la
disposition facultative prévue à l'article 36 du Statut de la Cour en faisant la
déclaration suivante:

«L'adhésionde la Turquie comportera la condition de réciprocité.
Elle sera valable pour une périodede cinq ans.
La juridiction obligatoire de la Cour ne sera applicable qu'aux différends
ainsi qu'aux faits qui en sont la cause, postérieurs à la date de l'adhésion.
L'adhésionimpliquera, pour la Turquie, la reconnaissance de la com-
pétenceobligatoire de la Cour permanente de Justice internationale pour les
diliérendsénuméréa s l'article 36 du Statut de la Cour, sauf les différends
se rapportant soit directement, soit indirectement à l'application des traités
et des conventions que la Turquie a conclus et pour lesquels une autre

procédure de solution est prévue. ))
Vous avez bien voulu ajouter que vous comptez me transmettre prochainement
l'instrument d'adhésionde la Turquie aux protocoles susmentionnés.
En vous remerciant de cette communication, je dois attirer votre attention sur

le point suivant:
Les trois protocoles en question, à la différencede la plupart des conventions
générales,ne prévoient pas l'adhésion commemoyen pour les Etats d'y devenir
partie. La seule procédure prévue - procédure quia été jusqu'ici suivie par tous

les Etats qui sont devenus parties d ces protocoles - est celle d'une signature
suivie d'une ratification. Dès lors. pour devenir partie à ces protocoles, le
Gouvernement turc devra désignerun plénipotentiaire pour les signer à Genève.
Cette signature devra étreratifiée. L'instrument de ratification de la signature
peut, du reste, ktre déposéau Secrétariat en mêmetemps que la signature
est donnée.

IInvc qui ci>nL.r.rn1.1rli\p<isitio~if,i~uliatidc I'arildle 36. p.irdgrsplie 2. <lu
St.11~1,le I;iCour. la J2dloraiion J'ac~epi;iiii>ndc Is jurld1.'tlon Jc la Cour di>lt
Ctrc inscrtte \ur letexte auih<ntiqiir. Jiipr~>toi.ilcJc 1920. Ii Is aultc dei ciutrc.198 MILITARYAND PARAMILITARYACTIVITIES

Jéil<ir<iiiontsimilaires et ceite declaration J<IIICire suivie de la sigduture
plCnipoteniiairc Cettc dkilaraiion peut, irlon lc grc des guuvcrnemenij. contenir
ou non une réservede ratification. Si une telle réserve n'existepas dans la
déclaration,celle-cisort immédiatementses effets.II n'est donc pas nécessaire,si

la Turquie entend se lier immédiatement,qu'elle fasseune réservede ratification
et qu'elle déposeun instrument de ratificaten ce quiconcernel'article36.
Je m'empresse d'ajouter que le Secrétariat se tieàtl'entièredisposition de
votre gouvernement pour faciliter l'accomplissementde ces formalités.
Veuillezagréer,Monsieur le Ministre, lesassurances de ma haute considération.

Pour le Secrétaire général,
Le conseillerjuridique p.i. du Secrétariat,
(Signé) H. MCKINNON WOOD. ANNEXES TO THE COUNTER-MEMORIAL

Annex 18

J1/12433.

Mon cher Nisot,
Par ce mêmecourrier. i'accuseréceotionde la lettre en date du 13mars 1936.
,>
signéepar vous, par laquelle nous est notifiéela signature au nom de la Turquie
du protocole de signature du Statut de 1920,du protocole d'adhésiondes Etats-
unis, ainsi que dela disposition facultative.
II résultede cette lettre que la Turquie n'a pas signele protocole de revision de
1929.La cause en est sans doute que le protocole de 1929,dans son paragraphe 6,
stipule que, dès son entrée en vigueur, toute acceptation du Statut signifiera
acceptation du Statut revisé.
D'autre part, avant de considérerla Turquie comme liéepar les instruments
qu'ellea signés, nousattendrons évidemment desnouvelles de Genèvequant a

la question de sa retification.
Je vous prie de croire, mon cher Nisotàmes sentiments les meilleurs,

(Signé HAMMARSKJOLD. MILITARYAND PARAMILITARYACTlVlTlES

Annex 19

Monsieur le Conseillerjuridique,

Me réîérant à la lettre circulaire du 25 mars dernier (C.L.58.1936.V) au sujet
de la signature par le déléguépermanent de la Turquie auprès de la Société des
Nations du protocole de signature concernant le Statut de la Cour permanente
de Justice internationale, je serais reconnaissant d'êtreinformési ladite signature
est définitive ousi une ratification est prévue.

Veuillezagréer, Monsieurle Conseiller juridique, l'assurance de ma considé-
ration la plus distinguée.

Le délégué permanent de la Norvège,

(Signe) [Illisib]e. ANNEXES TO THE COUNTER-MEMORIAL

Annex20

LE~TERFROMTHE LEGAL ADVISE RF THELEAGU EFNATlON O THE NORWEGIAN
DELEGAT TO THELEAGU EF NATIONSD,ATED21APRIL1936(LEAGU OF NATIONS
ARCHIVEF SI,LENUMBE3RC/19181/1589)

Monsieur le Délégué,

En réponseàvotre lettre du 15avril 1936,je m'empressede vous faire savoir
que, conformémentaux dispositions du protocole de signature du Statut de la
Cour permanente de Justice internationale, la signature de cet acte par la Turquie
est soumisà ratification.
La déclarationsignéepar la Turquie, acceptant lajuridiction obligatoire de la
Cour, telle qu'elle est prévue au paragraphe 36 du Statut, ne prévoit pas

l'obligation de ratification, mais il reste entendu qu'elle ne produira ses effets
qu'après la ratificationpar la Turquie du protocole de signature du Statut de la
Cour permanente de Justice internationale.
Veuillezagréer, Monsieurle Délle.sassurances de ma haute consideration.

Pour le Secrétairegéneral,
Le conseillerjuridique du Secrétariat,

(SignéL ). A. PODESTAOSTA. MlLlTARY AND PARAMILITARY ACTlVITlES

Amex 21

LETTER FROM THE FOREIGN O~CE OF THE UNITED KINGDOM TO H. MCKINNON

(E 3311/1027/44)

Dear Hugh,

In letter F\o CL. 5X.1936. V. dated 15th hlsrch 1936 siàned hv t\'i\,>ue
irerc inforincd tliai l'urkeyhxJ \igncil the pr,,i<>colof signature ciinccrning thr
Statuts i~i'ihePcrmanrnt Coiiri of Intern~tional Ju,iice. the ~roiociil rcIOtini?.
the accession of the United States of America~ ~ ~ ~ndthe .~t~o~ ~ clause.-WC
want to knowwhether this signature became effectiveat once or whether it was
subject to ratification. Nothing was said about ratification in Nisot's letter and
therefore we were dis~osed ïo conclude that the sienature became effective
iiiirncJi.itel) I'hc only iloubi arirci liiim the ternis oiihc proiocol ,,l signaiuc
oithe S131111oi.i the Perni;iiien[Co~rl of Inicrnatiiin.il Jurlicc ii~eli If you rud
the protocol it is clear that the original signatures of the protocol were certainly
subiect to ratification. The la.t o-raeraoh but two. however. which deals with
thcsubsequent signatures is silent on this point. Are we to conclude therefore
that a suhsequent signature under this lat.er -~ragraph is effectiveat once unless
it is stated to he subject to ratification?
It is clear that a signature of the optional clause cornes into force at once
unless it is expressly made subject to ratification but a signature under the op-
tional clause cannot become effectiveuntil the signature of the protocol itself
becomes effective.Have vou had anv other sienatures under the last.oar-eraoh
but two of the protocol,'and, if so, have 0thsignatures which were not mide
expressly subject to ratification heen treated as heing effectiveforthwith?

Yours sincerely,

(Signed) E. BECKETT. ANN73XESTOTHE C0UNV.R-MEMORIAL

Annex22

LETTER FROMH. MCKINNON WOOD OF THELEGAL SECTIO NF THELEAGU OEF
NATIONS SECKETARI ITTHE FOREIGNOFFICEOF THEUNITED KINGDOM D,ATED

13JULY1937,ENCLOSIN GNOTE PREPARE BDTHE TREATY REGISTRATION
BRANCH OF THELEAGU EFNATIONL SEGAL SECTION(LEAGU EF NATIONS
ARCHIVES,FILSNUMBER 3C/19181/1589)

Dear Eric,

Inreply to your letter of July 8th, reference E 3311/1027/44,1cannot do better
than enclose the note on the suhject wbich has been prepared in the Treaty
Registration Branch of the Legal Section, from which you will see that the view
which has beentaken is that a11signatures of the Protocol of Signature of the
Statute of the Court are considered here to require ratification irrespective of
their date, and that accordingly, so far as we know, Turkey is not bound hy any
of the instruments in question.

Yours sincerely,

(Signed) H. MCKINNON WOOD.

Dans laC.L.58.1936.V, à laquelle se réfèrele Foreign Office,nous n'avons pas
spécifique ces signatures ne deviendraient effectivesqu'aprèsratification, parce
que ceci découle des dispositionsmêmesdu protocole de la Cour. La Turquie

n'a pas encore déposéses instruments de ratification et n'est pas considérée
comme liéepar aucun des actes en question.
Jusqu'à présent les signatures apposéesau protocole de là des dates
ultérieures la conclusion ont toujours été considcsomme nécessitant la
même procédure de ratification que les premieres signatures.
Voici quelques exemples de pays qui ont siàndifférentesdates après la
conclusion du protocole

Pays liés:
Allemagne: signature 10décembre1926,ratification 11 mars 1927; Ethiopie:
signature 12juillet 1926, ratification 16juillet 1926; Pérou: signature 14 sep-
tembre 1929,ratification 29 mars 1932.

Puys nonencore liés:
Sipaiurrs

Ei:iis-Ciiis J'?\mi:rique 4 dc~c!iibr: 192~)
Kepiihlique .4rgcnrine 28 ~Iccc~tnhrIecHj
(iu.iii:m.il<i 17di:cemhrc19?h
Nicaragua 14 septembre 1929 MILITARY AND PARAMlLITAi\RYACTIVITIES

Annex23

LEITERFROM THEACTINGLEGA AIDVISERF THELBAGU OFNATION TO TH6
MINISTE RFFOREIG ANFFAIRSFNICARAGU DA,TED30NOVEMB E39
(LEAGU OF NATIONASRCHIVEFSI,LNUMBE RC/l7664/1589)

[See1,Exhibirs Submitted by the United States of America in Connection with
the Oral Procedure un ihe Requestfur the Indicalion of Provisional Measures,
p. 2571

Annex24

lSee 1. Exhibils Suhmirted bv ihe United Sroles of America in Connecrion with
ilre oh1 Procedure on the ~e~uestfor thr Indication of Prot~isiunalMeasures,

pp. 256-2571

Annex25

[See 1, Exhibits Subnzitied by the United States qf America in Connection with
lhe Oral Procedure on the Requestfor the Indication of Provisional Measures,
p. 2561

Annex26

[See 1, Exhibits Submitted by the United States of America in Connection with
the Oral Procedure on theueslfor the Indication of Provisional Measures,
p. 2551 ANNEXES 70 THE COUNTER-MEMORLAI

Annex 27

WORK OF THE LEAGUE OF NATIONS IN THE MATTER OF

INTERNATIONAL CONVENTIONS

SIGNATURES, RATIFICATIONS AND ACCESSIONS

in respect of Agreements and Conventions concluded under the auspices of the

League of Nations

TWENTY-FIRST LIST

CHAPTER II- PROCEDUREF SOR TIIEPACIPICSETLEMENT OP
INTERNATIONAD LISPUTES

SECTION 1. THE PERMANENT COURT OF INTERNATIONALJUSTICE

1. REVISED STATUTE OF THE PERMA~N CTOURT OP INTERNATION JUALTICE.
PROTOCO OF SICNATURE OF THE STATUTE.

Geneva, Decernber 16th, 19202.

' The revision of the Statute was effeclcd by a Protocol of Signature, dated September
14th. 1929,whicharne into force on Fcbruary 1st. 1936(registered undeTrealy3822,
Serier, Val. 165,p. 353).
This Protocol provides as follows:

fo~ part of the Statute adopted in . ... present Protocal, the new provisions shall
6.- After the entry into force of the present Protocol, any acceptance of the
Sta~ ~ ~of the Court shall constitute an accentance of the Statute as amended."

Protocol registered under No.sec0Treat yeries. Vol.6, p. 379. For the revised
16x1of thc Statute. however. see Protocul of Se~ternber 14th, 1929(registration No. 3822,
Treot yeries, Vol. 165,p. 353).
Signatures and ratificationsqucnt ta rcpistration of Protacal dated December 16th,
1920: Vol. II, p. 404; Vol. 15, p. 304; Val.24, p. 152; Vol. 27, p.416; Val. 39, p. 165;
Vol. 45,. 96; Vol. 50,p 159;Vol. 54,p. 381; Vol.69, p. 70; Vol.12, p. 452; Vol.78, p. 435;
Vol.88, p. 272; Vol.92, p. 362; Vol.96, p. 180: Val. 100,p. 153: Val. 104,p. 492: Vol. 107,
p.461; Vol. 111,p. 402; Vol. 117,p.46; Vol. 126,p. 430; Val. 130,p.134,p. 392;
Vol.147, p. 318; Vol. 152, p.282; Vol. 156, p. 176; Vp..325; Vol. 164, p.352;
Val. 168, p. 228: Vol. 172, p. 388; Vol. 177, p. 382;p.346; Vol. 185, p. 370;
Vol. 189, p. 452; Vol.p.402:Vol. 147,p. 283; and Val. 200, p. 484.
The Annex to the Supplernentary Report an the Work of thc Lcaguc for 1929
(A.6(0).1929, Annex) contains, moieover (p. 38). camplete details concerning the Final
Act of theonference of States signatories of the Protocol of Signalure of the Statute of
the Permanent Court ofternational Jiistice, Geneva, Septernber 23rd. 1926. 206 MILITARYAND PARAMILITARYACTIVITIES

In Force.
Ralifîe<~lio49:

UNON OP SOUTIIAFRICA es roi ri^ (May 2nd. 1923) . .. .. ..-
(August 4th, 1921) ETHIOVIA (July 16th. 1926) (August 4th. 1921)
ALBAS~A (July 13th. 1921) FINLANU (April 6th. 1922) Nonwnv (August 20th. 1921)
Ausrnn~rn (Aug. 4th. 1921) FRANCU (August 7th, 1921) PANAMA (June 14th. 1929)

B~i.oiuu (Aug. 29th. 1921) GERMANY (March 1lth, 1927) PAMG~AY (May Ilth, 1933)
Boi.rvin (July 7th. 1936) GREKE (Oclober 3rd. 1921) Pinu (March 29th. 1932)
B~azi~ (Novemb. 1st. 1921) Hami (Seplember 7th. 1921) POLAND (Àugust 26th. 192j
BR". EMPIRE (Aug. 4th. 1921) HWGARY (Nov. 201h, 1925) PORTUGAL(October 8th, 1921)
Bmcn~i~ (Aug. 12th. 1921) IKDU (Augurt 4th. 1921) ROUMANA (AUE.8th, 1921)
CANADA (August 4th. 1921) IMN (April 25th, 1931) SALVADOR (Aug. 29th. 1930)
CHILE (July 20th. 1928)IREUND SPAIS (August 30th. 1921)
CHISA (May 13th. 1922) ITALY (Junc 20th. 1921) SWEDES (Fcb. 21% 1921)
JAVAS (Novcm. 16th. 1921) Swi~ze~iaso (July 25th. 1921)
Co~onnu (Jan. 6th. 1932)
CUBA (January 12th, 1922) LATVIA (Febmaty 12th, 1924) T~~ii.ahm (Fcb. 27ih, 1922)
CZECHO-SLOVAK~A LITENAPIIA(MBY16th. 19221 URUGUAY (Sept. 27th, 1921)
(Scptcmbcr 2nd, 1921) LUXEMBURG(scpi. 193oj VENEZUELA (Dcc. 2nd. 1921)
DENMARK (Julie 13th. 1921)Tirr NLTIIERI~ANIIS Yucos~avin (Aug. 12th. 1921)
DOMINICAR NI:I>UHI.I~ (August 6th. 1921)
(Fcbruary 4th. 1933)

Signalureno1yel Olher Membersor Srores
perjecred by Rori/ieol9on: whichmoy sign rhe Proloco':

UNITI~USTATU OP A.WRICA AFGIIANISTAN
A~ciih-rlsiiRevuei.ic SA'UI>AImni*
Cosr~ RICA Ecu~imn
Ecvm HOSDURAS
GUATEMALA Miixico
IRA0
LIBEKIA

NICARAGUA
Tun~in

'Undcr the tcms of the Assembly rcsolution of Deccmber 13th, 1920, in addition to
Mcmbers of the League of Nations, thc Statcs mentioncd in the Annex to the Covcnant
althe Lcague of Nations may alsa sign.ANNEXESTO THE COUNTER-MEMORIAL

[Noi reproduced] MILITARY AND PARAMILITARY ACTlVlTlES

Annex 29

The Subcommittee has been entrusted with the study of Article 36 of the draft
statute of the International Court of Justice relating to the nature of the juris-
diction of the Court. Two systems have been hrought hefore the full commit-
tee, first, optional jurisdiction as provided in Article 36 of the present statute
of the Permanent Court of International Justice, and, second, compulsory juris-
diction with provision for exceptions. Concerning the second system, a pro-

posal had heen suhmitted hy the Delegate of New Zealand (Doc. WD47,1V/1/49
herewith), supported hy the Delegates of Mexico and Australia. The New
Zealand . .~osal was oresented hv its author as falline sh-rt of the intention of
Iiisg,itcriinieiir bihich Ci\.irrJ i.<>mpulwryjuri\rlicti.~npure .ind ,;nipl:, and aas
oll'crcdin the hi>pcol i>ht.iiningg~n~r;il :igrcciiient, rcrcr\ing the positi.>iiof liir
government.

A long dehate took place, dunng which the arguments invoked in the Com-
mittee were reiterated and developed. It was pointed out particularly that certain
states not parties to the statute of the Permanent Court of International Justice
might find it difficult or impossible to accept ohligatory jurisdiction at the present
stage. It would therefore be unwise to attempt to make the latter system prevail
without assuming the risk of compromising the accession of such states to the
statute of the new court which is to be an integral part of the Charter.

On the ot~er~hand it wa~~n,~nted~ ~t that the discussion in the full Commit-
ter' lixl 5113!i11the c*I>tcncc oi :I grc.41\olume oi rupp<>rtfor ci;tcnding the
intcrnati<inlilIcpl drdcr h) rcciyni.ln@ immcili~iclv.ihroughoui the nicnibcrihip
t~iihe ncn,Oreiniwtion. theioniniiliorv ii.rijdici~oiioitlic Coiiri. II \\:a:lsiincd
that the ~ew-~ealand document, hy éxpressly admitting agreed reservations,
offered a compromise between the two Washington texts, and made easier the

acceptance of the compulsory principle. The disadvantages of the optional clause
were emohasised.
At the'same time it was pointed out that the optional clause with reservations
isnot, from a practical point of view,very different from the system ofcompulsory
jurisdiction with reservations.
The Subcommittee has carefully weighed the arguments pro and con with
respect to hoth systems and has finally heen led to the conclusion hy majority

that everything heing taken into account, the system of optional jurisdiction at
the present time would he more likely to secure general agreement.
By a vote of 7 against 5, the Subcommittee rejected a motion Io take the New
Zealand document as the hasis of its further discussion.
By a suhsequent vote of 8 against 3, the Subcommittee decided to take
Alternative Text 1in the Washington draft as the basis of its further discussion.

The Delegate of Canada proposed that there should be incorporated in ANNEXESTO THE COU~TER-MEMORIAL 209

Paragraph 2 of Article 36 a list of permitted reservations, with liberty to add
others. The Delegate of Australia proposed that there should be added an ex-
haustive lis1 of permitted reservations, along the lines adopted in the General
Act of 1928. By a vote of 6 against 3, however, the Subcommittee resolved to
recommend that on lhis point Paragraph 2 be maintaincd in its present form.
The text proposed by the Subcommittee Io the Committee is attached. This
text is the same us that of the first alternative proposed for Article 36 hy the
Committee of Jurists of Washington, with the exceptiori of the two following
modifications :

(1) The end of paragraph 2 has been changed 10 read as follows . . ."the
jurisdiction of the Court in al1legal disputes concerning:"
This modification appeÿrs not only Io be an improvement in form, but is also

favorable to the jurisdiction of the Court, since it eliminates the distinctions
which the present text seems to make.
(2) The new paragraph which follows (new paragraph 4) has been inserted
after paragraph 3:

"Declarations made under Article 36 of the Siaiute of the Permanent
Court of International Justice and which are still in force shall be deemed
as between the parties 10 the present Statute 10 havc been made under this
Article and shall continue to apply, in accordance with their terms."

The question i>frcscrtaiioiis ialls for an c\pl;tnaiion.A3 is tvcll knuun, ilie
;irilclc har coiirlsicnily bccn inicrprctcrl in ihc pas1 ulluuing siater amcpting
the iurirdiciion of ihc Court IO ,ubicci ihcir ilcilliraiions Io reservÿtion, The
Subcomniiticc has considercd ruch inicrprciaiion ar bcing hçnrrfonh srtabli,hcd.
II h;iriherefore bccn iun\idcred unnccc,sary iu mudi* paragraph 3 in orrlsr IO
make express reference to the right of the States 10make such reservations.
The desire to establish compulsory jurisdiction for the Court prevailed among
the majority of the Subcommittee. However, some of these delegates feared that
insistence upon the rcalization of that ideal would only impair the possibility of
obtainine reneral accord 10 the statute of the Court. as well as to the Charter

itself. LtTsTnthat spirit that the majority of that ~ubcommittee recommends the
adoption of the solution described ;above.

Article 36

(1) The jurisdiction of the Court comprises al1cases which the parties refer
to it and al1matters specially provided for in the Charter of The United Nations
or in treaties and conventions in force.
(2) The Members of The United Nations and the States parties to the present
Statute may at any time declare that they recognize as compulsory ipso jlcro
and without special agreement, iitrelation to any other Member or State

accepting the sdme obligation, the jurisdiction of the Court in al1legal disputes
concerning :
(a)the intcrprctation of a treaty;
(b) any question of international law;
(c) the existence of any Pactwhich, ifestablished, would constitute a breach

of an international obligatiori;210 MlLlTARY AND PAMMILITARY ACTIVITIES

(d) the nature or extent of the reparation to be made for the breach of an

international obligation.

(3) The declaration referred to above mdy be made unconditionally or on
condition of reciprocity on the part of several or certain Members or States, or
~-~ ~ ~- - ~ ~ ~~~ ~~ ~ ~ ~ ~
(4) Declarations made under Article 36 of the Statute of the Permanent Court

of International Justice and which are still in force shall be deemed as between
the parties to the present Statute to have been made under this Article and shall
continue to apply, in accordance with their terms.

(5) In the event of a dispute as to whether the Court has jurisdiction, the
matter shall be settled by the decision of the Court. ANNEXESTO THE COUNTER-MEMORIAI.

PROPOSAL DY THEDIILBGATIO01:FRANCE RELATIN GO ARTICLE36OP THE

STATUT OF.THSINTERNATIONC ALURTOP JUSTICI.',ATIDJUNE1945,
DOCUMENT 947, UNITENATIONC SONFERENC ONE/NT~~RNATION OARLAN~ZATION
DOCUMLN~V S, L.13,PP.485 (ENGLISH)'4,86 (FREWCH!'

1. In paragra(1)deletethe words "in the Charter of the United Nations or".
2. In paragraph 3, add the following phrase:

"This declaration shall be deposited with the Secretary-General of the
United Nations."
3. Paragraph (4) should read:

"(4) Dxlarations made under Article 36 of the Statute of the Permanent
Court of lnternational Justice and which are still in force shall be deemed,
as between the parties to the presenttute, as including acceptancc of
compulsory jurisdiction of the International Court of Justice for the lime
and under the conditions expressed in these declarations."

'
ThisdocumentidcnticalwWD18h.
Not reproduced. MlLlTARY AND PARAMILITARYACI'IVITIES

VereransBuilding. Room 202.Jline 6. 1945.3:30 p.m.

The meeting was presided over by the Chairman' Manuel C. Gallagher.

1. Procedurefor E.xpediringthe Meeting
In order to attempt to cover ail the items on the agcndd it was suggested that
the Committee might fixa time limit for discussion.

Decision: The Cummitteediscussionshouldnot e.ïceedone-halfhour for each
item on the agenda.

2. Arricle 34 of the Stature

The Committec considered the proposal submitted by the Delegation of
Venezuela(WD 188, IV/1/24 (1 )).
Decision: The Con~mirteerejecied O Venezuelanproposa1 IO give the Court

appellaiejurisdiction.
Decision: The Comn~irreeunanimo~tslyadopted paragraphs (1) and (2) of
Article 34 of the draft approvedby the Commirteeof Jurisrs (Jurist 82, G/69),
reuding usfollows:

"(1) Only SIatesor Members of The United Narions may heparries in cases
hefore rhe Court.

"(2) The Court, subjecr ru and in conformity tviih ils Rules,may requestof
public international organizarions informationrelevanr lu ca.seshefore ir, and
shull rcceive such informurion presenredby such organizarions onrheir own
initialive."

The Chairman observed that a new paragraph (3) that had heen added to
Article 34 had already been adopted by the Committee and it was, therefore,
unnecessary to discuss this paragraph.

3. Article 35 of the Stature
The Committee considered a proposcd addition submitted by the Delegation
of Egypt (Doc. 254, IV/1/17).
It was pointed out that paragraph 1 of the Egyptian proposal was identical

with the corresponding paragraph of the draft approved by the Committee of
Jurists.

Decision: The Committee unanimously adopred the te.rt of Article 35 (1)
asfolloivs :
"(1) The Court shull be open IO the Members of The Unilel1 Nations and
also IO Staresparries 10 the Statute." ANNEXES TO THE COUNTER-MBMORIAI. 213

The Committee then considered paragraphs 2 and 3 of the Egyptian proposal,
which relate to the conditions under which states not members of The United
Nations may become parties to the Statute and the conditions under which the
Court may be open to other states.
It was pointed out that the question as to whdt states are to be parties to the
Statute should bc decided in the Charter, while the question as to whdt states
may appear before the Court in the case, once the Court is established, should
be determined by the Statute. The Ilgyptian Representative proposed, however,
that paragraph (2) of the draft approved by the Committee of Jurists, dealing
with the latter mbject, should become paragraph 6 of Chapter VI1of the Charter.
It was felt that Article 35 as approved by the Committee of Jurists should be
retained because the conditions under which states might become parties to the
Statute or appear hefore the Court should be stated in the Statute.
The view was also expresscd that the question as to what provision should he
included in the Charter should be taken up when the appropriate section of the
Charter is considered by the Comrnittee. The Egyptian Representative stated
that he would he willing to withdraw his amendment wiih the understanding
that he might reopen the question in connection with the Charter.The Chairman

pointed out that Article 35 had been adopted and was reopened only because of
the Egyptian amendment.
Decirion: Arlicle 35 rfthe drufi aospreviorrv~pprovedis consideredus adop-
redund the Egyptiunprop~~suhillbe rukenup in connecrionwith the Charrer.

4. Arricle 36 of rhe S!uruie
The Committee considered the proposals submitted by the Delegations of Iran
and France (WD 189, IV/1/65; WD 186, IV/1/60).

The French Delegate proposed that the words, "in the Charter of the United
Nations or", he deleted in paragraph (1) of Article 36 since the Charter did no1
appear to confer jurisdiction in any case. However, another view was expressed
that paragraph 6 of Chapter VI11 A of the Charter related to compulsory
references of casesto the Court by the Security Council. Itwas therefore agreed
that tbere should be no dclction.
Both proposals çontüined provisions for addressing dcclarations regarding the
optional clause to the Secretary-General.

Decision: Tlre Cornmirtee unarrimouslydeciùed ihur a new paragraph be
insertedheiiveenrheprcsenrprirugraphs(3) and (4) rflrheSrutute readingus
follo,vs:
"Tlris declururi~~snliull he deposiredwirh the Surrer<w.v-Geneolf the United
Nario~rsivlrosl~ullrrarrsna copy thereof ru rheparries ro tlreSiorureand 10
rhe regisrrarof rhe Courr."

The French Representative stated that the changes suggested by him in
paragraph (4) were not substantive ones, but were intended to improve the
phraseology.

Decision: The C~)mmirreeununirnouslyappruverlpurapraplr (4) of Arricle36
as/olluiv.s:
"(4) Decl<rrarion,msude under Arficle 36 cfthe Sruture of rhe Permirnent
Courrof I~riernuri~inuJlrrsficeund kvhichare sri11infi~rce.sliullbe deemed as
berrveenthep~rti~~ IOthepresenrSfatule, Io be uccepruncesof the compiilsory
jurisdicrion of tlze It~rernorionalCourt of Justifi rrheperiod during whiclr
they sri11huw io riinund in accordancewirhrheirrerms."214 MILITARYAND PARAMILIT~Y ACT~VITIES

5. RecommendationR segardingCompulsoryJurisdiction
The lranian Representative proposed that the Committee request the Steering
Committee to recommend 10 members of The United Nations to make their
deelarations concerning compulsory jurisdiction of the Court as soon as possible.
The Chairman stated that, since this proposal did not relate to the Statute, it

should be considered after the Committee had finished its work on the tex1 of
the Statute.
6. Article38 of ihe Stature

Decision: The Commitieeunanimouslyadopieda modi/iedChileanproposa1
(Doc 253. IV/1/16) ro oddto Article38. ANNEXES TO TIIE COUNTER-MEMORIAI.

Annex32

REPORTOR FAPPORTEU OFCOMMI~EIB VII. DATEO 12JUNE1945.DOCUMENT

[Page 381]

Part 1. Introduction

The First Committee of the Fourth Commission was charged with the pre-
paration of a draft of Chapter X of the Charter relating to the International
Court of Justice and a draft of the Statute of the Court Io he annexed to the
Charter. In pursuance of this mandate, the First Committee presents proposais
for inclusion in the chapter of the Charter dealing with the lnternational Court
of Justice, and a draft of the Statute of the Court.
Under the Chairmanship of His Excellency,Mr. Manuel C. Gallagher, Dele-

gale of Peru. and during a period ol'his absence, of His Excellency, Mr. Arturo
Garcia, the First Committee has held twenty meetings, betweenMay 4 and June
7, 1945. From time to time, it has created four suhcommittees to report on
particular questions. Many of the conclusions of the Committee were adopted
hv ~racticallvunanimous votes. and inal1casesthe orooosed texts werean..oved
bi the requi;ite majority of at ieast two-thirds of the Gotes.
The Dumharton Oaks Proposais gave evidence of a firm intention thit an
international court should play an important role in thc new organization of
nations for Face and security. An International Court of Justice was envisaged
as one of the principal organs of the Organization, and as such itwas to have
the support of al1members of the Organization. The Statute of the Court was
therefore to be a oart of the Charter of the Oreanization. It is indeed onlv
narural thal suih prorilinenccrhould hc arcribcdIO ihc judisial proces<u,hen an
inir.rn~tionaloryJni,liti<in is heing ~.re;iicJuhicli nill ha\r ai onc of ils purposes
the settlement of disDutesbetween states by ~eacefulmeans and with due rcaard
to justice and international law. .. .

[Page 3841
(2) The creation of the new Court will not break the chain of continuity with
the past. Not only will the Statute ol the new Court he based upon the Slatute
of the old Court, but this fact will he expressly set down in the Charter. In
general, the new Court will have the same organization as the old, and the
provisions concerning its jurisdiction will follow very closely those in the old

Statute. Many of the features of the old Statute were çlaborated from ideas
which had already been current during several decades, and its provisions with
reference ro procedurc - which it is now proposed to retain- were to a large
extent borrowed from the Hague Conventions on PacificSettlement of 1899and
1907.In a similar way, the 1945Statute will garnor what has come down fromthe past. To make possible the use of precedents under the old Statute the same
numbering of the articles has been followed in the new Statute.
In a scnse, therefore, the new Court may be Lookedupon as the successor to
the old Court which is reolaced. The succession will be exolicitlv contemolated
in some of the provisions Ofthe new Statute, notahly in ~riicle j6, paragkph 4,

and Article 37. Hence, continuity in the pr~gre~sive development of the judicial
process will be amply safeguarded.
(3) The creation of the new Court will give rise to ccrtain problems which
have been set forth in the report of the subcommittee and for some of which
solutions have becn proposed by the First Committec.
(o) It is provided in Article 37 of the draft Statute that whcre treaties or
conventions in force contain provisions for the reference of disputes to the
old Court such provisions shall be deemed, as hetwccn the members of the

Organization, to beapplicable to the new Court.
(h) It is provided in paragraph 4 of Article 36 of the draft Statute that
declarations made under Article 36of the old Statute and still in force shall
he deemed as hetween parties to the new Statute to apply in accordance
with their lems to the compulsory jurisdiction of the new Court.
(c) Acceptances of the jurisdiction of the old Court over disputes arising
betwccn parties to the new Statute and other states, or between other states,
should also be covered in some way,
[Pagcs 390-391 ]

[.. .] past a judge possessing the nationality of the state in which the Court had
its seat hascnjoyed the same privileges and immunities as other judges.
In Article 42, a provision was added that agents, advocates and counsel of
parties hefore the Court shall enjoy the pnvileges and immunities necessary to
the independent exercise of their dulies.

Article34. Parties Be/ore the Court

The First Committec approved the draft prepared by the Committee of Jurists
which added to this article as it anoeared in the old Statute a orovision for the
Court's requesting and receiving io'f'ormationfrom public internatio nrglniza-
tions. A further paragraph was added by the First Committee to provide a
procedure for implemënting the previous provisions, hy which, when ihe Court
is called upon to construe the constituent instmment of an organization or a
convention adopted under il, the organization will he notificd and will receive
copies of the documents of the written proceedings. Article 26 of the old Statute
has included a somewhat similar provision limited to labor cases.

Article 36. Compulsory Juri.sdiction
The Committee of Jurists presented alternative texts of Article 36dealing with

the jurisdiction of the Court. One tex1 followed that in the Statute of the
Permanent Court of International Justice. leaving the acceptance of compulsory
iurisdiction over legal disoutes to the ootion of each state which is a .artv.to the
Etatutr.: thc other6x1 providcd ior thc knniediarc ;irccptancc oi'such coiiipuliory
lurisdi:iion hv XIIpartich 10 Ihc Siaiule. Thcre ic.xtr ircrr. ihc suhjc~.tof a long
Jchdic In ihc First Commiticc. which ïlso haJ hefiire 11 ;dr;ift providin,! li~r
immediatc acceptance of compulsory jurisdiction subject to stated ;eservations.
The dehate revealed a sharp division of opinion on the general question. On
one side stress was placed on the progress made since 1920under the Statute of
the Permanent Court of International Justice; at one lime or another 45 states ANNEXES TO THE COUPiTER-MEMORIAL 217

cier<iscd the option Io ctonfcrc<impulr,ir) ~urisdl~tionon thc C6)uri. ih<lughin
inrtanrer ihir mas for Iimitcd pcri<~d.i~flime 2nd ruhjcct Io rei;rv;iti,?n~. 'l'hc
dijLursion in the I.irsi Coniiniiicc sh,~ucct.in the uordi of ;isuhioniiiiittce. "the
cxl,tciice oi .igrc:it \<,lume tiiuppcirt I;>rc~icndiiig ihe iniernliti<>n.iIlegalorder
h) rec<igni*ingimmcdidtel) ihrirugh~~uithe memhcr\hip i>iihe iicri Orfyni~aii,~n

the coGpuulsoryjurisdiçtion of the Court".
On thc ~th~r sidc.~t~. delceate~=of somc states statcd that their eovernments
iiii<IiiIinJ IIdilliculi or impo>sihlc di thir iime IO scicpt ihi conipul\or! luri>-
di:ii<~noi the C<iurt.and ihcy e\pr-.;,ed their prcierencc I;>rthe mainienan:e <II'
th<,,>niional f~ÿture of Article 36 '1ha felt thal ihc a,Iootioii ui this course
would leavc the way open for suhstantial advancc toward the goal of univer-

sa1jurisdiction, and that the Court would be placed on a firmer basis if the
acceptance by states depended on their willing exercise of thc option.
In an~ ~de~vor to ~ ~o~cilethe ~~ ~oints of viewreorcscnted bv the alternative
tests proposed by the Committee oc Jurists, much support was given to the third
draft above mentioned, providing for immediate accepiance of compulsory

iurisdiction subiect to stated reservations. Some of the deleeates suuvorti-a . . -
<~pi~iin.jiul ri~.Ii~iion wcrc. houcicr. uniihl: IO Iiccepi !hi, ~oniproniii: Other
r..ggc,~ions ucrc m,de for ;iinr.ndii.gthe texi oi r\rt~~l~ in lhc opli<ln;~liurm
by~~ncorporatingpcrinitted reservations, with or without liberty to add others.
These suggestions wcrc also rejected.

A subcommittee which madc a report on the suhjcct recommcnded the
retention of the text in the Statute of the Permanent Court of international
Justice with two chanees des-ened to t..e into account the various views
c\prc,ied hy memhcri of ihc Curiirtiittcc 'Th<reicrcrix IO ";in! of ihc ~13,,0"
JI' Icp:ililiiputcs in pr~graph ? oi i\rticlc 36 uas omiitcd. i\ ncw pardgiaph 4

VIS inscricd Io orescr\,c dccl.iratioiir rti;idc uii<lcrArii<lc 36 iiithe <>IdSidiuic
for periods of lime which have no1 expired, and to make these declarations
applicable to the jurisdiction of the new Court. In concluding ils report. the
subcommittee madc the following statement:

"The dcsire to cstablish compulsory jurisdiction for the Court prevailed
among the majority of the Subcommittee. However, some of these delegates
feared that insistcnce upon the rcalization of that ideal would only impair
the possibility of oblaining gcneral accord to the Stÿlule of the Court, as

well as to thc Charter itself. It is in that spirit that the majority of the
Subcommittcc rccommends the adoption of the solution desçribed above."

The following statemcnt from the subcommittee's report should also he noted:
"The qucstion of reservations calls for an explanation. As is well known,

the article has [. ..] MILITARYAND PARAMILITARYACTlVlTlES

Annex33

SICNATUR BYTURKEY OF THE PROTOCO OP SIGNATUR OF THESTATUT OF THE

PROTOCOI. OF SIGNATURE CONCEKNlN<i'l'111'SI'A'I'UTEOFTIIE

I'L.KMANL'NI'C0UKTOF INTERNATIONAL JLjSTICE
(Geneva, Decemher 16th, 1920)

AND OPTIONAL CLAUSE CONCERNING THIS PROTOCOL

PKO'fOCOI. REI.ATINCi TO Tl1 C ACCliSSIOK 01: TIIL.C511l'El) SfA'I'FS
01'A\ltiKICA'T0'Tllli PKO'I'OCOI.OI'SIGNATIIKI~ OI:TlIE STATL'TI:
OFTIIE PERM,\NENT COURT OF IN'IIIKKATIONAI. JUSI'ICI:

(Geneva, September l4th, 1929)

SIGNATUREBYTURKEY

Geneva, 25 March 1936.

1 have the honour to inform you that the Permanent Delegate of Turkey
accredited to the League of Nations signed, on behalf of his Government, on
March 12th. 1936:

The Protocol of Signature concerning the Statute of the Permanent Court
of International Justice (Geneva, December 16th, 1920); and
The Protocol relating to the accession of the United States ofca to
the Protocol of Signature of the Statute of the Permanent Court of Inter-

national JusticeGeneva, September 14th, 1929).
The Permanent Delegate of Turkey signed at the same time the Optional

Clause provided in the Protocol of Signature of the Statute of the Court, and
made the following declaratio:

On hehalf of the Turkish Repuhlic, 1recognise as compulsory, ipso facto and
without special agreement, in relationany Member of the League of Nations
or Siateaccepting the same obligation, that is to Say,on condition of reciprocity,
t~ ~,~r~ ~iction of the Court in conformitv with Articl..36.-.araerÿoh 2 of the
Statute of the Court, for a period of fiveyears, in any of the disputes enumerated
in the said Article arising after the signature of the present declaration, with the
exception of disputeseLting directly or indirecIOythe application of treaties ANNEXESTO TllE COUNTER-MEMORIAI. 219

or conventions concluded by Turkey and providing for another methodof
peacefulsettlement.

Geneva, March 12th, 1936

(Si~ned) Cemal Hüsnü TAR~Y.

1have the honour to he, Sir,

Your obedient Servant,
For the Secretary-General:

LegalAdviser of the Secretariat MILITARY AND PAIUMILITARY ACTIVITIES

Annex34

SUBMISSIO oS THE KI,NG 01:SPAI,~ARBITRAA L WAXD CASE W,ITH APPESDICES

The delimitation of boundaries has been a recurrent problem for Latin
American republics ever since their independence from Spain. In the case of the
1-londuranl~icaraeuan frontier. auestions bezan to arise'as earlv as the 1850's.
In 1894, ifter co~siderable correspondence,Ïhe two countries iigncd a boun-

dary treaty (the Gamez-Bonilla Treaty) which provided for demarcation of the
common frontier by a Mixed Commiss~onand aibitration of any points of dcmar-
cation not agreed. The Mixed Commission eompleted its work on 29 August
1904.leaving for arbitration only that portion of the border between the Atlantic
Ocean and the Portillo de Teotecacinte. The King of Spain was subsequently
selected as arbitrator; and his award, which was announced on December 23,

1906, confirmed in essencethe position taken by Honduras. 1.CJ PleudingsA , rhi-
lral Aivurdmadeby ihe King of Spainon23 Decemher1906, Vol. 1,al pp. 18-26.
It was not until 1911 that Honduras proposed to Nicaragua that they mark
the land portion of the boundary as determined by the award. Nicaragua
responded the following ycar by asserting that, for a variety of reasons, the
award was nuIl and void. The boundary dispute was thus renewed. and thcre
ensued decades of intermittent border incidents and occasional initiatives by one

country or the other aimed at resolving the problem.
Beginning al least as early as 1955,the Government of Honduras considercd
seriously the possibility of referring the dispute to the International Court of
Justice. In January 1958, aftcr lengthy negotiations under the auspices of the
Organization of American States with United States participation, the dispute
was refcrred to the Court as the result of a special bilateral agreement. Had ii
no1 bcen for the oerccived ineikctiveness of Nicaragua's 1929 dcclaralion and

Ni~aragua'\ Fail.ircto ;illirm clcarlya uillingnc~~io go to ihc (:ouri, tlonJjr;+s
çould h;ire idken ihc c,iw to thc Court by unil.ticral :ippllc.iti<inw>iiic)car, c;irlicr.
Ilocunient~l'romUniicJ States JID~<I~UI.IirC chive~demi~nsir,itcthal Ilonduras
did not believe Nicaragua was b6und to the compulsory jurisdiction of the
Court. In a conversation with United States Ambassador Whiting Willauer on
4 April 1955, Honduran Foreign Minister Estcban Mendoza stated that he was

"scriouslv contemolatine attemnti,e bn aere-ment with Nicaraeua to submit thc ~ ~
niaticr IIilic Iriizrn~tioii;ilCUL~Iof Ju~i~ic".r\ppcnJik A 'fhe iollswing m,~nih
li~~nJur.~~~l\iiiha~~~~lI~rlhc L11itcJStates CitrI~lsl~:~gu!rrc.iil~~llpt~ILIcn11.i
thc.a\sisi,inL.cof tlic C'nitcdSiaie<in ;iiliic\.ing \u.in .igricmcnt. On M.iy 19.
he jupgc,tcJ to i\~isi:int Seirci;iry oi Si;<iciur Inicr-t1mcri::in Aildirs klcnr)
IlriIland th:ii ihe linlicd Si.iicr propchc tu b~th gmrrnmcnts ihai ihcy re&r the
m;ittcr io ihc <.'nuri Ilcarpucd ihai the iimc ivas "opportune Ibr thc approach
of a ihird party to whomboth governments would-iend ear" and thai if his

government were approached informally in advance and "assurred (sic) that
[Nicaraguan President] Somoza would accept the proposal", it would "react
ai?irmatively". Appendix R. The only reasonable inference ro be drawn from
these conversations is that resnonsible officiaiswithin Honduras did not belic~ ~ - ~
Nicaragua would appcar in 'thc absence of a special agreemznt conferring
iurisdiction on the Court. Thcy did not belicve they could compel Nicaragua to

appear before the Court on the basis of matching declarations.. ANNEXES TO TllliCOUNTER-MGSlORlAl. 221

Indeed, on 15June 1955,Ambassador lzaguirre fowardcd Io the Departmcnt
of State "two mcmoranda which set forth definitivelv the oosition of Honduras

&th respect to the Award of the Kiiig of Spain". on; of these memoranda dealt
with Niçÿrÿgwanacceptance of compulsory jurisdiction, stating (in translation):
"Nicaragua has refused untilnow to recognizethe cornpulsoryjurisdiction

of the International Court of Justice so that the Court could take cognizance
of and resolve the case which Honduras kas considered filing against
Nicaragua. Nicaragua had suggested that the Iwo countrics sign a kind of
special protocol to submit the problem to the Court so that it could declare
whether or not the award is valid. WCcould no1 agrcc to this hecause it
would mean that we arc unsure of the validity of the award when, on the
contrary, we are absolutely certain of il.
In view of the foregoing. the Government of Honduras respectfully
requests that the Government of the United States use ils good offices Io
the cnd that Nicaragua accept the compulsory jurisdiction of the Court so
that Honduras may present the case referred 10above.
Honduras is willing to appcir before the International Court of Jiistice,
not so that this tribunal may decide whether or no1 the award is valid but
so thatilmay order Nicaragua to cxecute the award prcciselybecause of ils
definitive and binding character."

Later in the summer of 1955, Honduras retained former Judge Manley O.
Hudson to study and prepare ils case before theCourt. Appendix D. In Deccmber
1957, Hondur~n Foreign Minister Mendoza came to the United States to meet
with Judge Hudson. Shortly beforc Minister Mendoza's departure from Tegu-
cigalpa, he had a conversation with United States Ambassador Willauer. who
reported on December 8:

"L~~d-~ Hudson1will be asked bv IForeien Ministerl Mendoza . . whether
therc is any rnea'nsof forcing ~;cara~uato come before the Court. If the
answer isnegative the Foreign Minister believcs ihat Honduras will have to
brine the iattcr before thé Oreanizdtion of American States with an
ac<us.ii~onihliS1i3r;igua isXI üggrc)wr in i)c:up),ng ICTTIIO~!h~,!~>nJI~C
Iinc Idid donn hy the Au.;irJJTlhc King oi'Spain <>II~cccriibc23, 1906."

On Dccember 19, following his visit with Judge Hudson, Foreign Minister
Mendoza met ~rivatelv with Assistant Secretarv of State Holland and re~orted
that the borderiituati& had becomc "intolerablé" for the 1-londuranGoverkent
and that "a definitive solution must be Sound". He outlined three courses which

were opcn to Honduras:
"(1) she could settle the maticr by rccourse to arms; (2) refer the matter to

the International Court of Justice whiçh she was willing to do, but there
was some question as to the reasibility of this sincc the Nicaragudn
Government had not acceptecl the compulsory jurisdiction of the Court;
(3) refer the matter to the OAS undcr the appropriate provision of the
Rio Treaty." ANNEXES TO THE COUNTER-MEMORIAL 223

ragua would be officiallyobligated to submit tu the lnternational Court be-
cause an instrument of ratification of acceptance of the Court's jurisdiction
wos neversen!, although in 1939 a telegram was sent by the Nicaraguan

Foreign Minister givinginjormal acceptance." (Italics added.)

APPENO~L X.
Thus, Nicaragua through ils Ambassador tu the United States - who had
been Nicaragua's delegate to the Washington Committee of Jurists as well as a
memher of the Nicaraguan Delegation to the San Francisco Conference that
adopted the United Nations Charter, and who had been intimately involved in
a wide variety of Nicaraguan foreign relations problems - acknowledged that
it had not formally bound itselfIo the compulsoryjurisdiction of the International
Court of Justice. In Nicaragua's vicw, its appearance before the Court if sum-
moned by Honduras was optional ("it would prohahly go"), and il could no1
itself comoel the amcarance of another State because of ils own lack of a
reciprocal.undertakfn.g to accept this Court's compulsory jurisdiction. Nicaragua
made no claim that ils 1929declaration could have been hrought into force by
itsjoining the United Nations.
Nothing came immediately of Honduran efforts to craft a case for presentation
to the Court. In Deceniber 1956, however, with the fiftieth anniversary of the
award, pressure began to mount in Honduras for decisive action to resolve
the Ionestandine disoute. A~~endix M. On 21 Februarv 1957. the Honduran
- -. ..
gowrnmrnl creaicd a ncn dcprtmïnt in the d~iputçd&rei<and mo\ed in troop,.
This action $vascxplaincd by the United States Fmbli5<)lalicr con\cr>atiuns u'ith
top Honduran officiaisn thc following terms:
"Taken ai face value result is gratifying and situationnot nearly as critical
as might otherwise appear. Honduran activities center on two considerations:
First, in addition tu other attempts ever since [early] 1956 Honduras
attempting to gel Nicaragua appear before international court or other
neutral body to settle boundary problem and note of (January 1956
proposing a mixed commission tu delimit the boundary in accordance with
the arbitral award] never to date been acknowledged. Thus Honduras
hoping by this action as primary and peaceful objective to stimulate
Nicaragua to either arbitrate or bilateral negotiation."

APPENDIX NI.

Nicaragua protested the creation of the new department by Honduras. On
15 March 1957, the Honduran Foreign Minister addressed a letter to his
Nicaraguan counterpart reaffirming his government's willingness 10 submit the
dispute to the Court. In the letter, he contrasts Honduras' acceptance of
compulsory jurisdiction under the Court's Statute with Nicaragua's having
entered a reservation to the Pact of Bogotzi "as to the peaceful settlement
provided by that inter-American Treaty with respect to arbitral awards wbose
validity it had contested" ("de las soluciones pacificas que contempla dicho
Tratado Americano en relacian con las sentencias arbitrales cuya validez hubiera
impugnado2').Appendix O. There is no mention of the declaration made by the
Nicaraguan Foreign Ministçr in 1929 with regard to the Permanent Court of

' Substantivechangeshave ken madein thir sentcnccin accordanccwithconections
indicatedina latortclegram.Thctwotclegramsarc appended asAppendix N and should
k readtogether.224 MILITARYAND PARAMILITARYACTIVITIES

International Justice. Clearly Honduras did not believe itcould compel Nicaragua
to appcar before the present Court - either on the basis of Nicaragua's 1929
declaration or through reliance on the Pact of Bogoti.

Nicaragua's reply, moreover, sidestepped the issue of compulsory jurisdiction.
While reaffirming Nicaragua's commitment to resolve disputes hy peaceful means
established under international law, it appeared to give Honduras sole responsi-
bility for applying to the Court. Nicaraguan Foreign Minister Montiel Argüello
wrote :

"The îact that Nicaragua has not applied to any international tribunal to
contest the award can in no case be interpreted as favoring the position
taken by your Government, for, on the contrary, il would be incumbent
u~.n your Government to have recourse to such a tribunal."
("El hecho de que Nicaragua no haya ocurrido hasta ahora a impugnar el
Laudo ante ningun tribunal internacional no puede interpretarsc en ningun
caso en favor de la tesis que sostiene el vuesiro, pues mas bicn a Este es a

quien corresponderia el recurso a dicho tribunal.")

APPENDIX P.
With this indirect and evasive answer to Honduras' open offer IO take the

dispute to the Court, itis perhaps not surprising that Honduras was no1 anxious
to test Nicaragua's willingness to accept jurisdiction by making an entirely
unilateralaoolication.
Instead, 0; I May 1957, Honduras addressed the Organiration of American
States and called for the convocation of the Orran of Consultation pursuant to
the Rio Treaty, whose function is to address threits to the peace of théAmericas.
The Organ of Consultation was convened and, over the months of May and
June, appointed, first, a committee to investigate the situation on the Honduras/
Nicaragua frontier and, then, an Ad Hoc Committee with the task of helping
the parties reach an agreement on a definitive resolution of the dispute'.
During May 1957, the Honduran and Nicaraguan Ambassadors to the
Organization of American States confirmed to the Department of State their
government's respective positions rcgarding recourse to the Court. Honduras
wanted to go to the Court. Appendix Q. Nicaragua was reluctant. On 27 May
1957, Nicaraguan Ambassador Sevilla Sacasa described Nicaragua's position

as follows:
"The Ambassador stated that many persons mentioned only the
International Court of Justice as a means for solving the problem. Nicaragua
feels, however, that thcrc are a number of methods that mus1 first be tried

prior to any submission to the court. This further efirt would be 'required'
by the Inter-American system, according to the Ambassador. If the Foreign
Ministers' meeting at Antingua [sic: "Antigua"I2 does not rcsolve anything,
the Government of Nicaragua is prepared to initiate other steps such as

' For thc compleieprocccdingsof the Organ of Consultation,seeOEA, Actas de las
sesioncsdc Consejo actuanda provisionalmcnte como Organo de Consulia, Serie del
ConseioC-a-245, -246,-248, -249.-250,-252,-254(1957).
1" addition10 thc OAS meetings,the ForeignMinistersof Guatemala, Costa Rica,
and El Salvador offcred their good olficesto rcsolvethe disputc. Toward ihis cnd. a
meetingwashcldin Antigua,Cualemala, May27-30,1957. ANNEXES TO THE COUNTER-MEMOR~AL 225

submission to various Amcrican authorities or to the United States for
settlement. The Ambassador also intimated that he was workina on various
approaches to the problem here in Washington and that there Gic: "these"]
would be revealed at the proper lime, if necessary.

As a final recourse, Nicaragua would appear under the Pact of Bogoti
for submission of thc dispute Io the ICI; but the Ambassador left some
doubt as to what terms of refercnce might he suitable for hoth parties."

APPENVIX R.

In short, Nicaragua's position was that il would prefer any other mcthod of
peaceful settlcment to recourse to the Court, that ithelieved it had a legal right
to insist on pursuit of available alternatives, and that, only as a last resort and
under thc Pact of Bogota, would il consent to appear before the Court.
Nicaragua's position reflects hoth the "contingent" nature of the jurisdictional
clause contained in the Pÿst of Bogoti (see Annex 39) and Nicaragua's under-
standing that it was not hound under the Statute of this Court itself hy any
other declaration.
In early June of 1957,the Ad Hoc Committee of the Organ of Consultation
proposed three alternatives for scttlement to the Iwo governments and invitcd
them to selectthe procedure they considered preferdble. The options stated were:
(1) a special ad hoc arbitral tribunal. (2) a sole arbiter selected by agreeiiient,
or 131refcrence to this Court. Aoocndix S. The Parties selected recourse to thc
Court. ~nd s.~cciiteilü arittcti ;igrcL.mi.nitu this ctrcct b:l;irc the 0rgiiiii~:itisn
of Aineriean Statcj I~clir~t~pcr~iti\cp;iri~gr,il>h<iI'the\\'iishtngton ~Igrcciiicnt

of 21 July 1957,provides:

"The Governments of Honduras and Nicaragua shall suhmit to the
International Court of Justice: in accordance with ils Statute and Rules
of Court, the disagreement existing between thcm with respect to thc Arbi-
tral Award handed down by His Majesty The King of Spain on 23 De-
cember 1906, with the uitdcrstanding that each, in the exercise of ils
sovereignty and in accordance with the procedures outlined in this instru-
ment, shall present such facets of the matter in disagreement as it deems
pertinent."

ICJ. Pleudings. Arbiirol Aivurd Made by ilte Kingof Spoiri on 23 Decrmber
1906. Vol. 1. at D.26. In ex~laininf! Nicarar-a's acccDtance of recourse to the
Court, Nicar~g~dn Amh~rsador C;uillrmii~Soilb S3i:ar:i (*hl> ier\ed il)that
.wunir)'s Amb.i;\aJor IO ihc OAS .rrucll A,to ihe Cniicd Staiç,) g.~\eHondurio
sole rc>p.msibilityfor selcetion afIli13mctlir,J <>I'rcrolvin$thc dirputc:

"My Government acccpted the judicial procedure which the Govcrnment
of Honduras considered appropriate for the resolution of this dispute.
Judicial recourse is provided for in the Pact of Bogota; itis a means of

pacific settlement and as such salisfies Nicaragua's known position that the
dispute he scttled by pacific means recognized by international Law."

("Mi Gohierno acept6 cl procedimiento judiçial que le pareci6 apropiado
al Gobierno de Honduras para la solucion del litigio. El procedimiento226 MILITARY AND PARAMII.ITARY ACTIVITIES

judicial esta previsto en el Pacto de Bogoti; es un medio pacifico y como
ta1satisface la conocida tesis de Nicaragua, de que el litigio sea resuelto por
los medios pacificos que consagra el Derecho Internacional.")

OEA, Acta de la sesion del Consejo actuÿndo provisionalmenie como Organo
de Consulta celebrada el 28 de junio de 1957, Serie del Consejo C-a-252, at
p. 43 (1957).

The Washington Agreement provided that Honduras would filean application
instituting proceedings against Nicaragua in the Court. In its application, for
reasons which have never been made clear, Honduras cited not only the
Washington Agreement but also Article 36 (2) as bases for the Court's jurisdic-
tion. Nicaragua, in reply. strongly objected to the invocation of Article 36 (2),
contending that jurisdiction rested solely on the compromis; and Honduras
subsequently withdrew any reliance on Article 36 (2). For relevant citdtions, see

.arae"a~hs~~-8-120of~t~~ ~ ~ ~ ~l. ~ ~
In this case, Nicaragua claims that its conduct historically has evidenced an
implied consent to accept the Court's compulsory iurisdiction. Yet when Nica-
ragua was the prospective defendant, its aititude- was just the opposite. In the
discussions preceding the King of Spoin case, Nicaragua refused to state that it
had accepted compulsory jurisdiction, despite invitations to do so. On the
contrarv. it reorescnted bv its actions and words to the United States and

llonrluL, thît'ii had no1 indccd. ihr. 'licaraguan Ambilss.idor inJiraicd that a
spccial <tgrrr,mentwith Il<~ndur;lsnoulJ be nccess3ry ICIiubmit the dispute IO
the Cous because Nicaragua had not acceoted com~ulsorv iurisdiction. In the
face of an open ond dur plea to go to ihe COU;, the.Nicaraguan Foreign
Minister virtually dared Honduras to make a unilateral application while al the
same time refusing to clarify whether his government would appear if summoned.

Ultimately, a special compromis, negotiated under the auspices of the OAS, was
necessary to provide a hasis of jurisdiction. It had taken two years and great
ciïorts by Honduras to persuade Nicaragua to agree to submit the case to the
Court. Quite clearly, Nicaragua did not believe, or act as if, its declaration of
1929 was in force.

APPENDICES

A. "N1caragudn-11dnd~r~trlBiiunil;ir) Dirputr.", I>r.sp;it<hirom Cnitcd Siair.\
I:mb~s~> in Ilondiir~s I<II>cp:irtincni tiiSiair.. d4rr.J 5 April 1955
14. "Unitr.d Statcs Iniiidti\c in Kcicrral oi Hondur:ir-Yicar.~>iunBounrlan I>is-
pute to International Court of Justice", Department of State ~emoran-
dum of 19 May 1955
C. Note from Ambassador lzaguirre of Honduras to Derartment of State,
dated 15June 1955.enclosini two memoranda
~. ~ u
1) "llondiiras-Nicaragua Ri1und3r' Qur..ti<~n".I~crprtch froni Unitcd States
Fmb;issy in Cos1.1Kim to Dep.irtniciit OC Siatc, d;,icdIli Augusi 1955
F. "l:oreirn \linister tu TraLr.1tu L'iiiicJStaic ,ln I4ounJ~rvMattcr". Dcsn~t-h
from Ünited States Embassy in Honduras to ~e~artment of !&te, dated
8 December 1955
F. "Honduran-Nicaraguan Boundary Dispute", Department of Statc Memo-

randum of Conversation, dated 19 December 1955
G. "Honduran-Nicaraguan Boundary Dispute", Department of State Memo-
randum, dated 22 December 1955 ANNEXES TO THE COUNTER-MEMORIAL 227

H. "Honduran-Nicaraguan Boundary Dispute", Department of State Instruc-
tion to United States Embassv in Nicar-gua. dated 12anuarv 1956
1. "Nicaragucin-Hunduran Bordrr Di\puic", I>c>pat:h irum \.'nired Si;iics
Emhass) in Sicsrapua io I>cp~rimcnioiSratc. daicd 24Januar) 1956
J "tlonduran-Niwr;ixuan I3ordcr Dispulc". Drparlmcnl oi Siair 4lcmo-
randum of Conversation. dated 20 ~ébruak 1956
K ..lli>nduriin-Nicarquan Houi,.iiiry l>ispui>', Drparin,cni ut Siaic \lemo.
randuni of Coni,crsaiion. daicJ 21 Dciimbcr 1955
1. "Sicararuan-lI<indur.tn Hordcr I>isouir~".D~.r>arinicniof Siaic, Mrm<i-
randum-of conversation, dated 2 ~arch 1956 .
M. "Revival of Honduran-Nicaraguan Border Controversy", Despatch from
United States Embassy in Nicaragua to Department of State, dated 31
December 1956
N. Telegramsfrom United States Embassy in Honduras to Department of State,
dated 5 and 8 March 1957
O. "Honduras OKers to Submit DiKerences with Nicaraeua ta International
C<~uriofJusiicc". Dop;iich froiii Uniicd Si;iicr Emhassy in Ilon<turaIci
I>cp;irimcntc~fSiirc.Jattd 19.V;ir~.h1957,cncli~singSoie Irom ihc Miniiicr
01I?ircirn Kcl;iiionsof tli)nrlu1,)ihe Minljtcrs of torcicn AiTair,olihi
~mericai and Spain, dated 15March 1957 -
P. Despatch from United States Embassy inHonduras to Department of State,
dated 21 March 1957,enclosing Note from Minister of Foreign AKairs of
Nicaragua io Minister of Foreign Ailairs of Honduras, datrd 19 March
1957,and an article from W Diu;20 March 1957

Q. "Courtesy Call on Honduran Ambassador", Department of State Memo-
randum of Conversation. dated 20 Mav 1957
R. "Niçÿrdguan-Hondursn Hurdcr Siiuiit~on". I)cpartmcni (11St;ilc Mcino.
randuni of Conic~r<~iiun.atcJ 27 Mdy 1957
S. "Telegram froni Department of State to United States Embassies in
Nicaragua and Honduras, dated 10June 1957

In a conference April 4 with Foreign Minister MENDOZA regarding the
Nicaraguan boundary dispute, the fToreignMinister stated he had heard thar
Nicaragua is still planning to press for territory Westof the line awarded by the
King of Spain in 1906(Rio Coco). Mendoza told the Ambassador that he would
rather resign from his post as Foreign Minister than be a party to sny politically
suicida1concession of this nature.
In the light of the above information the Foreign Minister does not believe
that economic concessions which had been oreviouslv discussed as a substitute
for territorial concessions will be agreed to and is now seriously contemplating
attempting an agreement with Nicaragua to submit the matter to the International228 MILITARY AND PARAMILITARY ACTIVITIIS

Court of Justice. Berore doing so the Foreign Minister intends to consult expert
American lawyers on international law and confidentiallv mentioned the name
of Governor DEWEY.

(Signecl)Whiting WILLAUER.

APPESDIX B

Ambassador lzaauirre of Honduras. in a conversation with Messrs. Ohmans
and Lcddy today, siggested that the ~nited States take the initiative in settlement
of the border dispute between Honduras and Nicaragua, by suggesting to both
governments that they refer the matter to the 1nternation;il Court of Justice at
The Hague. Emphas&ing that he was speaking personally, and without instruc-
tions from his Covernment, Ambassador lzaguirre said he thought the time is
opportune for the approach of a third party to whom both governments would
lend car. such Dartv to be the Secretarv of State of the United States. Informal
suunJing of e2c.hgovcrnmcnt <ir in 11srcccpti\,ity or th15iugge,tion niighrhr.

desirable in advance. Ilc kli thai if Ilondurli, ucrc thus appr<racheil. and
'issurrcd that Somo~ï would aiccpt ihr. pro~oriil. il on dur;ii,,>ulilre.içt allim-
atively. As to whether or not theO~~,-~e;ha~s through ils Secretary General,
should be the recommendable third party to take this initiative, Ambassador
lzaguirre could see no reason to oppose this approach but felt that more force
would come from the United States initiation of the proposal, which could then
be backed by the Secretary General of the OAS to give the conviction of his
support.
No comment was made by either Mr. Ohmans or Mr. Leddy, other than their
desire to refer the matter to their superiors for considcration.

The proposal has merit, which we have previously reco nized in our cables to
9.
Tegucigalpa and Managua on May 11, copy attached , no reply has heen
received from either Embassy. To carry through on this undertaking, further
instruction should be sent, per the attached draft. APPENDIX C

Dcpartment of State, Division of Language Services

(Truns/uti(~n)

LS No. 113594
FA/HP
Spanish.

EMBASSYOF TIONVUPAS
WASHINGTON I>C.
(Handwritten note in English: No
prev[ious] in files '50-59 No trans-
lations have been found 1/18/65)

15June 1955.

Dcar Mr. Leddy :
Pursuant to the converration 1had the honor 10have with you on Monday, 1
am enclosing two memoranda which set forth definitively the position of
Honduras with respect to the Award of the King of Spain.

Please remain assured of my highest consideration.

(Signed) Carlos lz~curnni?,
Ambassador of Honduras.

(Handwritten note:
No prev[ious] in '50-59 files
No translations have been found

as of 1/18/65)

MEMOPANVUM NO.1
1- Honduras considers that the Award of the King of Spain which fixed the

boundary between both countries ended the controversy, as both States had in
advance committed themselvcs to consider the arbitral award as having the eflect
of a pcrfect, perpctual and binding treaty from which there would bc no appeal.
2 -As a consequence of the foregoing, Honduras cannot in any event submit
the boundary question to a new arbitration or ta mediation.
3 - Nor is it advisable to appeal to the Organization of American States
because, in the first place, upon signing the Charter of Bogoti, which created
the Organization, Nicaragua made a very broad reservation, saying "that
no provision of the present Charter shall be applicable Io controvcrsies which
Nicaragua considers have already been resolved hy arbitral judgments or

awards".[*] This reservation was obviously made to prevent the Organization of

[*]Translater'snote: This stüterneiaincrror.Nicaragua made no rcscrvationwhat-
soevcrto thc OAS Chorter, nor did ilmakc a rcscrvationin these terrnsto any other
OAS trcaty. Hondurasapparcntlyintendedto rdcr hercto the Nicaraguanrcscrvationta
the Pactor Bogoti,whichHonduraslatercited asa reasonthat thedis~utewithNicaragua
had no1 beenrcsolved.(SecApprndix O, thisAnnex.)230 MII.ITARY AND PARAMILITARY ACTIVITIE.~

American Statesfrom hearing our boundary question with Nicaragua. Moreover,
because there is already an arbitral award which Honduras has recognized as
binding and definitive, the present problem is essentiallyjuridical in nature and,
therefore, could not be submitted to the Council of the Organization of American
States for resolution, as the latter is not a truc tribunal and, for that reason,

lacks authority to order execution [of the award].
4 - For the reasons given, there is no alternative but to appeal to the
International Court of Justice. which sits in The Haeue. to end the disoute.
Honduras is willingto petition the Court, asking that inview of the binding and
definitivecbaracter of the Award of the King of Spain, Nicaragua be ordered to
execute it promptly and in good faith. Bv reauesting executionof the Award. we
are imolicitlv reaffirmine itsvaliditv. . . -

5 -'~ica;a~ua has refused until'now to recognize the compulsory jurisdiction
of the International Court of Justice so that the Court could take connizance of
and resolve the case which Honduras has considered filing against ~icara~ua.
Nicaragua had suggested that the two countries sign a kind of special protocol
to submit the problem to the Court so that it could declare wbether or not the
award is valid. We could not agree to this because it would mean that we are

unsure of the validity of the award when, on the contrary, we are absolutely
certain of il.

In view of the foregoing, the Government of Honduras respectfully requests
that the Government of the United States use its good offices to the end that
Nicaragua accept the compulsory jurisdiction of the Court so that Honduras
may present the case referred to above.
Honduras is willing to appear before the International Court of Justice, not
so that this Tribunal may decide whether or no1 the award is valid but so that
it may order Nicaragua to execute the award precisely because of its definiiive

and binding character.

MEMORANDUM NO. 2

On Friday, lune 2, the Commission of Lawyers and Engineers sent by Hon-
duras to investigate the border zone where the latest disturbances look place
returned along with the Nicaraguan commission members. The investigation

revealed that the Nicaraguans were indeed working in territory wbich had been
demarcated as Honduran since 1901, and, as a result, the Government of
Nicaragua has withdrawn a military guard which it had in that same place.
This fact, though it may seem insignificant, demonstrates that Honduras was
correct in alleging that Nicaraguans were violating its territorial sovereignty and,
similarly, that il was justified in sending troops Io that part of the border.
If Nicaragua had no1 recognized that its guards were in Honduran territory,

il clearly would no1have ordered their withdrawal. The withdrawal is confirmed
in documents signed by representatives of both States.
Although in this case Honduras could have appealed to the Organization of
American States under Article 6 of the Inter-American Treatv of Rec~~r,ca~ ~~ ~ ~r~ -~ ~ ~ ~
Assistance, signed in Rio de Janeiro, inasmuch as a violation of Honduran
national territory look place, the Government of Honduras did not do so. thus

showing its strong desiÏe to resolve border problems amicably and to help in
this way to give effect to the policy of peace and tranquility which the United
States Government seeks for these countries. ANNEXES TO THli COUNTER-MEMORIAI

AP1BNDI.Y D

Licenciado Celeo DAVILA, for many years an attorney for the United Fruit

Company, informed an Embassy Officer today as follows:
He has definitely accepted the assignment to represent Honduras before the
International Court of Justice at The Hague on the boundary question with

Nicaragua. During a recent trip to Boston he informed United Fruit Company
officiaisthere thhe would resign in order to cake the assignment with the rank
of Arnbassador. During this same trip he engaged the services of Professor
Manley O. Hudson, well-known international law expert of Harvard, who, he
stated,is a former justice of the Court. The latter accepted with the proviso that
he be granted a five-month period to study and prepare Honduras' case. Davila
agreed to this. Hence, provided Nicaragua's agreementsecured, the case would
not come before the Court until some time early next year.

