You are on page 1of 22

* bok * cj * tiff * gem * tin *

NICARAGUA v. UNITED STATES (1984) 1984 I.CJ. 169 (Provisional Measures). 1984 I.CJ. 392 (Jurisdiction).

public international law

uplaw 2009 b

*See the additional notes on pp.645-646 to know of some pertinent questions raised and a short description of dissents. This digest does not include the Statement of the Legal Adviser of the State Department (pp.646-648).

Parties: Republic of Nicaragua and the Government of the United States of America CASE BACKGROUND: 1. NICARAGUA FILED AN APPLICATION INSTITUTING PROCEEDINGS AGAINST THE US. On 9 April 1984 the Government of Nicaragua filed an Application instituting proceedings against the United States of America, accompanied by a request for the indication of provisional measures, in respect of a dispute concerning responsibility for military and paramilitary activities in and against Nicaragua. As basis for the jurisdiction of the Court it invoked one declaration accepting the Court's jurisdiction deposited by the two States under Article 36 of the Statute of the Court. 2. US APPOINTS AN AGENT. On 13 April 1984, by a letter from its Ambassador to the Netherlands, the US Govt informed the Court that it had appointed an Agent for the purposes of the case while indicating its conviction that the Court was without jurisdiction to deal with the Application and was a fortiori without jurisdiction to indicate the provisional measures requested by Nicaragua. 3. COURT DECISION RE THE REQUEST FOR PROVISIONAL MEASURES. Having heard the oral observations of both Parties on the request for provisional measures at public sittings on 25 and 27 April 1984, the Court held on 10 May 1984 a public sitting at which it delivered an Order indicating such measures. The operative provisions are as follows: "THE COURT, A. Unanimously, Rejects the request made by the United States of America that the proceedings on the Application filed by the Republic of Nicaragua on 9 April 1984, and on the request filed the same day by the Republic of Nicaragua for the indication of provisional measures, be terminated by^ the removal of the case from the list; B. Indicates, pending its final decision in the proceedings xxx the following provisional measures: 1. Unanimously, The United States of America should immediately cease and refrain from any action restricting, blocking or endangering access to or from Nicaraguan ports, and, in particular, the Iaying of mines; 2. By fourteen votes to one, The right to sovereignty and to political independence possessed by xxx Nicaragua, xxx should be fully respected and should not in any way be jeopardized by any military and paramilitary activities which are prohibited by the principles of international law, in particular the principle that States should refrain in their international relations from

the threat or use of force against the territorial integrity or the political independence of any State, and the principle concerning the duty not to intervene in matters within the domestic jurisdiction of a State xxx 3. Unanimously, xxx United States xxx and xxxNicaragua should each of them ensure that no action of any kind is taken which might aggravate or extend the dispute; 4. Unanimously, xxx United States xxx and xxx Nicaragua should each of them ensure that no action is taken which might prejudice the rights of the other Party in respect of the carrying out of whatever decision the Court may render xxx; C. Unanimously, Decides further that, until the Court delivers its final judgment xxx, it will keep the matters covered by this Order continuously under review; D. Unanimously, Decides that the written proceedings shall first be addressed to the questions of the jurisdiction of the Court to entertain the dispute and of the admissibility of the Application; And reserves the fixing of the time-limits for the said written proceedings, and the subsequent procedure, for further decision." 3. PARTIES IMMEDIATELY NOTIFIED THE PARTIES OF THE INDICATION OF THESE MEASURES. In accordance with Art 41, para 2, of the Statute of the Court, the Registrar immediately notified the Parties and the Security Council of the indication of these measures. 4. TIME LIMITS FOR THE FILING OF PLEADINGS. By an Order of 14 May 1984 the President of the Court fixed the following time-limits for the filing of pleadings addressed to the questions of jurisdiction and admissibility: 30 June 1984 for the Memorial of Nicaragua, and 17 August 1984 for the Counter-Memorial of the United States. These pleadings were filed within the prescribed time-limits. 5. EL SALVADOR DECLARES INTENTION TO INTERVENE. On 15 August 1984, before the expiration of the time-limits, the Republic of El Salvador filed a Declaration of Intervention under Article 63. In its Declaration, El Salvador stated that the purpose of its intervention was to enable it to maintain that the Court had no jurisdiction to entertain Nicaragua's application. In this connection, it referred to certain multilateral treaties on which Nicaragua relies in its dispute with the United States. 6. COURTS HOLDING REGARDING THE INTEVENTION. Having regard to the written observations on that Declaration submitted by the Parties in accordance with Article 83, on 4 October 1984 the Court made an Order, the operative provisions are as follows: "THE COURT, (i) By nine votes to six,

Always will b

* bok * cj * tiff * Gem * tin * Decides not to hold a hearing on the Declaration of Intervention of the Republic of El Salvador. (ii) By fourteen votes to one, Decides that the Declaration of intervention of the Republic of El Salvador is inadmissible inasmuch as it relates to the current phase of the proceedings brought by Nicaragua against the United States of America. 7. NICARAGUA APPOINTS JUDGE AD HOC. From 8-18 October 1984, the Court held nine public sittings. The Judge ad hoc appointed by Nicaragua under Article 31, Mr. C.-A. Colliard, participated in the work of the Court from this stage of the proceedings. 8. COURT DELIVERS JUDGMENT. At a public sitting held on 26 November 1984, the Court delivered its Judgment. PROCEEDINGS AND SUBMISSIONS OF THE PARTIES (PARAS. 1-11) I. The Question of the Jurisdiction of the Court to Entertain the Dispute (paras. 1283) A. The Declaration of Nicaragua and Art 36, para 5 of the Statute of the Court (paras. 12-51) 1. NICARAGUAS BASIS FOR COURT JURISDICTION. To found the jurisdiction of the Court, Nicaragua relied on Article 36 and the declarations accepting the compulsory jurisdiction of the Court made by the US and itself. 2. THE RELEVANT TEXTS AND THE HISTORICAL BACKGROUND TO NICARAGUA'S DECLARATION (PARAS. 12-16). On 6 April 1984 the US deposited with the UN Sec-Gen a notification signed by the Secretary of State, Mr. George Shultz, referring to the declaration of 1946, and stating that: "the aforesaid declaration shall not apply to disputes with any Central. American State or arising out of or related to events in Central America, any of which disputes shall be settled in such manner as the, parties xxx may agree. "xxx this proviso shall take effect immediately and shall remain in force for two years, so as to foster the continuing regional dispute settlement process which seeks a negotiated solution to the interrelated political, economic and security problems of Central America." In order to be able to rely upon the United States declaration of 1946 to found jurisdiction in the present case, Nicaragua has to show that it is a "State accepting the same obligation" as the United States within the meaning of Article 36, paragraph 2. For this purpose, it relies on a declaration made by it on 24 September 1929 pursuant to Article 36, paragraph 2, of the Statute of the Permanent Court of International Justice, which provided that: "The Members of the League of Nations and the States mentioned in the Annex to the Covenant may, either when signing or ratifying the Protocol

2 to which the present Statute is adjoined, or at a later moment, declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other Member or State accepting the same obligation, the jurisdiction of the Court " in any of the same categories of dispute as listed in Art 36, para 2. Nicaragua relies further on Art 36, para 5, which provides that: "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 be 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 Judgment recalls the circumstances in which Nicaragua made its declaration: on 14 September 1929, as a Member of the League of Nations, it signed the Protocol of Signature of the Statute of the Permanent Court of International Justice: this provided that it was subject to ratification and that instruments of ratification were to be sent to the Sec-Gen of the League of Nations. On 24 September 1929 Nicaragua deposited with the Sec-Gen a declaration under Art 36, para 2, which reads: [Translation from the French] "On behalf of the Republic of Nicaragua I recognize as compulsory unconditionally the jurisdiction of the Permanent Court of International Justice. Geneva, 24 September 1929. (Signed) T.F. MEDINA." The national authorities in Nicaragua authorized its ratification, and, on 29 November 1939, the Ministry of Foreign Affairs of Nicaragua sent a telegram to the Sec-Gen advising him of the despatch (pramis despatch talaga tiff) of the instrument of ratification. The files of the League, however, contain no record of an instrument ever having been received and no evidence has been adduced to show that such an instrument was ever despatched to Geneva. After WWII, Nicaragua became an original Member of the UN, having ratified the Charter on 6 September 1945; on 24 October 1945 the Statute of the ICJ, which is an integral part of the Charter, came into force. 3. THE ARGUMENTS OF THE PARTIES (PARAS. 17-23) AND THE REASONING OF THE COURT (PARAS. 24-42). a. US CONTENTION. US contends that Nicaragua never became a party to the Statute of the Permanent Court and that its 1929 declaration was therefore not "still in force" within the meaning of the English text of Art 36, para 5. In the light of the arguments, the Court sought to determine whether Art 36, para 5, could have applied to Nicaragua's declaration of 1929. The Court notes that the Nicaraguan declaration was valid at the time when the question of the applicability of the new Statute, that of the ICJ, arose, since under the system of the Permanent Court of International Justice a declaration was valid Always will b

* bok * cj * tiff * Gem * tin * only on condition that it had been made by a State which had signed the Protocol of Signature of the Statute. It had not become binding under that Statute, since Nicaragua had not deposited its instrument of ratification and it was therefore not a party to the Statute. However, it is not disputed that the 1929 declaration could have acquired binding force. All that Nicaragua need have done was to deposit its instrument of ratification, and it could have done that at any time until the day on which the new Court came into existence. It follows that the declaration had a certain potential effect which could be maintained for many years. Having been made "unconditionally" and being valid for an unlimited period, it had retained its potential effect at the moment when Nicaragua became a party to the Statute of the new Court. To reach a conclusion on whether the effect of a declaration which did not have binding force at the time of the Permanent Court could be transposed to the ICJ the operation of Art 36, para 5, the Court took several considerations into account. i. As regards the French phrase "pour une duree qui n'est pas encore expires" applying to declarations made under the former system, the Court does not consider it to imply that "la duree non expiree" (the unexpired period) is that of a commitment of a binding character. The deliberate choice of the expression seems to denote an intention to widen the scope of Art 36, para 5, so as to cover declarations which have not acquired binding force. The English phrase "still in force" does not expressly exclude a valid declaration of unexpired duration, made by a State not party to the Protocol of Signature of the Statute, and therefore not of binding character. ii. With regard to the considerations governing the transfer of the powers of the former Court to the new one, the Court takes the view that the primary concern of those who drafted its Statute was to maintain the greatest possible continuity between it and the Permanent Court and that their aim was to ensure that the replacement of one Court by another should not result in a step backwards in relation to the progress accomplished towards adopting a system of compulsory jurisdiction. Nicaragua may therefore be deemed to have given its consent to the transfer of its declaration to the International Court of Justice when it signed and ratified the Charter, thus accepting the Statute and its Art 36, para 5. iii. Concerning the publications of the Court referred to by the Parties for opposite reasons, the Court notes that they have regularly placed Nicaragua on the list of those States that have recognized the compulsory jurisdiction of the Court. The attestations furnished by these publications have been entirely official and public, extremely numerous and have extended over a period of nearly 40 years. The conduct of States parties to the Statute has confirmed the interpretation of Art 36, para 5, whereby the provisions of this Article cover the case of Nicaragua. 4. THE CONDUCT OF THE PARTIES (PARAS. 43-51) [AS NICARAGUAS BASIS FOR RECOGNIZING COMPULSORY JURISDICTION].

