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Aerial incidence case: Us vs.

Bulgaria ICJ 1959

Facts:

On the morning of July 27th, 1955, the civil Constellation aircraft No. 4X-AKC, wearing the Israel colours and belonging
to the Israel Company El Al Israel Airlines, Ltd., making a scheduled commercial flight between Vienna, Austria, and Lod
(Lydda) in Israel, having, without previous authorization, penetrated over Bulgarian territory, was shot down by aircraft
of the Bulgarian anti-aircraft defense forces. After catching fire, the Isreal crew, consisting of seven members, and also
the 51 passangers of various nationalities were killed.

In its Judgment, the Court first considered the First Preliminary Objection by Bulgaria.
In order to find the basis for the jurisdiction of the Court, the Government of Israel invoked the Declaration of acceptance of compulsory jurisd
1921, at the same time as Protocol of Signature of the Statute of the Permanent Court of International Justice, and Article 36, paragraph 5, of
Court of Justice, which reads as follows:
"Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are skill in force shall be deemed
present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to ru
terms."
To justify the application of the latter provision to the Bulgarian Declaration of 1921, the Government of Israel relied on the fact that Bulgaria
of the International Court of Justice on December 14th, 1955, as the result of its admission to the United Nations. The Bulgarian Government d
paragraph 5, transferred the effect of its Declaration to the jurisdiction of the International Court of Justice.
The Court had to determine whether Article 36, paragraph 5, is applicable to the Bulgarian Declaration. That it should apply in respect of decla
were represented at the San Francisco Conference and were signatories of the Charter and of the Statute can easily be understood. But is this
declarations made by other States, including Bulgaria? The text does not say so explicitly.
The Court observes that at the time of the adoption of the Statute a fundamental difference existed between the position of the signatory Sta
which might subsequently be admitted to the United Nations. This difference derived from the situation which Article 36, paragraph 5, was me
transfer to the International Court of Justice of declarations relating to the Permanent Court, which was on the point of disappearing. The que
were easily able to resolve as between themselves at that time would arise in a quite different form in the future as regards the other States.
Article 36, paragraph 5, considered in its application to States signatories of the Statute, effected a simple operation. The position would have
of declarations by non-signatory States. For the latter, such a transfer must necessarily involve two distinct operations, which might be separa
of time. On the one hand, old declarations would have had to have been preserved with immediate effect; on the other hand, they would hav
jurisdiction of the new Court. In addition to this fundamental difference in respect of the factors of the problem, there were special difficulties
acceptances by non-signatory States. In the case of signatory States, Article 36 paragraph 5, maintained an existing obligation while modifying
non-signatory States were concerned, the Statute, in the absence of their consent, could neither maintain nor transform their original obligati
force of the Statute, the dissolution of the Permanent Court freed them from that obligation. Accordingly, the question of a transformation of
longer arise so far as they were concerned; all that could be envisaged in their case was the creation of a new obligation binding upon them. T
5, to those States would be to allow that provision to do in their case something quite different from what it did in the case of signatory States
represented at San Francisco could have made an offer addressed to other States, for instance, an offer to consider their acceptance of the co
Permanent Court as an acceptance of the jurisdiction of the new Court, but there is nothing of this kind in Article 36, paragraph 5.
To restrict the application of this provision to the signatory States is to take into account the purpose for which it was adopted. At the time of
dissolution of the Permanent Court and, in consequence, the lapsing of acceptances of its compulsory jurisdiction were in contemplation. Rath
signatory States of the new Statute would deposit new declarations of acceptance, it was sought to provide for this transitory situation by a tr
situation is entirely different when, the old Court and the acceptance of its compulsory jurisdiction having long since disappeared, a State beco
new Court. To the extent that the records of the San Francisco Conference provide any indication as to the scope of the application of Article 3
that this paragraph was intended to deal with declarations of signatory States only and not with a State in the situation of Bulgaria.
However, the Government of Israel construed Article 36, paragraph 5, as covering a declaration made by a State which had not participated in
and which only became a party to the Statute of the International Court of Justice much later.
The Court, considering the matter from this angle also, found that Article 36, paragraph 5, could not in any event be operative as regards Bulga
admission to the United Nations, namely, December 14th, 1955. At that date, however, the Declaration of 1921 was no longer in force in cons
the Permanent Court in 1946. The acceptance set out in that Declaration of the compulsory jurisdiction of the Permanent Court was devoid of
longer in existence. And there is nothing in Article 36, paragraph 5, to reveal any intention of preserving all the declarations which were in exis
signature or entry into force of the Charter, regardless of the moment when a State having made a declaration became a party to the Statute.
respect of a State to which it applies, the birth of the compulsory jurisdiction of the new Court. It makes it subject to two conditions: (1) that t
declaration should be a party to the Statute, (2) that the declaration of that State should still be in force. Since the Bulgarian Declaration had la
admitted to the United Nations, it cannot be said that at that time that Declaration was still in force. The second condition is therefore not sat
Thus the Court finds that Article 36, paragraph 5, is not applicable to the Bulgarian Declaration of 1921. This view is confirmed by the fact that
inspiring Article 36, paragraph 5, to preserve existing acceptances and not to restore legal force to undertakings which had expired. On the oth
obtaining admission to the United Nations, Bulgaria accepted all the provisions of the Statute, including Article 36. But Bulgaria's acceptance o
not constitute consent to the compulsory jurisdiction of the Court, such consent can validly be given only in accordance with Article 36, paragr
Article 36, paragraph 5, cannot therefore lead the Court to find that the Bulgarian Declaration of 1921 provides a basis for its jurisdiction to de
circumstances it is unnecessary for the Court to proceed to consideration of the other Bulgarian Preliminary Objections.
*
**
Consequently, the Court finds, by twelve votes to four, that it is without jurisdiction to adjudicate upon the dispute brought before it by the Ap
Israel.
Vice-President Zafrulla Khan has appended a Declaration to the Judgment. Judges Badawi and Armand-Ugon have appended statements of the
Sir Hersch Lauterpacht, Wellington Koo and Sir Percy Spender have appended to the Judgment a statement of their Joint Dissenting Opinion. J
appended to the Judgment a statement of his Dissenting Opinion.

