ICJ-NicaraguavsUSA-Judgement

6 DECEMBER 1984 JUDGMENT

INTERNATIONAL COURT OF JUSTICE REPORTS OF JUDGMENTS. ADVISORY OPINIONS AND ORDERS CASE CONCERNING MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA (NICARAGUA v. UNITED STATES OF AMERICA) JUDGMENT OF 6 DECEMBER 1984

For its judgment in the case concerning military and Paramilitary Activities in and against Nicaragua brought by Nicaragua against the United States of America, the Court was composed as follows: President Bouwmans, Vice- President Stark; Judges Klacansky, Bhatt, Geyer, Heinen, Viaud, Sadik, Melke, Rebaum, Jakob, Albert, O’Keeffe, Sisson, Warnecke

In the case concerning the military and paramilitary activies in and against Nicaragua, between The United States of America, Represented by Jannis Graeve and Max Frieder Schiel and Nicaragua, Represented by Edmond King

SUMMARY OF THE JUDGMENT Composed as above, after deliberation, delivers the following judgment: 1. On 6 December 1984 the government of Nicaragua filed in the Registry of the Court an application instituting proceedings against the United States of America with regard to the military and paramilitary actitivties in and against Nicaragua in which the United States’ obligation to negotiate in good faith and effectively with Nicaragua in order to reach an agreement that the United States shall not infringe on the territorial sovereignty, particuarly internal affairs, of Nicaragua. In its application, Nicaragua seeks to found the jurisdiction of the Court on the following claims; Based on the 24 September 1929 Declaration Recognizing the Jurisdiction of the Court as Compulsory, and by the very presence and application of Nicaragua to the International Court of Justice (ICJ), the court accepts this as a formal decision to incorporate the jurisdiciton of the ICJ. 2. In regards to the United States of America training, arming, equipping, and financing the Contra forces in Nicaragua, and encouraging, supporting, and aiding military and paramilitary actions, a. The Court finds that this was a breach of customary international law, in terms of not intervening in the affairs of another State. b. The Court also finds that this is a breach of codified international treaty law, regarding Articles 1, 3, 5, 9, and 12 of the Universal Declaration of Human Rights, Articles 1, 18, 19 of the Treaty of Friendship, Commerce, and Navigation, and Articles 1, 2, 33, 49, 55-56 of the Charter of the United Nations. 3. In regards to the United States of America directly attacking Nicaragua in 1983-1984, a. The Court finds this a breach of customary international law, in terms of breaking the obligation of not using force against another State.

1

b. The Court also finds that this is a breach of codified international treaty law, regarding Articles 1 and 2 of the Charter of the United Nations, and Articles 1, 18, 19 of the Treaty of Friendship, Commerce, and Navigation. 4. In regards to the United States of America directing and/or authorizing its aircrafts to fly over Nicaragua, a. The Court finds that this was a breach of customary international law, in terms of violating the airspace sovereignty of another State. b. The Court also finds that this was a breach of codified international treaty law, regarding Articles 1 and 2 of the Charter of the United Nations, and Articles 1, 18, 19 of the Treaty of Friendship, Commerce, and Navigation. 5. In regards to the United States of America laying mines in the internal waters and territorial seas of Nicaragua, a. The Court finds this violated international customary law, in terms of 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. b. The Court also finds that this is a breach of codified international treaty law, regarding Article 2 of Convention VIII of The Hague. 6. The court holds that there was not a case of collective self-defense. Indeed there is not sufficient evidence proving a case of individual self-defense regarding an armed attack in the meaning of Article 51 of the United Nations Charter of Nicaragua on Honduras, Costa Rica and El Salvador. 7. An armed attack would require a direct military or paramilitary strike attributable to the state against another country. The court is not of the opinion that the actions led by Nicaragua was in keeping with the definition of an armed attack. The Nicaraguan government armed private persons. However the mere supply of private persons with weapons is not a sufficient requirement that an attack may be attributable to a state. 8. In spite of the witness testifying that the United States of America had the duty to intervene in the conflict the court was not given any satisfactory evidence to support the statement.