For the Ambassador:
(Signed) Alex A. COHEN,

Attache.

APPENDIX E

"FOREIGN MINISTER TO TRAVE LO UNITED STATE ON BOUNDARM YATTER"

Foreign Minister MENDOZA told me yesterday that accornpanied by Celeo
DAVILA he isgoing to the States on Saturday, December 10,travelling incognito
for the purpose of discussing with ex-member of the International Court, Dr.

Manlev HUDSON. the nroblem of the Nicaraeuan-Honduran boundarv disoute.
&a,ilf berecalled,'~r. Hudson has been stud$ng the case in hehalf of ~oniuras
for over six months. He will be askecl by Mendoza and Davila whether there is
any means of forcing Nicaragua to come before the Court. If the answer is
negative the Foreign Minister believes that Honduras will have to bring the
matter before the Organization of American States with an accusation that
Nicaragua is an aggressor in occupying territory beyond the line laid down by
the Award of the King of Spain of December 23, 1906. The Foreign Minister
remarked that he felt this might he einbarrassing to the United States for which
he would be very sorry but added that public pressurinHonduras is so great

that vigorous action to bring the whole question lo an ultimate decision must be
made by the Government.

Comment: With the forthcoming carnpaign it is clear that the Foreign Minister232 MILITARY ANI)PAR4,MILITA ACYTIVKIES

wants to take steps which will checkmate any opposition "capital" being made
of the issue.

(Signed) Whiting WILLAUER.

Participants: Dr. F. Estehan Mendoza, Foreign Minister of Honduras,
Ambassador Izaguirre of Honduras,
ARA - MI. Holland,
MID - MI. Newbegin.

Honduran Foreign Minister Mendoza, who is on a visit to the United States
incognito, called on MI. Holland at the latter's residence today. Dr. Mendoza
infonned MI. Holland that he had come to the United States in connection with
the Honduran-Nicaraguan border dispute. He had spent the last fewdays in Boston
discussingthe problem with Manley O. Hudson, Professor of International Law at
Harvard and fonner Justice on the World Court. Dr. Mendoza pointed out that
there had been in the pas1year three instances of Nicaraguan aggression against
Honduras along the joint frontier as setorth by the award of the King of Spain.
He added that the situation had hecomeintolerahle and a definitivesolution must

he found. In this connection he contended that not only were the Hondurans
.reatl. disturhed bv the threat of continued deoredations bv the Nicaramians. but
cJiiiiniini.>iclcnicnt\. p.irtiiul.irlyI~Liii~ri<u.irt.ifIl<~nJ~r;i\hrcrr[:!king
aJ\aniagr. oi' the >itudtio10 \timulite popui;ir excitemeni anci siiidc~itdcm%in-
\lr;~tioiis llc indi~atcdth.11the s~ti~~i-ikL~~niincinipos~ihlel'orthe ~lI~..I~
government of Lozano which represented the three part& since it was open to
charges of doing nothingto find a solution. The Foreign Minister stated that three
courses were open to Honduras: (1) she çould settle the matter by recourse to
amis; (2) refer the matter to the International Court of Justice which she was
ready and willing to do, but there was some question as to the feasibilityof this
sincethe Nicaraguan Govemment had not accepted the compulsoryjunsdiction of
the Court; (3) refer the matter to thOAS under the appropriate provision of the

Rio Treaty. The Foreign Minister told MI. Holland that Honduras was anxious
not to do anything to embarrass the United States in any way although it was
clear that the continuance of this controversy would not only be detrimental to
Honduras and Nicaragua, but would inevitablyinvolvethe United Statesand other
nations of the Hemisphere.
A rather lengthy discussion followed regarding the possibility of referring the
border dispute to the International Court. Dr. Mendoza said that it was entirely
agreeable to Honduras either to make charges against Nicaragua or to have
Nicaragua make charges against Honduras. Such charges would be to the eWect
that either country was illegally occupying part of the temtory of the other.
Dr. Mendoza was emohatic that the disoute could not be referred to the ICJ on
the basis that thette; should determinewhether or not the award of the King of
Spain was valid. Since the Nicaraguans maintained that the award wds nuIl and ANNEXES TO TIII~COUNTER-MEMORIAI. 233

\,,>idthis prxeJurç \ioulJ of coLrbch~.rlpr~ublc 10 ihçm. On ihc oihçr hand, uerc
the H<indur,ins 1.3agrçe to ,ilch.i propositiiinit\i,ouldindicair.1h:irihcy hiid siinic
doubi a, io the \alidit\ c)i'thcatv;~rd;andihe Il,induran:, h;iil nunc.hlr 1-Ioll~nJ
expressed the hope that some means might be found to refer the matter to the
ICJ. He stated that wc would be glad, on a purely informal basis and without
responsihilityon the part of anybody concerned, to discuss the matter infomially
with the Nicaraguans to see if somc mlution along thesc linesmight be found.
Dr. Mendoza then stated chat the third possibility was to refer the matter Io

the OAS under the appropriate pro\,ision of the Rio Treaty on the basis that
Honduras had sulïered an arrression. This would mcan. of course. the conveiiing
of a meeting of the 1:oreign~inisters with the OAS Council acting provisionally
on their hehalf. According to Dr. Mendoza, who said he had indications of
support from several i'riendiycountries, a vote infavor of Honduras would mean
that the countries so voting recognized the award of the King of Spain as bind-
ing while a vote in favor of the Nicaraguans would mean that il was no1 so
recognized. It was pointed out that either the Counçil or the Foreign Ministers,
werc theu. evcntuollv convened. would not be restricted necessarilv to a vote in
.~~
îavor ofeliher Honiuras or ~i&ragua. There were any number ofactions which
they miehl take such as finding that there was no aggression. determining that
inaimucx as the action reported was on a frontier under dispute they couid no1
determine whether there had been an aggression or not, the problem should be
referred to the ICJ, etc.
The Foreign Minister then told Mr. Holland thal there was another related
matter which he wished to report. This was the recent publication of a volume
of maps by the OAS which showed in the map of I-londuras the area under
discussion to be in dispute and no definitive boundary. On the other hand, in a
map of Nicaragua they showed a portion of that arca within the determined

boundaries of Nicaragua. He stated that this was the third tirne that thc OAS
had published maps of this nature which would tend to show the OAS as
supporting Nicaraguan claims. Honduras had in each case protested to the OAS
but without any results. Mr. Holland suggested that perhaps this was an error
on the part of the publishers. The Foreign Minister replied that this was the
statement made by the OAS but u,as obviously unconvinced in view of the
repetitions. He said that Lozano felt so strongly on this subject that in the
absenceof satisfaction the Honduran Government might withdraw from the OAS.
Mr. Holland suggested that the desirable course of action might be for the
t-londuran delegate on the OAS Council to bring the matter orally to the

attention of the Coiincil in an effort io ohtain some correction.
I>r >I~.ndo,..ie\prcs\ed IiiItpp,re:i;tiioiiir'rlr Iiollanil'~r.<iurtcj)Inrçrçi\ing
hini 2nd gi\,ing h~ni so muih <il h~slime Ile 31s0e~prcsicd hir gr.ititu,le for
hlr H<,lland's>rillingiicr,io ;ippro;lch ilic appr<iprtiiicSir.lir~gu~n<ruthoriiir,~.

There are attached the documents Icftwith Mr. Holland by Honduran Foreign
Minister Mendoza when he called or1Mr. Holland on December 19.The first is234 MILITARY AND PARAMILITARYACTIVITIBS

an Aide-Memoire which contains a request that the US Government ask the
Nicaraguan authorities the significance of its having advised the Secretary
General of the League of Nations on November 29, 1939,that it had ratified the
Protocol of Signature of the Statute of the Permanent Court of lnternational
Justice and that the instrument of ratification would follow. Incidentally, no
instrument of ratification ever appears to have been transmitted. The second
document entitled "Honduras and Nicaragua" is a lengthy treatise on develop-
ments relating to the obligations of Honduras and Nicaragua vis-à-visthe Inter-
national Court of Justice. While there is no indication as to who may have
written this second document, 1 assume from the remarks which the Foreign
Minister made in hisconversation under reference that it was Manley O. Hudson,
former Professor of lnternational Law at Harvard and former Justice of the
lnternational Court of Justice. The conclusion reached by the writer, whoever it
may have been, is that he "would not be surprised if the Court should say that
Nicaragua is not bound to submit to itsjurisdiction".

APPBNDIX H

Reference ismade to memoranda of conversations between Assistant Secretarv
tlolland ;rnd llondurxn Forcigii Minirtcr I:%ichünMcndcira J~icd i>cccnibcr14.
lY55.anJ betticcn llr Kobcrt Sciihcgin anil ii~c~r;igu.tnAmhli\vddor Guillcrmo
Sfvilla Sdi3vi1d;ttcJ Ilcccmher 21. 1955. on thr %uhicciof ttic Il<~nduran-
Nicaraguan border dispute. These memoranda indicate (hat Honduras is willing
to submit the border question to the lnternational Court of Justice provided
mutually ameeable terms of reference can be found. The Honduran representa-
tives havemade it clear that Honduras would not be willing to submit the
question of thc validity of the decision rendered by the King of Spain in 1906
since they maintain there is no question but what the decision is valid. They do
not wish to weaken their ~osition bv even sugeestinr that this is a matter for
decision hy the Court. ~t'the same iime, the;;eco&izc that the Court might
well investigate the validity of the decision, and would perhaps inevitably do so,
were the dispute to be referred on some other prounds. To ihis the Hondurans
have no obiiction. As the Emhassv is aware. whën the matter was discussed with
~mbassador Sevilla Sacasa the 'latter exbressed his intcrest in reaching an
amicable solution and stated that he would discussthe matter in Managua during
his forthcoming visit there.

On his return Ambassador Sevilla Sacasa indicated that his Government was
definitely interested in presenting the matter to the International Court on a
basis which would not reliect on the dignity of either of the participants. He
indicated further that a studv was beine made to ascertain if an ao~.. .iate
basis could be found. In this fonnection Ïhe Emhassy is referred to memoranda
of conversations hctween Ambassador Sevilla Sacasa and Mr. Holland and
Mr. Newbegin, respectively,dated January 5 ANNIIXIS TO THECOUPITER-MEMORIAL 235

11is suggested that the Ambassador discuss this matter with the appropriate
Nicaraguan officiais if a suitahle occasion arises. It should of course be made
abundantlv clear to the Nicaraeuans that the action of this Government in
bringing the Honduran views 10 the attention of the Nicaraguans is entirely
informal, unofficial and implies no responsibility for a solution on the part of
anv of the three ~arties involved in these ex~loratorv conversations
'ThcI>cp;irtiiicilj~iitcrcstcrlin rc,'ciiing an ippr<iiiil ir-,lnithe 2snib:isj)

1%)the degrec.ii.crii>u,iicsr of the K~,;ir.igii.iiiIIIrcfcrriiig the iIi\puic
tu the Inicrn:ititin.il Court ni Ju<ii;c II uo:il30bc iiit~re,iiii1c;irnine
whether the Nicaraguan Government is in fact making a study of possible termi
of reference were the matter to be submitted to the Court.

"NICARAGUAN-HONUUR ROANDBD HISPUTE"D , ESPATCFROM UNITI~SDTATES
EMBASS YNNJCARAGU TADI~J'AI~TM EFNSTATE D,ATEU24JANUAR1 Y956

Nicaraguan oiiicials have repcatedly maintained that Nicaragua wishes to
settle the Nicaraguan-Honduran border dispute. Their good faith in making such
statements is no1 qucstioncd. The Department will recall from the Embiissy's
telegram No. 325 of May 28, 1955,that Dr. Oscar Sevilla Sacasa, the Foreign
Minister, reaffirmed on May 27, 1955,Nicaragua's willingnessto submit Io the
International Court of Justice the question of the undefined sector of the

Nicaraguan-Honduran border.
The border from the Gulf of Fonseca eastward to Portillo de Teotecacinte was
agreed upon by the two countries in 1900and 1901 through the action of a
mixed border Commission. The line accepted mus1he re-surveyed in those parts
where the markers have disappeared. It has heen along the agrced upon but
unmarked sector of the border that the incidents referred to by Foreign Minister
Mendoza on his recent trip ta Washington have occurred. In Note No. 46 of
September 12, 1955,the Nicaraguan Foreign Minister suggested that the two
Governments concerned have their respectiveAmbassadors at Washingtonchoose
from a list of IAGS enrineers one to assis1 a mixed Nicaraeuan-1-londuran

Niçaraguan Foreign ~inister suggested'that the long-pending dispute over that
sector of the border which kas no1been defined be settled by the union (fusion)
of the Nicaraguan and Honduran Departments involved,thus eliminatingentirely
a comnion border in the disputed area and anticipating the much-talked-;ibout
Central American Union.
In his Note of January 12. 1956(Tegucigalpa's despatchNo. 352, of January
13, 1956,and Emhassy despatch No. 295 of January 20. 1956).the Honduran

Foreign Minister rejected the suggestion, but proposed that a Mixed Commission
presided over by a United States engineer determine the bord"in occordonce
wirhrheAivardof rheKingr>jSpainn (emphasissupplied). The Honduran Foreign
Minister also referred to Cruta and other places north of the Rio Coco (known
as Rio Segovia in Honduras) where Nicaraguan National Guard detach-
ments are stationed, stating that since such places are in Honduran territory236 MILITARY AND PARAMILLTARY ACTIVITIES

as defined hy the Award of the King of Spain, Nicaragua is violating Honduran
territory.
Honduras contends that the Award is a "perfect, hinding and perpetual
Treaty" and that the only question remaining is that of where the horder runs
under the Award. According to the Honduran Foreign Minister's repeated
statements as reported hy the Department and Tegucigalpa, Honduras cannot
go to the International Court of Justice except on the basis that the Award is
valid.
Nicaragua's position is that the Arbitral Award is nuIl (Ambdes 78 of August

16. 1955). Conseouentlv. it cannot accevt the Honduran ~osition of eoine to the
lnternational ~o;rt onthe hasis that'it is valid. For Nicaragua, ihe dispute
presently is not as to where the undefined horder may liebut whether the Arbitral
Award of the King of Spain is valid or null.
The present Nicaraguan and Honduran positions are irreconcilable. The
Emhassy would appreciate being informed by the Department whether it would
he procedurally possible for Honduras to hring before the International Court
the charge that Nicaragua is occupying Cruta and other places which the Award
of the King of Spain defines as Honduran. Nicaragua could presumably then
answer that the Award is nuIl and Cruta and the other places mentioned are no1
in Honduran territory but in Nicaraguan territory. A clearcut issue could then
beestablished before the International Court without any so-called loss of dignity
by Honduras.
The horder dispute presently has neither any considerahle public interest nor
political ramifications in Nicaragua. It could develop into a serious matter if
there are repeated violations along the deiined sector.
As for the undefined border, there is similarly no immediate or pressing
problem unless Honduras creates one. Nicaragua has been for a long time and
de facto (Nicaragua considers it de jure) control of the territory which
is now in
has been an integral part of Nicaragua.
In an informed discussion of thematter on January 21, 1956,President Somoza
told the Amhassador that Nicaragua wished to settle the dispute and would take
the matter to the International Court of Justice, to the President of the United
States, or to any othersuitahle person or organization. He added that Nicaragua
could never recognize the Award of the King of Spain as valid since the Award
gave more to Honduras than the latter originally claimed, namely, the Rio Coco
valley. He also noted that while Nicaragua might he willing to abandon ils claim
to 90 per cent of the entire area in dispute, Honduras is unwilling to give up
anything, even maintaining its claim to the additional area granted it through
the Award "by mistake" and to which it made no claim originally. He pointed
out that the 90 per cent of the area to which Nicaragua might be willing to
abandon claim, is where there are alleged oil deposits. President Somoza stressed
that the natural horder is from a line drawn Westfrom Cruta to the Cordilleras
which form the northern watershed of the Rio Coco and then along that
watershed to Portillo de Teotecacinte. He indicated that Nicaragua would never
give up the area south thereof. The Embassy considers that the Niçaraguan
Government would defend by force Cruta andthe other places in the Rio Coco
valley where it has National Guard detachments.

While the Nicaraguan Government cannot accept the Honduran thesis that
the Award of the King of Spain is valid and will maintain that it is null, as a
practical matter there is no pressing reason for Nicaragua to take the matter to
the International Court of Justice, although it is agreeable to doing so to
determine whether or not the Award is valid or null. The official most familiar
with the technical procedural phases of the matter is prohahly the Vice Foreign ANNEXBSTO THE COU~VR-MEMORIAI. 237

Minister, Dr. Alejandro MONTIES Argüello, who is presently in Mexico
attending the meeting of the Inter-American Juridical Committee.

For the Ambassador,

(Signed) /Illegib/e]
Counsellor of the Embassy.

APPENDIX I

Puriicipanfs: Ambassador lzaguirre of Honduras,
ARA - Assistant Secretary Henry F. Holland,
MID - Park F. Wollam, Honduran and Nicaraguan Desk.

Ambassador lzaguirre asked if tlte Department could report any progress with
respect to the suggestions made here hy Honduran Foreign Minister Mendoza
when he discussed theborder dispute with Mr. Holland on December 19, 1955.
The Ambassador had been asked by the Foreign Ministerio inquireon this subject.

Mr. Holland replicd that the suggestions of Forcign Minister Mendoza had
bcen passed on to Nicaraguan Ambassador GuiIlenno Sevilla Sacasd, who had
appcared receptive to thcm. Scvilla Sacasa was personally to discuss the niattcr
with the Nicaraguan Foreign Minister and President Somoza when he visited
~icar~ ~ ~durine the holidavs. So kir. the Deoartment does not know the results
of ~evza ~acasassconversaiions. ~r: ~olland stated that the Dcpartment cer-
tainly has a continuing interest in promoting a settlement of the problem, and
that onlv a few davs before he had reouested an additional informal a~oroa..
IO the Gcaraguan Government on the Lasis of the Honduran orers.

Ambassador Jraguirre said that he appreciated Our interest. The general terms
of the present Honduran thinking were then reviewed. Honduras, according to
the Ambassador, is willingto take ihe dispute to the International Court of Justice
if Nicaragua will accept the Court's jurisdiction. Honduras would clairn that ifs
territory isbeing illegallyoccupicd(in contravention of the 1906 Iuudo of the King
of Spain), and leave it to Nicaragua to defend its position. However,according to
the Ambassador, Nicaragua would have to agree to the court procedure because
it is not a party to the convention aiid is no1obligated to appear.
Honduras would also welcome a suit by Nicaragua against Honduras on the
same general grounds. Ambassador Izaguirre also poinrcd out ihat Ambassador

Sevilla Sacasa is again in Managua. Before the latter's departure the two had
discussed the matter on friendly terms. Ambassador lzdguirre hÿd suggested to
Ambassador SevillaSacasa that as an alternate means of resolving the situation,
President Somoza authorizc direct negotiation for a solution. SevillaSacasa was
supposed to have taken this up with President Somoza.
Mr. Holland said thai thc Dcpartment would continue 10 use ils informai
rrood offices. but that we do not u,ish to do anvthine that would be countcr-

of the p~ssibilities.238 MILITARYAND PARAMILITARY ACTIVITIES

Purricipuninis: Ambassador Sevilla Sacasa of Nicaragua,
MID - Mr. Newhegin,
Mr. Wollam.

In3 iiin\,errliti<,nu,ith Amhassador Sc\illa S~CJSJtoddy. thc Ambasjador ulii
~i~fornicdlhït certain Hi>ndurliniiilicisls hlid heen intciuchuilh ihc Dep.irtnient
with regard to the Honduran-Nicaraguan boundary dispute. We were al1aware
of this lone-standine disoute and the difficultiesinvolvedin reachine a settlement
and i>iiht~de,irshii;ty ihat nuiuiihsianding thesr.diiticdliics. son; solution hr

round 'l'heAmb:i,s3dor ua5 informcd ihat the Ilondurlins ha4 bccn told ihdt
we would approach the appropriate Nicaraguan officialson a purely unofficial
and informal basis without any responsihility attaching to the United States,
1-londurasor Nicaragua, with a view to ascertaining whether there was not some
common ground which might provide the basis for a solution.
1told the Ambassador that the Hondurans felt that the best means of settline
the dispute would be through reference to the International Court of ~usticc
The only reservation the Hondurans had in this connection was the question of
terms of reference, namely the Hondurans did not wish to refer to thecourt the
question of whether or not the award of the King of Spain in 1906was valid.
They recognized that once the question was referred to the Court the matter of

the award would undouhtedly he passed on hy the Court and they had no
objection to this. It was purely a matter of terms of reference. The Hondurans
would not agree to suhmitting the case to the Court on the basis of merely
determining the validity of the award. If they did this they felt that that act itself
would indicate that thev had some aucstion of its validitv while in fact thev had
Inone 'fhq rc-,,gnirc,l at the umr. timr. th.ir Nic~ragu:i \i,,~uldui\h the 1ndttc.r
rr.iirrcd10 thc (:<iurton suitly 1h;itb;tsir,in.c iii~Jr3gi.a uiij nialnidining that
the auanl rra, nuIl :ind voici2nd ihat 3ci<1rJ1ncl\the ht~undars I~ncuas still
a matter of dispute. The Hondurans had suggged that eithe; Honduras or
Nicaragua could make a complaint hefore the Court to the eiTcctthat the other
was illegally occupying certain territory or some other grounds of complaint
might be found. Alternatively, they could find some terms of reference on which

they would hoth agree but which would require a decision hy the Court. Re-
ference was made to the fact that the matter had not heen previously referredto
the Court because Nicaragua had never agreed to submit to compulsory juris-
diction.
Amhassador Sevilla Sacasa indicated that an agreement hetween the Iwo
countries would have to bc reached to overcome this dilliculty.
Ambassador Sevilla Sacasa said he understood the Honduran position which
was one which he would take himself were he a Honduran. He mentioned, how-
ever, his belief that there were special reasons why Honduras was hringing up
the matter at this time. He felt that Foreign Minister Mendoza was anxious Io
make a name for himself and that the interna1 politics of Honduras required
that strong action be taken on the boundary dispute. He mentioned that Nica-
ragua was not excited hy the issue and it had merely responded to the last

strongly worded Honduran note with firmness but nothing more. He made
passing reference to the difficulty inwhich former Honduran Amhassador Valle
found himself because he had made a casual press statement Io the elïect thatthe boundary problem was still "pending". This was contrary to the view of his
Government which maintains that it is a settled matter - settled because of the
award of the King of Spain. The Ambassador indicated that this might be a
good lime to bring the matter up inasmuch as there existed a commission in
Nicaragua which had a Conservativc reoresentative named bv Somoza after
having%eendesignated by Chamarra, the Conservative leader. lfihis commission
handled the matter there would no longer be an interna1 political problem in
Manaeua. In short. should Nicaraeua Iose the decision theconservative Partv
would-not be able Io place the bllme on President Somoza. 1agreed with thé
Ambassador and pointed out that for similar reasons there should be no difficulty
in Honduras since the present Government there was a coalition of the three
Honduran oarties.
~mbassâdor Sevilla Sacasa stated that he understood the situation thoroughly
and the explanation of the manner in whicb the two Governments might be able
to take thedisoute to the Court. He said he would discussthe matter confidentiallv
in Managua in the near future since he was leaving Washington for Nicaragua
tomorrow. He indicÿted that he would support the idea that this was the time
to get something done. He expressed his appreciation for the Department's
action and ils position in the matter and said that he was hopeful that an
agreeable solution could be found.

Note: No mention was made to SevillaSacasa as to the identity ol the Honduran
officiaiswho had approached the Department nor that Foreign Minister
Mendoza had been in Washington incognito.

APPENDLX 1

Participants: Ambassador Sevilla Sacasa of Nicaragua,
MID - Mr. Newbegin,
Mr. Wollam.

During the course of a cüll by Nicaraguan Ambÿssador Scvilla Sacasa, Mr.
Newheein asked the Ambassador if there had been anv o..eres- with resmct to
the setzement of the Nicaraguan-Hr~nduran border dispute.
Ambassador Sevilla Sacasa said that he had discussed this matter al length
with the Honduran Ambassador ta the United States, Dr. Izaguirre, prior to
Sevilla Sacasa's recent trip to Managua. He had also talked over the problem
with the President and the Foreign Minister of Nicaragua. As a result he was
authorized to conduct informally discussions with Ambassador Izaguirre here in
Washington. This was the procedure requested by Ambassador lraguirre who
felt that he could negotiate directly with the Nicaraguans to their mutual ad-
vantage.
Ambassador Sevilla Sacasa also thought this was advantageous because talks240 MILITARY AND PAIUMILITARY ACTIVITIES

could be conducted here in a friendly manner because of the mutual friendship
and respect to the two Ambassadors. He pointed out confidentiallythat Honduran
Foreign Minister Mendoza, while very capable, was somewhat difficult for the
Nicaraguans to deal with on the border question.
There followed a general discussion on the conditions under which the Nica-
raguans could undertake arbitration on settlement of the dispute. Ambas-
sador SevillaSacasa said that Nicaragua would probably go to the International

Court if summoned by Honduras. It was not fcasible, however, for Nicara-
gua to summon Honduras to the Court. There is some doubt as to whether Nica-
ragua would be officially obligated to submit to the International Court
because an instrument of ratification of acceptance of the Court's jurisdiction
was never sent, although in 1939a telegram was sent by the Nicaraguan Foreign
Minister giving informal acceptance.
Ambassador Sevilla Sacasa said that Nicaragua would probably agree to
settlement of the dispute by the ICI since the ICJ had probably the most prestige
and tradition in such cases. There are other means, however, that Nicaragua
might agree to. These would include arbitration by a prominent person on a
mutually agreed on commission.
The Ambassador said that he was going to explore al1the proposals in a scrics
of informal talks with Ambassador Izaguirre. It was his idea to move slowly and
surely and to avoid any precipitous action that might prejudice settlement of the

dispute. He said he would keep the Department informed of developments.

(Nolc: Ilseemed from the sum total of the Ambassador's comments that
while Nicaragua would like to have the quarrel settled, there is no intention to
move as rapidly as the Hondurans would like and that there is still a basic
disagreement on the terms under which the countries would submit to arbitration.)

lnterest in the Honduran-Nicaraguan border dispute. which is a recurrent
phenomenon in Honduras, was given a marked revival in the Honduran press
on the occasion of the 50th anniversary of the "Laudo" - the decision on the
line of the demarcation made by the King of Spain on December 23, 1906.
Ten days before the anniversary, the subject came up in connection with
Foreign Minister Esteban MENDOZA'S trip to the United States. El Crunirra
of December 13 speculated that Mendoza and Dr. Cele o DAVILA would go
on from the United States to The Hague to ask the International Court of
Justice for a final decision on the merits of the "Laudo".
On December IXth, the first of a number of obviously planned articles and
advertisements beean to amear in the Dress. On that dav. El Dia noted the
..
iorthcoming 50th :inni\ers:ir) ur ihc "L:iuJu". pr:i~reJ iijusticc, :inJ :i\rertï11.
dcfiniti~enïi~ On ihdt d.iie. F:l/hobcg.i!ide% .)!ln&p.irt<irpage itiur 16).Idaily
seriesof reprints ofdocunients c~inccrncdwiihihe border di>puic~inJihc '1-audo". ANNEXES TO TIIECOUNTER-MEMORIAL 241

On December 20th, the first of the gkanteditions with which the Honduran
press celebrated Christmas began to appear, affording more space for the pre-
sentation of material on the "Laudo". The December 20th Christmas edition of
El Diu carried a half-page ad from the Foreign Ministry which presentedthe line
that the entire campaign look. Noting the 50th anniversary of the "Laudo",
which the Honduran Government supported even though the ruling was unfavor-
able to the Honduran thesis - i.e., Honduras did not get al1that it asked for-
itcalled on Hondurans to be alert and united, without partisan dinerences, be-
cause "soon we will have to look for the civilizedmeans of putting (the Laudo)

into effcct". The ad also carried seasonal greetings.
The December 21 Christmas issue of El Cronisrucontainal a full-page ad with
a plea, signed by Mendoza, for unit? and good spirit in helping Honduras on ils
way to ils prime objectives, Peace and National Union. Ndlf the ad consistcd of
a map which appeared in the same form whenever a map was used to illustrate
the Laudo, one which the Foreign Ministry had used in a pamphlet on the
Laudo in M2y, 1956.
In part of ils full-page ad in the Christmas issue of La Epoca, the Foreign
Ministry called on Hondurans to remember the anniversary of the Laudo. In the
same edition, a two-page spread presented the documentation on the Laudo,
includingdiplomatic correspondcnce of that period indicating both United States

and Nicaraguan recognition of the I-audo.
The heads used by Lu Epocu to describe the United States correspondence
were used verbatim when this material u,as reprinted as part ofa spread on the
Laudo printed in the Diurio iVucional of December 21, being a further indication
that most or al1of the editorial work came from the same source. The spread in
Diorio Nucionul. which wascarried on the editorial Dam. included a manifesto
addressed by the Societyof Lawyersof Honduras to &e'peoplcsof the American
continent and thcir legal bodies, supporting the Laudo and calling for it to be
put in10effect.
The December 22 Prensa Libre bcgan the return to more original coverage of
the border question by announcing under the banner headline "Redeem the
Cmta" that Foreign Minister Mendoza had retained a noted international lawyer

(not named - but understood to be Manley HUDSON -) to argue the case of
Honduras at The Hague. An editorial affirmed the support of the Reformistas
for the Laudo at al1costs.
The press droppcd the subject for some days, but it was revived in an article
in El Croni.sr<rof December 27 which announced that the sad truth about the
I.:i~d,>ibuc u.13th.11the pci>plc.>ithe \lorquit~a leancilniaxeidu;ir<iNi~arigus
ih~ii io\r:ird Ilundiiriis bs:~iiith;ir bccn thc iïic.ir;igu:iiis iIi;i\e\pli>red.
Jr\,cl<ipcdand witlcd thc iiiunlr). to Ihc c.rtcnt thai thir h:~rken Ji>nr.at all.
Prr,t.,<il.,hof the ianie date gave coniiderablc inside L.oi.erîgetoa sertesof
Joiumenis illustr~iing thc ctinsistcnt Il<indur;in \,~c\i,thai ihc Laud<>wüs legal
and irrevocable.

It should be noted that not al1of the press has covered the issue - nothing
has appeared in El Puebla - and that the issue has not been left to the press
alone, inasmuch as the Foreign Ministry has circulated a large card printed with
a map of Honduras on one side, showing the line dccrccd in the Laudo and
carrying on the other side the operative clause of the Laudo.
Further official interest in the boundary issue was indicated by the recent
appointment of Lt. Colonel Héclor CHINCHILLA, a non-flying Air Force
officer,to direct a military economic developmentprogram in the Mosquitia. As
yet, no funds have been given him with whichto do this.
Apart from any effort in the direction of assuring itself of physical possession242 MILITARY AND PARAMILITARYACTIVITIES

of the disputed area, the main interest of the Hondurans at present seems to
be the establishment of the legality of the Laudo. It was for this reason that
Mr. Hudson was retained. It might he noted that there is a section of the
Honduran-Nicaraguan border which isnot indispute (from Tocecacinta westward
to the coast) and which is heing surveyed hy a Joint Border Commission. A
neutral member of the Joint Commission is an American, Mr. Robert R.
Mclllwaine, a civilianemployee of the United States Army assigned to the IAGS.
Mr. Mclllwaine has the deciding vote when the Honduran and Nicaraguan
members are split and seems IO have done his part to the satisfaction of all. In
a conversation with an Embassy olficer,Foreign Ministry Sub-Secretary Alejandre

ALFARO Arriaga indicated that, should an agreement between the two Govern-
ments be possible, it would be desirahle to have the functions of the present
Joint Commission extended to cover the boundary to the east coast.

For the Chargéd'Araires a.i.,
(Signed) Jack FRIEDMAN,
Second Secretdry of Embassy.

As per instructions have discussed Honduras-Nicaragua relations arising out
of creation of new department with Foreign Minister, Junta memher Galvez and
Counselor of State Agurcia. Taken at face value result is gratifying and situation
not nearly as critical as might otherwise appear. Honduran activities center on
two considerations: First, in addition to other attempts ever since April 1956
Honduras attemotine to eet Nicaraeua aoDear before International Court or
oihcr neuiral hod! i<;setil; bo~nJar)~robic;ii and noie of April 1956siiggeiting
Inicrnatiiinal Couri nr\cr to Jatc hccn aikiioulcdgcd. Thus 1londiir;is hopinp
bv this action as ~rimarv and oeaceful obiective to stimulate Nicaragua to ekher
xrh~lralcor hilaieral ncgotiation. Sciundly. i~niingof ihis acti\,iIy as prcviously
reportcd directcd to srcaiing pr.aceiul inicrnal Il,induran slimair. for Junia in
order to further their objective of announcing and obtaining popular approval
for a plan to return to constitutionality.
Foreign Minister has assured me specifically(a) tbat ordcrs to troops are not
to engage in hostilities. Galvez added to this "unless attacked".

IbJ Area of ooerations of Honduran trooos at least 150kilomeiers from Cruta
and more than i011kil~>mctcrrirum ncarcsi'a~lc~cdSicdr~gu~n base
(r) Kraron for scnding iruops as disiingui,hcd l'rompurcly civ~liansetilers ts
tcrritorv uild. inhahiteil hy ignorani iribcs therci'a)rrde,ircrl disiiplincd pcrronnel
capahléof sustaining themsëlves in field and least calculated to cause-incidents
with indigenous inhabitants, i.e., rather same situation as prevailed once in our
wild West.
(d) Junta now has before it for issuance note replying to Nicaragua protest ANNEXB TO THE COU~TER-MEMORIAL 243

whish 17ircign Iinisler aiid G;iIvc/ iharli<tcriz3r ioncilialory uhic'h rc\,icus
hi\ton ol1li)ndur:in peacclul ;ittcmpts scttlc dispute.
lorc-oin- Ilonduran~ still hclicvcthat ni>truublivilrc'sull.
Fmhahr) .trongly rcconiniends .i,ntinued procr.\sing <I'mathcr, ümcn<lmcnt
I.Mn habing in nilnd could uitimdi~iybe \el.>eddi kdbminui: \f l~cpartmr.niso
Jcrircs ior rcas<insr>oiniciloui in ils i:iblc Othsruise fc.ir thdi .idmini~trati\c
~ela,s wi~ ~del,,~.evond Avril 30 deadline allocation funds. In this connection
Embassy has strongly in mind purpose of loans to encourage civilian form
government as dislinguished from military dictatorship, and further in mind that

with this military supportcd move in newdepartment, Ïnilitary hecoming stronger
in popular and their own eyes.

(Signed W)ILLAUER.

Bv wav of correction drs exolanation so far as is now known there has never
. .
bccn ;in? lortii.iI olrcr in rcc'entt.mc\ hy IlonIOrg.) io ICJ but diiring cul)
month, di 1956 Fi>reign Minijtcr infornicJ ,\iiib.irrdd.ir thi\\,A\ulrim.iic
Ht>nduraiiintciitii>:inJih;it hc hai,<>;iJvi\cd Ki-srdculin 1:orcipnVinislc;il
meeting in Cuba during Batista inauguration. ~efereice in cabk to "note of
April 1956" erroneously desçribed due to telescoping ofinformation hy Foreign
Minister. Note actually intended to be referred to was January 12, 1956, still
unanswered in which Honduras simply offered to create mixed commission to
physically delimit Laudo award. At time Foreign Minister Mendoza explained
this was opening gamhit which he expected to be refused but would set stage for
next step of going to ICJ when and if refusal reccived. 1 am trying today to
smoke out Honduran authorities further on possibility of some way of getting

to ICI now that Honduras clearly unwilling enter bilateral negotiations on hasis
acceptable Nicaragua, i.e., possible çeding of territories heyond Laudo, or Odeca
arhitration, whichcomes to same thing in their view.

APPESUIX O

MINISTE R FFOREIGN RBLATION OFSHONDURA 7S THE MlNlsTeRS OF FOREIGN
AF>;~;nin1sT11aAMERICA SND SPAIND , ATED 15MARCF1I957

There is enclosed the Spaiiish textl and English translation of the Honduran
note expressing willingness to subniit to the International Court of Justice ils

' Not reproduced. ANNEXES TO TIIE COUNTER-MlIMOKlAL 245

1 take this opportunity Io renew to Your Excellency the assurances of my
highest consideration.
Minister of Foreign Relations of Honduras.

cc: Secretary of State, Washington, D.C.. U.S.A.
Foreign ministries of al1American States
Ministry of Foreign Akiirs, Madrid, Spain
Secretariat of the United Nations, New York, U.S.A.
Secretariat of the Organization of American States. Washington, D.C., U.S.A.
Secretariat of the OrganCration of Central American States, San Salvador,
El Salvador
Secretariat of the lnternational Court of Justice, The Hague,

The Netherlands.
To the Ministers for Foreign A1Tairsof the Americas and Spain

This Chancery has the honor to advise Your Excellency that a complete
statement will he sent in the ncar future regarding the juridical reasons on which
theGovernmcnt of Honduras basesils rejection of theposition of the Government
of Nicaraeua which reiects out of hand the Decemher 23. 1906. Award of His
MajeGtCe ~ing of in; and on which it bases ils insistence th& the execution
of said Arbitral Award, which fix~.dthe boundaries between Honduras and
Nicaraeua from Teotecacinte Passaee to the mouth of the Seeovia River. is the
only legitimate solution to the matter in accordance with lkmxitional Law.

Becauseof the recent creation by my Government of Gracias a Dios Depdrtment,
fixing as ils eastern boundarv the <:oc0 or Segovia River, the Government of
~icGagua madc a protest alfegingthat the ne; Dcpartment embraces a part of
Nicaraguan territory and part of the territory alleged to be in litigation, again
assuming the same anti-juridical position of non-recognition of said Awÿrd
withou~ ~avine -ver had recourse t« a comneten. international court to iusti",
ils refusal to comply. My Government rejected the protest, considering the same
without foundation. in observance of the Charter and recommendatioiis of
the United Nations, the Republic of Honduras not only has submitted to the
compulsory jurisdiction of the lnternational Court of Justice but is also willing
to submit to ils decision those diiTerenceswhich, as in thc present case, it might
have with another State or States that are not susceptible to solution through
peaceful means as recognized by lnternational Law or consecrated by Inter-
national Treaties. The Repuhlic of Nicaragua, on the other hand, in signing the
Bogoté Pact of 1946expressly reserved its right as to the peaceful solutions
contemolated bvsaid American Treatv insofar as Arbitral Sentences the validitv
of uhirii IIrnipht hive iinpugnd 1:in,rcnding ihis me,ragc io al1ihr ~nlcriili"
Chancerie>.to the Sccreuriat oi'tlic Orgdni~aiion <,f,\mcriz;in Si:itcj ;tnJ1,)thc
Sc<rctsriai .>iihe Intcrn;it~oii;ilCouri <~fJu>ii~cd\ailiii\rclfi~iihi, oppilriunity
Io reiterate to Your Excellency the assurances of mi highest cons~deration.
Minister for Foreign Afïirs.

Copy to: Secretary of State, Washington, D.C., U.S.A. Chanceries of the
Americas. Minister for Foreign AKairs, Madrid, Spain. Secretariat of the United
Nations, New York, U.S.A. Secretariat of the Organisation of American States,
Washington, D.C.. U.S.A. Sccretariat of the Organization of Central American
States, San Salvador. El Salvador. Secretariat of the International Court of
Justice, The Hague. HoIland.246 MILITARYANI> PARAMILITARYACTlVlTlES

DESPATC FROM UNITED STATEESMBASS IYHONDURA TO DEPARTME NTSTATE,
DATED 21MARCH 1957,ENCLOSINN GOTEFROM MINISTE ORFFOREIGN AFFAIR SF
NICARAGU TO MINISTE ORFFOREIGN AFPAIR SFHONDURAD S,ATED19MARCR
1957,ANI>ANARTICL EROM ELDIA,20 MARCH 1957'

There is enclosed the Spanish text' and English translation of the pertinent
part of the Nicaraguan Foreign Ministry's note to Honduras of March 19, 1957,
replying to a circular radiogram sent March 15 by the Hondurdn Foreign
Ministry to American chanceries, the Spanish chancery, and the secretariats of
the UN, OAS, ODECA, and the International Court of Justice. In its note,
Honduras declared that il was willing to submit diferences such as ils present
one with Nicaragua to the International Court of Justice, declaring, however,
that the execution of the 1906Laudo of the King of Spain was the only possible

legitimate solution.
The Nicaraguan note, addressed 10 al1 the recipients of the Honduran note
with the exceotion of the UN. affirms its continued willineness to acceDt a
peaceful mean; of solving ils dikerences with Honduras, declaieifithebelief
nullity of the Lau-o though asserting that Honduras is the one that should
go to the Court- and announces thdt a note will soon be sent embodying
Nicaragua's position on this point.

For the Ambassador:
(Signed) Jack FRII:DMAN,

Second Secretary of Embassy

Department of State, Division of Language Services

(Translarion)

LS No. 113593
FA/BP
Spanish.

[From El Dia, March 20, 19571

[NICAPACUA P]RSlSTS IRIU1:CTING THE VA1,IDITY DACEMRER 1906 ARBITRAL
AWARD

Advises our Foreign Ministry that It Will Soon Send New Note Explaining
Absurd Pretensions

Ministry of Foreignairs
of the Repuhlic of Honduras

'Not rcproduced.
Nat reproduced. Managua, Nicaragua,
19March 1957.

No. 378

His Excellency
Doctor Jorge Fidel Duron,
Minister of Foreign Aîfairs
Tegucigalpa.
[Excellency:]

1am pleased to acknowledge receipt of Your Excellency'smessageof yesterday's
date in which you advise me that you will transmit in the neür future a complete
explanation of the legal reasons upon which the Govcrnment of Honduras bases
its rejection of the position of my Government contesting the Award of His
Majesty the King of Spain of 23 December 1906and its insistence that cxecution
of that arbitral award is the only solution of the matter.
Your Excellency adds that on the occasion of the recent creation by your
Government of the Department of Gracias a Dios, my Government protested,
adopting the same position - which Your Excellencycharacterizes as anti-
judicial- of refusing to recognize the award without ever having applied to a
competent international tribunal tojustify its position, and that your Government
rejected the protcd, considering it to be without foundation. Your Excellency
goes on to say that the Republic of Honduras kas not only accepted thc com-
pulsory jurisdiction of thc lnternational Court of Justice but is willing Io submit

to the Court for decision those disputes, like the prescnt one, which it may have
with one or more States and which may be susceptible of resolution by the
peaceful means recognized by international law or established in international
treaties. Further, that the Republic of Nicaragua, in signing the Pact of Bogoti
in 1948,made a specificreservation regarding the pacificsettlement contemplated
by that American treaty with respect to arbitral awards whose validity it had
contested. Your Excellency concludes by saying that you are sending the same
message to the foreign ministries of al1the American States and that of Spain,
as well as to the Secrctariat of the Organization of American States and the
Secretariat of the International Court of Justice.
In reply, 1 am pleased to infom Your Excellency that my Govcrnmcnt
appreciates notice of the forthcoming explanation which Your Excellencywill
make and has taken note of your statement with respect to the suhmission Io
the International Court of Justice of your disputes with other States. My
Government cannot accept the assertion that the only solution to the matter in
confomity with international law is execution of the arbitral awdrd, as that
wouldamount toa resolution of theprincipal question, which isthedetermination
of the nullity or validity of the award.
1 also wish to inform you, reiterating the statcments made in this respect
during the mediations of 1918 and 1937 and in numerous exchangcs of notes
between Ourforeigii ministries, that the Government of Nicaragua has been and

is at al1times disposed to resolve the question of the houndary hetween our Iwo
countries by the peaceful means established by international law, while the
Government of Honduras has asserted that there is no boundary issue and has
refused even to discuss the validity of the Award of His Majesty the King of
Spain. I can cite, among othcrs, the notes of the Honduran Foreign Ministry of
II June 1955and 12January 1956 which contain such a refusal. Consequently,
my Government can never be blamed for the failure to resolve the border
question, as there is and always has heen willingnesson ils part to resolve il.248 MILITARYANI) PAFLAMILITARY ACTIVITIIIS

1 also take the liberty of advising you that the reservation madc hy Nicara-
nua to the Pact of Bonoti is not, as Your Excellencyasscrts, a reservation with
respect to the peacefuÏsolution &hich ihat Pact coniemplates in relation Io arbi-
tral awards whose validity it might contest; it is rather a reservation [stating]
that no provision of that Pact mdy be interpreted as an acceptance hy Nicaragua
of arbital awards it has contested. So firm and constant has the policy of my

Government been to resolvehy peaceful means ils diflerenceswith other countries
that in the first regular meeting of the Ministers of Foreign Affairs of Central
America, beld in Antigua in August 1955, it proposcd a draft [resolution] for
peaceful settlement of conflicts among Central American countries which is still
awaiting approval. The fact that Nicaragua has no1applied to any international
tribunal to contest the award can in no case be interpreted as supporting the
position taken hy your Government, for, on the contrary, it would be incumhent
upon your Government to have recourse to such a tribunal.
1 do no1 believe it inopportune to state that my Government maintains ils

invariable position that the royal award of 23 December 1906 is null; and,
although your Government is already familiar with the legal position which
Nicaragua kas traditionally put forward, 1 advise you that a note will soon be
sent explaining the reasons on which are based Our assertion that the royal
award is null. Nicaragua has never accepted the award and ils challenge cannot
therefore be described as extemporaneous.
1 take the liberty of stating that 1 am sending this same message 10 al1

the foreign ministries of the Americas and that of Spain, as well as to the Secre-
tariats of the Organization of American States, of the Organization of Central
American States, and of the lnternational Court of Justice. I avail myself of this
opportunity to renew to Your Excellencythe assurances of my highest considera-
tion.

(Signed) Alejandro MONTIEL ARGÜELLO,
Minister of Foreign Affairs.

. . . In reply 1 am happy to inform Your Excellency that my Government
appreciates notice of the forthcoming statement which Your Excellencywillmake
~ ~ ~ ~ ~ ~e~ n~te of vour statement with resnect to submission to the
International Court of Justice of your differences with other nations. My
Government cannot accept the assertion that the only solution of the matter in
accordance with lnternational Law is the execution of the arbitral sentence since
this would be equivalent to resolving, in a sense, the principal question, which is
the determination of the nullity or validity of the Award. Also, 1 am pleased 10

state to vou. reiteratinn statements made in that sense during the mediations of
1918and 1937and innumerous notes exchanged hetween our Chanceries, thal
the Government of Nicaragua has been and is at al1 iimes disposed to resolve
the matter of boundaries between Our two countries by those peaceful means
consecrated bv lnternational Law. whereas it has been the Government of
Honduras whiih has maintained thai there does no1exist a question of boundaries
and has refused even to discuss the validity of the Award of His Majcsty the ANNEXES70 TRI3COUNTBR-MEMORIAL 249

King or Spdin. i<ith:it cil'cclmc~iiti~iihiciiil:illade. .iriiong 0th-rs. of the ni>tcof
thai Chancery JatcJ June II. 1955,:ind January 12. 1'956r..iini.iining,aid relusal.
ln consequence of the foregoing my Government can never be blamed for the
Packof a solution of this matter of bounddries, since there is and always has
been good will on ils part to resolve il. 1also take the liberty of advising you
that the reservation of Nicaragua to the Bogota Treaty does no1mean, as Your
ExcellencyStates, a reservdtion insofar os concerns peacefiil solutions as contem-
platcd by said Pact in relation to arbitral sentences the validity of which it might
have impugned, but rather a reservdtion that no ruling in that Pact may be in-
terprcted as acceptance on the part of Nicaragua of those arbitral sentences it
may have impugned. The policy of my Government has been so fim and con-

siant insofar as peacefully solving its diiïerences with other countries, that at the
first regular meeting of Ministers for Foreign Aiïairs of Central America held ai
Antigua in August 1955 it proposed a resolution for the peaceful solution of
coniiicts among Central American countries which is still pcnding. The fact that
Nicaragua to date has not gone to an lnternational Court to impugn the Award
cannot in any case be interpreted in i'avor of the thesis mnintained by your
government since it is your country which should takc recourse to said Court. I
do not consider it inopportune to state to you that my Government maintains
its invariable position on the nullity of the Royal Award of December 23. 1906.
and. althoueh vour aovernment is alreadv aware of the iuridical thesis tradition-
sll) maini:iineJ hy N;~.3r:igua.1aJ\,i\c ~IU th:it:1nole \\,il1*00n hc sent 10 )OU

giving thc liind:inicni;ilrc;ison, oniihich Ui.'.tr.iguahlic, II\~illcgsti<~nifnullity
.iiihr. K.i!al ?\wdrJ which har ncvcr hccn accciiicd b\, \ic;ir.igiia11 net hcin):
possible, iherefore, to describe as out of hÿnd jts impugnmeniof same. 1 cake
the liberty of statiiig to you that 1 am sending this same message to al1 the
American Chanceries and to that of Spain, and 10 the Secretariats of the
Organization of American States, of the Organization of Central American
States, to the lnternational Court of Justice. 1avail mysclf of this opportunity
IO reiterate to Your Excellency thç xssurances of my highest and most dis-
tinguished considcration. Alejandro MONTIEI.ARO~I:I.L.O -. Minister for
Foreign ARairs.

Prirlicipants: Ambassddor Villeda Morales - Honduras,
MID - Mr. Wieland,
Mi. Warner.

During a courtesy cal1by Mr. Wieland, accompanied by MI. Wamer, the
Ambassador expressed his gratification at the excellent work of the OAS
Investigating Committee. He is holding a reception for thdt Committee on
Thursday, May 23, as an indication of his high regard. He observed that in the250 MI1,ITARY AND PARAMII.ITARY ACTIVITIES

COAS deliberations on the HonduraniNicaraeuan disoute. feeling bas not run
nearly so high as during Nicaragua's diGute wiih Costa ~ica'and th: ~mbassador
said that he is personally friendly with Sevilla Sacasa. The Ambassador believes
the dispute wiih ~icara~ua should go before the International Court of lus-
lice and he said that Honduras is looking for three international lawyers to
help put on the case; he mentioned Dr. Manley Hudson. He also noted that

Honduras would be in a bctter position to prescnt ils case before the ICJ if Hon-
duras had a legally constituted government and had reverted to constitutional
order.
The Ambassador mentioned that a recent notice in the Washington papers
about his imnendine return to Honduras was incorrect. He stated he does olan
to return toHond&as and be a candidate for the constituent assembly when
elections are announced but he gave the impression that he is not planning to
return before then.
Thc Ambassador refcrred to the recent meeting in Lima, Peru of the Third
Continental Congress Against Soviet Intervention in Latin America (April 10-14,
1957). He said that Honduras had sent a good delegation to that meeting
includin- Roberto Martinez of the Liberal Partv and Raul Edrardo "strada
rïprcrcniing Ilonduran lahor. Villeda himsclf scni a mesrage IO ~hccunl'crcncc
and promiscd IOfurnish a copv of ilIO Mr Wiel;ind A discu,siun fi~lli~ucduf
the dangers of Communist acii;ity in Latin America.

The Ambassador mentioned that he has received a letter indicating that the
wife of Dr. Zoilo Vallc of Tegucigalpa is trying to obtain a visa to attend her
daughter's graduation from Holy Cross Academy. He is under the impression
that Mrs. Valle is having some difficulties. Mr. Warner promised to look into
this.

Parricipunrs: Ambassador Sevilla Sacasa of Nicaragua,
ARA - Mr. Ruhottom,
MID - Mr. Wollam.

Ambassador Guillermo Sevilla Sacasa of Nicaragua called to pay his respects
to Mr. Rubottom upon the former's return from a brief visit to Nicaragua. He
had spent a few days in Managua in order to inform the President of develop-
ments in Washington on the Nicaragua-Honduran border dispute and to obtain
instructions from his Prcsident.
Ambassador Sevilla Sacasa stated that the Nicaraguan delegation 10 the

Antigua meeting would be composed of representatives of al1 political parties.
In addition 10the government members, prominent, respected and well-informed
persons [rom the Conservative and Independent Liberal Parties would also be
in attendance. ANNEXESTO THE COUNTER-MEMORIAL 251

The Ambassador voiced the opinion that Honduras would approach the
meeting with only one solution to the border problem which would be the affir-
mation of the validity of the Laudo of the King of Spain. Nicaragua, however,
has a more flexible position and is preparing Io submit several plans for the

consideration of the Central American Foreign Ministers. If the first plan is
rejected. the Nicaraguan delegation willcome forth with others to indicate their
.i~ ~ n-----~~ ~~i-rate.
The Ambassador stated that many persons mentioned only the International
Couri of Justice as a means for solvina the problem. Nicaragua feels, however,
that there are a nuinber of method; that mus1 first be iried ~rior to anv
submission to the Court. This further effort would be "required" 'by the 1nte;-
American system. according Io the Ambassador. Ifthe Foreign Ministers'meeting

at Antieua does no1 resolve anvthinr. the Government of Nicarazua is nre~ared
to initiate other steps such as ;ubmGsion to various American a;thoriiies'or to
the United States for settlement. The Ambassador also intimated that he was
working on various approaches to the problem here in Washington and that
these would be revealedai the proper time, if necessdry.
Nicaragua isnot afraid to take the case to the ICI according to the Ambassador
and it is possible that it might lose the case, in which case, it would give up

gracefully. However, said the Ambassador, it will be clearly pointed out to the
Honduraiis that they could also lose the case and he implied that Honduras
would not accept this kind of judgment.
As a final recourse, Nicaragua would appeal under the Pact of Bogoti for
submission of the dispute Io the ICI ; but the Ambassador left somc doubt as to
what terms of reference might be suitable for both parties.
Ambassador SevillaSacasa also stated that the three neutral Central American
rovernments would nrobablv brine UD the idea of makinr at least oart of the
', -.
disputcd 'rreti#ni<)a ncu1r;llCcniral Amcriciin zonc io hc ilic futurc capital ,>l'a
umlicd Central Amerlca Scvilla Sacasa thought ihst this war particulsrly siimu-
lated by the Salvadorans who are cramped for spaee and who will require an
outlei fo( their people and for their investment capital. He did not think that
this idea would bring any fruitful results.
Mr. Kubottom thanked the Ambassador for his expression of thc Nicaraguan
views and said thai there were two things in his opinion which werc important
at this time. The first was that there not be any undue delay in the efforts of

boih countries lo reach a definitive settlement of the boundary question. While
the matter should not be rushed, il is most important no1 to lose the present
momentum. The second important point is that bath sides act in good faith to
prevent any luture Rare-up in the disputed zone. In this connection, il is
imperaiive that bath sidcs remove their troops from the disputed points, where
there is always a possibility of conflict.
Ambassador Sevilla Sacasa said ihat he was in complete agreement with this
and he thought that the details with respect to Mocoron and other frontier

points could be arranged.

Conlmenl :

The Ambassador appeared to coiifirm the impression that Nicaragua is going
to use a variety of delaying tactics hefore presenting the case to the ICI.252 MILITARY AND PARAMII.ITARYACTIVITII~S

OAS Ad Hoc Committee has informally proposed to Ambassadors Honduras
Nicaragua Washington three alternative formulas for settlement houndary ques-
tion, al1 based on Pact of Bogoti, namely referral question Io: (a) special ad
hoc arbitral tribunalstahlished as provided Chapter V Pact of Bogota; (6) sole
arhiter selected by agreement; (c) International Court of Justice. Und(a) and
(h) tribunal or arbiter would havc authority settle any aspccts problem left
unresolved by initial consideration of legal issue. Under (c) any outstanding

questions would he referred to arhitration under Pact of Bogoti. Failure either
side comply with decision would cal1 for Meeting Foreign Ministers OAS in
accordance Pact of Bogoti. Committee inclined favor plan (O) as most ex-
peditious and appropriate, but wishesgovernments selectprocedure they consider
~referable.
In submitting case under any of three alternatives Committee understands, but
bas no1 put in writinr, that Honduras would merely request enforcement 1906
Award while ~icara~ia would contend Award invalid.
If consulted Embassy should encourage government reach agreement with
Committee on one of above formulas. Annex35

MANUSCRI DFTVISIO Nr TI~EHARVARL DAWSCIIWI.LIBRARY)

Dear Manley,
In reply to your enquiriesrelating 10 the position in respect of acceptance of
the compulsory jurisdiction of the Court hy Honduras and Nicaragua, 1can tell
"ou that the position with regard üi the former is clear, although the matter is
more complicated with regard to the latter.
Bya Declaration dated February 2nd. 1948,deposited on Fcbruary 10th. 1948,
Honduras accepted the compulsory jurisdiction of the Court for a period of six
years. 1enclose a copy of the Declaration in the English translation' made hy
the Secretariat of the United Nauons. The original was in Spanish. By a further

Deçlaration, dated April 19th. 1954, and deposited with the Secretary-Geiicral
on May 24th. 1954, the Government of Honduras renewed the acceptançe hy
that Statc of the compulsory jurisdiction of the Court for a furthcr period of six
years, as from May 24th, 1954,automatically renewable in the absence of notice
of termination.
So far as Nicaragua is concerned, the positionismore obscure. Nicaragua had
-"ened but not ratified the Protocol of Sienature of the Court's Statute when. on
September 24th. 1929, ilaccepted the Optional clause concerning the Court's
compulsory jurisdiction, making the Declaration set out in the Yearbook for
1946.1947, to which you have referred, on page 210. Itwould appear that the
source of the footnote which you quote, relating to Nicaragua's ratification of
the Protocol of Signature of the Statute of the Permanent Court, was the
Sixteenth Report, covering the period June 15th, 1939.10 Dccember 31st. 1945,
puhlished hy the Registry of the Permanent Court (Series E, ND.16). Page 331
of that volume gives the following note:
"Protocol of Signature of theStatute of the Court.
Geneva, December 16th, 1920.

Accordinr-to a tel-rram dated Novemher 29th. 1939, addressed to the
I.caguc oi K;ttii>n..Nic:irigud had r.itilieJ th: l>r<~:.d tlic iiihtrLment
of ratilicÿti~~nu,i, io iiill,>w.'The1:iitrrhoutirr ha, no1)ci hccn Jcpositcil."
We have hunted through Ourarchives here, but 1regret Io say that our records
have failed to reveal the source of the entry in the last Annual Report of the
Permanent Court. Previous Annual Reports indicated that Nicaragua had signed

the optional clause but was not bound thereby by reason of its failure to ratify
the Protocol of Signature of the Statutc, which would appear to he correct. The
entry which you mention in Volume 88 of the Lcague ol'Nations Treaty Series
must apparently refer to the signature of the optional clause. You have yourself
criticized the confusion which reigned at the lime of the drafting of the Proto-
col of Signature of the Statute, and this confusion appears to have persisted

' Nai submiticd.throughout the years. 1 find, for instance, in a League of Nations Official Jour-
nal publication of 1944, dealing with signatures, ratifications and accessions in
respect of agreements and conventions concluded under the auspices of the
Leaeue of Nations. under the headine "Ontional clause recoenizine the Court's
com-pulsoryjurisdiction" that Nicaragua's unconditional acceptance is referred
to under a sub-heading "Signatures not yet perfected by ratification". Sbyce
the terms of the Decliration of acceotdnce~of theCO<I~I)U . .ri~diYtion nk
raiifiçatiowas ncic,s.iry, thc fiiilure bg Sie.irtiiraiiiy mu,t relaie io the
Prutoc~l oi Signsturc ,>fihc St;iiuie If. howcvcr. Yicaragua had indecd ratiticd
ihr Proioci)l in 1939.the 194.4çntr) uould amcar tbc incorrect.
As you point out, our ~earbook for 194711948and subsequent Yearbooks
have contained a referenceto Nicaragua's Declaration of 1929,without indicating
that it may be of no eiïect, except in so far as the latest Yearbooks have al1
contained a reference 10vape 210 of the 1946.1947Yearbook. which setsout the
note which you have quitid. It may well be that this is somewhat mislçading.
For what this is worth, tbis has never elicited any comment from Nicaragua. It
seems to me that the simples1way in which the true position can be ascertained
is by consultation of the League of Nations archives, and we are accordingly
writing to Geneva.
1 do not think one could disagrec with the view you express when you say
that it wauld be dificult to regard Nicaragua's ratification of the Charter of the
United Nations asaficting that State's acceptanceof the compulsoryjurisdiction.
If the Declaration of September 24th, 1929,was in fact ineffectiveby reason of
failure to ratify the Protocol of Signature, 1 think il is impossible to say that
Nicaragua's ratification of the Charter could make it eiiective and therefore
bring into play Articl36,paragraph 5, of the Statute of the present Court. -

ANNEXES 70 THE COUNTIiR-MEMORIAI

Annex36

Lt7-rtiFROMTHE DEI'UTY-RECIS~R O FRHI'COURT TO JUDGE HUDSON D,A?^
28 S~;PTEMB1 F9~55.E~ct.osi~cALETTRR FROM MR. ~LT, DIRI~CTOE RU. ROPEAN

Dear Manley,
1refer to Our letter of September 2nd which dealt inter olia with the question
which you had raised concerning the position OSNicaragua in respect of
acceptancc of the compulsory jurisdiction of this Court. We then indicated that

we were writing to Gcneva to see whether any fresh light might bc thrown on
the problem hy consultation of the League of Nations archives.
We have now heard from Mr. Pelt and at the request of Julio 1am sending
you herewith a copy of his letter which, it seems 10me, completely answers the
question which you had raised.

Dear Mr. L6pez-Olivan.

1 had jour letter of Septemher 5th concerning the question that has arisen
with regard to Nicaragua'sposition in respect ofthe acceptanceof thc compulsory
jurisdiction of the International Court of Justice.
Upon receipt of your letter 1 had the relevant League file, as well as the
'relevant U.N. file, brought up to my officefor perusal. 1also ordered a search
through the collection of instruments of ratification dating from Lcague days
whiçh we still hold iaspecial safc in our archives.
The inspection of the files shows that U.N. file No. G/IV-1/3-3077, which

starts towards the end of 1947and is right up to date does no1contain anything
in connection with the matter which you asked me to investigate. The special
League of Nations filewhich bears the following title:
"Archives 1933-1940,Legal,Court of International Justice, Registry Number
3C/17664/1589, Statute of the Court and Optional Clause, Geneva, 1920,
Signature and R;itification by Nicaragua"

contains as its oldest document a letter Sromthe Foreign Minister pf Nicaragua.
dated Managua, April 4th, 1935, to the Secretary-General. This letter which
deals with the Nicaraguan position with regard to various League of Nations
conventions, also contains the following paragraph:

"Finalmcnii~.cl Eii:iiut<~dI:(rortr. Perniiincntr.dc Jiiiti~.idInicrn;ici<inal.
del II de I>ir.i~~niIr.1920, suI'r~~t<xoloc firma del 16d~lpruplo mer
y ano; las Enmiendas al Estatuto rudactadas cn revisiondel mismo y anexas
al Protocolo suscrito en Ginebra el 14de Setiernbrede 1929,Io mismo que
el otro Protocolo cuyo objetivo fuéobtener la adhesion de los Estados
Unidos de Américaal Estatuto de la Corte; instmmentos todos que han
sido fimados por Nicaragua, se hallan actualmente sometidod al Congres0256 MILITARY AND PARAMILITARY ACTIVITIES

de la Republica para su ratificacion constitucionalv en cuanto se cumda
esta formalidad iendrécl gusto de remitir los resp~ctivosinstrumentos'de
ratificacion a la Sccrctaria de la Sociedad de las Naciones."

On May 6th, 1935,Mr. McKinnon Wood, writing on behalf of the Secretary-
General, rcfers to the paragraph quoted above in the followingterms:

"Le Secrétariat a prisbonne note que les instruments d'adhésionde la
Républiquede Nicaragua à la convention sur la traite des femmes et des
enpdnts,du 30 septembre 1921,et àla convention relative a la répressionde
la traite des femmes majeures, du II octobre 1933, lui seront adressés
prochainement, ainsi que les instruments de ratification sur la convention
pour faciliter la circulation internationale des films ayant un caractère
éducatif,signée à Genèvele II octobre 1933,sur le protocole de signature
du Statut de la Cour permanente de Justice internationale, du 16décembre
1920,et sur le protocole concernant la revision de ce Statut et le protocole
concernant i'adhésiondes Etats-Unis d'Amériqueau protocole de signature
du Statut de la Cour permanente de Justice internationale, signésàGenève
le 14septembre 1929."

The third document on the file is a cable from Managua under date of No-
vember 29th, 1939, receivedon November 30th, and which rcads as follows:

"Estatuto y Protocolo Corte Permanente Justicia Internacional La Haya ya
Fueron Ratificados Punto Enviarasele Opportunamente lnstrumento Rati-
ficacion. Relaciones."
On the same day, November 30th, Mr. McKinnon Wood acknowledges hy
letter the receipt of the above cable.

The file contains nothing more on this matter until, on August 4th, 1942,
Professor Manley O. Hudson writes a note to Mr. Sean Lester, then Acting
Secretary-General of the League of Nations, asking for exact information on the
ratification of the Court Protocol and Statute by Nicaragua. He mentions the
existence ofthe aforementioned telegram, adding:
"But you have not announced it, and 1wonder. Please help me."

On Scptember 15th, 1942,Mr. E. Giraud, on behalf of Mr. Lester, replies 10
Professor Hudson in the following terms:

"The position of Nicaragua in regard to theatute of the Court isas follo:s
Nicaragua signed without reservation the Court Protocol of December
16th. 1920.on Se~tember 14th. 1929and the ootional clause of Article 36
on ~eptem'ber24ih. 1929.~he'declaration accompanying the signature of
the above-mentioned clause wasdrafted as follows:

'On behalf of the Republic of Nicaragua, 1 recognise as compulsory
unconditionally the jurisdiction of the Permanent Court of International
Justice.'
We have not receivcdthe ratification necessary to complete the signature
of the Court Protocol and at the sametime to bring into forcethe obligations
concerning Article 36. But on November 29th, 1939,the Secretary-General
was informed by telegram that the Court Protocol was ratified by the
President of the Rcpublic of Nicaragua. We have however never received
the instrument of ratification itself, whiçh should have been sent to us.

Nicaragua is therefore not bound either by the Protocol or by the optional
clause. ANNI~XGSTO THE COUNTER-MEMORIAL 257

Pcrhaps you could Lake the necessary steps to have the instrument of
ratification sent to us."

On Septemher 16th, 1942, MI. Giraud, once more on hehalf of the Secretdry-
General, writes the following letter, this time to the Minister of Foreign Affairs
of Nicaragua :

"Par un télégrammeen date du 29 novembre 1939,vous avez bien voulu
me faire savoir aue le~rotocole de sienature du Statutde la Cour Dermanente
de Justice internationale (du 16 Gcembre 1920) avait étéritifié par le
résident de la Républiquedc Nicaragua et que l'instrument de ratification
serait envovéau ~ëcrétariat.
Or, je n'ai jamais reçu cet instrument de ratification dont le dép0t est
nécessairepour faire naitre efictivement l'obligation. Peut-étrecet instru-
ment s'est-ll perdu en cours de route.
J'ai tenu à attirer votre attention sur cette question."

This is the last document in the file in connection with the mdtter under
consideration.
In order to make quite certain thal the instrument of ratification hÿd not been
rïceived at the time and put in the safe without a relevant mention having been
inserted in the file, 1had a search made through the contents of the safe. This
search has no1 revealed the presence of the instrument of ratification under
referencc.
With reference to the two questions raised in thc third paragrdph of your
letter of Septemher 5th. 1955, 1therïfore feel thdt we may conclude as follows:

Que~tion A. From the tclegram received from the Foreign Minister of
Nicaragua,dated November 29th, 1919,it appears thaî the President of Nicaragua
had ratified the protocol of signature of the Statute of the Permanent Court of
International Justice. No mention is made of the ratification of the protocol
concerning the revision of the statutç.

QucsrionB. The instrument of ratification was never depositcd with the Leaguc
of Nations Secretariat.
Trusting that the ahove information answers your queries satisfactorily, 1have
the pleasure to remain,

Most sincerely yours.

(Sinned) A. PI~LT,
Director. ANNEXES TO THE COUNTIIR-ME.WORIAL 259

Series,1929,p. 283,and in the International Court of JusticeYearbook 1946-1947,
p. 210) is as follows:

"Au nom de la République deNicaragua. je déclare reconnaître conime
obligatoire et sans condition la juridiction de la Cour permanente de Justice
internationale.

Genève,le 24 septembre 1929.
T. F. MEUINA."

This is rendered into English as follows:

"On behalf of the Republic of Nicaragua, 1 recognize as compulsory
unconditionally the jurisdiction of the Permanent Court of International
Justice.

Geneva, September 24, 1929.
T. F. MEDINA."

This action was made the subject of a letter to thc Members of the League.
C.L.261.1929.V.. ofII October 1929.
II In forni. ihe ,lc.~l.~r~iiii:i, ndt uhxi ii purportcd IOhc; 11rl%)csdt bc~r
n conneciion uiih ait]pari oiihr. Stirtuicoi'ihvI'crm;inciiiCouri ol'Inicrnational
Ju\iicc. 'TheJcclar.ition a,as noi CITLI'I\Lt.h? tlmeil url rnadc. for ai ihai iimc
Nicaragua was not a Party 10the Statute of the Permanent Court of lnternational
Justice, and only Parties to the Statute may make such an obligation.
12. Ten years and two months after Nicaragua's action with reference to
becoming a signatory to the Statute of the Permanent Court of lnternational
Justice, the Nicaragua Government took certain action. Ori 29 November 1939,
it notified the Secrelary General of the League of Nations, by telegraph. of

Nicaragua's ratificationof the Protocol of Signature.
13. The telegram read as follows:
Secretario Sociedad Naciones Ciinebra Estatuto y Protocole Corte Perma-
nente Justicia Internacional La Haya ya fueron ratificados punto enviarasele
oportunamente instrument0 ratification - reiaciones.