Nicaragua vs. USA

Facts of the Case:


In July 1979 the Government of President Somoza collapsed following an armed opposition led by the Frente
Sandinista de Liberacibn Nacional (FSLN) . The new government installed by FSLN began to meet armed opposition
from supporters of the former Somoza Government and ex-members of the National Guard. The US initially
supportive of the new government changed its attitude when, according to the United States, it found that Nicaragua
was providing logistical support and weapons to guerrillas in El Salvador. In April 1981 it terminated United States aid
to Nicaragua and in September 1981, according to Nicaragua, the United States decided to plan and undertake
activities directed against Nicaragua.
The armed opposition to the new Government was conducted mainly by (1) Fuerza Democratica Nicaragense (FDN),
which operated along the border with Honduras, and (2) Alianza Revolucionaria Democratica (ARDE), which operated
along the border with Costa Rica, (see map of the region). Initial US support to these groups fighting against the
Nicaraguan Government (called contras) was covert. Later, the United States officially acknowledged its support (for
example: 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).
Nicaragua also alleged that the United States is effectively in control of the contras, the United States devised their
strategy and directed their tactics and that they were paid for and directly controlled by United States personal.
Nicaragua also alleged that some attacks were carried out by United States military with the aim to overthrow the
Government of Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan ports and attacks on ports, oil
installations and a naval base. Nicaragua alleged that aircrafts belonging to the United States flew over Nicaraguan
territory to gather intelligence, supply to the contras in the field and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after refusing to accept the ICJs jurisdiction to
decide the case. The United States at the jurisdictional phase of the hearing, however, stated that it relied on an
inherent right of collective self-defence guaranteed in A. 51 of the UN Charter by providing, upon request,
proportionate and appropriate assistance to Costa Rica, Honduras and El Salvador in response to Nicaraguas alleged
acts aggression against those countries (paras. 126, 128).
Questions before the Court:
Did the United States breach its customary international law obligation not to intervene in the affairs of another
State when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided
the military and paramilitary activities against Nicaragua?
Did the United States breach its customary international law obligation not to use force against another State
when it directly attacked Nicaragua in 1983 1984 and when its activities in bullet point 1 above resulted in
the use of force?
If so, can the military and paramilitary activities that the United States undertook in and against Nicaragua be
justified as collective self-defence?
Did the United States breach its customary international law obligation not to violate the sovereignty of another
State when it directed or authorized its aircrafts to fly over Nicaraguan territory and by acts referred to in
bullet point 2 above?
Did the United States breach its customary international law obligations not to violate the sovereignty of another
State, not to intervene in its affairs, not to use force against another State and not to interrupt peaceful
maritime commerce when it laid mines in the internal waters and the territorial sea of Nicaragua?
ICJ decision: The United States violated customary international law in relation to bullet points 1, 2, 4 and 5 above. On
bullet point 3, the Court found that the United States could not rely on collective self-defence to justify its use of force
against Nicaragua.
Relevant Findings of the Court:
1. The court held that the United States breached its customary international law obligation not to use force
against another State: (1) when it directly attacked Nicaragua in 1983 1984; and (2) when its activities with the
contra forces resulted in the threat or use of force (see paras 187 -201).
The Court held that:
The prohibition on the use of force is found in Article 2(4) of the UN Charter and in customary international law.
In a controversial finding the court sub-classified the use of force as: (1) the most grave forms of the use of force
(i.e. those that constitute an armed attack) and (2) the less grave form (i.e. organizing, instigating, assisting
or participating in acts of civil strife and terrorist acts in another State when the acts referred to involve a
threat or use of force not amounting to an armed attack).
The United States violated the customary international law prohibition on the use of force when it laid mines in
Nicaraguan ports. It violated this prohibition when it attacked Nicaraguan ports, oil installations and a naval
base (see below). The United States could justify its action on collective self-defence, if certain criteria were
met this aspect is discussed below.
The United States violated the customary international law prohibition on the use of force when it assisted the
contras by organizing or encouraging the organization of irregular forces and armed bands for incursion
into the territory of another state and participated in acts of civil strifein another State when these acts
involved the threat or use of force.
The supply of funds to the contras did not violate the prohibition on the use of force. Nicaragua argued that the
timing of the offensives against it was determined by the United States: i.e. an offensive could not be
launched until the requisite funds were available. The Court held that it does not follow that each provision
of funds by the United States was made to set in motion a particular offensive, and that that offensive was
planned by the United States. The Court held further that while the arming and training of the contras
involved the threat or use of force against Nicaragua, the supply of funds, in it self, only amounted to an act
of intervention in the internal affairs of Nicaragua (para 227) this aspect is discussed below.
What is an armed attack?
A controversial but interesting aspect of the Courts judgement was its definition of an armed attack. The Court held