2

9. In the event that the court found that there was a case of collective self-defense, the actions of the United States of America would not have been proportionate. According to the Caroline-test an action must be proportionate. To establish proportionality one has to seek the mildest means that has a same probability to sufficiently defuse the conflict. 10. In this case the United States of America had to exhaust all diplomatic means prior to taking intensive measures, pursuant to Article 26 of the Charter of the Organization of American States, they did not address the Security Council nor the General Assembly. 11. The question of the jurisdiction of the Court to entertain the dispute of Paragraph 36 on the statute of the international court of justice settles the courts authorization concerning its jurisdiction in differnet cases. 12. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. 13. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation. 14. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time. 15. Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.

3

16. 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. 17. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.“ 18. The declaration of Nicaragua and Article 36, paragraph 5 of the statute of the court to form the jurisdiction of the court Nicaragua refers to Article 36 Paragraph 5 of the statute of the international court of justice and the the Declaration Recognizing the Jurisdiction of the Permanent Court of Justice on the 24th of September 1929. 19. Due to the fact that Nicaragua withdrew from the League of Nations in 1936 the United States of America claims that Nicaragua never became a party to the Statute of the International Court of Justice. 20. The court is oft he opinion that once such declaration is made it continuously applies until stated differently by the state. The Applicant – Nicaragua, approached the Court to judge on its case which the Court

appraises to be an implied declaration of acceptance oft he

cumpulsory jurisdiction oft he court as in Article 36, paragraph 5 of the statute of the international court of justice. 21. In regards to the August 14 1946 declaration on the part of the United States of America: The Court finds this declaration not applicable due to inconsistency with the final subsection c, “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 United States of America specially agrees to jurisdiction,” seeing as the Court found the parties mentioned, Costa Rica, Honduras, and El Salvador, to not be adequately “affected” to be considered valid. 22.

Modification

to

the

declaration

of

the

United

States

The second modification that was made by the United States of America did not come into effect. The declaration was not made in time to come into effect before the first hearing of the court. The United States Recognition of Compulsory Jurisdiction states that any declarations shall come into effect 6 months after notice.

4

23. The Treaty of Friendship, Commerce and Navigation of 21 January 1956 as a basis of jurisdiction, the treaty was concluded in Managua with the United States on 21 January 1956. Article 24, paragraph 2, which reads as follows; 24. 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 agrees to settlement by some other pacific means.’ 25. Nicaragua submits that this treaty was violated by the military and paramilitary activities of the United States. The United States of America stated that diplomatic options were exhausted and there was no other means as to the military activities. The Court feels that diplomatic means should have been further explored and it has jurisdiction under the Treaty of 1956 to entertain the claims of the applicant.

5

OPERATIVE PART OF THE COURTS JUDGMENT THE COURT, (1) By eleven votes to two, Decides that the Court does have jurisdiction over the Case concerning the military and paramilitary activities in and against Nicaragua, IN FAVOUR:

Judges Klacansky, Albert, Melke, Geyer, Viaud, Sadik, Heinen, Bhatt,

Rebaum, Warnecke, Sisson; AGAINST: Judges Jakob , O’ Keeffe (2) By thirteen votes to zero, Decides that the United States did breach its customary international law obligations on the basis that it shall not 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 activates against Nicaragua, IN FAVOUR: Judges Klacansky, Albert, Melke, Geyer, Viaud, Sadik, Heinen, Bhatt, Rebaum, Warnecke, Sisson, Jakob, O’ Keeffe (3) By twelve votes against one, Decides that the United States did 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, voted twelve votes to one, IN FAVOUR: Judges Klacansky, Albert, Melke, Geyer, Viaud, Sadik, Heinen, Bhatt, Rebaum, Warnecke, Sisson AGAINST: Judge Heinen (4) By thirteen votes to zero, Decides that the United States did 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,

