Home Random Page


CATEGORIES:

BiologyChemistryConstructionCultureEcologyEconomyElectronicsFinanceGeographyHistoryInformaticsLawMathematicsMechanicsMedicineOtherPedagogyPhilosophyPhysicsPolicyPsychologySociologySportTourism






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: 641


<== previous page | next page ==>
New Fashions in Clothing are Created solely for the Commercial Exploitation of Women | VOCABULARY PRACTICE
doclecture.net - lectures - 2014-2020 year. Copyright infringement or personal data (0.086 sec.)