that an armed attack included:
(1) action by regular armed forces across an international border; and
(2) 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 (the States) substantial involvement therein
NB: The second point somewhat resembles Article 3 (g) of the UNGA Resolution 3314 (XXIX) on the Definition of
Aggression.
Mere frontier incidents are not considered as an armed attack unless because of its scale and effects it would have
been classified as an armed attack if it was carried out by regular forces.
Assistance to rebels in the form of provision of weapons or logistical support did not constitute an armed attack it
can be regarded as a threat or use of force, or an intervention in the internal or external affairs of other States
(see paras 195, 230).
Under Article 51 of the UN Charter and under CIL self-defence is only available against a use of force that amounts
to an armed attack (para 211).
NB: In in the Case Concerning Oil Platforms and the advisory opinion on the Legal Consequences of of the Construction
of a Wall in the Occupied Palestinian Territory (hereinafter called the Palestine wall case) the ICJ upheld the definition
of armed attack proposed in the Nicaragua case. In the Palestinian wall case, the attacks from which Israel was
claiming self defence originated from non-State actors. However, the Court held that Article 51s inherent right of self
defence was available to one State only against another State (para 139). Judges Higgins, Buergenthal and Kooijmans
opposed this narrow view. Articles on State Responsibility, prepared by the International Law Commission, provided
significant guidance as to when acts of non-State actors may be attributed to States. These articles, together with
recent State practice relating attacks on terrorists operating from other countries (see legal opinions surrounding the
United States attack on Afghanistan), may have widened the scope of an armed attack, and consequently, the right of
self defence, envisaged by the ICJ.
2. The Court held that the United States could not justify its military and paramilitary activities on the basis of
collective self-defence.
Customary international law allows for exceptions to the prohibition on the use of force including the right to
individual or collective self-defence (for a difference between the two forms of self defence, click here). The
United States, at an earlier stage of the proceedings, had asserted that the Charter itself acknowledges the
existence of this customary international law right when it talks of the inherent right of a State under Article
51 of the Charter (para.193).
When a State claims that it used force in collective self-defence, the Court would look into two aspects:
(1) whether the circumstances required for the exercise of self-defence existed and
(2) whether the steps taken by the State, which was acting in self-defence, corresponds to the requirements of
international law (i.e. did it comply with the principles of necessity and proportionality).
Several criteria must be met for a State to exercise the right of individual or collective self-defence:
(1) A State must have been the victim of an armed attack;
(2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether an armed attack took
place nor not is done by the state who was subjected to the attack. A third State cannot exercise a right of collective
self-defence based its (the third States) own assessment]; and
(3) In the case of collective self-defence the victim State must request for assistance (there is no rule permitting the
exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an
armed attack).
(4) The State does not, under customary international law, have the same obligation as under Article 51 of the UN
Charter to report to the Security Council that an armed attack happened but the absence of a report may be one of
the factors indicating whether the State in question was itself convinced that it was acting in self-defence (see below).
At this point, the Court may consider whether in customary international law there is any requirement corresponding
to that found in the treaty law of the United Nations Charter, by which the State claiming to use the right of
individual or collective self-defence must report to an international body, empowered to determine the conformity
with international law of the measures which the State is seeking to justify on that basis. Thus Article 51 of the United
Nations Charter requires that measures taken by States in exercise of this right of self-defence must be immediately
reported to the Security Council. As the Court has observed above (paragraphs 178 and 188), a principle enshrined in
a treaty, if reflected in customary international law, may well be so unencumbered with the conditions and modalities
surrounding it in the treaty. Whatever influence the Charter may have had on customary international law in these
matters, it is clear that in customary international law it is not a condition of the lawfulness of the use of force in self-
defence that a procedure so closely dependent on the content of a treaty commitment and of the institutions
established by it, should have been followed. On the other hand, if self-defence is advanced as a justification for
measures which would otherwise be in breach both of the principle of customary international law and of that
contained in the Charter, it is to be expected that the conditions of the Charter should be respected. Thus for the
purpose of enquiry into the customary law position, the absence of a report may be one of the factors indicating
whether the State in question was itself convinced that it was acting in self-defence (See paras 200, 232 -236).
The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and Honduras in determining
whether an armed attack was undertaken by Nicaragua against the three countries which in turn would
necessitate self-defence (paras 230 236). The Court referred to statements made by El Salvador, Costa Rica,
Honduras and the United States before the Security Council. None of the countries who were allegedly subject
to an armed attack by Nicaragua (1) declared themselves as a victim of an armed attack or
request assistance from the United States in self-defence at the time when the United States was allegedly