The telegram, edited for purposes of information, was as follows:

Secretariai of the League of Nations Geneva. The Statute and Protocol or
the Permanent Court of lnternational Justice at The Hague were ratified.
Will send the instrument of ratification at first opportunity. Relations.
14. The occasion never arose on which the Nicaragua Government comniuni-

cated the ratification. Nothing kas been found in La Gaceta, Diario Official,the
Republic of Nicaragua; and the documents of the Leagiie of Nations yield
nothing.
15. In the Collection of Texts Governing the Jurisdiction of the Court, hurth
Edition, January 31, 1932 (Senes D, No. 6), p. 51, there is a reference Io thc
French t~ ~ ~ ~thine about the ratification is said. In Series E. No. 16. o. 331.
the las1report of the Permanent Court of International Justice,it was sa;d thai
the telegramannouncing the ratificationhad not been followedup. The stÿtement,
which bears no heading referring to Nicaragua, is as follows:

Protocol of Signature of the Statute of the Court.
Geneva, Decembcr 16th. 1920.
According to a telegram dated November 29th, 1939, addressed Io the260 MILITARY AND PARAUILITARY ACTIVITIES

League of Nations, Nicaragua had ratified the Protocol, and the instrument
of ratification was to follow. The latter however has not been deposited.

16. In the first Yearbook of the lnternational Court of Justice, 1946-1947,
p. 310, there is also a footnote on the question. The footnote reads as
follows:

r\cc<irrlingio ;i iclcgrdn J.iicd hoicnihcr ?<)iIi.1939. aJ<lresscd id ilic
Lcdguc oi I\'.iiions. '1i:drdgua had raiilied the Prorocc~l Signatiirr. 31ihc
Siaruie of the Permîncni Coiiri di Inicrn.iii<~naIJ~ti:c iDcccmhcr 16th.
1920).and the instrument of ratification was to follow. ~otification concern-
ing the deposit of the said instrument has not. however, been received in

the Registry.
17. The telegram of 29Novemher 1939mentioned a Protocol of the Permanent
Court of lnternational Justice; this was the name of the act under which the
Statute was launched. The recognition of the compulsory jurisdiction of the

Court was not even mentioned in the telegram. Nicaragua was not a Mernber of
the League of Nations at the time.
18. The telegram of 29 Novembcr 1939secms to have been the (illegible) step
taken in this direction by Nicaragua. The fact that the message to the Secretary
General of thc League of Nations was in the form of a telegram would scem to
prevent its entry into force, unless it is sulficient in itself. Thcre had heen no
mention of telegraph, or telegram, in previous negotiations with reference to the
Court. The use of the teleeraoh seemed to be due to the clause in the Treatv of
versailles, which is quot& in paragraph 5 of this memorandum. It is nit a
reneral rule of international intercourse that a telegram will suffice.
- 19. It would seem that more emphatic action than sending a telegram should
he taken to make Nicaragua a Party to the Statute of the Permanent Court of

lnternational Justice. It would be capable of becoming a Party to the second
paragraph of Article 36 of the original Court Statute, only if it were a Party to
the Statutc as a whole. Nicaragua seems to have heen conscious of this, for it is
to be noted that she mentioned that a ratikation would follow. At any rate, no
ratification had been receivedat the Secretariat of the League of Nations hy the
end of 1945. Nicaragua must, in this respect, have changed her mind. At any
rate, we can only act on what she did.
20. It is admitted that at the time of Nicaragua's action in 1939 - on
29 November 1939 - a large part of the world was engaged in, or on the eve
of, a world war. Yet, this would not excuse Nicaragua's failure to formaliïe
its action.
21. On 26 June 1945, the Nicaragua Government signed the Charter of the
United Nations. The Statute of the International Court of Justice, which follows

very closely the Statute of the Permanent Court of International Justice, was
includcd. On 6 September 1945,Nicaragua proceeded with the ratification of the
Charter, which became effective on 24 October 1945, when the Charter first
entered into force. Nicaraeua ..us hecame a Partv to the Statute of the
Intcrnaiiiin~l Court of Justice. Shr.has no! 1;thr.nan). siiion iviih rclbrencc I<Ia
Jcilxraiion under Article 36. par.igr..h ?. oi ihc Si.iiiite oi the Inicrn:iiion;il
Court of Justice.
22. Under the Statute of the Permanent Court of lnternational Justicc, the
Secretary General of the League of Nations had no control ovcr a declaration
which wasmade under Article 36, paragraph 2, of the Statute. Under the Statute
of the lnternational Court of Justice, a declaration made under Article 36,
paragraph 2, of the Statute must be deposited with the Secretary Gencral of the ANNEXES TO THE COUNTER-MEMORIAI, 261

United Nations. It would seem,thercforc, that there can be no question of the
ratification of the declaration under Article 36, paragraph 2, of the Statute of
the lnternational Court of Justice; al least nothing has been published by the
Secretariat.
23. It ivould seem thai under the Statute of the lnternational Court of Justice,
the Secretary General of the United Nations has a Iarger power than he had
under the Statute of the Permanent Court of lnternational Justice: but the

ratification of the declaration seemed necessary to the inen who giided the
Permanent Court of lntcrnational Justice. They required the declaration, and it
seems to have heen understood al al1limes th& il requircd a ratification which
would pass anyone's muster.
24. It must be admitted, however, that Nicaragua kas continued to figure
among the States which have accepted the obligations of Article 36, paragraph
2, of the Statute of thc Permanent Court of lnternational Justice, and hence of
the lnternational Court of Justice. Tcisome entent, paragrliph 5 of Article 36 of
the Statute of the International Court or Justice, seemsto be the reason for this.
It is not due to action of the League of Nations Secretariat; that Secretziriat
protected itself by publishing a footnote on the events of 29 November 1939,
and the things which followed it. For the most part, it is due to the fact that a
Secretariat is in the habit of followine what a orecedine Secretariat had done.
and it cannot stop to see whether whaï has been'done ocght to have beendone.
Perhaps this habit of following what a predecessor kas done, without the

predecessor'sfootnote is responsible for the lack of precision.
25. The writer has receivcd a letter dated 15 September 1942and written by
M. EmilGiraud of the Lcague ofNations Secretariat on bchalf of the Secretariat,
which, after a review of the history of the matter up to that date, stated that
Nicaragua is therefore not bound cither by the Protocol [of Signature] or
by the Optional Clause.

26. On 26 June 1945,the representatives of Honduras signed the Charter of
the United Nations, which was ratified on 17December 1945by Honduras. On
2 February 1948,a declaration was made recognizingthe compulsory jurisdiction
of the International Court of Justice; this was not subject to ratification. Thc
tcxt of the declaration as deposited with the Secretary General of the United
Nations on 10 February 1948is as follows:

El Poder Ejecutivode la Republica de Honduras, dcbidamente autorizado
por el Congreso Nacional en Decreto Ntimero Diez de diecinueve de
diciembre de niil novecientos cuarenta y siete, y de conformidad con el
inciso dos del Articulo treinta y seis del Estatuto de la Corte Internacional
de Justicia, hace la siguiente
Declaracion

Reconoce como obligatoria ipsofi~croy sin convenio especial, respect0 a
cualquier otro Estado que acepte IJ misma obligacion, la jurisdicion de la
Cortc lnternscional de Justicia en todas las controversias de orden juridico
que versen sobre:

a) la interprctacion de un tratado;
b) cualquier cuestion de derecho internacional;
c) la existencia de todo hecho que, si fuere establecido, constituiria
violacion de und obligacion internacional;
d) la naturaleza O extension de la reparacion que ha de hacerse por el
quebrantamiento de una ohligaci6n internacional.262 MI1,ITARY AND PAMMILITARY ACTIVITIBS

Esta declaracion SC hace bdjo condicion de reciprocidad y por un término
dc seis anos contados desde la fecha en que se haga su deposito en la
Secretaria General de las Naciones Unidas.

Palacio Nacional, Tegucigalpa, D.C., dos de febrero de mil novecientos

cuarenta y ocho.

El Presidente de la Reptiblica: El Ministro dc Ralaciones Exteriores:
(Firmado) Tiburcio Cnni~s. (Firmado) Silverio LAINES.
In English translation, the declaration was as follows:

The Executivc of thc Kcpublic of Honduras, with due authoriration from
the National Congress granted by Decrcc Number Ten of the nineteenth of
December nineteen hundred and forty-seven, and in conformity with para-
graph two of Article ihirty-six of the Statute of the lnternational Court
of Justice,

Hereby declares :
That it recognizesas compulsory ipsofacio and without specialagreement,
in relation to any other State accepting thesame obligation, the jurisdiction

of the International Court of Justice inal1legal disputes concerning :
(a) the interpretation of a tredty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a
breach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of
an international obligation.

This declaration is made on condition of reciprocity and for a period of
six years from the date of the deposit of the declaration with the Secretary-
General of the United Nations.

National Palace, Tegucigalpa, D.C., the second of February, nineteen
hundred and forty-eight.

President of the Republic: Minister for External Relations:
(Signed) Tiburcio CAR~AA S. (Signcd) Silverio LAINES.

27. Admitting the elfect of a lapse of time on the declaration, a declaration
of 19 April 1954 was deposited hy Honduras with the Secretariat of thc United
Nations, on 24 May 1954. No ratification of this document was necessary. The
text of this declaration was as follows:

El Poder Ejecutivo de la Republica de Honduras debidamente autorisado
uor el Conrreso Nacional en Decreto Ntimero Setenta y siete de trece de
tebrero demil novecientos cincuenta y cuatro. para que se renueva la
Declaracion a que se refiere el inciso dos del Articulo treinla y seis del
Estatuto de la Corte lnternacional de Justicia, por la presente

UECLARA :
Que renueva la Declaracion que hiciera el dos de febrero de mil novccientos
cuarenta y ocho, reconociendo como obligatoria ipsofacto y sin convenio
especial, respecto a cualquier otro Estado que acepte la misma obligation,
lajurisdiccion de la Corte lnternacional de Justicia en todas las controversias

de orden juridico que vcrsen sobre: ANNEXES TO THE COUN711R-MEMORIAL 263

a. la interpretacion de un tratcido;
b. cualquier cuestion de dercclio internacional;
c. la existencia de todo heche que, si fuera establecido, constituiria
violacion de una obligation internacional;
d. la naturaleza y extension de la rcparacion que ha de hacerse por el
auebrantainicnto de una ohlieacion internacional.

Esla reno\3ciiiii se hacc b~joic>nilisiOndc reciproçidxi y por tr'riiiini~ile
xi5 3nus renovables pgir 1:iciia recon<lucciOn.~.ont;iJoi ~IçzJe 13 lccha en
que je h8g.i \ilJCpoiiio çn IJ Sccrcilrri~Cencral iIc 13sSacioncs Cnidli,.

Palacio Nacional, Tegucigalpa, D.C., diecinueve de ahril de mil no-
vecientos cincuenta y cuatro.

(/) Juan Manuel Gn~viis.

El Secretario de Estado en el Despacho
de Relaciones Exteriores,
(JJ J. E. VALBNZUBI.A.

The declaration was. in English translation, in these terms:
The Exccutivc Power of the Republic of Honduras, having been duly
authorized by the National Congress under Decree No. 77 of 13 February

1954,to renew the Declaration referred 10 in Article 36 (2) of the Statute
of the International Court of Justice,
Herehy decltares:

That it renews thc Declaration which il made on 2 February 1948,
recognizing as compulsory ipso jucfo and without special agreement, in
relation to any other State accepting the same obligation, thejurisdiction of
the Court in al1legal disputes concerning:
a. the interpretation OSa treaiy ;
b. any question of international law;

c. the exi~ ~ ~e of anv f,ct which. if established. would constitute a
breach of an international obligation;
d. the nature and extent of the reparation to he made for the brcach of
an international obligation.
This declaration of renewal is made on condition of reciprocity, for a
period of six ycars, renewable by tacit reconduction, from the date on which
it is deposited with the Sccretary-Gencral of the United Nations.

National Palaçc, Tegucigalpa, D.C., 19April 1954.

(Si~ned) Juan Manuel GALVIIS.
(Signed) J. E. VALENZUELA,

Sccretary of State for Foreign Affairs.
28. The declaration of Honduras of 1954 is undoubtedly the one which is
binding upon it tokay. vis-a-visStates that have accepted a similar obligation.
29. It will be noted that it renews the declaration of 1948,making a change

in the text. In paragraph (d) of 2 Fehruary 1948, itreads as follows:
(d) the nature or entent of the reparation to be made for the breach of an
international obligation.261 .MII.ITARYAND PARAMILITARY ACTIVITIFA

In paragraph d. of 19April 1954, it reads as follows:

d. the nature and extent of the reparation to be made for the breach of an
international ohligation.

It seems douhtful whether the Court will lay any stress upon this change.
30. Article 36,paragraph 5, of the Statute of the International Court of Justice
declares that deciarations made under Article 36 of the Statute of the Perma-
nent Court of lnternational Justice shall be deerned, as between the Parties of
the present Statute, to he acceptance of the compulsory jurisdiction of the Inter-
national Court of Justice.

31. The iurisdict~on~ ~ the International Court of Justice is~co~o~ ~orv
ipso facrn and without special agreement. It relates to another State which has
accepted the same obliaation. This is the iurisdiction of the lnternational Court
of ~usticein the legal d:isputewhich is invblved.
32. The jurisdiction, in fact, calls for the interpretation of a treaty; it involves

a question of the interpretation of the Treaty for the Demarcation of the
Boundarics between Honduras and Nicaragua signed at Tegucigalpa on Octoher
7, 1894, especially of Articles III, IV, and V of the Treaty. The dispute also
relates to any question of international law, for it is a dispute as to whether
Nicaragua is bound hy the international law which applies to Honduras and the
other nations which are parties to Article 36, paragraph 2, of the Statute. The

dispute also relates to the existence of any fact which, if established, would
constitute a hreach of international ohligation, for it proposes to estahlish an
international obligation which Nicaragua is in fact disregarding. It may be
confidently relied upon that the dispute will relate to "the nature or extent", or
to "the nature and exient", of the reparation to be made for the breach of an
international obligation by Nicaragua.
33. ln accordance with the first orovision in Article 38 of the Statute of the
~ ~
Intcrnatii>nalC'surt ,iiJuiiicc. ii h~i the lunition tu decidc in ilca~rd<incciiith
intcrn.iti.>nal 13~. SUC^ di\putes ilr itrc~uhrn~tt~.J 10 II.The Je-laration is "in
relation 10 anv other Statè acceoti.e the same oblieation". 11will be a disDute
:oti<r.rtiiiig the c\ccuti~iiur an arhitral ,t\rar.l.~nd itivill C.ilgr.~~u:illy~ndcr
(il)-(JJoi the se:onJ parsgr~ph of Ar1i:lc 36 oi ihr. Sti~tul01' thc Intcrn:itional

Court of Justice.
34. It must he borne in mind that the International Court of Justice has not
determined whether there is any degree to which the Nicaragua Government is
hound by the declaration of 24 September 1929, as to the lnternational Court
of Justice. Without such determination, it is impossible to say definitely whether
or no1 the Government of Honduras may proceed against the Government of

Nicaragua.
35. Il would seem ~ossihle that sorne other iurisdiction mav be envisaeed in
this connection; for example, the Parties mighi agree upon t6e dispute9sbeing
handled by a Tribunal ad hoc.
36. Il is also possible that the action should be begun against Nicaragua in
soite of the fact that that State is not bound bv the sccond oaraeraoh of

article 36 of the Statute of the lnternational Court of Justice. If ~icargua later
agrees to the jurisdiction, the situation will he much the same as if it had agreed
to a special agreement in advance of the case. Though a State is not hound by
the jurisdictional clause of Article 36, it may decide to defend ils case hefore
the Court.
37. In 1954two actions were hegun by the United States against Hungary
and the Soviet Union, and in 1956two actions were begun by the United States

against Czechoslovakia and the Soviet Union; and in 1955, two actions were ANNEXESTO TITE COUNTER-MEMORIAL 265

begun by the United Kingdom against Argeniina and Chile. In al1of these cases.
the resvondent State failed to agree Io the iurisdiction, and the Court could no1
entertain it.
38. It might be possible also for Hondurds to persuade the General Assembly
of the United Nations to confer the power to request an opinion on somc body
connected with the American States. In this case, il would be more prohiblc
thar the question al issue would be understood by the organs of the American
States.
39. The Inicrnational Court of Justice will no1 take a decision pending the
submission of the question of ils jurisdiction. This would require the actioii of

two Parties.
40. It may be for other people to have iheir ideas as io what the Court will
decide. The writer cannot speak for them; but the writer would not be surprised
if the Court should say that Nicaragua is noi bound to submit to ilsjunsdiction. MILITARY AND PARAMILITARY ACTlVlTllS

Annex38

Dtvis~o~ OP THE HARVARL DAWSCHGQL LIBRARY)

Your Excellency,

1 1 ;lm conlri>nted with ;irlilficuliy in connecticin u,ith the opiiiion u,hir.h 1
am u,riting for -ou iin the tlonduras-Nicaragua question. WiII)<luplca,e let iiir.
r'xr>l,iiltu viiu. 2nd if sou c:in scnd mr.an\.hin~-un il. 1helir'\s itmi.ht make
it Possible foi us to comblete thc work.
2. On 24 September 1929,Nicaragua accepted the Article 36, paragraph 2, by
making the following declaration :

On hehalf of the Repuhlic of Nicaragua, 1 recognize as compulsory
unconditionally the jurisdiction of the Permanent Court of International
Justice.

Geneva, September 24, 1929. (Signed) T. F. MEIIINA.

At this date, Nicaragua had no( signed the Protocol of Signature of the Permanent

Court of lnternational Justice, and the action of 24 September 1929 was not
immediately effective hecause Nicaragua had no1 ratified the Protocol of Sig-
nature.
3. It did not take this action until on 29 November 1939,when the Nicaraguan
Government notified the Secretarv General of the Leaeue of Nations hv te.eerau .
of ~icaragua'sratification of thé Protocol of signatire; the telegram does not
seem to have mentioned the acceptance of compulsory jurisdiction, though 1am
not certain of this. Of course. ~icaraeua shouid have~senta ratification of the
Protocol and the Statute of the ~ourtrl can't find that they did so.
4. Nicaragua is still listed as a State which is one of those which has signed

the Protocol of compulsory jurisdiction. Sed quaere.
5. 1 must confess that the prohlem has interest. A telegraph by Nicaragua
would not be a way for them IO add Io the legal consequences of the action of
1929.So that from September 1929 10 the signature of the Charter of the United
Nations, 1douht whether Nicaragua did anything 10 remedy the situation. She
certainly was not a signatory.
6. However, on 26 June 1945, Nicaragua signed the Charter of the United
Nations, and ratified it on 6 September 1945; it became cffcctiveon 24 October
1945.This did not, in any way, afict the compulsory jurisdiction.
7. The problcm that worries me is, can Nicaragua he hound hy the clause
today? Can you send me any documents which would enlighten this action?

(Signed) Manley O. HUDSON. Annex 39

The American Treaty on Pacific Settlement (the "Pact of Bogota"), 30
U.N.T.S. 55, is one of the basic instruments of the Organization of American
States. It commits its parties, in the event that a controversy arises among them
which cannot be settled through ordinary diplomatic channels, "ta use the
procedures estahlished in the prescnt Treaty, in the manner and under the
conditions provided . . .or, alternatively, such special procedures as, in their
opinion, will permit them to arrive al a solution". lbid., Article 2. The Pacr of
Bogoti requires peaceful settlement generally, but it does not require the selection
of anv ~articular method to achieve that result. Parties to the Pact are no1

required to accept the jurisdiction of the lnternational Court of Justice encept
under particular circumstances. And. likc other treaties, the Pact creates no rights
or obligations with respect to non-parties.
The Pact describes four oeaceful settlement orocedures. One of these is recourse
to the lnternational couri of Justice. ~artiesma~ agree at any time to suhmit a
dispute between them to the Court, but compulsory jurisdiction is only a "con-
tingent'' obligation, arising only in particular circumstances.
Articles 31 and 32 together definc the obligation to accept the Court's juris-
diction. Article 31 commits the parties to accept the Court's campulsory jurisdic-
tion. Article 31 also descnbes the categories of disputes that may be hrought

hefore the Court; these are coextensive with the categories in Article 36 (2) of
the Statute of the Court. Article 32 desçribes the circumslances under which the
Court's compulsory jurisdiction ma). be invoked. Article 32 States:
" When the conciliation procedure previously established in the present

Treaty or hy agreementof thepirrtiesdoes not lead tu a solution,and thesaid
parties huve not ugreed on an urbitrulprocedure, either of them shall be
entitled to have recourse to the lnternational Court of Justice in the manner
prescribed in Article 40 of the Statute thereof. The Court shall have
compulsory jurisdiction in accordance with Article 36, paragraph 1, of the
said Statutc." (Italics added.)

As aptly summarized hy the first Secretary General of the OAS, this article
establishes anly a "contingent obligatory step". Lleras, Report on the Ninth
International Conference of amer ira,^ States, Annuls <?fthe Organizarion of
AmericunButes, Vol. 1, No. 1, at p. 48 (1949)'.

'SecrctaryGeneral Lieras describedthe operation of the Pact in this respectin the
lollowinglems:

"The orocedures are not eiven in thc Treatv in anv ordçr of oreference.and the
p;nd?rsohlig.it~~io i.tili/s ~llthc pioccd~rer.liiiiiglit o;;ai<,ci.i~iipltli;ifr~i<
iliz rtrric~ldirrupii~.iJlrsi ncg..lixiun> in;idiirn ihcrr.miphi hc :igri.:mi~nl
1.whmit ihc dimute 1.)arhlirilinnor 1%)ihs Intcrn~ilr~nsl ourt 01JUI~~LC ~%.lth~)ul
resarting to conc'iliationorgood ollicesand mediation.But shouldthe co"ciliatory
stageparswithoutproducingresults - eitherbecauseoneof the panier wasopposed
or because no agreementcould be rcached - then judicial procedure becornes
compulsory ifone of the partiesappealsto the InternationalCoun of Justice."268 MlLLTARY AND PARAMI1.1TARY ACTlVlTlW

Nicaragua asserts that Article 31 of the Pact constitutes a declaration under
Article 36 (2) of the Statute of the Court. Nicaraguan Memorial, para. 93, n. 2
at p. 52. But it is apparent from the form of the document that Articles 31 and
32 of the Pact are intended to be a treaty creating jurisdiction under Article
36 (1) of the Court's Statute, and not to be a declaration under Article 36 (2).
Declarations under Article 36 (2) of this Court's Statute are always unilateral,
and, in accordance with Article 36 (4) of the Statute, must he deposited with the
Secretary-General of the United Nations. The Pact of Bogoii, however, was a

multilateral treaty and was not deposited with the Secretary-General'. Articles
52 and 57 of the Pact name the Pan American Union depositary for the treaty
and require it only to "register" the treaty with the Secretariat of the United
Nations. There is no provision for deposit of the treaty as a declaration, nor was
it deposited2.
Furthermore, Article 31 could not operate as an Article 36 (2) declaration
hecause it does not entail "the same obligation" as such a declaration. While the

text of Article 31 generally follows that of Article 36 (2), other articles in the
Pact render it a significantly more limited obligation. Firsi, as already discussed,
the obligation under the Pact to submit 10 the Court's compulsory jurisdiction
is, pursuant to Article 32, contingent upon the exhaustion of other methods of
peaceful settlement provided for in the Pact.
Second, the enforcement procedure stated in Article 50 of the Pact is quite
differcnt from that under the United Nations Charter, which governs Article

reported,:i pp. 48-49.The United States Delegation 10 the BogotaCanfcrcncesimilarly

"ln conformity with the earlicr articles of the trcaty, the [ ] provisions [for
compulsoryjudicialsetilementand arbitrationcontainedin chaptersfour and fivedo
not place ihe parties under an immcdiatcobligation to submit cases to thesc
proccdures."
Reporr O/ rlie Deleguiion O/ ilte Uniied Sroies io rhe Ninlh Iniernorional Con/erence O/
American Slares, al p.47(1948).
' That Article31 of the Pact establinhcsthc Pact as a trcaty for purposesof Articlc
36(1) of thc Statuteof the Court isalso reflcctedin theminutesof the scssiansat Bagota
whcrcihc rapporteurof the draftingcommitteestated (in translation):
"'l'hi.irti;liiIihcJrdt [uhi;h hïrarn: ,\rti:lc 31Jitcli,pr ihcpriiici1,;oiitaiiir.J
in p~cigraph Iof ,\rtiilr16 of the Si~iutc<>fihr.(:<i~riTh21ariiilr.. ihi.di.Ii.g~ti>
uell rcmcmber. .r.,vrthai. 'lhe iurird~ciio<>iihcCourt iorni>ri,r\slliÿ*c> whichihr
parties referto it. ..'; and this articleof the draft says ihat thc High Contracting
Parties agree to submit to the InternationalCourt of Justiceal1 cases which arisc
amongthem."
("13slearticulodel proycetodesarrollael principiocontenido en el ordinal I del
Articulo36 delEstatutode la Cortc. Esc artlculo,comoIo rccuerdanbienlos sefiores
delcgados,dicc que, 'La compctcnciade la Cartc sc exticndc a todos los litigiasquc
las partes le sometan. . .';y este articula del proyccto dicc quc las Altas Partes
Contralanies se abligan a somctcr a laCortc lntcrnacionaldcJustickatodos los litigios
que surfan entreellas.")

NovenaConjerencioInrernocionolAmericunu.Aclus y documenros. Vol.IV,at 157(1948).
Tthe formulaby whichthc particsacceptjurisdiction no1ainnaccordancewith the lems of the
Pact,includingthe termrof Articlc36 (2) and pursuantto Article36(1)of the Staluteof
the Court.
Thc draften of the Pact wercawarc that acceptance of compulsory jurisdictiob ny
declaration pursuant to Articlc36 (2) rcquiredihat a specialprocedurebe followedand
chose no1 10 providcforil. See,forexample. Novenn Con/erenciuInicrnocionalAmericono.
Aciosy doeumenros, Vol.IV,al 164(1948).36 (2) declarations. Under Article 94 of the United Nations Charter, a party to
a case hefore the Court may have immediate recourse to the Security Council
if another party fails to perform obligations under a judgment rendered by
the Court. Article 50 of the Pact, bowever, restricts the right to go to the
Security Council by providing an intermediate step in the form of a Meeting
of Consultation of Ministers of Foreign ARairs "to agree upon appropriate
measures to ensure the fulfillment of the judicial decision or arbitral award".
Article 32 and Article 50 of the Pact thus both entail material departures from
the obligation entailed in Article 36 (2) of the Statute of the Court and would
prevent Article 31 of the Pact from heing treated as a declaration made under
Article 36 (2) of the Statute, even if the drafters had intended il to be a
declaration.
Contrary to Nicaragua's assertion, the Registrar of this Court has treated the
Pact as not entailing declarations under Article 36 (2). When the Pact entered
into force, it was listed in Part II of Chapter X of the 1947-1948 Yearbook:
"instruments forthe pacificsettlement of disputes and concerning thejurisdiction
of the Court." The part was subdivided, and the Pact was distinguished from
declarations made under Article 36 (2). It was listed nor in Subpart A
("Acceptdnce of the compulsory jurisdiction of the Court in pursuance of Article
36 (2) of the Statute") but in Subpart B ("Other Instruments"). The Registrar
found the Pact to be an instniment "whose main purpose [was] the pacific
settlement of disputes", Yearbook 1948.1949, p. 131,but not entailing an accept-
ance of compulsory jurisdiction pursuant to Article 36 (2). 11was not listed in

Part III with the other Article 36 (1) treaties because its "main purpose" was
dispute resolution: other Article 36 (1) agreements had other purposes, and only
incidentally contained compromissory clauses referring to the Court. The Court's
currcnt Yearbook 1982-1983 (p. 92) continues to lis1the Pact among "other in-
struments" and not among Article 36 (2) declarations.
Nicaragua also asserts that Article 31 of the Pact of Bogoti "is effective
heyond the High Contracting Parties to the Treaiy". Nicaraguan Memorial,
para. 93, n. 2 at p. 52. Aceording to Nicaragua, that Article refers to disputes
between the parties and "any other American State", whether party or non-
party. In the Spanish and English texts of Article 31, the key phrase is as
follows:

". . .las Allas Paries Conrrafanres declaran que reconocen respecto a cual-
quier otro Estado Americano como obligatoria ipsoJarro, . . .la jurisdic-
ci6n de la [ 1 Corte [Internacional de Justiciaj en todas las controversias
de orden jundico que surjan enire ellas .. .(italics added)."
". . rhe Hirh Conrrnclinn Parties declare that thev reco~-.ze.in relation to
any other .&nerican ta&, the jurisdiction of the.[lnternational] Court [of
Justice] as compulsory ipsofacto, . .., in al1disputes of a juridical nature
that ariseamong ihem. .~.."

Disputes that arise "aniong them" refers to disputes that arise among the High
Contracting Parties. This isevident in the Spanish tex1because of the agreement
hetween "entre ellas" ("among them") and "Las Altas Partes" (the High
Parties), both of which use the femininc plural form. This grammatical
agreement between "ellas" and its antecedent, "Las Altas Partes", is apparent
also in the Portuguese and French texts of the Treaty. To include a dispute
hetween a party and a non-party American State ("Estado Americano"), as
Nicaragua argues, the masculine plural pronoun ("ellos") would have been
required. The text is amhiguous only in the English language, where there is270 MILITARYAND PARAMILITARY ACTlVlTlES

no agreement of gender hetween pronouns and antecedents. The Ianguage and
rrammar of the other texts make it clear that Article 31 only applies to disputes
&nong parties Io the Treaty '

' rhc prr.,:ncc oTtIic plirasr",\nieris.iiiSiatc" ~ii:~)bc c\plained .ir pr;iit~?~lnultir
b) thc fa.[ tliat theJr.li.g.~tc~ai U~goti. \\ho h.id ~>,cnibl;J IO urdi 4 n~nibcr riTb~ri;
inrtrunisnt, Tor 4 ncu Or~;ioi,.iiiun ul .\nicri;.inS1alc.r.o.ncctcJ thxi XIIm-mbcrr JI tlic
Organiration would becoke parties 10 al1the basic in;truments. The phrase "American
State" was thus considered inlcrchangeable with "party" to anyof these insinirncnts,
including the Pact of Bogata. ANNBXllS TO THE COUNTIlR-MEMORIAI.

Annex40

TREAT 0'FRIENDSHICOMMI!R ANENAVIGXI.IBENWEENNICARAGU AAI)
THEUNITE DTATEOSAMIIRICSIGNEVAT MANAGUA21JANUAR 1Y56,
ENTEREI~INTO FOR24MAY 1958.9 tiST449; TIAS4024; 367 UNTS3 MlLlTARYAND PARAMILITARY ACTlVlTlES

Annex41

COMMI~E ON FOREIGN RELATIONE S, ECWIVREEPORT NUMUE9 R, COMMERCIAI.
'ïns~~lsWITII IRANNICARAGU AND THE NETHERLAND USS.SENATE 8,4~~

Mn. GEORGE fr,om the Committee on Foreign Relations, submitted the following

REPORT

[To accompany Executive E, Executive G, and Executive H, 84th Congress,
2d session]

The Committee on Foreign Relations, having had under consideration the
treaties listed below, recommends that the Senate give its advice and consent to
their ratification :

1. Treaty of Amity, Economic Relations, and Consular Rights between
the United States of Amenca and Iran, signed at Tehrÿn on August 15,
1955(Ex. E, 84th Cong., 2d sess.);
2. Treaty of Friendship, Commerce, and Navigation with the Republic
of Nicaragua. and a orotocol relatine ther-to. sieneda- Manaeua on Januarv
21, 1956 EX G,'84ih Cong., 2d se&.); and'
3. Treaty of Friendship, Commerce, and Navigation between the United
States of America and the Kingdorn of the Netherlands, together with a
protocol and an exchange of notes relating thereto, signed at The Hague on
March 27, 1956(Ex. H, 84th Cong., 2d sess.).

MAIN PURPOSE

The obiective ofthese treaties is to establish a comorehensive reci~rocal basis
for the protection of Amencan commerce and citizens, and their business and
other interests abroad. To this end they provide either national or most-favored-
nation treatment with respect to entry, travel and residence, basic personal
freedoms, guaranties with respect to property rights, the conduct and control of
business enterprises, taxation, exchange restrictions, the exchange of goods, and
navigation. The treaty with Iran, in addition, has broad provisions concerning
the privileges and immunities of consular officerssuch as are usually found in
more detailed form in consular conventions.
The treaties with Nicaragua and the Netherlands follow in practically al1
respects the provisions of previous postwar commercialtrcaties, the most recent
of which, a treaty with the Federal Republic of Germany, was approved by the
Senate on July 27, 1955,by a vote of 83 to O.The lranian treaty is somewhat
more general and compares closely with the treaty of amity and economic
relations with Eth.oo.a..a~oroved bv the Senate Julv 21. 1954.bv a vote of 86
IO 1.The pro\i\i<>n\of ihc ihrer. IrCrirrfurthir summarr/ed and discussr.d.
p.irtiiuldrl) in lhc ri\pin>rlitclilhc) dillir irom i)thcr poiluar ~on1tiiirc1;ll
Ïreaties, inother sections of this report. ANNP'XIS TO TEIECOUNTIIR-MEMORIAL 273

BACKGROUND AND COMMITTBE ACTION
Thesc are the 13th, 14th and 15th treaties of friendship, commerce, and

navigation entered into since World War II. They are a part of a continuing
program of this Government to hring earlier treaties up to date and nego-
tiate new ones with nations with which the United States does not have such
treaties.
The Iran treaty replaces two provisional agreements of 1928.The Nicaraguan
treaty replaces one of 1867 which was terminaied in 1902. The Netherlands
treaty replaces a convention of 1852and an agreement on trademarks of 1883.
The Idtest of these three treaties was received by the Senate on May 7, 1956.
During the time that thcy have been pending before the Foreign Relations
Committee, the committee received no indication of opposition to their
provisions.

On July 3, 1956,the committee heard Thorsten V. Kalijarvi, Deputy Assistant
Secretary of State, on the three commercial treaties. Although this hearing was
in executivesession, it has been printed for the information of the Senate along
with the additional information requested at that lime and supporting statements
received by the committee (rom the American Arbitration Association and the
Bar Association of the ciiy of New York.
At the conclusion of the hearing on July 3, 1956, the committee voted to
report the treaties favorably to the Senate for action thereon.

SUMMAUY OP THE TRBATYWITIt NICAPAGUA
Under article 1each party agrees 10accord equitable treatment to the persons,
property, enterprises, and other interests of nationals and companies of the
other party.
Article II provides for entry, residence, travel, religiousfreedom, and the right

to gather and disseminate information and to communicate with other persons,
suhject to necessary measures to maintain public order and protect the public
health, morals, and safety.
Article II1 provides for the treatment of nationals of either party when taken
into custody by the other.
Article IV extends the annlicable workmen's comoensation and social-securitv
henefits of one party to nationals of the other withii ils terrilories.
By article V national and most-favored-nation treatment is assured for access
to courts and administrative trihunals.
Article VI guarantees property rights against unreasonablc scarches and
seizures. If any property is expropriated for public purposes or reasons of social
utilityit shall be compcnsated for promptly and fairly.

The right of nationals of one party to do business in the territory of the other
party is set forth in article Vil, subject to limitations which each party reserves
to itself on public utilities, shipbuilding, air or water transport, banking, or the
exploitation of land or other natural resources.
Articles Vlll and 1X cover the rights to employ accounvants, executive
personnel, attorneys, agents, and so forth, to engage in scientific,educational,
religious, and philanthropie activities on the basis of national treatment, to lease
land and buildings and othcr immovable property, to dispose of inheritances
which by reason of alienagecannot he retained, and to own, possessand dispose
of personal property.
Articlc X concerns patents and trademarks and provides for cooperation in274 MLITARY AND PARAMILITARYACTIVITIES

furthering the interchange and use of scientificand technical knowledge, particu-
larly in the interests of "increasing productivity and improving standards
of living".
Article XI guarantees national and most-favored-nation treatment regarding
taxation except for reserved rights to -

(a) Extend specific advantages regarding taxes, fees, and charges to
nationals, residents, and companies of other countries on a basis of
reciprocity ;
(b) Accord special tax advantages hy virtue of agreements for the

avoidance of double taxation or the mutual ~rotection of revenue: and
fc Apply spccial prcitirion, in ~illiiwingio niinrsiidcnts eiïnipiions ol';i
persondl nature in ci~nne;lion w~thincornt dnd inhcritaiice i;i.xcs.

Article XII concerns exchanee restrictions and commits the oarties to im~ose
thçm only ii,hen ncce>nlr), uiihout di,criminxtion, ;in* subjcct Io pro\,ision>I;I~
wiihdrdwdl of certain caicpories oi forcign c.fchangs
Article Xlll accords most-favored-naiion treatment to commercial travelers.
their samoles. and the takine of orders.
~rticle; XI'Vand XV pro;ide most-favored-nation treatment hy one party to
the products of the other party. This shall not applv. however. to products of

national fisheries.advantaeës accorded to adiacenico;ntries in order'to facilitate
frontier trafic, or to ad;ntages obtained .throngh memhership in a customs
union or free trade area. Prompt publication of customs laws and regulations
and an appeals procedure are also specified.
National and most-favored-nation treatment is ~rovid.d ~nde~ ~rti~ ~ X~ ~ ~ ~ ~ ~~ -,
each party in matters aiïecting interna1 taxation, sale, distribution, storage, and
use of products of the other. The article also defines "coiiee" to desimate the
coiïee bean or consumahle preparations made from the coiïee hean-and the
parties agree to continue present policies designed to prevent the commercial

usage of that term in any deceptive manner.
Articles XVll and XVlll deal with Government corporations or enterprises
and monopolies and insure competitive equality with private enterprise.
Articles XIX and XX concern freedom of navigation and freedom of transit.
Article XXI contains the usual exceptions relating to the import of gold and
silver, to fissionahle materials, to trafic in arrns, ammunition and implements of
war and to measures for collective or individual self-defense. An additional

exception is made to cover any special benefits or advantages which Nicaragua
mav accord to other Central American Reoublics as a result of the creation of
xnintcgratcd Central Amcrican regional cconomic orpnuniion.
Art~clcXXll coniains Jsiiniiion,: article XXlll tcrrtiorial appl,c;iilun, article
XXlV consuliatiun 2nd ssttlsmcnt of disputes: 2nd :iriicle YXV duration. whish
is set al 10 years and thereafter unless denounced by one party after I year's
written notice.
The protocol elaborates or further defines certain provisions of the treaty.

............................

MATTERS CONSIDERBD BY THE COMMITTEE

............................

Economicinteyrarion or union. - The committee took note of provisions in ANNEXF.~ TO THE COUNTER-MEMORIAL 275

the treaties with Nicaraeua and the Netherlands desiened to enable these
countries to become members of regional economic groupings, members of which
would accord to each other more favorable treatment in certain matters than

thev would to nonmembers. Althoueh -he ~rovisions of the two treaties diKer
from eaih ~ihcr, thcir gencrlilpurpose isIo rrlc.ix. Nie3r3gu.i.andthe Ncihcrlaiid*
lrom ihr ohligaii<)nio acci>rdtnc I;niird Siaics mosi-iai,i~rcd-naiion irniiincnt
with respect Cothose matiers in the eveni ihat such economic integration or
union takes place withintheir respective regions. In the case of the Netherlands,
the United States would, for its part, be released from the obligation to accord
the Netherlands most-favored-nation treatment in those rcsr>ects. MILITARY AND PARAMILITARYACTlVlTlES

Annex42

~NTELLIGENCB AUTHORIZATIA OCNTFOR FISCAL YEAR1984,PUBLIC LAW98-215
$109.(A), DECEMBE9R , 1983(EXCERPTS)

An Act to authorize a.. .nriations for fiscal vear 1984 for in-ellieence and
iniell1gençc.-rel3ieJ~ciii~iihc UniicJ Si.irc>Cioicrnmcni. fiir ihç Inielligcn~c
C<>mrnuniisSt;iif. for ihc Ccnir;il Inir.IIi~enceAg:iicy Kciirenieni and I>is.ibilii)
System, and for other purposes

Be itenocred by the Senoreund flouseof Represenrarivesf ihe UnitedSiares
of Americain Conares assembled T.hat this Act mav be cited as the "lntelli~ence
~uthorization cif forFiscal Year 1984".

TlTLE 1 - INTELLIGENCE ACTlVlTlES

AUTHORIZATION OF APPROPRIATIONS
SEC.101. Funds are hereby authorized to be appropriated for fiscalyear 1984
for the conduct of the intelligence and intelligence-related activities of the
following elements of the United States Government:

(1) The Central Intelligence Agency.
(2) The Department of Defense.
(3) The Defense Intelligence Agency.
(4) The National Security Agency.
(5) The Department of the Army, the Department of the Navy, and the
Department of the Air Force.

(6) The Department of State.
(7) The Department of the Treasury.
(8) The Department of Energy.
(9) The Federal Bureau of Investigation.
(10) The Drug Enforcement Administration.

CLASSIFIEDSCHEDULE OP AUTHORIZATIONS
Sic. 102.The aniounis ;iuihorircJ Io bc ;ippropriaieJ undcr seciIUl.and
ihc auihorizcd pcrronncl ccilinas of Sepieniber 30. 1981. for the conddci of
the intelligence-and intelligencë-related açiivities of the elements listed in such
section, are those spccifiedin the classified Schedule of Authorizations prepared

by the committee of conference to accompany H.R. 2968 of the Ninety-eighth
Congress. That Schedule of Authorizations shall be made avdilable to the
Cornmittees on Aooronriations of the Senate and House of Renresentatives and
to the President.'fhe'Pre shillpnrvide for suitable distribution of the
Schedule, or of appropriate portions of the Schedule within the executive branch.

CONGRESSIONAL NOTIFICATION OP EXPIINDITURES IEXCIISOF PROGRAM
AUTHORIZATIONS

SEC.103. During fiscal year 1984,funds may not be made available for any ANNEXES TO THE COUhTER-MliMORIAL 277

intelligenceor intelligence-relatcdactivity unlesssuch funds have been specificÿlly
authorized for such activity or, in the case of. .

LIMITATION ON COVERT ASSISTANCE FOR MILITARY OPERATIONS IN NICARAGUA
SEC.108. During fiscal year 1984, not more than $24,000,000 of the funds
available to the Central IntelligenceAgency, the Department of Defense,or any
other agency or entity of the Unitcd States involved in intelligence activities

may be obligated or expended for the purpose or which would have the efïect of
supporting, dircctly or indirectly.military or paramilitary operations in Nicaragua
by any nation, group, organization, movement, or individual.

CONGRESSIONALFlNDlNGS
SEC.109.(a) The Congress finds that -

(1) the Government of National Reconstruction of Nicaragua has failcd
to keep solemn promises, made to the Organization of American States in
July 1979,to establish full respect for humdn rights and political liherties,
hold early elections, prcserve a private sector, permit political pluralism,
and pursue a foreign policy of nonaggression and nonintervention;
(2) by providing military support (including arms, training, and logistical,
command and control, and communications Pacilities) IOgroups seeking 10
overthrow the Government of El Salvador and other Central American

governments, the Government of National Reconstruction of Nicaragua kas
violated article 18 of the Charter of the Organization of American States
which declares that no state has the right to intervene, directly or indirectly,
for any reason whatsoever, in the interna1 or external arairs of any
other state;
(3) the Government of Nicaragua should be held accountable before the
Organization of American States for activities violalive of promises made
to the Organization and for violations of the Charter of that Organi-
zation: and
(4) working through the Organization of Amcrican States is the proper
and most effective means of dealing with threats ta the peace of Central
America, of providing for cominon action in the event of aggression, and
of providing the mechanisms for peaceful resolution of disputes among the
countries of Central Amcrica.

(b) The President should seek a prompt reconvening of the Seventeenth
Meetinp.of Consultation of Ministers of Foreign Apairs of the Oraanization oc
~meri&n States for the purpose of reevaïuating the cornpliance by the
Government of National Reconstruction of Nicaragua -

(1) with the commitments made by the leaders of that Government in
July 1979to the Organization of American States: and
(2) with the Charter of the Organization of American States.
(c) The President should vigorously seek actions by the Organization of
American States that would provide for a full range of effectivemeasures by the

member states to bring about compliance by the Gowrnment of National
Reconstruction of Nicaragua with those obligations, including verifiableagrce-
ments to kali the transfer of militiiry equipment and Io cease furnishing of
military support facilitiesto groups scekingthe violent overthrow of governments
of countries in Central America.
(d) The President should uscal1diplomatic mednsat his disposal to encourage278 MILITARYANI> PARAMILITARYACTIVITIFS

the Organization of American States to seek resolution of the conflicts in Central
America based on the ~rovisionsof the Final Act of the San José Conferenceof
October 1982,especialiy principles (d), (e), and (g), relating to nonintervention
in the interna1 affairs of other countries, denying support for terrorist and
subversiveelementsin other states, and international su~ervisionof fullvverifiable
arrangements.
(e) The United States should support measures at the Organization of
American States, as well as efforts of the Contadora Croup, which seek to end

support for terrorist, subversive,or other activities aimedat the violent overthrow
of the governments of countries in Central America.
(f) Not later than March 15, 1984,the President shall report to the Congress
on the results of his efforts pursuant to this Act to achieve peace in Central
America. Such report may include such recommendations as the President may
consider appropriate for further United States actions to achieve this objective.

TlTLE II - INTELLIGENCE COMMUNITY STAFF

AUTtlORIZATlON OF APPROPRIATIONS

SEC.201. There is authorized to be appropriated for the lntelligence Com-
munity Staff for fiscal year 1984the sum of $18,500,000.

AUTHORIZATIONOP PERSONNELENI>-STRENGTH

Siic. 202. (a) The lntelligence Community Staff is authorized two hundred
and fifteen full-time personnel as of September 30, 1984.Such personnel of the
lntelligence Community StaR may be permanent employees of the lntelligence
Community Staff or personnel detailed from other elements of the United States
Government.
(b) During fiscal year 1984, personnel of the lntelligence Community Staff
shall he selected so as to provide appropriate representation from elements of

the United States Government engaged in intelligence and intelligence-related
activities.
(c) During fiscalyear 1984,any officeror employee of the United States or a
member of the Anned Forces who is detailed to the lntelligence Community
StaR from another element of the United States Government shall he detailed
on a reimbursable basis, except that any such officer,employee or member may
he detailed on a nonreimhursablc basis for a period of less than one year for the
performance of temporary functions as required by the Director of Central
Intelligence.

INTELLIGENCE COMMUNITY STAFF AUMINISTEREU IN SAME MANNER AS CENTRAL
INTELLIGENCE AGENCY
SEC.203. During fiscal year 1984,activities and personnel of the lntelligence

Community Staff shall he subject to the provisions of the National Security Act
of 1947(50 U.S.C. 401 et seq.) and the Central lntelligence AgencyAct of 1949
(50 U.S.C. 403a-403n) in the same manner as activities and personnel of the
Central lntelligence Agency. ANNIIXFSTO THE COUNTER-MEMORIAL

Annex 43

It is the judgment of the [Senate] Intelligence Committee that Nicaragua's
involvement in the aiiairs of El S;ilvador and, to a lesser degree, ils other
neighbors, continues. As such, Ourduty, or at very least our right, now as it was
[last November] is to respond to these violations of international law and uphold

the charter of the OAS.
Specifically, amis and materiel still liow from the communist bloc through
Nicaragua to the insurgents in El S;ilvador. Yesterday, many of my colleagues
will have read the reports in various newspapers about testimony of the
undersecretary of defense for policy. Fred C. Ikle, in which he confirmed that
approxirnately half the weapons used by the Salvadoran guerrillas were captured
or acauired from the Salvadoran armed forces. This is undoubtedlv true.
It i; also true, however, that the other half, or the greater part ihereof, come
via Nicaragua and further the intelligence community's laiest and best estimate
is that a ~Ïedominanl oercentaee of their ammunition, about 80 percent, still
cornes $,i;iXicaragua. Fstiniiltes .~h<>uh< rcrnaining m;iicriel is rimilar. Wh21
the llousc Intclli~cnçcCoinniiitec it:iicd lajt May iisiill truc:

"[The insurgency in El Sal\.ador] depends for ils lifeblood - arms,
ammunition, financing,logisticsand command-and-control facilities - upon
outside assistance from Nicaragua and Cuba."

In sum, the Sandinista support for the insurgency in El Salvador has not
appreciably lessened; nor, thereforc, has their violation of the OAS charter
ahated. MILITAUY AND PARAMILITAUYACTlVlTlES

Annex44

CONGRESSIONR AECORD2, AUGUST 1984, Pl'.H 82688-269

Mr. COLEMAN of Missouri. Mr. Chairman, we are now witnessing the slow
strangulation by the majority party of America's fundamental commitment to
democracy in Central America. Section 107 of the legislation before us today
includes language which goes way beyond the Boland-Zablocki language of 2

ycars ago that governed covert activities in Nicaragua. Under Boland-Zablocki
no funds could he uscd to overthrow the Government of Nicaragua. Under this
bill the CIA could not even help fund the interdiction of arms flowing from
Nicaragua into El Salvador.
This bill is aimed at denying U.S. aid to the Contras fighting against the
unclected Sandinista junta in Nicaragua. But the language of this bill goes much
further. It denies aid to any group which might attempt to opposeany government
of Nicaragua.

Suppose the Sandinista junta continues to tighten ils control over the people
of Nicaragua, completely closes down La Prensa, the only so-called free
press, or outlaws the Catholic church, because it is opposed to the junta -
as it is. Then suppose they decide to outlaw al1 political parties hecause the
upcoming 'élection" will, as they say, "estahlish beyond a shadow of doubt
that the Nicaraguan people do not want any other parties in their country".
And then, suppose that the Nicaraguan people, chafing under the growing
totalitarianism, urged on by men and women committed to democracy, decided

~~ fieht.
~1"ld webe able to help them in their struggle? Under this billthe answer isno.
Suppose then that like Angola, Ethiopia, or Afghanistan, the Sandinistas cal1
unon their Communist hrethren to come to their aid. to send Cuban combat
t;oops, perhaps even the Soviet combat brigade stationed in Cuba. Would we
then be able to aid people fighting against this tyranny'! Under this bill the
answer is, once again, unequivocally no. The bill would leave the United States
with only one option - commitment of military troops - which no one, 1

repeat, no one on this side of the aisle wants to see happen.
In other words the majority party is saying today, that there is ahsolutely
nothine. under anv circumstances. ,,ev are willineuto do to aid Nicarae"ans who
are fo&d to fighifor their freedom.
This bill, in the final analysis, States that the only "acceptable" thi-g for the
United States to do, is to do nothing.
In desperation to adhere to this "do nothing" policy. my colleagues on the
other side of the aisle are now deliheratcly ignonng basic realities in Nicaragua.

The Sandinista junta is becoming more oppressive - civil, political, and human
rights are fewer than when they took power. Other groups which took part in
the revolution have in standard Communist fashion heen dispensed with one by
one, until onlv the Sandinistas remain.
Which country is providing safe haven, weapons, military training, and oliicial
support of leftistguerrillas fightingagainst the democratically electedGovcrnment ANNEXES m THE COUNTER-MEMORIAL 281

of El Salvador? It is the Sandinistas of Nicaragua. Under lhis bill we can do
nothing about that.
1 would like to ask the chairman of the committee, the gentleman from
Massachusetts [Mr. BOLAND]t,o enter inIo a colloquy, and 1would ask if the

gentleman might answer somc questions.
In May of 1983 in your report, in the intelligence suthorization bill, the
committee said on page 6 that it believes that the intelligence available to it
continues to support the followingjudgments with certain:y
One, a major portion of the arms and other materials sent by Cuba and other
Communist countries to the Salvadoran insurgents, transits Nicaragua with the
permission and assisiance of the Sandinistas.
1sthat true today. Mr. Chairman?
Mr. BOLANDW . ill the gentleman yield?
Mr. COLEMAo Nf Missouri. 1yield to the gentleman.
Mr. BOLANDA .Sthe gentleman knows, that particular reference in the report
has been used many times in the debdte on the military power and military
operations in Nicaragua, and thatprecisely was the judgment of the committee.
That generally is the judgment of the committee today.
Mr. COLEMAN of Missouri. DidYOU answer yes or no to that question?
Mr. BOLAKD Y.OUhave referenceto the report that was made by this committee

in 1983?
Mr. COLEMAN of Missouri. Right.
Mr. BOLANDP .ointing to and indicating thdt there is clear and convincing
evidence that military equipment is going Io El Salvador and transiting fhrough
Nicaragua: is that the question?
Mr. COLEMAN of Missouri. Right. 1s that true today? Because 1 see there is
nothing in the report.
Mr. BOLANDT .hat is true today, as it was at the time of that report. The
evidence islessconcrete, more circumstantial, but it still supports that conclusion.
We have never backed away {rom thal statement.
Mr. COLEMAo Nf Missouri. That is fine. Let me ask another question, and I
appreciate it. 1only have a certain amount of time.
Another siaiemeni which was made with great certainty by the committee in
May 1983 was that the Salvadoran insurgents rely on the use of ils sites in
Nicaragua, some of which are located in Managua itself, for communications,
command and control, and for the logistics fo conduct their financial, material.
and propaganda activities.

ls that truc today?
Mr. BOLANDT .haf was true in 1983and it is true today. My answer would
be yes.
Mr. COLEMAo Nf Missouri. Along the same lines, Mr. Chairman, with certainty
the committee stated that the Sandinista leadership sanctions and directly
facilitates al1 of these functions. And. further, Nicaragua provides a range of
other support activities, includingure transit of insurgents to and from Cuba,
and assistance to the insurgents in planning their activities in El Salvador.
1sthat true today also?
Mr. BOI.ANUI.t was true then. It is true today. And the committee has riever
backed away from thet statement.
Mr. COLEMAN of Missouri. AS 1 recall also in the report the committce
suggested we set up radar or sensing barriers in between Nicaragua and El
Salvador. 1was wondering if the chairman could give mean update on the radar
that they suggested and the sensing that they suggested as an alternative to the
interdiction of arms through covert activities.282 MILITARY AND PARAMILITARY ACTIVITLES

Would the chairman givc an update on the radar and the fencing that you
suggested in May 1983?
Mr. BOLAND A.Sthe gentleman knows, the whole basis of the war in Nicaragua
and the flow of arms into El Salvador from Nicaragua, was originally arms
interdiction. That has been the nub of the whole question since this war started.
But let me resoond to the eentleman and let me indicate to him that tbere has
been little oro interdiction of arms by anyone into El Salvador.
Mr. COLEMAo Nf Missouri. Has there been any radar?
Mr. BOI.AND L.et me also sav to the eentlemanihat the administration onoosed

any arms interdiction program in ~.~:2760, but this is also an area that we can
take care of in the 2-hour debate on section 107.And will not respond to any
more questions of the aentleman. He can wait until we pet into section 107.
M~.'COLEMAo f ~Hsouri. It is my time. 1do not understand. 11is my time
that we are eating up and using up and the chairman will not respond to my
questions. 1do no1recall in my 8 years that the chairman has refused to answer
questions when it is on Our time on such an important issue.
My question is has anybody requested the radar, has anybody requcsted
funding for fencing? Where are the fences? Where is the radar?
That is al11want to know, because there is nothing in the report today or in
this thin public document that says anything about section 107except no funds
shall be used period. 1jus1want to know what happened.
Mr. BOLANDI.f the gentleman will yield 1will be happy to answer.
It is the judgment of the majority of the members of this cornmittee that this

has been a senseless war in Nicaragua, and they have witnessed little or no
emphasis by the administration to the interdiction of anns into El Salvador.
Their attention has been paid instead to an insurgency committed to the over-
throw of the Sandinista govcrnment. That is my response. ANNEXESTO THE COUNTER-MEMORIAI

Annex45

RLI,OR OFIIII: ~,\llOshRIP.\MIIS (~i~rl\ilssOSs('1 SIRAA\IIMICA.
IO JA\,I.AK1984 IFYI.IRPISI

[Nor reproducedl

Annex46

[Nol reproducedl

[Nol reproducedl

Annex48

[Nor reproducedl MILITARYAND PARAMILITARS ACTIVITIES

Annex49

"A FORMESRALVADOR RAEBBLHEF TELLOP ARMSFROMNICARAGUA"NEW
YORK TIME S,JULS1984

[Nor reproduced] ANNEXES TO THF COUN'SOR-MEMORIAL.

Annex50

UNITI~U STATED SOPARTME NPTS~~l'li, OMMUNIS ~T I'~~RFIRENCEINEl.
SALVADOR, SI~ECIAR LEPORT NO.80,23 FEBRUAR1Y 981

SUMMARY

This special report presents definitive cvidence of the clandestine military
support giveti by the Soviet Union, Cuba, and their Communist allies 10Marxist-
Leninist guerrillas now fighting to overthrow the established Government of El
Salvador. The evidence. drawn from caotured guerr..la documents and war
m;itcricl ;~nilc,>rrohuraiccl by inrclligencc rcport,, undcrsci,res the ceniriil rolc
pla)yd hy Cuba .ind i~therComniunisi counirie.>hrginning in 1979in the p,ilitical
uiiiticstioi~.milit;in Jir<ction. 2nd irming ni snjurgcni lori?, in El S;iIi,aJor.
I.'ruiiitlic doiumcnt.tirp.iislblti>r;ciin~iruct chruni>l.>yiilillythc kcy st;igcs
in thc groriih of the Communirt iii\oliciiiciit:

The direct tutelary role played by Fidel Castro and the Cuban Government in
late 1979 and early 1980 in bringi-g -he diverse Salvadoran guerrilla factions
into a unified front;
The assistance and advice given the guerrillas in planning their military
operations ;
The seriesof contacts bctween Salvadoran Communist leaders and key olticials
of several Communist states that resulted incommitments to supply the insurgents

nearly 800 tons of the most modem weapons and equipment ;
The covert delivery to El Salvador of nearly 200 tons of those arms, mostly
through Cuba and Nicaragua, in preparation for the guerrillas' failed "general
offensive" of January 1981 :
The major Communist cfirt to "cover" their involvement by providing mostly
arms of Western manufacture.

It isclear that over the past year the insurgency in El Salvador has been
progressively transformed into another case of indirect armed aggression against
a small Third World country by Communist powers acting through Cuba.
The United States considers it of great importance that the American people
and the world community be aware of the gravity of the actions of Cuba, the
Soviet Union, and other Communist states who are carrying out what is clearly
shown to be a weil-coordinated, covert effort to bring about the overthrow of
El Salvador's established govcrnment and to impose in ils place a Communist
régimewith no popular support.

1. A Case of CommunistMilitary Involvernentin the l'hird World

The situation in El Salvador presents a strikingly familiar case of Soviet,
Cuban, and other Communist military involvement in a politically troubled
Third World country. By providing ams, training, and direction to a local
insurgency and by supporting it with a global propaganda campaign, the
Communists have intensified and uidened the conflict, greatly increased the
suffering of the Salvadoran people, and deceived much of the world about the
true nature of the revolutioii. Their objedive in El Salvador as elsewherc is to286 MILITARY AND PARAMILITARY ACTIVITIES

bring about - at little cos1 to themselves - the overthrow of the established
government and the imposition of a Communist régimein defiance of the will
of the Salvadoran people.
The Cuerrillas:their TacricsandPropaganda. El Salvador's extremeleft, which
includes the long-estahlished Communist Party of El Salvador (PCES) and
several armed erouos of more recent oriein. has become increasinrlv committed
since 1976 to a military solution. A carnpaign of terrorism -. bombings,
assassinations, kidnappings, and seizures of embassies - has disrupted national

life and claimed the lives of many innocent people.
During 1980, previously fragmented factions of the extreme left agreed to
coordinate their actions in support of a joint military battle plan developed
with Cuban assistance. As a precondition for large-scale Cuban aid, Salvadoran
guerrilla leaders, meeting in Havana in May, formed first the Unified Revo-
lutionary Directorate (DRU) as their central executive am for political and
military planning and, in late 1980, the Farabundo Marti People's Liberation
Front (FMLN). as the coordinatine hod-.of the zuerrilla oreanizations. A front
~r~anikition. ihc Ke\,olutionlin. r)cm,>cr.ilic~r&t (I;DKJ,-~~~also crr..iieJ to
Ji,wninaie prupaganda abr<lad.tor appeariinces sakc. thrce rmall non-Mar\i\t-
Leninisi ~oliticil ~oartieswere brourhi-into the front, thourh th-y have no
representation in the DRU.
The Salvadoran guerrillas, speaking through the FDR, have managed to
deceivemany about what is happening in El Salvador. They have been aided by
Nicaragua and by the worldwide propaganda networks of Cuba, the Soviet
Union, and other Communist countries.
The guerrillas' propaganda aims at legitirnizingtheir violence and concealing
the Communist aid that makes it possible. Other key aims are Io discredit the
Salvadoran Government. to misrenresent U.S. oolicies and actions. and to foster
~ ~ ~ ~ ~,~ ,
the impression of overwhelmingpopular supportforthe revolutionary movement.
Examples of the more extreme claims of their propaaanda apr>aratus - echoed
hy ~uhan, Soviet, and Nicaraguan media - are:
That the United States has military hases and several hundred troops in El
Salvador (in fact, the United States has no bases and fewer than 50 military
personnel there);
That the government's security forces were responsihle for most of the 10,000
killings that occurred in 1980 (in their own reports in 1980, the guerrillas
themselves claimed the killings of nearly 6,000 persons, including noncombatant

"informers" as well as govcrnment authorities and military).
In addition to media propaganda, Cuba and the Soviet Union promote the
insurcent cause at international forums. with individual eovernments. and amone
foreign opinion leaders. Cuba has an efficient netw&k for introducing an:
promoting representatives of the Salvadoran left al1over the world. Havana and
Moscow also bring indirect pressure on some governments to support the
Salvadoran revolutionaries by mobilizing local Communist groups.

II. Communist Military Intervention: A Chronology

Before Septemher 1980 the diverse guerrilla groups in El Salvador were ill-
coordinated and ill-equipped, armed with pistols and a varied assortment of
huntin- rifles and shotau-s. At that lime the insureents -cauired weaoons
preJ<)minanil) through purshli\cs un ihc intcrnaii<)nïl mdrkci and from dealers
who plirticip~ted in the \uppl) of arnir ttithe Sandiniitjs in N~carligua. ANNEXES TO THE COUNTER-MEMORIAL 287

By January 1981when the guerrillas launched their "general offensive," they
had acquired an imprcssivearray of modern weapons and supporting equipment
never before used in El Salvador by either the insurgents or the military. Belgian
FAL rifles, German G-3 rifles, U.S. M-l, M-16, and AR-15 semiautomatic and
automatic rifles,and the lsraeli UZI, submachinegun and Galil assault rifle have
al1 been confirmed in the guerrilla inventory. In addition, they are known to
possess .30 to .50 cÿliber machineguns, the U.S. M-60 mdchinegun, U.S. and
Russian hand grenades, the U.S. M-79 and Chinese RPG grenade launchers,
and the U.S. M-72 light antitank weapon and 81mm mortars. Captured
ammunition indicates the guerrillas prohably possess 60mm and 82mm mortars
and 57mm and 75 mm recoillessrifles.
Recentlv acquired evidence has enahled us to reconstruct the central role

played bi~uba, other Communist countries, and several radical states in the
political unification and military direction of insurgent forces in El Salvador and
in equipping them in lessthan 6 months with a panoply of modern weapons that
cnabled the euerrillas to launch a well-armed offensive.
This infokation, which we consider incontrovertible, has been acquired over
the past year. Many key details, however, have fallen into place as the result of
the guerh~~as'own~rccords. Two particularly important document caches were
recovered from the Communist Party of El Salvador in November 1980 and
from the Peoples' Revolutionary Army (ERP) in January 1981.This mass of
captured documents includes battle plans, letters, and reports of meetings and
t~~vels. ~ ~e written in crv,.ic lane- -ee and usine code words.
\Vhcndciiphcr:il dnJ \crilied .igainst ci idencc ir<>noi ther iniclligciiics~iurL.cs.
thc documcnib hring io Iight the chain of e\ciitj ledding IO the gucrrillar' J;inuary
1981ollcnsive. Whdi cnicrees is d hichls di.turbine oaiiern ofo:ir~llcl2nd CO-

ordinated action by a number of Cckmunist andsome radicai countries bent
on iniposing a military solution.
The Cuhan and Communist role in preparing for and helping to organize the
abortive "general ofinsive" early this year is spelled out in the following
chronology based on the contents of captured documents and other sources.
lnirialSteps. The chronology of external support begins at the end of 1979.
With salutations of "brothetly and revolutionary greetings" on December 16,
1979, members of the Communist Party of El Salvador (PCES), National
Resistance (FARN), and Popular Liberation Forces (FPL) thank Fidel Castro
i" a letter for his help and "the help of your party comrades . .. hy signing an
agreement which establishes very solid bases upon which we begin .. .
At an . . meeting at the Hungarian Embassy in Mexico City, guerrilla leaders
made certain "requcsts" (possibly for arms). Present at this meeting were repre-
sentativesof the German Dernocratic Reoublic. Bulearia. Poland. Vietnam. Hun-

gary, Cuba, and the Soviet Union.
In notes taken during an April28, 1980,meetingof the Salvadoran Communist
Party, party leader Shafik Handal mentions the need to "speed up reorganization
and o.t th~ ~artv on a war footine". He added. "l'm in aereement with takine
advantage of thépossihililies of aGistance fromthe social& camp. 1think thaï
their attitude is magnificent. Weare no1yet taking advantage of il." In reference
to a unification of the armed movement, he asserts that "the idea of involving
everyone in the arca has already been suggested to Fidel himself". Handal
alludes Io the concept of unification and notes, "Fidel thought wellof the idea".
Girprrillo Contac/s in Havana. From May 5 10 June 8, 1980, Salvadoran
guerrilla leaders report on meetings in Honduras, Guatemala, Costa Rica, and
Nicaragua. They proceed to Havand and meet several limes with Fidel Castro;
the documents also note an interview with the German Democratic Republic288 MILITARY AND PARAMILITARYACTIVITIES

(G.D.R.) Chairman Erich Honecker in Havana. During the Haviina portion of
their travels, the Salvadoran guerrilla leadership meets twice with the Cuban
Directorate of SpecialOperations (DOE, the clandestine operations special forces

unit of the Cuban Ministry of Interior) to discuss guerrilla military plans. In
addition, they meet with the Cuban "Chief ofCommunications".
Durinz this oeriod (late Mav 1980). the Pooular Revolutionarv Armv (ERP)
isadmitcd in18the g"errilla coalitionafter neg'otiationsin ~avana. The coalition
then assumes the name of the Unified Revolutionary Directorate (DRU) and
meets with Fidel Castro on three occasions.
Alter the Havana meetings, ShafikHandal leaves Havana on May 30, 1980,
for Moscow. The other Salvadoran guerrilla leaders in Havana leave for
Managua. During the visit of early lune' the DRU leaders meet with Nicaraguan
revolutionary leaders (Sandinistas) and discuss: (1) a headquarters with "al1
measures of security", (2) an "international field of operations, which they
(Sandinistas) control", and (3) the willingnessof the Sandinistas to "contribute

in material tenns" and to adopt "the cause of El Salvador as its own". The
meeting culminated with "dinner at Humberto's house" (presumably Sandinista
leader Humberto Ortega).
SulvudorunCommunislPuriy Leader'sTravelsin the Eusr. From June 2 to July
22, 1980,Shafik Handal visits the U.S.S.R., Vietnam, the German Democratic
Repuhlic, Czechoslovakia, Bulgaria, Hungary, and Ethiopia 10 procure arms and
seek support for the movement.
On June 2. 1980.Handal meets in Moscow with Mikhail Kudachkin. Deoutv . .-
Chicf of the ~atin ~merican Section ofthe Foreign Relations Department of the
CPSU Central Committee. Kudachkin suggests that Handal travel to Vietnam
to seek arms and oiiers to pay for Handal's trip.
Continuing his travels hetween June 9 and 15, Handal visits Vietnam where
he is received by Le Duan, Secretary General of the Vietnamese Communist

Party; Xuan Thuy, memher of the Communist Party Central Committee Sec-
retariat; and Vice Minister of National Defense Tran Van Quang. The Vietna-
mese, as a "first contribution", agree to provide 60 tons of arms. Handal adds
that "the comrade requested air transport from the USSR".
From June 19to June 24, 1980,Handal visits the German Democratic Repuh-
lic (G.D.R.), where he is receivedhy Hermann Axen, member of the G.D.R.
Politburo. Axen states that the G.D.R. has already sent 1.9tons of supplies to
Managua. On July 21, G.D.R. leader Honecker writes the G.D.R. Emhassy in
Moscow that additional supplies will be sent and that the German Democratic
Republic will provide military training, particularly in clandestine operations.
The G.D.R. telegram adds that although Berlin possesses no Wcstern-manu-
factured weapons - which the Salvadoran guerrillas are seeking - efforts will

be undertaken to find a "solution to this problem". (Noie: The emphasis on
Western arms reflects the desire to maintain plausible denial.)
From June 24-27, 1980,Handal visits Czechoslovakia where he is received by
Vasil Bilak, Second Secretary of the Czech Communist Party. Bilak says that
some Czech ams circulating in the world market will he provided so that these
arms will not he traced back to Czechoslovakia as the donor country. Trans-
oortation will be coordinated with the German Democratic Reoublic.
' Ilanddl pro<ccd> IO Iiulg:iri.iirom Junc 27 ta June 30. IYYO ilc 1.rc<civeJby
I>iniitirSiiintihr\,. iiic!iibcrui ihc Central Commiitcc Scrrc~tiirtai'.l'heIiul~ari~ns
agree Io supply German-origin weapons and other supplies, again in an apparent
effort to conceal their sources.
In Hungary, from June 30 to July 3, 1980,Handal is received byCommunist
Party Gencral SecretaryJanos Kadar and "Gucsel" (probahly Central Committee ANNEXES TO THE COUNTER-MLIMORIAL 289

Sccretary for Foreign Affairs Andras Gyenes). The latter offers radios and other
supplies and indicates Hungarian willingness to trade arms with Ethiopia or
Angola in order to obtain Western-origin arms for the Salvadoran guerrillas.

