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Reports 1978, p. 7, para. 15 ; United States Diplornatic and Consular Staff in
I. C.J. Reports 1973, p. 7, para. 12 ; p. 54, para. 13 ; I. C.J. Reports
1974, p. 9, para. 17 ; p. 18 1, para. 18 ; Nuclear Tests, I. C.J. Reports 1974,
p. 257, para. 15 ; p. 461, para. 15 ; Aegean Sea Continental Shelf, I. C.J.
Reports 1978, p. 7, para. 15 ; United States Diplornatic and Consular Staff in
Tehran, I. C.J. Reports 1980, p. 18, para. 33)... Furthermore the Court is bound to
emphasize that 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. The fact that a State purports to "reserve its rights" in respect of a future decision of the Court, after the Court has determined
that it has jurisdiction, is clearly of no effect on the validity of that decision.
Under Article 36, paragraph 6, of its Statute, the Court has jurisdiction to
determine any dispute as to its own jurisdiction, and its judgment on that
matter, as on the ments, is final and binding on the parties under Articles 59
and 60 of the Statute (cf. Corfu Channel, Judgment of 15 December 1949,
I.C.J. Reports 1949, p. 248).
28. When Article 53 of the Statute applies, the Court is bound to
"satisfy itself, not only that it has jurisdiction in accordance with Articles
36 and 37, 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 in accordance with Article 59 of the Statute. There is
however no question of a judgment automatically in favour of the party
appearing, since the Court is required, as mentioned above, to "satisfy
itself" that that party's claim is well founded in fact and law.
29. The use of the term "satisfy itself" in the English text of the Statute
(and in the French text the term "s'assurer") implies that the Court must
attain the same degree of certainty as in any other case that the claim of the
party appearing is sound in law, and, so far as the nature of the case
permits, that the facts on which it is based are supported by convincing
evidence. For the purpose of deciding whether the claim is well founded in
law, the principle jura novit curia signifies that the Court is not solely
dependent on the argument of the parties before it with respect to the
applicable law (cf. "Lotus", P.C.I.J., Series A, No. 10, p. 31), so that the
absence of one party has less impact. As the Court observed in the Fisheries
Jurisdiction cases :
"The Court . . ., as an international judicial organ, is deemed to take
judicial notice of international law, and is therefore required in a case
falling under Article 53 of the Statute, as in any other case, to consider
on its own initiative al1 rules of international law which may be relevant to the settlement of the dispute. It being the duty of the Court
itself to ascertain and apply the relevant law in the given circumstances
of the case, the burden of establishing or proving rules of
international law cannot be imposed upon any of the parties, for the
law lies within the judicial knowledge of the Court." (I.C.J. Reports
1974, p. 9, para. 17 ; p. 181, para. 18.)
30. As to the facts of the case, in principle the Court is not bound to
confine its consideration to the material formally submitted to it by the
parties (cf. Brazilian Loans, P.C.I.J., Series A, No. 20/21, p. 124 ; Nuciear
Tests, I.C.J. Reports 1974, pp. 263-264, paras. 31, 32). Nevertheless, the
Court cannot by its own enquiries entirely make up for the absence of one
of the Parties ; that absence, in a case of this kind involving extensive
questions of fact, must necessarily limit the extent to which the Court is
informed of the facts. It would furthermore be an over-simplification to
conclude that the only detrimental consequence of the absence of a party is
the lack of opportunity to submit argument and evidence in support of its
own case. Proceedings before the Court cal1 for vigilance by all. The absent
party also forfeits the opportunity to counter the factual allegations of its
opponent. It is of course for the party appearing to prove the allegations it
makes, yet as the Court has held :
"While Article 53 thus obliges the Court to consider the submissions
of the Party which appears, it does not compel the Court to
examine their accuracy in al1 their details ; for this rnight in certain
unopposed cases prove impossible in practice." (Corfu Channel, 1. C..'f.
Reports 1949, p. 248.)
31. ...where one party is not appearing "it is
especially incumbent upon the Court to satisfy itself that it is in possession
of all the available facts" (Nuclear Tests, I.C.J. Reports 1974, p. 263,
para. 31 ; p. 468, para. 32).