acting in collective self-defence; and (2) the United States did not claim that it was acting under Article 51 of
the UN Charter and it did not report that it was so acting to the Security Council. The Court concluded that the
United States cannot justify its use of force as collective self-defence.
The criteria with regard to necessity and proportionality, that is necessary when using force in self-defence was
also not fulfilled (para 237).
3. The Court held that the United States breached its CIL obligation not to intervene in the affairs of another State
when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military
and paramilitary activities against Nicaragua.
The principle of non- intervention means that every State has a right to conduct its affairs without outside
interference i.e it forbids States or groups of States to intervene directly or indirectly in internal or
external affairs of other States. . This is a corollary of the principle of sovereign equality of 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. One of these is 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 (para 205).
Nicaragua stated that the activities of the United States were aimed to overthrow the government of Nicaragua and
to substantially damage the economy and weaken the political system to coerce the Government of Nicaragua
to accept various political demands of the United States. The Court held:
first, that the United States 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 (see
paragraph 205 above) ; and secondly that the intention of the contras themselves was to overthrow the present
Government of Nicaragua The Court considers that 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 financial support, training, supply of weapons, intelligence and logistic support given by the United States to the
contras was a breach of the principle of non-interference. no such general right of intervention, in support
of an opposition within another State, exists in contemporary international law, even if such a request for
assistance is made by an opposition group of that State (see para 246 for more).
However, in a controversial finding, the Court held that the United States did not devise the strategy, direct the
tactics of the contras or exercise control on them in manner so as to make their acts committed in violation of
international law imputable to the United States (see in this respect Determining US responsibility for contra
operations under international law 81 AMJIL 86).T he Court concluded that a number of military and
paramilitary operations of the contras were decided and planned, if not actually by United States advisers,
then at least in close collaboration with them, and on the basis of the intelligence and logistic support which
the United States was able to offer, particularly the supply aircraft provided to the contras by the United
States but not all contra operations reflected strategy and tactics wholly devised by the United States.
In sum, the evidence available to the Court indicates that the various forms of assistance provided to the contras by
the United States have been crucial to the pursuit of their activities, but is insufficient to demonstrate their complete
dependence on United States aid. On the other hand, it indicates that in the initial years of United States assistance the
contra force was so dependent. However, whether the United States Government at any stage devised the strategy
and directed the tactics of the contras depends on the extent to which the United States made use of the potential for
control inherent in that dependence. The Court already indicated that it has insufficient evidence to reach a finding on
this point. It is a fortiori unable to determine that the contra force may be equated for legal purposes with the forces of
the United StatesThe Court has taken the view (paragraph 110 above) that United States 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 in the possession of the Court, for the purpose of attributing to the United States 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 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 the applicant State.
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.
Interesting, however, the Court also held that providing 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 (para 242).
In the event one State intervenes in the affairs of another State, the victim State has a right to intervene in a
manner that is short of an armed attack (210).
While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a lesser degree of
gravity cannot as the Court has already observed (paragraph 21 1 above). produce any entitlement to take collective
countermeasures 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 United States, and particularly could not justify intervention
involving the use of force.
4. The United States breached its customary international law obligation not to violate the sovereignty of another
State when it directed or authorized its aircrafts to fly over Nicaraguan territory and when it laid mines in the
internal waters of Nicaragua and its territorial sea.
The ICJ examined evidence and found that in early 1984 mines were laid in or close to ports of the territorial sea or
internal waters of Nicaragua by persons in the pay or acting ion the instructions of the United States and
acting under its supervision with its logistical support. The United States did not issue any warning on the
location or existence of mines and this resulted in injuries and increases in maritime insurance rates.
The court found that the United States also carried out high-altitude reconnaissance flights over Nicaraguan
territory and certain low-altitude flights, complained of as causing sonic booms.
The basic concept of State sovereignty in customary international law is found in Article 2(1) of the UN Charter.
State sovereignty extends to a States internal waters, its territorial sea and the air space above its territory.
The United States violated customary international law when it laid mines in the territorial sea and internal
waters of Nicaragua and when it carried out unauthorised overflights over Nicaraguan airspace by aircrafts
that belong to or was under the control of the United States.