"Guesel" promises to resolve the trade with the Ethiopians and Angolans himself,
"since we want to be a part of providing this aid". Additionally, Handal secures
t...~r~-~~~~-f 10.000 uniforms to he made bv th~~Hunearians accurd~ ~ ~o u
Handal's specificdtions.
Handal then travels to Ethiopia, luly 3to July 6. He meets Chaiman Menzistu
and receives "a warm receptionn. eng gis t offers "several thousand weapins",
including: 150Thompson suh-machine guns with 300 cartridge clips, 1,500M-l
rifles, 1,000 M-14 rifles, and ammunition for these weapons. In addition, the

Ethiopians agree to supply al1necessary spare parts for these arms.
Handal returns to Moscow on July 22, 1980,and is receivedagain by Mikhail
Kudachkin. The Soviet official asks if 30 Communist youth currently studying
in the U.S.S.R. could takepart in the war in El Salvador. Beforeleaving Moscow,
Handal receives assurances that the Soviets agree in principle Io transport the
Vietnamese arms.
Eùriher Confacts in Nicarogtra.On July 13, representati\'es of the DRU arrive
in Managua amidst preparations for the first anniversary celehration of Somora's

overthrow. The DRU leaders wait until July 23to meet with "Comrade Bayardo"
(presumably Bayardo Arce, mernber of the Sandinista Directorate). Thcy com-
plain that the Sandinistas appcar to bc restricting their access to visiting world
dignitaries and dernanding that al1contacts be cleared through them. During the
meeting, Arce promises ammunition to the guerrillas and arranges a meeting for
them with the Sandinista "Military Commission". Arce indicates that, since the
euerrillas will receivesome arms manufactured bv the Communist countries. the
Sandinistii Arm) tEPS) \<,IIIionsider ahrurbing somc <II'ihcre rrrdpon3 and

prd\i<ling t<i the S:ili~donin~ \Ver~crn-ni;inui~~'tu~~ :'~iis hclJ hy thc 13's in
cxihÿnce {ln Jln.:.ry 13x1lhc Pi>~uliirSün~liniia Arms iiidecd .ii\itchcd iri>a\
using Ü.s.-made weapons to thoseif Soviet and East Eiropean origin.)
The DRU representatives also meet with visiting Palestine Liberation Organi-
ration (PLO) leader Yasir Arafat in Managua on July 22, 1980. Arafat pro-
mises military equipment, including arms and aircraft. (A Salvadoran guerrilla
lcader met with FATAH leaders in Beirut in August and November, and the
PL0 has trained selected Salvadorans in the Near East and in Nicaragua.)

On July 27, the guerrilla General Staff delegdtion departs frorn Managua for
Havana, where Cuban "specialists" add final touches Io the military plans
formulated during the May meetings in Havana.
Arms Deliveries Begin. In mid-August 1980, Shafik Handal's arms-shopping
expedition begins to bear fniit. On August 15, 1980, Ethiopian arms depart for
Cuba. Three weeks later the 60 tons of captured U.S. arrns sent from Vietnam
are scheduled to arrive in Cuba.
As a result of a Salvadoran delegation's trip to Iraq earlier in the year, the

guerrillas received a $500,000logistics donation.The funds are distributcd to the
Sandinistas in Nicaragua and within El Salvador.
By mid-September, substantial quantities of the arms promised to Handal are
well on the way to Cuba and Nicaragua. The guerrilla logisticscoordinator in
Nicaragua informs his Joint General Staff on Septemher 26 that 130 tons of
arms and other military materiel supplied hy the Communist countries have
arrived in Nicaragua for shipment to El Salvador. According to the captured
documenrs. this rcuresents one-sixth of the commitmcnts to the euerrillas bv the
~.
Cunimuni>iL.ounti io (\:>r,,II>gel ,111~tlc,ic>t.thcm:igniiu~~c~ihir c<>rnmitt;icni.
ihc Victn.~m:scotfer ut'only hl1i<>iisiniluilcd ? milli~n ritle anil rnaihiticgunbullets, 14,500mortar shells, 1,620rifles,210machineguns, 48mortars, 12rocket
launchers, and 192pistols.)
In September and October, the number of flights to Nicaragua from Cuba
increased sharply. These Rights had the capacity to transport several hundred
tons of cargo.
At the end of September, despite appeals from the guerrillas, the Sandinistas
suspend their weapons deliveries to El Salvador for I month, after the U.S.

Government lodges a protest to Nicaragua on the arms trafficking.
When the shipmentsrnume in October,as muchas 120tons of weaponsand mat-
erielare stillin Nicaragua and some 300-400tons are in Cuba. Becauseof the di-
cultyof monng suchlargequantilia overland, Nicaragua - withCuban support -
begins airlifting arms from Nicaragua in10 El Salvador. In November, about 2.5
tons of arms are deliveredby air before accidents forcea brief halt in the airlift.
In December, Salvadoran guerrillas, encouraged by Cuba, begin plans for a
general offensivein early 1981.To provide the increased support necessary, the
Sandinistas revivethe airlift into El Salvador. Salvadoran insureents nrotest that
they cannot absorb the increased flow of arms, but guerrilla lizson Lembers in
Managua urge them to increase their efforts as several East European nations
are ~rovidini unorecedenled assistance
A revoiut&naG radio station - Rodio Liberocion- operating in Nicaragua
beginsbroadcasting to El Salvador on December 15, 1980.Il exhorts the populace
to mount a massive insurrection against the government. (References to the
Sandinistas sharine the exoenses of a revolutionarv radio station aooe.. in the
captured documenïs.)
On January 24, 1981, a Cessnÿ from Nicaragua crashes on takeofi in El
Salvador after unloadine Dassenzersand DossiblvweaDons. A second olane is
-.
\iralecl hy the S~lvsdoran Air torce. and the pilot and numeroui wrapons are
captured. The piloi admits to bang an cmployee ul the Sicaraguitn nat~iinal
airline and concedei that the flirht oriainatcd froin Sandino International ,\irport
in Managua. He further admit; to fl$ng two earlier arms deliveries.
Air supply is playing a key role, but infiltration hy land and sea also continues.
Small launches operating out of several Nicaraguan Pacific ports traverse the
Gulf of Fonsecaat night, carrying arms, ammunition, and personnel. During the
general oKensiveon January 13. several dozen well-armed guerrillas landed on
El Salvador's southeastern coast on the Gulfof Fonseca, adjacent to Nicaragua.
Overland arms shipments also continue through Honduras from Nicaragua
and Costa Rica.~~n late Januarv. Honduran securitv forces uncover an arms
infiltration operation run by &lvadorans ;orking through Nicaragua and
directed by Cubans. In this operation, a trailer truck is discovered carrying
weapons and ammunition destcned for Salvadoran guerrillas. Wcapons inciudë
100 U.S. M-16 riflesand 81mm mortar ammunition. These arms are a portion
of the Vietnamese shipment: A trace of the M-16s revealsthat several of them
were shipped to U.S. units in Vietnam where they werecaptured or left behind.
Usine this ne~~ork. ~erhaos five tmckloads of arms mav have reached the
Salvadoran guerrillas. .

The availabiliry of weapons and materiel significantly increases the military
capabilities of the Salvadoran insurgenls. While attacks raged throughout the
country during the "general offensive"that began on January 10,it soon became
clear that the DRU could not sustain the level of violence without suiïering
costly losses in personnel. By the end of January, DRU lcaders apparently
decided to avoid direct confrontation with government forces and reverted to
sporadic guerrilla terrorist tactics that would reduce the possibility of suRering
heavy casualties. ANNEXES TO THE COUNTER-MEMORLAL 291

III. The Governrnent: the Search for Order andl>emocracy

Central America'ssmallest and most densely populated country is El Salvador.
Since its independence in 1821, the country has experienced chronic political
instability and repression, widespread poverty, and concentration of wealth and
wu,er in the hands of a few families. Althoueh considerable economic oroeress
Lookplace in the 1960s,the political systemremained in the hands of a triditGnal
economic elite backed by the military. During the 1970s, hoth the legitimale
grievances of the poor and landless and the groGing aspirations of the expanding
middle classes met increasingly with repression. El Salvador has long heen a
violent country with political, econoinic, and personal disputes often resulting
in murders.
The PresenrGovernmeni. Aware of the need for chanee and alarmed bv the
of Nicaragua-like chaos, progressive alv va do m ii-ary officeri and
civiliansoverthrew the ;Luthoritarianregimeof General Carlos HumbertoRomero
in October 1979and ousled nearly 100conservative senior officers.
Alter an initial period of instahility, the new government stabilized around
a coalition that includes military participants in the October 1979 coup, the
Christian Democratic Party, and independent civilians. Since March 1980, this

coalition has begun broad social changes: conversion of large estates in10peasant
cooperatives, distribution of land to tenant farmers, and nationalization of
foreign trade and banking.
Four Marxist-Leninist guerrilla groups are using violenceand terrorism against
the Salvadoran Government and ils reforms. Tbree small non-Marxist-Leninist
political parties- including a Social Democratic Party - work with guerrilla
organizations and their political fronts through the Democratic Revolutionary
Front 1FDR). most of whose activities take dace outside El Salvador.
~hc '~oir,;nrncnt of lil SaIi,aJor - hc;detl sinrc I.:si Dccembcr hy Joré
Napolcon I>uïrte. ihs rcspriicd C'hri,tisn Dcmucriit denicd officchy the niilitary
in the PrcsiJcntial clc~iiuni>t1972 -fa;es armcd opposition from ihc exirenie
rigtli,isii,ell a\ iroiii ihc Icii p11in th rJ1n1 tic O h 'viiriiy
lo~cc, ;ilid thr irnJ~nïy01 .uni: rnc~nhcrsoi the bccuriiy ixirceh10 abuse ihc~r
auth<,ritr. rr,riicuelilih, S.~l~aJ~,r.~ns:iiCÎcichJv the Du;trtc roi,ernmcnt', reformi
have sp6nsored terrorist activities against supforters of the &parian and banking
reforms and against the government itself.
A symbiotic relationship has developed between the terrorism practised by
extremists of both left and right. Thousands have died without regard to class,
creed, nationality, or politics. Brutal and still unexplained murders in Deceniber
of four American chiirchwornen - and in January of Iwo American trade
unionists - added U.S. citizens to the toll of this tragic violence. The United
States has made clear its interest in a complete investigation of these killings and
the punishment of those responsible.
Despite bitter resistdnce from right and left, the Duarte government bas stuck
to ils reform programs and has adopted emergency measures to case the lot of
the poor through public works, housing projects, and aid to marginal communi-
ties. On the political front, it has offered amnesty to ifs opponents, schedulcd
elections for a constitueni assembly in 1982,and pledged to hand power over to
a oo~ularlv elected aovernment no later than mid-1983.
khe go~ernment'~pursuit of progress with order has been further hampered
by the virtual breakdown of the law enforcement and judicial system and hy the
lack of an effective civilservice.
The introduction of the reforms- some of whichare now clearly irreversible-
kas reduced popular support for thcise who argue that change can only corne292 MILITARYAND PARi\MII.ITARYACTlVITlES

about through violence. Few Salvadorans participate in antigovernment demon-
strations. Repeated calls by the guerrillas for general strikes in mid- and late-
1980 went unheeded. The Duarte government, moreover, has made clear ils
willingness to negotiate the terms of future political processes with democratic

members of al1opposition forces - most notably, by accepting the ofl'erof El
Salvador's Council of Bishops to mediate hetween the government and the
Democratic Revolutionarv Front.
In sum, the Duarte govérnmentis working hard and with some successto deal
with the serious political, social, and economic prohlems that most concern the
people of El Salvador.
US. Suooorr. In its commitment to reform and democracv. the Government
ol. El ~alklor h3s hid ihc p<iliiicaIsLpport of ihe Ilniied S~~ICI evcr SIIICthe
0;tober 197')rei,,iluiion. HccïuscMC givc primar) cmphasis to hclping ihc poplc
oi'El S31vdd~)rm . <bIof ouf ;inistanr.e ha5 heen econoniic. in 19x0. lhr. United
States provided nearly $56 million in aid, aimed at easing the conditions that

underlie unrest and extremism. This assistance has helped create jobs, feed the
hungry, improve health and housing and education, and support the reforms
that are opening and modernizing El Salvador's economy. The United States
will continue to work with the Salvadoran Government toward economic
betterment, social justice, and peace.
Becausethe solution in El Salvador should be of the Salvadorans' own making
and nonviolent, the United States has carefully limited its military support. In
January, mounting evidence of Communist involvement compelled President
Carter Io authorize a resupply of weapons and ammunition to El Salvador -
the first provision of lethal items since 1977.

IV. Some Conclusions

The foregoing record leaves little doubt that the Salvadoran insurgency kas
become the object of a large-scale commitment hy Communist states outside
Latin America.
The political direction, organization, and arming of the insurgency is coordi-
nated and heavilyinfluenced hy Cuba - with active support of the Soviet Union,
East Germany, Vietnam and other Communist states.

The massing and delivery of arms to the Salvadoran guerrillas by those states
must be judged against the fact that from 1977 until Ianuary 1981 the United
States provided no wedpons or ammunition to the Salvadoran Armed Forces.
A major effort has been made to provide "cover" for this operation by sup-
plying arms of Western manufacture and by supporting a front organization
known as the Democrdtic Revolutionary Front to seek non-Communist political
support through propaganda.
Although some non-Communist states have also provided material support,
the organization and delivery of this assistance, like the overwhelming mass of
arms, are in the hands of Communist-controlled networks.

In short, over the pastcar, the insurgency in El Salvadorhas been progressively
transformcd into a textbook case of indirect armed aggression hy Communist
powers through Cuba. ANNEXES TO TECECOUNTfiR-MliMORIAL

Annex51

(Excerpts) (Passage omitted) Question: When are the next Presidentialelections
schedujed to take place?

Answer: On 25 March.
Question: 1sthere any chance at any of the rival parties gaining a majority?
Answer: l bclieve it is very unlikely, very unlikely. 1believe that the political
proportions in the March 1984Presidential elections will not substantially alter
the results of thc 1982Constitutional elections.
Question: That means that the Christian Democrats will come first, next the
ARENA, or the Extreme Right; while the conflicting (illegibleand fourth-
placed parties (National Conciliation Party and Democratic Action) will play a
major role in the second round of elections, depending on whether they ally with
the winner or the runner-up. Mr. President, in your opinion, is my interpre-
talion correct?
Answer: 1bclieve that the country is tired of the usual protagonists. I do not

know, 1cannot say anything about it.
Question: 1 understand thai the parties that came third and fourth in the last
elections have very charismatic leaders.
Answer: Yes, 1believethat their leaders are very responsible.
Question: The current Minister of the Presidency is standing for ihe National
Conciliation Party. Today's newspapers announced his oficial cdndidacy. If you
had any advice to give him, what would it be?
Anstuer: Let him choose somcone "apolitical" as his deputy President - a
professional man with prestige, not involved in recent turbulent political events.
Question: Will you not be standing for re-election, h4r.Presideni?
Answer: No. (Passage omitted.)

Question: Mr. President, how do the guerrillas supply themselves and where
from ?
Anxwer: Be sure of this: from Nicaragua, and only from Nicaragua. In the
past two weeks we have detectcd 68 incursions by aircraft which parachuted
equipment, u,eapons and ammunition into the Morazan area, which is where the
guerrillas are most concentrated.1willreveal to you something that may surprise
you: my profound admiration for a particular quality of the subversiveguerrillas
and their protectors, namely. the art of distorting the truth and finding an
audience (even in pro-Western, not pro-Soviet, countries) to heed them and
believe them. It is an incredible quality which one can only admire. They are
masters of propaganda; they are artists in the manipulation of îacts - true
masters of the art of using lies.

Question: 1 would remind you, Mr. President, that one of Lenin's maxims
was: "Against eddies, violence; against souls, lies."
Answer: Well, they have learned the lesson very well. While Managua draws
the world's attention by claiming for the past two ycars that it is about to be
invaded, they have not ceased for one moment to invade Ourcountry. There is
only one point of departure for the armed subversion, Nicaragua.
Question: Mr. President, has there been any attempt to establish contacts with294 MILITARYAND PARAMILITARYACTIVITIES

the guerrillas, to incorporate them in the country's democratic process, as Vene-
zuela successfullytried to do in past decades?
Ansiver: 1find your question very interesting because 1personally have tried
to do it twice.
Quesrir~n O:n Salvadoran ferritory?

Answer: No, on Colombian territory. 1asked President Betancur of Colombia
to act as mediator for me, to attempt a reconciliation. 1did not succeed.
Quer;lion:1 sometimes think, Mr. Magana, that, if it had wanted to, the
United States could long ago have ended this latent war and that you receive
US aid little hy little.
Answer: President Carter's policy was one of absolute hlindness and incompre-
hension. No, things have changed. Nevertheless, when, sometimes, we ask for
specificassistance (four helicopters, for instance) to evacuate a hill taken by the
rebels or 10combat a newly-discoveredinfiltration, they take six months to send
us il. 1helieve that this will change now and that the United States will step up
its aid, but not only with the aim of ridding us of this scourge of armed
subversion, which has been going on for four years, but also because of its

repercussions on the US public for President Reagan's re-election, especiallyin
the light of his rise in popularity following the intervention on Grenada (passage
omitted). ANNliXlS TO THE COUNTI!R-MBMORIAL

Annex 52

[Inauguration address delivered by President Jose Napoleon Duarte ai the Sports
Palace in San Salvador - live.]

............................

Salvadorans, we must bravely, frankly and realistically acknowledge the fact
that Our homeland is immersed in an armed conflict that affects each and every
one of us; that this armed conllict has gone beyond Ourborders and kas hecome
a focal ooint in the strursle betwccn the bir world oower blocs. With the aid of
~~rxist'~overnments lik<~icara~ua, cubaand théSoviet Union, an army has
been trained and armed and hÿs invaded our homeland.
Its actions are directed from abroad. Armed with the most sophisticated
weapons, the Marxist forces harass our Armed Forces and constantly carry out
actions intended to destroy Oureconomy, with the loss of countless human lives
and the sunéring of hundreds of thousands of Salvadorans. For its part, our
Armv has been considcrablv enlareed. it kas received better trainine. and it is
imbu>d with a profound pairiotic &mkitment to defend the people &d to keep
us from fallin~ into the hands of Marxist subversion, which secksto establish a
totalitarian dictatorship in our homeland.
In the face ofhese realities, many Salvadorans have wondered whyOurArmed
Forces have no1 yet managed to defeat the guerrillas. Many forcigners ask
thernselves the same auestion. Others. ovenvhelmed bv international Marxist
propaganda, wonder why the guerrillas have not ye< managed to seize the

country. The response to this is ves. simple: It has been clearly seen that the
immense majority of the people have chosen the dcmmratic solution by means
of the vote. and ihis obviousiv makes it imnossible for the euerrillas to seize the
country. ~hen there is anothértruth. This is that many of Ge Salvadorans view
the conflict as spctators, concerned only about Our own interests, without
contrihuting to the economic recovery, Our national defense, or the solution of
our social conflicts. This is the gist of the matter. So far, the people have rejected
the violence and the war, but have not taken dynamic action, alongside the
Armed Forces, to defend democracy, even though the situation bas changed
drastically. This is why il is important to point out Ourposition on dialogue and
the negotiation.
............................

This achievement, which was well explained by President Magana, contrasts
with the subjugation that leftist political sectors find themselves in with regard
ta the militas. guerrilla sector. The truth is that they have fallen under the
authority of the guerrilla commanders, whom they must obey, and have no1
demonstrated so far that they are the leaders of the subversive movement. For
this reason, 10 achieve credibility, they mus1 dcmonstrate their authority over
the armed sector. because in this wav. anv decision like that made bv the
subversive poup; in Colombia wouK be'hecded by the entire subvérsive
movement. This would be an important signal, and one which the entire nation296 MILITARYAND PARAMILITARYACTIVLT~CS

and al1of our people expect, so that dialogue is no1 held with weapons on the
table, but serves instead to fiud thepolitical paths [applause] necessary to bring
al1Salvadorans into the democratic process. Since this is of momentous impor-
tance, allow me 10 repeat this: This would be an important signal, and one
which the entire nation expects, so that dialogue is no1 held with weapons on
the table, but serves instead to find the political paths to bring al1Salvadorans
into the democratic process [applause].

For ils part, my Government willmake efforts to promote a climate of security
and confidence that will permit us, as a prior step, to begin as soon as possible
a national dialogue among al1 democratic forces and majority sectors so that
together we can draw up a formula of peace that will be the faithful reflection
of the redl feelingsofthe Salvadoran people and that willbe vigorously supportcd
so that no one can doubt that such a formula is a genuine decision and an
expression of the will of al1 of the people and that should be turned in10 a
common, cnergetic and supreme effort capable of overcoming al1obstacles and
of achieving the great objective of peace. For thispurposc, we will appeal to the
law, international solidarity, patriotic responsibility and, when circumstances
demand, to the legitimate right of defense.
............................ ANNEXES TO THE COUNTER-MEMORIAL.

Annex 53

[President JoséNapoleon Duarte Press Conference in Government House in San
Salvador - live.]

[Excerpts][Beltriin] Kaul Beltran, reporter for YSKLand VOA.Mr. President,
some rieht-wine [as hcordl sectors aiid their followers in our countrv are dis-
plcascdbecause-tLe ~overnment has refused to admit that because of pressure
from some organizatioiis in El Salvador. particularly right-wing or conservative
organizations, it decided not Io send ;idelegation to the commemoration of the
fifth anniversary of the Nicaraguan revolution. Could you give usyour opinion
on this issue? Secondly, it has been said - and there are reports from high
officiaisat the Central Reserve Bank and the Finance Ministry in this regard -
that studies are hurriedly being undertaken on a possible devaluaiion of our
currency. Could you please inform us personally about this?
[Buorre] Gladly. To begin with, let me state that 1make political decisionsin
rny capacity as President of the Republic. Before leaving, I decided not to send
a delegation Io Nicaragua for major poiilicai reasons.
When 1arrived in Europe 1 found that Nicaragua, the 1:MLN-FDR, and the
Ieft wing had mounted a campaign specifically intended to preveiit me from
opening Europe's doors to an understanding of our problems. One of the things
they did was to send Daniel Ortega to Europe a few days ahead of me. One of
the points raised by Ortega a1a given moment was that he had helped, is helping,
and will continue to helo the Salvadoran euerr-llas. He nlaccd himself in a
Ii,,stltt,n lh.ii ,h,>aid Ih:,t I atii liai the uggrc\ror. *11i\hc1uho iropcnl)
and dircirl! .itia~.kingdnd intrr\ening in ou<<)Lritry'fhr.rçi;irr..at ih;it iii.>ineiii.
I wrutr. ihc messarc I wni id th? I'rc\idcniisl llouie c.<inidtr~r , or<lcrnnd
the three steps tha? I suggested. First of all, 1suspended the trip. ~here was no
sense in making it, because al1 Europe rcalized that he was the aggressor and
that it was he who was looking for conflicts and confrontation. Obviously. he
has dcclÿred himself guilty of intervention. Secondly, 1 ordcred that we lodge a
formal protest with Nicaragua in this regard. Thirdly, 1ordered that studies be
made to suhmit a complaint to the International Court of Justice atThe Hague
about Nicaragua's intervention in El Salvador's affairs.

............................
[Gtitierrezj José Arturo Gutierrez. of [word indistinct] of El Salvador.
MI. President: The guerrillas have announced that they will carry out a large-
scale ofensive in the next few days. My question is: Is there any plan Io
counteract this offensive,and what attitude should the Salvadoran people take,
in your opinion? According to other reports, you are prepared to sign a pçacc
agreement with Nicaragua, even though the Sandinists are supplying weapons
to the Salvadoran guerrillas. If this is so, could you please tell us the(?hasis)
on which such an agreement would be signed?

[Buarte] First of dl, let me state that the Armed Forces Joint Chiefs of Stalf
have drafted the necessary plans to guarantee the nation's security.
As for your second question [words indistinct], well, let me state that with298 MlLlTARY AND PARAMILITARYACTlVlTlES

respect to the supposed treaty with Nicaragua, your question obviously [Duarte
changes thought] . . .the way you couched your question, il suggests that 1
would propose that a treaty be signed even though the Nicaraguans are sending
weapons to El Salvador.
1wish to change the meaning of your question, hecause the statement 1made
in Europe is the very opposite of what you have suggested. A newsman there
asked me if 1would be willingto sign a treaty with Nicaragua, and 1told him
that, always provided it stopped its support for the guerrillas, stopped using
subversion and exporting revolution to the rest of Central America, 1would he
willing to sign a treaty not only with Nicaragua but with any other country in
the world that shows respect, as we do.

............................
[De Gracia] Agustin de Gracia, of ACAN-EFE. Mr. President: you have said
that you oppose al1types of violenceand that you support the Contadora [words
indistinctl. However.. .?when vou went 101Washineton vou suooorte.. in some
iv;i).thc ÿs\ist;incc ihat<id\h;lng rcquç\ted froni Cung;csr ior ihc 'Iicar~guan
iounirrrc\oluiiun. Bring in agrcenicnt uiih ihose pr~nciplciprcsuppures s Jii-
icrcnt Salvddoran DOIIL.o ,n ihis irsuç Ciiuld sou icll me luords iridiriincil ihe
Contadora documént? .
[Duarie] [words indistinct] that is a good question. 1will answer the question

that you have raised. First, there is no inconsistency in my position on the
Contras, and 1 will explain it once more. This is not the first lime that I have
done so. 1cannot support the creation of or actions hy guerrilla groups in other
parts of the world, because this would mean supporting and justifying the
conceuts that the Marxists have ~ostuiated with reeard 10 the Salvadoran
guerrillas. Nicaragua has raised two concepts: self-determination of peoples, and
solidarity. It is they who are inconsistent. Based on the principle of self-
determination of peoples, they claim that no one can meddle in Nicaragua's
affairs. But, with regard to the concept of solidarity, they say: We have the right
to export revolution, Io help and to show solidarity to guerrillas in other areas.
What 1have said, from the Salvadoran standpoint, is that we have a problem
of aggression hy a nation called Nicaragua against El Salvador, that these
gentlemen are sending in weapons, training people, transporting bullets and what
not, and hringing al1of that to El Salvador. 1said that at this very minute they
are using fishingboats as a disguiseand are introducing weapons into El Salvador
in boats at night.
In view of this situation, El Salvador must stop this somehow. The Contras,
even though . . .thus, the Contras are creating a sort of barrier that prevents
the Nicaraguans from continuing to send arms to El Salvador by land. What
they have done instead is to send them by sed, and they are now getting them in
through Monte Cristo, El Coco and El Espino. This is because they cannot do
so overland, because the Contras are in those areas, in one way or another.
Therefore, you can see that these are two diiierent concepts. My position is
coherent. 1 defend my country. 1 have said that 1 do not want any weapons,
ammunition or supplies of any kind to reach my country, to support guerrillas

in my homeland, and that 1 am against anything that supports this type of
action, either here or there. That is why 1have told the Nicaraguans that 1think
El Salvador has always respected them and that, therefore, they must respect El
Salvador.
[Biock] Roberto Block, from Reuter news agency. Mr. President: (YThank
you). You have talked many limes about Nicaragua's supply of weapons to the
Salvadoran guerrillas, and you appeared at the Congress in your role as(?President), as you say, to ask for weapons, for assistance, and Io ask that the
Contras in Nicaragua cut oc this supply. I would like to know exactly what
tangible evidence exists that Nicaragua is sending weapons to El Salvador. If
such proof exists, whydid you ask that statements he sent to The Hague, instead
of the tangible evidence on these arms supplies from Nicaragua?
[BuarreJ [Words indistinct] oftryingto detract from the validity of a statement
by a head of State? M%ena head of State confesses that he is helping guerrillas,
he is helping the guerrillas. Therefore, what hetter evidence exists than a cate-
gorical statement by a head of State? Nothing is more powerful than the con-
fession he made.
1 said al1of this to explain that the evidence does exist. There is evidence on
al1of the bcaches. An overwhelming number of peasants claim that they have
seen people enter with weapons, which they load on horses, and leave for the
mountains. What you want is to see them for yourself. Well, 1invite you to go
to the beaches and watch, at night, how they unload the weapons. 1 am going
to give you a specific place, Montecristo Island. They are constantly unloading
weapons there. Caches have been foiind there. We are going to suhmit al1ofthis
evidence to the Court at The Hague when the time cornes.
[Block] After $50 million [words indistinct] to the Contras hy the United
States, you are saying that the weapons are still arriving. Do you think, if the
United States restores its assistance to the Contras, that al1th. . .
[Duurfe - interrupting] Let me tellyou, 1have never said what you are saying,
Mr. Block. 1have never said that assistance should be supplied to the Contras
so that they could invade Nicaragua's territory. 1 never said that. 1 said that
someone is doing that, and that what it does is prevent the weapons from
reaching El Salvador. This is what 1 have said, and I reiterate it. 1 am not
opposed to the prevention of weapons entering El Salvador. If hy some action
in the world these weaDons are orevented from enterine El Salvador. it is
Welcome,because this 411 rid us if the constant prohlem-of so many deaths,

murders and problems in our homeland. This is what must bc prevented.
Forgive me; but being in agreement with a concept, with a~principle, is one
thing, and reality is another. And1 am talking to you here about reality.
They have been unable to stop the now of weapons. Doesn't this show you
that the problem is much more profound than we imagine? How and from
where do those wcapons get here? The scheme they use is so sophisticated that
ir obviously renders the prohlem much more serious. One can't simply think
about $50 million. If you take a look at the U.S. assistance [words indistinct], it
is not $10million, $20 million or $50million. Their assistance to the world totals
$70 billion. Why? Because the world is immersed in crisis. MlLlTARY AND PARAMILITARY ACTIVITIES

Annex 54

[Excerpts] The policies of repression, terror, destruction, depopulation and
economic strangulation carried out by the dictatorship's army have aficted 38
percent ofthe country. More than 100areas under government jurisdiction have
suffered rrom these oolicies. In resoonse to this. the Salvadoran oeoole and ils
\,aiigu.ird III: I'MI.I( haie ~ec~encd ihc s;iboi;ige oi'ihc war ciunom), oi ihc

olig.irch'\ cc.in<>m).:ind hatc wrricd <>uiihc 'Let C'r Cp~nd Sabotage and ihc
People'h\Var ,\g~insi the Dirilii<~rïhip'>'lirror in ihc Kursl -\rr..isVcampsign

[Excerpts] On 28 June, the FMLN began the new nationwide "Long Live the
Workers' Heroic Struaale, Let Us Defeat Duarte's Capitulation" campaian. This
campaign is developiG within the framework of the people's increasiÏng~truggle
to secure their immediate goals and to weaken even further the U.S. plan that
uses Jose Napoleon Duarte as a façade. In less than a month, the FMLN's
various forces, its guerrilla and militia military units, have combined their con-

stant actions, impeding the Puppet Amy's genoçidal plans.
Attention, Salvadoran people. These are the results of our revolutionary
actions. In 47 days of continuous military campaigns at the national level we
have inflicted 1.100casualties on the o. ..t Armv. These include more than 16
olliier\. al1iraincdby ihc U.S militsry advisers \\le also cspiured Il5 priulncrs
of wÿr. uhu have alrcady bccn reiurncd io thcir F;~rniliesT .he dici;iiorship's loss
of I.l(idead and ii,oundcrl in thir mriod is euuivalcni 10 the lurs ol'an cniire
battalion.
We are intensely striking at and weakening the dictatorship's Amy. We are
neutralizing the plan to increase the forces that are equ~pp~ ~by U.S. military
advisers.
So far in our military campaign, the guerrilla army has seized more than 248
weapons, including 14 support weapons that include a 120-mmmortar. We re-

peat, in Our military campaign, the FMLN guerrilla army has seized more than
248 weapons from the dictatorship, including 14 support weapons that include
a 120-mm mortar. In this campaign, our guerrilla units have fought in new
theaters of operation. carrying out an intense sabotage of the dictatorship's war
economy, taking millions of dollars from it that were to be used to maintain ils
military machinery. We have sabotaged 56 electricity transformers, 54 of them
at the Cerron Grande hydroelectric plant. We have sabotaged an electricity
substation, a gasoline station, 3 locomotives, and more than II trucks and fuel
tankers. We have destroved four 120-mm mortars. one 105-mm cannon. one
armored vehicle, and vahous military trucks. ~hree military trucks have'been
damaaed. The aarrison of a Cazadores Battalion kas also been damaged by our ANNEXES TO THE COUNTER-MEMORIAL 301

All of these intense and general actions have caused a profound and hopeless
erosion of the enemy's human and material resources, rendering it completely
ineffective.The enemy Army kas been unable to mount a singlecounterofiensive
action that would permit it to substantially change the coune of the war and
the battles in this period. We have the tactical and strategic military initiative.
The enemy plans drafted by the Yankee advisers and General John Vessey,
chaiman of the U.S. Joint Chiefs of Staff; General Paul Gorman, commander
of the Southern Command; and Fred Ikle, the Pentagon's under secretary, are
being destroyed by the continuous and general actions of our armed people.
greet the experienced fighters and chieîs or the FMLN's revolutionary armed
forces.

[Text] On the night of I August, militia units sahotaged 30 manzanas of
cotton crops. The people's militiaachetcs trimmed 30 manzanas of cotton at
the La Normandia îarm in the jurisdiction oî Jiquilisco, Usulutan Department.,
The militiamen'smachetesare trimming thecottonofthe wealthy. On Wednesday,
I August, units from the Rafael Arce Zablah Brigade carried out the following
activities at midnig:the destruction of a gas station located north of Milian's
Motel on the Coastal Highway.
During this operation, a van parked at the gas station was set afire. Simul-
taneously on the same day our revolutionary units attacked enemy positions in
the ElMartillo Cotton Cooperative with riflesand RPG-2's, destroying a sentry
nost. Thus fat. the number of casualties suffered bv the enemv are unknown.
Durlng this opcralion. an agricul1ur;iltrartor uscd for ~ijtton pr;>ductionin (La,

Plantas) canton. ~Oihailanj ~urisd~ct~on, sulutaii I>ep;~rimcnt.w;is alsi] de-
stroved: Durine the same o~eration. Milian's Motel was also occuoied and
par&lly destr&ed because if was uxd as a hideout for the régim>s death
squads. The motel is located 2 km from the city of Usulutan.

EL SALVADOR

REBELS SABOTAGE ELECTRICITY IN THREE I>EPARTMENTS(EL MUNIW, 7 AUGUST 1984)

IExcer. .l Chalatenane- and other cities in northern Chalatenaneo- San
S.il\,ailor2nd Cu5catl;inI>ïp~rtmcnti arc \aithoui clr.ctriiit? i10gucrrill;~
.iciions in twi>,cctions of th.- ii<~rtliern'l'r~nk1-lightisy.Ass1,)mili1.1ry
reports, last night the guerrillas toppled power~lines of the Lempa River
Hydroelectric Executive Commission, CEL, rural distribution system. Officia1
reports indicate that the towns and rural communities from El Paisnal to the
northern areas of the previously mentioned departments were left without electric
power from 1930 when extremist groups simultaneously destroyed CEL power
posts by setting off dynamite charges toppling them onto the Northern Trunk
Highway. It was reported that other guerrilla forces staged two attacks on
Tutultepeque farm in the jurisdiction of Nejapa las1night where there were no
casualties ordamage. A military source reported that the extremists staged the
first attack at 2300, but they were repelled by volunteers of the civil deîense of
Aguilares who guard the fam. The second attack occurred an hour later but the
extremists were also repelled.MlLlTARY AND PARAMILITARYACTlVlTLES

Annex 55

[Nor reproduced] ANNEXES TO TllECOUNTER-MEMORIAL

Annex 56

UNITED STATED SEPARTMEN OTSTATE",EL SALVADO :REVOLUTIO OR
REFORM?'C , URRENT POLICY No. 546,FEBRUAR1Y 984

Thispubliculionis basedonoral and ii'riirenresrimonydeliveredby hghorne A.
Morley. AssisranrSecrelaryfor Inter-AmericanAflairs, beforea joinr hearingof
rhe Subonlmirreeson Hrln~unRiglirs and lnrernationul 0rgrinizurion.sund on
WesrerntlemisphereAfairs of lhe lloure ForeignAfairs Commiireeon Januury
26. 1984.

SIiCURITY
These economic, political, and social developments have al1occurred against
a hackdrop of intense guerrilla conllict.
lncreased weaoonrv and hetter traininp. have oermitted the euerrillas Io

transforma largenumber of their support foÏces into'activecombatants. Guerrilla
activities since 1980do not indicate any expansion of their influence among the
general population. Indeed, the guerrilla strategy of targeting the economy has
hurt the ooor the most and has cost ih- euerril. . oouula..suooort. Nevertheless.
the guerrillas' training, communiwtions, and armament have improved greatly.
This and other evidence disputes recent claims that Cuba and Nicaragua may he
reducing dircct support fo; the Salvadoran guerrillas or closing oKtheir com-
mand-and-control center in Managua.
An estimated 9,000-l1,OW guerrillas are now actively engagcd in the field
aaainst the Salvadoran Armed Forces. Over recent months. throunh continued
~riining and access to arms, the Salvadoran guerrillas have managëd to provide
formerly noncombatant personnel ivith equipment for combat. Whilc this has
increased the numher of people with arms, it is not a reflection of increased
popular support, and the overall number of people involved in the guerrilla
movement itself has no1 really grown. More of them are simply armed. Their
strategyis bÿsed on hit-and-run tactics. They capitalize on the Salvadoran Armed
Forces' need to protect static positions (cities, bridges, dams, etc.) while simul-
taneously waging an effective, mobile, offensivecampaign.
The Salvadoran military has prevented the guerrillas (rom gaining and holding
ground.Though the guerrillascan stzigeraids, they cannot remain in any position

from which the Salvadoran militarv wishes to remove them. Nor have thev heen
ablc iodi,rupi suihke)ri,ent\ :Irihc annu:ih.ir\esior n~iional elcctioni
Thc Sal\,adorÿn miliiary ha; signifirantly incrcasln sl,.U.S triiinmg hi
inçrcaicd. Sleverihclc<~,a numh~rçiiwrious g;ips cxisi. Thcrc are siill toi, Icw
U.S.-trained troops and the size of the Salvadoran officercorps is insufficientto
lead the rapidly expanding army in Limeof war. The latter has heen a particular
problem for command and control, military discipline, staff functions, and the
general management of the war.

U.S.ASSISTANCE

The Administration's original request to Congress for fiscal year (FY) 1984304 MILITARY AND PARAMILLTARY ACTlVlTlES

for military and economic assistance totaled $282 million, of which some $260
million was approved under the Continuing Resolution. In the context of the
global U.S. assistance effort, this amount is moderate both in view of the U.S.
securityinterest in Central America and the turmoil and human suiTeringwhich
Our aid helps alleviate. The Administration's request for El Salvador is only

about 3% of total U.S. assistance worldwide.
U.S. economic assistance has always far exceeded military assistance. In al1
but 1 year, economic aid has been at least three limes the amount provided to
assist the Salvadorans defend against guerrilla destruction.
U.S. economic assistance grew from $57.8 million in 1980to more than $240
million in 1983.It is divided into three elements:

Economic support funds (ESF) to assist the Salvadorans to meet critical
import needs, to finance their government's budget, and to pay for priority
projects such as land reform and improved machinery for elections;
Development assistance to finance employment-generation projects and other
social needs; and
PL-480 food donations to supplement shortages in basic dietary needs.

U.S. military assistance has heen an important element in preventing a guerrilla
victory. In addition to providing arms, ammunition, and logistical support, we
have helped train more than 15,000Salvadoran soldiers and officersin a variety
of military subjects, including respect foruman rights. Bythe end of 1983, 33%
of US.-trained troops and 90% of eligible noncommissioned officers were
reenlisting.
Congressionally approved assistance, however, has consistently been belowthe
Administration's reauested levels. For examole. in FY 1984the Administration
requested $86.3 million ;Congress, through its ~ontinuing Resolution, provided
$64.8million for military assistance. And because 30% of this amount iswithheld

by law until a verdict -is reached in the churchwomen's case, only some $45
million is available to address El Salvador's urgent security problcms. Over $25
million of this $45 million kas already been ohligatcd, and rcquests for an
additional $13 million are currently bcing processed. Funds will run out soon,
possibly on the eve of elections.

CONCLUSION
The democratic alternative in El Salvador, though faced with powerful op-
position frorn terrorists and guerrillas, has made steady progrcss since 1979 in
building a new, more equitable society and a more democratic and responsive
government. Our political support and our military and economic assistance

have helped.
In line with the recommendations of the President's National Bipartisan
Commission on Central America, WC will continue to support the Salvadoran
Government. Our moral and strategic interests coincide. In February 1984, we
will follow up on the recommendations of the commission to request additional
funds from Congress to address the economic, social, and security needs of El
Salvador and the other countries of Central America.
Presidential elections are scheduled in El Salvador for March 1984. The
Government of El Salvador, through its Peace Commission, has sought direct
talks to encouraee the euerrillas Ïo oartici~ate in the ballotine. The Peace
Commi,s~iin remsini prcTvparcd io mcr,i with ihc armed left and 11spolitical
i1~~<1c131 11\ JI%~LI;ihclr participaiion in frec r.lcctions. including ph!sical

sccurity for ciindidath and acicss 10 thc mcdia. Elccii<~nsfor thc Ciinstiiucnt ANSEXES TO THE COU~TI~R-MEMORIAL 305

Assemblv and local mavors will be held in 1985.The eovernment is committed
io cc>ntinulng tiiir) io hring ihe lefi inio parti~.ip~ttonin thsrc sleciions
Nonethelejs, thers ir c\,cr).inJii~ii~iniliai ihe gucrrill:i\\ilattsmpi IO disrupi

these moves toward democracy. 11is. therefore, imperalive thaf ~on~ressprovide
the needed levelsof military and economic aid. The commitment of Salvadorans
of the democratic center, who are defying both thc communist guerrillas and the
violence of the reactionary right, clearly justifies the continued support of the
United States. MlLlTARY AND PARAMILITARYACTIVITIFS

Annex57

COSTA RICANMINISTR Y1:FORI!IGNRBLATION ASD WORSHIP,
LASRI:LACIONE ESTRE COSTA RICA YNICARAGU(A RELATION BETWEEN COSTA

Department of State, Division of Language Services

(Trunslulion)

Repuhlic of Costa Rica

Ministry of Foreign Relations and Worship

RELATIONS BEI'WEENCOSTA RICA AND NICARAGUA
Report to the Diplomatic Missions Accredited to the Costa Rican Government

Mr. Ambassador:

Please bring the following information to the attention of your Government
as soon as possible:
1. At 1.50 on July 27, 1982, Angel Edmundo Solano Calderon, Minister of
Public Security, together with Franciscodn Lam, Chief Clerk; Carlos Monge
Quesada, Director, and Rodolfo Jiménez Montero, Assistant Director, of the

Ministry of National Security, made an accusation to the Agenciu Sexio Fi.scul
(Officeof a Public Prosecutor] that Germiin Pinzon Zora and German Altami-
rano Palacios had placed a powerful bomh in the central officesof the airline Ser-
vicios Aéreos Hondurefios S.A. (SAHSA) on July 3, 1982,at approximately
12.30a.m. (doc. II.
2. Thc 0ffice of National Security was able to arrest Gennin Pinzon Zora, a
Colomhian national, who confessed Io Attorney General JoséRoherto Steiner
Acuiia ihat he was resoonsible for thai serious act of terroris- torether with
Gcrmin ,111am1ranoI'~lar1oï According IO thai statcmcni. the homh planicd in
thc S,\IISA olficc5in SaJosC wnr pri OC a plan to rlrriihil17e Costa Kick*and
Jiscrcdititinternationallr The dan in;luJcJ operationIOsahotape imporl.int

facilities in Costa Rica, 6ther terrorist acts, kidnappings, attacks on banks and
acts against public institutions, agenciesand companies of other Central American
countries. According to the informant, the plan was devised and directed from
Managua, Nicaragua, hy Rafael Lacayo of the Nicaraguan Ministry of Interior.
3. On July 26, 1982,at 5.00p.m. in front of the Mas X Menos Supermarket
located in Escazuthe accused Altamirano Palacios was arrested as he was making
a contact with Pinzon Zora. As he was being arrested, Altamirano drew one of
the two weapons that he was carrying and resisted,king abusive remarks to
the authorities who proceeded to disarm him and take hiIONational Security ANNEXESTO THE COUNTER-MEMORIAI. 307

Heiidqusrtcrr. The .~iiuseJ Altsniir3no P~lsri6isdiJ no1 i<lentiT)hiiiiself as a
diplomat ;ilthe lime of his arrest iior ua, hç rarr)ing any ideniilication thal
would prove that he was a diplomat (doc. 1).
4. Yesterday morning [July 27, 19821Oscar Ramon Téllez,the Nicaraguan
Chargé d'Affaires, called the Costzi Rican Foreign Ministry to request that
Altamirano Palacios be released.The Minister of Foreign Affairsinquired about
what had ha~oened and was told that the Minisrerior Puhlico [Office of the
Public Prorcc;iior]. an ollicc in thc J~di:i.~lRranch,ciiuld n,>trelcaic Alt.iniirano
Pdliicio, bscauss h~.Jid not ha\: any ~deniiti&ati<ian>a diplomat. Volio Jim:ncr,
the Foreicn Xlinisicr, imrnçdiately a\kcd ths Chicf of the .Ili~iirrr,Piihhv, ti)
release tKe accused on the hash of the Vienna Convention on Diplomatic
Relations and, to that end, he pointed out that Altamirano Palacios was
accredited as an attachéat the Embassy of Nicaragua in Costa Rica. Altamirano

Palacios was released durinp.the afternoon (doc. 2).
5. In \,isu.of the serii,u~~ir i>ithe acts ~iu.hiih;\ltamir.in<i PdI;icii),togcthcr
th Al\aro RUIITapia. I:irst Secrçtary <>ithe hicsrsguan I:rnb;iss) in Costa
Kica,and Cairo ArevaIo H3lti,d3ni,. -1isistantin the Vicaracuan Coniular Otficc.
are accused, the Government of Costa Rica decided Io declare them persona
non grata and request that they leave Costa Rica as soon as possible. They
departed in the afternoon of that same day, the 27th (doc. 3). The charges
against Alvaro Ruiz and Cairo Arévaloappear in the statement by the accused
Germin Pinzon Zora made on July 17(doc. 4).
6. In the afternoon of July 27 His Excellency Migueld'Escoto Brockman,
Minister of Foreign Affairsof Nicaragua, sent the Minister of Foreign Relations
of Costa Rica a telcgram in which he lodged"the most energetic protest of the
Government of Nicaragua" regarding the detention of German Altamirano
which he described as a "great outrage" and "unjustified provocation that is

inconsistent with reoeated statements bv the Government of Costa Rica that it
is secking to preserve and strengthen ihe brotherly relations between the two
countries" (doc. 5). The Costa Ricdn Foreign Minister replied immediately. He
did not accept either the Nicaragudn protest or its tone
'bot only hecause it is unfounded but also hecausc it questions, for no
reasnn whatsoever..C-~~a Rica's obiectiveof ~reservinedi~iomaticrelations
heiieen our two countries ;hile CheCosta '~ican G&e;nment has al al1
timesshown that it wishesto strengthen such relations within the framework

of the most meticulous ohserva~ce of international standards and the
cultural heritage that unites Costa Rica and Nicaragua".
Minister VolioJiménezadded that he had expected ForeignMinister d'Escoto
to make an apology for what the three abovc-mentioned Nicaraguan diplomats
had done and what they had intended to do to the detriment of Costa Rican
peace and security. In addition, Foreign Minister Volio pointed out that the
Nicaraguan Government also owed Costa Rica an explanation

"for the frequent incursions by the Sandinista anny into Costa Rican
territory and for the constant violations by the Government of Nicaragua
of Costa Rica's rightto free navigation in perpetuity on the San Juan River
under the Caihs-Jerez Treaty of 1858 ratified bythe Cleveland decision in
1888. As 1 reminded Your Excellency thismorning, none of the notes of
protest that are based on fact ;ind on the existing legal system have been
answered hy the Nicaraguan Government."

In his reply Foreign Minister Volio recounted the Ministry's role in the releasc
of Altamirano (doc. 6).308 MILITARY AND PARAMILITARY ACTlVlTlES

7. On the same day, July 27, the Nicaraguan Ministry of Foreign AlTairs,with
no justification whatsoever and simply as a reprisal, requested the withdrawal

of Euclides Sandoval, and Luis de Anda, the Minister Counselor and Consul
General of Costa Rica respectively, who left Managua today (doc. 7).
The Nicaraguan Foreign Ministry las1 night told the press that Altamirano
was tortured and that his arrest and interrogation were conducted under the
direction of a United States citizen. Those assertions have been categorically
denied hv the Ministrv of Public Securitv of Costa Rica Idoc. 8).
8 lh~:*eri<>uc asts;or wliiih the ihree~l~~remcntionedJiploni~tr wereexpcllerl
irom the country :ire bel lin~ithcrmanifeit;ition ofihe atiiiude oiihc 'liiaragulin
Government, which k contrary not only to the principles and rules of present
international law, but also to those that govern two neighboring countries with
long-standing cultural ties.
It bas been observed, in fact, that from the heginning of the Government of
President Monge, the Nicaraguan Army was making incursions intoCosta Rican
territory, al times on the pretext of undertaking punitive actions against Nica-
raguan citizens crossing the border in10 Costa Rica, and at other times with

no reason or oretext at al1 other than to intimidate and cause eeneral alarm
among Costa ~icans along the border. On each such occasion, mimhers of the
Nicaraguan Army entered Our territory heavily armed and with complete
disresoëct for out authorities. who were few in number and ooorlv eauioced.
~hçsc'inc~rjionr pri~mpiedcomplsiliir by the Cos12 Riran 1-<i;eignMialsiry to
olticial\JIthe 'lic~raguÿn t:mblis\y in (.'o,tli Kica ;is we:ii 10t'i~reignMinis1r.r
d'Escoto and Deputy Foreign Minister, Hugo Tinoco, Acting Minister of
Foreien Affairs. The incursions also resulted in a numher of nrotest notes
(doc.3). With the intention of finding a satisfactory mechanism ior discussing
these incursions and oreventina their recurrence, the Government of Costa Rica
oroooscd the establishment of-a Mixed Commission. which Nicaraeua acceoted
idoc. 10). The meeting to coordinate the formation of this intergovernmental
group was held at the Costa Rican Foreign Ministry on June 15, and was
attended by, among other oîiicials, Foreign Minister Volio and Deputy Minister

Tinoco, Acting Minister of Foreign Affairs of Nicaragua. The first meeting of
the Mixed Commission was held at Managua on June II and 12, with positive
results (doc. II). The second round of meetings was held here in San Joséon
July 28, 29 and 30. The Commission is mandared to discuss border issues,
including a detailed delimination of the border, but it is not empowered to
discuss Nicaraguan interference with free and perpetual navigation on the San
Juan River, a matter which the Government of Costa Rica fecls cannot
be disputed.
At the conclusion of the sessions of the Commission, progress was made with
respect to implementing its mandate (doc. 12).
Y. In addition to the above, mention mus1 be made of the very serious act,
which is another manifestation of the Nicaraguan Govemment's hostility, of
violating the right of free and perpetual navigation on the San Juan River, bor-
dering on Nicaragua. This right is indisputably confirmed by the Caiias-Jerez
Tredty of 1858, which established

. . .thai ihc Kcpuhlic of Costa I<i>i i\,ienjiiy in iliese wdtcrs perpeiual
rights of frïc n;i\.i&ition. ïrum the aiorr.nientioncil m.iuth is point thrce
t.nglirh milcr bct>rc rexhing the Cd,tillo \icj.i [oiJ :osilel. "(Arii~~le 6).

Article Y of the treaty reinforces this right, stipulating that

". . .for no reason whatsoever, even should a state of war unfortunately A~XES TO THE COUNTER-MEMORIAL 309

exist betwccn the Republics of Nicaragua and Costa Rica, shall they be
permitted to engage in any act of hostility hetwccn themselvesat the Port
of San Juan del Norte, or in the San Juan River and Lake Nicaragua".

Despite Costa Rica's clear right to free and perpetual navigation on the San
Juan River, the present Government of Nicaragua has estahlished unlawful
conditions for the navigation of Costa Rican vessels on the waters of that river,
e.g., the right to discriminate against persons by reason of their nationality,
allowing only nationals of certain countries to navigate the waters; requiring
visas and passports of anyone aboard a tourist vessel travelling from Puerto
Viejo on the Rio Sarapiqui in Costa Rican territory, to Barra del Colorado on
the Atlantic, also in Costa Rican territory, and vice versa; the registration of
tourists on such trips, together with their luggage and other belongings; the
collec~i~n of1011s.orohibitine-smallcommercial and cattle vesselsfrom navieati-e -
the San Juan and requisitioning the vessels; detaining persons customarily using
the San Juan River for commercial and agicultural activities; intimidating
tourist vessel passengers; and most serious of all, the closing of navigation on

the San Juan for a number of days.
The Foreign Ministry has sent the Government of Nicaragua six protest notes
regarding this interference, with no reply to date except in one case in which the
Nicaraeuan Government did not refer to the subiect of the orotest. The Costa
Rica" Fi'oreign~inistr~ will nonetheless make other appropr&te bilateral eforts
to brine this interference to a hall, inasmuch as free navigation on the San Juan
River h no1 suhject to any conditions whatsoever, par<cularly those imposed
unilaterally by Nicaragua. It is the responsihility of Costa Rica, under its
sovereign rights, to take the necessary steps to ensure that free navigation on the
San Juan River hy Costa Rican vessels is carried out in accordance with Costÿ
Rican law.
Ii \houlJ bc iioicil thdi ilic Jz~.i\i<>nhandzd J<>un hy Prcridznt Grinzr
Clc\.cl;inJ rio1onl) dztcrmincrl thciiinc 1358ir?ai) \$asi,aliil.bu1dis ;ontirnicd
(:orta Rica's riehi io frc: ancl nernciual n:ivie~iion on ihc S;in Judi River uiider

the catias-~ere%Treaty with the &cePtion, &ording to President Cleveland, of
warships. Cleveland's arbitration or decision dates from June 22, 1888,and the
reference to the prohibition of worsliips on the waters of the San Juan River is
iustif~-d~ ~ one o~~the eleven.ooint~ ~f "~ ~ ~ful interorevation" submitted to his
arbitration under the Arbitration Cr~nventionof June 22. 1887,between Costa
Rica and Nicaraaua. In other words, President Cleveland's dccision estahlished
onlv one restrictTon on Costa Rican use of the waters of the San Juan River.
thai of navigating with warships. Consequently, the restrictions imposed unilat-
erally and unlawfully by the Government of Nicaragua and any other restrictions
as may he similarly imposed in the future, are and will he contrary to the treaty
and are ohviously hostile acts that very seriously aKect the relations between
Costa Rica and Nicaragua (docs. 13and 14).
The following are some examples of the interference that bas occurred during

the presidency OFLuis Alherto Monge:
June 6, 1982: A tourist boat of Swiss Travel Service S.A. transporting ten
tourists to Puerto Viejo was interceptcd hy a Sandinista patrol, which forced
them to discmbark, show their visas and register their personal cfïects.
June Y, 1982: A guide from the same travel agency on his way from Puerto
Viejo to Barra del Colorado with eqiiipment he had to transport was intercepted

by a Sandinista patrol whose memhers refused to identify thcmselvesand warned
him that they would not allow the tourist boat to proceed on June 13 unless
those aboard had Nicaraguan visas.310 MILITARYAND PARAMILITARYACTIVITIRS

June 13, 1982: The tourist hoat was intercepted again, and although the

Nicaraguan authorities did not demand visas as they had done on June 6, they
reuistered al1rasseneers and their lueeaee.
June20. 19k2: hi river was not grilled, but again the authorities requested
the passengers aboard the tourist hoat to identify themselves and register their
helongings.
June27, 1982: Same as June 20.
July 16, 1982: The Nicaraguan authorities advised the captains of SwissTravel
S.A. vesselsthat because they were celebrating the anniversary of the Sandinista
revolution. Dassaee would be ~rohibited to al1Costa Rican vessels from 6 u.m.
on JUI~ 16;ntil July 22.

July 17, 1982: A boat equipped with an outboard motor was stopped hy the
Nicaraguan authorities and its three crew members, al1 Costa Ricans, were
prevented from navigating the San Juan River. One of the men, Eli Alvarado
Sancho, was detained for 48 hours. He was released through the intercession of
Foreign Minister Volio with the Emhassy of Nicaragua (doc. 15).
Jul, 18~.1982: Two hoats beloneine t- -wiss Travel S.A. ~roceeding from -
Barra del Colorado to Puerto Viejo, Sarapiqui, to pick up a group of tourists
were stopped by Nicaraguan authorities and forced to return without the
passengers (docs. 16and 17).
July 23, 1982: The Nicaraguan auihorities continucd to detain tourist vessels

and to inspect luggage and other items belonging to the passengers. but this
time they did not collect a fee for clearance, as they had unlawfully done
b~ ~~e~
July25. 1982: They resumedcollectinga clearance fee,in addition to registering
luggage. This action was repeated by the same authorities on July 28.

Documents 18, 19,20, 21, 22, and 23 are presented as cvidence of some of the
interference dcscribed ahove.
Statements [rom the captains of the tourist boats on the San Juan River are
being received at this time. Statements by two rural policemen who were aboard

one of the tourist hoats on July 18, 1982,have been included.
It is necessary to point out that, as shown hy the enclosed document, the
activities of schools in the northern zone have also been affected. No1 only has
enrollment dropped but one of the schools, Poco Sol School, had to be closed
hecause of the parents' fear of Nicaraguan Amy raids.
Overflights by aircraft from the Nicaraguan Air Force constitute another
vi~-~~~ ~ ~~ ~-~~a Rican territorv.
The Costa Rican Government has made clear public statements regarding ils
neutral position in 50 far as Nicaragua's internai aiTairs are concerned. Costa
Rica resbects a ~eoole'snght IOself-determination and the ~rinci~leof noninter-

vention ;n the {nteinal afairs of other countries. As evidénceif that policy, 1
have enclosed the May 22, 1982,decree of the Governing Council (doc. 24).
Nevertheless, the Costa Rican Government cannot, and should not, remain
passive in the face of so many unfriendly, and even hostile, acts that adversely
affect its sovereignty and its rights, including the right to live in peace, which is
so dear to the Costa Rican people. For that reason the Costa Rican Government
will exhaust the dinlomatic resources availahle to it and will do evervthine . -
po5,ihle to \hou ihe üovtrnmcni oi Ntc:irïgua thai ilonly ui\hes r<imiinlain
noriiiül and evensiirJ,:il relation\ withit tloivever. iino solutii>n iithe problrms
referred to in this document can he reached through diplomatic channels. the
Government, with the overwhelming support of thécosta Rican people, will

take whatever steps it considers adequate to assert its rights. ANNEXES TO THE COUNT~R-MEMORIAL 311

1 avail myself of this opportunityto renewIo Your Excellency the assurances
of my highestconsideration.

San José,July28, 1982.

(Signed)Fernando VOLIOJIYÉNEZ,
Ministerof ForeignRelations
and Worship.

[Ministrystamp] Annex58

"HONDURA ARMYDEFBACTSBAN-TMINREDBEUNI.^, ASHINGTONPOST,
22NOVEMB ER83

[Nor reproduced] ANNEXES TO THE COUNTER-MEMORIAI.

Annex 59

[Speech by Roberto Martinez Ordonez, Honduran ambassador to the OAS,
during a special session ofthe Permanent Council held al OAS headquarters in
Washington - live.]

[Text] Mr. President and rcprcsentatives:

We know very wcll that al1the members of this Permanent Council are aware
of the critical situatioii of Central America. We also know that the Governments

that make up this Organization, as well as their distinguished representatives,
know the eiforts that the Contadora Group countries - Colombia, Mexico,
Panama and Vcneïuela - are making to find a just and propcr solution for this
delicate situation.
The Honduran constitutionalGovernment, headed by Roberto Suazo Cordova,
thorouehlv aware of its dulies as a member of this Oreanization, has given and
continiesio give its fullest support and cooperation to-the efforts of the brother
countries that make up the Contzidora Group, with the clear objective of
reaching, through a civilizcd dialogue and as soon as possible, serious regional
agreements to reach a comprehensive settlement to the problems of the region.
The key issues that characterize the Central American crisis were clearly
identified at the outset of preliminary contacts between the foreign ministers of
Colombia, Mexico. Panama and Venezuela and the Rve Central Amencan
countries, which culminatcd in their first meeting held in Panama City from 19
to 21 April.
In the communiqué issued by the Contadora Group after this meeting, the
nroblem areas were identified as follows: the arms builduo. the control of
~ ~ . .
weapons and their reduçtion, arms traficking, the prcsence of military advisers
and other forms of forcian military assistance, actions aimed at destabilizing the
interna1 order of States; threats and verbal aggrcssion, military incidents and
border tension.
There is a remarkable coincidence between thislist of matters and the list that
my Government presented, through ils foreign secretary, al this Organization on
23 March 1982, when it proposed a Face plan for Central America. This
coincidence confirms the sincerity with which Honduras kas approached the
problem from the beginning.
It mus1 also be noted that the simole act of listing the oroblem areas show
that their nature is prcdominantly m;ltilateral, althGgh this docs no1 exclude
problems that can be solved through bilateral negotiations and others that are
only the concern of eaçh country.
It is important tu bring to the attention of the distinguished rcpresentatives
the fact that the toialitarian Nicaraguan régime is the main factor in the
ernergence of the regional crisis, because it kas unleashed actions aimed al

destabilizing govcrnments in other Central American countries. These actions
include, among others, direct support for terrorist and subversive groups. To do314 MILITARY AND PARAMILITARY ACTIVITIES

this, Nicaragua has the backing of antidemocratic groupsand countries that are
alien to the Central American region.
This behavior has prompted a natural rejection in my country, and in other
nations in the region. These nations have been forced to take internal security
measures to defend their legitimate nghts and the democratic system that they
freely chose.
My Government recognizes and supports the efforts being made within the
Contadora Group to achieve the goals it set out to reach. But despite these
efforts, the incidents that have heen occurring since the beginning of its fraternal
endeavor show the aggravation of the Central American situation as the direct
and immediate result of the warmongering and threatening attitude of the
Sandinist régime.
~icara~uà has continued in its spiralling arms buildup. 11has continued the
trafficking of weapons from several places through its territory, particularly to
El Salvador, violating our sovereignty.
The actions for the political destabilization of the area have not been inter-
rupted; on the contrary, they have been increased. The acts of provocation and
aggression against Honduras have not ceased; rather they have flared up. In
addition, the recent massive mobilization of Nicaraguan troops at Our southern

border iustifiesOuralarm and aoo..hension that thev are steno.~i. .~~rhei~ dans ~
for a larger military aggression against our country, which would end, once and
for all, the hopes for peace and security in the Central American rerion.
All this clearlv shows that centrai America is exoeriencine a-widesoread
ionilici pro\,,ikci by iïiiaraguli. uhichha> conicqucniei for a~l~ountricj ;nthe
regiiin. 'lhrrefore. ihiihnix JU~I ïhilritcr~lconiliii8s ihc SnnJini,i rcgimc has
tried to label it.
If it is important for Nicaragua to approach its internal problem- a problem
that sometimes prompts conflictive situations of a bilateral nature with other
States - at a discussion table, it is of the highest priority for the rest of the
Central American countries to discussthe regional problems created by Nicaragua
because of its worrisome arms buildup, its direct participation in the destabi-
lization of the other Central American Governments, and its clandestine arms
trafficki-e.
The rcïsun ihat the Ilondurlin Govcrnmcnt had io wll th15spcidl nicciing of
the I'crmancni Council u13iin explain clcarl10 ihc I.atin Anicrican Gu\.crnmcnis
the situation in Central America and our wace-loving attitude. In addition to
drawing your attention to the gravity of ihe situation, we are expressing Our
hope that your effort in achieving peace and secunty will, because of the moral
force it represents, prevent an armed aggression that we foresee will come from
Nicaragua.
We Kope that the OAS and the governments that comprise it will take due
notice of the serious Central American situation and the factors that determine
it, so they can calmly analyse the possible measures that could be taken, but

within the parameters of the duties and responsibilities prescribed in the OAS
Charter.
As a matter of fact, in its preamble, the OAS Charter states that al1OurStates
have signed it with the certainty that a genuine senseof Latin American solidarity
and good-neighborly policy can only mean the consolidation, within thc frame-
work of democratic institutions, of a system of individual freedom and social
justice on this continent based on respect for human rights.
When the main objectives of the OAS were determined, Article 2 was
formulated 10 establish, among other things, the strengthening of peace and
security on the continent, the prevention of possible causes of dilficulties, the ANNEXES IO THE COUNTER-MEMORIAL 315

guarantee of peaceful solutions of coniïicts between member States, the organi-
zation of solidaristic action hv these States in the event of an aperession, and the
promotion of solutions forpolitical, legal and economic problems that may arise
between them.
In Article 3, the Charter pointed to the following principles: International law
is the norm of conduct of the States in their reciprocal relations; international

order is essentially characterized by respect for the individuality, sovereignty and
independence of the States; and the obligations established in treaties and in
other sources of international law must be faithfully met. Good faith must guide
relations among the States. The solidarity of the Latin American States and
the lofty goals pursued by them demand that their political organizations he
based on an effective [words indistinct] of representative democracy. The Latin
Amencan States condemn a war of aggrcssion; victorygives no nghts. An aggres-
sion against one Latin American State is an aggression against al1 the other
Latin American States, and any international controversy that may arise between
two or among more Latin American States must be solved through peaceful
means.
By reading these articles, 1 am leaving no doubt about the OAS obligation to
contribute, through its direct effortand that of its memher States, to a peaceful
settlement of conflicts, and to delènd the right of Our people to organize
democratically. These articles also cal1for solidarity with member States that are
bent on defending their institutions in the face of covert or direct aggression by
sectors or countries that want to destroy the freedom of men.