33. legal dispute – where international law is relevant or controlling
As the Court pointed out
in the Nottebohm case :
"When an Application is filed at a time when the law in force
between the parties entails the compulsoryjurisdiction of the Court. . .
the filing of the Application is merely the condition required to enable
the clause of compulsory jurisdiction to produce its effects in respect
of the claim advanced in the Application. Once this condition has
been satisfied, the Court must deal with the claim ; it has jurisdiction
to deal with al1 its aspects, whether they relate to jurisdiction, to
admissibility or to the merits. An extrinsic fact such as the subsequent lapse of the Declaration [or, as in the present case also, the Treaty
containing a compromissory clause], by reason of the expiry of the
period or by denunciation, cannot deprive the Court of the jurisdiction
already established." (I.C.J. Reports 1953, p. 123.)
38. The present case is the first in which the Court has had occasion to
exercise the power first provided for in the 1972 Rules of Court to declare
that a preliminary objection "does not possess, in the circumstances of the
case, an exclusively preliminary character". It may therefore be appropriate
to take this opportunity to comment briefly on the rationale of this
provision of the Rules, in the light of the problems to which the handling of
preliminary objections has given rise.
39. Under the Rules of Court dating back to 1936 (which on this point
reflected still earlier practice), the Court had the power tojoin an objection
to the merits "whenever the interests of the good administration of justice
require it" (Panevezys-Saldutiskis Railway, P. C. I.J., Series A / B, No. 75, p. 56), and in particular where the Court, if it were to decide on the
objection, "would run the risk of adjudicating on questions which appertain
to the merits of the case or of prejudging their solution" (ibid.).
40. ... In the Panevezys-Saldutiskis Railway case, the
Permanent Court defined a preliminary objection as one
"submitted for the purpose of excluding an examination by the Court
of the merits of the case, and being one upon which the Court can give
a decision without in any way adjudicating upon the merits" (P.C.I.J.,
Series A/B, No. 76, p. 22)... The
final solution adopted in 1972, and maintained in the 1978 Rules, concerning
preliminary objections is the following : the Court is to give its
decision
"by which it shall either uphold the objection, reject it, or declare that
the objection does not possess, in the circumstances of the case, an
exclusively preliminary character. If the Court rejects the objection, or
declares that it does not possess an exclusively preliminary character,
it shall fix time-limits for the further proceedings." (Art. 79,
para. 7.)
41. While the variety of issues raised by preliminary objections cannot
possibly be foreseen, practice has shown that there are certain kinds of
preliminary objections which can be disposed of by the Court at an early
stage without examination of the merits. Above all, it is clear that a
question of jurisdiction is one which requires decision at the preliminary stage of the proceedings. The new rule enumerates the objections contemplated
as follows :
"Any objection by the respondent to thejurisdiction of the Court or
to the admissibility of the application, or other objection the decision
upon which is requested before any further proceedings on the
merits . . ." (Art. 79, para. 1.)
It thus presents one clear advantage : that it qualifies certain objections as
preliminary, making it quite clear that when they are exclusively of that
character they will have to be decided upon immediately, but if they are
not. especially when the character of the objections is not exclusively
preliminary because they contain both preliminary aspects and other
aspects relating to the merits. they will have to be dealt with at the stage of
the merits. This approach also tends to discourage the unnecessary prolongation
of proceedings at the jurisdictional stage.
42. The 1984 Judgment included pronouncements on certain aspects of that
reservation. but the Court then took the view that it was neither necessary
nor possible, at the jurisdictional stage of the proceedings, for it to take a
position on al1 the problems posed by the reservation. (43.) It regarded this as not necessary because, in its Application, Nicaragua had not confined its claims to breaches of multilateral treaties but
had also invoked a number of principles of "general and customary international
law", as well as the bilateral Treaty of Friendship, Commerce and
Navigation of 1956.
... "it is only
when the general lines of the judgment to be given become clear", the
Court said, "that the States 'affected' could be identified"...
45. ... But it is clear
that the fact that the United States, having refused to participate at the
merits stage, did not have an opportunity to press again at that stage the
argument which, in the jurisdictional phase, it founded on its multilateral
treaty reservation cannot be tantamount to a waiver of the argument
drawn from the reservation.
56. ... It should however be recalled that, as will be explained further below, the
effect of the reservation in question is confined to barring the applicability
of the United Nations Charter and Organization of American States
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.