6

IN FAVOUR: Judges Klacansky, Albert, Melke, Geyer, Viaud, Sadik, Heinen, Bhatt, Rebaum Warnecke, Sisson, Jakob, O’ Keeffe (5) By thirteen votes to zero, Decides that the United States did 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 as listed above resulted in the use of force, IN FAVOUR: Judges Klacansky, Albert, Melke, Geyer, Viaud, Sadik, Heinen, Bhatt, Rebaum Warnecke, Sisson, Jakob, O’ Keeffe (6) By ten votes to three, Rejects the notation that the military and paramilitary activities that the United States undertook in and against Nicaragua be justified as collective self-defence? IN FAVOUR: Judges Viaud, Sadik, O’keeffe, Bhatt, Rebaum, Warmecke, Jakab, Klacanska, Sisson. AGAINST: Judges Albert, Melke, Geyer

7

SUMMARY OF THE OPINIONS APPENDED TO THE JUDGMENT OF THE COURT Dissenting Opinion of Judge Melke Judge Melke believes that, keeping in mind the unstable political situation in Nicaragua and the aggressive intention behind the action, arming private persons, that attack another country, qualifies as an attack attributable to the state. It is inconsistent with the fact that this very court agreed upon that the funding an training of guerrilla forces though the United States of America violated Nicaraguas sovereignty. Joined Dissenting Opinion of Judge Jakob and Judge O’Keeffe While we decided in favor of the Court’s holding on the merits of the judgement, we are of the opinion that the Court was not entitled to entertain jurisdiction on the case in the first place. It goes without saying that jurisdiction of the Court is based on the consent of the parties before it. We are of the opinion that this consent was given by Nicaragua by its 1929 Declaration of accepting the compulsory jurisdiction of the Permanent Court of International Justice. However, we contend that the Court should have found that the US did not consent to the Court’s jurisdiction by application of the multilateral treaty reservation. This provision stipulates that the US does not consent to jurisdiction on the matter of a multilateral treaty unless all parties affected by the Court’s decision are present in the proceedings. It is almost impossible to decide on the question of which States might be affected by the Court’s decision on this case, without looking on the merits of the case. While it is not in order to do so in the preliminary phase of finding if there is jurisdiction, we at least contend that the general circumstances of the case must be held in mind in order to see whether a country might be affected by the decision or not. It is for these reasons that the word “affected” has to be defined in rather abstract terms, which in my opinion encompasses all states that are a substantial part of the conflict brought before the Court. We therefore find that from a preliminary point of view, the surrounding States of Nicaragua, being El

8

Salvador, Honduras and Costa Rica are obviously part of the conflict and therefore might at least potentially be affected by a decision of this Court. As these three States are specified as the only parties missing before the Court, this, contrary to the argument of the Applicant, would not lead to an overly extensive interpretation of the word “affected”. The argument brought forward by the Applicant that in the event that the Court was still entitled to jurisdiction not on treaty, but on customary international law cannot be upheld. It is undisputed that customary international law stands beside treaty law on an equal level. However, a declaration by a State has to be interpreted in the way this State intended it to be. It would hence totally frustrate the US intention to exclude jurisdiction of the Court on cases of multilateral treaties, where not all States are before the Court in order to have their opinions considered, by simply using the very same provisions of customary law and base jurisdiction on that. For the foregoing reasons we therefore find that the Court lacks jurisdiction on the case. Dissenting Opinion of Judge Albert Judge Albert dissented from the opinion of the court that the military and paramilitary activities that the United States undertook in and against Nicaragua cannot be justified as collective self-defence. It is the opinion of the judge that Inter-American Treaty of Reciprocal Assistance authorises the United States to act in collective self defence against Nicaragua.

9

___________________ President Bouwmans

____________________ Vice- President Stark

______________________

_______________________

Judge Klacansky

Judge Jakob

______________________

_______________________

Judge Albert

Judge Melke

______________________

_______________________

Judge Geyer

Judge Viaud

______________________

_______________________

Judge Sadik

Judge Heinen

______________________

_______________________

Judge Bhatt

Judge Rebaum

______________________

_______________________

Judge Warnecke

Judge Sisson

______________________ Judge O’ Keeffe

10