In our analysis of the incidents occurring in Central America, with whichmost
countries are familiar, we warn that our continent is facing a war without bor-
ders that is encouraged, promoted, supported and, at tirnes, even led by foreign
Marxist forces that are trying to impose, through the armed struggle, their
totalitarian political-social systemon us.
The names of the groups that comprise this international terrorism are not
important. What is relevant is that the characteristics of their terrorist actions
for social and economic destabilirdtion are the same. The sources that supply
them with weapons and destructive equipment and give them training and
logistical support are also the same. The interconnection and public support
existing among al1 these subversive movements and tbeir mutual cooperation
show that they are truly part of an overall effort for destahilization and terror
within this war without borders thnt threatens our existence as nations.
Although these efforts for destahilization have not found a favorable echo
among the Honduran people, we understand that the threat of the destruction
of Our way of life and govemment Iiangs over us like Damocles' sword. This is
shown in the followingincidents and actions:

Regarding increases in the Nicaraguan Armed Forces, the Sandinist Govern-
ment currently has at least 129,20(l armed men. However, London's Interna-
tional lnstitute for Strategic Studies gave a higher figure for al1 branches
of the Sandinist Armed Forces for the 1982-1983period. This figure does not
include Interior Ministry troops. This Institute established that the total number
of Sandinist troops is 136,700.
We must admit that the Sandinist Government has cunningly surprised the
international public. It made certain media helieve that Nicaragua is the one
that could he victim of a large-scale military aggression by Honduras. 1am sure,
Mr. President, that if we compare the data 1have supplied about the Sandinist
Government's military strength, coiifirmed hy London's International lnstitute
for Strategic Studies, with the number of troops that make up the Honduran316 MILITARY AND PARAMILITARY ACTIVITIES

Armed Forces - which is no more than 16 per cent of the Sandinist figure -
we will see that the ill-intended charges that the Nicaraguan rbgime has been

making against Honduras are increasingly unhelievable.
Nicaragua has upset the Central American region's military balance. In only
four years, its armed forces have grown by 1,300percent. These forces numhered
10,000 men in 1979. How can they justify such disproportionate growth? Such
a large armed force could serve to subject Nicaraguans to the orders of the new
government, to try and impose its political and economic model on neighhoring
countries, or to hegin interventionist military adventures elsewhere in the world.
The size of the Sandinist Armed Forces is much greater than the total of the
military troops in the rest of the Central American countries. This fact alone

justifies the concern, the insecurity and the threat that Nicaragua's neighhoring
States feel.
The rapid growth of the Sandinist Armed Forces has been accompanied hy
an arms builduo of unbelievahle orooortions for Central America. Thev have
weapons that aie not only intendid for Nicaraguan use, but arc sent tocosta
Rica, El Salvador, Guatemala and Honduras for subversive purposes.
In the past few years, the Nicaraguan Army has heen equipped with very
imoortant antiaircraft weaoons. antitank arms. and field artillerv. includine
152-iniiih<)\vii7r.ri11iJmrlltiplc rocket I~uniher, iiill411 h;irrcli aiidA range ui

20.5 <ni, i.ink, dnclarniurcd \r.h1.4c~..iir.r;irt huc:I\hll-8 Iiel~~~ptcr.\ind So\ir.t
cargo planes, amphihious tanks, patrol boats, field packs and hundreds of
military trucks for troop transport.
One hundred and twenty Nicaraguans were sent to Bulgaria to undergo pilot
training for MIG planes, and 40 more are being trained at the Punta Clara
Academy in Cuba. Why is Nicaragua preparing itself in this way?
Your Excellenciesmus1not ignore that this quantity of troops and this diversity
of offensiveweapons gives reason for alarm throughout the region and prompts
us to prepare ourselvesfor our legitimate defence,because that isthe responsibility

of any State.
You will he able to observe these proportions graphically in the material that
has been distributcd to you.
At the same time, wemus1note that while the Contadora efforts are underway,
the Central American picture has continued to change. In the past few months,
the shipment of arms and ammunition to Nicaragua kas increased. [Words
indistinct] The Brazilian Government seized three planes [words indistinct] and
a C-130 that were carrying 2,000 tons of weapons [words indistinct]. The
Nicaraguan leaders puhlicly admitted that these shipments were destined for

them. Colonel Mu'ammdr al-Qadhdhafi also made public remarks admittingthat
although the shipment had heen stopped, he would continue to supply al1the
weapons the Sandinist rkgime wanted.
A few days after the seizure of the Lihyan planes, Costa Rican officiais
discovered a 500-ton Panamanian-flag ship that was carrying weapons and
explosives for Nicaragua.
On 3June, a Bulgarian ship unloaded Soviet tanks at El Bluffport. On 5June,
a ship that had sailed from the GDR unloaded 100 military trucks and several
tons of weapons and war materiel at Corinto port. On 8 lune, authorities of

Puerto Limon, Costa Rica, searched the hold of the Soviet ship Nadezhdu
Kr~ipskuyuand found that it was carrying several helicopters intended for the
Nicaraeuan Govemment.
011 lj Junr.. ii Ic:irncJ ilidiilic Sii~rag.i.in U.i\,) hiil ii.ii~rp<irtr.dtu2
guiihii;il, biiidl ihi (I>r.ricrel \hip);trilns.ir( dnnr,,. I'r;,~ic011 the 9~iiirLI.!!.,
IIrid, SAIJih:ii ihc hl.ir\i.i go\:rniiir.iit .ri Soiiih i'cmcn iv:ii osgo1i:tting ilir. ANNEXII~ TO THE COUNTF.R-MI~MORIAI. 317

sale of a certain number of MIG-17 fighters with Nicaragua. This information

was confirmed by Miguel Bolanos Hunter, a deserter of the Sandinist counter-
intelligence forces, who said hcre in Washington that Nicaragua was in the
process of acquiring a Soviet antiaircraft defence system and 60 MlG planes.
The Honduran Government also knows that early in June the Nicaraguan
Government also received al El Bluff port 20 BTR-152 armorcd personnel
carriers, 5 BRDM vehicles,4 BM-21multiple rocket launchers, and other vehiclcs
of lower tonnage whose exact quantity bas not been confirmed. The destination
of 5,000 boxes of ammunition found inside the Cloud is still unknown. This ship,
which was found in the middle of the Atlantic Ocean without a Rag or crew but
loaded with 122-mmshells exclusivelyused by Soviet cannons, was towed to the
Vene~uelanCoast.
How can it then he said that the Sandinist Government is acting in good faith
in the negotiations begun within the framework of the Contadora Group, when
in the pastmonth alone Nicaragua has receivedno lessthan sevenlarge shipments
of weapons.
1s Nicaragua preparing to make Face or to wagc war? Can it be believed
that Nicaragua is willing to reach aiiy kind of agreement on disarmament when

it is arming itselfexcessively? 1sit willinto reach agreements on the reduction
of troops when the size of the Sandinist Armed Forces is constantly growing?
In fact, its most prominent leaders have publicly stated that they hope to have
weapons for 200,000 Nicaraguans.
A few days ago, on 6 July, Comniander Humberto Ortega Saavedra told 300
militia chiefs that Nicaragua will continue modernizing its army, and that it will
create the territorial militiasin order to distribute units with better manŒuvrability
and weapons throughout the territory.
According to an AFP report, Ortega Saavedra stressed that thousands of
civilians have joined the infantry reservc battalions, the permanent army units,
and the self-defencegroups in cities and towns, particularly those on the border
with Honduras and Costa Rica.
It is useless to claim that such disproportinnate quantities of wcapons are
intended for use in a direct confrontation with any of the large world powers.
Nicaragua's preparation for war has been constant.
IZrom 1979 to 1983, it has built approximately 30 new military installations
with Cuban-Soviet advice. These installations will serve to lodge military per-
sonnel and keep armored equipment for transport and logistical supply. Their

locations show that the Nicaraguan Government is preparing to launch an
oknsive operation in the north against our territory.
Nicaragua currently has three airbases capable of receiving MIG-19 and
MIG-21 planes. The Montclimar, Piierto Cabezas and Bluefieldsinstallations, as
well as Manaeua's Sandino Aimort. have been reconditioned. All their landinr
strips have bccn csicndcd 10 niurc than ?,O(iOniciers.
Ai prcsent, thc S3nI<ami,nair in>t;ill;ii~o,rc king bu111uirh Cuban d>.i,t:inx
Thcsc institllations uill hdvttrsriinu,d\. ior the Ianding 2n.l takr-oB of icir
The Nicaraguan Government has al& built several Grategic roads, iicluding
that of Managua-Puerto Cabezas, wliichservethree purposes: to exercisemilitary
control over the Nicaraguan Miskito residents, to have a ground supply route
from Cuba for supplies entering from the Atlantic Coast, and to develop the
area, the rcason that has been publicly stated.
Sincc latc June, the Sandinistas have been incrcasing their activities and have
hcen dcploying troops along the border area ncar the fionduran departments of
Choluteca and El Paraiso.
The Nicaraguan Government has deployed many troops and much military318 MILITARY AND PARAMILITARY ACTIVITIES

equipment to places near Our country, such as Leon, Ocotal, Chinandega,
Somoto, Somotillo, Jalapa, Esteli, Condega and others. This area covers a line
that is approximately 250km long, forming the so-called northern front, which

obviously represents a serious threat to Our country. The units that have been
deployed include 5 Sandinist People's Army [EPS] battalions. 19 reserve hat-
talions that have been trained and incorporated in the group, 1 tank battaliou
of the Pahlo Ubeda troops, and 3 companies of special units, for a total of 29
mobilized battalions.
On 5 luly, it was also reported that the EPS had implemented a new and
massive mobilization of trooos and Soviet tanks on the Honduran border. This
mobilization was confirmed by the Nicaraguan Interior Ministry.
MI. President and Messrs representatives, another serious problem mentioned
by the Contadora Croup is the secret arms traffickiug.
The Nicaraguan Government has heen sending weapons to the rest of Central
America, especially to El Salvador, since 1980.In the specificcase of Honduras,
Nicaragua has repeatedly violated Ourterritory in order to do this.

On 17January 1981Honduran Amy troops and public security agents seized
a large shipment of weapons and military supplies 16km from Comayagua.
The shipment had heen well camouflaged inside a van that entered our territory
through the Guasaule customs post. These weapons were for Salvadoran guer-
rillas. We seized M-16, G-3 and Fal rifles; M-l carbines; 50-cal. ammunition
clips; Chinese RPG rockets; 81-mm mortar rounds; ammunition clips (cater-
inas); communications equipment; and medicines. Five Hondurans and 12
Salvadorans were arrested for their involvement in this shipment of weapons
and supplies.
The arms trafic has continued through diferent ways and means. On 7 April
1981troops of the 1lth Infantry Battalion statioued in Cholgteca seized another

van carrying 7.62-mm and 5.56-mm ammunition that had heen packed in poly-
ethylene bags and hidden in the sides of the van. The troops also seized a large
quantity of materiel for the Armed People's Revolutionary Organization, ORPA,
of Guatemala, which was supbosed to get the entire shipment. This van had left
from Nicaragua and was detained at the Guasaule customs post.
Honduran territory has also beeu illegallyused for the passage of troops from
Nicaragua to El Salvador. On 26 March 1983 a Honduran patrol caught a
group of guerrillas by surprise in Las Cuevitas, Nacaome Municipality, Valle
Department, in southeru Honduras. They were en route to El Salvador from
Nicaragua. Two of the guerrillas were killed in a clash with the Honduran patrol.
On this occasion we seized M-16 rifles. one Czechoslovak 7.65-mm machiveeun
made by FHX, M-16 clips, machinegun clips (caterinas), a portable radio,-an
FSLN flag, FMLN and FSLN manuals, as well as two notebooks containing

full information on the general route used to move military personnel and
weaoons throueh Honduras on ~h~ w~ ~ ~ El Salvad~~ ~ ~
~he an di nirégime'sintervention in al1the countries of the Central American
region is also revealed in the training of Hondurans at several of the Il schools
th& are overatin- inNicaragu- for this n. .ose. Thev are located in the different
military regious of that country.
Nicaragua is also the bridge for the training of Hondurans in Cuba. On
24 Januaw 1983 a erouv of 16 Hondurans was cavtured bv our authorities in
~e~uci~al6a.~ccor&ng (Ostatements given by the ariested pérsons,their purpose
was to travel to Cuba via Nicaragua in order to receive guerrilla training and
then return to the country to disrupt order. The arrested persons charged that
Professor Ramon Amilcar Cerna Gonzalez was responsible for this operation.
They also said he was the Honduran contact with high Sandinist officials. ANNUI^> TO THE co~hm-MEMORIAL 319

Nicaragua has also introduced another perturhing clement in10 Central
American relations, because il has brought into its territory more than 17,000

military and other kinds of advisers, mainly from Cuba, the Soviet Union, the
GDR, Bulgaria, North Korea, Vietnam, the PL0 and Libya, ainong others.
Such an im~ressive foreign urescnce makes Nicaraeuan territorv an area of
intervention'by foreign force;. Il has also brought ïo our region the tensions
deriving from an extra-continental threat, thus allowing the East-West conflict
to become evident here inmore ways than one.
Sin~~ the Sandinist Government look over nower and the interna1 violent

conflis~1h:iidisrupti lil Sal\,ador becamc worsc, llon~lurlirha, rulicrcd scries
of hcightened actions sgIiin,t ils dcm~~r.ratiiçn,titut~~in. hcsc :ictionr Iircclciirly
liiikcd io the Siwr:teuiin Govcrnmcni and tlic FhlLK. \\le c.in mcnti,>n. a, an
exampleof theseactions, the kidnapping of ltalian businessman Higinio~aiantelli
D'Andrea on Ianuary 1980. He was later murdered. Likcwise, there was the
April 1980kidnapping of Texaco general manager Arnold Quiros, in San Pedro
Sula, barely three days before the elections for deputies to the National Con-

stituent Assembly. Also, there was the takeover of the OAS headquarters in
Tegucigalpa. On that occasion, OAS representative Ulises Pichardo and three
ernployees were held hostage. In addition, there was the kidnapping of banker
Paul Vinelli hy a commando of the People's Liberation Forces, FPL, which is
part of the FMLN. in December 1980.Vinelliwas released on 2 May 1981after
a large ransom in dollars was paid. In March 1981an airplane of the Honduran
Company SAHSA [Servicio Aereo de Honduras, S.A.] was hijacked by a
commando of the Cinchoneros group comprised of three men and a woman and

was forced to land in Nicaragua. It was later Rownto Panama, from where they
dcmanded that the Honduran Government release Salvadoran FMLN euerrilla
leader Facundo Guardado and other guerrilla members who had heenarrested
in Honduras and charged with the clandestine trafficking of weapons through
our territory.
On August 5, 1981 the FMLN kidnapped engineer German Eyl, who was
released on II December 1981after a large ransom was paid, again in dollars.

On 10 March 1982 businessmÿn Jacques Casanova was kidnapped by a group
heloneing to the FPL. which is a oart of the FMLN. Casanova was freed from
tcr~ri~l ccll gin II)XI:,) 1992hi, ;ipolice c<>rnni;indo operation. On 28 April
1982a DASH-7 airplaiic bclonging t<ithe II~nJur~flÿrrlinr.SAHSA uar h,j;iikcil
in the port .ilLa Ccih~. Atlsniida I>cliartmcnt, in Hondurar The I.cnir>ir:i
group Elairned responsibility for this aciion, it acted in coordination with'the
FMLN. The hijackers finally released the passengers and the airplane's crew,

and left for Cuba on 1 May 1982.At 1830on 17 September 1982,in San Pedro
Sula, 12 terrorists violently entered the Cortes Chamher of Commerce and
Industries. firing their machineguns and wounding two Honduran citizens. This
action initiated the criminal kidnapping of over 100 people. including two
ministers of state and the oresident of the Central Bank of Honduras, who were
oarticinatinu in~ ~seminar in economic oolicies.The Cinchoneros erouo daimed
;espo&ibility for this ac~ion; its~linkswrth ~icara~uai Cuba and~tKe~alvadoran

auerrillas were clearly established. This g-.up demanded that the Government
jeledse Salvadoran guerrillas.
Eight days later, after many delicate conversations conducted through the
valuable mediation of the Apostolic Nuncio in Honduras, the Bishop of San
Pedro Sula and with the friendly cooperation of Panamÿ, the terrorists released
the hostages and left Honduras for Panama in a Panamanian Air Forceairplane.
Twenty-four hours later, they continued their trip to Cuba. On 14 December
1982 a group from the People's Revolutionary Movenient, MRP, kidnapped320 MILITARY AND PARAMILITARY ACTIVITIES

Doctor Xiomara Suazo Estrada in Guatemala City. She is the daughter of
Honduran President Roberto Suazo Cordova.
Mr. President, this list of actions is not complete. Other terrorist actions
include the destruction of two power stations that left 80 per cent of the
Honduran capital without electricity, and the detonation of explosive devices

in olrices belon- -e to the Salvadoran airline TACA and Air Florida. the Pan-
'inicricdn Life 1nhdr;in.v('rimpyn) and IBM. XIIIJS ~onipmii-.
Bc)<>nddur bordcrr, c~plusivccharge3 ircrc placcd in SAIISA's ofliics in San
Joir:.Costa Kicliand in Ciuaicm:ilaCits. Gu.itciiialli. 7hï C'osiaRiclin Govcrn.
ment expelled twb Nicaraguan diplornais because they were responsihle for those
actions.
On 14April 1983the Honduran diplomatic mission in Bogata, Colomhia, was
blown up while Nicaraguan Foreign Minister Miguel d'Escoto Brockman was
there on an officialvisit. This terrorist act was perpetrated with great cruelty. for
the Honduran consul was tied up and the bomb was placed in front of him and
detonated. The Honduran officialsuffered grave wounds and contusions. Other
terrorist acts include the placement of bombs in the Chilean and Argentine
embassies in Tegucigalpa, al the Honduran hrewery in San Pedro Sula, and at
the Texaco refinery in Puerto Cortex, and the direction of machinegun fire at a
moun of members of the US militarv mission in Honduras.
" ~~r ~ ~~ ~ ~
At the same time, the c on dur aiilomatic missions in Ecuador, Mcxico,
Venezuela, France. Great Britain and Germany were subiected to assaults and
large demonstrations. The persecution of our-country ii also evident on our
border, where Nicaragua harasses Honduran border towns. From 1979 to date,
the Sandinist régimehas staged nearly 200 attacks on and violations of our
territory, airspace and water. Inthese incidents, unamed civiliansand Honduran
troops have either been killed or wounded. When the Sandinist forces enter Our
territory, they pillage and destroy and kidnap defenceless Honduran citizens.
They attack our fishing boats, within our territorial waters in the Atlantic and
PacificOceans, with artillery fire. The hoats are captured, along with their crews,
and taken to Nicaraguan ports.
The Nicoraguan leaders level al1 kinds of verbal threats and insults against
Honduras and ils highest officiaisin an attempt to create a climate of increased
hilateral tension. Last vear. Commander Tomas Boree said in Madrid that
Nicaragua would give al1necessary support to guerrilla actions in Honduras. In

March 1983Commander Humberto Ortega Saavedra threatened Honduras with
war, saying that Nicaragua's troops, airplanes, tanks, artillery and al1 of iis
offensive armament were ready to perpetrate an act of aggression against our
country. These statements provoked a protest from Honduras, conveyed by ils
Foreign Secretariat.
In April 1966 thissame commander told The New YorkTinies that Honduran
revolutionaries could strike the Honduran Amed Forces if they continued to
launch attacks on Nicaraguan territory. This statement was also rejected hy my
Government. During the same month, the Nicaraguan foreign minister made a
statement in Panama, declaring that the chances of open war between his country
and Honduras had increased. In a speech before the UN Security Council in
May 1983 the foreign minister said that Nicaragua could start a war wiih
Honduras.
Last month, Sergio Ramirez Mercado, member of the Nicaraguan Junta of
the Government of National Reconstruction, said in Caracas. Venezuela, that
everything seemed to indicate there would be an armed confrontation beiween

Honduras and Nicaragua. Commander Toms Borge also said last June, in a
speech before Nicaraguan workers, thai terrible and glorious limes are near. Hc ANNIIXFS TO THE COUNTER-MIIMORIAL 321

asked the workers to inake sacrifices and to preparc for war against Honduras.
More recently, on 2 July, the Nicaraguan interior rninister himself told the UPI

news agency that he saw no chance that an agreement would be reached to avoid
war with Honduras.
All of these statements and threats have been accompanied by falseaccusations
that Honduran soldiers are harassing the Nicaraguan troops. They have even
reached the extreme point where the Nicaraguan foreign rninistersaid on 3 ,May
1983 that Honduran soldiers had crossed the border and invaded Nicaragua.
This information was so absurd and incredible that the Nicaraguan îoreign
minister himself corrected the statement, saying this was an erroneous interpre-
talion of the communiquéissued by the foreign ministry.
Mr. President. Messrs re~resentatives. this is the current situation in mv
c,iuniry, a .ountr! th.ii1; being thr:,itcncd, h~r.,s>cJ ,inJ ;ittacked by thc
S.indiniit <;ovirniiicnt Khi>is ihc ,itu;iiioiriihc Ccniral ..\rn..ri.'anrr,gi3lro
hcing rhrc.itcncrl. har;irrcd .ind attaslcd by the Sand~nistG<i\,r.rnnieni.uhich
kas ,h,>un not thc ,lightert hcsitaiion in unle.ihhingJn unrcstrained and vigorous
arms builrlup. thu; hreaking the icrmï iii sccuriiy in the Central Americ;in
isihn~us.*,hich isindilTsrenti<riiardthe iIi,astroui consequenie\ Ihat ihc crcdtiun
of an enormous army. which exceeds the numher of military troops of the rest
of the Central American countries combined, will have for the region, which
continues to be the main weapons supplier for the subversive and terrorist
movements in the Central American region, which cares nothing about the
consequcnces of permitting the use of its territory by extra-regional and extra-
continental forces, thrcatening the peace and security of the entire American

continent; and which continues to harass Our southern border and to kill
Honduran Deasants and foreieners. such as the case of two US iournalists who
were killed'recent~~by the explosion of a mine placed by the ~kdinist People's
Army, in violation of our territory. These incidents have also provoked a mass
exodus of Honduran border inhabitants to Our interior.
Honduras has not broken its word or the gentlemen's agreements thai it kas
entered. The disiinguished representatives are aware of the goodwill with which
Honduras accepted the suspension of discussions of its proposal to this council,
so that the Contadorü Grouo's noble efforts would have an oooortu..tv IO be
fruitful. You are also aware of the commitment by which Nicaragua undcrtook
to abstain frorn bringing actions up within the United Nations, a commitment
that the Sandinist GoveFnment did-not honor
At a ncur ionfercncc in \Ic.\Ic~ CIL?on 13Aprll 1983 llir lix.cllenc) 1cxic.in
I'orcign Sccrctary Hcrmrdo Scpul\,cJ adniiticd thai Iî~>nd.iriis'i.oni~li;<tory
oosition uithin lhc OAS made Contadora's irliernal cll;>rt, possihlc Kci'crrinx
io the meeting that the group's foreign ministers held in -panama and thaï
estahlished their eiTorts, the Mexican foreign secretary said, and 1 quote: "It
was initially noted that the most immediate task was to guarantee that the OAS
Permanent Council would not impede the Contadora Croup foreign ministers'
actions, in terms of initiatives tofind solutions in Central America." This was
an urgent matter, beause the OAS Permanent Council was sçheduled to dcbate
a draft of a resolution proposed by Honduras on Monda? afternoon. Fortunzitely,
throueh a series of talks that u~ held with other oariies interested in this issue.
it wacdecided that the OAS Permanent Council would postpone this discussion

and in this way there would be an elisingof pressure, sothat the regional forum
could transfer the issue to the Panaina forum, that is. to the Contadora foreign
ministers. At the samc time, it was stressed that it would be advisable that eiTo;ts
be made in the United Nations so that no action would be taken therc that
would duplicate the work that had jus1begun in Panama on the previous Moiiday.322 MILITARYAND PARAMILITARY ACTIVITIFS

The parties that are interested in this issue accepted Our proposal with great
interest and decided to request that the OAS Permanent Council postpone
discussion of the issue. This was the first action that was taken on the issue and
that - 1 repeat, Foreign Secretary Sepulveda said this - frecd us 10 take direct
action on the subject.

This vcrbatim statement and the well-known circumstances of what has taken
lace render anv further comment on the situation unnecessarv. Nevertheless,
ihe) rcallirm our \leu. lh31 IIii esjeniial ihai the iullilmenr of .&reenienrr ihat
mighi he rc~chcdamong ihe Ceniral ,\mcricnn goicrnmenis io guaranice pe:ics
rnust be eKectivelyverifiable.
According to the OAS Charter, this subject falls under the essential objectives
and nature of Our organization. It is also advisable that we note that the régime
that has prevailed in Nicaragua since 1979 was born under the inspiration of

and with the support of the OAS. On that occasion, the following essential
foundations for its historical viability wereestablished:
(1) The immediate replacement of the Somorist régime.(2) Installation in
Nicaragua of a democratic government, whose composition would include the

main representative groups that are opposed to the Somoza régimeand which
would reflectthe free will of the Nicaraeuan oeo~le.(31The convocation of free
elections as soon as possible, which $11 lead io the'establishment of a truly
democratic government that will guarantee peace, freedom and justice.

Of these foundations, as established and fullyaccepted at the 17thconsultative
meeting, particularly by those who have since led the Nicaraguan Junta of the
Government of National Reconstruction, only the first has been fulfilled. The
rest of the foundations, which constitute the new régime'smoral and legal
commitment to this organization, have been made a mockery, jus1 as the
continent's ~olitical desire kas been made a mockerv.
>Ir. l>rejidcni.tsc aik iheOAS Permiineiit ~i>unc/lto iake note of our spech.
uhiçh is ruppleni:ntcd h? ihr. illustr,iti\~cmair.ri.il th31 ue haie Jisirihuicd \ire
also ask it to take note of Honduras' unyielding desire to promote peace in Our
rceion and to further strenethen the democratic institutions that are the common
u ~ ~~
a>piraiionoitiur pcoples. \h'eJcclare hefore yi~uthciiuiihin that spirit. Ilonduras
ii,ilaiicnd the nert ('oniailora Group meciing and ihai. in short. iiuill fultil iir
oblieations as a ~eace-lovine-State and a memher of the OAS
Mr PrejiJcni. hcfore ending my spccili I u<)uldlile iu in\,iie ihoie collcagur.~
uho uish IOdo r<> IOview.unie you haveclorcd the scssii)n. ashort do~iimeniarv.
lasting 12 minutes and 40 seconds, in this same room before going to the
reception that you, Mr. President, are holding for his excellencythe Guatemalan
ambassador. Thank you very much, Mr. President. ANNEXES TO THE COIRITER-MEMORIAL

PROVISIONAL VERBATIM RSCORD OPTHE TWO THOUSANV PIVII IKINURSD AND TWENTY-
NINiN MEETING
Held at Headquarters, New York, on Wednesday, 4 April 1984,al 3.30p.m.

Presidenr : Mr. Kravets (Ukrainian Soviet
Socialist Republic)
Members: China Mr. Liang Yufan
Mr. Khalil
E~YP~
France Mr. de La Barre de
Nanteuil
lndia Mr. Krishnan
Malta Mr. Gauci
Netherlands Mr. van der Stoel
Nicaragua Mr. Chamorro Mora
Pakistan Mr. Shah Nawaz
Peru Mr. Luna
Union of Soviet Mr. Troyanovsky

Socialist Republics
United Kingdom of Sir John Thomson
Great Britain and
Northem Ireland
United States of Mr. Sorrano
America
Upper Volta Mr. Bassole
Zimbabwe Mr. Mashingaidze

The Presidenr(interpretation from Russian): 1 thank the representative of

Yugoslavia for the words of congratulations he addressed to me.
The next speaker is the representative of Honduras. 1 invite him Io take a
r.-~~ at the Council table and to makc his statement.
.Ilr/%>r<,.Rrr,i>,sl<.(Hiindurar) (inicrprctaiion from Sp~nish): I \i'irh. Sir.
io cxprc~s inydclcg~iion'ss;il~sf~~i.Iiii~sccing "ou prcsidiiig oi,cr this Council.
since-vour broad ëxoerience and distinaui-hëd~çdreer arc a auar-ntee of the
succcisru\ i;utci>meol ihc rnaitcrs is bc diicuiwd in ihis body this n~onth
Thc dcb:itc on ihc cornplaint hy the delcgniion oi'licaragua has hcrn ~nriclicd
bv the ooinions of various deleeations that have shown their interest in the situ-

aiion in'central America. It icour desire today to rnake another constructive
contribution and to take advantage of the invitation extendcd to us to take part
in these deliberaiions so as to make clear the framework within which these
problems should be dcalt.
In several staternents mention has been made of historic factors besetting our
region. For our part, we also wish to mention some things which have not yet
been considered and which may serve to make betler known the problems of
the region.324 MILITARY AND PA~MILITARY ACTIVITIES

Although historically the Central American countries have had much in
common in their political, economic and social evolution, their relationship has
no1 been characterized by equal and equitable development. Without going into

too much detail, 1would point to the case of Nicaragua and the contrast with
reccnt historical developments in Honduras.
While Nicaragua was suiïering under a hateful dictatorship which tended to
benefit only one family, in Honduras, stcady social progress was being made
throueh modern leeislation which soueht to reeulate and hamonize labour-
management relations. While in ~icar&ua for more than 40 years ferocious
repression was carried out against the people of that country, in Honduras,
agrarian reform was graduaIl9 devcloping, together with civil service and social
security legislation which reflected the Government's interest in bringing together
al1sectors of the nation. While Nicaragua's foreign trade tended to benefit only

the Somoza family, in Honduras the exportation of such important items as
cofie benefited 45,00 H0onduran families.
1do not wish to tire this Council with a detailed account of contrasts, but it
is indeed Our intention to make clear the fact that for more than 40 years the
interna1 contradictions in Nicaragua were at the very opposite pole from the
labour gains, progress in the agrarian sector and social advancement which
gradually came about in our country.
The alternative sought by the people of Nicaragua through a violent, collective
endeavour which involved every sector in that country - from peasants to
industrialists- was the result of a political phenomenon not encountered in

Honduras. The alternative sought by the people of Honduras was the peace-
ful patb within an electoral process which gave rise to the establishment of a
representative, democratic and pluralistic Government dedicated to working
within a framework of peace so as to implement our development plans which
are designed, not for the benefit of one Fdmily - nor do they respond to special
interests - but to favour the national community, bearing in mind that the
human heing is the supreme value of society and State and that human dignity
is inviolable,
Despite this democratic path which is now being strengthened in Honduras,
my country is the object of aggression made manifest through a numbcr of

incidents hy Nicaragua against our territorial integrity and civilian population.
Those elements, which have obliged Nicaragua to strengthen its dcfences, are
mainly the disproportionate amount of arms in Nicaragua, the constant harass-
ment along our borders, the promotion of guerrilla groups which seek to
undermine our democratic institutions, and the warmongering attitude of the
Sandinistcommanders, whose reckless,aggressivcstatements we mentioned earlier.
We do not wish to get into a squabble with our neighbour, Nicaragua. What
we do want is to say that to cast the Central American prohlem in terms of
Nicaragua's interests,as reflected inthc initial draft resolution submitted by that
countrv is a conce~tual error. It is not iust one countrv which is ~ ~cc~ ~ ~ ~ ~s
no! only one county which 1.iutlcring from conili:is II ijnut only one pc<>plc

which is sullering and hea'ailing the iatc of ils childrcn.it is no1 iuit Honduras
and Nicaragua. it is a centrai American nrohlem. without excention. and it
must be solied regionally. This view has bien hrought out again ÿnd again hy
al1Central Americans throughout the Contadora negotiation process and must
bc rcflected in the decisions adopted by this Council.-
In that regard, we were pleased to hear the statements made today, and
Monday afternoon, hy the representative of France, who noted with satisfaction
the efforts of the four countries of the Contadora Group to ease the way to a
settlement satisfactory to al1 countries of the region. As he declared: "Thecountries of Central America must be permitted once again to solvc thcir prob-
lems for themselves." (SIPY2527, p. 7.)
The representative of China also agreed that the afiairs of the countries of the
rcgion must be left to their respective peoples, and gave his support to the
Contadora Group in its continued efiorts to achievc a peaceful and reasonable
solution to the Central American auestion. The re~resentative of Guvana made
an appcal fur 4 h;ili in the unhrirlled :irmr r;icc. for pcaceiul ncg,~tiatedwl~tiuns
to pri>blcm.in Crn1r:ilAi11cric;iand repcated thai the Cont;~dor;ipru;es\ olïcrerl
a Dracticai and solid basis for achievin- -neeotiated solutions for the vroblems
ankg the States of Central America.
Within the same context, wc heard the statement made by the rcpresentative
of Mexico. Amongst other tbings, he quoted the Presidenr of his country, who
said during his recent visit to Colombia: "Contadora is a Latin American effort
to resolvc a Latin American contlict. The region is able to find ils own answers
to its own problems."

Indeed. for 14 months we Central Americans have been eneaeed in neeotia-
iions in :i~,hicv.;icc in our rcgion undrr ih- suspices of the Contad<~r~<ir,wp.
Thosc ncg»tilitii>nbha\,<:msdc :oniiilerlihlc progrcl, and right nsw the \\orking
groups are meeting on aspects relating to policy, security and economic and
social co-operation. This is a collectiveeRort the aim of which isto create a zone
of peace whcre the cohcsive elements of frcedom, justice and solidarity are per-
manent, standing values for relations among our States to prosper. Al1of this
would set aside the vossibilitv of confrontation, establish reeional securitv.
strengthen integral dimocracy-and give impetus to the econ&ic and social
developmcnt of our peoples.
The situation in Central America is complex and calls for a comprehensive
solution. Anv action bv a United Nations bodv should be taken within that
comprehçnsi;e context and should not be identifiédwith the sclectiveand special
intcrests of only one of the parties.
None the lcss, the Nicaraguan tactics, of which we coniplained in the letter
frorn the Government of Honduras daled 20 Septcmbcr 1983addressed to the
Presidcnt of the Security Council (S/15995), have systcmütically been consoli-
datcd. Those taçtics, based as they are on an attitude of duplicitq, include a
disturbine camv.-en of disinfonnatioii aimed at sowin~"oiifusion and ambieu.tv ,
iiith reg~riltu uhliii,rc~ll! hdppening anCzntrll Americ:i. 1 hcy h:i\e ;ils.ihem
(onJcmncJ by ni).dclcgtii,n in sç\cr.il of the >t;itemzntwc ha\,e madc iirczcnt
months when the SecuÏitq Council bas met at Nicaraeua's reauest
These activities by ~icara~ua have occurred sim~taneously with the nego-
tiations king hcld by the Contadora countries. We have already mentioned the
working groups on policy and security and on economic and social questions
that have been meeting in Panama City since the second of this month. Only
last nightWC received rrom Panama the alarming news that for two consecutive
days Nicaragua had blocked the activities of those working groups, thereby
hamwrine neeotidtions and oreventine various matters from beine takcn uo.

~icaia~ua pr&osed the cessabon of normal work in the groups in order that'a
decision might first be taken on a special question dealing with aspects of
particular interest to Nicaragua.
This attitude on the Dart of Nicarÿeua -s hinderine the activities of the
Contadora Group, since the attempt to give priority to romc items and to take
special actions runs eounter to the regional approach that should prevail in those
ncgotiations.
What Nicaragua is proposing in Rinama is that so long as those groups take
no decisions on militdry or security matters it will no1 allow work to proceed.326 MILITARY AND PAUMII.ITARY ACTIVITIES

That inflexible and arhitrarv oosition is desiened to hrine. about a crisis in the
Contadora negotiations in &;le: to do auai uiih ~haisibregional group and
uliimaicly io bring thr.maitçr beiore the United Nationr. therebg prcvçniing ihe
Central ~merican peoples themselves [rom solvirig their own problems within
the Contadora framework. That framework has received the full suooort of the
~ ~ ~ ~ ..
international community; it kas found support in the positive tbinking of most
Central Amencan statesmen and intellectuals and ofthe four countries members
of the Contadora Groun. It is a orocess that is fullv able to take uo and solve
the problems of the reg&n. ~evenheless, the esseritialelement for thésuccessof
those negotiations is the will of the Central American countries themselves. It is
sad to see that that element is lacking on the part of Nicaragua.
Indeed, yesterday in Panama, not only in the securjty aiïairs committee but in
the political affairs committee as well, Nicaragua indicated that the main causes
of the problems of Central America were the substantive military build-up
in that region, the displacement of thousands of soldiers, the holding of joint
manŒuvresin the area, the covert war against Nicaragua, the terrorist operations

heing carried out on ils territory wiih the use of aircraft and attack-boats, the
activities of the anti-Sandinist rehels, the violation of ils territorial integrity and
national sovereignty, the threat of force against Nicaragua and the lack of
implementation of the principle of the self-determination of peoples.
That position of Nicaragua, that siich matters should he taken up hefore any
of the work of the groups can he resumed, including the work of the Economic
and Social Council, has created an insidious crisis in the Contadora process.
What Nicaragua is really indicating as the cause of the problems is in fact only
effects. Honduras has, in this body as well as in the Organization of American
States and within the Contadora Group itself, attempted to clarify the redl
causes. They include interference in Central America hy an extracontinentdl
Power, the brcach of the lems of security in the region hecause of the dis-
proportionate iirming of Nicaragua, problems of an interna1order caused hy its

authoritarian structures, attempts by countries ta destabilize neighhouring re-
gimes, the supplying to Nicaragua of 15,000tonnes of weapons in 1983alone, a
Sandinist army of more than 25,000 mcn organized into 38 regular battalions
with a reserve force of 38,000 mcn and a popular Sandinist militia numhering
approximately 50,000 men.
The North American militdry presence in Honduras amounts al present to
approximately 1,700men. For the moment, those are the major Central American
manŒuvres that aiïect the territorial integrity of Nicaragua.
What did indeed aiïect stability in the region was the sending, some three
weeks ago, of 2,000 Cubans to Nicaragua. Those troops have bad military
training and partidlly replace young Cuhan men and women who had heen in
Nicaragua.

What does indeed affect stability in our region is the presence in Carihbean
waters of the Soviet helicopter-carrier Leningradand the Soviet destroyer Udaluy,
accompanied hy their respective frigates, the larges1 Soviet presence in the
Carihbean since the end of the 1960s.
What do have an effect and an impact on our negotiations are the threats
from Commander Ortega Saavedra, the Nicaraguan Defence Minister, indicating
the possihility that local guerrilla groups will mine the ports of Central America
from Guatemala to Panama, as we noted on Friday, 29 March, before this
Council. On Friday las1 1 also mcntioned that following the statements by
Commander Ortega five bombs cxploded in the cities of Tegucigalpa and San
Pedro Sula, leaving one person dead. More recently there has heen sabotage of
the electric power provided to some areas of Honduras from Costa Rica through ANNEXES TO THE COUNTER-MEMORIAL 327

Nicaragua, which has led to the rationing of electric power in various parts of
our national territory.
Among other Nicaraguan activities that pose a threat to peace are the con-
tinuation of the illegal trafic in arms hy guerrilla groups in other countries;
it is also continuing Io provide logistic support to insurgents in neighbouring
States, while its agents visit Lihya, Iran and North Korea, amona other countries,
~-. ~ ~ ~ ~ose oiacauirine more weaoons. The minine of the ~icaraeuan wrts
was an ktsthe responsibiliïy for whi& has been attrib;ted to insurg&t o&ani-
rations o~eratina in Nicaragua. Hence Nicaragua's claim that al1States should
refrain from carrying out aiy action that mighi hamper the exercise of the right
to Creenavigation in the waters of the region don not reflect what is really hap-
pening, since the mining was due to the activities of Nicaraguan rebel groups.
With reeard to Nicaragua's fulfilment of its international commitments. we
-
arc c<impcllcd 10 make rcicrcnie I<IXisÿragua's clcci<~rap l hcnoiiiciion ,inJ plxcc
it uiihin !hi'C~>ni.iJor;tconicrt, sinic thdt ,<,asdinong the 21 iihlccii\c\ adoptcd
hv al1,il thc Ccnirdl Amcricrn c<iuntriesun 9 Scpiemhcr 19832nd subscuuentlv
ratified by each and every one of our Governmenis, including that of ~icara~ua.
Thc adoption of thox objectives was one of the most positive achievements in
the negotiations that have been held under the auspices of the Contadora Group.
The principal objective with reference to electoral processes in Central America
reads as follows:

'''1'0adtipi nic.ihLrc, coniluit~tctilthe cri<ibl~rhnicntand, uhcre Iippro-
pri;siç. improiciiiciit 31'dcnioc~~tic.rcprcs~iiiaiii.~and pl~rali.iic systcnis
that will guarantcc effective popular ~>articipationin the decision-making
process and ensure that the varyouscurrents-of opinion ha\,e free access 16
fair and regular elections based on the full observance of citizens' rights."
(S/16041, p. 5.)

Another objective is:
"To promote national reconciliation efforts wherever deep divisions have
taken place within society, with a view to fostering participation in demo-
cratic political processes in accordance with the law." (Ibid.,p. 5.)

It is in the context of those commitments that we must consider the electoral
prcparJtiona in K)çar;ig~i~ I.oi>king ai currcnt dcielopmcnis in ilic clc~torvl
proce,s u,c iind ihc following discuurugmg clciiicntr: I'irsi, in Ricdrdgu3 ccrtüin
sectors arc Corbiddcn t<>riarii~ipatc.Second. thc amnesis dcrrccd bs the Sandinist
Government did not pa;don political and ielated common crime', which would
have permitted Miskito refugees in Honduras and other Nicaraguans who are
out of the country to return with suitable guarantees. Third, the Government of

Nicaraeua continues Io enforce the Inw of confiscation and exoroori. .on. iised
againsrthose who oppose the régime inpower, and the national emergency law
under which constitutional guarantees were and still are suspended. Finally, the
Nicaraguan opposition has serious questions about the political process in that
countrv. Indeed. eveninternationallv recoeni-ed olficialsfromEurooean countries
uhi,.;c>cmocr;i;ic tr~iliti<>na~rc Ici&-standing ha\c crprîr,cd cimicrn about ihc
1a;k OCroiiditioiir ihüi rv~>ulJgudrantcc ii~~pr~rtialita)nd cqual opp~r~uiiity for
full participation hy al1sectors.
Evidence of this includes the absence of an electoral roll or list; the extension
of the right to vote Io those under 18years of age - 16-year-oldsare permitted
to vote - so that young people completely without political erperience can be
manipulated; al1 members of the Sandinist People's Amy and of the other
security forces are permitted to vote; there is no guarantee of the right of328 MIL~RY AND PARAMILITARY ACTIVITIES

assembly, the nght of association or the right of free expression, which are
essential for carrying on an electioncampaign. Furthermore, there isan imbalance
betweenthe oppositionparties and the oflicialparty. That imbalance isenormous,
iaking in10 consideration the pure and absolute identity among the Sandinist
National Liberation Front, the Government and the Sandinist People's Amy.
That represents a close linkage of the powers of the State with the Sandinist
political organization, which involvesthe use of State resources and of the State's
coercivepower and communiçations media for its own political advantage in the
election campaign. The Nicaraguan opposition complains that ildoes not have
the same opportunities.
The opposition in Nicaragua kas also questioned the Sandinist Government's
intentions regarding the elections, since the Government has violated one of the

principles set forth in the Statute of Fundamental Guarantees of 1979,which
States that a constituent assembly shall be elected. Now, simultaneous elections
have been called for a constituent assemblv and for the ~residencv. for a six-
ycar tsrriiTh:ii ir citntrliry to the lepal logir applicable herc dnd miliiaii.~:igainii
the Jenioirari~ pr<~cci~i.hereciin br.n.1adtancc in tlie Staic >)ricm ti,iih~~utihe
constituent assembly taking a prior decision.
The Nicaraguan Council of Siate had been discussingthe electoral law, initially
with the participation of nearly al1 sectors in the country. But because of the
points 1 mentioned before, those sectors have withdrawn in protest against the
way in which the Government is trying to manipulaie the electoral process.
Among the institutions which have wiihdrawn are the Liberal Conservative
Party, the Social Democratic Party, the Democratic Conservative Party, the
Confederation of Trade Union Unification, the Social Christian Party and the
non-Sandinist Worker's Central.
1 wish to quote the Chairman of the Nicaraguan Bishops' Conference,
Monsignor Pablo Antonio Vega,who, with referenceto the consideration of the
electoral law by the Nicaraguan Council of State, said that that Council is a
"totalitarian sham". To illustrate that fact we need only refer to the discussions
going on in the Nicaraguan Council of State. Government olficials have said

there that the opposition will have the right to one hour per week for carrying
out its political campaign on television and radio; those media belong to the
State, that is, to the Sandinist Front. Thus, the time available will be less than
10minutes a day, and that time will have to be shared out among the opposition
parties. Owing to those arbitrary, minimal conditions, the opposition has asked
for more lime for ils campaign, especially since the Sandinist Front already has
nearly fiveyears ofcampaigning behind it.
In addition, the opposition publisbed, on 24 December 1983, a manifesto
denouncine -he Government'~ fr~ ~ulent intentions reea~-in~ ~ue election. That
maniièsiou,a\ signe4 hy thc Niwragulin \Vorker', ('cniral, the Confcderation or
.l'r:iJeCriion I.niliiliiion. the I)emocratic C<inscr\;iii,e P.iriy.the Ihri\ti;in
Piirt!..thc S<>ci~lI>eniu~r;iiir.Parlv. ihc ,\uthenti~ S<>ii;ilChri\ii~n P0~ul;ir
par&; the Nicaraguan Chamber of Industry, the Nicaraguan ~hambér of
Construction, the Nicaraguan Confederation of Professional Associations, the
Confederation of Chambers of Commerce, theNicaraguan Development lnstitute
and the Union of Agricultural Producers.The manifesto calledfor: the separation
of State and party; the abandonment of laws which infringe human rights; a
genuine amnesty ;respect for freedom of religion; an indcpendent judiciary ;the
elimination of restrictions on the laws ofhabeas corpus; and a national dialogue

on the question of elections.
In another communique dated 21 February 1984,the armed opposition made
up of the two groups struggling within Nicaragua, one in the north and the ANNTXESTO THE COU~TER-MEMORIAL 329

other in the south, also rejected the electoral process as put forward and expressed
its desire to participate in an open, honest electoral process, with equal opporliini-
ties and appropriate guarantees.
All this oooosition to the electoral masquerade makes us think about this
situation in ~icaragua. We wonder whethe; the Government of Nicaragua is

adopting mcasurcs whiçh could lead to the establishment of a representative,
pluralisi democratic system, guaranteeing effective participation by the people.
We .ond~r ~ ~ther bv actine in the wav which has been denounced hv the
'11~3raguanoPPosition~ihc (i;ncrnnicni i: pri>moting;iciion touardr ii;iGonÿl
rcconciliaii<>n .isIIhas ~n~icriakcnio do in ;iççord~nccwiih thc point, aili~ptcd
in the Contadora negotiations.
The answer is no. For what they have donc is to cal1for more weapons, for

more political control and for increasing structural rigidity.
I have mentioned these interna! problems of Nicaragua for the sole purpose
of showing how they extend beyond the borders of that country, with a
considerable negative effecton our interest in the development of our democratic
institutions, in order to fulfil our development plans and meet the vital needs of
our population. Honduras is the first to support multilateral negotiations within
the Contadora framework in order to find a negotiated peaceful solution to the
problems of thc rcgion, problems whiçh are concentratcd in Nicaragua.

In a joint statement issued al a mecting of their Ministers for Foreign Aiïairs
a few days ago - 26 March - at Tegucigalpa, both Costa Rica and Hondiiras
reiterated the following:
"They agreed that the democratic, representative and pluralist system is

the only system for political development guaranteeing the effective exercise
of freedom and the full eniovment of human riehts. In this regard thev
rei~-~~~ed t~ ~ ~ ~ .urn.-eO-f60t~ ~ ~e~ ~cnts to orom~~e and sirenethe; ~ -
democracy in the rcgion. They reaffirmed the decisiin of their Governments
10 seek a wcelul comorehensive regional settlcmcnt of the crisis in Central
America and oointed Out the aoorooriateness of makine everv necessarv

community to the necd to find appropriate means to guarantee security for
the Central American region based on the principles of non-intervention;
rejection of the threat or use of force; the use of peaceful procedures for
the solution of disputes among States, as well as on the urgent need to put
an end to the arms race through fully verifiable agreements establishing a
reasonablc balance of force in Central America."

There can be no exception in the Central American crisis. It is Our hope that
Our neighhour will carry through the commitmenls of Contadora, not only with
regard to ils interna\ political process, but also with regard to the other crucial
points which it is neçessary to carry through rcgionally, wiih regard 10 disarma-
ment and other military aspects whiçh are implicit in the problems of Central

America.
The joint Technical Group, at the forcign minister level, bas descrihed Nica-
ragua's attitude within the Contador;i Group and at the meetings which should
be going on right now in Panama ;is a boycott: il proposes that every item
should be taken up in ils respective field. 1-lowever,we have been told that
Nicaraeua iscontinuine to insist. evenin the Committee on Social and Economic
~ffairs~of the contadira ~ro&, that military and security items should be
discussed first. That Committee kas vital functions in the economic and social

area, since ilis in ihai field ihat the many muses of theCentral American coniiict330 MILITARY AND PARAMILITARY ACTIVITIES

can he found. It iscounter-productive to underestimate the valuable contribution
that could be made in dealing with causes and not efïects.
In Panama the delegations of Honduras, Costa Rica, Guatemala and El

Salvador are at this moment heing prevented hy Nicaragua from taking up the
work on their agenda. It is a matter of concern that priority should be sought
on so small a numher of the 21 points of the Document of Objectives, thus
preventing a comprehensive and simultaneoos discussion of al1the prohlems of
the region. My delegation also wishesto express its concern that not al1countries
in the Contadora Group that have ofïered their good offices have adopted
impartial appr~aches Io ensure the success of the negotiations.
In July 1983 Nicaragua insisted in the Contadora negotiations that partial
agreements should he reached to meet its own special interests, whether or

not they satisfy the other countries of the region. Throughout the negotiations
Nicaragua's approach has been unilateral; Nicaragua in its own self-interest, has
insisted on dividing the discussion of security matters into two stages: first,
immediate action tending to satisfy solely Nicaragua; and, second, the long-term
aspects of security and common interests.
In July 1983, during the third meeting of Contadora, Nicaragua highlighted
ongoing activities in order to appear once again the victim. On 9 September
1983~ ~~ ~ ~ fourth meetine of Contadora. the eieht countries unanimouslv
rrspiinilc.iiio I\virigu.iii claim. ahoiii tlic gl<>h~nl:ltiirc.<~C.'eiiir31,\niericin

ciinilici \ihi~.huas iII) Uicir3gu:i IioJ Io .ic.ceptthc I>~,cuiiieriioiOhjecii\~cr
rcrvinc ;is ilihi\i> for 311nc.ci>tiatiorisihai ii<>iildhcncc.i,>rthhc.:arried oui
~oneïhe less, although ~icara~ua had made a commitment of support for the
21 points in the Document of Objectives, it continued to boycott the Contadora
meetings, keeping it in recess from September last year to January this year, a
period during which it sought to bring the matter to the Security Council, and
even hefore the General Assembly, so as Io take it out of the hands of the
Contadora Group. These intentions of Nicaragua run counter to General
Assembly resolution 38/10, adopted on II Novemher last year, to the elïect

that Central Americdn conflicts should not he made part of the East-West
confrontation.
In November 1983, during the General Assembly of the Organization of
American States (OAS), headquartered in Washington, in the Embassy of
Panama in that city agreement was reached to convene the Technical Group of
Contadora in meetings on I and 2 Decemher. This proved impossible, hecause
using the rame delaying tactic Nicaragua proposed a written commitment on
military and security aspects, a taçtic which is faithfully reflected in the draft
resolution it has introduced here, a draft resolution which is selective, since it

takes into account only the interests of that country without considering the
other matters related to the regional peace process and departs from the objectives
endorsed by the Central American countries at thejoint meeting of Ministers of
Foreign Afïairs held in Panama last Septemher.
At the fifth joint meeting of Foreign Ministers, held on 7 and 8 Januüry this
year, the delegation of Nicaragua again presented its unilateral interests, seeking
to use Contadora only for its own ends. None the less, at that meeting the
decision was adopted to set up three committees on the basis of the document
of rules for the carrvine out of commitments entcred into in the Document of

Objectives. There ia n& ample information that those three committees are
designed to deal, first, with political affairs; second, security matters; and, third,
social and economic questions.
As we have made ciear here and on other occasions, al1this is part and parcel
of Nicaragua's unswerving attempt to create a crisis in the peace negotiations, ANNIIXESTO THE C~UNTI:R-MEMORIAL 331

thereby doing away with that subregional body for the sole purpose of making
the United Nations iniervene in the conflict.
As the representative of a Central American country, 1 have asked to speak
today so that Our voice, which reAectsthe position of a State which has taken
an active part in restoring regional peace, can be heard with the attention it
deserves. Many statements have been made here supporting the Contadora
process. If there is a real commitment in Cavourof the Contadora initiative,

serious account must be takcn of the fact that endorsemcnt of the unilateral
interests of Nicaragua in the terms of the draft resolution contained in document
SI16463 would also mean support for that country and its actions within the
context of the Contadora negotiations. In the terms in which they are expressed,
those actions seriouslv threaten to destrov the Contadora initiative: thev threaten
to destroy a process which has receivedthe praise of the international community
and earned the pride of Latin Americans - a process which represents the
maturity and responsibility of our peoples to resolve our own problems by
ourselves. It also embodies the hope of Central Americans to overcome their
dificult situation by peaceful means.
To takc part in any support for this draft resolution would therefore involve
a resnonsihilitv of historic ~rovortions which the members of this loftv Council
must'weigh carefully. ~hiç is.not just a political endorsement for Nicaragua.
What is at stake here is the future of the negotiating process for peace, the future
of Central America.
It is timely to bring to the attention of the Council the words of the Secretary-
General, Mr. Javier Perez de Cuellar, as they appear in the daily Lu Estrelia de
Pununrain its edition of 3 March this year - that is, less than 24 hours ago-
which reads as follows:

"Doctor Javier Perez de Cuellar described as highly encouraging the
report of the Panamanian Foreign Minister on the peaceful activities of
the Contadora Group, adding that 'what must be avoided is a diplornatic
vacuum, because that invites adventurism'."
To ignore this appeal would haveirreparable consequenees for the future peacc
negotiations in Central America. Similarly, Nicaragua should abandon attempts
to duplicate international efforts byinvolving the Security Council again, even
though in the Contadora Group we have a specific cornmittee to deal with
malters of security concerning the countries of the region. That committee,
incidentally, enjoys the support of the international community, as has again
been expressed here. If Nicaragua continues to maintain this attitude, it will
viiiate the functioning of the Contadora Croup as a negotiating forum. That
body, instead of being replaced, should be strcngthened.

............................ MlLlTARYANI> PARAMILITARYACTIVITIFS

Annex61

DIPLOMATN ICOTESFROMTIIE GOVBRNME NFTHONDURA TSTHE GOVERNME NFT
NICARAGUO A, A/SER.G,CP/I~~.2012/83(5JULY1983) ;OEA/SER.G,

CP/I~i..2016/83(11JULY1983);OEA/SER.G,CP/I~~.2187/84(20JULY1984)

NOTE NO.26/83 FROM THE PERMANliNT MISSION OF HONI>URASTRANSCRIBING THE
TULT OP THII NOTE DATED JUN30, 1983SENT BY THE MINISTII01I'OREIGN AFEAIRS
OF HONDURAS IO THE MINISI'EROF FOMIGN AFFAIRSOF NICARAGUA

No. 26/83/MPH/OEA/CP July 1, 1983

Excellency:
1have the honor to address to convey to you, and through your kindness, to
the representatives of the other member States on the Permanent Council, the

tex1 of the note sent by His Excellency Arnulfo Pineda Lopez, Minister of
Foreign Afïairs of Honduras, 10 his Excellencythe Minister of Foreign Afïairs
of Nicaragua. That note reads verbatim as follows:

"Note NO.311 DA. Tegucigalpa, D.C. June 30, 1983. His Excellency
Miguel d'Escoto Brockman, Minister of Foreign Afiirs, Managua, Nica-
ragua. Excellency: 1 have the honor to address you in regard to Notes
Nos. 331-DSM and 306-DA. dated June 21 and 24 from this Ministry. The
respectiveNotes were in referenceto the deaths of United Statesjournalists
Dial Torgerson and Richard Ernest Cross and to injuries suffered by a
Honduran citizen, Francisco Edas Rodrigue.?,and to the hlowing up of a
truck. Both incidents occurred on the road between Cifuentes and Trojes.

The Government of Honduras again wishes 10 register its most energetic
protest as contained in those notes and after receiving the report of a
Commission of Military Specialistsappointed to conduct a thorough investi-
gation of the incidents is fulfillingits obligation to clarify that the cause of
the criminal assaults was not the firingof antitank grenades from Nicaragua
as was initially believed.It has been confirmed that they were caused by the
explosion of antitank and antipersonnel mines placed by the Sandinista
forces on the Honduran highway with the perverse intent to cause this type

of indiscriminate bloody act in open violation of the territorial integrity of
Honduras.
Accept, Excellency, therenewed assurances of my highest consideration."

Accept, Excellency,the renewed assurances of my highest consideration.

(Signed) Roberto RAMOS BUSTOS,
Chargéd'Affairesa.i. ANNEXES TO THE COUNTlZi-.UEMORIAL 333

NOTE NO.29/83 PR~M THE PERMANENT MISSION OF HONDURAS, TRANSCRIBING THE
TEXT OP TrieNO~B I)ATI~DIULY 8, 1983,si:wr su I.HB ACTING ~IINISTI?ROP FOREIGN
AFFAIRS OF HONDURAS 'COTHE ACTING MlNlSTliR 01' FOREIGN AFFAIRS OF NICARAGUA

No. 29/83/MPH/OEA/CP July Il, 1983.

Excellency:

1 have the honor to address Your Excellency to make known to you, and
through your kindness to the representatives of the other member States on the
Permanent Council, the text of a note sent by His Excellency Arnulfo Pineda
Lopez, Acting Minister of Foreign Altàirs of Honduras, to Her Excellencythe
Acting Minister of ForeignAffairsof Nicaragua, whichreads verbatim as follows:

"Oficial Note No. 322 DA. Tegucigalpa, D.C., July 8, 1983.Excellency:
1 am addressing Your Excellency to inform you of the following facts:
(O) On Sunday, July 3,at 16.00hours, the Honduran soldier Roberto Meza
Ramos, when returning from his guard duty near the La Vigia ravine, along
the Las Trojes-Cifuentes highway, stepped on a mine, which blew off his
right foot. (h) On Tuesday, July 5, at 10.00hours. forces of the Sandinista

People's Army opened fire on Hondurdn positions located in the same sec-
tor, trying to protcct a patrol tliat was infiltrating near Cifuentes, possibly
to continue mining the highway. (c) That same day, first at 20.40 hours
and again at 22.15, the Sandinista forces harassed the Honduran positions
with group fire and 81mm. mortars. (il) Finally, at 9.45 hours on July 6,
the Nicaraguan forces renewedthe harassment with heavyweapons, causing
a slight wound in the face of a blonduran soldier by fragments of rock
impelled by the expansion wave of one of the projectiles. Once more,
my Government is obliged energetically to protest these hostile actof the
Government of Nicaragua, which violatc the sovereignty and the territorial
inteeritv of Honduras. desoite the fact that it is aware that. in accordance

withvyiur Note No.103 ofa1uly5,to detraçt from the serioui charges made,
Your Excellencywill reply that they should be attributed to 'pro-Somoza or
other mercenaries'. I consider tliai that is an easy way to unload responsi-
bilitiesand to try to give some credibilityto the latest propaganda maneuver
of the Government of Nicaragua, in the sense that il is groups of anti-San-
dinistas and the Honduran army itself that attack the Honduran popu-
lation and terrilorv for the sole ouroose of blamine the Sandinista forc1s.
also believe, ~adirn Minister, ihai not even the great publicity resources
the Nicaraguan Govcrnment has available will be sufficient to sustain such
an unlikely plan of action. Accept, Excellency, the renewed assurances of
my highest consideration. Ariiulfo Pineda Lopez, Acting Minister of

Foreign AfTairs."
Accept, Excellencythe renewed assurances of my highest consideration.

(Sipied) Roberto MART~NE OZRWSEZ,

Ambassador.NOTB NO.23/84 mo~ THE AMBAS~ADO PRRMANENT REPRESBNTATIVEOF HONDURAS
CONVEYlNG THE TEXI OF THE NOTE SENT BY THE MlNlSTER OF FORI!IGNAFFAlRS OF
HISGOVERNMEN TOTTHE MINISTBR OF FOREIGN AFFAIRS OF NICARAGUA, DATEI>JULY
17, 1984

No. 23/84/MPH/OEA/CP. July 19, 1984.

Excellency:
1 have the honor to address Your Excellency tu convey tu you and, through

you, tu the member States on the Permanent Council, the text of the note sent
by the Minister of Foreign Amairs of Honduras, Dr. Edgardo Paz Barnica, tu
the Minister of Foreign AiTairsof Nicaragua. The text is as follows:

"Note No. 427 DA. Tegucigalpa, D.C. 17 July 1984. His Excellency,
Mr. Miguel d'Escoto Brockman, Minister of Foreign Alfairs, Managua,
Nicaragua. Excellency: 1 have the honor tu address Your Excellency to
inform you that on July 2 of this year, at 2.00 p.m., a patrol made up of six
members of the Sandinista People's Amy entered Honduran territory and
oenetrated as far as the ranch house on the La Caoa ranch. owned~,v~~~-.
~odesta V. de Mourra. The ranch is located within theJu'risdiction of the
Municipality of San Marcos de Colon, Department of Choluteca. There

were three ond dur a oldiers inside the ranch house, su that an exchange
of fire ensued. One memher of the foreign troops was downed and was
taken back tu Nicaragua by his companions. The Government of Honduras
vehemently protests this new aggression on the part of the Sandinista army
and wishes to point out that the peace that our peuples demand and aspire
tu cannot be achieved with attitudes of this kind. Accept, Excellency, the
renewed assurances of my highest consideration. Edgardo Paz Barnica,
Minister of Foreign Amdirs."

Accept, Excellency,the renewed assurances of my highest consideration,

(Signedj Roberto MART~NIO ZRDONEZ,

Ambassador. ANNEXES TO THECOUNTTR-MRMORIAL

Annex62

HONDURAM NINISTR YF FOREIGN RELATIONR S,SUMÉOS FANDINISTA
AGGRESION N HONDURAT NERRITOR IY1982,FROM THEEMBASS OFHONDURAS
TO THEUNITED STATE SFAMERICA 2, AUGUST 1982

The Minister of Foreign Relations, Dr. Edgardo Paz Barnica, has once again
addressed himselftoday to Their ExcellenciesNoel Door and Hilarion Cardozo,
President of the Security Council of the United Nations and of the Permanent
Council of the Organization of American States, respectively,and has sent them
a document containing a resuméof the violations to Our terntory, the harass-
ments, kidnappings, attacks and personal aggressions against Honduran citizens
which have been caused by elements of the army, air force and naval force of
the Govemment of the Renublic of Nica-aeua du-.nr! the oeriod between Janu-
=ry 30 and August 21 of tiis year.
Upon deploring such lamentable actions, the Foreign Minister reiterates the
will of the Government of Honduras to establish serious and constructive dia-
logues to put in practice the Hondiiran peace plan presented on Marcb 23 of
this year before the Permanent Council of the Organization of American States
and calls upon the honorable dignataries above mentioned, recipients of the
notes, to encourage the use, on the pan of Nicaragua, of diplomatic means to
promote and ensure peace in the Ceiitral Amencan region.

Tegucigalpa, D.C., August 23, 1982.

Press and Information Office,Hondiiran Ministry of Foreign Relations

Monlh lncidenrs Place Nameand Vicrim
and Date

January A Sandinista patrol Sector of Palo
30 pursuing some smugglers Verde.
oenetrated Honduran Coordinates
ierritory. Afterwards, it(0757)Chart
encountered a Honduran Concepcion de
patrol interchanging gun Marial
firefor about 5 minutes. Department of
Choluteca.

March 4 Elementsof the SandinistaSector of Kidnapped:
Arrned Forcespenetrated Guapinol. Cornelio Rubio MILITARY AND PARAMII.ITARY ACTlVlTlES

Month Incidents Place Nome and Victim
and Date

the sector of Guapinol, Coordinates and Daniel
kidnapping the Honduran (5447) Chart Gonzalez.
citizensComelio Ruhio Punta Condega.
and Daniel Gonzalez,
taking also their boat.
Violation of Honduran

Territorial Waters-
kidnapping.
March At elevenhours Coordinates: Wounded : Mario
17 Sandinista elements 1305'45" Latitude Roberto Ramos.
attacked members of the North 87 38'38"
Honduran Naval Forces Longitude West
wounding Corporal Pacificwaters.

Mario Roherto Ramos.
Violation of Honduran
territorial waters.
Aggression to a
Honduran patrol

March Inhours of the ;ifternoon Community of
17 luo tli>ndur~nhoais acre Irlaya, left margin
ça~tured in its territorial of river Seaovia.
waters opposite the cape ~rahas a
Misquita village of Irlaya. Dios.
A Nicaraguan coastguard
hoat bombarded the
Honduran vesselDebbie
K, taking with them the
captain and 24fishemen.

Violation of Honduran
territorial wate-s
kidnapping.

March The fishinghoat Baby Zone of Media Kidndp~d :
17 Jones was attacked by a Luna bank Longino Cruz,
Nicaraguan vessel.The prolongation LigioOrdonez,
Honduras hoat was towed south-west of Key Horacio Sandino,
with al1its crew members Babell. Rene Flores,
aboard to a Nicaraguan Abeles Ramos,
port. Donat Laiman,
Antonio Acostlino
Taylor, Tito
Porcelano,
Bemardo Willis
and JoséAngel.

March Slindini,t:i elcmenti Comniunity of KldnappcJ: 48
18 peneiratcd I<thc Ka)a. 30 niiles lob,tcr ti,hcrmcn
iirmmuniiv t,f113y;i.?U lnride 1loiid.ir.m ANNEXES TO THE COUNTER-MEMORIAI.

Numcund Vicrinz
Monrh Incidenrs Place
andDure

milesinside Honduran waters in the
waters capturing 48 Atlantic.
lobster fishemen and the
boat Derveeqee ,aking
them kidnapped towards
Nicaraguan waters; their
whereabouts unknown.
Violation Honduran
territorial water-
kidnapping.

March This day at 14hours the Keys Babeland
21 Naval Basein Puerto Media Luna - 16
Cortes received miles north of
communication from the parallel 15.
Naval Base in the Swan
Islands stating that
Sandinista amy patrol
boats penetrated
Honduran waters,
capturing 4 Honduran
fishineboais which were

taken'toward Puerto
Cabezas in Nicaragua
Violation Honduran
territorial water-
attacking and kidnapping
of Honduran boats.
Kidnapped :
April2 Today at 2.00p.m. a Sector Las Cuatro Mana Antonia
Sandinista army patrol jurisdiction of El Guevara (55
kidnapped 5 Honduran
natives of Cedral Triunfo, years), Teodoro
Municipality of El Department of Vasquez(70
Triunfo. Choluteca. years). Santos
Violation Honduran Ruvilio Espinal
territorial waters and (13 years), Juana
kidnapping. Antonia Aguilar
(14 years), Maria
Cristina Espinal
(7 years).
Kidnapped :
April 3 Elements of the Sandinisbi Municipality of El Aurelio Amador.
Front kidnapped a young jurisdiction of
man by the name of
Aurelio Amador. Choluteca.
Violation Honduran
territory and kidnapping.

April3 At 8.00a.m. a combat Sector of the
plane belonging to the Madrigales Post,338 MILITAKY AND PARAMILITAKYACTlVlTlES

Month Incidents Place Nameand Vicrim
",,ADot?

jurisdiction ofthe
Nicaraguan Air Force
entered Honduran Municipality of
territory, overflyingon Concepcion de
various occasionsthe Maria.
fiscalpost at Madrigales.
Violation air space.

April4 21 Nicaraguans were Sector 1.A
captured inside Honduran Ceiba - 4
territory. kilometers south
Violation Honduran of El Guasaule.
territory.
April 1I The Honduran boat Sector Key Media Kidnapped:

Tnambo with itscaptain Luna Captain Heriberto
and crew wascaot"red in ~cheverria. 3
Honduran wate;s hy sailors, 13divers,
Sandinista Front patrol 8 oarsmen.
boat.
Violation Honduran
territorial waters and
kidnapping.

Apnl 18 A Honduran vesse1is Sectornamed
attacked with individual Beach Punta San
automatic firearms. José.
Violation of Honduran
territorial waters and
aggression.

May 16 A Sandinista army patrol Senor of Murdered :
entered Honduran Caguasca, Francisco Lopez
territory up to the jurisdiction of San Vasquez.
community of Caguasca, Marcos de Colon,
kidnapping Francisco Department of
Lopez Vasquez,who was Choluteca.
later murdered.
Violation of Honduran
territory, kidnapping and
murder.
June 1 A Sandinista patrol Community of Kidnapped:

entered Honduran Oyoto, TeofiloRamirez.
territory, kidnapped a jurisdiction of San
Honduran peasant- Marcos de Colon,
shepherd by the name of Department of
Teofilo Ramirez, who was Choluteca.
taken to the "La Barraca"
jail in Esteli, Nicaragua.

Violation Honduran
territory and kidnapping. ANNEXES TD THE COUNTER-MEMORIAL 339

Monrh lncidenrs Place h'ameand Viciim
andDate

June 3 The Sandinista Popular Community of El
Amy attacked a Coyol.
Honduran patrol that was
on routine border duty.

Harassment against a
Honduran border patrol
June 30 A Sandinista patrol Comrnunity of El Dead: Adolfo
penetrated to the village Anonal, Lopez Betanco.
El Anonal, killinga Department of
Honduran pcasant. Choluteca.

Violation ofHonduran
territory and murder.
July 15 The Honduran boat Keys Media Luna,
BonneSoire, owned hy Atlantic Coast of
Mr. SantosEdgardo Honduras.
Haylock Arrechavala, is
captured in the Media
Luna Keys.The boat,

together with its crew, is
taken away.
Violation of Honduran
territorial waters and
kidnapping.
July 15 Seven(7) Honduran Keys Babel Kidnapped :

sailors are captured and Honduras waters. Rosales, Salomon
towed in their own boat
toward Puerto Cabezas in Calderon Chavez,
Nicaragua, and taken to Justino Melara,
thejail of "Zona Franca Tomas Melara
Managua". Garcia, Rubi
Violation of Honduran Lopez Hailo,
territorial waters and Victor Manuel
kidnapping. Ariasand Amado
Gomez Alvarez.

July 15 Sandinista patrols using Communities: La Wounded: Jorge
long and medium range Guaruma and El AlhertoGarcia,
weapons open fireon Alto, villagesof Medardo
Honduran villages. the Department of lzaguirre
Aggression wounding Choluteca. Rodriguez,
many persons. Amado
Maradiaga
Cardenas,
Romualdo
Maradiaga and
Marcelino
Maradiaga.

July 17 Sandinista combat planes Communities:Month in ci den,^ Place Nameand Vicrim
andBure

Popular Army attacked La Guaruma, El
Honduran communities Alto and La
with K 75and K 76rifles, Palmita, chart
60 mm mortarsand Concepcion de
50 mm machine guns. Maria,

Harassment to Department of
communities with short Choluteca.
and long range weapons.
August 6 The Corporal in charge of Community of El
the post at El Oyoto Oyoto-
informs that on this date Coordinates
at 7.14p.m. 10Sandinista (2790) San
elements arrived at his Marcos de Colon.
home, broke down the
door with their riflebutts,
aiiiiing their guns at his

family and hitting him
with their rifles.They
returned to Nicaragua
after they stole his
regulation weapon, home
utilities, clothing, food
and 260.00 Lempiras cash.
Violation ofHonduran
territory, breaking into
home, aggression and
theft.

August 6 Again the communities of Cornmunities: La
La Guaruma, El Alto and Guaruma, El Alto
La Palmita were attacked. and La Palmita,
Theseattacks took place chart Concepcion
at 7.00a.m., 12.30and de Maria,
4.00p.m. utilizing 82and Department of
60 mm mortarsand Choluteca.
50 mm machine guns.
Attacks and harassment
Io Honduran territory.

Aue..t 7 Sandinista elements HaciendaSan
peneiraicil one and one I:nr~quC.
h;ilCkiloiiielcr, inde I>cplrtmr.ni uf
nun rrr .u .1 Cholu~cca
the Hacienda San
Enriqué.
Violation Honduran
territory.

August Two Sandinista Air Force Community of
10 combat planes overflew Palo Verde,chart342 MILTiARY AND PARAMlLlTARY ACIIVITE5

Mont11 Incidenis Place Nomeand Vicrim
andDate

the sector of Palo Verde Concepcion de
and then flewtowards the Maria.
city of Choluteca in
Honduran territory.
Violation air space.
August Two Sandinista Air Force Community of
IO combat planes and one Duyusupo (2475).

reconnaissanceplane ch& oisan
overflewthe community Marcos de Colon.
of Duyusupo.
Violation air space.
August A Sandinista Air Force La Fraternidad
1O combat plane overtiewthe (29861 1).
border post of La Department of
Fraternidad, entered Choluteca.

1-londuranterritory and
then returned to
Nicaragua.
Violation air space.
August On this date at 8.00p.m. Villageof La Kidnapped :
13 armed individuals of Ni- Pena, Avelio
caraguan nationality Municipality of El Mondragon
entered the villageof La Triunfo,

Pena in Honduran Department of
territory and captured and Choluteca.
look away the Nicaraguan
citizen Avelio
Mondragon.
Violation Honduran
territory and kidnapping.
August On this date at 3.20p.m. a Community of

20 Sandinista patrol entered PaloVerde.
the vicinity of Palo Verde.Coordinates
A fiveminutes interchange (0657) chart
of firewas heldwith Concepcion de
elements ofa Honduran Maria,
patrol. Department of
Violation Honduran Choluteca.
territory, harassment to a
Honduran patrol.

August On this date at 9.00 am. Community of
21 elements of the Sandinista Palo Verde,chart
Povular Armv ~iaced Conceocion de
thc'mscl~csal;&>irli. the 1l.iri.i:
border wth Il<~ndurasin I>cp~rtrnciitoi
the scctor oi I'alo Vcrdr.. Cholutcc~.
The Sandinista group ANNEXES TO THE COUNTER-MEMORIAL 343

Monrh Incidenis Pluce Nameand Vicrim
undDure

began firing towards
Honduras and our army
was forced to answer their
fire.