58. A further aspect of this case is that the conflict to which it relates has
continued and is continuing. It has therefore been necessary for the Court
to decide, for the purpose of its definition of the factual situation, what
period of time, beginning from the genesis of the dispute, should be taken
into consideration. The Court 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. While the Court is of course very well aware, from
reports in the international press, of the developments in Central America
since that date, it cannot, as explained below (paragraphs 62 and 63), treat
such reports as evidence, nor has it had the benefit of the comments or
argument of either of the Parties on such reports. As the Court recalled
in the Nuclear Tests cases, where facts, apparently of such a nature as
materially to affect its decision, came to its attention after the close of
the hearings :
"It would no doubt have been possible for the Court, had it considered
that the interests of justice so required, to have afforded the
Parties the opportunity, e.g., by reopening the oral proceedings, of
addressing to the Court comments on the statements made since the
close of those proceedings." (I.C.J. Reports 1974, p. 264, para. 33 ;
p. 468, para. 34.)
Neither Party has requested such action by the Court ; and since the
reports to which reference has been made do not suggest any profound
modification of the situation of which the Court is seised, but rather its
intensification in certain respects, the Court has seen no need to reopen the
hearings.
62. At al1 events, in the present case the Court has before it documentary
material of various kjnds from various sources. A large number of
documents has been supplied in the form of reports in press articles, and
some also in the form of extracts from books. Whether these were produced
by the applicant state, or bythe absent Party before it ceased to
appear in the proceedings, the Court has been careful to treat them with
great caution ; even if they seem to meet high standards of objectivity, the
Court regards them not as evidence capable of proving facts, but as
material which can nevertheless contribute, in some circumstances, to
corroborating the existence of a fact, Le., as illustrative material additional
to other sources of evidence.
63. However, although it is perfectly proper that press information
should not be treated in itself as evidence for judicial purposes, public
knowledge of a fact may nevertheless be established by means of these
sources of information, and the Court can attach a certain amount of
weight to such public knowledge. In the case of United States Diplontaticand Consular Staff in Tehran, the Court referred to facts which "are, for the
most part, matters of public knowledge which have received extensive
coverage in the world press and in radio and television broadcasts from
Iran and other countries" (I.C.J. Reports 1980, p. 9, para. 12). On the basis
of information, including press and broadcast material, which was "wholly
consistent and concordant as to the main facts and circumstances of the
case", the Court was able to declare that it was satisfied that the allegations
of fact were well-founded (ibid., p. 10, para. 13). The Court has however to
show particular caution in this area. Widespread reports of a fact may
prove on closer examination to derive from a single source, and such
reports. however numerous, will in such case have no greater value as
evidence than the original source.
64. The material before the Court also includes statements by representatives
of States, sometimes at the highest political level. Some of these
statements were made before officia1 organs of the State or of an international
or regional organization, and appear in the official records of
those bodies. Others, made during press conferences or interviews, were
reported by the local or international press. The Court takes the view that
statements of this kind, emanating from high-ranking official political
figures. sometimes indeed of the highest rank, are of particular probative
value when they acknowledge facts or conduct unfavourable to the State
represented by the person who made them. They may then be construed as
a form of admission.
65. ... The Court must
take account of the manner in which the statements were made public ;
evidently, it cannot treat them as having the same value irrespective of
whether the text is to be found in an officiai national or international
publication, or in a book or newspaper. It must also take note whether the
text of the officia1 statement in question appeared in the language used by
the author or on the basis of a translation... It may also be relevant whether or not such a statement was
brought to the Court's knowledge by officia1 communications filed in
conformity with the relevant requirements of the Statute and Rules of
Court.
68. The Court has not treated as evidence any part of the testimony
given which was not a statement of fact, but a mere expression of opinion
as to the probability or otherwise of the existence of such facts, not directly
known to the witness. Testimony of ths kind, which may be highly subjective,
cannot take the place of evidence. An opinion expressed by a
witness is a mere persona1 and subjective evaluation of a possibility. which
has yet to be shown to correspond to a fact ; it may, in conjunction with
other material, assist the Court in determining a question of fact, but is not
proof in itself. Nor is testimony of matters not within the direct knowledge
of the witness, but known to him only from hearsay, of much weight.