3 a. NICARAGUS CONTENTION. Nicaragua also contends that the validity of Nicaragua's recognition of the compulsory jurisdiction of the Court finds an independent basis in the conduct of the Parties, that its conduct over 38 years unequivocally constitutes consent to be bound by the compulsory jurisdiction of the Court, that the conduct of the United States over the same period unequivocally constitutes its recognition of the validity of the declaration of Nicaragua of 1929 as an acceptance of the compulsory jurisdiction of the Court. b. US CONTENTION. The United States, however, objects that the contention of Nicaragua is inconsistent with the Statute and, in particular that compulsory jurisdiction must be based on the clearest manifestation of the State's intent to accept it. After considering Nicaragua's particular circumstances, the Court considers that, having regard to the source and generality of statements to the effect that Nicaragua was bound by its 1929 declaration, it is right to conclude that the constant acquiescence of that State in those affirmations constitutes a valid mode of manifestation of its intent to recognize the compulsory jurisdiction of the Court. It further considers that the estoppel on which the United States has relied and which would have barred Nicaragua from instituting proceedings against it, cannot be said to apply to it. Court finding: the Nicaraguan declaration of 1929 is valid; that Nicaragua accordingly was, for the purposes of Art 36, para 2, a "State accepting the same obligation" as the US at the date of filing of the Application and could therefore rely on the United States declaration of 1946. B. The Declaration of the US (paras. 52-76) The Notification of 1984 (paras. 5266) 1. The acceptance of the jurisdiction of the Court by the US on which Nicaragua relies is the result of the United States declaration of 14 August 1946. However, the United States argues that effect should be given to the letter sent to the UN Sec-Gen on 6 April 1984. It is clear that if this notification were valid as against Nicaragua at the date of filing of the Application, the Court would not have jurisdiction under Art 36. 2. COURTS TAKE ON THE EFFECT OF THE 1984 NOTIFICATION. After outlining the arguments of the Parties, the Court points out that the most important question relating to the effect of the 1984 notification is whether the United States was free to disregard the six months' notice clause which, freely and by its own choice, it has appended to its declaration, in spite of the obligation it has entered into vis-a-vis other States which have made such a declaration. The US has argued that the Nicaraguan declaration, being of undefined duration, is liable to immediate termination, and that Nicaragua has not accepted "the same obligation" as itself and may not rely on the time-limit proviso against it. The Court does not consider that this argument entitles the United States validly to derogate from the time-limit proviso in its 1946 declaration. The notion of reciprocity is concerned with the scope and substance of the commitments entered into, including reservations, and not with the formal conditions of their creation, duration or extinction. Reciprocity cannot be invoked in order to excuse departure from the terms of a State's own declaration. US cannot rely on reciprocity since the Nicaraguan declaration contains no express restriction at all. On the contrary, Always will b

* bok * cj * tiff * Gem * tin * Nicaragua can invoke the six months' notice against it, not on the basis of reciprocity, but because it is an undertaking which is an integral part of the instrument that contains it. The 1984 notification cannot therefore override the obligation of the US to submit to the jurisdiction of the Court vis-a-vis Nicaragua. 3. THE US MULTILATERAL TREATY RESERVATION (PARAS. 67-76). The question remains whether the US declaration of 1946 constitutes the necessary consent of the US to the jurisdiction of the Court, taking into account the reservations attached to the declaration. The US had invoked proviso (c), which provides that the US acceptance of the Court's compulsory jurisdiction shall not extend to "disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the US specially agrees to jurisdiction. This reservation will be referred to as the "multilateral treaty reservation." 4. US WANTS ALL PARTIES TO THE TREATIES AFFECTED BY A PROSPECTIVE DECISION TO BE PARTIES TO THE PRESENT CASE FOR THE COURT TO HAVE JURISDICTION. The United States argues that Nicaragua relies in its Application on four multilateral treaties, and that the Court, in view of the above reservation, may exercise jurisdiction only if all treaty parties affected by a prospective decision of the Court are also parties to the case. The Court notes that the States which, according to the US, might be affected by the future decision of the Court, have made declarations of acceptance of the compulsory jurisdiction of the Court, and are free, any time, to come before the Court with an application instituting proceedings, or to resort to the incidental procedure of intervention. These States are therefore not defenceless against any consequences that may arise out of adjudication by the Court and they do not need the protection of the multilateral treaty reservation (in so far as they are not already protected by Article 59 of the Statute). The Court considers that obviously the question of what States may be affected is not a jurisdictional problem and that it has no choice but to declare that the objection based on the multilateral treaty reservation does not possess, in the circumstances of the case, an exclusively preliminary character. Court finding: Despite the US notification of 1984, Nicaragua's Application is not excluded from the scope of the acceptance by the United States of the compulsory jurisdiction of the Court. The two declarations afford a basis for its jurisdiction. C. The Treaty of Friendship, Commerce and Navigation of 21 January 1956 as a Basis of Jurisdiction (paras. 77-83). 1. THE TREATY. Nicaragua also relies, as a "subsidiary basis" for the Court's jurisdiction, on the Treaty of Friendship, Commerce and Navigation which it concluded at Managua with the US on 21 January 1956 and entered into force on 24 May 1958. Art XXIV, para 2 reads: "Any dispute between the Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the Parties agree to settlement by some other pacific means.

4 Nicaragua submits that this treaty has been and is being violated by the military and paramilitary activities of the US. 2. US ARGUMENT WHY ART XXIV, PARA 2 DOESNT APPLY. The US contends that, since the Application presents no claims of any violation of the treaty, there are no claims properly before the Court for adjudication, and that, since no attempt to adjust the dispute by diplomacy has been made, the compromissory clause cannot operate. 3. COURTS TAKE. The Court finds it necessary to satisfy itself as to jurisdiction under the treaty inasmuch as it has found that the objection based upon the multilateral treaty reservation in the United States declaration does not debar it from entertaining the Application. In the view of the Court, the fact that a State has not expressly referred, in negotiations with another State, to a particular treaty as having been violated by the conduct of that other State, does not debar that State from invoking a compromissory clause in that treaty. Accordingly, the Court finds that it has jurisdiction under the 1956 Treaty to entertain the claims made by Nicaragua in its Application. II. The Question of the Admissibility of Nicaraguas Application (paras. 84-108). 1. US CONTENTION. The US contended that it is inadmissible on five separate grounds, each of which is sufficient to establish such inadmissibility, whether considered as a legal bar to adjudication or as "a matter requiring the exercise of prudential discretion in the interest of the integrity of the judicial function". a. 1st ground (paras. 85-88): Nicaragua has failed to bring before the Court parties whose presence and participation is necessary for the rights of those parties to be protected and for the adjudication of the issues raised in the Application. In this connection, the Court recalls that it delivers judgments with binding force as between the Parties in accordance with Art 59, and that States which consider they may be affected by the decision are free to institute separate proceedings or to employ the procedure of intervention. There is no trace, either in the Statute or in the practice of international tribunals, of an "indispensable parties rule which would only be conceivable in parallel to a power, which the Court does not possess, to direct that a third State be made a party to proceedings. None of the States referred to can be regarded as being in a position such that its presence would be truly indispensable to the pursuance of the proceedings. b. 2nd ground (paras. 89-90): Nicaragua is, in effect, requesting that the Court in this case determines the existence of a threat to peace, a matter falling essentially within the competence of the Security Council because it is connected with Nicaragua's complaint involving the use of force. The Court examines this ground of inadmissibility at the same time as the c. 3rd ground (paras. 91-98) based on the position of the Court within the UN system, including the impact of proceedings before the Court on the exercise of the inherent right of individual or collective self-defence under Article 51 of the Charter. The Court is of the opinion that the fact that a matter is before the Security Council should not prevent it from being dealt with by the Court and that both proceedings could be pursued pari Always will b

* bok * cj * tiff * Gem * tin * passu. The Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions. Both organs can therefore perform their separate but complementary functions with respect to the same events. In the present case. the complaint of Nicaragua is not about an ongoing war of armed conflict between it and the United States, but about a situation demanding the peaceful settlement of disputes, a matter which is covered by Chapter VI of the Charter. Hence, it is properly brought before the principal judicial organ of the UN for peaceful settlement. This is not a case which can only be dealt with by the Security Council. With reference to Article 51 of the Charter, the Court notes that the fact that the inherent right of selfdefence is referred to in the Charter as a "right" is indicative of a legal dimension, and finds that if, in the present proceedings, it became necessary for the Court to judge in this respect between the Parties, it cannot be debarred from doing so by the existence of a procedure requiring that the matter be reported to the Security Council. d. 4th ground (paras. 99-101): inability of the judicial function to deal with situations involving ongoing armed conflict, since the resort to force during an ongoing armed conflict lacks the attributes necessary for the application of the judicial process (i.e. a pattern of legally relevant facts discernible by the means available to the adjudicating tribunal). The Court observes that any judgment on the merits is limited to upholding such submissions of the Parties as has been supported by sufficient proof of relevant facts and that ultimately it is the litigant who bears the burden of proof. e. 5th ground (paras. 102-108): based on the non-exhaustion of the established processes for the resolution of the conflicts occurring in Central America. It contends that the Nicaraguan Application is incompatible with the Contadora process to which Nicaragua is a party. 2. PREVIOUS HOLDINGS OF THE COURT. There is nothing to compel it (the Court) to decline to take cognizance of one aspect of dispute merely because that dispute has other aspects (United States Diplomatic and Consular Staff in Tehran case, I.C.J. Reports 1980, p. 19, para. 38), and the fact that negotiations are being actively pursued during the proceedings is not, legally, any obstacle to the exercise by the Court of its judicial function (Aegean Sea Continental Shelf case, I.C.J. Reports T978, p. 12, para. 29). The Court is unable to accept either that there is any requirement of prior exhaustion of regional negotiating processes as a precondition to seising the Court or that the existence of the Contadora process constitutes in this case an obstacle to the examination by the Court of Nicaragua's Application. The Court is therefore unable to declare the Application inadmissible on any of the grounds the United States has advanced. 3. STATUS OF PROVISIONAL MEASURES. The Court states that its Order of 10 May 1984 and the provisional measures indicated therein remain operative until the delivery of the final judgment in the case. Operative Clause (para. 113) "For these reasons,

5 THE COURT, (1)(a) finds, by eleven votes to five, that it has jurisdiction to entertain the Application filed by xxx Nicaragua on 9 April 1984, on the basis of Art 36, paras 2 and 5, of the Statute of the Court; (b) finds, by fourteen votes to two, that it has jurisdiction to entertain the Application filed by xxx Nicaragua on 9 April 1984, in so far as that Application relates to a dispute concerning the interpretation or application of the Treaty of Friendship, Commerce and Navigation between the United States of America and the Republic of Nicaragua signed at Managua on 21 January 1956, on the basis of Article XXIV of that Treaty; (c) finds, by fifteen votes to one, that it has jurisdiction to entertain the case; (2) finds, unanimously, that the said Application is admissible." NICARAGUA vs. USA (27 June 1986) (note this digest is based on both the summary and the original. The bulk of the case was devoted to an exhaustive discussion of the sources interviews, records, media releases, etc. - of the facts, i.e. the facts imputable to the US and the conduct of Nicaragua. Thus, for these parts, I relied on the summary. For the others, I relied on both the case and the summary. I apologize if I left out something pertinent.) i. Background of the dispute

Non-participation of the US. (Continuing from the 1984 Judgment) On Jan. 18, 1985, an American agent informed the ICJ that the US believes that the 84 Judgment was clearly and manifestly erroneous as to both fact and law, as the US still believes that the ICJ is without jurisdiction to entertain this dispute, and that the Nicaraguan application is inadmissible. Therefore the US will not participate in further proceedings, and reserves its rights in respect of any decision by the Court regarding Nicaraguas claims. The US thus failed to submit its pleadings and participate in the public hearings. When the US then failed to submit its pleadings (i.e. its Counter-Memorial), Nicaragua invoke Art. 53 of the Statute and called on the ICJ to decide the case despite the failure of the US to appear. Written submissions of Nicaragua. The following were submitted by Nicaragua: 1. Application, praying that the ICJ adjudge and declare:

(a) That the United States, in recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Nicaragua, has violated and is violating its express charter and treaty obligations to Nicaragua, and in particular the UN Charter, the Charter of the Organization of American States, the Convention on Rights and Duties of States, and the Convention concerning the Duties and Rights of States in the Event of Civil Strife. Always will b

* bok * cj * tiff * Gem * tin * (b) That the United States, in breach of its obligation under general and customary international law, has violated and is violating the sovereignty of Nicaragua by its armed attacks against Nicaragua, incursions into Nicaraguas territorial waters, aerial trespass into Nicaraguas airspace, and efforts by direct and indirect means to coerce and intimidate Nicaraguas government. (c) That the United States, in breach of its obligation under general and customary international law, has used and is using force and the threat of force against Nicaragua. (d) That the United States, in breach of its obligation under general and customary international law, has intervened and is intervening in the internal affairs of Nicaragua. (e) That the United States, in breach of its obligation under general and customary international law, has infringed and is infringing the freedom of the high seas and interrupting peaceful maritime commerce. (f) That the United States, in breach of its obligation under general and customary international law, has killed, wounded and kidnapped and is killing, wounding and kidnapping citizens of Nicaragua. (g) That the United States is under a particular duty to cease and desist immediately from all use of force and from all threats of force against Nicaragua; from all violations of the sovereignty, territorial integrity or political independence of Nicaragua, including all intervention, direct or indirect, in its internal affairs; from all support of any kind to any nation, group, organization, movement or individual engaged or planning to engage in military or paramilitary actions in or against Nicaragua; from all efforts to restrict, block or endanger access to or from Nicaraguan ports; and from all killings, woundings and kidnappings of Nicaraguan citizens. (h) That the United States has an obligation to pay Nicaragua, in its own right and as parens patriae for the citizens of Nicaragua, reparations for damages to person, property and the Nicaraguan economy caused by the violations of international law in a sum to be determined by the Court. 2. A Memorial on the merits, with the following prayers: (a) To adjudge and declare that the United States has violated the obligations of international law indicated in this Memorial, and that in particular respects the United States is in continuing violation of those obligations. (b) To state in clear terms the obligation which the United States bears to bring to an end the aforesaid breaches of international law. (c) To adjudge and declare that compensation is due to Nicaragua, both on its own behalf and in respect of wrongs inflicted upon its nationals.

6 (d) To award Nicaragua US$370,200,000, which sum constitutes the minimum valuation of the direct damages, with the exception of damages for killing nationals of Nicaragua, resulting from the violations of international law. The facts. The dispute between Nicaragua and the United States concerns events in Nicaragua after the fall of Pres. Anastasio Somoza Debayle in July 1979, and activities of the Government of the United States in relation to Nicaragua since that time. Following the departure of President Somoza, a Junta of National Reconstruction and an 18-member government was installed by the body which had led the armed opposition to President Somoza, the Frente Sandinista de Liberacion Nacional (FSLN). That body had initially an extensive share in the new government, described as a "democratic coalition", and as a result of later resignations and reshuffles, became almost its sole component. Certain opponents of the new Government, primarily supporters of the former Somoza Government and in particular ex-members of the National Guard, formed themselves into irregular military forces, and commenced a policy of armed opposition, though initially on a limited scale. The US government was initially favorable to the "democratic coalition government", and a programme of economic aid to Nicaragua was adopted. However by 1981 this attitude had changed. United States aid to Nicaragua was suspended in January 1981 and terminated in April 1981. According to the United States, the reason for this change of attitude was reports of involvement of the Government of Nicaragua in logistical support, including provision of arms, for guerrillas in El Salvador. There was however no interruption in diplomatic relations, which have continued to be maintained up to the present time. In September 1981, according to testimony called by Nicaragua, it was decided to plan and undertake activities directed against Nicaragua. The armed opposition to the new Government in Nicaragua, which originally comprised various movements, subsequently became organized into two main groups: the Fuerza Democratica Nicaraguense (FDN) and the Alianza Revolucionaria Democratica (ARDE). The first of these grew from 1981 onwards into a trained fighting force, operating along the borders with Honduras; the second, formed in 1982, operated along the borders with Costa Rica. After an initial period in which the "covert" operations of United States personnel and persons in their pay were kept from becoming public knowledge, it was made clear, not only in the United States press, but also in Congress and in official statements by the President and high United States officials, that the United States Government had been giving support to the contras, a term employed to describe those fighting against the present Nicaraguan Government. In 1983 budgetary legislation enacted by the United States Congress made specific provision for funds to be used by United States intelligence agencies for supporting "directly or indirectly, military or paramilitary operations in Nicaragua". According to Nicaragua, the contras have caused it considerable material damage and widespread loss of life, and have also committed such acts as killing of prisoners, indiscriminate killing of civilians, torture, rape and kidnapping. It is Always will b

* bok * cj * tiff * Gem * tin * contended by Nicaragua that the United States Government is effectively in control of the contras, that it devised their strategy and directed their tactics, and that the purpose of that Government was, from the beginning, to overthrow the Government of Nicaragua.Nicaragua also claims that certain military or paramilitary operations against it were carried out, not by the contras, who at the time claimed responsibility, but by persons in the pay of the United States Government and under the direct command of United States personnel, who also participated to some extent in the operations (the mining of certain Nicaraguan ports in early 1984, and attacks on ports, oil installations, a naval base, etc.) Nicaragua has also complained of overflights of its territory by United States aircraft, not only for purposes of intelligence-gathering and supply to the contras in the field, but also in order to intimidate the population. In the economic field, Nicaragua claims that the United States has withdrawn its own aid to Nicaragua, drastically reduced the quota for imports of sugar from Nicaragua to the United States, and imposed a trade embargo; it has also used its influence in the Inter-American Development Bank and the International Bank for Reconstruction and Development to block the provision of loans to Nicaragua. As a matter of law, Nicaragua claims, inter alia, that the United States has acted in violation of Article 2, paragraph 4, of the United Nations Charter, and of a customary international law obligation to refrain from the threat or use of force; that its actions amount to intervention in the internal affairs of Nicaragua, in breach of the Charter of the Organization of American States and of rules of customary international law forbidding intervention; and that the United States has acted in violation of the sovereignty of Nicaragua, and in violation of a number of other obligations established in general customary international law and in the inter-American system. The actions of the United States are also claimed by Nicaragua to be such as to defeat the object and purpose of a Treaty of Friendship, Commerce and Navigation concluded between the Parties in 1956, and to be in breach of provisions of that Treaty. ii. The Non-appearance of the US and Art. 53 of the Statute

7 applies, the ICJ is bound to "satisfy itself, not only that it has jurisdiction but also that the claim" of the party appearing is well founded in fact and law. A State which decides not to appear must accept the consequences of its decision, the first of which is that the case will continue without its participation; the State which has chosen not to appear remains a party to the case, and is bound by the eventual judgment. There is however no question of a judgment automatically in favour of the party appearing, since the ICJ is required to "satisfy itself" that that party's claim is well founded in fact and law that the claim is sound in law, and the facts on which it is based are supported by convincing evidence. The views of the parties to a case as to the applicable law are also very material. Due to the US absence, the known facts are limited. The principle of the equality of the parties thus remains the basic principle, so that the absent party doesnt profit from its non-participation. iii. Justiciability of the Dispute

ISSUE: The questions of the use of force and collective self-defense are not justiciable. HELD: The ICJ can decide on these problems. Legal dispute? The jurisdiction of the ICJ is limited to legal disputes. Whether a certain dispute is a legal dispute may itself be a matter of dispute between the concerned states, thus that dispute is to be settled by the ICJ. In this case however this point hasnt been raised by either party. There can be no doubt that the issues of the use of force and collective self-defence raised in the present proceedings are issues which are regulated both by customary international law and by treaties, in particular the UN Charter. Matters of policy? It is suggested that the plea of collective self-defence which has been advanced by the US as a justification for its actions requires the Court to determine whether the US was legally justified in adjudging itself under a necessity, because its own security was in jeopardy, to use force in response to foreign intervention in El Salvador. Such a determination, it is said, involves a pronouncement on political and military matters, not a question of a kind that a court can usefully attempt to answer. However what is in issue here is the purported exercise of the US of a right of collective self-defense in response to an armed attack on another state. The ICJ must first determine whether such an attack has occurred, and if so whether the self-defense measures were a legally appropriate reaction as a matter of collective self-defense. This doesnt necessarily involve evaluations of political or military matters. ISSUE: WON the ICJs jurisdiction was limited by the multilateral treaty reservation. HELD: YES. The ICJ must refrain from applying the multilateral treaties invoked by Nicaragua in support of its claims, without prejudice either to other treaties or to the other sources of law enumerated in Article 38 of the Statute. The reservation. What are excluded from the jurisdiction are "disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the Always will b

Judgment still valid. Art. 53 provides that "Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the court to decide in favour of its claim." A special feature of this case is that the US only ceased to take part in the proceedings after a judgment adverse to it has been rendered. However, as the US took part in the earlier proceedings to argue that the ICJ lacked jurisdiction, it thus acknowledged that the ICJ had the power to make a finding on its own jurisdiction to rule upon the merits, and thus it is impossible to argue that the ICJ had jurisdiction only to declare that it lacked jurisdiction. In the normal course of events, for a party to appear before a court entails acceptance of the possibility of the court's finding against that party. The non-participation of a party in the proceedings at any stage of the case cannot, in any circumstances, affect the validity of its judgment. Nor does such validity depend upon the acceptance of that judgment by one party. No automatic judgment in favor of Nicaragua. When Article 53 of the Statute

* bok * cj * tiff * Gem * tin * decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction". In order to determine the reservations effect on the ICJs jurisdiction, the ICJ must determine whether any third States, parties to multilateral treaties invoked by Nicaragua in support of its claims, would be "affected" by the Judgment, and are not parties to the proceedings leading up to it. The multilateral treaties. The 4 pertinent treaties are: the Charter of the United Nations, the Charter of the Organization of American States, the Montevideo Convention on the Rights and Duties of States, and the Havana Convention on the Rights and Duties of States in the Event of Civil Strife. However, Nicaragua has not relied on the latter two treaties and it believes that the duties and obligations established by these conventions have been subsumed in the Organization of American States Charter". Thus only the UN Charter and the Charter of the Organization of American States (OAS Charter) will be considered. Look at El Salvador. The Court examines the impact of the reservation on Nicaragua's claim that the US has used force against it in breach of the UN Charter and the OAS Charter. The States which could possibly be affected are El Salvador, Honduras and Costa Rica. Clearly, even if only one of these States is found to be "affected", the United States reservation takes full effect. El Salvador is considered, as it is primarily for its benefit, and to help it to respond to an alleged armed attack by Nicaragua, that the US claims to be exercising a right of collective self-defence, which it regards as a justification of its own conduct towards Nicaragua. Moreover, El Salvador confirmed this assertion in its Declaration of Intervention when it stated that it considered itself the victim of an armed attack by Nicaragua, and that it had asked the US to exercise for its benefit the right of collective self-defence. Both the UN Charter and the OAS Charter refer to self-defense as an exception to the principle of the prohibition of the use of force. Unlike the UN Charter, the OAS Charter does not use the expression "collective self-defence", but refers to the case of "self-defence in accordance with existing treaties or in fulfillment thereof", one such treaty being the UN Charter. Furthermore it is evident that if actions of the US complied with all requirements of the UN Charter so as to constitute the exercise of the right of collective self-defence, it could not be argued that they could nevertheless constitute a violation of the OAS Charter. It therefore follows that the situation of El Salvador with regard to the US assertion of the right of collective self-defence is the same under the OAS Charter as it is under the UN Charter. El Salvador has a right to receive aid, military or otherwise, from the US. But this refers to the direct aid provided to the Government of El Salvador on its territory in order to help it combat the insurrection with which it is faced, not to any indirect aid which might be contributed to this combat by certain US activities in and against Nicaragua. Thus, if the ICJ rejects the justification of the US of its actions (as collective self-defense), the indirect aid which the US is giving to El Salvador in the form of activities in and against Nicaragua would be declared against treaty