CASE CONCERNING EAST TIMOR


(PORTUGAL v. AUSTRALIA)
Judgment of 30 June 1995
In its Judgment on the case concerning East Timor (Portugal v. Australia), the Court, by 14 votes to 2, found that it could not exercise the jurisd
declarations made by the Parties under Article 36, paragraph 2, of its Statute to adjudicate upon the dispute referred to it by the Application o
Those who voted in favour were: President Bedjaoui: Vice President Schwebel; Judges Oda, Sir Robert Jennings, Guillaume, Shahabuddeen, Ag
Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin; Judge ad hoc Sir Ninian Stephen.
Against: Judge Weeramantry; Judge ad hoc Skubiszewski.
Judges Oda, Shahabuddeen, Ranjeva, and Vereshchetin appended separate opinions to the Judgment of the Court.
Judge Weeramantry and Judge ad hoc Skubiszewski appended dissenting opinions to the Judgment of the Court.
__________
Summary of the Judgment
Procedural history (paras. 1-10)
In its Judgment the Court recalls that on 22 February 1991 Portugal instituted proceedings against Australia concerning "certain activities of Au
Timor". According to the Application Australia had, by its conduct, "failed to observe -- the obligation to respect the duties and powers of [Por
Power [of East Timor].. and... the right of the people of East Timor to self-determination and the related rights". In consequence, according to
"incurred international responsibility vis--vis both the people of East Timor and Portugal". As the basis for the jurisdiction of the Court, the A
declarations by which the two States have accepted the compulsory jurisdiction of the Court under Article 36, paragraph 2, of its Statute. In its
raised questions concerning the jurisdiction of the Court and the admissibility of the Application. In the course of a meeting held by the Presid
agreed that these questions were inextricably linked to the merits and that they should therefore be heard and determined within the framew
proceedings having been completed in July 1993, hearings were held between 30 January and 16 February 1995. The Judgment then sets out t
were presented by both Parties in the course of the oral proceedings.
Historical background (paras. 11-18)
The Court then gives a short description of the history of the involvement of Portugal and Indonesia in the Territory of East Timor and of a num
General Assembly resolutions concerning the question of East Timor. It further describes the negotiations between Australia and Indonesia lea
December 1989, which created a "Zone of Cooperation... in an area between the Indonesian Province of East Timor and Northern Australia".
Summary of the contentions of the Parties (paras. 19-20)
The Court then summarizes the contentions of both Parties.
Australia's objection that there exists in reality no dispute between the Parties (paras. 21-22)
The Court goes on to consider Australia's objection that there is in reality no dispute between itself and Portugal. Australia contends that the c
artificially limited to the question of the lawfulness of Australia's conduct, and that the true respondent is Indonesia, not Australia. Australia m
place of Indonesia. In this connection, it points out that Portugal and Australia have accepted the compulsory jurisdiction of the Court under A
Statute, but that Indonesia has not.
The Court finds in this respect that for the purpose of verifying the existence of a legal dispute in the present case, it is not relevant whether th
Portugal and Indonesia rather than Portugal and Australia. Portugal has, rightly or wrongly, formulated complaints of fact and law against Aust
denied. By virtue of this denial, there is a legal dispute.
Australia's objection that the Court is required to determine the rights and obligations of Indonesia (paras. 23-35)
The Court then considers Australia's principal objection, to the effect that Portugal's Application would require the Court to determine the righ
Australia contends that the jurisdiction conferred upon the Court by the Parties' declarations under Article 36, paragraph 2, of the Statute wou
if, in order to do so, the Court were required to rule on the lawfulness of Indonesia's entry into and continuing presence in East Timor, on the
between Australia and Indonesia, or on the rights and obligations of Indonesia under that Treaty, even if the Court did not have to determine
argument, it refers to the Court's Judgment in the case of the Monetary Gold Removed from Rome in 1943. Portugal agrees that if its Applica