69. ... These
declarations at ministerial level on each side were irreconcilable as to their
statement of certain facts. In the view of the Court. this evidence is of such
a nature as to be placed in a special category. In the general practice of
courts, two forms of testimony which are regarded as prima facie of
superior credibility are, first the evidence of a disinterested witness - one
who is not a party to the proceedings and stands to gain or lose nothing
from its outcome - and secondly so much of the evidence of a party as is
against its own interest. Indeed the latter approach was invoked in this case
by counsel for Nicaragua.
70. ... The Court thus considers that it can certainly retain such parts
of the evidence given by Ministers, orally or in writing, as may be regarded
as contrary to the interests or contentions of the State to which the witness
owes allegiance, or as relating to matters not controverted. For the rest.
while in no way impugning the honour or veracity of the Ministers of either
Party who have given evidence, the Court considers that the special circumstances
of this case require it to treat such evidence with great reserve.
71. However, before outlining the limits of the probative effect of
declarations by the authorities of the States concerned, the Court would
recall that such declarations may involve legal effects, some of which it has
defined in previous decisions (Nuclear Tests, United Sures Diplornutic and
Consular Staff in Tehran cases). Among the legal effects which such
declarations may have is that they may be regarded as evidence of the truth
of facts, as evidence that such facts are attributable to the States the
authorities of which are the authors of these declarations and, to a lesser
degree, as evidence for the legal qualification of these facts.
72. ... But the Court considers that, in its quest for the truth, it may also
take note of statements of representatives of the Parties (or of other States)
in international organizations, as well as the resolutions adopted or discussed
by such organizations, in so far as factually relevant, whether or not
such material has been drawn to its attention by a Party.
73. 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", Sandjnista Intervention in Central America intended
to justify the policy of the United States towards Nicaragua... The
Court however considers that, in view of the special circumstances of this
case, it may, within limits, make use of information in such a publication...
74. ... The Court would observe that the
normal purpose of an invocation of self-defence is tojustify 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... The Court thus cannot consider reliance on self-defence to be an implicit
general admission on the part of the United States ; but it is certainly a
recognition as to the imputability of some of the activities complained
of.
106. In the light of the evidence and material available to it, the Court is
not satisfied that al1 the operations launched by the contra force, at every
stage of the conflict, reflected strategy and tactics wholly devised by the
United States. However, it is in the Court's view established that the
support of the United States authorities 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, the
use of sophisticated methods of communication, the deployment of field
broadcasting networks, radar coverage, etc. The Court finds it clear that a
number of rnilitary and paramilitary operations by this force 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.
107. To sum up, despite the secrecy which surrounded it, at least initially,
the financial support given by the Government of the United States
to the military and paramilitary activities of the contras in Nicaragua is a
fully established fact. The legislative and executive bodies of the respondent
State have moreover, subsequent to the controversy which has been
sparked off in the United States, openly admitted the nature, volume and
frequency of this support. Indeed, they clearly take responsibility for it,
this government aid having now become the major element of United
States foreign policy in the region.
108. Despite the large quantity of documentary evidence and testimony
which it has examined, the Court has not been able to satisfy itself that the
respondent State "created" the contra force in Nicaragua. It seems certain that members of the former Somoza National Guard, together with civilian
opponents to the Sandinista régime, withdrew from Nicaragua soon after
that régime was installed in Managua, and sought to continue their struggle
against it, even if in a disorganized way and with limited and ineffectual
resources, before the Respondent took advantage of the existence of these
opponents and incorporated this fact into its policies vis-à-vis the régime of
the Applicant. Nor does the evidence warrant a finding that the United
States gave "direct and critical combat support", at least if that form of
words is taken to mean that this support was tantamount to direct intervention
by the United States combat forces, or that al1 contra operations
reflected strategy and tactics wholly devised by the United States. On the
other hand, the Court holds it established that the United States authorities
largely financed, trained, equipped, armed and organized the
FDN.
109. What the Court has to determine at this point is whether or not the
relationship of the contras to the United States Government was so much
one of dependence on the one side and control on the other that it would be
right to equate the contras, for legal purposes, with an organ of the United
States Government, or as acting on behalf of that Govemment... Yet despite the heavy subsidies and other support provided to them by
the United States, there is no clear evidence of the United States having
actually exercised such a degree of control in al1 fields as tojustify treating
the contras as acting on its behalf.