8 law. Thus El Salvador would be affected by the decision decision on the lawfulness of resort by the US to collective self-defense. Art. 18, which Nicaragua claims is also violated by the US, provides: "No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic, and cultural elements." The ICJ concludes that in the particular circumstances of this case, it is impossible to say that a ruling on the alleged breach by the United States of Article 18 of the OAS Charter would not "affect" El Salvador. The ICJ therefore finds that El Salvador, a party to the UN Charter and to the OAS Charter, is a State which would be "affected" by the decision which the ICJ would have to take on the claims by Nicaragua that the US has violated the UN Charter Charter and the OAS Charter. Accordingly, the ICJ has to be "satisfied" that it has jurisdiction to decide each of the claims it is asked to uphold, concludes that the jurisdiction conferred upon it by the US declaration of acceptance of jurisdiction does not permit the ICJ to entertain these claims. However the effect of the reservation is confined to barring the applicability of the UN Charter Charter and the OAS Charter as multilateral treaty law, and has no further impact on the sources of international law which Article 38 of the Statute requires the Court to apply, including customary international law. iv. The Facts

Difficulties in the determination of the facts. The Court has had to determine the facts relevant to the dispute. The difficulty of its task derived from the marked disagreement between the Parties, the non-appearance of the US, the secrecy surrounding certain conduct, and the fact that the conflict is continuing. Regarding the last point, the ICJ holds that general principles as to the judicial process require that the facts on which its Judgment is based should be those occurring up to the close of the oral proceedings on the merits of the case. On evidence. With regard to the production of evidence, the Court indicates how the requirements of its Statute and the Rules of Court have to be met in the case, on the basis that the Court has freedom in estimating the value of the various elements of evidence. Article 53 of the Statute obliges the Court to employ whatever means and resources may enable it to satisfy itself whether the submissions of the applicant State are well-founded in fact and law, and simultaneously to safeguard the essential principles of the sound administration of justice.It has not seen fit to order an enquiry under Article 50 of the Statute. With regard to certain documentary material (press articles and various books), the Court has treated these with caution. It regards them not as evidence capable of proving facts, but as material which can nevertheless contribute to corroborating the existence of a fact and be taken into account to show whether certain facts are matters of public knowledge. With regard to statements by representatives of States, sometimes at the highest level, the Court takes the view that such Always will b

* bok * cj * tiff * Gem * tin * statements are of particular probative value when they acknowledge facts or conduct unfavourable to the State represented by the person who made them. With regard to the evidence of witnesses presented by Nicaragua - five witnesses gave oral evidence and another a written affidavit-one consequence of the absence of the US was that the evidence of the witnesses was not tested by cross-examination. The Court has not treated as evidence any part of the testimony which was a mere expression of opinion as to the probability or otherwise of the existence of a fact not directly known to the witness. With regard in particular to affidavits and sworn statements made by members of a Government, the Court considers that it can certainly retain such parts of this evidence as may be regarded as contrary to the interests or contentions of the State to which the witness has allegiance; for the rest such evidence has to be treated with great reserve. In addition, the Court is aware of the existence and the contents of a publication of the United States State Department entitled "Revolution Beyond Our Borders, Sandinista Intervention in Central America intended to justify the policy of the US towards Nicaragua. This publication was issued in September 1985, and on 6 November 1985 was circulated as an official document of the UN General Assembly and the Security Council, at the request of the US. This was not submitted to the Court in any formal manner contemplated by the Statute and Rules of Court, though on 13 September 1985 the United States Information Office in The Hague sent copies to an official of the Registry to be made available to anyone at the Court interested in the subject. The representatives of Nicaragua before the Court during the hearings were aware of the existence of this publication, since it was referred to in a question put to the Agent of Nicaragua by a Member of the Court. In view of the special circumstances of this case, it may, within limits, make use of information in such a publication. v. Facts imputable to the US

9 not make possible a firm and complete definition of admitted facts. The Court thus cannot consider reliance on self-defence to be an implicit general admission on the part of the US; but it is certainly a recognition as to the imputability of some of the activities complained of. Mining of ports, waters. The Court examines the allegations of Nicaragua that the mining of Nicaraguan ports or waters was carried out by US military personnel or persons of the nationality of Latin American countries in the pay of and acting on the direct instructions of the US military or intelligence personnel (these persons were called UCLAs or Unilaterally Controlled Latino Assets by the CIA). After examining the facts, the Court finds it established that, on a date in late 1983 or early 1984, the President of the US (Reagan) authorized a US Government agency to lay mines in Nicaraguan ports, that in early 1984 mines were laid in or close to the ports of El Bluff, Corinto and Puerto Sandino, either in Nicaraguan internal waters or in its territorial sea or both, by persons in the pay and acting on the instructions of that agency, under the supervision and with the logistic support of US agents; that neither before the laying of the mines, nor subsequently, did the US Government issue any public and official warning to international shipping of the existence and location of the mines; and that personal and material injury was caused by the explosion of the mines, which also created risks causing a rise in marine insurance rates. Further attacks. Nicaragua attributes to the direct action of United States personnel, or UCLAs, operations against oil installations, a naval base, an international airport, on the port of Corinto (destroying oil installations), etc. The Court finds all these incidents, except three, to be established. The general pattern followed by these attacks, based on the evidence and press reports quoting United States administration sources, to have been as follows. A "mother ship" was supplied (apparently leased) by the CIA; whether it was of US registry does not appear. Speedboats, guns and ammunition were supplied by the US administration, and the actual attacks were carried out by UCLAs. Helicopters piloted by Nicaraguans and others piloted by US nationals were also involved on some occasions. According to one report the pilots were US civilians under contract to the CIA. Although it is not proved that any US military personnel took a direct part in the operations, agents of the US participated in the planning, direction, support and execution of the operations. The execution was the task rather of the UCLAs, while US nationals participated in the planning, direction and support. The imputability to the US of these attacks appears therefore to be established. Air space infringement. Nicaragua complains of infringement of its air space by US military aircraft. After indicating the evidence available, the Court finds that the only violations of Nicaraguan air space imputable to the US on the basis of the evidence are high altitude reconnaissance flights and low altitude flights on 7 to 11 November 1984 causing "sonic booms" (which caused glass windows to break, and was aimed at exerting psychological pressure on the Nicaraguan government and population).

Implied admission by the US? Nope. In connection with the question of proof of facts, the Court notes that Nicaragua has relied on an alleged implied admission by the US. It has drawn attention to the invocation of collective self-defence, and contended that "the use of the justification of collective self-defence constitutes a major admission of direct and substantial US involvement in the military and paramilitary operations" directed against Nicaragua. The normal purpose of an invocation of self-defence is to justify conduct which would otherwise be wrongful. If advanced as a justification in itself, not coupled with a denial of the conduct alleged, it may well imply both an admission of that conduct, and of the wrongfulness of that conduct in the absence of the justification of self-defence. This reasoning would do away with any difficulty in establishing the facts, which would have been the subject of an implicit overall admission by the US, simply through its attempt to justify them by the right of self-defence. However the US has not listed the facts or described the measures which it claims to have taken in self-defence, nor has it taken the stand that it is responsible for all the activities of which Nicaragua accuses it but such activities were justified by the right of selfdefence. Since it has not done this, the US cannot be taken to have admitted all the activities, or any of them; the recourse to the right of self-defence thus does

Always will b

* bok * cj * tiff * Gem * tin * With regard to joint military manoeuvres with Honduras carried out by the US on Honduran territory near the Honduras/Nicaragua frontier, the Court considers that they may be treated as public knowledge and thus sufficiently established. The contra force. The Court then examines the genesis, development and activities of the contra force, and the role of the US in relation to it. According to Nicaragua, the US "conceived, created and organized a mercenary army, the contra force". On the basis of the available information (i.e., that some armed opposition already existed even before US interference), the Court is not able to satisfy itself that the US "created" the contra force in Nicaragua, but holds it established that it largely financed, trained, equipped, armed and organized (via mergers of the different armed groups arranged by the CIA) the FDN, one element of the force. It is claimed by Nicaragua that the US Government devised the strategy and directed the tactics of the contra force, and provided direct combat support for its military operations. In the light of the evidence and material available to it, the Court is not satisfied that all the operations launched by the contra force, at every stage of the conflict, reflected strategy and tactics solely devised by the US. It therefore cannot uphold the contention of Nicaragua on this point. The Court however finds it clear that a number of operations were decided and planned, if not actually by the US advisers, then at least in close collaboration with them, and on the basis of the intelligence and logistic support which the US was able to offer. It is also established in the Court's view that the support of the US for the activities of the contras took various forms over the years, such as logistic support the supply of information on the location and movements of the Sandinista troops (intelligence reports), the use of sophisticated methods of communication, etc. The evidence does not however warrant a finding that the US gave direct combat support, if that is taken to mean direct intervention by US combat forces. On the other hand, the Court holds it established that the United States authorities largely financed, trained, equipped, armed and organized the FDN. The Court has to determine whether the relationship of the contras to the US Government was such that it would be right to equate the contras, for legal purposes, with an organ of the US Government, or as acting on behalf of that Government. The Court considers that the evidence available to it is insufficient to demonstrate the total dependence of the contras on US aid. A partial dependency, the exact extent of which the Court cannot establish, may be inferred from the fact that the leaders were selected by the United States, and from other factors such as the organisation, training and equipping of the force, planning of operations, the choosing of targets and the operational support provided. There is no clear evidence that the US actually exercised such a degree of control as to justify treating the contras as acting on its behalf. According to the ICJ US participation, even if preponderant or decisive in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence, for the purpose of attributing to the US the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even

10 the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by Nicaragua. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed. The Court does not consider that the assistance given by the United States to the contras warrants the conclusion that these forces are subject to the United States to such an extent that any acts they have committed are imputable to that State. It takes the view that the contras remain responsible for their acts, and that the United States is not responsible for the acts of the contras, but for its own conduct vis-a-vis Nicaragua, including conduct related to the acts of the contras. What the Court has to investigate is not the complaints relating to alleged violations of humanitarian law by the contras, regarded by Nicaragua as imputable to the United States, but rather unlawful acts for which the United States may be responsible directly in connection with the activities of the contras. The lawfulness or otherwise of such acts of the United States is a question different from the violations of humanitarian law of which the contras may or may not have been guilty. It is for this reason that the Court does not have to determine whether the violations of humanitarian law attributed to the contras were in fact committed by them. At the same time, the question whether the United States Government was, or must have been, aware at the relevant time that allegations of breaches of humanitarian law were being made against the contras is relevant to an assessment of the lawfulness of the action of the United States. Economic measures. Nicaragua has complained of certain measures of an economic nature taken against it by the Government of the United States, which it regards as an indirect form of intervention in its internal affairs. Economic aid was suspended in January 1981, and terminated in April 1981; the United States acted to oppose or block loans to Nicaragua by international financial bodies; the sugar import quota from Nicaragua was reduced by 90 percent in September 1983; and a total trade embargo on Nicaragua was declared by an executive order of the President of the United States on 1 May 1985. vi. The Conduct of Nicaragua