decide any of these questions, the Court could not entertain it. The Parties disagree, however, as to whether the Court is required to decide an
to resolve the dispute referred to it.
Portugal contends first that its Application is concerned exclusively with the objective conduct of Australia, which consists in having negotiated
performance of the 1989 Treaty with Indonesia, and that this question is perfectly separable from any question relating to the lawfulness of th
Having carefully considered the argument advanced by Portugal which seeks to separate Australia's behaviour from that of the Indonesia, the
Australia's behaviour cannot be assessed without first entering into the question why it is that Indonesia could not lawfully have concluded th
allegedly could have done so; the very subject-matter of the Court's decision would necessarily be a determination whether, having regard to
Indonesia entered and remained in East Timor, it could or could not have acquired the power to enter into treaties on behalf of East Timor rela
continental shelf. The Court could not make such a determination in the absence of the consent of Indonesia.
The Court rejects Portugal's additional argument that the rights which Australia allegedly breached were rights erga omnes and that according
individually, to respect them regardless of whether or not another State had conducted itself in a similarly unlawful manner.
In the Court's view, Portugal's assertion that the right of peoples to self-determination, as it evolved from the Charter and from United Nation
character, is irreproachable. The principle of self-determination of peoples has been recognized by the United Nations Charter and in the jurisp
of the essential principles of contemporary international law. However, the Court considers that the erga omnes character of a norm and the r
are two different things. Whatever the nature of the obligations invoked, the Court could not rule on the lawfulness of the conduct of a State w
an evaluation of the lawfulness of the conduct of another State which is not a party to the case.
The Court goes on to consider another argument of Portugal which, the Court observes, rests on the premise that the United Nations resolutio
the Security Council, can be read as imposing an obligation on States not to recognize any authority on the part of Indonesia over East Timor a
concerned, to deal only with Portugal. Portugal maintains that those resolutions would constitute "givens" on the content of which the Court w
novo.
The Court takes note of the fact that, for the two Parties, the Territory of East Timor remains a non-self governing territory and its people has
and that the express reference to Portugal as the "administering Power" in a number of the above-mentioned resolutions is not at issue betwe
however, that it cannot be inferred from the sole fact that a number of resolutions of the General Assembly and the Security Council refer to P
Power of East Timor that they intended to establish an obligation on third States to treat exclusively with Portugal as regards the continental s
prejudice to the question whether the resolutions under discussion could be binding in nature, the Court considers as a result that they canno
constitute a sufficient basis for determining the dispute between the Parties.
It follows from this that the Court would necessarily have to rule upon the lawfulness of Indonesia's conduct as a prerequisite for deciding on P
Australia violated its obligation to respect Portugal's status as administering Power, East Timor's status as a non-self governing territory and th
Territory to self-determination and to permanent sovereignty over its wealth and natural resources. Indonesia's rights and obligations would t
matter of such a judgment made in the absence of that State's consent. Such a judgment would run directly counter to the "well-established p
embodied in the Court's Statute, namely, that the Court can only exercise jurisdiction over a State with its consent" (Monetary Gold Removed
Reports 1954, p. 32).
Conclusions (paras. 36-37)
The Court accordingly finds that it is not required to consider Australia's other objections and that it cannot rule on Portugal's claims on the m
of the questions raised by those claims and of the rules of international law which they bring into play.
The Court recalls in any event that it has taken note in the Judgment that, for the two Parties, the Territory of East Timor remains a non-self go
has the right to self-determination.