110. ... 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... It
is afortiori unable to determine that the contra force may be equated for legal purposes with the forces of the United States. This conclusion,
however, does not of course suffice to resolve the entire question of the
responsibility incurred by the United States through its assistance to the
contras.
115. The 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. Al1 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 operations in thecourse of which the
alleged violations were committed.
116. ... 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-à-vis Nicaragua,
including conduct related to the acts 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. Itis 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 tirne, 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. In this respect, the material facts are
primarily those connected with the issue in 1983 of a manual of psychological
operations.
122. The Court concludes that in 1983 an agency of the United States
Government supplied to the FDN a manual on psychological guerrilla
warfare which, while expressly discouraging indiscriminate violence
against civilians, considered the possible necessity of shooting civilians
who were attempting to leave a town ; and advised the "neutralization" for
propaganda purposes of local judges, officials or notables after the semblance of trial in the presence of the population. The text supplied to the
contras also advised the use of professional criminals to perform unspecified
"jobs", and the use of provocation at mass demonstrations to produce
violence on the part of the authorities so as to make "martyrs".
127. ... In the Court's
view, however, if Nicaragua has been giving support to the armed opposition
in El Salvador, and if this constitutes an armed attack on El Salvador
and the other appropriate conditions are met, collective self-defence could
be legally invoked by the United States, even though there may be the
possibility of an additional motive, one perhaps even more decisive for the
United States, drawn from the political orientation of the present Nicaraguan
Government. The existence of an additional motive, other than
that officially proclaimed by the United States, could not deprive the latter
of its right to resort to collective self-defence.
135. ... In short, the Court notes that the evidence of a witness called by Nicaragua
in order to negate the allegation of the United States that the Government
of Nicaragua had been engaged in the supply of arms to the
armed opposition in El Salvador only partly contradicted that allegation.
141. The full significance of the documents reproduced in the first of
these publications, which are "written using cryptic language and abbreviations",
is not readily apparent, without further assistance from United
States experts, who might have been called as witnesses had the United
States appeared in the proceedings. For example, there are frequent references
to "Lagos" which, according to the United States, is a code-name
for Nicaragua ; but without such assistance the Court cannot judge
whether this interpretation is correct.
143. The Court's attention has also been drawn to various press reports
of statements by diplomats, by leaders of the armed opposition in El
Salvador, or defectors from it... As the Court has already explained. it regards
press reports not as evidence capable of proving facts, but considers that
they can nevertheless contribute, in some circumstances. to corroborating
the existence of a particular fact (paragraph 62 above)...
147. The evidence or material offered by Nicaragua in connection with
the allegation of arms supply has to be assessed bearing in mind the fact
that, in responding to that allegation, Nicaragua has to prove a negative.
155. ...As the Court observed in
1949 :
"it cannot be concluded from the mere fact of the control exercised by
a State over its territory and waters that that State necessarily knew, or
ought to have known, of any unlawful act perpetrated therein, nor yet
that it necessarily knew, or should have known, the authors. This fact,
by itself and apart from other circumstances, neither involvesprima
facie responsibility nor shifts the burden of proof." (Corfu Channel,
1. C.J. Reports 1949, p. 18.)
156. In passing, the Court would remark that, if this evidence really
existed, the United States could be expected to have taken advantage of it
in order to forestall or disrupt the traffic observed ; it could presumably for
example arrange for the deployment of a strong patrol force in El Salvador
and Honduras, along the frontiers of these States with Nicaragua. It is
difficult to accept that it should have continued to carry out military and
paramilitary activities against Nicaragua if their only purpose was, as
alleged, to serve as a riposte in the exercise of the right of collective
self-defence. If, on the other hand, this evidence does not exist, that, as the
Court has pointed out, implies that the arms traffic is so insignificant and casual that it escapes detection even by the sophisticated techniques
employed for the purpose...
165. In view of the assertion by the United States that it has acted in
exercise of the right of collective self-defence for the protection of El
Salvador, Honduras and Costa Rica, the Court has also to consider the
evidence available on the question whether those States, or any of them,
made a request for such protection.