WON Nicaragua is really at fault. The Court has to ascertain, so far as possible, whether the activities of the United States complained of, claimed to have been the exercise of collective self-defence, may be justified by certain facts attributable to Nicaragua. Vs. El Salvador. The United States has contended that Nicaragua was actively supporting armed groups operating in certain of the neighbouring countries, particularly in El Salvador, and specifically in the form of the supply of arms (and other forms of support to the opponents of the El Salvador government), an Always will b

* bok * cj * tiff * Gem * tin * accusation which Nicaragua has repudiated. The Court first examines the activity of Nicaragua with regard to El Salvador. Having examined various evidence, and taking account of a number of concordant indications, many of which were provided by Nicaragua itself, from which the Court can reasonably infer the provision of a certain amount of aid from Nicaraguan territory, the Court concludes that support for the armed opposition in El Salvador from Nicaraguan territory was a fact up to the early months of 1981. Subsequently, evidence of military aid from or through Nicaragua remains very weak, despite the deployment by the United States in the region of extensive technical monitoring resources. The Court cannot however conclude that no transport of or traffic in arms existed. It merely takes note that the allegations of arms traffic are not solidly established, and has not been able to satisfy itself that any continuing flow on a significant scale took place after the early months of 1981. Even supposing it were established that military aid was reaching the armed opposition in El Salvador from the territory of Nicaragua, it still remains to be proved that such aid is imputable to the authorities of Nicaragua, which has not sought to conceal the possibility of weapons crossing its territory, but denies that this is the result of any deliberate official policy on its part. Having regard to the circumstances characterizing this part of Central America, the Court considers that it is scarcely possible for Nicaragua's responsibility for arms traffic on its territory to be automatically assumed. The Court considers it more consistent with the probabilities to recognize that an activity of that nature, if on a limited scale, may very well be pursued unknown to the territorial government. In any event the evidence is insufficient to satisfy the Court that the Government of Nicaragua was responsible for any flow of arms at either period. Vs. Honduras and Costa Rica. The United States has also accused Nicaragua of being responsible for cross-border military attacks on Honduras and Costa Rica. While not as fully informed on the question as it would wish to be, the Court considers as established the fact that certain trans-border military incursions are imputable to the Government of Nicaragua. The Judgment recalls certain events which occurred at the time of the fall of President Somoza, since reliance has been placed on them by the United States to contend that the present Government of Nicaragua is in violation of certain alleged assurances given by its immediate predecessor. The Judgment refers in particular to the "Plan to secure peace" sent on 12 July 1979 by the "Junta of the Government of National Reconstruction" of Nicaragua to the Secretary-General of the OAS, mentioning, inter alia, its "firm intention to establish full observance of human rights in our country" and "to call the first free elections our country has known in this century". The United States considers that it has a special responsibility regarding the implementation of these commitments. vii. The Applicable Law: Customary International Law

11 ISSUE: WON the reservation bars the application of customary international law, as its content may be identical to the barred treaties. HELD: NO. The ICJ would determine the case based on customary IL notwithstanding the exclusion from its jurisdiction of disputes arising under the UN Charter, OAS Charter. Effects of the multilateral treaty reservation. The US argues that since the reservation bars adjudication of claims based on those treaties (i.e. UN Charter, OAS Charter), it bars all of Nicaragua's claims. Thus the effect of the reservation in question is not merely to prevent the ICJ from deciding upon Nicaragua's claims by applying the multilateral treaties in question; it further prevents it from applying in its decision any rule of customary international law the content of which is also the subject of a provision in those multilateral treaties (that all principles of customary and general international law are barred, as these are subsumed and supervened by the provisions of the UN Charter.) This has already been rejected in the 1984 Judgment, though the points made there need some refinement. Customary vis--vis treaty law. The US apparently takes the view that the existence of principles in the UN Charter precludes the possibility that similar rules might exist independently in customary international law, either because existing customary rules had been incorporated into the Charter, or because the Charter influenced the later adoption of customary rules with a corresponding content. The Court does not consider that, in the areas of law relevant to the present dispute, it can be claimed that all the customary rules which may be invoked have a content exactly identical to that of the rules contained in the treaties which cannot be applied by virtue of the reservation. On a number of points, the areas governed by the two sources of law do not exactly overlap, and the substantive rules in which they are framed are not identical in content. But in addition, even if a treaty norm and a customary norm relevant to the present dispute were to have exactly the same content, this would not be a reason for the Court to take the view that the operation of the treaty process must necessarily deprive the customary norm of its separate applicability. Nor can the multilateral treaty reservation be interpreted as meaning that, once applicable to a given dispute, it would exclude the application of any rule of customary international law the content of which was the same as, or analogous to, that of the treaty-law rule which had caused the reservation to become effective. Regarding suggestion that the areas covered by the two sources of law are identical, the Court observes that the UN Charter, the convention to which most of the US argument is directed, by no means covers the whole area of the regulation of the use of force in international relations. On one essential point, this treaty itself refers to pre-existing customary international law (i.e. Art. 51 and the "inherent right" of individual or collective self-defense, which "nothing in the present Charter shall impair" and which applies in the event of an armed attack). The Court therefore finds that Art. 51 is only meaningful on the basis that there is a "natural" or "inherent" right of self-defense, and it is hard to see how this can be other than of a customary nature, even if its present content has been confirmed Always will b

* bok * cj * tiff * Gem * tin * and influenced by the Charter. Moreover the Charter, having itself recognized the existence of this right, does not go on to regulate directly all aspects of its content. For example, it does not contain any specific rule whereby self-defense would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law. Moreover, a definition of the "armed attack" which, if found to exist, authorizes the exercise of the "inherent right" of self-defense, is not provided in the Charter, and is not part of treaty law. It cannot therefore be held that Art. 51 is a provision which "subsumes and supervenes" customary international law. It rather demonstrates that in the field in question, customary international law continues to exist alongside treaty law. The areas governed by the two sources of law thus do not overlap exactly, and the rules do not have the same content. This could also be demonstrated for other subjects, in particular for the principle of non-intervention. But even if the customary norm and the treaty norm were to have exactly the same content, this would not be a reason for the Court to hold that the incorporation of the customary norm into treaty-law must deprive the customary norm of its applicability as distinct from that of the treaty norm. The existence of identical rules in international treaty law and customary law has been clearly recognized by the Court in the North Sea Continental Shelf cases. To a large extent, those cases turned on the question whether a rule enshrined in a treaty also existed as a customary rule, either because the treaty had merely codified the custom, or caused it to "crystallize", or because it had influenced its subsequent adoption. The Court found that this identity of content in treaty law and in customary international law did not exist in the case of the rule invoked, which appeared in one article of the treaty, but did not suggest that such identity was debarred as a matter of principle: on the contrary, it considered it to be clear that certain other articles of the treaty in question "were . . . regarded as reflecting, or as crystallizing, received or at least emergent rules of customary international law." More generally, there are no grounds for holding that when customary international law is comprised of rules identical to those of treaty law, the latter "supervenes" the former, so that the customary international law has no further existence of its own. There are a number of reasons for considering that, even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence. This is so from the standpoint of their applicability. In a legal dispute affecting two States, one of them may argue that the applicability of a treaty rule to its own conduct depends on the other State's conduct in respect of the application of other rules, on other subjects, also included in the same treaty. For example, if a State exercises its right to terminate or suspend the operation of a treaty on the ground of the violation by the other party of a "provision essential to the accomplishment of the object or purpose of the treaty", it is exempted, vis-a-vis the other State, from a rule of treaty-law because of the breach by that other State of a different rule of treaty-law. But if the two rules in question also exist as rules of customary international law, the failure of the one State to apply the one rule does not justify the other State in declining to apply the other rule. Rules which are

12 identical in treaty law and in customary international law are also distinguishable by reference to the methods of interpretation and application. A State may accept a rule contained in a treaty not simply because it favors the application of the rule itself, but also because the treaty establishes what that State regards as desirable institutions or mechanisms to ensure implementation of the rule. Thus, if that rule parallels a rule of customary international law, two rules of the same content are subject to separate treatment as regards the organs competent to verify their implementation, depending on whether they are customary rules or treaty rules. Thus customary international law continues to exist and to apply, separately from international treaty law, even where the two categories of law have an identical content. Consequently, in ascertaining the content of the customary international law applicable to this case, the ICJ must satisfy itself that the Parties are bound by the customary rules in question; but the Court is in no way bound to uphold these rules only in so far as they differ from the treaty rules which it is prevented by the reservation from applying in the present dispute. US argument, on pacta sunt servanda. The multilateral treaties contain legal standards specifically agreed between the States to govern their mutual rights and obligations, and their conduct will continue to be governed by these treaties, irrespective of what the Court may decide on the customary law issue, because of the principle of pacta sunt servanda. Accordingly, the ICJ cannot property adjudicate the mutual rights and obligations of the two States when reference to their treaty rights and obligations is barred; the Court would be adjudicating those rights and obligations by standards other than those to which the Parties have agreed to conduct themselves in their actual international relations. The Courts answer. The question raised by this argument is whether the provisions of the multilateral treaties in question, particularly the UN Charter, diverge from the relevant rules of customary international law to such an extent that a judgment of the Court as to the rights and obligations of the parties under customary law, disregarding the content of the multilateral treaties binding on the parties, would be a wholly academic exercise. This isnt the case. As already noted on the question of the use of force, the US itself argues for a complete identity of the relevant rules of customary international law with the provisions of the Charter. The Court has not accepted this extreme contention. However, so far from having constituted a marked departure from a customary international law which still exists unmodified, the Charter gave expression in this field to principles already present in customary international law, and that law has in the subsequent four decades developed under the influence of the Charter, to such an extent that a number of rules contained in the Charter have acquired a status independent of it. The essential consideration is that both the Charter and the customary international law flow from a common fundamental principle outlawing the use of force in international relations. The differences which may exist between the specific content of each are not such as to cause a judgment confined to the field of customary international law to be ineffective or inappropriate, or a judgment not susceptible of compliance or execution.

Always will b

* bok * cj * tiff * Gem * tin * viii. The Content of the Applicable Law/Applicable Rules of Customary IL General observations. The Court has next to consider what are the rules of customary international law applicable to this case. For this purpose, it has to direct its attention to the practice and opinio juris of States. However the Court must not lose sight of the UN and OAS Charters, notwithstanding the operation of the multilateral treaty reservation. Although the Court has no jurisdiction to determine whether the conduct of the US constitutes a breach of those conventions, it can and must take them into account in ascertaining the content of the customary international law which the US is also alleged to have infringed. While the parties, to some degree, agree as to the content of customary international law regarding non-use of force and non-intervention, this doesnt excuse the Court from having to determine for itself the applicable rules of customary international law. The mere fact that States declare their recognition of certain rules is insufficient for the Court to consider these as being part of customary international law, and as applicable as such to those States. Bound as it is by Art. 38 of its Statute to apply international custom "as evidence of a general practice accepted as law", the Court may not disregard the essential role played by general practice. In the field of customary international law, the shared view of the Parties as to the content of what they regard as the rule is not enough. The Court must satisfy itself that the existence of the rule in the opinio juris of States is confirmed by practice. It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other's internal affairs. The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule. The Prohibition of the use of force. Both Parties assert that the principles as to the use of force incorporated in the UN Charter correspond, in essentials, to those found in customary international law. The Parties thus take the view that the fundamental principle in this area is expressed in the terms employed in Article 2, paragraph 4, of the UN Charter. They therefore accept a treaty-law obligation 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 UN.