Attack 10Honduran
territory and harassment
to the Honduran army. MI1.ITARYAND PARAMILITARYACTIVITIES

Annex 63

DIPLOMATN IOES FROMTHE% GOVERNME OFTCOSTA RICA TO TllGOVF.RNMENT

NOTI! NO.OEA-626 FROM THE PERMANENT MISSION OP COSTA RICA AITACHINC THE

NOTE OF SEPTEUBER 30, 1983, FROY THE GOVIIRNMEXI OF COSIA RICA TO TIII~
MINISTRY OP lQREIGN AFFAIRSOP NICARAGUA

October 3, 1983

Excellency:

I have the honor to address Your Excellencyto ask that you kindly circulate
to the distinguished members of the Missions and Delegations the note dated
September 30, 1983,from my Government to the Ministry of Foreign Aifairs of
Nicaragua.

Accept, Excellency,the renewed assurances of my highest consideration.

(Signed) Luis E. GUARDIA,
Acting Representative.

30 Septçmber 1983

Excellency:

The Government of Costa Rica condemns and repudiates with profound
indignation the attack on Costa Rican territory, on memhers of the armed forces
of Costa Rica and on the country's installations at the Pefias Blancas border
post carried out by the Sandinista Popular Army with the evident purpose of
~~~~~~-~~~~s.
It was a gratuitous aggression, which demonstrates the hostility of the

Government of Nicaragua, an attitude alrcady manifested by other acts commit-
ted aeainst Costa ~ica's sovereientv and territorial .nt.eritv.
In Gr<renlinpihir protoi. inaige;. Io ihc hon<>r<;o\ernnieni ofh'~i~ri(gu3.
the Governiiierit,iiC<irii RKJ WI\~CS il IOknwr thdi ilic aitackha, ,criouil)
and adverselv alïected diolomatic relations betwcen the two countries. Unlcss
the Governkent of Nicaragua displays clear and unmistakable signs that it will
in al1 ways and in al1 places honor the rules of international law regulating
conduct bctween civilizedStates, relations cannot return to a status favorable to
honorable comportment.
Costa Rica will permit no other action by the Nicaraguan Government in
violation of the country's most sacred rights. ANNEXES TO THE COUVl'liR-MEMORIAL 345

Accept, Excellency,the renewed assurances of my highest consideration.

(Signcd) Fernando VOLIO JIMBNIZ,

Minister of Foreign Amairsand Worship.

Non? FROM THE PERMANENT MISSION OP COSTA RICA, TRAPiS>lIlTING THE TEXT OF
T11S NOTE SENT RY TllE MlNlSTER OF FOREIGN AFFAIRS AND WORSIIIP OP COSTA RICA
'COTHE MlNlSTER OF FOREIGN AFFAlRS OF NICARAGU AN, EVENTS THAT OCCURRED
ON FERRUARY 23, 1984

March 1, 1984.

Excellency:

1have the honor to transmit to Your Excellency, for your information and

~h~ ~onrooriate ourooses. a conv of the note dated Februarv 29. 1984.addressed
io ih;.'~c~retar);~~ncrül of ihr: Orgirniwtion by ihe /\cii&+ Keprescniati\r. of
Ci>.t:iRiw. cnilosing the ie\t oi the note scni h) th<,Miniric01'Ilircign All.iirs
:<ni1\\'.>rrhinoi'Coii;i Rictc>ihr Mlo~~tcrof f<~r..-en ,\n-(~rof Nic:ir:-eui~<ln
events that bccurrcd on February 23.

Accept, Excellency,the renewed assurances of my highest consideration

(Signed) Val T. McCo~ii!,

Assistant Secretary General,
Officerin charge of the General Secretariat.

OEA-No. 107
February 29, 1984.

Excellency:

1 ha\? the honor IO ;iJdrerr Your LIxicllcnr) io scnd yt)u hercwiih ihc texdi
3 note addrcs>edh) the Slinisicr of Foreign AiTairiand \\'orship of Coit;i Kird,
Dr. Carlos Jar;Gutiérrez.to the Minlstcr of I<irrigriAiT:<iro\ f Nir.liriipu;i.Mr
Miguel d'Escoto Arockman.

That note describcs the serious evcnts thdt occurred on Februarv 23. 1984.
when memhers of the Rural Guard of Costa Rica, in Conventillos, wirc attaçked
with heavy weapons from Nicaraguan territory by members of the Sandinista
Peoole's~rmv, whilethe former wercmakinc an -nvesticati-n ofcattle smuaeli.. -
in Costa ~ican territory.
1 shall appreciate itif Your Excellency will make these evenrs known to the

Ambassadors, Permanent Representdtives of the member States, and the
Observers IOthe Organization of American States.

Accept, Excellency,the renewed assurances of my highestconsideration.

(Signcd) Luis E. GUARVIA,
Acting Representative. San José, February 28, 1984

Excellency :

1 must address Your Excellency to inform you of the serious events that
occurred last February 23, between 11.00a.m. and 12.00 noon, when members
of the Sandinista People's Army attacked Costa Rican territory in the border
zone of Conventillos with fifty-caliber machine-gun fireand eighty-two-millimeter
mortar fire, seriously endangering the lives of members of the Costa Rican Rural
Guard, who were carrying on patrol work.
For the purpose of avoiding a confrontation,the Costa Rican patrol chose to
withdraw. The intense fire continued for more than forty-five minutes and left
as evidence numerous impacts of mortar shells, some of them located more than
one thousand meters from the border line, within the national territorv. In
addition, as a result of this attack, more than forty-five hectares of pastuLesof
the Conventillos farm were burned.

1 mus1emphasize to Your Excellency that the border line, in the zone where
the attack occurred, is duly marked and that the Costa ~ican patrol was doing
regular lookout work in full daylight, to prevent smuggling.
The distinguished Government of Nicaragua cannot expect that, in the face
of the incomprehensible events that have occurred, the Government of Costa
Rica will maintain the patient and conciliatory attitude that il has maintained
until now as a contribution to the pacification of the region. These events
constitute a Baerant violation of the national territorv. for which reason 1must
present a most~igorous protest 10 Your Excellency's&stinguished Government,
and state to you that they place in douht the sincerity of the intentions of the
Government of Nicaragua Io reduce tension in the area.
I likewise believeit appropriate to inform Your Excellency that, as a conse-
quence of the events mentioned, the Government of Costa Rica has decided to
postpone the meeting of the Mixed Committee that was going to be held in the
beginning of the coming month of March, as well as to recall the Ambassador
of Costa Rica to Nicaragua for consultation.
Finally, 1 must make Your Excellency see that, firm as the will of the
Government of Costa Rica to support al1efforts for hringing peace to Central
America is, it considers that an essential condition of that attitude is ahsolute

respect for the territorial integrity of the country, to defend which itwill resort
to such means as it deems necessary.
Accept, Excellency,the renewed assurances of my highest consideration.

(Signed) Carlos JoséGUTI~RREZ

February 28, 1984

Knowing that Your Excellency is meetingwith the other ministers of foreign
aiiairs of the Contadora Group, it seemstome veryimportant that you gentlemen
study the danger to peace in Central America represented by acts of aggression
such as that 1referred to in my protest note.
The Government of Costa Rica maintains its firm will to cooperate with the
eiiort of pacification you gentlemen are making. But in no way can it permit or

ignore acts of open aggression against its nationals, memhers of ils public force,
or ils territory. ANNEXES TO THE COUNTER-MEMORIAL 347

Accept, Excellencythe renewed assurances of my highest consideration

(Signed) Carlos JoséGUTIÉRREZ,
Minister of Foreign AKairsand Worship.

TEXT OF THE MESSAGEFROH THE MINISnXR OF FOREIGN AFFAIRS AND WORSHIP OF
COSTA RICA TO TtlEACTING MINISTER OF FOREIGN AFFAIRS OF NICARAGUA ON APRII.

23, 1984

No. OEA-345
April 25, 1964.

Excellency:

1have the honor Io convey to Your Excellencythe tex1of the message dated
Apnl 23 from His ExcellencyDr. Carlos JoséGutiérrez, Minister of Foreign
AiTairsand Worship of Costa Rica, Io His Excellency Victor Hugo Tinoco,
Acting Minister of Foreign ARairs of Nicaragua, in connection with the serious
events that took place on April 17and 19last.

1 should he grateful if Your Exccllency would kindlydistribute the enclosed
text to the member delegations of the Organization as soon as possible.
Accept, Excellency, the renewedassurances of my highestconsideration

(SignedC )laudio Antonio VOLIO,

Ambassador, Permanent Representative
of Costa Rica.

April 24, 1984.

(Copied helow is the text of the message sent yesterday by the Minister of
Foreign Affairs and Worship of Costa Rica, Dr. Carlos JoséGutiérrez,to His

Excellency Victor Hugo Tinoco, Acting Minister of Foreign Aiïairs of Nica-
ragua :)
"His Excellency
Victor Hugo Tinoco,

Acting Minister of Foreign Aiiairs,
Managua, Nicaragua
Excellency :

1 must write to Your Excellency at this time to inform you of the serious
events that look place on April 17 and 19 last. On April 17, at 15.40 hours,
memhers of the Sandinista People's Army stationed in Pimienta, in the Pefias
Blancas border area, directed mortar fire into Costa Rican territory. Thc mortar
shells hit the small hill called 'La Pimienta', some400 meters from the border
bctween the two countries, which is properly marked with boundary markers,

and only two meters from the Inter-American Highway, throwing Stonesup on
the shoulder of the main route between Costa Rica and Nicaraguz.348 MILITARY AND PARAMILITARY ACTIVITII:S

At the moment these senous incidents occurred, an automobile, with national
license plate No. 55391, was passing along the highway barely 25 meters from
the place where the shells hit, in the direction of Peiias Blancas. The livesof the
Costa Rican passengers in the car, JoséR. Centeno Alarcon and Marianela Alar-
con Saenz, were placed in serious danger. At 15.55 hours, when properly

identified members of the Costa Rican Civil Guard stationed al the 'Hacienda
el Valle'post proceeded to inspect the scene, they were attacked with machine-
"un fire for a~..oximatelv six minutes bv elements of the Sandinista People's
Arni)
\\'hm thc ii\,iguml ilctaihnicnt JeciJed to fall hsik, the! ucrc .ig.iin.iii.iikcil
h" p.irt i>fthe S;indinisi;i Pc<iple'rArm) i.ir.ippriirim;itel)3 niinulc,
On IOi\nril. 11 16.15hours. a 'ou,h and oull' ;iircr.ifi olthc Sindiniiia ,\ir
Force violaied~osta Rican 1errito;ial air spice. The aircraft made a deliberate
attack on the Costa Rican Civil Guard garrison in a place known as Delta Costa
Rica, near Barra de Colorado, firing 70mm rockets and machine guns. The
shellsfell barely 20 meters away from the post, which is properly identified with
the Costa Rican Pag. Over and above the material damage caused, the attack

might have cost the lives of the guardsmen stationed in the garrison.
Since there was no justifiable reason al al1 for these serious attacks, the
Government of Costa Rica hereby presents its most forceful protest, and trusts
that the Government of Nicaragua will conduct an investigation of the events,
sanction those responsihle, and take steps to ensure that acts such as those
described here do no1occur again, and to provide the satisfaction required by law.

Accept, Encellency,the renewed assurances of my highest consideration.

(Signed) Carlos Jose Gu.ril~~~z,
Minister of Foreign Affairs and Worship." ANNEXES70 THE COUh7ER-MEMORIAI.

Annex64

Department of State, Division of Language Services

San José,May 2, 1984.

Mr. Minister :
1have the honor to inform Your Excellency of a new attack by members of
the Sandinista Air Force, on Sunday, April 29, 1984,from 7.50am. to 8.30a.m.,
in which Iwo of its aircraft overRewCosta Rican territory firing rackets at the
village of San lsidro de Pocosol, locat3dkm from the boundary between Nica-

ragua and Costa Rica.
1 did not know of this attack, which 1am reporting now, on Monday the 30th
when. at the meetin~vof fore-en ministers of the Contadora Grouo and Central
America, 1referred to the numerous aggressions carricd out against Costa Rican
territory by military personnel of the Government of Nicaragua and requested,
on behalf of my Government, action by the governments composing the Con-
tadora Group.
This latest occurrence, the most serious incident to have taken place in the
last two years, has brought relatioiis with Nicaragua to their lowest ebb and
confirms the hardening of the position of the Government of Nicaragua towards
the Government of Costa Rica.
In view of the foregoing, 1 request your Government to consider, together
with the other governments forming the Contadora Group. the dispatch of a
mission of observers that could make an on-site verification of the serious
aggression to which 1 have referrcd. Given the urgency and gravity of the
situation, this mission could be composed of the military attaches of the
diplornatic missions of each of the countries of the Group in Costa Rica.
Furthemore, in viewof the dangerous course that events have taken, 1request
you to advance the date of the visit which you were planning to make to Costa
Rica in the Company of the other Ministcrs of Foreign AiTairs.
Finÿlly, 1reiterate to Your Excellency the firm desire of the Government ol
Costa Rica thal the Contadora Groiip should be the body to achieve a definitive
solution to this grave problem withiii the framework of the negotiations to bring
peace to the region.

1avail myselfofthis opportunity to reilerate to Your Excellencythe assurances
of my highest consideration.

(Signedl Carlos JoséGirrrÉnn~~. MlLlTARYAND PARAMILITARYAC;TIVITIES

Annex65

Annex66

EDITORIAL, "TDUART EIFFI:RENCNEW YORKTIMI~2 AUGUST1984

/Nor reproduced] Ah%'I:XES70 THE COUNTER-MEMORIAL

Annex67

"PROGRAM OF THE JUNTA OF THE GOVERNMEN OFTNATIONAR I,ECONSTRUCTI OPN
NICARAGIJA9",JULY 1979

After 45 years of Somozan genocidal tyranny and of constant stmggle by the
Nicaraguan people, a struggle which has lately reached high levelsof patriotism
and political consciousness, of sacrifice and heroism, and of organization and
politico-military mobilization in a popular and nationalist revolution of unique

and ori-inal aualities based on the exam~le and though-s of Sandino, the hour
of iiaii<~naIliheration har corne.dlong uith the t:isk ofîorging the ncii.Nii~rÿgu:i.
'i'hegcno~ide I,Iour popte and thc Je~cltriictioiuur citic\ dithe band, ~iithe
Sumo~.idicrlior.hin. ihe s~ii'cringof ihc ii\ili:in populÿti<infrum crlniintl hornb.
ing, the heroism ofthe SdndinisG troops and the ~icaraguan masses, the efforts
of al1 sectors of the country in thc stmggle against the dictatorship, and the
thousands of martyrs and heroes who have fallen in the fight for justiceand free-
dom commit the entire Nicaraguan nation to the ~olitical.economic, social,moral,
and cultural r~ ~n~-~~ctio~..~~veloomenl.and transformation of the homeland.
Responding to this patriotic cohmitment, the GRN Junta, with the support
of the Frente Sandinista de Liberacion Nacional (Sandinista National Liberation
Front) fFSLNI. has drawn UD a oroeram of eovernment that is res~onsive to
the aspirationsof ail an di no'peAplC -
This prograrn of government. to be implemented during the interim period of

national reçonstruction, Iavs the foundations of the new Nicaraeua-and of a
deniocratic Sidie b~scd iinthe principle of ~<ici:iljuzticc. II dlu~ initiaie3
re\,olutionar) 2nd nsiion~lisl 01'prufound çhangcï which wiII grant Io
<ilseilors of the country ïull ~iirticiv~tionin the po1iti;iilsiructurcr. the nütiun<il
reconstruction. the inteeral develo6ment of the nation. and the transformation

social domains :

1.1. Establishment of a government based on democracy,justice and social pro-

gress.
The necessary legislation will be enacted for the organization of a truly
democratic government of justice and social progress that fully guarantees the
right of al1 Nicaraguans to political participation and universal suffrage. The
organization and operation of political parties will also be guaranteed without
ideological discrimination, with the exception of parties and organizations advo-

cating the return of the Sorno;r;irégime.

1.2. Basesfor organizing the State,

(a)E.recutivepower:
The GRN Junta will be responsihle for the executivc and administrative

branches of the State. The Junta will fulfillits duties for the tirne required to lay352 MlLlTARY AND PARAMILITARYACTIVITIES

the foundations for the genuine democratic development of Nicaragua, supported
by the full participation of the people and by the practical application of the
concepts and proposais outlinedh point 1.1 of ihis program

(b)Legis/urivepower:

A Council of State will be established and will share the legislative functions
with the Junta. The Council will ensure full re~resentation to the ~olitical.
economic, and social forces that helped to overthrbw the Somoza dictaiorship.
The Council of State will be composed of 30 members, dircctly representing
and a~. .nted by the following po-.tical orranizations and socio~economic
groups:

(1) FSLN
(2) From the Frente Patriotico Nacional (National Patriotic Front):

Movimiento Pueblo, Unido (United Popular Movement)
Partido Liberal Independiente (Independent Liberal Party)
Agrupacion de los Doce (Group of 12)
Partido Popular Social Cristiano (People's Social Christian Party)
Central de Trabajadores de Nicaragua (Nicaraguan Labor Confederation)
,-...,
Frente Obrero (Labor Front)
Sindicato de Radioperiodistas (News Commentators' Union)

(3) From the Frente Amplio Opositor (Broad Opposition Front) (FAO):

Partido Conservador Democratico (Democratic Conservative Party)
Partido SocialCnstiano Nicaragüense (Nicaraguan Social Christian Party)
Confederacion General de Trabajo lndependiente (Independent General
Labor Confederation)
Confederacion de Unificacion Sindical (Labor Unification Confeder-
ation) (CUS)

(4) From the Consejo Superior de la Emprese Privdda (Council of Private
Enterprise) (COSEP) :

Institut0 Nicaragüense de Desarrollo (Nicaraguan Development Institute)
,-..--,
Camera de lndustrias de Nicaragua (Nicaraguan Chamber of Industry)
(CADIN)
Confederacion de Camaras de Comercio de Nicaragua (Nicaraguan
Confederation of Chambers of Commerce)
Union de Productores Aerooecudrios de Nicaraeua-.Niearaeuan-Union
of Farmers and ~attlenic;) (UPANIC)
Cimara Nicaragüense de la Construcion (Nicaraguan Construction
Association)
Confederacion de Asociaciones Profesionales de Nicaragua (Nicaraguan
Confederation of Professional Associations) (CONAPRO)

(6) Asociacion Nacional del Clero (National Association of the Clergy) ANNEXm TO THE COUNTER-iMEMORtAL 353

(c)Judicial power :

The Supreme Court oflustice willbeorganized as the highestjudicial authority.
T~~-numher of members. interna1 oreaniza-ion and s~ecific functions will be
detemined in due time.
The judicial branch will have exclusive jurisdiction, will function with the
required degree of competence and independent judgment of its members, will
re-estahlish the proper application of justice, and will guarantee citizens the full
exercise of their rights.
Additional provisions required 10 ensure adequate compliance with the re-
sponsibilities and attributionsof the judicial branch will be adopted.

1.3. Fullguaranty of human rights

The human rights set forth in the United Nations Universal Declaration of
Human Rights and the Amencan Declaration of the Rights and Duties of Man
(OAS) are fully guaranteed.

1.4. Fundamentdl libertics
Bearing in mind the specialcircumstances with whichthe country isconfronted
at the present lime, the following basic freedoms will he specially guaranteed:

Free expression, reporting, and (liss~xninationof thought. Any law which
represses the free expression and dissemination of thought and the freedoin of
information will he repealed.
Freedom of religion. Full exerciseof the freedom of religion willbe guaranteed.

Freedom to organize trade and labor unions and organizations of the people.
Legislation will he enacted and action taken to guarantee and promote the
freedom to organize trade and labor unions and organization of the people hoth
in the cities and in rural areas.

1.5. Repeal of repressivelaws.

AI1rcpresrivc I;iivswill bcrcpclilcd.erpcrially ihosï uhiih ihrcatcn the dignii)
and ihc iniegriiy of inJi\,iduals and rc.uli in ûss;ts>inliiioni. di~appcrrances.

ti>rturc.illcgalilipturï and *,i(rch ;,nd seizurc

1.6. Abolition of repressiveinstiturions.

Al1renressive institutions will be ;ibolished. such as the Oficina de Seauridad
Nacion; (Officeof National Security) (OSN) and the Servicio de ~nt&gencia
Militar (Military Intelligence Service), whichhave been used for the political
repression of the peopleind their organizations

1.7. Eradication of the corruption of the dictatorship.

The corruption which has characterized the Somoza dictatorship will be
eradicated: fraudulent appropriatioii of property, smuggling, illicit tax exemp-
tions and waivers, fraudulent tenders, fraudulent real estate transactions, misap-
propriation of Statefunds, unlawful loans, loan feesand other illegaltransactions.
Administrative honesty and the integrity of public servants will be the basic
standards of public administration.354 MlLlTARY AND PARAMlLlTARY ACTIVITIES

1.8. Application ofjustice.

Members of the military and civilians involved in crimes against the people,
in the misanorooriation of State funds, and in other unlawful acts willbe brought

before the Churis of justice.

1.9. Revocation of illegaltrials and judgments.

All trials by illegalcourt-martial will be set aside, and their decisions rendered
nuIl and void. All political prisoners will be freed, and al1those in exile will be
welcomed home.

1.10. Municipal autonomy

Legislation will be enacted which guarantees the full and effectiveautonomy
of the municipalities. Municipal authorities will be freely elected by the people,
and the municipality of Managua will be re-established.

1.11. Elimination of the Somoza power structure.

The entire Somoza power structure will be eliminated and replaced by new
democratic structures in accordance with legislalion to be enacted 10 that end
and with the content of this program.

1.12. Organization of a new Nicaraguan Army.

A new Nicaraguan Army will be organized. Its fundamental role will be to
defend the democratic nrocess. the sovereientv-,nd indenendence of the nation.
and the integrity of t6e ~ic&a~uan territory. It will be composed of FLSN
combatants; of enlisted men and officerswho conducted themselveswith honesty
and oatriotism des~ite corruotion. renression and national betraval hv the

dictatorship; of iho5e who joinerl the strugglc hr ihr o\crthrow of the Sonlu~ii
rigimc, of dl %,ciorsoflhc iounlry which fciughtfor Iiberat~onand wi>h IO join
ihc nçu armv: and bv nhv..ca.lv fi1ciivenj who fulfill their miliiiir) oblig~iiun
when called bpon to do so. ~ork~pt soldiers guilty of crimes againsi the people
will have no place in this army.
Members of the army will not be permitted to engage in electoral campaign
activities. but thev will he allowed 10exercise their oolitical riehts as citizens.
The arky will be mindful at al1times of the neeis of the crvilian population,
and will participate actively in the tasks of reconstruction and development. 11s

memberskill betrained in various areas of technicalor vrofessional specialization.
There will be~ ~~ ~a-,rv militarv s,rvice and a mini~ ~ ~ ~ ~r of vermanent
eommissioned and non-commissioned officers in order to ensure the proper
performance of ils functions at aii times. Personnel willbe gradually demobilized
io the extent that and at such time as there is assurarÏce that the national
sovereignty is adequately protected and that no belligerent military forces remain
from the Somoza régime.

1.13. National police

The national police willbe subject to a special regulatory structure which takes
into account its civic functions and its duty to protect the ciiizenry. ANNEXESIO THE COUNTER-MEMORIAL 355

1.14. Independent foreign policy.

An independent foreign policy of non-alignment will be followed, linking Our
country with al1nations which respect self-determination and @ir and mutually
beneficial economic relations. In accordance with these principles, diplornatic
and commercial relations will be maintained with those countries whicb resoect
Nicaragua's inicrnill rc\,<ilution.iryprocesr Neii markcis will also hr uiughi. as

$icll \<iIiJarit) u.iih the dcm<~r~licriJiion, oi 1,iiin Amïrica JIIrcrior ihc
world

1.15. Return of Nicaraguans residing abroad

A policy of repatriating Nicaraguans residing abroad will be established in
order to use their knowledge and experience to serve the country and to allow
them to participate actively in the tasks of reconstruction and development.

2.1. Objectives.

In addition to the action required to meet the needs occasioned by the
emergency and to bring about the reconstruction of the country, the following
economic objectives will be pursued :

1. Iniernalchanges.

A process of internai changes will be initiated in key sectors of the economy,
such as aniculture, the financial system, the organization of foreign trade and
living conditions in the rural and "rban sectors

2. Reaciivaiionandsiabilizationofihe economy.

The cci>iinmywill bc imincdiatcly re;ictivaicil and ~iahilifcd. which \\,IIIm3ke
iinn.e<liry io redurc ihe ,mhalanir. in ~onimcrcial iraiiiaciionr u,ith thc resi uf
the world and to resolvethe oroblems occasioned bv massiveforei~nindebtedness.
The monri3ry and fiscalpol~cicsu,illbc redirecte4, th21inflaiiorÏanJ unemplo!-
meni can bc elli.ctircly c<>mtiatiçJ.In gcnersl, thc cçoiiomic and social forcer <if
the country willbe united and coordinated around common goals.

3. Formationof u mixrdeconomy.

Gradua1 progress toward a mixed economy, in which the following would
coexist: a public ownership sector under State control, of precise scope and
clearly delimited chüracteristics, whose principal features are defined below; a

private sector; and a lhird sector chüracterized by joint or coordinated public-
and private-sector investment.

4. Individualand colleciivparticipaiion

The replacement of the traditional paternalistic principles of government in
the economic field bygovernment action that promotes and stimulates individual
and collective participation by al1 Nicaraguans in the solution of their own
problems.356 MILITARY AND PARAMILITARY ACTIVITIES

The following measures will be adopted in accordance with the objectives
just outlined:

2.2. lmmediateaction plans.
In the immediate short term and on an emergency hasis, the following plans

of action will be formulated and implemented:
(1) An emergency plan chiefly designed to rneet the basic needs of the
population :

(a) availability and distribution of food;
(h) the economic situation of families directly aiïected or broken up by
the war ;
(c) the reconstruction of cities, towns, and suburhs;
(d) nutrition and health;
(e) efficientreorganization and operation of ~ublicservices :transport, energy,
water, communications.

(2) An immediate economic recoveryplan designed Io promote the reactivation
and stahilization of the national economy. This plan would have Io include
specific measures or programs, mainly in the following areas: employmenl;
griculiur;tl ;inJ inJii~tri;,i produciion n><>lirt.~raynd r'x:h>iige polie) . I;)rcign
Inde, tlixpoli-y and puhlic \peniling: rcneguti.itian of the Liriign puhlic dcbi:
ncw loÿn pulii!' guidelinr.i: financing policy Cordoclupmcnt ; and bcr\icis

2.3. Plan for social and economic reconstruction, transformation and develop-
ment.

A medium-term plan for social and eçonomic reconstruction, transformation
and development will be drawn up for the purpose of substantially improving
the standard and quality of life of our people through increased national
production and an equitahle distribution of wealth. This plan will involve al1
sectors of the nation in national reconstruction and the country's full develop-
ment. The sectoral plans mentioned in this program will be a part of il.

2.4. Patrimony for national reconstruction (Patrimonio de Reconstruccion

Nacional).
The l'airimoiiy for S;ition;il Kcconstru;tion uill bi creati<la, an arcs of State
and public propcriy and action. hasiil on the rcco\cry of al1propcrtie.; uiurpi,l

by the S<imo/a Ilimil, and 11,5UDDOrtCrS. The natrim<)n) uill hc usi,l ~.hieflsIo
address the hackwa;dness, povéky and unemploymeni suffered by the Gcat
majority. It will be managed by a national trust before being transferred to the
State agencies designated by the government, and those agencies will be respon-
sible for inteeratinn it into the national reconstruction. transformation and
development proce;. The said management will take into account the need to
promote the constitution of various forms of public ownership.

2.5. Production and marketing.

(a) Naturul Resources:

l'hi St;ite irilc~nirul thc expl<~raii~~an nil dc\.clopnicnt of n3iurlil rcs~iurces.
including mincr. liirc.1~.liiheries anil incrg). Aiiordingly. it \ilImanage thosi ANNEXES TO TH11COUNTER-MEMORIAL 357

rcwurce. c\clusi\~tlyaiid Jirczil! dr, i;%ilithat, uill cst:ibli,h ihr.riilcs;ind con-
dltions Io hc :ippl!cil whcn. ior t~cl1~~31o~1o cir1lfiinJing re.i.on\, coinic\lniciil
projects are necessary

(b) Basicproducrionpolicy:

The nation's resources will be directed mainly toward labor-intensive and
intensive land-use activities. Efficiencywill be striven for in the production of
goods and services.

(c) Priority givcn10 agrictrlturalou/pulfi)r domesricconsumptiun:

Hieh orioritv will be eiven to aericultural production, chieily for domestic
consumition, &th technyques that ;iicrease without-adverse effects
on employment. Accordingly, the large tracts of arable land no1currently under
cultivation will be put to use through agrarian refom.

(d) Agro-in~iusiriadlevelopmen .r

Agro-industrial development, i.e., development of industries based on locally
produced agricultural raw materials, will be promoted.

(e) Markeringnlechunisms:

(i) Foreign trade: Marketing operations, such as the importation of basic
inputs for agriculture, will be entrusted to the State.
This measure will be desiened to obtain better markets and prices for such
products; ensure adequate incomes and pay in the agricultural activities
concerned: reduce production costs; and channel into the public scctor a part
of the foreign exchange earned by traditional exports.
(ii) Domestic trade: The State will strengthen or estab!ish pnce reguladon or
control machinery and ensure suppliesof the basic domesticconsumer goods that
make up the population's foodneeds, preventingspeculationin such products.

(f) Developmeni of Nicaraguanenterprises.

The State will giveappropriate support and protection Io the dewlopment of
Nicaraguan enterprises, especially small and medium ones, vis-à-vis the transna-
tional~. To that end it will apply a rational policy of incentives consistent with
the plan for national reconstmction, transformation and development, and, by
creating or strengthening pertinent institutions or mechanisms, further the identi-
fication,selection, promotion and funding of projects.

2.6. Foreign debt

(a) Restrucruring andrenegorioriitg rherleht:

The heavy foreignpublic debt contractcd by the Somozadictatorship, estimated
at more than 13 billion cordobas (US$1.3 billion) will be restructured and
renegotiated. The renegotiation of the foreign deht will include ils reconversion
under the terms, conditions and schedules most favorable Io the national interest
and will be closely lied to the couiitry's economic recovery and the gradual
restoration of its ability to pay. Special importance will be attached to the
recommendations that UNCTAD has made in that regard.358 MII.ITARYAND PARAMlLtTARY nCTlVlTlES

(b) Foreignfinancing:

Foreign financing will be directed chiefly toward the country's most urgent
and immediate reconstruction needs, such as activitiesspeedingeconomic recovery
in the short and medium term, in accordance with such priorities as may be
established. Accordingly, attention will he given to the need to execute develop-
ment programs of broad social scope, including ptojects capable of paying their

own wa~~~,~-~--~t.will be made to enlist international solidaritv. mainlv on the
part of friendly nations. Soft or special terms will be sought for fireign f;nancing
of reconstruction. Public and private foreign indebtedness will be strictly con-
trolled through the mechanismi deemed mist appropriate.

(c) Crants:

The policy will be to accept international grants that are not subject to con-

ditions or limitations preiudicial to national dignity or soverei~nty. Resources
thus~o~ ~i~ed~ ~ll be iieorouslv a~olied to the hiehest humanitarian and emer-
gency priorities requiredfor théc&ntry3s reconst;uction and development. The
use and allocation of these funds will be dealt with in public government reports
issued when necessdry.

2.7. Tax and public spending policy.
(a) Tax relorm :

The tax system will be reformed in order to obtain adequate revenues, ensure

that the tax burden is fairlv distributed, and end tax evdsion and arbitrarv tax
collection. Among other méasures,taxes on vital and mass-consumption ariicles
will he abolished or reduced and luxury items will be taxed.

(b) Eliminotionojsmiiggling:

All types of smuggling and illicit trafic in goods will be eradicated. To that
end, laws and other provisions establishing systems of privilege that encourage
smuggling will be eliminated.

(c) Controt nf 1a.xexemptions:

Strict control will be exercised over tax exemptions or reductions designed to
stimulate production in certain sectors, in order 10 ensure that they are ac-
complishing the development purposes for which they weregranted.

(d) Publicspending

Public spending willbe managed within the most rigorous application of funds

to development programs and projects, in accordance with priorities established
in conjunction with the national plan and the budget. Ils principal function
will be to spur domestic income redistribution and maintain adequate levels of
investment.

2.8. Reorganization of the financial system

Suhrianii.il :idjusinlclii9u~llhe maJc I<Ithe org;~niz;iiiona~iJoptrstion of ihc

pr~\~airf.in.incial j)jI<m. Thc proiedurci Lw bringing ihtin ;ib<>ur \!il1hr.ah Pu-
reaching as necessary to: ANNEXES TO TH]! COWER-YEMORIAI. 359

/al meet the needs of the national interest and the common welfare:
ihj ensure adequate attraction and channelling of domestic funds in terms of
the needs and priorities of the country's reconstruction, transformation and
development ;
,~,1r~~ve~t concentration of economic oower :and
(d) further the accomplishment of thésocialf"nction which the financial
system is called upon to perform in a country where acute social and econoinic
inderdevelopmeni prevaiis.

2.9. Foreign investment.

(a) Orientationandhasicprr,visions.

Foreign investment will play a strictly complementary role to domestic efforts,
to the development of which it must contribute. It mus1 also contribute to the
country's development and reconstruction, conform to domestic law, and leave
national sovereignty intact. Foreign investment policy will therefore safeguard
and protect the national inrerest. Special consideration will be given to areas of
investment deemed to be of strategic importance for the country's development,
such as natural resources exploration and development and (the strengthening
of) the industnal, financial and transport sectors.

(b) Approvalofregirlalionsand theircontent:

The GRN will establish basic provisions and guidelines on the treatment of
foreign capital, to cover such items as the acquisition of technology, industrial
property and patent and trademark regulations.

(c) Oiherfundamentalg~ridelines.

Foreign investment will be accepted only when the technological or financial
needs Tor the project cannot be supplied by Nicaraguan nationals or by the
State. In any case, steps will be taken to ensure that the technological knowledge

gained from foreign investment will betransferred to Nicaraguan nationals and
that such nationals will be aRorded adeoua. .oarticination in the ownershio and
management of the enterprises concerned.
lnvestments with negative effects on the country's ecology or its social and
moral environment wilinot be permitted

2.10. Agrarian reform.

(a) Generalguidelines:

An agranan reform law and implementing legislaiion will be enacted to carry
out. in accordance with clearlvestablished euidelines. a nrocess of transformation
of agrict%ural ownership en<uring the ruri1 ppopulahon'differentforms of access

to land and to technical assistancc, as well as financing and other indispensable
facilities.
Agrarian reform will be initiated ivith the appropriation by the Slate of the
following properties :
(1) Land and farms taken from the Somoza family and their supporters, which
will become part of the resources used for national reconstruction.360 MILITARYAND PARAMILITARY ACTIVITIES

(2) Properties of dehtors of State financial institutions who profited illegally
from their lies with the Somoza régime.
(3) Prooerties of tax defranders.
(4) t ai ion lands that were assigned by the régimefor political purposes.

(5) Farmlands ahandoned by the owners.
(6) Uncultivated lands, whether State-owned or part of large private holdings.

(h) Formsof assignmenl

Upon being assigned to new owners, the lands concerned will be used for
productive purposes, principally in associative ways that ensure the fulfillment
of the social function of property.

(c) Otheragrarianguidelines:

lncome from land and the use of water will he reeulated: also. the dividine
up .>fc\.r.iic.\propri.iicdirait, <>ilirnil;inJ uill he .~\s>i<lc.ii order io prevcni
ihc crc.it1.m ,II.niaIl lii>lJingh.incIO riiiiiiitdin.iileq~.iic priiduai.~n Ir.\cls

2.11. Regional development.

A development policy will be pnrsued to meet the specific needs of diiierent
regions of the country.

2.12. Atlantic coast development.

The develo~ment of the country willextend to the Deonl,of .he Atlantic coast.
Io iliat r.nJ co<>rilin;itr.J<>ln.liciii>iiuill be unJcrt~kcn iiith appr.>pri;iicStdie
Iigen<ic.%iiir ihc purp<i>c~~ic,iabli,ltiiigscr\i<c i.i.iliticr at \iniiegic p~iriisin this
rcri<>n a hicli,in eoniunciioii wiih dprdrian rciorrii, \ilIriroi ide 1,c~lih.cJu:a-
ti&al, technical assisiance, financialand marketing services.

2.13. International economicrelations

(a) Internationalbodiesundorganizations:

The country will participate actively in major international bodies and
organizations; principally those addressing the socio-economic proposais and
concerns of the developing countries, such as: the Conference of the Non-
Aligned Countries, the Group of 77, the United Nations Conference on Trade
and Development (UNCTAD), and other specialized agencies of the United
Nations.

(b) Technicalandfinancialcooperation :

Technical and financial cooperation from the international community must
respond to the objectives and guidelines estahlished hy the GRN and will he
mainly requested from the United Nations, friendly countries and those inter-

national organizations that fully respect the country's sovereignty and the firm
decision of the govemment to uphold the principle of the self-determination of
the Nicaraguan people. Necessary non-reimbursahle financial and technical co-
operation will he requested. ANNEXES TO THE COUNTER-MEMORIAI. 361

(c) Lafin ArnericunandCcniralAmericanInregrurionandCooperuiion:

In the Latin American framework the action of SELA (Latin American
Economic System) will be strengthened and emphasis will be placed on a multi-
lateral approach when seeking joint solutions to common problems. especially
those raised vis-à-vis the industrialized countries. Central American and Latin
American integration willbe supported in so Paras ildoes no1hinder the process
of interna1 changes or the government's revitalization of the economy but
promotes the legitimatc interests and aspirations of pcoples.

(d) Properry~uurrrntie.ur?~dac~ivitiof thepriv~~~seclor:
Property and activities of the private sector no1 directly affected by the

mCdSUrCS estahlished or planned in this program will be fully guaranteed and
respected.

111 Socialdomain

3.1. Objectives of socialaction

Al1 Nicaraguans will be given the real possibility to improve their living
standards by the establishment of a policy to climinate unemployment and
provide access to housing, health care, social sccurity, efficient mass transpor-
talion, education, culture, sports and wholesome entertainment.

3.2. Full employment and rcdlwages.

(a) Creaiionof sorrrceof emplo.vmenr
In an effort to obtain maximum levels of employment, new sources of

permanent jobs will be created.

(b) Mainrenancei>Srr.riili'ages:

A wage policy will be established for urhan and rural areas and efforts will be
made to ensure proper working conditions, treatment, numher of workdays,
housing, nutrition, etc.,primarily in camps housing farm workers. In imple-
menting that policy account will be taken of the importance of maintaining the
pcoples' purchasing power and prr~vidingjus1 remuneration to cover their
basic needs.

3.3. Labor and social security

(a)Newlaborcode

A lahor code will be promulgated which will truly protect laborers, ïarm
workers and al1 types of wdge earners. The legal rights of organizcd labor will
be respected and the right 10strike will be eîiectively guaranteed.

(b) Restrucrurinyof thesociolsecuriiysyslem:

The INSS (Nicaraguan Social Security Institute) willbe restructured and niade
an eficient agency serving Nicaraguan workers. To that end true representatives
of the trade-union secior will be included on the INSS board of directors. By362 MILITARY AND PARAMILITARY ACTIVITIES

gradually extending the henefits of the social security system to the worker's
entire family and to every urban and rural area, the INSS willbecome a humane,
competent, and efficientinstitution.

(c) Orherprovisionsaflecringsocialsecuriry

Strict regulations will be established for the use of the financial resources of
the Nicaraguan Social Security lnstitute in order to ensure tbeir application to
the specific puiposes for which they were created. The various loans made hy
the lnstitute will be reviewedand adapted to the scope of coverage and financing.

3.4. Health and nutrition.

(a) lleulrh cureplanning

A Unified National Health System will be established which will gradually
include the active participation of the community in order to lay the bases for
the delivery of these services in a manner than ensures their efiectivenessin terms
of quality and timeliness. The bases for thc operation of this system will he
included in the Health Plan.

(h) Personnetlraining:

In order to have trained human resources available for the implementation of
programs and projects of the Unified National Mealth System, an active policy
will he carried out to train technicians at the various levels required, including
the training of paramedical and auxiliary stafï.

(c) Regiflurions applicableron~edicines

The domestic prices of medicines and their indiscriminate importation will be
regulated. The system of trade marks for the production of medicines will
he revised to make them accessible to the poor and the sale of medicines will be
appropriately supervised.

(d) Puriicipofionof heulthcureexperrs:

In view of the important social function of health care experts, the State will
establish mechanisms to promote their organized participation in the formulation
and implementation of the National Health Plan.

(e) Cliildren'snuiririonprogram

A children's nutrition program will be initiated, using, among other facilities,
schools, health units and day care ccnters.

(f ) Erodicarionofchronicmalnuiririon:

The chronic malnutrition that ail'ectsa large percentage of the population,
especially in rural areas, will beeradicated. To that end, in addition to ensuring
an adequate food supply, educational programs will be carried out to improve
the nutritionaldiet of the lowest income groups. ANNEXES TO THli COUNTER-MEMORIAL

3.5. Education

(a) Educaiionalrefi~rm :
An in-depth reform of the objectives and content of national education will

be carried out in order 10 make education a key factor of the process of the
humanitarian transformation of Nicaraguan society and Io give that process a
~ ~ ~cal and liberatine aooraach. This reform will be comorehensive and will
include ailstages of ;he b;ocess, from preschool to higher eéucalion.
To that end, a national plan for the comprehensive development of education
will be drafted and a general law on educaiion issued

(b) Freeandcompulcr>re yduca~inn:

Primary and secondary education willbc freeand compulsory and, in addition
to giving the student scientifictraining, will prepare him to perform skilled work
and understand the problems of Nicaragua.

(c) Controlof rhepricesoftextbooks ondschoolsupplies;schooluniforms:
As a first step, the prices of textbooks and school supplies will be strictly
controlled. As soon as possible, the Ministry of Public Education will establish

the mechanisms required for the production and sale of textbooks and school
supplies so that they may bc provided free of charge to the students enrollcd in
public schools.
A single school uniform will be established for al1students.

(d) Regularionofprivare schoo1.s:

The Ministry of Public Education will issue regulations for the operation of
private schools, regulating registration and tuition fees and ensuring strict
compatibility with national educational plans. Similarly. appropriate control will
be exercised overthe pliysical facilitiesof such institutions (libraries, laboratorics,
gymnasiums, etc.) in order to coordinate thcm with the services provided in
public schools. Communitics will be urgcd to participatc in efforts 10 improve
education.

(e) Esrablishnienrof~~ocarionalschools:

Vocational schools will be estahlislied to train the labor force in occupations
pertinent to national development.

(1) Esfabli.~l~mernfrrural eriucurionaclenrcrs:

In accordance witli the policiesand priorities of programs of instruction, funds
will be channclled to establish rural educational centers in whicb, in addition to
a basic and comprchensive education. technical training will also be givcn to the
rural population. Curricula for rural cducation will be fullycoordinated with the
processes of agrarian reform and rural development.

(g) Respcrrfir rhcuurononzyof theNarionalUniversiiy;
The autonomy of the National Autonomous University ofNicaragua (UNAN)

will be maintained. and it will be arorded full support so that it mdy develop364 MILITARY AND PARAMILITARYACTIVITIES

creative instruction and conduct appropriate research in the sciences and in the
study of national problems. A National Council of Higher Education will be

established to coordinate professional education

(h) Eradicolionofilliterucy :

A national campaign mobili~ingal1the country's resources will be undertaken
in o. .~.~ ..r.ne -bout the total eradication of illiteracv. At the same time.
eniÿnilpatury :iJult cducatinn progr:im\ u,ill be set up in cirdcr th31ildulis ma!
bc fully inicgrliicd in the ii;itionillrcionsiruitiun and dci,elopmcni proce.;.;

3.6. Housing

(a) Urbanreform:
,\ true rtforni u~llbc i~rricd out In <>rdcr IO r:bt>l\e.IIII<,~IIII.the prublcmr
oi ih: rluni nei~hborh<iod*.the .quaiter,' seiilcmcnts, iins;tniliir) coriditionî and

IlniiisIO bc irn~~~reo dn <~uncrrhipi>lurh:in r>...trt\.Tci .ii,.irpe~iil;iti~~nh.-c11
priority will bégiven to residential rent control.

(b) Planning:

~~n~~~~~~-~~~~ ~ne olan will be drawn uo and carried out in order to meet
the basic needs of theieople, especially the fowest income segment. The housing
programs shall provide for the construction of units of adequate size, at
reasonable cost. and oiièrine necessarv sanitan, installations. Prices of buildine
materials will also be controlled. -

(c) Ruralhousingprogrum:

A program of rural housing will be undertaken with a view Io furnishing the
rural population with housing in accordance with its needs.

(d) Emergencyprograniforsluf~n l eiyhborhoods:

In the slum areas, an emergency progrÿm will be carried out to rebuild the
homes of victims of the aenocidal bombinas of the Somoza dictatorship as well
as io improve existing housing. This program will be implemented by means of
a long-term low-intercst financing system and by using the infrastructure already
those heroic neighborhoods.
in place in

3.7. Public servicesand utilities - transport, water, light, sewerage

(a) Orgrinizuti~~(nfmuss transir:

The State will make the municipality of Managua owner and manager of the
metropolitan mass transit system. At the same time, the necessary measures will
be taken to reorganize and regulate urban and iniercity mass transit lines in
order to promote efficiencyand the best possible service to the user.

(b) Regulationojfares:

All mass transit fares will be regulated, both to permanently ensure lare levels
within reach of the masses and to maintain adequate levelsof efficiency. ANNEXES TO THIS COUNTER-MEMORIAL 365

(c) Trafic courrs:

Traffic courts will be established under the jurisdiction of the judiciary. They
will be strictly civil in nature.

(d) Internurionulociiononmuriiimefreightrotes:

The unjustified increascs in maritinle freight rates imposed unilaterally by the
international maritime conferences will be combated by means of joint inter-
national efforts, as required, to be carricd out in particular in coordination with
the countries of the Central American and Caribbean area as well as with the
rest of Latin America.

(e) Extensionofwufer, lighi.undseweruge services:

Public utilities willhe expanded, particularly those of water, light and sewerage,
in accordance with the reconstruction, transformation and development plan.

(f) Revisionundriiodifcufionofulilily rates

Public utility (water, light and sewerage) rates will be revised and modified,
climinating the suhsidy hy consumers to industry and providing special benefit
to the masses.

3.8. Welfareof women, children and the elderly.

(a) Srarusu/wumen:
The status of women will be assured, al1 the rights of women in Society

enforced, and discrimination eliminated. In the health plans, pregnant women
and nursing mothers will receivc priority attention.

(b) Estublishm~~o nfida.!-cureceiirers:

Day-care centers will be set up with the actual participation of the mothers
themselves, in order to facilitate the integration of women in the national
reconstruction and development process.

(c) Comprehensivechilc dure:

Children will be eiven comorehensive care. beeinnine with pre-natal care,
followed by care du&g their intire growth and d&eloprnent. ~iecial attention

will be given to combating infectious and contagious discases.

(d) Eliminuiionofchildlubr>rn , eylectundmendicuncy.

As a result of the early implementation of the measures indicated in the fields
of health and education. t.get-er with other complementary measures, child
labor as well as mendicancy and child neglect willbe eradicated.

(e) Cureo/rhe elderly:

ln a broad humanitarian spirit and within a framework of respect for the
human person, the most pressing needs of elderlycitizenswillbe met, in particular366 MILITARY AND PARAMILITARYACTlVlTlliS

those who are unable to work, are homeless, mendicants, or suffering from
illnessesrequiring medical treatment. For these purposes, the necessary facilities
or installations such as boarding houses or homes for the aged, willbe estahlished

or reorganized.

3.9. Culture and sports.

(a) lncenrivesio creufivifyandurrisricexpression:

Liierar", ariiiiic, ;irilsün.il 2nd lolkloric proJu:ri<~n i311iijc\pres\ion$ \\III
he enco~r~gcd iiith :I \,leu.IO consolidaiing an auiheniic S~r.lir:tgu.inpdpuldr
culiurc. and cli<,rt\ u,ilhe nudç tu rçiuuer nnrionsl cultural valuei

(b) Trainingceniers:

Schools will be estahlished to provide training in music, the dance, the plastic
arts and the theatre; creation of groups in the aforementioned disciplines will be
encouraged throughout the couniry.

(c) Populuredirions:

Large-scale printings willbe undertaken of books for mass consumption which
will serve to keep the process of cultural formation alive following completion

of the national literacy campaign.

(d) Proiccfionof thearrisiicondculrurulherifage:

The artistic. cultural. and historical heritare of the nation will be zealouslv
protected, for hhich purpose libraries, museums and archives willbe established-;
likewise, lawswill be passed to prevenl the national cultural heritage from being
removed from the country

(e) Knoialedgeanddisseminuli~~on f the vulueswhichfi~rmnurionaliry :

Institutions will be estahlished to study, analyse and disseminate national
values, especiallythe life and works of Augusto Cesar Sandino.

(f) Incenrivesfor sporrs:

The practice of sports by young people will be encouraged by al1 possible
means, as a part of the integral process of education. Stadiums, playing fields
and parks will be built throughout the country.

3.10. Reconstruction of Managua and other cities destroyed by the dictator-
ship.

(a) Reonslruciion of Munoguu:

A true plan for reconstruction of the capital city will be undertaken and will
be hased on humanitarian criteria; the personal interests which were the basis
of the decisions adopted by the dictatorship will be replaced by the interests of
the people. ANNEXES TO TRI<COUNTER-MEMORIAL 367

(b) Reconstruc/io,iof othercitirs;
Urgent measures will be taken to rebuild the cities and towns destroyed by

the Somoza régime,and to meet their basic infrastructural needs. ln particular,
attention will be given to meeting the needs of the families aiTectedby the war
as well as those in distress, refugees and emigrés.

IV. lnvrirulionalreoryunizalioll

An administrative reform, principally of the executive branch, will be carned
out in order 10: (a) rationalize ils functions and eliminate excessivebureaucracy
and overlapping in governmental activities; and (h) establish and put to use a
system of economic and social planning 10ensure irnplementation of plans and
projects of economic and social development in accordance with established
priorities. MlLlTARY AND PARAMILITARYACTlVlTlES

Annex68

[Spanishtex1no1reproducedl

Considering :

1

That il is necessarv to subiect the Government to a set of rules that will
guiiranicc ihc rights if ihc riii;cn, 2nd rcgdl;iic the puhltc wrvicc:
Ihat the prinir) iun<ti<~n\i>f thc Coh:rtitiient oi9ati~)n:iI Kcc~~tirtru;iion
u,illbc to rc5i<ircFace, la\, the found;iiions icirthe csi.iblishnieni ofa dcmocratiz
system of government th& is deeply rooted in the people, and begin the great
task of national political, socialand economic reconstmction, for which an appro-
priate legal system is required,

Therefore:

Decrees:

The following Basic Statute of the Republic of Nicaragua

Chapter 1. lmmediate Objectives

Article 1.The immediate objective and principal task of the Government of
the Republic shall be to implement ils program of government published on July
. , .. .. .
Article 2. To implement and carry out the Program of Government, the

Government of National Reconstruction shall estahlish the necessary priorities;
itis hereby empowered to make such adjustments as political, social and econo-
mic conditions may require.

Chapter II. Rescisions

Article 3. The present Political Constitution and Constitutional Laws are
hereby repealed.
Article 4.The Chambers of Deputies and Senators, the Supreme Court of
Justice. the Courts of A~..als. .he Suoerior Labor Court. and other structures
of Somocist power are declared dissolved.
Article 5.Provisions referring to the minority party in any law in force are
declared especially inapplicable. ANNEXES TO THI?COUNTER-MEMORIAL

TlTLE Il. RIGICIS AND GUARANTIES

Sole Chapter. Basic Principles

Article 6.The rights enunciated in the United Nations Universal Declaration
of Human Rights, International Covenant on Economic, Social and Cultural
Rights, and International Covenant on Legal and Political Rights and in the
Declaration on the Rights and Dulies of Man of the Organization of American
States are fully guaranteed in the manner set forth in the Statute on the Rights
and Guaranties of the Nicaraguan People to be promulgated concurrently with
this Statute.
Article 7.The unconditional equality of al1Nicaraguans shall be established.
Arlicle 8. The freedom of conscience and relirion. based on a broad spirit of
tolcrlinic;inJ the uiircsiricted ircedoin of oral and urittcn cxprer5ion of ihoughi

;inJ IO i,>rm pol~tiz;il;inil I.ih,ir airg:ini/;iiion+.suhjca ùnlwsho Iiniil;iiii~n~
as niay d:ri\r.irum ilic St;itute on ihc Righi* and Gu3ranllei oiI~C Nicari~g~ïn
peoplé,are hereby recognized.

TlTLE 111O.RGAN17.ATION OF THE STATE

Chapter 1. Branches

Article 9. The Branches of the State shall be: The Governing Junta, the
Council of State and the Courts of Justice.

Chapter II. The Goveming Junta
Article IO. Until such lime as the new Political Constitution of the Republic
is adopted the Exccutive Powcr shall be vested in the Goveming Junta, which

shall share the Legislative Power with the Council of State in conformity with
the provisions set forth hercinbelow.
Article II. The Governing 1unt;i shall be composed of the five persons
decreeing this Basic Statute, who have been appointed by the revolutionary
movement from among the various political, social and economic sectors of
Nicaragua.
Anicle 12. The Governing Junts may assign ils mcmhers specific public
administration responsibilities. The Goveming Junta shall appoint a Secretary
who shall have thc rank of Minister of State. The executive and administrative

functions shall bc carried out bv means of decrees. orders and offlcial
communications.
Arlicle 13. The Governing Junta's Legislative Power shall he exercised by
means of laws enacted in the manncr stioulated in each case or in the manner
generally agrced upon.
Article 14. Laws issued hy the Governing Junta shall be submittcd to the
Council of State, which may veto tliem within a fiveday period by a majority
of two-thirds of its members. Fdilurc to veto a law during the period stipulated
shall be understood as tacit approval.
Article 15.The decisions of the Governing Junta shall be adopted by majority

vote. Quorum shall he constituted by a majority of the memhers.

Chapter III. The Council of State

Article 16. The Council of State shall be composed of 33 members appointed
by the following political, social, economic and labor organizations:370 MlLlTARYAND PARAMlLlTARYACTIVITIES

1. Frente Sandinista de Libcracion Nacional (FSLN) (Sandinista National
Libcration Front): six members.
2. Frente Patriotico Nacional (National Patriotic Front):

Movimiento Pueblo Unido 1United Peoole's Movement): six memkrs ~ ~ ~ - ~ ~ -
Partido Liberal ~ndependien'te(~nde~enient Liberal raiy): one member
Agrupacion de los Doce (Group of the Twelve): one member
Panido Popular SocialCristiano (Christian SocialistPopular Party) :onemember
Central de Trabajadores de Nicaragua (CTN) (Central Organization of
Workers of Nicaragua): one member
Frente Obrero (Workers Front): one member
Sindicato de Radiooeriodistas (Radio Journalists' Union): one member.
, ~ ~ ~~~~~~~-~~
3. Frente Amplio op;sitor (FAo) (Broad Opposition Front):
Partido Consewador Democritico (Conservative Democratic Party): one ..
member
Partido Social Cristiano Nicaragüense (Nicaraguan Christian Socialist Party):
one member
Movimiento Democritico Nicaragüense (Nicaraguan Democratic Move-
ment) : one member
Movimiento Liberal Constitucionalista (Liberal Constitutionalist Movcment):

one member
Partido Socidlista Nicaragiiense (Nicaraguan Socialist Party): one member
Confederacion General del Trabajo Independiente (Indcpendent General
Confederation of Labor): one member
Confederacion de Unificacion Sindical (CFU) (Labor Unification Confeder-
ation) : one member.
4. Consejo Superior de la Empresa Privada (COSEP) (Superior Council of
Private Enterprise) :

Instituto Nicaragüense de Desarrollo (INDE) (Nicaraguan Development In-
stitute): one member
Chara de Industrias de Nicaragua (CADIN) (Nicaraguan Chamber of
Industries): one member
Confederacion de Camards de Comercio de Nicaragua (Confcderation of
Chambers of Commerce of Nicaragua): one member
Cimara Nicaragüense de la Construccion (Nicaraguan Construction
Chamber) :one membcr

Union de Productores Agropecuarios de Nicaragua (UPANIC) (Union of
Agricultural Producers of Nicaragua): one member
Confederacion de Asocidciones Profesionales de Nicaragua (C-,APRO)
(Confedcration of Professional Associations of Nicaragua): one member.
5. Universidad Nacional Autonoma de Nicaragua (UNAN) (National
Autonomous University of Nicaragua): one member.
6. Asociacion Nacional del Clero (National Clergymen's Association): one
member.

An alternate member shall be appointed for cach member of the Council
of State.
Arricle17.The Council of State may, by majority vote, submit proposed laws
to the Governing Junta. Laws issued by the Governing Junta on the rccommen-
dation of the Council of State shall not be subject to the procedure set forth in
Article 14 of this law. When the Governing Junta amends proposed laws
submitted to it by the Council of State, the amendment or amendments shall be

subject to the procedure set forth in Articlc 14 for purposes of immediate veto
or approval. ANNEXES TO THE COUNTER- MOR RIAL 371

Article 18. 11shall be the responsibility of the Council of State to prepare a
draft electoral law and a preliminary draft for a Political Constitution.

Article 19. The Council of State shall be governed by interna1 rules adopted
by the Council itself.

Chapter IV. Common Provision

Arricle 20. In performing their duties, the memhers of the Governing Junta
and the Council of State shall enjoy full freedom of conscience and shall remain
loyal to the interests of the Nation.

Chapter V. The Courts of Justice

Arlicle 21.The Judicial Power shall be vested in a Supreme Court of Justice,
the Courts of Appcals and the Superior Lahor Court, whose justices shall be

a~nointed bv the Governine Jiinta. and the District and Local Judees and oiher
,>il;cials,uho ,hall be app~~nir~by ihc Supreme Ciiurt of ~usiice.
Art,<./<.2 The org;irii,Jtion and ILn<iion\ of the C~>uribanJ the Judgcj rhall
bc in ionformit, with rhirtinz leilisl8ti~n.prosidcd thai suih leriil~tiiinirn,iiin
conflict with or-is not expre~sly-or tacitly amended by this ~6ic Statute or by
other laws or decrees of the Government of National Reconstruction.

TITLI!IV.

Sole Chapter. The Arrned Forces

Arlic/e23. Nicaraeua's National Guard. the Office of National Securitv and
the Militiiry Intclligeiic: Scrvi;~ are tiercby tlc<lxreJ dirrol\cd ;ind al1the laus,
r~g~ldli~ln~ and ordcrs under ivhich tlic) r>per;it:;ire thereiore rcpcilcd.
.Ir~rcl2~4 S~csraru~'>'Idiiondl Guaril %hallhe rspl;tir'd b, J riea. ridrrroiic
National Army devoted to the protection of the '~emocratic proies, the
Sovereignty and Independence of the Nation, and the integrity of its territory.
The National Army shall be composed of the combatants ofthe Frente Sandinista
de Liberacion Nacional (Sandinista National Liberation Front), the officersand

men of the Nicaraguan National Guard who demonstrated their honorable and
patriotic conduct in the corruption, repression and defeatism that prevailed
during the Dictatorship and the men who joined the struggle to overthrow the
Somocist régime,the men who fought for freedom and may wish to join the
Army, and any able citizens who may be doing their compiilsory military service
in due course. There will not be room in the new National Army for corrupt
rnilitary men who arc guilty of crimes sgainst the people.
Article 25. Memhers of the Natioiial Army may not participate in electoral
campaign activities, but they may exercise their political rights as citizens.
Article26. The National Army comrnands shall be staKcd temporarily by the
military commanders and leaders of the arrned movement that ended the
dictatorship and the National Guard oflicers who joined the fight. The organi-

zation and structure of the National Army shall be regulatcd by thç Governnient
of National Reconstruction, which shall issue its laws and regulations.
Article27. The National Police shall be governed by a special set of rules that
shall take in10 account the nature of its civic functions and of ils responsibility
for protecting the citizenry. Pending cnactment of the necessary legislation the
National Army shall assumetemporary responsibility for providing police services
throughout the country. MlLlTARY AND PARAMILITARYACTIVITIES

TlTLE V

Sole Chapter. Election Matters
Arricle28. As soon as National reconstruction permits general elections shall

be held for the purpose of appointing a National Assembly. The elections shall
be called by the Governing Junta in conformity with the new Electoral Law
which shall be enacted in due course.

TlTLE VI.AMENDMIINTSAND DURATION

Chapter 1. Amendments
Arricle 29. This Basic Statute may be amended in whole or in part by the

National Reconstruction Government in conformity with Articles 15 and 17
hereunder. Amendments shall become effectiveimmediately upon promulgation.

Chapter II. Duration

Arricle30. This Law shallenter into force when published by decree anywhere
in the national territory or broadcast by radio or television. It shall remain in
force until it is superseded by a new Political Constitution adopted by the
National Assembly, as referred to in Article 28 hereunder.

TITLB VII.

Sole Chapter. Transitory Provisions

Arricle 31. Pending the formation and installation of the Council of Stdte,
laws issued by the Governing Junta shall not be subject to the procedures set
forth in Article 14hereunder.

Done al Managua on luly 20, 1979, Yearof the Liberation.

Junta of the Government of National Reconstruction of the Republic of
Nicaragua. Violeta Barrios Chamorro, SergioRamirez Mercado. Alfonso Robelo
Callejas, Daniel Ortega Saavedra, MoisésHassan Morales. ANNBXliSTO THECOUNTBR-MBMORIAL

Annex 69

"ESTATUTS OOBRE DERECHO YSGARANTIA DE LOSNICARAG~ENSE ("L"AWON
RIGIITSAND GUARANTI? O~~~ICARAGUANS "A.Citcm~, 17SE:PTEMB1 ER79

[Spunish texf nof repruducedJ

DECREE NO.52
THE JUNTA OF THE GOVERNMENTOF NATIONAL RECONSTRUCTIONOF THE REPUBLIC OF
NICARAGUA

Convidering

1

That the systematic disregard by the Somocist dictatorship of the fundamental
nghts of the Nicaraguan people and of the human being made possible acts of
barbarity insulting to the conscience of humankind; and

II

That Freedom,justice and peaceare hased upon the recognition and affirmation
of ~hefundamental rights of the human being and the communily, for which
reason it is essential that these rights be protected by the revolutionary
government ;

Therejore
Muking u.reoffheir Faculfies

decrees fkefi~llow:ng

STATUTE ON THE RlGIlTS AND GUARAPITfiFSOF THE NICARAGUAS PEOPLE

'ritle 1. Rights of the People

Arricle1. The Nicaraguan people have the nght to free and full self-
determination to estahlish their political condition and likewiseprovide for their
economic, social and cultural development.

The State shall guarantee by law the direct participation of the people in the
fundamental affairs of the nation, both at the national as wellasat the local level.
Arficle 2. For the achievement of their goals, the Nicaraguan people have the
right to freely dispose of their wealth and natural resources, without detriment
to obligations derived from international cooperation, based on the principle of
reciprocal henefit, solidarity and international law. Under no circumstances shall
the Nicaraguan people be deprived of their own means of subsistence.

Title II. Individual, Civiland Political Rights

Arlicle 3. Al1 persons are equal hefore the law and are entitled to equal
protection. There shall be no discrimination for reasons of birth, race, color,374 MILITARYAND PARAMII.ITARYACTIVITIES

sex, language, religion, opinions, origin, economic status or any other social
condition.
It is the duty of the State to remove, by any means at its disposal, any
obstacles which impede the equality of the citizens and their participation in the
country's political, economic and social life.

Article 4. The State shall respect and shall guarantee for al1 persons found
within its territory and subject to its jurisdiction the rights recognized in this
Title. Foreigners shall not be allowed to intervene in the country's politicalffairs.
Article 5.The right to life is inviolable and inherent to the human heing. In
Nicaragua there is no death penalty.
Arricle 6. Everyone has the right to have his physical, mental and moral
integrity respected. Punishment shall not he extended to any person other than
the criminal.
No one shall be subjected to torture or to cruel, inhuman or degrading
punishment or treatment. No sentence or sentences, either separately or together,
shall exceeda period of thirty years.
Article 7. No one shall be subject to slavery. Slavery and slave trade shall he
prohihited in al1their forms. No one shall be subject to involuntary servitude or
be required to perform forced or compulsory labor. The law shall regulate the
compulsory labor and services required in virtue of a judicial decision, of
conditional freedom, for military service or social or civil service, for service

exacted in time of danger or calamity that threatens the existence or well-heing
of the community, and the work or service that forms part of normal civic
obligations.
Article 8. Every individual has the right to individual liberty and personal
security. No one shall be suhject to arbitrary arrest or imprisonment, nor he
deprived of his liberty, except for reasons estahlished hy law and according to
legal procedure.

Conseyiiently :

1. Detention may only occur when there is a written order from a competent
judge or from those authorities explicitly authorized by the law, except in the
case of a flagrant crime.
2. Any person detained shall have the right:

(a) to be infonned and notified, without delay, of the reason for his detention
and of the accusation, denouncement or charge against him;
(b) 10be brought, within a period of 24 hours, before a competent authority,
or be released;
(c) 10present a petition for personal exhibition;
(d) to be treated with respect for the inherent dignity of the human person;
(e) 10 receive indemnity in case of illegal detention or imprisonment.

Arricle 9. Accused persons shall be segregated from convicted persons and
women from men. and receivetreatment aoorooriate to thcir status. Minors shall
only be hrought before juvenile courts a;i, inder no circumstances, shall the;
he sent to common prisons. Rehahilitation centers shall exist for them under the
tutelaee of the ~inktrv of Social Welfare
~rtlcle 10.The esseGia1aim of the penitentiary system shall he to reform and
socially rehabilitate the convict, and it shall attempt to incorporate him into the

process.
Article II. Every person accused of a crime has the right, with full equality,
to the following minimum guarantees: ANNEXES TO TAII COUNTER-MEMORIAL 375

to be presumed innocent so long as his guilt kas not been proven
according to the law ;

to be infonned without delay, in a language he can understand, and in
detail, of the nature of and reasons for the accusations fonnulated
against him ;
to be judged without delay by a competent court. Criminal proceedings
should bc oublic. exceot in some soecial cases when the mess and eeneral
public may be éxcluded from ail or part of the trial for reaGns of
morality, public order or national security;
that his participation be guaraiiteed from the initiation of the proceedings;
that hc he pcrmitted real and effectiveparticipation in the proceedings
and adequate time and means for his defense. When the prisoner does
not designate his council at the opening of the trial and is not himselfa
lawyer, a public defender shall immediately he named 10represent him;
in case he cannot be round, previous to summons hy edict, a public
defender will be named to defend him;
to he assisted, without charge, by an interpreter if he does no1understand
or speak the language used by the court;
to participate in the contribution and cross-examination of any type of

evidence hcfore the final sentencc;
/il not to be comoelled to be a witness aeainst himself or to olead euiltv:
i> nit to be senienced to prison withouï al1 the evidence réquirel hy'law
having heen aathered and that this sentence be dictated within the IO-day
period îollo\;ing the order for his arres;
(k) that any person guilty of a criminal offense shall be entitled to appeal
the judgment and the sentence imposed to a higher court, according to
the iaw j
,,1 not to be nrosecuted for a criminal offense for which he has been
convicted o; acquitted by a nonappealahle judgment ;
(m) not to bc withdrawn from his competent judge.

Article 12. No one shall be convicted for acts or omissions that, at the time
they were committed, did not constitute criminal offenses according to national
or international law. Neither shall a heavier penalty be imposed than the one
applicable a1 the lime the criminal olfense was committed. If suhsequent to the
commission of the offense the law provides for the imposition of a lighter

sentence, the guiltyperson shall benefit therefrom.
Nothine orovided for in this article shall hc in o~~osition10the iudment and
sentence gf'a pcrson for acts or omissions that, at ihe time they wGe &mmitted,
constituted criminal offenses according lo the general principles of the law
recognized by the international comntunity.
Article 13. Trial by jury is established for those cnminal offensesdetermined
by law.
Article 14. No one shall be imprisoncd solely because he is unable to fulfilla
financial obligation, whatever its origin.
Arficle 15. Every person who is lawfullywithin Nicaraguiin territory shall have
the right to freely niove about aiid îreely choose his place of residence.
Nicaraguans shall he entitled to freely enter and leave the country.
Arficle 16. Anyone persecuted for fighting for the cause of peacc and justice,
and for the recognition or expansion of human, civil, political, social, economic
and cultural rights of individuals or groups is guaranteed the right to asylum in
Nicaragua. If, for any reason, a person with asylum should be deported, he shall
never be returned to the country where he is persecuted.376 MILITARY AND PARAMILITARY ACTIVITIES

Extradition shall be regulated by law and international agreements and shall
never be carried out for political crimes or common crimes rclated thereto,
according ta Nicaraguan judgment. For purposes of extradition, genocide shall
not be considered a ~olitical crime.
Article 17. In ~iciragua, every human being is entitled to the recognition of
his juridical personality and capacity. Consequently, personal or patrimonial
limitations may only be imposëd when based onthe law, ences for those

obligations imposed by human solidarity on conduct and abstinence, the duty to
behave fraternally, respect for the rights and freedoms of others, and the need
to meet the just requirements of morality, public order and the general welfare
in a democratic society, even when these dulies are not explicitly established
by law.
Article 18. No person shall be the object of arbitrary or unlawful interrerence
in hisprivate lire,hisfamily,his home, hiscorrespondence or hiscommunications;
nor of attacks on his honor and reputation, and shall beentitled to the protection
of the law against such interferences or attacks.

Especiully:

1. Every person's home and any other private enclosures are inviolable, and