175. ... On a nurnber of points, the areas governed by the two sources of
law do not exactly overlap, and the substantive rules in which they are
frarned are not identical in content. But in addition, even if a treaty norrn
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 rnust necessarily deprive the custornary
norm of its separate applicability....
176. ... On one essential point, this treaty itself refers to
pre-existing custornary international law ; this reference to custornary law
is contained in the actual text of Article 5 1, which mentions the "inherent
right" (in the French text the "droit naturel") of individual or collective
self-defence... The Court therefore finds
that Article 5 1 of the Charter is only rneaningful on the basis that there is a
"natural" or "inherent" right of self-defence, and it is hard to see how this
can be other than of a custornary nature, even if its present content has
been confirmed and influenced by the Charter. Moreover the Charter,
having itself recognized the existence of this right, does not go on to
regulate directly al1 aspects of its content. For exarnple, it does not contain
any specific rule whereby self-defence would warrant only rneasures which
are proportional to the arrned attack and necessary to respond to it, a rule
well established in custornary international law. Moreover, a definition of
the "armed attack" which, if found to exist, authorizes the exercise of the
"inherent right" of self-defence, is not provided in the Charter, and is not
part of treaty law. It cannot therefore be held that Article 51 is a provision
which "subsumes and supervenes" custornary international law.
177. 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" (I.C.J. Reports
1969, p. 39, para. 63).
178. ... 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" (in the words of Art. 60,
para. 3(b), of the Vienna Convention on the Law of Treaties), it is
exempted, vis-à-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 identical in treaty law
and in customary international law are also distinguishable by reference to
the methods of interpretation and application...
18 1. The question raised by this argument is whether the provisions of
the multilateral treaties in question, particularly the United Nations Charter,
diverge from the relevant rules of customary international law to such
an extent that a judgrnent 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,
and not "susceptible of any compliance or execution whatever" (Northern
Cameroons, I.C.J. Reports 1963, p. 37)... 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.
183. In view of this conclusion, the Court has next to consider what are
the rules of customary international law applicable to the present dispute.
For this purpose, it has to direct its attention to the practice and opiniojuris
of States ; as the Court recently observed,
"It is of course axiomatic that the material of customary international
law is to be looked for primarily in the actual practice and opinio
juris of States, even though multilateral conventions may have an
important role to play in recording and defining rules deriving from
custom, or indeed in developing them." (Continental Shelf (Libyan
Arab Jarnahiriyu/ Malta), I. C.J. Reports 1985, pp. 29-30, para. 27.)
In this respect the Court must not lose sight of the Charter of the United
Nations and that of the Organization of American States, notwithstanding
the operation of the multilateral treaty reservation.
186. 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 orjustifications 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.
187. The Court must therefore determine, first, the substance of the
customary rules relating to the use of force in international relations,
applicable to the dispute submitted to it...
188. ... 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 al1 due caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States
towards certain General Assembly resolutions, and particularly resolution
2625 (XXV) entitled "Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance
with the Charter of the United Nations". 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.
189. As regards the United States in particular, the weight of an expression
of opiniojuris can similarly be attached to its support of the resolution
of the Sixth International Conference of American States condemning
aggression (18 February 1928) and ratification of the Montevideo Convention
on Rights and Duties of States (26 December 1933)... Also significant is
United States 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 (Helsinki, 1 August 1975), whereby the participating
States undertake to "refrain in their mutual relations, as well as in
their international relations in general, "(emphasis added) 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.
190. A further confirmation of the validity as customary international
law of the principle of the prohibition of the use of force... 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. The International
Law Commission, in the course of its work on the codification of the law of
treaties, expressed the view that "the law of the Charter concerning the
prohibition of the use of force in itself constitutes aconspicuous example
of a rule in international law having the character of jus cogens »...
191. ... the adoption by States of this text [Declaration on Principles
of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations] affords an indication of their
opinio juris as to customary international law on the question.
193. ... First, with regard to the existence of this right, it
notes that in the language of Article 5 1 of the United Nations Charter, the
inherent right (or "droit naturel") which any State possesses in the event of
an armed attack, covers both collective and individual self-defence. Thus,
the Charter itself testifies to the existence of the rieht of collective self- .2
defence in customary international law...