THE EL SALVADOR V. HONDURAS CASE

I. FACTS (A BRIEF OVERVIEW)


Material
Before 1821, Central America was a colony of Spain under Spanish administration
1821 - independence was achieved by the Federal Republic of Central America
1839 - the Federal Republic of Central America broke up, with Honduras and El Salvador becoming
independent states
land, island and maritime dispute between Honduras and El Salvador erupts in 1969 Soccer war
a series of unsuccessful or partially successful dispute resolution efforts
1972 agreement - 13 unresolved disputes
1980 Peace Treaty - 6 unresolved disputes
the JTC effort fails
thereafter, El Salvador and Honduras reached a "Special Agreement" for the ICJ to resolve the
remaining 6 disputed areas/boundaries

Legal - the ICJ agreed to hear the case in a 5-judge ICJ Chamber

II. ISSUES
Specific
How are the 6 territorial disputes to be resolved?
How is the uti possidetis principle to be applied here in the absence of persuasive documentary
evidence?

General
What is the nature of the uti possidetis principle?
How is the uti possidetis principle to be applied in the absence of persuasive documentary
evidence?

III. HOLDING
The ICJ applied the uti possidetis principle to the 6 disputes
IV. SALIENT PRINCIPLES
"The principle of uti possidetis is concerned as much with title to territory as with the location of
boundaries" (that is, the principle can be applied to general territorial questions, not simply those of
boundaries per se)

"certainly a key aspect of the principle is the denial of the possibility of terra nullius" (that is, once a colony
becomes an independent state, the new state's territory cannot be acquired by another state
through occupation of "no-man's land")

"uti possidetis is essentially a retrospective principle, INVESTING as international boundaries


administrative limits intended originally for quite different purposes" (implicit here: the approach to
territorial disputes draws upon old demarcations, divisions NOT intended to serve as future state
boundaries)

Lacking "persuasive documentary evidence of the location of the boundary at the time the states gained
their independence" the Court:

attached weigh to a geographical feature

invoked "equity infra legem" (the IL "general principle" of "fairness") -- the Court adopted a
boundary originally proposed in 1869

considered the conduct of the parties in the period following independence (how the new states
acted then suggested how they then viewed the territorial situation)

"possession backed by the exercise of sovereignty may be taken as evidence confirming


uti possidetis juris title"
practically the only way in which the uti possidetis juris could find formal expression so as
to be judicially recognized and determined"