may only be entered with a written order from the competent judge, either to
impede the commitment of a crime or its impunity, or to avoid harm to persons
or their property, subject to the law.
2. Private documents and communications are inviolable. The law shall
establish the cases and procedures for the examination or sequestration of private
documents, accounting books and their annexes, whcn it isindispensable in order
to clarify matters under investigation by the courts or for fiscal reasons.
Article19. No one shall be subject to coercive measures that might impair his
freedom of thoueht. conscience and reliei-.. nor his rieht to hold or adoot the
religion or belieg of his choice, and freedom to manikt them individu~lly or
collectively, in public or in private, by means of worship, celebration of rites,
practices and teaching.

Article 20. Freedom of information is one of the fundamental principles of
authentic democracy. Therefore, it cannot be subjugated, either directly or
indirectly,Io the economic powcr of any group.
Article21. Everyone has the right to freedom of expression. This right includes
freedom to seek, receive and impart information and ideas, either orally, in
writing, in print, in the form of art, or through any other medium of one's
choice. The exercise of these freedoms entails oblieations and res~onsibilities
and, consequently, can be subject10certain formalitie; conditions andrestrictions
established by law,and which are necessary :

(a) in the interest of national security and integrity, public safety and the
national economy ;
(h) the defense of order and crime prevention;
(c) the protection of health and morality, the dignity of persons and the
re~utation or the riehts of others:
- ~ ~
(J, IO impcdr. the sprcd 01'ci~nfiilcnii;ilinfcirm~iionor to guiiranies ihc
.iuthorii) and thc imp~rtialiiy oi'thc juJiii.~l hrancli
Article22. Any propaganda against peace and any advocacy of national, racial
or religious hatred is prohibited.

Article 23.The nght of peaceful assembly is recognized. The right to public
demonstration shall be regulated by police laws. ANNEXES TO THE COUNTER-MEMORIAI. 377

STATUTE ON RIGIITS ANU GUAIUNTEES OP THE NICARACUAN PEOPLE

Article 24. Everyone has the right Io associate freely with others for licit ends.
Article25. All citizens shall en~.y, without restrictions, the followin~ ng-ts:

(a) to organize political parties or groups, or belong to them;
(hl 10 take part in the conduct of public affairs, either directly or through
freelv elected re~resentatives:
(c) to present petiiions, in writing, both individual and collective, to any
public functionary, ollicial entity or public power, and the right to obtain
ils prompt resolution;
(d) to vote and Io be elected and Io have access, under general conditions of
equality, to the public service.

ni& 26. Every person has the right to a nationality. No one shall be arbi-
trarily deprived of his nationality or of the right to change il.
Article 27. Property. whether it he individuslly or collectively owned, haï a
social function. in virtue of which it çan have limitations olaced uuon it. as far
~-~
as ils title, benefit, usc and availability, whcther il be for rcason; of security,
public interest or utility, social interest, national economy, national emergency
or calamity, or when it is for land reform purposes.

Title III. Individual,Economic,Social andCultural Rights

Chapter 1.Economic Rights

Ariicle28. Taking duly into account rights and the national economy, the law
shall determine to what cxtent the economic rights recognized in the present
Statute are to be guüranteed for those persons who arc noi ~icaraguans:

Article29. Work isa right and a social responsibility of the individual person.
It isthe State'sdutyto procure fulland productive employment of al1Nicaragiians
under conditions which guarantee the Cundamentalrights of the human being.
Article 30. Everyone has the right Io cnjoy jus1 and favorable conditions of
work which assure him, especially:

1.A remuneration which provides workers with, as a minimum :
(u) an equal salary or wage for equal work, under identical conditions of
efficiencyand ;ippropriate to ifs social responsibility, without discrimi-

nation hased on sex;
(h) di.nified living conditions for the worker as well as his family.
2. Safc and hygicnic working conditions.
3.Equal opportunity for al1Io be promotcd 10 the supcrior level they merii,

the on& limitation being lime in service and ability.
4. Rest, the enjoyment of leisure time, a reasonable limitation of working
hours and periodic vacations with pay and rcally without working. as well as
remuneration for holidays.
Nolhing provided for in this article gives the employcr the authority to deny
workers rights or guarantees which they have previously obtained, under the
pretext that they arc no1 mentioned in this article or that thcy are mentioned in
a lesser degree or regulation.

Chapter II. Social Rights
Article 31. In order to promote and protect the economic and social interests

of the Nicaraguan people, the following is guarantced:378 MILITARY AND PARAMILITARYACTlVlTIES

1. The right to found and promote popular, community, neighborhood and
rural oreanizations. etc.: and orofessional and trade-union associations.
2. o hi right of trade unions to form federations or national confederations
and of these to found or become members of international trade union organi-
zations.
3. The right to round and promote work and production cooperatives

Arricle32. All workers have the right to strikc, exercised in conformity with

the law.
Article 33. Everyone has the right to social security; to the realization of the
rights indispensable for his dignity and the full development of his personality;
to a standard of living which assures the health and well-heing of himself and
his Pamily.and especially, food, clothing, housing, medical rare and necessary
social services; and the right to social security in the event of unemployment,
sickness, motherhood, disability, widowhood, old age, death, orphanage, pro-
fessional risks or other cases of los~of means of livelihood.
Article34. The family is the natural group unit of society and is entitled to
protection by society and State.
Every person has the right to a given name and Io the surnames of his parents
or that of one of them. The law shall regulate the manner in which this right
shall he ensured for all, by the use of assumed names, if necessary.
Marriage is based upon the voluntary consent of the man and the woman.
Ahsolute equality of rights and responsibilities shall exist for hoth man and

woman in the fsmily relationship.
In case of dissolution of the marriage, the nccessary protection of the children
shall be assured.
Parents have the obligation to concern themselves with the education of their
children, prepare them for socially useful work, and raise them as worthy
members of society.Children are obliged to concern themselves withtheir parents
and assist them.
Article 35. Every minor child has the right, without discrimination, to the
measures of protection required by his condition as a minor, on the part of his
familv. societvand the State.
Parcntr hiive the samc obllgiiiionr iowards chlldrcn horn uui oi weJl<~ekas
towards ihose born in u,edlock. An). pcrsonal qualiliration regard~ngthe nature
uf thc filiationi>forbidden. The rwhi IO inveqtirdte ruiernitv is esi:ihlishcd
Arricle36. The State shall ado~ïsnecial measiresi0 nrotéctand assist minor
children and adolescents, witholt discrimination for reasons of filiation or any
other condition. Children and adolescents shall be protected arainst any form of

economic or social exploitation. It is forbidden to employ m7nor children and
adolescents for work harmful for their health and morality, or where their lire
might be in danger, or where their normal development or their ohligatory
education might be afïected.
Article 37. The State shall provide special protection for mothers during a
reasonable period of time before and after childbirth. During this period the
mothers who work mus1 hc given leave with pay and the appropriate social
securitv bcnefits.
~he-working mother shall be entitled to have the State watch over her minor
children while she works.
Arricle 38. The State recognizes the fundamental right of the Nicaranuan
people to be protected agtainstiunger and shall advocatethe following prog& :

1. Infantile nutrition. ANNEXES TO THE COUNTI!R-MEMORIAL 379

2. The eradication of chronic malnutrition by ensuring adequate availability
and an equitable distribution of food.
3. Alimentdry education aimed at improving diet through the imparting of
principle of nutrition.

Article 39. The Nicaraguan people are entitled to enjoy the highest level of
mental and physical health. The State is obliged 10adopt measures 10achieve:

1.The reduction of the mortality rate and of infant mortality, and the healthy
devclopment of children.
2. The improvement, in al1its aspects, of hygienic work conditions and the
environment.
3.The prevention and treatment of epidemic,endemicand professional diseases
or of any other type and their eradication.

4. The creation of conditions which would insure medical assistance for al1
and medical servicesin case of illncss.
5. An intensive and systemaiic practice of sports through the creation of al1
types of îacilities.

Chapter III. Cultural Rights

Article40. 1. Everyone has a right to education.
2. Elementary and secondary education shall be free,compulsory and accessible
to all. A basic education should be promoted for those persons who have not
receivedor finishedtheir elementary education. Secondary education shall include
technical and professional education in order to prepare everyone for qualified
work and an understanding of the Nicaraguan reality. A close relationship shall
..~~t ~ ~ ~e~ ed~ ~tion and ~ ~k. ~
Higher education should be equally accessibleto all, on the basis of individual

car>ability,hy any appropriate means. and in particular, by the progressiveimplan-
taiion of fr& educaiion..
3. Literacy is declared of social interest and is the responsibility of al1Nicara-
guans.
4. The freedom of parents to chnose for their children schools or academies
other than those created by the State shall bc respected, provided that those
schools fulfill the minimum requirements prescribed or approved by the State,
regarding cducational material and that they strictly adhere to the national plans

for education.
The rlglit of indii,iJu;il, and cntiiies io cstahlibh diid dirtct educa1ion;il
instiiuiions ,h;ill be respc~ic<l.with the ei>ndiiionlh~t the) iullill the r~quircrnc~~~s
mentioncd in the preceding paragraph.
Thc State shall supervise iilof the country's educational centers. The super-
vision shall be constant in order t« insure the carrying out of ils educational
policy and the national study plans and progrums.

5. The State shall approve the feescharged by private centers. In no case shall
educational centers be aimed at profit-making.
6. It is the duty of the State to guarantee, for al1 those children who might
need them, food in the schools, clothing, shoes, school books and supplies.
Artic/c JI. Freedom to lecture and research are guaranreed as essential
principles of education at al1levels.
The teaching, administrative and economic autonomy of the Universidad
Nacional Autonoma de Nicaragua (UNAN) is guarantecd, so that it might

respond to what is in the interest of the transformation of the nation, within
national development planning. The State shall provide the necessary econornic380 MILITARY AND PARAMILITARY ACTIVrIIES

support so that it might develop a creative education and a scientificinvestigation
in accordance with the national reality.
Ariiclc 42. A National Council for Post-Secondary Education shall exist to
coordinate higher education throughout the nation. It shall he composed of al1

the institutions at that level.and oresided over bv the Minister of Education.
Ariiclc 4.1 .Ihe Univcrsidad N'acionalAutbn<;m~de Nic.ir:igua shall hc the
only one .iuth<irtrcJ hy ihe Siair t<drcidc upon the recognition of Jiplonias anJ
tilles of highcr cduc~tion issued bv forcign initiiuiions. The Iau >halle.tahlish
the requircmenis for the profersional incorporation of n;itite, :ind forcigncri
\#,hohwe grtiduatcd :ihro.id, harcd on rccipr<~citya .nd in icc<~r~l;incw ciih inter-

national agreements on the suhject.
Ariicle 44.The State shall bc cxclusivelv incharee ou the formation of tea~her~ ~ ~ ~
for pre-school and elementary education. The formation of the professorale for
secondary education shall also be a primordial task of the State.
~rricle45. Evervone kas the rieht to narticinate in the cultural lifc and to
enjoy the henefits of scientific ad&ceménts and their applications. The State

shall respect the freedom indispensable for scientific investigation and creative
activity, guaranteeing those p&sons the protection of the moral and material
interests resulting from any scientific, literary or artistic production of which
they are the authors.
Arlicle 46. The State shall bc ohliged to adopt those measures necessary for
the conservation. develonment and diffusion of scienceand culture. which should

he aimed at the full deklopment of the human personality and of the meaning
of his dignity, the strengthening of respect for Human Rights, and the transfor-
mation of Nicaraguan socicty.
The historical, cultural and artistic patnmony of the nation shall be protected
by the State hy means of the necessary laws.

l'itle IV. Final Provisions

Ariiclc 47. No provision of this Statute shall be intcrpreted as conceding any
right 10 the State, a group or individual, to undertake and develop activities or
carry out illicit acts intended to suppress any whatsoever of the rights and
freedoms recognized herein, or to limit it to any extent beyond that foreseen

herein.
Legal measures intended io sanction crimes committed and the recovery of
wealth either usurped or illicitlyacquired during the dictatorial Somocist régime
or under ils protection are excluded.
Ariiclc 48. The exercise of each wrson's riehts and freedoms is inseoarable
froni ih2 fullillnient ol'Iiisobligaiioii to the ;<>mmunit)

.Irir<I<?+ UnJir ck;r.pii<~nzlilr cniergcn.). iirciiriist;iriccsiIiicliput in J.ing-r
the 111;or >i.ihtlit\ c?ïthc n.c!mn,\"ch :ts<I\IIor inicrnatton.il \\.Ir.jr ihc d~nccr
that they might -occur; beçause of public disasters or wars suffered and Tor
motives of public order and State security. the Junta of the Government of
National Reconstruction shall adopt provisions which suspend in part or
throughout al1the national territory, the rights and guarantees set forth in the

oreseni Statute. The susoension mav be ordered for a limited timc ~ ~ ~ ~ ~ ~h~ ~
citcnJ;iblc :iccorJing to ihc cirium\t:tncc. ruling in the ïountr!
\\'ha! 1,providcJ for in ihi. ariiclc in n.1na). authoriïes ihc siispcnrion ol'the
riehts anJ cu;iraiitce. .ci L~rthin ihc iolli>\iinc;irtir'lcs S. 6 iid 7 in wh:it rcicrb
t&slavery and involuntary servitude; 12, par&raph 1; 19; 25, clauses (hl, (c)
and (11); 26; 34 and 35.

Arriclc50. Any pcrson whose rights and freedoms recognized in this Statute ANNEXI~STO THE COUNTEK-MEMORIAI. 381

or in the Fundamental Statute proniulgated on July 20, 1979,might have been
violated may present a recourse for protection in conrormity with the law.

'l'itlcV. Transitory Provisions

Article 51. For a ueriod of 60 davs rrorn this date. the exercise of the r.ahts
and gu3rxnier.r set forth in this Statutrare suipcndeil ior those pcr<<insundcr
in\.ciiigaiion ior criniiiial ~li'cnresinilIIIihe pcnlil2nd~2nd in intern:iiic~nal
covenants, committed during the Somoza régime.

Such a suspension does not affectthe rights and guarantees indicated in Article
49 of this Statute.
Article 52.This Statute shall become elfectiveas of this date, from the moment
of its dilTusionby any mass media of communication, without hampering ils
later publication in the ofici;Gazerre.

Decreed in the city of Managua, on the twenty-first day of the month of
August, nineteen hundred and seventy-nine, Year of National Liberation.

Violeta B. Chamorro
Alfonso Robelo Calleiÿs
Sereio Ramirez ~ercido

~oysésHassan Morales
Daniel Ortega Saavedra.

Articles 7, 11, 34 and 49 were reformed hy Decree No. 1025,dated April 21,
1982, published in the Gucein No. 9!? on April 28, 1982. MILITARYAND PARAMILITARYACTIVITIES

Annex70

"LEY QUAPRUIZ RRATIFIC1ACONVENCIA ONIIRICANSORR IERECHOS
HUMAN COSLIIBMDEASAN JosÉCOSTRAICA.969"(''LAAPPROVIN ACD

Annex71

UNITE DTATIZCSENC OR INTERNATIOD NILIILOPM EID, ANNUAL
BUDG~~'SUBMISS FO83(NICARAGUA)Vol.1, JUN1981(Exc~nprs)

[Norreproduced]

Annex72

[Norreproduced] ANNEXES TO TRI: COUNTER-MEMORtAt

Annex73

In 1983 the Standing Committee for Human Rights in Nicaragua received a
total of 1,127complaints, involvinga total of 1,744caseshandled by our lawyers.
These were classifiedunder II headings, as shown in the following table:

1. Torture 106 6%'
2. Deaths 15 1%
3. Missing persons 209 12%
4. Trade unions 99 6%
5. Freedom of expression 5 0.29%
6. Thrcdts of arrest 37 3%
7. Political rights 81 5%
8. Religious rights 23 2%
9. Educdtion 4 0.23'Yo
10. Releases 180 11%
II. Prisoners 989 57%

The most numerous category was prisoners, representing a total of 989 cases
reported by their relatives, equivalent to 57 per cent of al1the cases handled hy
the CPDH. In turn, 548 of al1the prisoners reportcd were arrested by the State
Security, accused of counter-revolutionary activities.
A total of 207 people werereported missing; in percentage terms, 99.9 per
cent of these were arrested by the State Security. Missing persons accounted for
a total of 12 per cent of al1 the cases handled by the CPDH. The greatest
numhers of disappearances occurred in March, September and February. It
should be mentioned that the vast majority of the cases reported in February

and March relate to comolaints and evidence from "Miskito" citizens.arrested
by rncnib:r? of ihc Staie Sc~urit).2nd subjeclcICconriderahle harassrnent
[.'nti\iigurt. Jis;ippc;iranr.r.srepresc;incsrir11.11c71.1311per :',nt o:<Il
the cases reoorted. Our neeotiatioiis in favour of these . .ole~succeededin
il;iriiying the ~vhcreahi>uii;ilid Jctc'rminingthe Icgdl riiuation of 51,pcr Lentof
niisjing pcrionr repi>rted: the {dsi ni.ijdrii)111other halr iorrcsponding 1,)
Atlantic~Coastcases are still missing.
The category of torture accounted for 6 per cent of the cases reported, i.e.,
104people, whoat the time of arrest or while held in the cells weresubjected to
beatings and various types of psychi,logicaltorture.
Trade unionists reported heing persecuted,intimiddted and harassed by State
Security; the category of violations of trade-union rights is equivalent to almost
6 per cent of al1the cases reporte10 the CPDH.
Throughout the year 81 cases of violations of political rights were reported,
equivalent to 5 per cent of the cases reported to our office.
While the figures for violations ofreligious rights (2 pcr cent) and of educa-

tional rights (0.23 per cent) seem to be low in relation to the othcrs, account

* Theseperecntagesareillustratedintrom oldiagramsalthccnd ofthisreport384 MII.ITARYAND PARAMILITARY ACTIVITIES

should be taken of the fear many pcople havc of denouncing events of this
kind.

Of the seventeen unexplaineddeaths reported in 1983, sixcases correspond to
peasants arrested in the areas of Quilali, Nueva Segoviaand subsequently reported
as "died in combat". Two cases were described as deaths "while attempting to
escape" and seven were people arrested by clearly identified authorities and who
werelater reported to have diedand their bodieshanded over with no explanation:

one victim was a 79-year-old Miskito who died in prison through lack of medical
attention and the other wasa young man who died whilethe policewereattempting
to arrest him. The CPDH put al1these cases before the appropriate authorities
but only one of them is being investigatedby the police prosecution office.

~TXPLAINED DEATHSREPOR~II TO TIIE CPDH IN 1983

1. Pedro Pablo Holles Gon7alez, 20; Antonio Holles Gonzalez, 16; Alfonso
Castillo Ramirez, 20; Jonas Castillo Ramirez, 19; Juan Benito Herrera Jarquin,
16; Justo Pastor Gonzalez Quintero, 20. All arrcsted in the Valle Las Delicias,
Quilali, Ocotal; later reported dead in combat in a MINT communiqué.
2. Juan Pablo Joya Pichardo and Jorge konidas Chamorro Perez, reported dead
in a MlNT communiqué,some days after both had escaped from the Carcel
Modelo. The MINT gave no further details of these deaths.

3. JoséRamon Siles Perez, 25. Arrested in Kilambe, Jinotega. His decomposing
body was found some days later.
4. Alfredo and Fausto Tercero,arrested at Rancho Grande, Matagalpa; tbey were
held for a few days, and their family was later informed that they had been
executed while being transferred from prison and they were shown the place
where their bodieslay.
5. Daniel E. Sierra Ocon. Arrested in Juigalpa. He supposedly "committed sui-
cide" in prison with a pistol and silencer, on the day he and his wife learned
of his release.
6. JoséEsteban Lazo Morales. Arrested in San Pedro de Lovago. His body was
later handed over to the family without further explanation.
7. Juan Eusebio Lopez Blanco. Arrested when alighting from a bus, hy plain-
clothes officers.His decomposingbody was found later.
8. Reynaldo Canales Moreira. Died at his home while resisting police arrest.
9. Teofilo Maik Benles, 79. Died in prison aftcr remaining there for over a year

without ever appearing before a judge. The CPDH had asked for a reprieve
for him owing to bis poor state of health.

Last year, 1983, a notable increase was observed in the number of people
reported missingin relation to 1982.
Thcre were common factors in the vast majority of the cases arising as regards
the circumstances surrounding each case:

1. There was proof of their arrest.386 MILITARYAND PARAMILITARYACTlVITlES

9 December 1983the State Security prison al Quinta Ye announced that he

had never been detained there.
6. Juan Pablo i'icado Gonzalez, 33, bachelor, a famer resident a1 Santa Maria
de Pantasma, district of the department of Jinotega. He was arrested on
12April 1983at Cuatro Esquinasde Pantasma and taken to the Pantasma wm-
mand post. Here, it was announced that he had been transferred to Mata-
galoa but there was no trace of bim at the prisons of Matagalpa or-Ji~o-
tega.

7. William Raymundo VallejosMartinez. 29, married, a shopkeeper. He disap-
peared on 3 January 1983 while travelling along the road from Chinandega
IOManagua, He was driving a Fiat car, registration MA-ZS-565, whichwas
found abandoned on 8 February in the resort of Las Penitas. His relatives
had been informed that he was being detained at the prison known as
"Quinta Ye", but the authorities denied that he had been or was being
detained there. A search was made for him at the prisons of Managua, Leon
and Chinandega, but he could not he found.
8. Juan Garcia Rivas, 43, married, a farmer resident in Bijao Norte, district of

Matagalpa. He was arrested on 12April 1983,a1 the Hacienda El Carmen,
Bijao Norte, by a number of militas. personnel. His relatives do not know
where he was transferred 10after his arrest.
9. Lino Garcia Amaya, 28, married, a farmer resident in BiyaoNorte, district
of Mataealoa. He was arrested on 12 Avril 1983 torether with his father.
r JU~; kartici KIYYS. b~th memherr ;,f ihr. rlsso.'~~tionof Agri;uliur:il
W,>rkerbi,Yl'C JA 5c:irih ua mddc for thcm in variciuspri\on in \ldt;iplp~
and ~inoteeri. Accordinn to the latest revorts Io their relatives. thevhave

been transierred 10 Puerto Cabezas. ~owever, the local Ministry of the
lnterior officehas not confirmed this story.
10. Pedro Joaquin Moreno Lumbi, 22, bachelor, a farmer resident in San Jose
de la Mula, district of the department of Matagalpa. He was arrested on
18 April 1983al the Hacienda San Francisco, in Pancasan, department of
Matagalpa, but there are no details of where he was transferred after his
arrest. His brother was told in July of that year that he had died while
attempting to escape, during a transfer from Matiguas to Matagalpa, but

the authorities in Matagalpa have not confirmed this story.
II. Pastor Cruz Herrera, 26, bachelor, a farmer and resident in San Marcos de
Abajo, district of San Rafael del Norte, Jinotega. He left his home in the
Company of some friends on 17 May 1983since when he has not returned.
On 3 June 1983 his relatives were informed that he was being detained in
the State Security prison known as Las Tejas for questioning, and that they
should return in 15days to hear the results of the investigation. When they
returned on 16 June they were informed that he had been transferred to

Jinotega on the orders of State Security. His relatives werealso informed by
a prisoner who was released that he had indeed been heldin Las Tejas, since
they had been together in the same cell, but the State Security prisons of
Jinotega and Matagalpa denied that he was being held there.
12. Ramon Salinas Lope?., 46, married, a carpenter resident in Waslalita,
deoartment of Mataealva. He was arrested on 13 March 1983in the olace
kn'ownas El ~aranj4 and subsequently transferred to the Waslala comkand
post. His relatives wereunable to find him in this place or in the Matagalpa
- ~
or Jinotega prisons.
Zacarias Blandin Castro. 40. married. a Famer resident in El Guabo. district
of Muy-Muy Viejo,departient of ~ata~al~a. He was arrested on 20
1983for alleged counter-revolutionary activities. He was later transferred to ANNEXES TO THE COUNTER-MIIMORIAL 387

the place known as El Coloso. His relatives were unable to trace him in a

number of prisons in Matagalpa, Matiguas and Managua.
14. Angel Alvarez Urbina, 42, widower, a stockbreeder resident in El Coral,
district of Nueva Guinea, was detdined on 30 May 1983 at his home
supposedly hy memhers of thc State Security and transferred to Nueva
Guinea. His relatives were informed that he was heing held at the State
Security prison in Juigalpa, but they were unable to obtain any information
about him there.
15. Delmira Blandon Vda. De Suarez. 42, widow, a housewife resident in
Pancasan, department of Matagalpa. She went missing on 6 April 1983in
Siuna, department of Zelaya, where she had gone to attend an appointment
with Mr. Otilio Duarte, Chief of State Security of Siuna, and Mr. Santos
Lopez, UNAG leader, Io receive a cow of hers, taken from her illegally.

Since that date she kas no1 been seen at her home.
16. Jorge Alberto Urrutia Solis, 18,bachelor, a farmer resident in La PazCentro,
missinr rince 5 Februarv 1983 when he was on his way from his house to
ihc ic,$i,of Lcoii. i\c<,irJiiig tu the reportof il fornlcr iirniy iollc.igu10
his rclativcs, hc ua\ arrc\ted in a place c.illcJ La\ Coliii>i. iicar \Ioniotonibo,
2nd iakcn for dctcnt~onin Chin;indcp;i In the Januar) prier10 hisdisappc:ir-
ance, a numher of army colleagues came to fetch hik from his home,
that they were to arrest him since they had been informed that the young
man was involved in counter-revolutionary activities. The young Urmtia
Solis had been in the Sandinista People's Army for Iwo years and at the

lime of bis disappearance hdd Ieft the service of the army.
17. Calixto Collado Flores, 42, married, a farmer resident in San José, district
of Somotillo, department of Chinandega. He was detained on 23 April 1983,
in the sector of Rio la Ceiba, near the border with Honduras. He was
blindfolded at the time of bis arrest and the identity of his captors is
unknown.
18. Coronado Garcia Castro. 34. bachelor. a farmer resident in El Guauinol.
Jirtriri ,>l'thedcp:irtmcnt of Jinotcgd. llc ~.IS itrrcjic~l 211A.I~u\I 1'183
in Jinoiqa and allcgcdlv irlrn~lcrred t<ithe pii3on knoun as L;is ïcjds in
Mlrtac;il~a wherd ili, ilenicd thdi hc1..hcld; neither ruuld hc bc ljund 31
the cimmand posts or prisons of Jinotega or Matagalpa.
19. Felipe Santiago Jimenez Gutierrçz, 38, bachelor, a famer resident in San

Pedro de la Calles, district of 3an Juan de Telpaneca. department of Madriz.
He was arrested on 30 August 1983 at his home. accused ofcollahoratinr
with counter-revolutionaries, by six men in military unifonns serving a1 the
San Juan de Telpaneca command post. His relatives subsequently visited this
place and were able Io recognize his captors, but they denied that he was
held in the command post. Attempts to find him in the prisons of La Bar-
ranca and La Chacara in Esteli were in vain.
20. 12elixAlberto Estrada Sandoval, 26, bachelor, a painter resident in Managua.
He was arrested in February-March 1983. According to reports given to
his relatives he was arrested in a war zone, and prisoners released from
El Chipote prison have said that he is held there. However, this was re-

peatedly denied.
21. Eusebio Sobalvarro Blandon. 22. bachelor. a farmer resident in Linda Vista
area of Jinotega.
22. Oscar Sohalvarro Zeledon
23. Juan Chavarria Arteta.
24. Manuel de Jesus Duarte Sobalvarro.
25. Juan Diaz Mairena388 MILITARY AND PARAMILITARY ACTIVITIES

26. Cruz Chavarria Arteta.
27. José ZeledonRizo.
28. Domingo Flores Palacios.
The ahove were detained on 22 October 1983 hetween El Cua and San
José del Bocay, in the department of linotega, hy memhers of the State
Security. Their relatives do not know where they were transferred after their
arrest, as they have suhsequently looked for them in the prisons of the
Matagalpa and Jinotega Penitentiary System and the State Security prisons
in these two cities, where it is denied that they are being held. However, one
of the v.une-men detained. to.et-er with those mentioned. named Joree -
Vargas Rii,cr;i. 1').harheliir. a hui conducior re3ident ai the same address
a\ the c~iherJeiaincc~.claims ihat ihcy ;ire being held prisoner ai the C,trlo>
tonscca coniniiind ~usi ui ihc citv si \laiaralo;i. but hcrc ihcv have JcnieJ
that the other men detained with him-on the same day ire being held.
29. Basilio Rodriguez Martinez, 34, married, a [armer resident at La Venada,
district of La Azucena, Rio San Juan. He was detained by memhcrs of the
Sandinista oolice. His relatives were informed that he had heen transferred
to ihc prison oiCiranaJa. bu1 they \carchcd for him in vain.
30. Mar~os Antonio \Iariincr Rios. 19,baihclor. a siudcnt.
31. Ariiiando Rioc Iartine~. 20. ha;hcl.,r. a Carnier

The above weredetained together in ~ebacoon 1Decemhcr 1983,prohahly
by members of the State Security, since on 8 Decemher 1983 members of
the Matagalpa State Security Force appeared at the Valle El Jocote, where
these young men lived, to make other arrests.

TORTURE AND MAl.TROATMENT OF PRISONERS

Dunng 1983, over 100 cases of torture or cruel, inhuman or degrading
treatment were reported to our offices. Humiliating treatment from arrest and
interrogation until the end of the sentence was reported constantly, by relatives
and prisoners alike, under the constant threat of reprisals to those who make
such statements.
Arrest in the middle of the night when the families were asleep was the "new
method" of 1983. Inmany cases the prisoners were subjected to severe beatings
uoon arrest. were immediatelv handculïed hand and foot and thrown ont0 the
flbor of the "ehicles in which ihey were taken to the investigation centres; during
thejourney the prisoners were subjected to the vilest insults and threats. In rural
areas a ris on ehad their hands bound behind their backs and were comoelled
tiiii,~lklong iIirt;inic> in th15uii), bciiig b:üi:n on ttiusy. Cssc. have hccn
reported ,riwhish iliiiuthoritics c,mnciiiind the per\<>nthe! arc looking for and
so detain another memher of the family until they arrest the wrson originally
-
wanted.
Suhsequently, the prisoners are subjected to various tortures and maltreatments
by the State Security Operations Units, notably being deprived of food for
several days and, sometimes, of water, as according to-the investigators "food
has to he earned with a statement". We have also received reports of prisoners
being hung by their hands for three or four days and then interrogated. Prisoners
regarded as "dangerous" are held in hermetically sealed cells with no ligbt, and
only a small tube in the ceiling for ventilation; when such prisoners are allowed
visits by their relatives they experience great pain in their eyes on coming outinto the lighi. Bcatingsduring interrogations are still a widely used "interrogation

method", especially in the departments in the interior of the country.
The situation of prisoners in general kas deteriorated considerably during the
past year, especially for those in the Carçel Modelo, galleries 1, 2 and 3, and in
the prison known as Zona Franca, iii Block No 3. We could say that massive
repression of these thousands of prisoners reached a peak during 1983; the
implementation of an inhuman visiting system in whicha prisoner receives a
visit from one relative only, for half an hour every four months; the limit on
incoming provisions of 20 pounds every four months, to allow the prisoner to
supplement the lean prison diet of a small spoonful of rice and bcans twice a
day. Unexpected searches or inspections during which the accused are compelled
to lie on the floor for hours under threat of amis and the fact that after these
searches the accused are deorived of al1 their uersonal effects. includine the
m;itircs,cs <inu,hieh ihcy slceli. have oficn bccn reportcd to ulr ~~lliceA. new
iiiethod u,cJ I;iii)c;ir a~nsi,ir.of prixmcrs scrviiig <cnteri.es in ïun~ I;r~n~.d
2nd iht C:trieJ \Ii)d~~l~ciri~.ir;iiiderrr.J innunicrdhlr.iimc*hoI<Sixic Securitv
prisons, in the El Chipote cornplex, and to prisons in the various departmenCs

of the country, where they were subjected to maltreatments and held for days
without food. According to Ourinformation, when prisoners are transferred they
iravel in hermeiicallv sealed vehicles. handcuffed toeether into a eieantic human
chain. The lack of &ts, prohibition of prisoners 1: be ehposed ;O-sunlight, the
reduction in food rations and solitary confinement in special cells, are examples
OF"punishments" used against the prisoners held in the prisons mentioned.

The Standing Cornmittee for Human Rights in Nicaragua is still receiving
manv com~laints from relatives of orisoners who sav thai. desuite the iudicial
authirities'issuing release orders for'them, the National ~eniteniiary sysiem has
ignored such decisions and held the prisoners without justification. The CPDH
has taken the appropriate steps with the relevant authorities, but no positive
results have so far heen achieved in this direction.
We made an appeal on hehalf of their relatives to the Ruling Junta for
National Redevclopment and the Ministry of the Interior, asking them to rectify
this unjust and arbitrary practice, violating the general principles of law and
international human rights agreements.
As a consequence, Dr. Rakel Cordova Rivas, member of the Ruling Junta,

announced ihat as a "special concession", for the World Human Rights Day,
some of these prisoners would be released, when infact il was an obligation they
should have met immediately.

Extract from Burricada, Monday, 12 Decemher 1983.
On Human Rights Day Cordova Rivas announces:

More humanitarian measures for Somocista prisoners
Al1 former Somocista guards, as well as criminals judged hy the Pcople's
Antisomocista Courts. who have served their sentences and are still detained

under the State of Em;rgency, are to he relcased in honour of the International
Human Rights Day. 390 MlLlWRY AND PARAMILITARY ACTIVlT16S

The announcement was made on Saturday by Dr. Rafael Cordova Rivas,
member of the Ruling Junta for National Redevelopment at the opening of the
Leonte Herdocia Ortega House of Human Rights in Managua to commemorate
the 35th International Human Riehts Ddv.

AI the ssmc timc hr \sid thsi ai ihe rcquei of rhc kationlil Commi\sion for
lhr. l'ri~molionanil Proieclion of tlumlin Highis (CSPPI>IIJihc revolutiun,iry
rovernment had decided to transfer p ris on erfsrom sealed cells in the semi-o~en
iystem to the Open System Fam, &hich had housed the Miskitos released'on
6 November.
The member of the Ruling Junta explaincd that this measure would beapplied
to prisoners who had records of excellent behaviour and who had expressed a
wish to work on the agricultural jobs available in the Open System Farm.
Despite the attempt of North American pressure to break the will of the
revolutionary government in this country and so prevent the promotion of
human rights, these decisionsare a demonstration of the will of the Ruling Junta

and the FSLN to maintain and consolidate the peace whichhas been won.
At the opening ceremony of the Leonte Herdocia Ortega House of Human
Rights, comrade Miguel Angel Aviles, SecondPresident of the CNPPDH, con-
, demned North American aggression and the setting up of military bases in Hon-
durdn tcrritory; "we cannot give up the right of the Nicaraguan people to self-
determination and to continue with social progress", he added.
He believed that the first obligation of the CNPPDH was to claim the right
of self-determination for the Nicaraguan people and he appealed to al1peace-
loving peoples to lobby their respectivegovernments for the end of imperialist
aggression against Nicaragua.
In addition to Dr. Cordova Rivas and Mr. Miguel Angel Aviles,the relatives
of Leonte Herdocia, comrade Ramiro Lacayo, Third Vice-Prcsident of the

CNPPDH and other members of the Committee werealso present at the opening
ceremony.

PRISONERS WllOSE RELEASE ORVERS HAVE BEEN WITHHF.1.D

Name Bule of ReleuseOrder
Roberto Antonio Aburto Palacios 02/09/83
Daniel de Jesus Gonzalez Miranda 22/02/83
JoséFrancisco Gonzalez Guillen 01/03/83
JoséDomingo Guadamuz Guevara 08/09/83
Domingo Hernandez Rodriguez 20/09/83
Teodoro Marddiaga Gonzalez 08/09/83

Joaquin Arnulfo Pereira Useda 05/09/83
Alfonso Antonio Rosdles Garcia 02/09/83
Manuel Salvador Sanchez Potosme 22/09/83
Reynerio Talavera Mendez 02/09/83
Daysi del Socorro Guerrero Melendez 28/02/83
Armando Davila Martinez 13/05/83
JoséRamon Cruz Peralta 06/05/83
Ramon Gutierrez Lopez 08/09/83
Carmelo Sanchez Gonzalez 25/04/83
Vicente TaisiguaSandoval 25/04/83
Cesar Augusto Gutierrez Arrieta 13/10/83
Horacio Antonio Gomez Ampie 28/10/83

Hermogenes Rafael Rayo Sandoval 08/10/83
Bayardo José BalmacedaOrtiz 04111/82 ANNEXES TO TlllCOUNTER-MIIMORIAL

Jose Armando Paz Cardoza
Juan José Alcantara Urbina
Humberto Antonio Peralta Gaitan
Jose René DelgadilloObando
Rosa del Carmen Florcs Espinales
Anastasio Sequeira Angulo
Daniel Arturo Angulo Sequeira

PRISONERS AWAITING TRIAL

Fifty-three prisoners have been waiting in prison for several months for the
militdry authorities and the Ministry of Justice to decide to send their cases
before the judge. This problem kas been a continuing one ever since the State of
Emergency was declaredin 1982,since there is no legal recourse to oblige these
otiicialsto carry out justice. There are already many cases ofprisoners who have
died of illnessesand accidents in custody while waiting for a judge to look at

their case and declare them innocent.

LIST OF PRISONIIRS AWAITINTRIAL .lTH NO U1il:liNCB SINCE THEARRFST

Ar<rme
Felipe Betancourt Zepeda May 1982
Ronald Martiner Hernandez 3 Julv 1982
Ernesto Picado Hernandez 10&tober 1982
Jorge lgnacio Ramirez Zelaya 21 May 1983
Reynaldo Garcia Moya 24June 1983
Juan Raudales Maneas 24 June 1983

Miguel Castillo GutGrrez 24June 1983
Edgard de Jesus Toruno Raudales 24 June 1983
JUK ROoque Huete June 1983
Simon Roger Cruz Hcnavides 30June 1983
JoséEleodoro Miranda Perez 18July 1983
Francisca Ramona Membreno Ruiz II August 1983
JoséDaniel Navarretc Espino II August 1983
Luis Salvador Aranda Mairena 26 August 1983
Carlos Enrique Maradiaga Baldizon 28 August 1983
Orlando Dargaespada Araica 17August 1983
Mario Antonio Aburlo Flores I September 1983
Ricardo Octavio Gaitan Villalobos I September 1983
Dionisio Guadalupe Salgado Estrada I September 1983
Domineo Gerrnan Rivas Ouezada I Seotember 1983

~ri,ioh;lJi.Jc~s ~uiicrr~~Menibrciiti I ~e;>temher19Ü3
linriqiie JosL:Ilraii~rdCc)ulsrin I Scptti~ibtr lys3
Ricardu LOD~L .V~ranJlf 4 Sericcmkr 1983
Pedro ~guiiar Granera 4 ~e~tember 1983
Roger Alejandro Jiron Cruz 13September 1983
Norma Yasmin Hurtado Borge 24 September 1983
Gustavo Adolfo Molina Siles 26 Seotember 1983
Mi~dcstoJc Io\ Sani<,>P:iyaii Ayiiirrc 27 Stptcmher 1983
Koberto Arana I3;ir'~ 26 Stptciiiber 1933
I'i.drJcsu, E>pino/;i Pulido 26 Septemher 1983
X13rciaICiuzman I'cre~ 27 Septeniher 1983
I>omingo F7cquiel Aguilar Lcipc~ 27 Septcniher 1983392 MII.ITAKYAND PARAMII.ITARYACTIVITIES

Eduardo Llano Ramos 27 September 1983
Raul Llano Ramos
27 September 1983
Francisco Adolfo Saenz Mejia 27 September 1983
Armando Rostran Pulido 28 September 1983
Hernan Serrano Cerda 29 September 1983
Roger Guzman Bolanos October 1983
Vicente Marquez Alcman 24 October 1983
Mauro Gonralez Mercado 10Novcmbcr 1983
JoséAntonio Barquero Estrada 8 November 1983
Mario Miguel Mendoza Mayorga 8 November 1983
Arcedio Antonio Ortiz Espinoza 5 November 1983
Narciso Silva Gaitan 6 November 1983

Orlando Mendoza Laguna 12November 1983
Boanerees Matus Lazo 13November 1983
René 0ban Mora Sandino 13November 1983
Orlando Napoleon Molina Aguilera 14Novembcr 1983
Enoes Urbina Hernandez 14 November 1983
Vicente Zamora Gomez 15Nov~m~er~ ~83
Juan de Dior Agu~IarGarcia 15No!emhcr 1983
Rtique Jacini,~Hlandon Kivcra Ih Novenibcr 1983
Fr~ncijco del Cirmcn Ciu.irJado Kodriguef 13 Sovembcr 1983

SITUATION OF THE TRi\I>I3 UNIONSIN1983

When summarizing events in the field of trade unions during 1983, we must
analyse the situation from two points of view. On the one hand is the situation
of the independent workers' organizations which are subject to continual public
discredit campaigns and whose members have had to confront a wide range of
problems. On the other hand we have the violation of trade-union freedoms
which has been common to al1 trade-union organizations and il is a fact that
therc is no rieht to strike in Nicaraeua.
Although the 'li:.ir.igu.in Govcrnnicnt h~i siglied iritcrn.itional agrccmcnis in

whiih IIgu.iranieer irccrliim i>fa.;\ociiiIIItriiclcunions, thcrc werc constani
complainis ul'c.i\es(1 rade-union repression Io ihç (:PI)11 olliçei in Nicar'ieua
during 1983 :detention, ihreats of arreG, harassment, attacks by "turbas" (cornan-
dos) and dismissalsat al1levelsof independent trade-union members, havegiven
these organizations a hard time over the past year.

Agriculr~iralector

The farmers organized into independent trade unions have sufired the most,
at the hands of both the military authorities and members of operational bodies
of the FSLN (ATC, CDS, MPS). Dctentions - in most cases lasting 3 to 6

months - and constant pressure and harassment to leave the ranks of their
respective trade unions or to become informers of the State Security have been
a general tactic used against peasants belonging to the CTN, in the rural arcas
of Zelaya Sur (Nueva Guinea), Matagalpa, Granada, Estcli and Leon. Some
peasants belonging to the CTN were detained and then went before the Anti-
somocista People'sCourts; the CPDH has inexplicably been denied any inform-
ation about these cases.
It is extremely worrying that in some parts of the country members of trade
unions affiliated to the CTN have been attacked by elements led by members of
the Asociacion de Trabajadores del Campo and members of the Sandinista ANNEXES TO TllE COUNTEK-MEUORIAL 393

People's Militias; this happened to the "El Mombacho" Workers' Union in
Hacienda La Luz, in the department of Granada, whose installations were
destroyed IastOctober and their leaderswcre savedfromdeath bythe intervention
of the workers.

One case that attracted international attention, as much from human rights
organizations as from a number of European governments, is that of ten peasant
leaders îrorn the Jalapa area, in the department of Nueva Segovia, who were
detained from October 1982 until Decembcr 1983 in the Esteli Pcnitcntiary
System, under the orders of the State Security, without being chargcd by any
judicial authority. The charge against them was that they u,ere"potential enemies
of the revolution".

Urbun sectur

Among city workers belonging Io the independent trade unions, repression
has taken the form of summonses in which they are obliged to sign "cooperation
agreements" and for the "defence ofthe revolutionary process"; detention on
charges such as "disrespect for authority" or "boycotting production". When
workers are released they most often find that they have lost their jobs.
On the first of May 1983, during a mass at the church of Don Bosco in the

city of Managua to celebrate "International Labour Day", the "turbas" (com-
mandos) appeared and proceeded to heat up those they identified as union
leaders. The Sandinista police looked on but did no1 intervene. Subsequently,
some of those beaten up were dctained and taken to the Bello Horizonte police
station for interrogation.
One of the trade unions suiïering most beatings in the urban category last
year was the Union of Urban Transport Drivers (SIMOTUR)' a large number
of ils members being drivers for the National Bus Company (ENABUS).
Numerous members of this union were dismissed for "indiscipline at work,
after "discussion" of their cases bv the emolover and the reoresentatives of the
Central Sandinista de ~rabajadore;. In ~o;cmber, the main Îeadersof this union
were jailed in El Chipote, accused of "counter-revolutionary activities". Some
are still in the Zona Franca prison to this d;iy

iVuf;o~ru//euders

The main leaders at national level of the indewndent workers' oreanizations
have not escaped the risks run by the grass-roots members, although the treatment
has been more seleciive. Bcsidcs the constant smear campaigns in the orricial
news media, the main independent workcrs' leaders havebeen summonsed by
various authoritics of the Ministry of the Interior. whcrc they are "warned"
about their activities. Others have been detained for several hours in order to
"investigatc" the vehicles in which tkieytravel which are frequently involved in
assaults or robberics. The number of violations of trade-union rights rose
during 1983.

The general treatmcnt of the varioris opposition political parties look the form
of a Packof euarantecs for the normal development of their activities. 1983was
characterized hv the susoension of freedom of ex~ression. mectine. movement
and the absence of legal guarantees, restricting Nicaraguans' political activities

to the absolute minimum. Besides the lack of opportunities for pluvalism. the394 MILITARYAND PARAMILITARYACTIVITIES

government and its mass organizations carried out a campaign of discredit,

threats, aggression and arrests against the leaders and their party bases; this
manifested itself in many forms throughout the country, so confirming ils
intention to eliminate political pluralism in the true sense of the word. Faced
with this escalating repression which grewin the first hall of 1983,the government
has kept no favorites and has not even respected the representatives of these
parties on the Council of State, who are supposed to have parliamentary
immunity.
By means of discredit, insult and delamation, the official news media attack
the leaders and militants of the democratic groups, without even a right of reply.
I~ Dccember 1983 the Sandinista eovernment aeain nromised elections.
supposedly for 1985.The CPDH considers that a democrat;c system cannot bé
improvized in one year; al present there is no electoral law, il is not known what

kind of elections are to he carried out. nor what is to he elected. As lone a- the
present climate of the suspension of freedom of expression, meeting and move-
ment prevails, these declarations will be nothing more than mere promises. The
Sandinista government must implement concrete action to demonstrate its
intention to givc Nicaraguans the right to self-determination.
Some of the cases presented to our officeare descrihed helow:

- Francisco Rodriguez, Feliciano Polanco and Julio R. Montes, christian-
socialist leaders. They were held in custody for a year because of their
membership of the PSC.
- Felix Pedro Espinoza, conservative leader. He was detained, threatened,
heaten up, insulted and expelled from his native town. He was a member of
the Council of State.
- Brenda Mayorga de Ramos. She was interrogated and detained for hcr
participation and cooperation in the Christian-Socialist Party. She was
pressurized into hecoming an informer for the State Security.

- Mario José Castillo and Carlos Sanchez Narvaez, conservative leaders.
Detained for their supposed involvement in an attack against the Nicaraguan
Chancellor. They were pressurized into informing against other members of
the Conservative Party.
- Enrique Sotelo Borgen, conservative leader. Arrested and kept incommuni-
cado for two weeks for alleged suspicions against him. Sulïered psychological
harassment in prison.
- Julio Rosales, christian-socialist leader. He was summonsed on a number of
occasions hv the State Securitv in Leon.
I:JuarJ<>~e'rriohhlarin. lie r~ici~crldc~th thr~ilr :inJ \triiniimiJatcJ h) .i
mcmhcr of ihc ;iriii) tiuing tiihi memhcrship oi ihc Con,r.r\.iii\e P;iri!

- Crisiobal M;irtinc/ anJ I!u\ebio G3rcli1Tcllç/. ihrislian-~ucialisi lc.iderr who
iscrr JciainrJ inr sc\,er:iliiionih, for their p~>liiir~liciivliicr.
- Migucl AngcI 1:inzanares ;inJ ,\fuicna tcrrcy. social dnJ naii<~nalle;idcrs
i>fthe ['SC. wlio\e hou\c\: ucrc ;iil;ickcd hy I3I.K ma, org.iiiir.iiidiir.

VIOLATION OF RI~LICIOUS RIGIITS

The authorities of the Sandinista government and their mass organirations
have carried out persecution against the authorities of the Catholic Church and
the Christian Movements, instead promoting a parallel so-called "People's"
church, with the aim of dividing the believing population. The basis of this
supposed division is the ideological struggle in which ihey use weapons such as
slander and defamation which are echoed in the State and official media.
As a repressive measure they havc imposed rigorous censorship on Radio396 MII.ITARY AND PARAMILITARYACTIVITIES

10 Rolando JosCAlvarc/ Lagi>s.Manuel Antonio Cuillçn. I-ranciw<~Rodrigue7
Roiiian. I':itimaCarulina Scqiisir.!Chaiarria. Josc'Manucl Cuticrrc/ Chai,c/,
Pedro K.ihel Gutir.rrr.fChxve~.Malil Mxreariia Rui~.Rol;<ndoIvan Chaicl.
arrested by the State Security for belongingto the ~o;th Pastoral movement;
accused of boycotting the Patriotic Military Service.
II. JoséMaria Pacheco, a Salesian priest expelled by the government, accused
of boycotting the Law on Patriotic Military Service.
12. Luis Corral Prieto, Salesian priest, expelled by the government, accused of
hoycotting the Law on Patriotic Military Service.
13. A member of the Salesian Youth Movement governing body was arrested
by the Sandinista police, which described a prayer vigil to be held at the
Don Bosco Youth Centre as a black mass.
14. The Prclature of Jinotcga denounced abuses against the human dignity of
its parishioners by the EPS which burnt chapels and converted the chape1of
San Josédel Bocay into a brothel.

15. A group of young christians of Chinandega who were going to a meeting in
the city of Leon were taken ORthe public transport bus in which they were
travelling, for interrogation, and were photographed by the authorities.

*

The statistics assembled in relation to the cases of violations of human rights
indicate that 1983was really a very serious year Corthe Nicaraguans. The hi&
number of arbitrary arrests, the lack of legal guarantees, the suspension of
political rights, the lack of freedom of expression, the outrages and mockery
against the Catholic leaders, the setting up of political courts without legal
guarantees, the outrages against young people refusing to be recruited into the
armed forces and the pressurc on people to become informers of the State
Security, have been constantly increasing in 1983. December seemed to show
signs of promise with the release of some Miskitos and other political prisoners.
However, we are deeply scepticalabout the possibility of an improvement in the
general situation. Events have shown that so far no attempt is being made to
solve the structural problem, but rather purely cosmetic measures are dictated.
If the rovernment reallv wants reconciliation. if it is reallv lookinr for an
improv~mcnt in thc human-righti iiiuation. iishould bcgin h) Iiiting Ïhc Statc
of limergciicy. grant Irccdi>moCc\pressi~n. mo\.cmcni .ind mccting. tradc-union
;inJ rclirious irecdoni. rcsiorc Icg.ilpuÿrÿnIccs. ah<~lishthe Poliiiwl Courts and
grant ai amnesty. Othenvise, evëryÏhing it does is just propaganda for export
purposes.

Managua, 12January 1984 ANNEXES TO THE COUNTU<-MEMORLAL

GRApIl OF CASES REPORTEDTOTHE CPOM MlLlTARY AND PARAMlLlTARYACTlVITlES

PIECHART OFCASFS REPORTID TO THECPDH IN1983 ANNEXES TO THE COUNTER-MEMORIAL

Annex74

To the priests and deacons in our dioceses:
To members of religious orders:
To catechists and bearers of the Word:
To our brothers and sisters in the apostalic lay movements:
To principals, teacbers and students in Catholic schools:
To al1Ourbeloved faithful:

Grace and peace from Cod our Father and Jesus Christ our Lord.

Dcar brothers and sisters:
At this solemn Easter celebratioti, the ultimate expression of Cod's love for
mankind through the redemption, we invite you to share more fully in the
spiritual wealth of the Holy Year, which will be extended in Nicaragua by a
special concession from Pope John Paul II until June 17, 1984,the feast of the
Holy Trinity.
This extension and the urgent need in our Society for sincere and brotherly
reconciliation through individual conversion have moved us to send you this
exhortation.

1.DOCTRINAL SECTION

1. Sin, rheroof ofull evil

When sin came into the world, ;il1things were changed profoundly; the soi1
yielded brambles; civilizations and institutions passed away;man himselfrebelled
against his fellow men, and the empire of tyranny and death began (cf. Gen.
3:16-19; 4:7-8).
Man, created in the image of God (Gen. 1:26) did not wish ta acknowledge
or glorify Him; man hecame vain in his imagination, and his foolish heart was
darkened (Rom. 1:21). There were also those who, like Satan, disguised
themselves as angels of light to deceive others and lead them to perdition (cf. II
Corinthians 11:14-15). A poorly understood anthropocentrism plunged mankind
into the heavy bondage of sin.

2. Redemprionby Chrisr
Christ, by His death and resurrection, has reconciled us Io Cod, to ourselves,

and to Our brothers and sisters, has freed us from the bondage of sin (cf. Col.
1:20-22, Cor. 5:18), and has given His church the mission of transmitting His
message, pardon and grace (cf. Mt. 28:18-20,Mk. 15-20).
Al1this should be for us a cal1to conversion; it should be the beginning of a
radical change in spirit, mind and life*(cf. John Paul 11,Bull, "Open the Doors
to the Redeemer", No. 5).

* Unlns othenviseindicated,quotalionsthroughouithelettcrhavebeentranslatedwith-
outrcfcrcnceIoanyofficialEnglishtcxl.400 MlLlTARY AND PARAMII.ITARVACTIVIT16S

There are three aspects to this conversion, which redeems Our individual and
collectivelives:

(a) We must avoid personal sin, any act that disrupts Our baptismal alliance
with Cod.
(h) We mus1banish any sinful attitudes from our hearts, that is, any habitual
rejection, whether conscious or unconscious, of Christian standards and moral
values.
(c) We mus1 put an end to such sins of Societyas participation in injustice
and violence.

3. Sin after ilte redemplion
Nonetheless, sin has persisted in the world since our redemption by Christ,

because :
(a) Man abuses his freedom and does not accept Cod's grace.
(b) Society has hecome secularized and is no longer oriented toward Cod; it
does not heed the church, the universal sacrament of salvation, but considers it
an alienating institution.
(c) At times it claims to accept Christ and His teachings, but it repudiates the
church and thereby falls into the temptation of establishing other "churches"

than the one founded hy the apostles and their successors, the legitimate hishops.
(d) We forget that coexistence can only he hased on an accurate perception
of the individual as an intelligent, free and religious human being, with rights
and duties devolving from his very nature (cf. John XXIII, Enc. Pacemin Terris,
No. 9-10).
(e) Materialistic concepts of mankind distort the person and teachings of
Christ, reduce man to merely physical terms without taking account of his
soiriiual nature. so he remains subiect to nhvsical forces called the "dialectics of
kstorym. And man, alienated [rom Cod s'ni from himself, hecomes disoriented,
without moral and religious reference points, without a higher nature, insecure
and violent

IIOUR SITUKrION

1. Theproblem ofsin in the world
Pope John Paul II, in his message for the 17th World Day of Prayer for Peace

on January 1, 1984, expressed his concern about the current world situation, a
concern which we, too, share:
"Peace is truly precarious, and injustice abounds. Relentless warfare is
occurring in many countries, continuing on and on despite the proliferation
of deaths, mourning and destruction, without any apparent progress toward
a solution. It is often the innocent who suiïer, while passions bccome
inRamed and there is the risk that fear will lead to an extreme situation."

2. In Nicaragua

A. Belligerent situation:
Our country, too, is plagued hy a helligerent situation pitting Nicaraguan
against Nicaraguan, and the consequences of this situation could not be sadder:

Many Nicaraguan youths and men are dying on the hattlefieldsMany others look toward the future with the fear of seeing their own lives
prematurely ended.

A materialistic and atheistic educational system is undermining the consciences
of our children.
Manv families are divided hv oolitical diRerences
The Sufferingof mothers w6o'have los1their children, which should merit our
great respect, is instead exploited to incite hatred and feed the desire for ven-
gCdnCC.
Eàmworkers and Indians. for whom the Church reserves a s~ecial love. are
~ ~ ~ ~ ~ ~
suiTering,living in constant anxiety, and many of them are forced to abandon
their homes in search of a Wace and tranquility that they do not find.
Someof the mass media, using the language of hate, encourage a spirit of violence.

B. The Church :
One, alheit small, sector of OurChurch kas abandoned ecclesiastical unity and
surrendered to the tcnets of a materialistic ideology. This sector sows confusion

inside and outside Nicaragua through a campaign extolling ils own ideas and
defaming the legitimate pastors and the faithful who follow them. Censorship of
the media makes it impossible 10 clarify the positions and ofir other points
of view.

3. Foreigninferference
Foreign powers take advantage of our situation to encourage economic and

ideological exploitation. They sec us as support for their power, without respect
for our persons. Ourhistory, our culture and our right to decide our own destiny.
Consequently, the majority of the Nicaraguan people live in fear of their
present and uncertainty of their future. They feel deep frustration, clamor for
peace and freedom. Yet their voices are not heard, muted hy helligerent propa-
ganda on al1sides.

4. The roor of ihese evils

This situation is rooted in the sin of each and every one, in injustice and
oppression, in exploitative greed, in political ambition and abuse of power, in
disregard for moral and religious values, in lack of respect for human dignity, in
forgetting, abandoning and denying Cod.

III. RFSPDNSBOF THE CHURCll

1. Conversionandreconciliarion

The Church ardently desires and encourages peace and tranquility and helieves
that there is only one path to that end, conversion. This means that we must al1
turn Our eyes and heart to Cod, our Father, who through Christ oflers us the
true path to reconciliation, forgivencss and peace.

"It is not hehavior alone that needs to be changcd, but the heart that
guides Ourlives. At the community level ilis important to examine ourselves
as persons, as groups and social units, not only as victims but also as
authon of certain collective deviations from God's plan, in ordcr to

implement together Cod's plaii for constructive human endeavor." (Cf.
Peace and Conversion, a Pontifical document issued by the Commission on
Justice and Peace al Rome on Septemher 30, 1983.) ANNEXES TO THE COUNTER-MEMORIAL 403

John Paul II, Peace and Reconciliation. Address by the Pope in El Salvador,
March 6. 1983.)
If we are not open to objective acknowledgement of our situation and the
events that distress our people ideologically, politically and militarily, then we
are not prepared, in a true and Christian way, for reconciliation for the sake of
the real, living wholenessof our nation.
Considering that Freedornof speech is a vital part of the digniiy of a human
being, and as sucb is indispensable to the well-being of the nation inasmuch as
a country progresses only when there isfreedom to generate new ideas, the rigbt
to free expression ofone's ideas must he recognized.
The great powers, which are in\,olved in this problem for ideological or
economic reasons, must leave the Nicaraguans free from coercion.

If we want Our conversion to find true expression in the life of our national
community, we must strive to lcad lives worthy of the Gospel (cf. Phl :27,
Ep4: I), reject al1lies.al1harmful or offensivewords, al1anger and evil utterance,

and be benevolent and forgive generously as God forgave us through Christ (cf.
Ep4:25-32, Co13:12-14).
It hehooves us to value each life as a eift of Cod. helo the voune to find
meaning and value in their lives and prepare themselvesfo; their future roles in
society, forgive enemiesand adversaries, facilitate the return of those who have
left their country and welcome tbem with an open hcart, free those imprisoned
for ideological differences,create a climate of friendship and peace conducive to
social harmony.
"ln the great task of bringing peace and reconciliation to the nation, the
family as the basic unit of society cannot be ignored. Nor can respect for ils
rights." (Cf. Gaudium et Spes N.52, quoted by John Paul II in his address to
the bishops of El Salvador, February 24, 1984.)
May thc Holy Virgin, who played her part in our redemption with such
exemplary fortitude, provide us with the necessary strength to perform our
Christian duty of love and peace.
And may the Lord of Peace grant us all, always and in al1our endedvors. the

peace and tranquillity which we seek (cf. 2 Th3 :16).

Done at Managua, April 22, Easter Sunday, 1984(to he read and published
in the usual manner), Episcopal Conference of Nicaragua.

Pablo A. Vega, Bosco Vivas Robelo,
Bishop of Juigalpa Assistant Bishop of Managua,
President. Secretary.
Miguel Ohando Bravo, Julian Barni,
Archbishop of Managua. Bishop of Leon.

Leovigildo LopezFitoria, Ruben Lopez Ardon,
Bishop of Granada. Bishop of Esteli.

Salvador Schlaeffer B., Carlos Santi,
Bishop of Bluefields. Bishop of Matagalpa
Pedro L. VilchezV..
Prelate of Jinotega. Annex75

COMMENT OSCOMMAND EPRTHliREVOLUT~O ANN0COORDINATO 0R: THEJUNTA

[Interview with Daniel Ortega Saavedra, commander of the revolution and
coordinator of the lunta of National Reconstruction, by unidentified reporters
after presiding over the opening session of the International Labor Union
Meeting for Peace, in Managua; date not given - recorded]

[Text] [Ortega] 1believe that the pastoral letter clearly expresses the political
stand of the Nicaraguan Episcopal Conference. It is a political stand of helping
and supporting the US Administration's warmongering plans against the
Nicaraguan people. This is a stand much like others taken in the past when the
Nicaraguan bishops openly.supported the Somozist dictatorship. Following the
dictator Somoza Garcia's death, he was buried by these same bishops with
honors befitting a prince of [word indistinct]. This is the same policy of the
period of US intervention when this country's bishops blessed the weapons of
the US Marines who landed here Io carry out occupation plans and [word
indistinct] in our country.
Therefore, wc cdn Say that history is repeating itself with the actions of the
top Nicaraguan church officiais. However, we hopc that this document, which
was signed by al1the bishops, does not have the approval of al1of them. As is
known, the Episcopal Conference puts fonvard the opinion of the majority, and
once a majority consensus is reached the other bishops embrace that decision,
even though they may not approve.
This pastoral letter is part of the interna1 dcstabilization plan that is a
complementary and essential part of the aggression from abroad. We are sure
that Reagan and the US Administration are praising this letter which plays up
Io this aggressive policy that kas been condemned by US bishops as well as by
the world - a policy now being defended by some Nicaraguan bishops.
[Reporter] Commander, is the US Administration awaiting the appointment
of a new ambdssador to the United States after rejecting Nora Astorga's
nomination?

.Ort..al WCare anal.sin- this situation. We havc alre,dv .x~resscd our stand
on th15\Vcwillni>[;iciiviihthe >,,nieirrcspon>iti~iiiii"srhat ;iilniiiiisir~iion;
tic havi giicn con,iJcratiii10 tlic pcrlon .--gciied by rhc I.'niic<lSiitie, .ind
the credentials will be extended in due lime.
[Reporter] What is your opinion on the use of chemical weapons against
Nicaragua?
[Ortega] Well, we do not doubt that the C.I.A. has contemplated the use of
chemical weapons within their plans Io cause more harm to the Nicaraguan
people.
[Reporter] What kas been the outcome of the negotiations involving those
abducted to Costa Rica?
[Ortega]Well, those abducted to Costa Rica have already been claimed by the
revolutionary government; we have made specific requests to the Costa Rican ANNEXES 'îoTHE COUNTER-MEMORIAL 405

Government and Foreign Ministry. We understand that the return of these

prisoners to Nicaraguan territory will begin today.
[Reporter] 1sthe Contadora Group still effective?
[Ortega] We believe that the Contadora Group is a mechanism at our
disposition, thatilis a constructive mechanism. The United States is conducting
an all-out effort to destroy this mechanism because it logically works toward
peace and, therefore, against US policy.
[Reporter] Could you comment on the conference's proposal of a dialogue
with the contras?
(Ortega]As 1said, they are simply echoing the US Administration's policy. lt
is completely absurd that those who are demanding a dialogue with the contras
have not even accepted a dialogue with the revolutionary government. We must
note that we proposed this dialogue following the meeting that we had [word
indistinct] a few months ago. The members of the Nicaraguan Epixopal
Conference have rejected a dialogue with the revolutionary government. This is
an absurd situation, because these people refuse a dialogue within the country,
but want the government to hold talks with those who are killing the Nicara-
guan people.
This would sound logical from a Christian viewpoint, but this is an anti-
Christian attitude of these bishops who refuse to talk with the people and the
revolution. The bishops want [words indistinct] solution. This isan anti-Christian
stand that plays up to the Reagan administrütion's policy - a policy of inter-
vention. MILITARYAND PARAMlLtTARY ACTIVITIES

[Spanishlexr norrepruducedl

[Source: La Gacera, Managua, Nicaragua, 10September 1981,No. 2051

Law on the State of Economic and Social Emergency

Decree No. 812

The Junta of Government of National Reconstruction of the Republic of
Nicaragua,
Whereas :
1. The economic reconstruction of our country requires a climate of interna1
stability and order which encourages production, employment and discipline.

2. The conservation and strengthening of social peace is a primary obligation
of the government and of al1Nicaraguans so that out model of a mixed econorny
and political pluralism will not be diminished but will develop fully.
Therefore :
In the exercise of its authority,
Decrees :

Arlicle 1.In conformity with Article 49 of Decree No. 52 of August 21, 1979,
and Article 28 (c) of Decree No. 388 of May 2, 1980, a state of economic and
social emergency is decreed throughout the national territory for one year from
the date of promulgation of this Decree.
Ariicle 2. The Junta of Government shall in each instance empower the
appropriate Ministers of State to enforce the necessary administrative measures
for the application of this Law.
Arricle 3. For the purposes of this Law, the following persons shall be
considered to have committed crimes against the economic and social security
of the nation and shall be punished by imprisonment for one to thrce years:

(a) persons who cause a planned suspension of public or private transpor-
tation ;
lh. D.rsons who destroy raw materials. aericultural or industrial vroducts.
pr<)Ju-lion Iiirtrumcnis or inlkisiriiciure. tiithe Jetrimcnt oi itati.in.il resourxr
or colisumr.r\. irrerpci1ii.c oi ihc crimin;il Iiabilii) inc~rrd hy the iommi>rion
of other offenses;
IcJ versons who soread false information intended to orovoke chanees in
prices, wages, foodstu'~~,clothing, merchandise, slocks, sectkities or currency;

(d) persons who engage in acts of sabotage against production centers, markets
or warehouses to obstruct production or sÜppiyefioÏts;
(e) persons who encourage the raising or lowering of prices in the market,
hoarding any type of goods, products or securities, or using other means of
speculation ; ANNEXES TU T11ECOUNTER-MIIMORIAL 407

(f)persons who incite, abet or participate in initiating or continuing a strike,
stoppage or takeover at work sites;
(g) persons who encourage or participate in invasions or takeovers of land in
violation of the provisions of the Agrarian Reform Law;
(h) personswho incite foreigngovernmentsand international credit institutions
to carry out actions or make decisions which are injurious tu the national
economy.

Arricle 4. The penalties set forth in the preceding article shall be enforced by
means of the procedure described in Decree No. 5 of July 20, 1979, and its
amendments.
Arricle 5. The exercise of the right inentioned in Article 50 of Decree No. 52
of August 21, 1979,as il perïains to the application of this Law by the competent
authorities and to the provisions of Article 32, are suspended throughout the
national territory. Consequently, exercise of the fight to institute an amparo
proceeding against administrative measures taken in application of this Law by
the authorities mentioned in Article 2 thereof is suspended.
Article 6. This Law is public policy and shall enter into force today upon

publication in any mass medium, wiihout prejudice to its subsequent publication
in Lu Garera, the oficial journal.

Done in the city of Managua on September 9. 1981.

Junta of Govcrnment of National Reconstruction,
(Signed) Sergio Ramirez Mercado.

(Signed) Rafael Cordova Rivas. MILITARY AND 1%4RAMILITARY ACTlVlTIES

Annex77

[Spanish rexr nor reproduced]

[Source: LI Gacera, Managua, Nicaragua, 20 March 1982,No. 661

NATIONAI. EhERGENCY LAW

DECREE NO.996

The Junta of the Government of National Reconstruction of the Republic of
Nicaragua,
Whereas :

1. The plans of aggression directed against our country constdntly assume
more concrete forms and are designed to disturb the peace of the nation, destroy
our production system and the country's physical infrastructure, prepare an

escalation of counterrevolutionary military attacks, and, consequently, supplant
the power of the people with a régimeon the Somoza pattern.
2. In recent weeks sienificant facts have come to lieht on the existence of
covert plans directed hYUlJssecret agencies in cornplici& with bands of former
Somozan guardsmen and counterrevolutionary groups based in Miami and
~onduras,and involving the support of some ~atin American military régimes.
These plans include, inter uliu:

(ri) The training of an international mercenary force to conduct, from
Honduran territory, military attacks, sabotage and terrorism in Nicaragua;
(b) The gelierous financing of counterrevolutionary bands and paramilitary
groups from uarious Latin American nations and of right-wing political and
labor organizations within Nicaragua to enable them to engage in acts of econo-

mic and political destabilization and pave the way for anned aggression.
3. Those plans have already had concrete resulis such as the blowing-up, on
Sunday, March 14,of the bridge on the River Negro, on the highway leading to
the border post of El Guasaule in the Department of Chinandega, and the partial
demolition of the bridee at the entrance to Ocotal. on the hiehwa-.leadine to
the border po\t (iiL.I>\Idnos in ihc Ilpartmeni <IV Naeta Sep\i>. bot11aciion,
c3rr1eJ out hy crimini<lsb,iscd IIIIIo~~Jurii~The deitruciion 01'tticsc bridgesir
in kecpinr:uith the .iniiier r>lan.s hich IiccorJincti>LIS riens rncJ1.ihns alrcad,
been ap6oved, to destroy'and blockade communication routes in ~icara~ua
which are allegedly used for supplying arms to El Salvador, an allegation serving

as an excuse for aggression against the heroic people of Nicaragua.
4. Other criminal schemes. whether abortive ones. such as the destruction of
the ri;itl,>nnl<?ment 13~101)and the 011 retiner).or carricd io cL>nipletion,such
:i.ilic Jei<>nationiifa h,?nib in .IIAcrOniia :iirsraii ai ihc hlcrlio Clt) sirpori
;iiiJ the Jct<~n;itionof anothcr boiiih in Ssndino Airpi)rt's tcriiiin311Managu-,
serve to confirm the aforesaid plans.
5. If is the duty of the Revolutionary Government and the entire nation to
focus al1moral, political, social, economic and human energy on the defense of ANNEXESTO TH13COUNTER-MIZMORIAL 409

our country andthe revolution in order io thwart acts of terror and destabilization
which attempt merely to snatch froni the humble and industrious people their
revolutionary victoryand the right, conquered with bfoodand heroism,peacelùlly
to build a ncw society free of poverty and oppression.
Therefore,

By virtue of ils powers, decrees the following:

National EmergencyLuw

Article 1.Throughout the national territory the rights and guaranties set forth
in Decree No. 52 of August 21, 1979, are hereby suspended, excepting the
provisions of Article 49 (2) of said decrec.
Article 2.The present suspensionofrights and guaranties shall havea duration
of 30 days and may bç extended in accordance with circumstances prevailing in
the country.
Article 3. This decree supersedes Decree No. 812 of the Economic and Social
Emereu ,v Law and shall he in efiect from the date of ils oublication in anv
medium of mass cominunication, without regard ta its suhsequent publication
in the officialjournalLu Guceta.

Donc at Managua, March 15,1982. "Year ofUnity in the Facc of Aggression".

Junta of the Government of National Reconstruction. - Daniel Ortega
Saavedra - Scrgio Ramirez Mercado - Rafael C6rdova Rivas. MlLlTARYAND PARAMILITARYACTlVlTlES

Annex78

ORGANIZAT OPAMERICAN STATINTER-AMERICCAKNMISSONNHUMAN
RICHTSANNUALREPOR TF THINTER-AMERICCOMMISS INNHUMAN
RIGIIT1982-19(EXCERPTS)