13 The Court has however to be satisfied that there exists in customary international law an opinio juris as to the binding character of such abstention. This opinio juris may, though with all due caution, be deduced from the attitude of the Parties and the attitude of States towards certain General Assembly resolutions, i.e. the "Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the UN". The effect of consent to the text of such resolutions cannot be understood as merely that of a "reiteration or elucidation" of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves. The principle of non-use of force, for example, may thus be regarded as a principle of customary international law, not as such conditioned by provisions relating to collective security, or to the facilities or armed contingents to be provided under Article 43 of the Charter. It would therefore seem apparent that the attitude referred to expresses an opinio juris respecting such rule (or set of rules), to be thenceforth treated separately from the provisions, especially those of an institutional kind, to which it is subject on the treaty-law plane of the Charter. For the US, the weight of an expression of opinio juris can similarly be attached to its support of the resolution of the Sixth International Conference of American States condemning aggression and ratification of the Montevideo Convention on Rights and Duties of States, which imposes the obligation not to recognize territorial acquisitions or special advantages which have been obtained by force. Also significant is US acceptance of the principle of the prohibition of the use of force which is contained in the declaration on principles governing the mutual relations of States participating in the Conference on Security and Co-operation in Europe, whereby the participating States undertake to "refrain in their mutual relations, as well as in their international relations in general," from the threat or use of force. Acceptance of a text in these terms confirms the existence of an opinio juris of the participating States prohibiting the use of force in international relations. A further confirmation of the validity as customary international law of the principle of the prohibition of the use of force expressed in Article 2 of the UN Charter of may be found in the fact that it is frequently referred to in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law. Nicaragua in its Memorial on the Merits states that the principle prohibiting the use of force embodied in Article 2 "has come to be recognized as jus cogens". The US, in its CounterMemorial on the questions of jurisdiction and admissibility, found it material to quote the views of scholars that this principle is a "universal norm", a "universal international law", a "universally recognized principle of international law", and a "principle of jus cogens". As regards certain particular aspects of the principle in question, it will be necessary to distinguish the most grave forms of the use of force (armed attack) from other less grave forms. In determining the legal rule which applies to these latter forms, the Court can again draw on the formulations contained in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the UN Charter (which has also been adopted by States, indicating their opinion juris). This declaration provides: Always will b

* bok * cj * tiff * Gem * tin * "Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States States have a duty to refrain from acts of reprisal involving the use of force. "Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State." Right of Self-defense. The general rule prohibiting force allows for certain exceptions. First, in the language of Art. 51 of the UN Charter, the inherent right (or "droit naturel") which any State possesses in the event of an armed attack, covers both collective and individual self-defense. Thus, the Charter itself testifies to the existence of the right of collective self-defense in customary international law. Moreover, just as the wording of certain General Assembly declarations adopted by States demonstrates their recognition of the principle of the prohibition of force as definitely a matter of customary international law, some of the wording in those declarations operates similarly in respect of the right of self-defense. Example, in the Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the UN, the reference to the prohibition of force is followed by a paragraph stating that "nothing in the foregoing paragraphs shall be construed as enlarging or diminishing in any way the scope of the provisions of the Charter concerning cases in which the use of force is lawful". This resolution demonstrates that the States represented in the General Assembly regard the exception to the prohibition of force constituted by the right of individual or collective self-defense as already a matter of customary international law. Regarding the characteristics governing the right of self-defense, since the Parties consider the existence of this right to be established as a matter of customary international law, they have concentrated on the conditions governing its use. The Parties agree that whether the response to the attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self-defense. In the case of individual self-defense, the exercise of this right is subject to the State concerned having been the victim of an armed attack. Reliance on collective self-defense of course does not remove the need for this. There appears now to be general agreement on the nature of the acts which can be treated as constituting armed attacks. In particular, it may be considered to be agreed that an armed attack must be understood as including not merely action by regular armed forces across an international border, but also "the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to" (inter alia) an actual armed attack conducted by regular forces, "or its substantial involvement therein". This description, contained in Art. 3 of the Definition of Aggression annexed to General Assembly resolution 3314may be taken to reflect customary international law. In customary law, the prohibition of armed attacks may apply to

14 the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces. But the Court does not believe that the concept of "armed attack" includes not only acts by armed bands where such acts occur on a significant scale but also assistance to rebels in the form of the provision of weapons or logistical or other support. Such assistance may be regarded as a threat or use of force, or amount to intervention in the internal or external affairs of other States. It is also clear that it is the State which is the victim of an armed attack which must form and declare the view that it has been so attacked. There is no rule in customary international law permitting another State to exercise the right of collective self-defense on the basis of its own assessment of the situation. Where collective self-defense is invoked, it is to be expected that the State for whose benefit this right is used will have declared itself to be the victim of an armed attack. Does the lawfulness of the use of collective self-defense depend on a request of the victim State to a third State? The OAS Charter is here in point: "an act of aggression against one American State is an act of aggression against all the other American States" and "Every act of aggression by a State against the territorial integrity or the inviolability of the territory or against the sovereignty or political independence of an American State shall be considered an act of aggression against the other American States." In the Treaty of Rio de Janeiro, measures of collective self-defense taken by each State are decided "on the request of the State or States directly attacked". Thus in customary international law, whether of a general kind or that particular to the inter-American legal system, there is no rule permitting the exercise of collective self-defense in the absence of a request by the State which regards itself as the victim of an armed attack. The requirement of a request by the State which is the victim of the alleged attack is additional to the requirement that such a State should have declared itself to have been attacked. The principle of non-intervention. The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference. Between independent States, respect for territorial sovereignty is an essential foundation of international relations, and international law requires political integrity also to be respected. Expressions of an opinio juris regarding the existence of the principle of non-intervention in customary international law are numerous and not difficult to find. The existence in the opinio juris of States of the principle of non-intervention is backed by established and substantial practice. It has moreover been presented as a corollary of the principle of the sovereign equality of States. A particular instance of this is the Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States. The principle has since been reflected in numerous declarations adopted by international organizations and conferences in which the US and Nicaragua have participated.

Always will b

* bok * cj * tiff * Gem * tin * Notwithstanding the multiplicity of declarations by States accepting the principle of non-intervention, there remain two questions: first, what is the exact content of the principle so accepted, and secondly, is the practice sufficiently in conformity with it for this to be a rule of customary international law? In view of the generally accepted formulations, the principle forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely, i.e. the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State. These forms of action are therefore wrongful in the light of both the principle of non-use of force, and that of non-intervention. In view of the nature of Nicaragua's complaints against the US, and those expressed by the US in regard to Nicaragua's conduct towards El Salvador, it is primarily acts of intervention of this kind with which the Court is concerned in the present case. However, before reaching a conclusion on the nature of prohibited intervention, the Court must be satisfied that State practice justifies it. It has to consider whether there might be indications of a practice illustrative of belief in a kind of general right for States to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State, whose cause appeared particularly worthy by reason of the political and moral values with which it was identified. For such a general right to come into existence would involve a fundamental modification of the customary law principle of non-intervention. As was observed in the North Sea Continental Shelf cases, for a new customary rule to be formed, not only must the acts concerned "amount to a settled practice", but they must be accompanied by the opinio juris sive necessitatis. Either the States taking such action or other States in a position to react to it must have behaved so that their conduct is "evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis." In recent years there have been a number of instances of foreign intervention in one State for the benefit of forces opposed to the government of that State. This practice doesnt justify the view that any general right of intervention in support of an opposition within another State exists in contemporary international law. Neither the US nor Nicaragua asserts this. Collective counter-measures to non-armed attack. If one State acts towards another State in breach of the principle of non-intervention, may a third State lawfully take such action by way of counter-measures against the first State as

15 would otherwise constitute an intervention in its internal affairs? A right to act in this way in the case of intervention would be analogous to the right of collective self-defense in the case of an armed attack, but both the act which gives rise to the reaction, and that reaction itself, would in principle be less grave. Does a State have a right to respond to intervention with intervention going so far as to justify a use of force in reaction to measures which do not constitute an armed attack but may nevertheless involve a use of force? For one State to use force against another, on the ground that that State has committed a wrongful act of force against a third State, is regarded as lawful, by way of exception, only when the wrongful act provoking the response was an armed attack. Thus the lawfulness of the use of force by a State in response to a wrongful act of which it has not itself been the victim is not admitted when this wrongful act is not an armed attack. Under international law in force today -whether customary international law or that of the UN system -- States do not have a right of "collective" armed response to acts which do not constitute an "armed attack". Furthermore, the US itself is relying on the "inherent right of selfdefense", but apparently does not claim that any such right exists as would, in respect of intervention, operate in the same way as the right of collective selfdefense in respect of an armed attack. State sovereignty. The Court should now mention the principle of respect for State sovereignty, which in international law is of course closely linked with the principles of the prohibition of the use of force and of non-intervention. The basic legal concept of State sovereignty in customary international law extends to the internal waters and territorial sea of every State and to the air space above its territory. As to superjacent air space, the 1944 Chicago Convention on Civil Aviation reproduces the established principle of the complete and exclusive sovereignty of a State over the air space above its territory. That convention further specifies that the sovereignty of the coastal State extends to the territorial sea and to the air space above it, as does the UN Convention on the Law of the Sea. The Court has no doubt that these prescriptions of treaty-law merely respond to firmly established and longstanding tenets of customary international law. The laying of mines within the ports of another State is governed by the law relating to internal waters, which are subject to the sovereignty of the coastal State. The position is similar as regards mines placed in the territorial sea. It is therefore the sovereignty of the coastal State which is affected in such cases. It is also by virtue of its sovereignty that the coastal State may regulate access to its ports. On the other hand, it is true that in order to enjoy access to ports, foreign vessels possess a customary right of innocent passage in territorial waters for the purposes of entering or leaving internal waters. Since freedom of navigation is guaranteed, first in the exclusive economic zones and beyond territorial waters and on the high seas, it follows that any State which enjoys a right of access to ports for its ships also enjoys all the freedom necessary for maritime navigation. If this right of access to the port is hindered by the laying of mines by another State, what is infringed is the freedom of communications and of maritime commerce. At all events, it is certain that interference with navigation in these areas prejudices both the sovereignty of the coastal State over its internal waters, and the right of Always will b

* bok * cj * tiff * Gem * tin * free access enjoyed by foreign ships. Humanitarian law. In peacetime for one State to lay mines in the internal or territorial waters of another is an unlawful act; but in addition, if a State lays mines in any waters whatever in which the vessels of another State have rights of access or passage, and fails to give any warning or notification whatsoever, in disregard of the security of peaceful shipping, it commits a breach of the principles of humanitarian law. Nicaragua has in the present proceedings not expressly invoked the provisions of international humanitarian law as such, even though it has complained of acts committed on its territory which would appear to be breaches of the provisions of such law. Since the evidence available is insufficient for the purpose of attributing to the US the acts committed by the contras, the Court rejects this submission. The question however remains of the law applicable to the acts of the US in relation to the activities of the contras. Although Nicaragua has refrained from making reference to the four Geneva Conventions of which both Nicaragua and the US are parties, the Court considers that the rules in Article 3, which is common to all four Geneva Conventions, applicable to armed conflicts of a noninternational character should be applied. In the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which reflect "elementary considerations of humanity." The conflict between the contras' forces and those of the Government of Nicaragua is an armed conflict which is "not of an international character". The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character; whereas the actions of the US in and against Nicaragua fall under the legal rules relating to international conflicts. Because the minimum rules applicable to international and to noninternational conflicts are identical, there is no need to address the question whether those actions must be looked at in the context of the rules which operate for the one or for the other category of conflict. The relevant principles are in Article 3. The Court considers that the US government has an obligation to "respect" the Conventions and even "to ensure respect" for them "in all circumstances", since such an obligation does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression. The US is thus under an obligation not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3, which reads as follows: "In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion

16 or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for . . . The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention . . ." ix. Application of the law to the facts

ISSUE: WON the acts of the US are justified by the exercise of its right of collective self-defense against armed attack. HELD: NO. The plea of collective self-defense cannot be upheld. The US has violated the principle prohibiting recourse to the threat or use of force. On use of force. What is unlawful is recourse to either the threat or the use of force against the territorial integrity or political independence of any State. For the most part, the complaints by Nicaragua are of the actual use of force against it by the US (laying of mines, attacks on infrastructure). These activities constitute infringements of the principle of the prohibition of the use of force, unless they are justified by circumstances which exclude their unlawfulness. As to the claim that US activities in relation to the contras constitute a breach of the customary international law principle of the non-use of force, the Court finds that, subject to the question whether the action of the US might be justified as an exercise of the right of self-defense, the US has committed a prima facie violation of that principle by its assistance to the contras in Nicaragua, by "organizing or encouraging the organization of irregular forces or armed bands . . . for incursion into the territory of another State", and "participating in acts of civil strife . . . in another State." Participation of this kind is contrary to the principle of the prohibition of the use of force when the acts of civil strife referred to "involve a threat or use of force". While the arming and training of the contras can certainly be said to involve the threat or use of force against Nicaragua, this is not necessarily so in respect of all the assistance given by the US Government (i.e. supply of funds to contras). Self-defense applicable? For the Court to conclude that the US was lawfully exercising its right of collective self-defense, it must first find that Nicaragua Always will b

* bok * cj * tiff * Gem * tin * engaged in an armed attack against El Salvador, Honduras or Costa Rica. As regards El Salvador, the Court has found that an intermittent flow of arms was routed via the territory of Nicaragua to the armed opposition in that country. The Court was not however satisfied that assistance has reached the Salvadorian armed opposition, on a scale of any significance, since the early months of 1981, or that the Government of Nicaragua was responsible for any flow of arms at either period. Even assuming that the supply of arms to the opposition in El Salvador could be treated as imputable to the Government of Nicaragua, to justify invocation of the right of collective self-defense in customary international law, it would have to be equated with an armed attack by Nicaragua on El Salvador. The Court is unable to consider that, in customary international law, the provision of arms to the opposition in another State constitutes an armed attack on that State. Turning to Honduras and Costa Rica, the Court has established that certain transborder incursions into the territory of those two States were imputable to the Government of Nicaragua. Very little information is however available to the Court as to the circumstances of these incursions or their possible motivations, which renders it difficult to decide whether they may be treated for legal purposes as amounting, singly or collectively, to an "armed attack." There are however other considerations which justify the Court in finding that neither these incursions, nor the alleged supply of arms to the opposition in El Salvador, may be relied on as justifying the exercise of the right of collective self-defense. An armed attack must have occurred. The exercise of the right of collective self-defense presupposes that an armed attack has occurred; and it is evident that it is the victim State, being the most directly aware of that fact, which is likely to draw general attention to its plight. It is also evident that if the victim State wishes another State to come to its help in the exercise of the right of collective selfdefense, it will normally make an express request to that effect. The Court has seen no evidence that El Salvador, Honduras, and Costa Rica believed that they were victims of an armed attack by Nicaragua, nor that they requested for help. So far as El Salvador is concerned, while it did in fact officially declare itself the victim of an armed attack, and did ask for the US to exercise its right of collective self-defense, this occurred only on a date much later than the commencement of the US activities. It stated for the first time in its Declaration of Intervention (filed 1984) its requests for help to the US for it to exercise its right of collective self-defense, asserting on this occasion that it had been the victim of aggression from Nicaragua "since at least 1980," when it had multiple chances to assert this before 1984. As to Honduras and Costa Rica, they also were prompted by the institution of proceedings in this case to address communications to the Court; in neither of these is there mention of armed attack or collective selfdefense. There is also an aspect of the conduct of the US which the Court is entitled to take into account as indicative of the view of that State on the question of the existence of an armed attack. At no time, up to the present, has the US Government addressed to the Security Council the report which is required by Article 51 of the

17 UN Charter in respect of measures which a State believes itself bound to take when it exercises the right of individual or collective self-defense. The Court, whose decision has to be made on the basis of customary international law, has already observed that in the context of that law, the reporting obligation enshrined in Article 51 of the Charter of the UN does not exist. It does not therefore treat the absence of a report on the part of the US as the breach of an undertaking forming part of the customary international law applicable to the present dispute. But the Court is justified in observing that this conduct of the US hardly conforms with the latter's avowed conviction that it was acting in the context of collective selfdefense as consecrated by Article 51 of the Charter. This fact is all the more noteworthy because, in the Security Council, the US has itself taken the view that failure to observe the requirement to make a report contradicted a State's claim to be acting on the basis of collective self-defense. Since the Court has found that the condition sine qua non required for the exercise of the right of collective self-defense by the US is not fulfilled in this case, the appraisal of the US activities in relation to the criteria of necessity and proportionality takes on a different significance. As a result of this conclusion of the Court, even if the US activities in question had been carried on in strict compliance with the canons of necessity and proportionality, they would not thereby become lawful. If however they were not, this may constitute an additional ground of wrongfulness. On the question of necessity, the US measures taken in December 1981 cannot be said to correspond to a "necessity" justifying the US action against Nicaragua on the basis of assistance given by Nicaragua to the armed opposition in El Salvador. First, these measures were only taken, and began to produce their effects, several months after the major offensive of the armed opposition against the Government of El Salvador had been completely repulsed, and the actions of the opposition considerably reduced in consequence. Thus it was possible to eliminate the main danger to the Salvadorian Government without the US embarking on activities in and against Nicaragua. Accordingly, it cannot be held that these activities were undertaken in the light of necessity. Whether or not the assistance to the contras might meet the criterion of proportionality, the Court cannot regard the US activities (the mining of the Nicaraguan ports and the attacks on ports, oil installations, etc.) as satisfying that criterion. Whatever uncertainty may exist as to the exact scale of the aid received by the Salvadorian armed opposition from Nicaragua, it is clear that these latter US activities in question could not have been proportionate to that aid. Finally the reaction of the US in the context of what it regarded as self-defense was continued long after the period in which any presumed armed attack by Nicaragua could reasonably be contemplated. ISSUE: WON the US violated the principle of non-intervention. HELD: YES. The support given by the US to the military and paramilitary activities of the contras in Nicaragua, by financial support, training, supply of weapons, intelligence and logistic support, constitutes a clear breach of the principle of nonintervention. The principle of non-intervention in the internal affairs of States. It is argued by Nicaragua that the "military and paramilitary activities aimed at the government Always will b

* bok * cj * tiff * Gem * tin * and people of Nicaragua" have two purposes: the actual overthrow of the existing lawful government of Nicaragua and its replacement by a government acceptable to the US; and the substantial damaging of the economy, and the weakening of the political system, in order to coerce the government into the acceptance of US policies and political demands. Nicaragua also contends that the various acts of an economic nature constitute a form of "indirect" intervention in Nicaragua's internal affairs. The Court however does not consider it necessary to seek to establish whether the intention of the US to secure a change of governmental policies in Nicaragua went so far as to be equated with an endeavor to overthrow the Nicaraguan Government. It appears to the Court to be clearly established first, that the US intended, by its support of the contras, to coerce the Government of Nicaragua in respect of matters in which each State is permitted, by the principle of State sovereignty, to decide freely; and secondly that the intention of the contras themselves was to overthrow the present Government of Nicaragua. Even if it be accepted, for the sake of argument, that the objective of the US in assisting the contras was solely to interdict the supply of arms to the armed opposition in El Salvador, it strains belief to suppose that a body formed in armed opposition to the Government of Nicaragua, and calling itself the "Nicaraguan Democratic Force", intended only to check Nicaraguan interference in El Salvador and did not intend to achieve violent change of government in Nicaragua. In international law, if one State, with a view to the coercion of another State, supports and assists armed bands in that State whose purpose is to overthrow the government of that State, that amounts to an intervention by the one State in the internal affairs of the other, whether or not the political objective of the State giving such support and assistance is equally far-reaching. The Court has however taken note that the US Congress has restricted the use of the funds appropriated for assistance to the contras to "humanitarian assistance". There can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law. The US legislation which limited aid to the contras to humanitarian assistance however also defined what was meant by such assistance, namely: "the provision of food, clothing, medicine, and other humanitarian assistance, and it does not include the provision of weapons, weapons systems, ammunition, or other equipment, vehicles, or material which can be used to inflict serious bodily harm or death. It is also to be noted that, while the US Congress has directed that the CIA and Department of Defense are not to administer any of the funds voted, it was understood that intelligence information might be "shared" with the contras. An essential feature of truly humanitarian aid is that it is given "without discrimination" of any kind. In the view of the Court, if the provision of "humanitarian assistance" is to escape condemnation as an intervention in the internal affairs of Nicaragua, not only must it be limited "to prevent and alleviate human suffering", and "to protect life and health and to ensure respect for the human being"; it must also, and above all, be given without discrimination to all in

18 need in Nicaragua, not merely to the contras and their dependents. Nicaragua has also asserted that the US is responsible for an "indirect" form of intervention in its internal affairs inasmuch as it has taken, to Nicaragua's disadvantage, certain action of an economic nature. While admitting in principle that some of these actions were not unlawful in themselves, counsel for Nicaragua argued that these measures of economic constraint add up to a systematic violation of the principle of non-intervention. The Court is unable to regard such action on the economic plane as is here complained of as a breach of the customary-law principle of non-intervention. The principle of non-intervention derives from customary international law. It would certainly lose its effectiveness as a principle of law if intervention were to be justified by a mere request for assistance made by an opposition group in another State -- supposing such a request to have actually been made by an opposition to the regime in Nicaragua in this instance. Indeed, it is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition. This would permit any State to intervene at any moment in the internal affairs of another State, whether at the request of the government or at the request of its opposition. ISSUE: WON the US activities might be justified as a response to an intervention by Nicaragua in the internal affairs of another State in Central America (supply of arms to opposition in El Salvador). HELD: NO, the applicable law does not warrant such a justification. No collective counter-measure. While an armed attack would give rise to an entitlement to collective self-defense, a use of force of a lesser degree of gravity cannot produce any entitlement to take collective counter-measures involving the use of force. The acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could only have justified proportionate counter-measures on the part of the State which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third State, the US, and particularly could not justify intervention involving the use of force. ISSUE: WON the US violated the principle of respect for territorial sovereignty. HELD: YES. Principles overlap. The effects of the principle of respect for territorial sovereignty inevitably overlap with those of the principles of the prohibition of the use of force and of non-intervention. Thus the assistance to the contras, as well as the direct attacks on Nicaraguan ports, oil installations, etc., not only amount to an unlawful use of force, but also constitute infringements of the territorial sovereignty of Nicaragua, and incursions into its territorial and internal waters. Similarly, the mining operations in the Nicaraguan ports not only constitute breaches of the principle of the non-use of force, but also affect Nicaragua's sovereignty over certain maritime expanses. The principle of respect for territorial Always will b