194. ... Since the
existence of the right of collective self-defence is established in customary
international law, the Court must define the specific conditions which may
have to be met for its exercise, in addition to the conditions of necessity and
proportionality to which the Parties have referred.
195. 195. In the case of individual self-defence, the exercise of this right is
subject to the State concerned having been the victim of an armed attack... 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 Article 3, paragraph
(g), of the Definition of Aggression annexed to General Assembly resolution
3314 (XXIX), may be taken to reflect customary international law... 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 interna1 or external affairs of
other States. amount to intervention in the interna1 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-defence on the basis of
its own assessment of the situation. Where collective self-defence 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.
196. The question remains whether the lawfulness of the use of collective
self-defence by the third State for the benefit of the attacked State also
depends on a request addressed by that State to the third State. A provision
of the Charter of the Organization of American States is here in point : and
while the Court has no jurisdiction to consider that instrument as applicable
to the dispute, it may examine it to ascertain what light it throws on
the content of customary international law...
199. At al1 events, the Court finds that 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-defence in
the absence of a request by the State which regards itself as the victim of an
armed attack.
200. ... 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 ajustification 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.
202. The principle of non-intervention involves the right of every sovereign
State to conduct its affairs without outside interference... Of course, statements whereby States avow their
recognition of the principles of international law set forth in the United
Nations Charter cannot strictly be interpreted as applying to the principle
of non-intervention by States in the interna1 and external affairs of other
States, since this principleis not, as such, spelt out in thecharter. But it was
never intended that the Charter should embody written confirmation of
every essential principle of international law in force. The existence in the
opinio juris of States of the principle of non-intervention is backed by
established and substantial practice.
203. The principle has since been reflected in numerous declarations
adopted by international organizations and conferences in which the
United States and Nicaragua have participated, e.g., General Assembly
resolution 2131 (XX), the Declaration on the Inadmissibility of Intervention
in the Domestic Affairs of States and the Protection of their Independence
and Sovereignty. It is true that the United States, while it voted
in favour of General Assembly resolution 21 3 1 (XX), also declared at the
time of its adoption in the First Committee that it considered the declaration
in that resolution to be "only a statement of political intention and
not a formulation of law" (Official Records of the General Assembly,
Twentieth Session, First Committee, A/C. 1 /SR. 1423, p. 436). However,
the essentials of resolution 2131 (XX) are repeated in the Declaration
approved by resolution 2625 (XXV), which set out principles which the
General Assembly declared to be "basic principles" of international law,
and on the adoption of which no analogous statement was made by the
United States representative.
204. ... In a different context, the United States expressly accepted the
principles set forth in the declaration, to which reference has already been
made, appearing in the Final Act of the Conference on Security and
Co-operation in Europe (Helsinki, 1 August 1975), including an elaborate
statement of the principle of non-intervention ; while these principles were
presented as applying to the mutual relations among the participating
States, it can be inferred that the text testifies to the existence, and the
acceptance by the United States, of a customary principle which has
universal application.
205. ... in view of the generally accepted formulations, the
principle forbids al1 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.
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 subversiveor terrorist
armed activities within another State. As noted above (paragraph 191).
General Assembly resolution 2625 (XXV) equates assistance of this kind
with the use of force by the assisting State when the acts committed in
another State "involve a threat or use of force"...
206. ... 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.
207. ... The
significance for the Court of cases of State conduct prima facie inconsistent
with the principle of non-intervention lies in the nature of the ground
offered as justification. Reliance by a State on a novel right or an unprecedented
exception to the principle rnight, if shared in principle by other
States, tend towards a modification of customary international law. In fact
however the Court finds that States have not justified their conduct by
reference to a new right of intervention or a new exception to the principle
of its prohibition. The United States authorities have on some occasions
clearly stated their grounds for intervening in the affairs of a foreign State
for reasons connected with, for example, the domestic policies of that
country, its ideology, the level of its arrnaments, or the direction of its
foreign policy. But these were statements of international policy, and not
an assertion of rules of existing international law.
209. The Court therefore finds that no such general right of intervention,
in support of an opposition within another State, exists in contemporary
international law. The Court concludes that acts constituting a
breach of the customary principle of non-intervention will also, if they directly or indirectly involve the use of force, constitute a breach of the
principle of non-use of force in international relations.
Date: 2015-12-11; view: 1491
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