[Nor reproduced]

Annex79

[Nor reproduced]

Annex80

[Nor reproduced]

Annex81

[Nor reproduced] ANNEXES TO THE COUNTER-MEMORIAL

Annex82

1984N~CARAGU ORDl.:OPBATTLE,BASE DNFIGURE CSOMPII,~~THE
UNITEDSTATE SOVI;RNMEXTFROM UNCLASSIFSOURCI~S

[Nor reproducedj

Annex83

[Nor reproducedj

Annexâ4

[Norreproducerll

ONTHE ELBCTOIW PROCBSSLAPRI?NS A6D~cli~nl1983, ATRANSCRIB AEU
EXCERPT IEUOREIG NRMDCAS ~~TORMATIONSERVIC5~ANUARY1984

[NorreproducedlMII.ITARAND PARAMI1,ITARY ACTIVITIES

Annex86

INI:ORMATIOSIXVIC~ 3~ ,ULY1984 ANNliXES TO THE COUNTIIR-MI%MORlAI

Annex âl

ALIANZA REV~L~~I~NARD I~DCRATICA (ARDE), FOR %CE AND DEMOCRACY
INNICARAGU2 A0, FIIBRUAR 1984

UNIDAD SANDINIS~AVDS MISKITO SUMOS Y RAMAS (MISURASATA)
MOVIMIIIN1.0 I>EMOCRATICONICA8ACUENSE(MDN)

FRENTIi REVOLUCIONARIO SANDINO (PRS)
FRENTE SOI.II>ARIDAD DEMOCMTA CRISTIASO (FSDC)
SDLIDARIDAD DE TRABAJADORES UEMOCRATICOS NICARACUENSES (STDN)

/TORPI3AC5AND DFMOCRACY IiVNICARAGUA

On the eve of his death, General Augusto Cesar Sandino, symbol of our
nationalily, deplored the high cos1 that we would have to continue Io pay to
achieve peace and social justice.
Fifty years after his sacrifice, his fears have been Sullyconfirmed. Nicaragua
has undergone a drama of vas1proportions in this half century, the social contra-
dictions and causes of which aretill present. For this reason, we, Nicaraguans,

mus1think first and foremost of our country, to minimizethe high cos1in human
lives that wc are paying for our political tragedy.
ARDE hss declarcd that ils difïerences with the FSLN derive from the anti-
democrdtic system that kas been imposed by that government in Our country.
We have proposed in numerous occasions the necessity Io sedrch for political
solutions with the hope to put an end to the national crisis. However, the lack
of response to our initiatives has compelled us to take up weapons.
On this occasion, we wish to stress Ourposition on the electoral process to the
people of Nicaragua, to the democratic sectors within the FSLN and to the
international community. We are nationalist revolutionaries. We believc in

consolidating the achievements of the revolution within a democratic framework
that would guarantee authentic and effective pluralistic participation. Only in
this context. the different nolitical tendencies of the nation could narticioate in
king Our&ultiple problehs.
WCinsist on this ldst point, because an electoral process that excludes the
exiled democratic forces, would only serve to exacerbate the national contradic-
tions and to frustratethe expectaiions for pedce and regional securities. On the
basis of these and other considerations that have been pointed out by our
alliance, we present the following basic conditions that might rendcr an electoral

process trustworthy:
1.The point of departurc to put an end to the violence that aEiicts the nation

is for the FSLN to agree to an electoral compromise that would permit the
participation, without exceptions, of al1representative forces and their leaders in
our country.
2. The FSLN mus1 demonstrate a renuine commitment to democracv and
mus1end the superimposition of government functions over those of the party,
and must particularly separate the army's funçtions from those of the party
in power.
3. The electoral process should take place within a climate of national414 MILITARYAND PARAMILITARYACTIVITIIE

reconciliation, under the supervision of a Latin American instance, with thc
a.. .oriate le-al instruments -uaranteeinz-that leu . orocedures and arbitration
are applied throughout.
4. All public liberties mus1 be restored and appropriate measures should be
created to guarantee the political activities of<opp-ositionforces, through the
creation of favorable conditions for al1political party activities.
5. The rules of the electoral process mus1 be clearly defined. Thc basic
guidelines for our parties mus1 be established, and it mus1 be pledged, publicly
and formally, that the electoral results will be respcctcd, even if they are adverse
to the FSLN.
6. The various forms of institutionalized repression must be eliminated and
the internationalists and foreign military officers who are playing rolcs that
rightly belong to Nicaraguans must be sent away.
If the FSLN pledges to take and then does take specific steps to implement
these legitimate demands of those who are struggling for the restoration of the
revolution's originalprogram, ARDE would suspend military activities, under a
priorgi uarantees by countries that have remained neutral in the conflict.
We are not demanding power-sharing with the FSLN. We are only claiming
the ri~ht of al1 Nicaraeuans to oartici~ate in the electoral contest in eoual
condicons with the in power. ~he FSLN has the historic opportunit; to
prove to the international community that its electoral rhetoric is based on its
concern for saving the nation from war and crisis. It should placc the national
interest before the inte~ ~~ of the oartv.
We once more declare that we are \;illing to seek a dignified and true solution
to our national conflict. We thus render homaae. on this 50th anniversari. to
Sandino's aspirations, who said that the highes<duty of every good ~icaraguan
citizen is to procure peace in Nicaragua.

Sardpiqui, Department of Rio San Juan, Nicaragua, February 18, 1984
San Jose, Costa Rica, February 20, 1984. Annex88

Nicaraguan Democratic Force (FIIN), after carefully weighing Our historic
national reality and our current prohlems; and faced with the responsihility of
finding a solution to the Nicaraguan civil war and providing for the peaceful
coexistence ofal1Nicaraguans in freedom and dcmocracy, addresses itself to the
Junta of the Governrnent of National Reconstruction and requests that the

Ministers of Foreign Afiirs of the Contadora Group, in their meeting of
February 27, 1984,take this docume~itundcr consideration.
The Nicaraeuan conflict. which threatens the oolitical and socio-economic
stability of th; Central ~mkrican region, is due hith to interna1 factors and 10
extracontinental aggression. It is at the same time the immediate and principal
causc.of the regional crisis.
A bloody war is heing waged within Nicaragua al a very high cos1in human
lives.This makes essential the search for formulas for peace, as was done in June
of 1979through the good officesof the Organization of American States (OAS).
In order to end the bloodshed and prevent the prolongation of this conflict,
which continues to disturb the peace of this continent, we propose the follou,ing
PLAN FOR PEACE AND NATIONAL CONCILIATION, developed on the

basis of the Resolution of the XVlIth Conference of Consultation ofthe Ministers
of Foreign AKairs of the Organization of American States, that will facilitate a
durable and peaceful solution to the Nicaraguan problem:
1. The immediate substitution of the Sandinisva régime.
-~ ~nstallation in Nicaraeuan territorv of a Dcmocratic Provisional Government
of ~ational ~onciliazon, which ihould in&de the main dernocratic groups

representative of the opposition ti~the Somoza and Sandinista régimes,and
which should reflect the free will of the Nicaraeuan veoole.
3. Guarantees for the respect of human rightsof al1 ~icara~uans without
exception.
4. The initiation within one ycar of an authentic electoral process, conducted in
liberty and surrounded hy guarantees before, during and after the casting of
the vote that culminates in the election of national authorities. The process
should he supervised by groupsof nations such as Contadora and institutions,
the like of the Organization of American States and the United Nations.

For the initiation and the implementation of this Plan, itis imperative that
there exist a state of freedom and full observance of the civil and political rights
of citizens, among which must he included the following measures:
(O) The immediate withdrawal of foreign (Cuhan, Soviet, Bulgarian, North
Korean, Palestinian, East German, etc.) military and sccurity forces that

have established themsclvcs as a true occupation army in Nicaragua. At
the same time, withdrawal of al1 international mercenaries involved in
public administration, including those given Nicaraguan citizenship after
Julv 19. 1979.
(h) ~hk immediate separation from the Sandinista Armed Forces and other
repressive organizations of individuals responsihle for crimes againsi their
own people and against humanity.416 MILITARYAND PARAMILITARYACTlVlTlES

(c) Suspension of the state of emergency whichsuspends the civil and political
rights ofNicaraguan citizens.

(d) Promulgation of a genuine amnesty Law, covering political ofenses.
(e) Derogation of laws which violate internationally accepted standards of
human rights, such as Decree 48, the General Law on Communications
Media; Decree 1327, the Law on Patriotic Military Service; Decrees 759
and 760 which violate the right to private property; and others.
(1) Derogation of laws restricting freedom of labor unions; reestablishment of
the right to strike, the right to bargain collectively, and respect for
international labor agreements to which Nicaragua is a party.
(g) Establishment of the rule of Law, through the distribution of the powcrs
of the State among thrce independent and complemcntary powers: the
Legislativc, the Judicial and the Executive.

(h) The establishment of the organs of the State as true national organizations,
apart from al1political and ideological sectarianism, and thetotal separation
of the Sandinista party from the political and military agencies of the State.
(i) An end to the persecution and extermination of sectors of the Nicaraguan
population, especially that unleashed against those of Miskito, Sumo and
Rama origin.
(J) An immediate end to religious persecution, and a total separation of the
State and the so-called "Popular Church".
Repatriation of al1 Nicaraguans with full guarantees of their rights as
(k) ~ ~i~ ~s.

(1, Reriiirdlion Io the Judliiar) ofiirSuIliunciions. jurisdiciioii and auiiiniimy.
(III, Reiiignition of the Icgal suprrmacv. appropriaie for Constiiuiii>nal docu-
mcnlr of the ~'undamcntdiSlliiuic and thc Sialuis ol'Rirh-\ and C;u:+r:ini~ ~ ~ ~
of the Nicaraguan People.
(n) An end to the arms race and to the aggressions and provocations against
the neighhoring Republics of Central America.

The ncu I'nn irional Dcm~icratii G<~i.ernnieniof N:itional C<,neili.iiionu.111
carry OUI ihc Pr,ivi,i<in.ill'rograni of Go\criiinciiI .inn<>uniedin July oi 1979,
while ihc poliiiwl p~rtiei. in open il:.ilop ;indiull inter-p.irt, ci>iipr.r.itidii.drr1i.r.
at an agréement on full unitj and cooperation based-on-the ~act of "Punto
Fijo" signed in Caracas on October 31, 1958,by the Venezuelan parties Demo-
cratic Republican Union, SocialChristian Party COPEI,and Democratic Action ;
on the Declaration of Pnnciples and Minimum Program of Government signed by
Mr. Romulo Betancourt, ViŒ-AdmiralWolfgang Larranabal, and Dr. Rafael Cal-

dera on 6 DeŒmber 1958; and on other historic accords which establish the
basis for democratic government inthe Republic of Venezuela.
Nicaraeuan Democratic Force (FDN) would immediatelv azree to susnend ~,~~
al1 ils miÏitary actions, if and whèn the'~unta of the Gove;nrn&t of National
Reconstruction and the National Directorate of the FSLN carry out the above
mcasures, and follow these with the patriotic gesture of separating themselves
from public office, to permit the installation of the Democratic Provisional
Government of National Conciliation.

Nicaraguan Democratic Force,

(Signed) Adolfo Calero PORTOCARR~~RO,
President,

National Directorate.
21 kbruary 1984. ANNEXliS 70 THE COUNTER-MBMORIAL

Annex89

PRESSCONPI!RI:NED,~NPASTOMA, GENCEFRANC PRFSSREPORTR,RPRINTRID
FOREIGBNROAI>CAINTFORMATISOERVICE1,JUNI:1984

[Nor reproduced]

Annex90

"LEYCOMPLEMENTA REIDECRETO1477''(''SUPPLLUENTALW70DECREE
1477")6Aucusr 1984(UNOFFICIATEXTE, NC~LTHRANSLATIPONOVIDED)

Annex91

"CANCUN DICLARA~O NNPIACEINCENTRAA LMERICAA",NNBD TOUNITED
NATIONDSOCUMIW A~/38/30;Sl15877,19JULY1983

[See1,Exhihits Submirredby the UnitedSiutes of Americu in Conneclionwitb

ihe Oral Proceduonthe Rcquesr./or rhe Indicarion of Provisional me usure.^
pp. 278-2x11 MILITARY AND PAKAMII.ITARY ACTlVlTlES

Sur); IIYTIIISI~CKL-I,\HY.GI~"Y 1~~IRS\I,.ATIO S CI:\TK,\LA\II(KICA",
S 16041 ". IXOLIOHIH1983

1. Since the Security Council adopted resolution 530 (1983), on 19 May 1983,
1have endeavoured to keep in contact with the Governments of Costa Rica, El
Salvador, Guatemala,Honduras and Nicaragua, as wellas with the Governments
of Colombia, Mexico, Panama and Venezuela, which comprise the Contadora
Group, in order to keep informed of the eiïoris made to find a negotiated
political solution to the problems in the Central American region and of the
developments in the area. On two occasions, on 28 June and 13 July 1983, 1
reported orally on the situation to the members of the Council.

2. Within the framework of the Declaration adoptcd at lsla de Contadora on
9 January 1983'. there was an initial phase of olficial contacts and visits hy the
Ministers for Foreign Affairs of the Contadora Group to the countries directly
concerned, on 12 and 13 Apri12. As a result of the consultations held, il was
agreed to initiate a new phase of joint meetings of the Ministers for Foreign
Affairs of the Group with the Ministers for Foreign Aiïairs of the five Central
American countries. The first three meetings were held in Panama City on
20 and 21 April', from 28 to 30 May and from 28 to 30 July 19834, respec-
tively.
3. On 17Julv 1983. the Presidents of Colombia. Mexico. Panama and Ve~ ~ ~ ~ ~
~uclame1in Canain. \lcxico. Thc Declaraiiiin isçuedon that uicdrion prupo5ed
puidel~nesfor the negotiaiing priiscs>a\ wcll as specificconimiimeni the imple-
mentation of which would &sure Deacein the reeion '.

4. On the basis of the Cancun ~eclaration, the Ministers for Foreign Aiïairs
of the Contadora Group and of the five Central American countries met again
in Panama City, from 7 to 9 September 1983, and adopted a Document of
Objectives6. On 6 October, 1 rcccived a visit from the Minister for Foreign
Affairs of Mexico and the Permanent Representatives of Colombia, Panama
and Venezuela to the United Nations, who handed me the Document, which,
I was informed, had been approved by the Heads of State of Costa Rica, El Sal-
vador, Guatemala, Honduras and Nicaragua7. At the request of the Contadora
Group, the Document is transmitted to the Security Council as an annex to this
note.
5. On that occasion, the Minister for Foreign Aiïairs of Mexico pointed out

that the Document of Objectives is a single consensus text, which sets out the
positions and the concerns of the Governments directly concerned and the
proposals of the Contadora Group, and which contains the principles on which

' A/38/68.
Sli5727.
' S/lS809.
~/l5900.
S/15877.
S/15982.
' The iextsol thecommunicationsframthe Gavernments of Nicaragua and Honduras
respectivcly.twerecirculaicd 10ihcSecurityCouncilas documentsS/16006 and S/16021 ANNEXES TO TI~C COUNTER-MBMORIAL 419

the eventual solution of the Central American orohlems will have to be based.
The Document also contains a definition of the specific areas of negotiation
and the terms of reference for the formulation of the legal instruments and the
machinerv which would be essential in order to ensure harmonious coexis-
tence in Cheregion. 1expressed to the Minister for Foreign AKairsof Mexico my
fervent hope that the Croup's activities would soon achieve substantive and con-

crete results. 1also emphasized on that occasion that any attempt at a solution
should take in10 account the profound economic and social imhalances with
which the Central American peoples have always struggled.
6. In transmitting the Document of Objectives to the Security Council, 1con-
sider it mv dutv IO exnress mv orofound concern at the erave and oroloneed
tension whichpérsistsin the aréa.'lnviewof the nature and iossible ramificatiGns
of the convulsive situation currently prevailing in the Central American region,
the unavoidahle conclusion is that it threatensinternational peace and security.
7. In communications addressed to the President of the Council and to the
Sccretary-General, there have been frequent accusations and counteraccusations
offoreign interference in the region and complaints of numerous border incidents
as well as incursions by sea and hy air, causing deplorahle loss of lire and
material damage'. In the view of some Governments, the military and naval
manŒuvres now in progress add to the tensions in the region. It has also been
pointed out that the presence of military advisers and training centres, the trafic
in arms and the activities of armed groups, and the unprecedented huild-iip of
arms and of military and paramilitary forces consfitute further factors of tension.
On 13Septemher, the SecurityCouncil met at the urgent request of a Government
of the region, which complained of what it described as a further escalation of
acts of aggression against its country'. Although the Secretary-General has no

way of reliahly verifying each and every one of the components of this situation
and is therelore unahle to make deFinitejudgments, there is no douht that an
alarming picture is emerging in the ;irea.
8. The five Governments of Central America have assured me on a number
of occasions of their firm commitment to contribute in good faith to the search
for peaceful solutions. In that connection, they have also reiterated their dcter-
mination to co-operate with the Governments of the Contadora Croup in
their eiîorts for peace. The Governments of Colombia, Mexico, Panama and
Venezuela are motivated bv an carilest desire to find solutions adavted to the
realities of the region, without any intrusion derived from the' East-West
conflict. That is why they have the manifest support of the international
community as a whole.
9. In accordance with the terms of resolution 530 (1983), 1shall continue to
keep the Council informed as and when necessary. MILITARYAND PARAMILITARYACTlVlTllS

ANNEX

Documenrof Objectives

[See 1,ExhibitsSubmirtedby the UniredSraresof America in Connecrionluith
the Oral Procedureon ihe Requesrfor theIndicationof ProvisionulMeasures.
pp.283-2851 ANNEXES IO THE COUNTER-MEMORIAL

Annex93

"THESITUATIOINCEN.TRAAMERIC :AI~RBA TTSNTERNATIOSN ECURITY
ANI) ~ACE INITIATIVUNITENDAT~O CCNERAL ASSEMBLRESOLLJTIO38/10,
11Novii~sc~1983

[Sec 1, ExhibitsSuhmiiiedhy the United Storesof AmericrrinCoitnectionivilh
ihe Oral Procedonethe Requestfor the Indicationof ProvisionalMeasirre.~,
pp.290-2921 MILITARY AND PARAMILITARY ACTIVITIES

Annex94

OAS GI:SI'K~IA. ssi:risiv K~.ui~.t:~ii IRI\U\'IMHn I 1983<IS1l:nci:Eviunrs IV
Ciisi~il. ASICRICA A.ti,K1:5 675(XIII-0,81). AI.~,\(.)IIA)SAs\t IIIO CSLII:I>
N~rtoss SL-CUKIIC Y~X.S<.IDI.<x:l:~t.s'rS/lh?08Y L>I:<.I.*IR1)9x3

THE SITUATION INCENiRAI. AMERICA

Noie by the Secreiory-General

1. On 25 November 1 received a visit from the Permanent Representatives
of Colombia, Mexico, Panama and Venezuela, which comprise the Contadora
Group. On instructions from their Governments, tbey delivered to me a copy
of the communication submitted by the Ministers for Foreign Afïairs of the
Contadora Croup to the General Assembly of the Organization of American
States. toeether with the text of the resolution adooted bv that Assemblv on
14 ~o"ember 1983on the topic "Peace eiiorts in central ~mirica". In accordance
with their request, these documents are transmitted to the Security Council as
annexes to this note. On the same occasion, they informed me ofthe calendar
of meetings of the Contadora Croup, including one at the technical level on 1

and 2 Deccmber and another at the level of Ministers for Foreign Aflàirs later.
2. In the pas1 few days 1have also had interviews with the Permanent Rep-
resentatives of Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua,
who have made known to me the opinions of their respective Governments
concerning the situation in Central America.
3. On this occasion, 1must convey to the Secunty Council my impression that
there are certain developments in the situation which. if taken advantage of,
would make it possible to entertain hopes of improvement. Since 1last reported
to the Security Council in conformity with resolution 530 (1983)', while the
Council has continued to receive communications regarding the situation in the

region, taken as a whole they seem to indicate that there has been a reduction
both in the number of border incidents and in their scope and magnitude2.
Similarlv. the Daceof the efforts of the Contadora Grouo is acceleratine. -nd
in thai ioriic.~t dipl<im,iiic:ictiviIiiibccit rcdouhlcd turthcrriiorc. ihcrc ir
pr.rccptlblcm<i\cmeniin the positi,iii oithr C<>\crnmcntof Nicar.igu,i.c<insi<iing
iii:iinlinthe r~hmiisiiin i>fpro~o,:il, wiihin the ir,imcuork ulthc cifortr<iithc
contadora Group and in measutes which, notwithstanding their domestic nature,
take cognizance of certain requirements of the other countnes of the region.
4. 1must state, however, that the situation in Central America continues to
be exceedinglycomplex and unstable, and that any of the multiple factors which
together account for its dangerous character, 10 which 1referred in my note of

18 October and which undoubtedly still exist, can aggravate it again from one
moment to the next. Accordingly il is essential, acting in good faith and in a
constructive spirit, to evaluate and take advantage of the opportunity which is
apparently beginning to emerge. 5. For this redson, and in accordance with Security Council resolution 530
(1983), 1 wish to express my fervent hope that the opportunity oKered hy the
beginning of détenteto which 1 have referred will be used to the full and that

all States, whether or not they belong to the region, will CO-operatein word and
deed to ensure that the efforts of the Contadora Group bear fruit, and thdt they
will refrain from any action or attitude which might have theopposite eiTeçt.

Communicalif~n/rorn the Minisrersfiir Fureig~rAffuir.7 (~ilre Contudoru Croup Io
the GeneralAssemhly of the Orgunizaiion ff American Stutes

[See 1, Erhibits Subnritred by rlre Uniter/ Siutes o/Anrericu in Connection 1vit11
rhe Oral Procedure on rhe Requesrfor rhe Indicarion of Provisional Meusures.

pp. 294-2951

ANNEX II

PeaceEfloru in Centru1America
(Resolution udoptedut tiresevenrlrplenury session.Ireldon 13November 1983)

[See 1, Exhibits Submiited by the United States (f America in Connection with
tlre Oral Procedure un the Requestfor the Indicution of Provisional Meusures,

pp. 287-2881 MlLlTARYAND PARAMILITARYACTIVlTlES

Annex 95

I.i>llowingare rexrs ffrhe lranmittal leller und reporr submirredro Congresshy
Secreiary Shultz on Marc1115, 1984.pursuunr ru Secrion 109 (f)ofllre I~tlelligence

Airrhorizurion Ac1 of 1984.

[See 1. Exhibits Submirre(1by rhe Unired Slures of Americu in Connecrion ivirh
the Oral Procedure on the Requestfor rhe lndicurion of Provisional Measures,
pp. 322-3351 Annex96

"ACTA 1.CONTADOR PAARALA Ph% Y 1.COOPERACIO E~CENTROAMER~CA"'
("'ACTA' OS%CE AND COOPERATIO ISCI:PITRAALMI~RICA" L),NACIO NA,N
Jose, II JULY198ANI> 12JULY1984(ENCLISH Tiu~s~xrtos PROVII>BD)

THE CONTADORA ACT FOR PEACE AND COOPERATION IN
CENTRAL AMERICA

Part 1

Commitments

CIIAPTI~1R

General Commilmenls

Seciion1. Principles

The Parties shall undertake Io:
1. Respcct the following principles:

(a) Renunciation of the threat or use of force against the territorial
integrity or political independence of States:
(h) The peaceful settlement of disputes;
(c) Non-interference in the internol affairs of other States;
(dj Co-operation of States in resolving international problems and promo-
ting respect for hurnan rights;

(ej Equal rights and free dctcrmination of pcoplcs;
(f) Equal sovereigniy and respect for sovereign rights:
(8) Fulfilrnent in good faith of the obligations assumed in acçordance with
international law;
2. In application of these principles:

(a) Abstain from any action inconsistent with the objectives and principles of
the United Nations Charter and the Charter of the Organization of American
States that impairs the territorial integrity, politicalencc, or unity of
any of the States and particularly any action, that constitutes a threat or use
of force.
(h) Solvc their disputes by peaceful means. in the United Nations Charter
and the Charter of the Organization of American States.
(cj Respect the existing international boundaries between States.

3. Consequently :

(a) Abstain from military occupation of the territory of any of the other
States in theegion.
(hl Abstain froni any type of military, political, economic or other coercive

'Spanirhtcxtnotreproduced426 MILITARYAND PARAMII.ITARY ACTIVITIES

act intended to subordinate to their own interest the exercise by other States of
the rights inherent in their sovereignty.
(c) Take the steps necessary 10 guarantee the inviolability of their borders
against irregular groups or forces seeking to destabilize the governments of
neighhouring States from within their own territories.
(dl Refuse to mrmit their territories to he used to take action detrimental to
the kvercign rights of other States and ensure that the prevailing conditions in
their territories do not threaten international peace and security.

4. Respect the principle that no State or group of States has the nght to
intervene directly or indirectly, through arms or any other form of interference,
in the interna1or external aiïairs of another State.
5. Respect the peoples' right to self-determination, without external inter-
vention or coercion, by avoiding the threat or direct or covert use of force Io
undermine the national unity and territorial integrity of any other State.

Seciion 2. Commitmenrs rel(i1iny Io a reduciion of tension lhroughoul lhe region

The Parties shall undertake to:
6. Cease political and military activities that are detrimental 10 peaceful
coexistence among the States.

7. Refrain from directly or indirectly promoting activities interided to destabi-
lize the governments of the region, neither supporting nor tolerating groups that
conduct activities of this type, and desist from trafficking in arms. Consequently,
the Parties shall take the necessary measures, with the legal recourses ai their
disposal, ta block supplies of armsand military equipment intended to destahilize
established governments in the Central American region.
8. Prevent the use of their respective territories to attack another territory,
and at al1 limes respect the sovereignty. territorial integrity aiid the political
inde~endence and economic infrastructure of the States in the recion-
Y. Abst;iin 1T.m org;iniring. promoiing. fin.in~ing. in,tigating %Iriolcr;iting
rub\srrivc or ierrorist ;i;ti\itic~. rshi~i.igr.or dny otlicr iiirni uii~iolcncc tiittnJcd
to a~.. . .essureto or chanze t-e established gove-nment of another State in
the region.
10. Abstain from issuing or promoting propaganda in favour of violence or
war. as well as hostile propaganda against any Central American government.
Each of the Parties shall undertake Io com~lvwith and disseminate the ~rincioles

in order to ensÜresuch co-operation under conditions of mutual understanding -
and resoect.
I? Promotc and fliciliiaiccultur;il cxchlingchand co-opsrdic in strengihciting
;id dc\eloping ihc conimon cultural \aluci of ihc Ccnirsl Amcriclin pcoplcs.
13 Jointlv icck a c<)mnrchensi\c rceional solution thai u,ill co~ifr<,ntthe
sources of ténsionin Ceniral America &d ensure the inalienable rights of the
people in the face of foreign pressures and interests.

Seclion 3.Commifmenis reluling Io meusures Io encourage trust

The Parties shall undertake to:
14. Encourage mutual trust by al1 means at their disposal and avoid any
action likely to undermine pcace and securiiy in the Central American area.
15. To this end, their respective governmental authorities shall: ANNEXBSTO THE COUNTER-MEMORIAL 427

(a) Avoid any spoken or written declaration that may aggravate the cxisting
situation of conflict in the area.
(h) Urge the miiss media to contribute to understanding and co-operation
between the peoples of the region.
(c) Promote more contact and understanding between their peoples through

co-operation in al1aras related to education, science, technology and culture.
(d) Iointly consider future actions and mechanisms that will contribute to the
attainment and improvement of a climate of stable and lasting peace.
16. Comply with the following provisions when conducting military man-
Œuvres :

(a) In the event that national or joint military manŒuvresare being conducted
in zones within a distance of thirty (30) kilometres from the border, the required
prior notification referred tu in Pari III of this Act shall be given to the neigh-
bouring countries and to the Verificationand Control Commission al least thirty
(30) days in advance.

(b) The notification shall contain the following information:
1. Name.
II. Purpose.
III. Participating forces.

IV. Geographical location.
V. Schedule.
VI. Equipment and weapons to be used.
(c) An invitation should beextended to observers from neighbouring countries.

16a. The conduct of international or combined military manŒuvresshall not
be pemitted within 30 kilometres of the border or outside that limit when they
could be detrimental to the objective or purpose of this Act.

CHAPTER II

CommirmenlsRelating to Politicol Matters

Section 1. Commirrnentsreluring to national reconciliarion

The Parties shall undertake ta:
17. Take measures to establish and. if aoorooriate. imorove renresentative

pluralistic democratic systems that ensk efi;cti;e participation by'the people,
political.y or-anized, in the decision-making process and ensure that various
opinion groups have free access to honest and periodic electoral processes, based
upon full observance of the rights of citizens.
18. In those cases where deep divisions have occurred within the society,
strongly encourage national reconciliation activities that allow fully guaranteed
participation by the people in authentic democratic political processes on the
basis ofjustice. frecdom and democracy and, to this end, create mcchanisms that
will permit a dialogue with opposition groups, according to the law.
19. Issue and. if a..roo.iate. ratif.. e.oand and imnrove laws and reaul-tions
thxi ~iilcrtruc amncsty ;incl;illt>u,thcir ciiiïcnr i<ihr~ciniciullp reincorpor;rir<l
In poliiical. cionoinic anil ~aiii~Iif: In Iikc ni;inncr. guaranicc the invi<~l:ihiliiy
of iife, liberty and personal security for those who accept an amnesty428 MILITARY AND PA~MILITARY ACTIVITIES

Secrion2. Commirnienrsrelating Io human righls

The Parties shall undertake 10:

20. Respect and guarantee full respect for human rights and,to this end, com-
ply with the obligations contained in international legal instruments and the
~o~stitutional orovision~ ~n the subiect.

?I Initi~ictheir rc\pr.ciii'c~onstituii~inalpro:cuurcs io rhai ihc) ni*).hc:,>mc
pcirtici in thc Ibllouing iniern.iiion:il in.trumcnt.;
(a) lnternational Covenant on Economic, Social and Cultural Rights of 1966.
(b) lnternational Covenant on Civil and Political Rights of 1966.

(c) Optional Protocol to the lnternational Covenant on Civil and Political
Rights of 1966.
(d) lnternational Convention on the Elimination of All Forms of Racial
Discrimination of 1965.
(e) Convention relating to the Status of Refugees of 1951.
(f) Oplional Protocol relating to the Slatus of Refugees of 1967.
(g)Convention on the Political Rights of Women of 1952.[1953]
(h) Convention on the Elimination of All Forms of Discrimination Against

Women of 1979.
(il Protocol Amending the Convention on the Abolition of Slavery of 1925
of 1953.
(j) Supplemcntary Convention on the Abolition of Slavery, the Slave Trade,
and Institutions and Practices Similar to Slavery of 1956.
(k) lnternational Covenant on the Civiland Political Kightsof Womenof 1953.
(1) American Convention on Human Rights of 1969,taking note of ils Articles
45 and 62.

22. Draw UD and submit the necessarv bills to their cornDetentdomestic bodies
in order tiac&leraie the procers of niiiScrni~liiii>n :andup&iting their Icgisl~ti<in.
so th31 II ma) niorc cllc:~ii,clyprornotc and cnrure duc respect for huinÿn rightb.

23 I>r:iwup ;andvuhniit bills to their cnmpetcni J<>rncsiiibodic>in order IO
(u) Guarantec the stability of the judiciary so that its members may act with-
out political pressures and themselves guarantec the stability of lower level oili-

cials.
(h) Guarantee the budgetary stability of the judicial branch itself, so that ils
independence from the other branches is absolute and unquestionable.

Seclion 3. Con~mirmenrsreloring ro ekcrurrilprocesses

The Parties shall undertake to:

24. Takc measures to establish and. if appropriate, improve representative
oluralistic democratic svstems that ensure elTeclivewarticioation hv th~,oeoole.in,
the decision-making process and ensure that various opinion groups have free
access to honest and periodic electoral processes, based upon full observance of
rights of citizcns.

25. In order to attain these objectives, the Central American governments
shall undenake to implement the following mçasures:
(u) Promulgate or amend electoral laws so that elections may he held that
gii:irliiiiccci~ccii\cp~rtiripstii,ii b) the pc<>plc.

(hl Establish indrpendcnt clcii<~rlilbodies that \\,IIIprcp;trc :1 reli;iblc ioting
Ilsi .inJ cnsLrc thlit the procc\.i i\ ~nip;irtialcinddcniocr;itic. ANNEXES TO TIIBCOUNTBK-MEMORIAL 429

(c) Establish or, if appropriate, update rulcs that guarantee the existence and

warticipation of political parties that are representative of the various opinion
groups.
(dj Establish a schedule ofelections and take measures to ensure participation
hy political partiesunder equal conditions.

CHAFSLIIR II

CommitmenlsRelaringro Securily Malfers

Secrioiz1. Commitmenlsreloringro arms

The Parties shall undertake to:

26. Stop the arms race in al1 its forms and initiale negotiations immediately
on the control and reduction of thc present armaments inventory and military
strength.
27. Refrain from introducing new weapons systems that mdy bring about
qualitative or quantitative changes in present war mdteriel inventories.
28. Refrain from using chemical. hiological, radiological and other types of
wcapons that may be considered excessivelyharmful or indiscriminate.
29. Suhmit its present wcapons and manpower inventories to the Verification
and Control Commission within 30 ddys from the date of signature of this Act.
Inventories shall be prepared in conformity with the basic definitions and cri-
teria contdined in the Annex and Point 30 of this section. Upon receipt of the
inventories, the Commission shall conduct such technical studies as mdy be
neceSSdryto set the limits of military strength in the States of the region and Io
stop the arms race, in conformity with the stages, lems and conditions agreed

upon.
30. The Parties agree to adopt the following basiccriteria for the purpose of
determining the levels of military strength in the Central Americdn States that
are consistent with regional stability and security requirements:
(a) No armed organization shall seek to estahlish a hegemony over other
individual armed forces.
(h) The definition of national security shall take into account the level of

economic and social development prevailing at a given lime and the level that
is sought.
(c) Formulation of the definition should he hased on comprehensive studies
of the following points:
(i) Perception of the interna1and external security requirements of the State.
(ii) Area.

(iii) Population.
(iv) Distribution of economic resources, infrastructure; and population across
the national territory.
(v) Length and features of land and maritime boundaries.
(vi) Ratio of military expenditures Io the GDP.
(vii) Ratio of military budget to government expenditures and comparison with
other social indicalors.
(viii) Geographic fcdturcs and situations and geopolitical conditions.
(ix) Highest level of military technology appropriate for the region.

31. The Parties shall undertake 10: lnitiate the necessary constitutional procedures to sign and ratify or accede to
international disarmament treaties and agreements, if they have not already
done so.

Section 2. Comnlitmentsrelaringtuforeign military bases

The Parties shall undertake to:

32. Refrain from authorizing the establishment of foreign military bases or
military schools in their territories.
33. Close existing military bases or training schools in their territories within
one year [rom the signature of this Act.

Section3. Commirmentsrelatingtoforeignmilituryadvisers

The Parties shall undertake 10:
34. Suhmit to the Verification and Control Commission a re~ort on foreien -
military advisers and other foreignelementsparticipating in military and security
activities in their territories within 60 days €rom the signature of this Act. The
definitionscontained in the Annex shall he taken in10account in the preparation
of the report. . .

35. Establish a gradua1 withdrawal schedule for the removal of foreign mili-
tary advisers and other foreign elements, including [a plan for] the immediate
withdrawal of military advisers located in operations and training areas. In
establishing the schedule, the studies and reçommcndations of the Vcrification
and Control Commission shall be taken into account.
36. With respect to advisers performing duties relaiing to the installation and
maintenance of military equipment, a control list shall beestahlished in confom-
ity with the terms set forth in their contracts or agreements. The Verification
and Control Commission shall use the control lis1 for the purpose of setting
reasonable limits on the number of such advisers.

Section4. Commitmentsrelaringro urmstrafic

The Parties shall undertake to:
37. Eliminate internal and external regional arms trafic supplying arms to
persons. organizations, irregular forcesor armed groups attempting to desiabilize

the governments of the States Parties.
38. To that end, estahlish internal control mechanisms at airports, runways,
port terminals, border crossing points, land, air, sea and river routes, and any
other points or means likely to be used for arms trafic.
39. Report presumed or proven arms trafic violations 10the Vcrificationand
Control Commission, providing the Commissionwith suficient information to
enable it to conduct the necessary investigations and to present such findings
and recommendations as it may consider appropnate. When applicable, the
following criteria shall be used, interalia,for verification purposes:
(a) Origin of the arms tralfic: the seaport or airport from which the weapons,

ammunition, equipment or supplies were shipped to Central America shall be
stated clearly.
(b) Personnel involved: the names of persons, groups, organizations, govern-
ments or government representatives who participated in the negolialion shall
be stated and it shall be indicated whether the case involves a purchase or a
donation. ANNEXES TO THE COUNTER-MEMORIAL 431

(c) Type of armaments, ammunition, equipment or other supplies: under this
heading shall be described the typc of weapon, caliber, country of manufacture,
whether the counvy of origin is not the same as the country of manufacture,
and the amounts of each type of weapon, ammunition, equipment or other
supplies.
fdJ Transportation: the means of ground, ocean or air transportation uscd to
reach the region, including the nationality thereof, shall be reported.
(e) Shipping routes: shipping routes used to reach the Central American
territory, including stops made and intermediate points used. shall be descnbed.
(f) Weapons, ammunition, and equipment storage facilities and storage
facilities for other types of supplies.

(g) Intra-rcgional trafic areas and routes: trafic areas and routes and par-
ticipation by the governments or by government or political organizations in the
arms traffic or consent given by them for such trafic shall bedescribed, including
~..~~ ~~,~~cv,with which such areas and routes are used.
(h) International transportation: determination shall be made of the means
of transportation used, the owners of such transportation, and the facilities
~rovided therefore bv . .ernments and government or political organizations.
kl.indcriirie fftght, unloiiding iimlilcrir~l.-thr~<~r~>~~uifp;ick.~~er"\parsch~tc
snd ihr.LI? ~Lliiiigbmt\ I~~ndtio l n the high sels ,h~llh sp~~iic~lly iJcniiiied
as such.
(i) Receiving units: persons, groups and organizations receiving the illegal
trafic shall be identified.

Secrion5. Commiinlenisrelaiing ro rheprohibirionofsitpporrfor irregirlarforces
The Parties shall undcrtake Io:

40. Refrain from lending political, military, financial or other support to
individuals, groups. irregular forces or armcd groups advocating the overthrow
or destabilizdtion of other governments and Io prevent, using al1means at their
disposal, the use of their territory for attacks on other States or for organizing
attacks, acts of sabotage, kidnappings, or criminal acts against them.

41. Maintain strict vieilance alona-their borders to prevent armed activities
against neighbouring &es.
42. Disarm and remove from border zones any group or irregular force
identified as being responsible for acts against a neighbouring State.
43. Deny the use of and dismantle logistical and operational support iiistal-
lations and fiicilitiesin their territories uscd to launch activitiesagainst neighbour-
ing governments

Secrion6. Con~mirmeiirrselaringro rerrorism,subversion andsaboroge

The Parties shall undertake Io:

44. Refrain rrom lending political, military, financial or other support 10
subversive, terrorist or sabotage activities attempting to destabilize the govern-
ments of the region.
45. Refrain from organizing, instigating, or participdting in acts of terrorism.
subversion or sabotae..in another State or from permittinz acti-ities to be
organircd uithin iheir icrrit<>ricrILr ihc purpobc of commiiting s~chicts
46 Ob,crve thc I;>lluwint:in1crn:iliuiialtreatir. ;incl3grcc.mcntr.

(a) Convention for the Suppression of Unlawful Seizure of Aircraft (Hijack-
ing). Done al The Hague.432 MlLlTARY AND PARAMILITARY ACTlVlTlFS

(b) Convention to Prevent and Punish the Acts of Terrorism taking the Form
of Crimes Against Persons and Related Extortion that Are of International
Significancz.

(c) Convention for the Suppression of Unlawful Acts Against [the Safety of]
Civil Aviation.
(d Cin\,ention on the Prcvsntl<in and Puni~hni:iii oi Crimes Against
Intcrnatitinally ProiecieJ Per,o!is including I>ipl<imaticAgcnis
tri Intcrn.iti,inal Conicnii\>n Againsi the Taking \ilI\\>u<ges.

47. Initi:itcilthc) haie noi .<lrc:idydone .;CIcr0iirtitiiii.xpr<iceiluresio >ign
2nd ratif) or acccde Io ihe iniern.iiioii:il tresticr dnJ igrecniciith rcicrrc<IO in
the preceding paragraph.
48. Respect the commiiments enunciated in this section without prejudice to
other treaties and international agreements on diplomatic and territorial asylum.

CHAFTER IV
EconomicandSociul Commirmenrs

The Parties shall undertake to:
49. Adoot immediatc and effectivemeasures to reaffirm. i~.~.ve and~ ~s~ ~c-
ture the central American economic integration process and to harmonize it
with the various forms of political, economic and social organization of the

countries of the area. Such measures shall also seek to strengthen the existing
economic integration institutions.
50. Conclude agreements and adopt measures to revitalize intra-regional trade
within the legal framework of economic integration and in the spirit thereof.
51. Refrain from adootine or sunoorting coercive or discriminatorv measures
likely to hamper developmeit of thëinteg;ation process and normal ;rade.
52. Avoid the adoption of unilateral measures and discriminatory practices
tending to hamper intra-regional trade.
53. Adopt measures de2gned to strengthen financial institutions, inter aliu,
the Central American Bank for Economic Integralion, supporting its Sund rc-
quests while preservin~ the decision-making Dowerof the ciuntries of the region,
-. -
and diversif$ng its oierations.
54. Eliminate intra-regional exchange restrictions and study the possibility of
unifying exchange rates for intra-zonal trade, while endeavouring to adopt a
common exchanee rate oolicv vis-à-vis the outside.
55. ~e-establiyh the multiiateral payments machinery in the Central American
Fund of the Common Market and increase payments made through the Central
American Clearing House.
56. Initiale new-sectoral projects of regional or suhregional co-operation, such
as the hydroelectric power production and distribution system, the rcgional food
security system supply, and any others which help to create greater and lasting.
links of interdependence.

57. Jointly analyse formulas for solving the problem of external indebtedness,
based on an evaluation of each country. taking into account the critical economic
situation of the area. the payment çapacity of the countries of the region and
the additional flow of resources nceded to meet requirements for economic and
social development.
58. Speed the process of drafting and subsequent implementation of a new
Central American customs régime. ANNEXES 'IO THE COUNTER-MI!MORIAL 433

59. Adopt joint measures for the defencc and promotion of their exports,
integrating, in so far as possible, the processing, marketing and transportation
of their products.

The Parties shall undertake to:
60. Completc, if they have not already done so, the constitutional procedures
for acceding to the 1951Convention on the Status of Refugees and to the 1967
Protocol on the Status of Refugees.
61. Adopt the terminology laid down in the aforementioned Convention and
~..tocol in order to disti-euish rcfueees from other cateeories of immierants.
62. Following accession, estahlishihe interna1 machinery required toenforce
the provisions of the aforementioned Convention and Protocol.

PSrl II
Recommendations

CHAPTER 1

Recummenduiionson P(11iiicuM l arters

The Parties hereby adopt the following recommendations:
1. That the leeislative bodies of the Central Amencan States hold regular
meetings in alternating venues in order to exchange experiences, contribute to
the reduction of tensions and promote bettcr communication and closeness
among the countries in the area.
2. That the legislativebodies of the Central American States take measures to
estahlish relations with the Latin Ainerican Parliament and ils working goups.
3. That the electoral supervisory bodies in each Central American State ex-
change information and experiences in their field, and that thcy compile, for

purposes of comparative study, the election laws and related regulations in force
in each country.
4. The electorÿl supervisory bodies may bc prescritas ohservers, at the various
stages of the elections held in the region. For this purpose, an express invitation
from the Central American country holding the clcction shall be required.
5. The electoral supervisory bodies of the region shall hold regular technical
meetings ai the location and with the agenda agreed by consensus at each pre-
ding meeting. The procedures foi convening the first meeting shall be deter-
mined by means of consuliations among the Central American foreign minis-
tries.

CHA~R II
Reconlmendutionon Securily Marrers

Section 1. Recommendarionsin ihelield of ierrorism, subversion or sabotage

The Parties hereby adopt the following recommendation :

6. Prevent participation in criminal acts within their respectiveterritories by
persons belonging to foreign terrons1 groups or organizations, by means of co-op-434 MlLlTARY AND PARAMILITARYACTIVITITS

eration among immigration and police authorities as well as among the
appropriate civilian authorities.

Secrion2. Recommendarions ru esrablishmacliineryfor co-ordinurionof direct
comniunicarion syslems

The Parties hsreby adopt the following recommendations:
7. Establish a region-wide communications system ensuring immediate and

timely contact among the competent governmental and military authorities.
8. Estahlish joint security commissions in order to prevent or resolve conflicts
between neighbounng States, and to deal with any other matters of common
interest. They rccommend, in particular, the establishment of such commissions
hetween the Governments of Honduras and Nicaragua and those of El Salvador
and Nicaragua.
9. Reactivate and strengthen already existing bodies of a similar nature, such
as the Costa Rica-Nicaragua commission.

Recontmendariono sn Economic andSocialMarrers

Secrion1. Recommendarionis n ihe economicand,socialfield.s

The Parties hereby decide to accept the following recommendations:

10. Convene the Central American Economic and Social Council by July 30,
1984, at the latest, in order to discuss the institutional re-establishment of the
process of Central American economic integration.
II. Request ECLA and SIECA [Central American Economic System] to
undertake a joint study of the necessary measures and make the appropriate
recommendations to the Central American Economic Council, in order to
promote recovery and supervision of the cconomics of the region and of the
Central American Common Market.
12. Undertakejoint démarcliesto international specialized agencies, especially
in the fieldsof employment, food and health, with the view to setting up special
programmes for the region.
13. Officiallyconstitute the Central American Monetary Council, undertaking
to adopt the measures necessary to do so.

14. Support at the highest level the ellorts by CADESCA, jointly and
in ço-ordination with subregional bodies, to obtain from the international
community the resources necessary for Central America's economic reacti-
vation.
15. Urge the countries which have expressed support for the eRorts of the
Contadora Group to manifest the support by increased Rowsof financing on an
urgent basis so that Central America may obtain the resources necessary to begin
to reactivate its intra-regional trade. In that field, as well as any other which
contributes to the economic and social devclopment of the region, CADESCA
shall lend ils full support within the framework of ils functions and pro-
grammes.
16. With the co-operation of the ILO, apply international labour standards
and conform their domestic leeislation thereto. oarticuiarlv in ~~ose areas which
contribute to the reconstruction of Central American Societies and economics.
Likewise, with the 1LO'sco-operation, implement programmes for creation of ANNliXFSTO THE COUNTER-MEhtORLAL 435

newjobs, training of workers and useof appropriate technologiesaimed al better
utilization of the labour force and natural resources of each country.
17. Request the Pan American Health Organization and UNICEF, as well as

other development agenciesand the international financialcommunity to support
the Financingof the "Plan of Priority Health Needs of Central America and
Panama" approved hy the Ministers of Health of the Central American lsthmus
meeting in San Jose, on March 16, 1984.

Section2. Recommrndution.o ~n refugee malters

The Parties adopt the following recommendations:
18. That consultative machinery be established between Central American
countries and representatives of the government ofices in charge of the refugee

problem in each State.
19. Support the work of the UNHCR in Central America, and establish direct
means of CO-ordinationin order to facilitate ils efforts Io cdrry out ils man-
date.
20. That any repatriation of refugees be voluntary, on the basis of expressed
~.~ividual wishes. and undertaken nith the CO-ooerationof the UNHCR.
21. That tripartite commissions composed of representatives of the sending

State, the receiving State and the UNHCR be set up in order to facilitate
repatriation of refugees.
22. Strengthenprogrammes ofassistanceand protection for refugees,especially
in the klds of health. education, employment and security.
23. That programmes and projects be set up with a view to permitting the
refugees IOachieve self-sufficiency.
24. That the UNHCR or other international agencies be asked to help 10

train officiaisin each country~resp~nsible for providing protection and assistance
to refugees.
25. That the internationalcommunity he asked to provideimmediateassistance
to Central American refugees, both directly, through hilateral or multilateral
agreements, and through the UNHCR and other agencies.
26. With the assistance of the UNHCR, identify other possible receiving
countries for Central American refugees. Inno case shall a refugeebe transferred

to a third country against his will.
27. That the governments of the region take the necessary steps 10 eradicate
the causes giving rise to the refugee problem.
28. That once the bases for voluntary or individual repatriation have been
agreed, with full guarantees for the refugees,the receivingcountries allow official
delegations from the sending countries, accompanied by representatives of the
UNHCR and the receivingcountry, to visit the refugee camps.

29. That receivingcountries in CO-ordinationwith the UNHCR, facilitate the
arrangements for the exit of refugees in cases of voluntary and individual
.~-~tria~ion.
30. Eriabli\h ronirol niediur r..in counirici grantine rciuge in ordcr to prcvcni
rel'uçec*irom wri8c.p.iiing in ;ictiviricsapinst thc scndmg ruuniry. aluayb w~ih
due;espcct foi the humai rights of refugees MILITARYAND PARAMII.ITARYACTIVITIS

Part III
Commitments Relating to Verificationand Control

The Parties shall undertake to:

1. Create, in common agreement with the member countries of the Contadora
Group, a Verification and Control Commission for the commitments agreed to
in this document.
2. The Commission shall be composed of the following:
(a) Four commissioners representing States recognized to beimpartial and to
have a genuine interest in contributing to the solution of the Central American

crisis. They shall be nominated by the Contadora Group and approved by the
parties having a voice and a vote on the decisions of the Commission. Co-
ordination of the work of the Commission shall be rotated in accordance with
the provisions of the bylaws;
(h)A Latin American ExecutiveSecretary appointe* by the ContadoraGroup
in agreement with the parties having a voice and a vote on the decisions of the
Commission. The Executive Secretary shall be responsible for the permanent
ooeration of the Commission:
(c) A representative of the United Nations Secretary-General and a representa-
tive of the OAS Secretary General, acting as ohservers.
3. The Commission shall be established within sixty (60) days from the
signature of this Act.
4. Once established, the Commission shall draw up ils own hylaws.

5. The Verification and Control Commission shall be a Demanent and
autonomous body.
6. The Commission shall have three sections:
(a) A Security Affairs Section;
(h) A Political Affairs Section;
(c) An Economic and Social Afïairs Section

7. Each section shall have a Technical Secretary designated by the Commission
memhers who shall he responsible for the operation of the section.
8. The sections will co-operate with the Commissioners in the verification and
control of the various commitments agreed to in this document in conformity
with the guidelines issued by the Commission.
9. The sections shall operate according to the following common roles and
procedures :

(a) They shall receiveco-operation and assistance from the Parties in carrying
out their duties.
, , Thev shall ensure the confidentialitv of information-gathered in the course
of investigations.
(c) They shall suhmit periodic reports of their activities to the Commission
so that it can transmit them to the Ministers of Forcien AlTairsof the Central
American countries and the Contadora Group States.
(d) They shall make recornmendations to the Commission for the adoption
of its decisions.

10. The Security AfTairsSection shall be composed of the Commissioners and
the Executive Secretary and, in carrying out ils activities, il shall be assisted by ANNEXES TO THE COUNTER-.WMORIAL 437

the appropriate Technical Secretary and advisers designatcd by each one of the
Parties. Its dulies shall be:

(u) Receive the current arms, installations and manpower inventories liom
the Central Amcrican States, prepared in accordance with the provisions of
. .... . ...
(h, ConJu;~ lechniclil,tudies 10 br. uir.J in c,iabli,hing military sircngih Iimitr
iur the Siales of ihc r~,-iunin ~rczi>rdsncrn.ith ihr. h:iii< critcria e~tahli;hcd in
Annex B.
(c) Verify that no new arms are introduced that may qualitatively or quan-
titatively change present inventories and that no weapons banned by this Act

are utilized.
(d) Establish a register of al1conimercial transfers of arms by States in the
region, including donations and other transactions arranged under military
assistance agreements with other governments.
(e) Verify the dismantling of forcign military installations as established in
this Act.
(f) Receive the roster of foreigu niilitary advisers and verify their withdrawal
according to the agreed timetable.
(g)Verifycompliance with this Act concerning traficking in armsand examine
any reports of violations.
(1,) Verify cornpliance with this Act concerning irregular forces and non-use
of their own territories for destabilizing activities against any other State and
examine any reports of violations.
(i)Verify compliance with the notification procedures for national or joint

military maneuvres stipulated in this Act.
II. Thc section on Seclirity Affÿirs shall operate in accordance with the
following rulcs and procedures. It shall:

(u) Receive any report of vioiations of the commitments relating to seçurity
undertaken in this Act, provided tliat il is duly founded. 11shall inform the
Parties involved of the reoort and shall initiale whatever investi-ations il deems
appropriate.
(h) Conduct its investigations through on-site inspection, compiling evidence
and anv other orocedure it considers neccssarv for the wrformance of ils func-
tions.
(c) In cases of reports of violations of cammitments relating to security affairs
undertaken in this Act, prepare a report that the Parties involved shall undertake
to accept. This report shall also be communicated to the Ministers of Foreign
Relations of the Central American countries and to the Contadora Croup for
DurDosesof final ~rovisions4 and 5 of Part 111of this Act.
. .
I? 'l'hi.I'oliticiilAITdirsScitio~irh;ilhr.~<~mposed oi ihc ~oinniissioner\ and
Oie I:ietuiiic, Seirsiar) 2nd >h.illpcrform 11.iunctioni ivith the support ol tlic
Technical Secretary and perçons of recognized competence and impartiality
nominated hy the States memhers of the Contadora Croup and approved hy the
Parties. In the performance of its functions, the section shall:

(a) Receive and evaluate reports by the Parties concerning the rnanner in
which they proceed to comply with the commitments relating to national
reconciliation, human rights and elecloral processes.
(b) Rcceiveany reports concerning violations of the commitments relating to
political affÿirs undertaken in this Act, provided that it is duly founded. It shall
inform the Parties involvedofthe reports and shallinitiale whatever investigations
it deems appropriate.438 MILITARY AND PARAMLLITARYACTIVITIES

(c) In casesof reports of violations of commitments relating to political aKairs
undertaken in this Act, prepare a report that the Parties involved shallundertake
to accept. This report shall also be communicated to the Ministers of Foreign
Relations of the Central American countries and to the States members of the
Contadora Group for purposes of finalprovisions 4 and 5 of Pari IV of this Act.
(d) Participate in observing the electoral processes conducted in each of
the Parties.
13. The Economic and Social AlTairsSection shall be composed of the Com-
missioners and the Executive Sccretary and shall carry out its activities with
the support of the Technical Secretary and a group of advisers consisting
of a representative of each of the following organizations: ECLA, SIECA,
CADESCA, UNHCR, CABEl and the Central American Monetary Council.
In the performance of its functions,il shall:

(a) Receive the reports by the Parties concerning their progress in complying
with the economic and social commitments.
(b) Conduct an annual evaluation of advances in compliance with economic
and social commitments, relying on the information furiiished by the Parties and
the competent international and regional organizations.
. . Submit . .oosals in its annual reoort to stre-ethen r-aional co-ooeration
and promcitcrcgiiinal dc\,elopmrnt plans. with p~rtiiulal emphxw on the arpcct,
mcniionerl in ihc cnnirtiiimentr in thir ,\ci. ;idlldiicnilon10 non-c.impliinr.r
with the aforementioned commitments.
(d) The reports and studies prepared by the section shall be communicated to
the Ministers of Foreign Relations of the Central Amrrican countries and the
Statcs members of the Contadora Croup.

Final Provisions:
1. The commitments undertaken by the Parties in this Act shall be legal in
nature and, therefore, binding. These commitments shall enter into force on the
date of sienature of this Act.
2. As 2 the date of signature of this Act, the Parties shall make every elfort
to implement the recommendations contained therein and shall attempt to
co-opirate among themselves to this end.
3. The Parties shall adjust their respective policies to conform to the letter
and spirit of the whereas clauses of the Preamble to this Act.
4. Any problem or dispute concerning the implementation of the legalcommit-
ments contained in this Act that cannot be resolved bv the Verification and
~ontrol commission as established in Part III of this ~cishall be submitted for
consideration by the Ministers of Foreign Relations of the Parties and the
members of the Contadora Grouo or their hiah-level reoresentatives. To this end
they shall meet at the petition of'any of the Parties or ihe Commission.

5. The Ministers of Foreign Relations of the States members of the Contadora
Group shall use their good otficesto enablc the parties concerned to resolve the
specific situation submitted for their consideration. If that recourse fails, they
may suggest another peaceful means of resolving the dispute in conformity with
Article 33 of the United Nations Charter.
6. The Ministers of Foreign Relations of the States members of the Conta-
dora Group shall evaluate the measures taken by the Parties to implement the
recommcndations contained in this Act and shall suggest proposals they deem
relevant.
7. This Act shall be deposited with the States members of the Contadora
Croup. ANNEXESTO THE COUPrTER-MEMORIAL 439

8. This Act shall be registcrcd witli the United Ndtions General Secretariat in

conformity with Article 102of the United Nations Charter.

Done in the Spanish language in nine original copies al the city of
on , 1984.

For the Government of the Republic of Costa Rica
For the Government of the Rcpublic of El Salvador
For the Govemment of the Republic of Guatemela
For the Government of the Republic of Honduras
For the Government of the Rcpublic of Nicaragua

Witnesses
For the Government of Colombia
For the Govemment of Mcxico
For the Government of Pdndma

For the Government of Venezuela. MILITARY ANI> PARAMILITARYACTlVlTlliS

Anncx97

BROADCAS SA,NJOSERADIORELOJC, OSTRICA,14JUIY1984,ASTRASSCRIREU
INFOREIGNBROAI>CA ~MORMATION~~~RVICE(FB~ C)OSTARICA),16JULY1984;
SANSALVADO RAUIOCADENA 2,8 JUNI:198ASTRANSCRIB NOFBIS, 2 JUIY
1984(EL SAI.VAI>OLA; ESTRI~LDE PANAMA 2, JUNI1984,ASREPRINTE NI

FBIS,28JUNI~1984(HONDURASP)A; NAMAA,CAN, 4 Juiz 19ASTRANSCRI~I~I>
IN FBIS, 5 Juir 1984 (GUATEMALAM);ANAGUA R,AUIOSANDINONETWORK,
10JULY1984,AS TRANSCRIR ENOFBIS, II JULY1984(NICARAGUAM); NAGUA
DOM~STIC SERVICE2,5 JULY1984,AS TRANSCRIBB ID FBIS,25 JULY1984
(NICARAGUA)

/NII~reproduced]

Anncx98

FSLN COMANDANH TNRYRUIZ,BARRICADM A, NAGUA2, JULY1984

(ENGLISHTRANSLATIOPROVIDBD)

[Nui reproduced]

Anncx99

Annex100

"NICARAGUA HAILS'FLUID'ALKSWITH US OSSECURITYW ", ASHINGTONPOST.
12AUGUST 1984

/Nui reproduced] ANNEXES IOTHECOUNTER-MEMORIAI

hnnex 101

(See 1,Exhihitr Submirted by the United ffAmerica in Conneclion wirh

the Oral Procedure on the Request fur the Indication of Provirional Meusures,
p. 2751

Annex102

COMMUNICA TLTHNEREGISTR ARTHECOUR TROMCOST AICA ,8APRIL
1984

[See 1, Exhihits Subnzitted by the United States of America in Connection with

the Oral Procedure on the Request,for fhr Indicution of Provi.siuna1Measi<res,
pp. 305-3061

Annex103

(See 1. Exhibits Subrfrittedby the United State.~of America in Connection with
the Orul Procedure on the Reyuest for the Indicution of Provisional Meosures,

pp.306-3071

Annex 104

[See1,Exhibils Suhmitled by the CiniredStates of America inConnection ivitli
the Oral Procedure on the Reqlrestfnr ihe Indicution of Provisional Meusures,
pp. 307-3091 MlLlTARY AND PARAMlLlTARYACTlVITLES

Annex 105

[Sec 1,Exhibits Submitted by the United States of America in Connectionwirh
Ihe Orul Procedure on the Requestfor the Indicationof Provisional Measures,
p. 3101 ANNEXBS 70 TIIECOUNTER-MEMORIAL

Annex106

M~~I«IusI>L'\ U!VJUIIP Fo\II K I)I:I.I.COxCI:K\Ixi;ACCIPT.\NCr RY 1111.IJSIIHJ
Si,\ri:iirifri.C~~~II~L~I.JSU~IHIIIIIIIY 111III~IS~~R~~ IASIII.COLIK Itv

The United States, since its formation, has led in promoting a reign of law
and justice as between nations. In order to continue that leadership, we should
now accept the jurisdiction of the International Court of Justice. If the United
States, which has the material power to impose its will widely in the world,
aerees instead to submit to the impartial adiudication of its lenal çontroversies,
fhat will inaugurate a new and profoundly significant international advance.

Conversely, failure to take that step would be interpreted as an election on our
part to rely on power rather than reason.
The procedure relating to compulsory jurisdiction is set forth in Article36 (2)
of the Court Statute. It provides for a declaration recognizing as "compulsory",
on a basis of reciprocity, the jurisdiction of the Court "in al1 legal disputes
concerning: a. The interpretation of a treaty; b. any question of international
law; c. the existence of any fact which, if estahlished, would constitute a hreach
of an international obligation; d. the nature or extent of the reparation to be
made for the breach of an international obligation".
That declaration the United States ought now to make.

11

There are, however, certain matters which can usefully beclarified. This üould
be done by the terms of the declaration.

1. Advisory opinions. - The compulsory jurisdiction should presumahly be
limited to disputes which are actual cases between States, asdistinct from disputes
in relation to which advisory opinions may be sought.

Comment: The jurisdiction of the Court comprises not only cases, but
also matters as to which advisory opinions may be sought (Stat., Ait. 36
(1)). Probahly any declaration under Article 36 (2) applies only to actual
cases or controversies between States. But this isnot wholly free fromdoubt,
as paragraph (Z) ,nstead of repeating the word "cases", speaks of "legal dis-
putes" - a phrase which might comprehend difTerencesof opinion between

States as to some legal question suhsequently submitted to the Court
for advisory opinion. If this is not the understanding upon whicli the
United States accepts compulsory jurisdiction, it would he preferable so to
indicate in the declaration rather than leave the matter open to possible
subsequent controversy.

2. Reciprocily. - Jurisdiction should be compulsory only when al1 of the
other parties to the dispute have previously accepted the compulsory jurisdiction444 .UILITARY AND PARAMILITARY ACTIVlTlES

Comment: The Court Statute embodies the principle of reciprocity. It
provides for compulsory jurisdiction only "in relation to any other State
accepting the same obligation" (Art. 36 (2)). Oftentimes, however, disputes,
particularly under multilateral conventions, give rise to the same issue as
against more than one other nation. Sincethe Court Statute uses the singukar
"any other State", it might be desirable to make clear that there is no com-
nulsorv obli-ation to submit to the Court merelv because one of several
partiel to such dispute is similarly bound, the others not having bound
themselves 10become parties hefore the Court and, consequently, not being
subject to the Charter provision (Art. 94) requiring members to cornpli

with decisions of the Court in cases to which they are a party.
3. Internationallaw. - If the basic law of the case is not found in an existing
treaty or convention, to which the United States is a party, there should be prior
agreement as to what are the applicable principles of international law.

Comment: The Stdtute, Article 36 (2) recognizes that the jurisdiction of
the Court relates only to "legal" disputes. The clear intent is not to require
nations to submit to either judicial legislation or to dictates of political ex-
pediency. Subdivisions a, c, and d of Article 36 (2), quoted above (inter-
oretation of treaties; establishment of facts; and measure of damaee).
;eltateto matters susceptible of judicial determination. However, subdiviGo"
b refers to "any question of international law". Article 38 of the Statute
goes on to recognize as international law not merely international conven-
tions, but "international custom", "general principles of law recognized by
civilized nations", and "the teachings of the most highly qualified puhlicists

of the various nations". If the applicable rule of international law is so
uncertain that resort must be had to alleged custom, teachings, etc., then
the Court can scarcely avoid indulging in a large amount of judicial
legiskation or political expediency. The United States can properly refrain
from subjecting itself to that.
If a case falls under Article 36(2)(b) and if the applicable legal principles
are not ascertainable from a treaty or convention to which the United States
is a party, they could be stipulated before the obligation arises to submit to
the jurisdiction of the Court. That was the procedure followed in the case
of the Alabama arbitration. Then the applicable law was so vague and un-
certain that Great Britain and the United States first negotiated the Treaty
of Washington (1871) to establish the "rules to be taken as applicable to
the case".
The suggested safeguard is the more appropriate because a majority of
the judges of the Court are drawn from countries which are not common

law countries, but which depend almost wholly on written laws and decrees.
Therefore, such judges can hardly he expected to be adept in the proper use
of common-law methods.
4. Domestic jirrisdiction- Compulsory jurisdiction of the Court should not
extend to matters which are essentially within the domestic jurisdiction of the
United States

Comment: Article 2 (7) of the Charter, among other things, provides, in
substance, that nothing contained in the present Charter shall require the
Members to submit to settlement under the Charter matters which are
essentially within the domestic jurisdiction of any State. The declaration
under the Statute should preserve, and not seem to waive, that limitation.
If condition 3 (supra) is expressed in the declaration that would make it ANNEXES TO T11E COUNTER-MEMORIAL. 445

unnecessary to stipulate who decides what is domestic, for that condition
would prevent encroachment on domesticjurisdiction byan allegedunwritten
growth of international law not recognized by the United States.

5. Other tribunals. - Compulsory jurisdiction of the Court should nut extend
to disputes the solution of which may he entrusted to other tribunals.

Comment: Article 95 of the Charter expressly provides that Memhers
may entrust the solution of their differences to tribunats other than the
International Court of Justice. This right should be reserved. It may be that

dis.u~e~ ~ ~ween ~~mhers o~- the -a~ American Union could nre~~rablv he
subjected to hemispheric procedures. Also, any treaty with reference Io the
establishment of an atomic development authority may provide for a sl~ecial
body, to adjudicate summarily cekain types of disputes.

6. Time-/;mit. - Compulsory jurisdiction should, initially, be for a liinited
period only, say, 5 years, with a right thereafter to terminate on reasonable
notice, say, 6 months.

Comment: Article 36 (3) of the Court Statute expressly provides thit the
declaration accepting compulsory jurisdiction may be "for a certain time".

It se~ms ~esirable to avail of this orivileee. The Court and its oersonnel are
new. Its judicial temperament andabiiity are still to he tested.if the United
States accepts compulsory jurisdiction for a trial period only, that will not
merelv serve. neeativelv. to nrotect the United States: it will. affirmativelv.
pro\iiIe an incciiti\s to iri\ure ihilt tlic :onipoiiti<~nand luristisning <nithe

Cuiiri uill incrrd,ingly inspire .<>niiden;<i:n BI, high juJici.il q~ilii)

III
The forcgoing analysis may leavethe impression that the proposed acceptance

of the comnulsorv iur,s.iction of the International Court of Justice is but a short
;inclicnrar~vejtcp ;ili,ng the pirtli to .i rule .il Iaa. 11 L, tr~e thtit tliat path 1, :i>
,ci so unirieJ tliiltit nould hc recklcrs to priicecd prc;ipit<itclf '1he C<iii~tIiiis
$et to win the confidence of the world community. Furthemore, courts are
designed to apply law, not make it, and international law has not yet developed

the scope and definiteness necessary to permit international disputes generally to
he resolved by judicial rather than political tests. There is nothing permanent
about these limitine factors. There is eood cround to -oue that the Court will
quickly demonstrate the judicial qualifications and temperament necessary to
encourage nations to enlarge their use of the Court. The General Assembly of

the Uniied Nations will presumahly carry out its mandate to encourage the
,roe-essive develoumcnt of international law and its codification (Charter. Art.
13 i1 i <r j.Suc11iIeiel<ipnicrir;. iiht.'hn,i nation Gin singlr.-h2ndcdl.v3,sJrc'. ilri,
cs,ciiti.il10 the crcation di :i a,.>rlJ ui 13u itnd Ju~tlic. ,\s lhoic iIei.el<~piiient,
occur thr. initiiil ,ici, uhirli thc Cniir.il Siater tioii tdke\. in itrclt of tiriii.iund

moral significance, will assume greatly increased practical significance.
Respectfully suhmitted.

July 10, 1946.
(Signed) John Foster DULI.ES. MILITARAND PARAMILITARACTlVlTlES

REPORTOF THESENATFEOREIGRELATION CO~WMI~E N,O.1835,79~~CONG.,
20 SESS(.1946)

[See 1, Exhibio Submitted hy the UniredSiaies of America in Conneciionwiih
rhe Oral Procedure on the Requesifor ihe Indicoiionof Provisional Measures.
pp. 310-3211

Annex108

NOTE FROMTHEGOVERNHE NTTHEUNITED STATESOTHESECR~TARY-GENERAL

OF THEUNITEDNATION6S, PRIL1984

[See 1,Nicaragua Memorial,AnnexII, Exhibir B]

Amex 109

UNITEDSTATEDSEPARTME OFTSTATE,EPARTMENT SATL~ME~T 8,APRIL1984

[See1,Nicarapo Memorial, AnnexII, Exhibir Cl

Annex110

(Nor reproduced]ANNEXES TO THE COUNTER-MEMORIAL

Annex 111

CERTIFICATION

[Nor reproducedj