* bok * cj * tiff * Gem * tin * sovereignty is also directly infringed by the unauthorized overflight of a State's territory by aircraft belonging to or under the control of the government of another State. These violations cannot be justified either by collective self-defense, for which, as the Court has recognized, the necessary circumstances are lacking, nor by any right of the US to take counter-measures involving the use of force in the event of intervention by Nicaragua in El Salvador, since no such right exists under the applicable international law. They cannot be justified by the activities in El Salvador attributed to the Government of Nicaragua. Where the vessels of one State enjoy a right of access to ports of another State, if that right of access is hindered by the laying of mines, this constitutes an infringement of the freedom of communications and of maritime commerce. It is clear that interference with a right of access to the ports of Nicaragua is likely to have an adverse effect on Nicaragua's economy and its trading relations with any State whose vessels enjoy the right of access to its ports. Accordingly, the Court finds that the laying of mines in or near Nicaraguan ports constituted an infringement, to Nicaragua's detriment, of the freedom of communications and of maritime commerce. ISSUE: WON the general principles of humanitarian law were violated. HELD: YES. Mines, Manual on Guerilla Warfare. The Court has found the US responsible for the failure to give notice of the mines in the Nicaraguan ports. Nicaragua has accused the contras of violations both of the law of human rights and humanitarian law, and is attributing responsibility for these acts to the US. The Court has however found that this submission of Nicaragua cannot be upheld; but it has also found the US responsible for the publication and dissemination of the manual on "Psychological Operations in Guerrilla Warfare." The Court has also found that general principles of humanitarian law include a particular prohibition, accepted by States, and extending to activities which occur in the context of armed conflicts, whether international in character or not. By virtue of such general principles, the US is bound to refrain from encouragement of persons or groups engaged in the conflict in Nicaragua to commit violations of Article 3 which is common to all four Geneva Conventions. The Court takes note of the advice given in the manual on psychological operations to "neutralize" certain "carefully selected and planned targets", including judges, police officers, State Security officials, etc., after the local population has been gathered in order to "take part in the act and formulate accusations against the oppressor". In the view of the Court, this must be regarded as contrary to the prohibition in Article 3 of the Geneva Conventions, with respect to non-combatants, of "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples" and probably also of the prohibition of "violence to life and person, in particular murder to all kinds, . . .". The Court has also found that those responsible for the issue of the manual were aware of, at the least, allegations that the behavior of the contras in the field was

19 not consistent with humanitarian law; it was in fact even claimed by the CIA that the purpose of the manual was to "moderate" such behavior. The publication and dissemination of a manual in fact containing the advice quoted above must therefore be regarded as an encouragement, which was likely to be effective, to commit acts contrary to general principles of international humanitarian law reflected in treaties. ISSUE: WON there is anything in the conduct of Nicaragua which might legally warrant counter-measures by the US. HELD: NO. Matters of policy. The US claims that Nicaragua breached its "solemn commitments to the Nicaraguan people, the US, and the Organization of American States". Those breaches were stated to involve questions such as the composition of the government, its political ideology and alignment, totalitarianism, human rights, militarization and aggression. The questions as to which the Nicaraguan Government is said to have entered into a commitment are questions of domestic policy. The Court would not therefore normally consider it appropriate to engage in a verification of the truth of assertions of this kind, even assuming that it was in a position to do so. A State's domestic policy falls within its exclusive jurisdiction, provided of course that it does not violate any obligation of international law. Every State possesses a fundamental right to choose and implement its own political, economic and social systems. With reference to the "Plan to secure peace" put forward by the Junta of the Government of National Reconstruction, the Court is unable to find anything in the documents and communications transmitting the plan from which it can be inferred that any legal undertaking was intended to exist. The Court cannot contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system. Furthermore the US has not advanced a legal argument based on an alleged new principle of "ideological intervention". With regard more specifically to alleged violations of human rights relied on by the United States, the Court considers that the use of force by the United States could not be the appropriate method to monitor or ensure respect for such rights, normally provided for in the applicable conventions. With regard to the alleged militarization of Nicaragua, also referred to by the United States to justify its activities, the Court observes that in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited, and this principle is valid for all States without exception. x. Nicaraguas claims based on the 1956 Treaty

ISSUE: WON the US, by its conduct in relation to Nicaragua, has deprived the Treaty of its object and purpose, and emptied it of real content. HELD: YES. Always will b

* bok * cj * tiff * Gem * tin * Pacta sunt servanda. Nicaragua has relied on the existence of a legal obligation of States to refrain from acts which would impede the due performance of any treaties entered into by them. However, if there is a duty of a State not to impede the due performance of a treaty to which it is a party, that is not a duty imposed by the treaty itself. Nicaragua itself apparently contends that this is a duty arising under customary international law independently of the treaty, that it is implicit in the rule pacta sunt servanda. This claim therefore does not in fact fall under the heading of possible breach by the US of the provisions of the 1956 Treaty, though it may involve the interpretation or application thereof. However certain activities do undermine the spirit of the agreement: the mining of Nicaraguan ports, the direct attacks on ports, oil installations, etc., and the general trade embargo. The Court therefore finds that the United States is prima facie in breach of an obligation not to deprive the 1956 Treaty of its object and purpose (pacta sunt servanda), and has committed acts in contradiction with the terms of the Treaty. The Court has however to consider whether the exception in Article XXI concerning "measures . . . necessary to protect the essential security interests" of a Party may be invoked to justify the acts complained of. After examining the available material, the Court finds that the mining of Nicaraguan ports, and the direct attacks on ports and oil installations, and the general trade embargo cannot be justified as necessary to protect the essential security interests of the United States. ISSUE: WON Nicaragua is entitled to compensation. HELD: YES. Show sustained injury. The Court considers appropriate the request of Nicaragua for the nature and amount of the reparation due to it to be determined in a subsequent phase of the proceedings. While a certain amount of evidence has been provided of pecuniary loss sustained, this was based upon contentions as to the responsibility of the US which were more far-reaching than the conclusions at which the Court has been able to arrive. The opportunity should be afforded Nicaragua to demonstrate and prove exactly what injury was suffered as a result of each action of the US which the Court has found contrary to international law. Nor should it be overlooked that, while the US has chosen not to appear or participate in the present phase of the proceedings, Article 53 of the Statute does not debar it from appearing to present its arguments on the question of reparation if it so wishes. On the contrary, the principle of the equality of the Parties requires that it be given that opportunity. It goes without saying, however, that in the phase of the proceedings devoted to reparation, neither Party may call in question such findings in the present Judgment as have become res judicata. There remains the request of Nicaragua for an award of $370,200,000 as the "minimum valuation of direct damages". There is no provision in the Statute of the Court either specifically empowering the Court to make an interim award of this kind, or indeed debarring it from doing so. In view of the final and binding character of the Court's judgments, it would however only be appropriate to make an award of this kind, assuming that the Court possesses the power to do so, in

20 exceptional circumstances, and where the entitlement of the State making the claim was already established with certainty and precision. Regarding provisional measures. The Court considers that it is incumbent on each Party not to direct its conduct solely by reference to what it believes to be its rights. Particularly is this so in a situation of armed conflict where no reparation can efface the results of conduct which the Court may rule to have been contrary to international law. Peaceful settlement of disputes. The Court has found that the US has violated a number of principles of customary international law. The Court has however also to recall a further principle of international law, one which is complementary to the principles of a prohibitive nature examined above, and respect for which is essential in the world of today: the principle that the parties to any dispute, particularly any dispute the continuance of which is likely to endanger the maintenance of international peace and security, should seek a solution by peaceful means. This principle has also the status of customary law. The Court has already taken note of the diplomatic negotiation known as the Contadora Process, which appears to the Court to correspond closely to the spirit of the principle which the Court has here recalled. In its Order indicating provisional measures, the Court took note of the Contadora Process, and of the fact that it had been endorsed by the UN Security Council and General Assembly. During that phase of the proceedings as during the phase devoted to jurisdiction and admissibility, both Nicaragua and the US have expressed full support for the Contadora Process, and praised the results achieved so far. Therefore, the Court could not but take cognizance of this effort, which merits full respect and consideration as a unique contribution to the solution of the difficult situation in the region. The work of the Contadora Group may facilitate the delicate and difficult negotiations, in accord with the letter and spirit of the UN Charter, that are now required. The Court recalls to both Parties to the present case the need to cooperate with the Contadora efforts in seeking a definitive and lasting peace in Central America, in accordance with the principle of customary international law that prescribes the peaceful settlement of international disputes. For these reasons, THE COURT (1) By eleven votes to four, Decides that in adjudicating the dispute brought before it by the Application filed by the Republic of Nicaragua on 9 April 1984, the Court is required to apply the "multilateral treaty reservation" contained in proviso (c) to the declaration of acceptance of jurisdiction made under Article 36, paragraph 2, of the Statute of the Court by the Government of the US of America deposited on 26 August 1946; (2) By twelve votes to three, Always will b

* bok * cj * tiff * Gem * tin * Rejects the justification of collective self-defense maintained by the US of America in connection with the military and paramilitary activities in and against Nicaragua the subject of this case; (3) By twelve votes to three, (9) By fourteen votes to one, Decides that the US of America, by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to intervene in the affairs of another State; (4) By twelve votes to three, Decides that the US of America, by certain attacks on Nicaraguan territory in 1983-1984, namely attacks on Puerto Sandino on 13 September and 14 October 1983 ; an attack on Corinto on 10 October 1983 ; an attack on Potosi Naval Base on 4/5 January 1984; an attack on San Juan del Sur on 7 March 1984; attacks on patrol boats at Puerto Sandino on 28 and 30 March 1984; and an attack on San Juan del Norte on 9 April 1984; and further by those acts of intervention referred to in subparagraph (3) hereof which involve the use of force, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to use force against another State; (5) By twelve votes to three, Decides that the US of America, by directing or authorizing overflights of Nicaraguan territory, and by the acts imputable to the US referred to in subparagraph (4) hereof, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to violate the sovereignty of another State; (6) By twelve votes to three, Decides that, by laying mines in the internal or territorial waters of the Republic of Nicaragua during the first months of 1984, the US of America has acted, against the Republic of Nicaragua, in breach of its obligations under customary international law not to use force against another State, not to intervene in its affairs, not to violate its sovereignty and not to interrupt peaceful maritime commerce; (7) By fourteen votes to one, (14) By fourteen votes to one, Decides that, by the acts referred to in subparagraph (6) hereof, the US of America has acted, against the Republic of Nicaragua, in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the US of America and the Republic of Nicaragua signed at Managua on 21 January 1956; (8) By fourteen votes to one,

21

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

Finds that the US of America, by producing in 1983 a manual entitled Operaciones sicologicas en guerra de guerrillas, and disseminating it to contra forces, has encouraged the commission by them of acts contrary to general principles of humanitarian law; but does not find a basis for concluding that any such acts which may have been committed are imputable to the US of America as acts of the US of America; (10) By twelve votes to three, Decides that the US of America, by the attacks on Nicaraguan territory referred to in subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May 1985, has committed acts calculated to deprive of its object and purpose the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956; (11) By twelve votes to three, Decides that the US of America, by the attacks on Nicaraguan territory referred to in subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May 1985, has acted in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956; (12) By twelve votes to three, Decides that the US of America is under a duty immediately to cease and to refrain from all such acts as may constitute breaches of the foregoing legal obligations; (13) By twelve votes to three, Decides that the US of America is under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of obligations under customary international law enumerated above;

Decides that the US of America is under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Always will b

* bok * cj * tiff * Gem * tin * Managua on 21 January 1956; (15) By fourteen votes to one, Decides that the form and amount of such reparation, failing agreement between the Parties, will be settled by the Court, and reserves for this purpose the subsequent procedure in the case; (16) Unanimously, Recalls to both Parties their obligation to seek a solution to their disputes by peaceful means in accordance with international law.

22

Always will b