For Nicaragua : H.E. Mr. Carlos Argüello Gômez,
Hon. Abram Chayes,
Mr. Ian Brownlie,
Mr. Paul S. Reichler,
Mr. Alain Pellet.
For the United States of America : Hon. Davis R. Robinson,
Mr. Patrick M. Norton,
Mr. Myres McDougal,
Mr. Louis B. Sohn,
Mr. John Norton Moore.
On behalf of Nicaragua,
at the end of the Memorial :
"Nicaragua submits that:
A. The jurisdiction of the Court to entertain the dispute presented in the Application is established by the terms of the declaration of Nicaragua of 24 September 1929 under Article 36 (5) and the declaration of the United States of 14 August 1946 under Article 36 (2) of the Statute of the International Court of Justice.
B. Nicaragua’s declaration of 24 September 1929 is in force as a valid and binding acceptance of the compulsory jurisdiction of the Court.
C. The attempt by the United States to modify or terminate the terms of its declaration of 14 August 1946 by a letter dated 6 April 1984 from Secretary of State George Shultz to the Secretary-General of the United Nations was ineffective to accomplish either result.
D. The Court has jurisdiction under Article XXIV (2) of the Treaty of Friendship, Commerce and Navigation between the United States and Nicaragua of 24 May 1958 over claims presented by this Application falling within the scope of the Treaty.
E. The Court is not precluded from adjudicating the legal dispute presented in the Application by any considerations of admissibility and the Application is admissible."
On behalf of the United States of America,
at the end of the Counter-Memorial :
"May it please the Court, on behalf of the United States of America, to adjudge and declare, for each and all of the foregoing reasons, that the claims set forth in Nicaragua’s Application of 9 April 1984 (1) are not within the jurisdiction of this Court and (2) are inadmissible."
On behalf of Nicaragua
(hearing of 10 October 1984) :
"Maintaining the arguments and submissions contained in the Memorial presented on 30 June 1984 and also the arguments advanced in the oral hearings on behalf of Nicaragua :
The Government of Nicaragua requests the Court to declare that jurisdiction exists in respect of the Application of Nicaragua filed on 9 April 1984, and that the subject-matter of the Application is admissible in its entirety."
On behalf of the United States of America,
(hearing of 16 October 1984) :
"May it please the Court, on behalf of the United States of America, to adjudge and declare, for each and all of the reasons presented in the oral argument of the United States and in the Counter-Memorial of the United States of 17 August 1984, that the claims set forth in Nicaragua’s Application of 9 April 1984, (1) are not within the jurisdiction of the Court and (2) are inadmissible."
"The Members of the League of Nations and the States mentioned in the Annex to the Covenant may, either when signing or ratifying the Protocol to which the present Statute is adjoined, or at a later moment, declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other Member or State accepting the same obligation, the jurisdiction of the Court"
in any of the same categories of dispute as listed in paragraph 2 of Article 36 of the Statute of the postwar Court, set out above. Nicaragua relies further on paragraph 5 of Article 36 of the Statute of the present Court, which provides that :
"Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms."
[Translation from the French]
"On behalf of the Republic of Nicaragua I recognize as compulsory unconditionally the jurisdiction of the Permanent Court of International Justice.
Geneva, 24 September 1929.
(Signed) T. F. Medina."
"ESTATUTO Y PROTOCOLO CORTE PERMANENTE JUSTICIA INTERNACIONAL LA HAYA YA FUERON RATIFICADOS PUNTO ENVIARSELE OPORTUNAMENTE INSTRUMENTO RATIFICACION-RELACIONES." [Translation]
(Statute and Protocol Permanent Court International Justice The Hague have already been ratified. Will send you in due course Instrument Ratification. Relations.)
The files of the League of Nations however contain no record of an instrument of ratification ever having been received. No evidence has been adduced before the Court to show that such an instrument of ratification was ever despatched to Geneva. On December 16th, 1942, the Acting Legal Adviser of the Secretariat of the League of Nations wrote to the Foreign Minister of Nicaragua to point out that he had not received the instrument of ratification "dont le dépôt est nécessaire pour faire naître effectivement l’obligation" (the deposit of which is necessary to cause the obligation to come into effective existence). In the Nicaraguan Memorial, it was stated that "Nicaragua never completed ratification of the old Protocol of Signature" ; at the hearings, the Agent of Nicaragua explained that the records are very scanty, and he was therefore unable to certify the facts one way or the other. He added however that if instruments of ratification were sent, they would most likely have been sent by sea, and, the Second World War being then in progress, the attacks on commercial shipping may explain why the instruments appear never to have arrived. After the war, Nicaragua took part in the United Nations Conference on International Organization at San Francisco and became an original Member of the United Nations, having ratified the Charter on 6 September 1945 ; on 24 October 1945 the Statute of the International Court of Justice, which is an integral part of the Charter, came into force.
"According to a telegram dated November 29th, 1939, addressed to the League of Nations, Nicaragua had ratified the Protocol of Signature of the Statute of the Permanent Court of International Justice (December 16th, 1920), and the instrument of ratification was to follow. Notification concerning the deposit of the said instrument has not, however, been received in the Registry."
The Yearbook 1946-1947 also includes a list (p. 221) entitled "List of States which have recognized the compulsory jurisdiction of the International Court of Justice or which are still bound by their acceptance of the Optional Clause of the Statute of the Permanent Court of International Justice (Article 36 of the Statute of the International Court of Justice)" and this list includes Nicaragua (with a footnote cross-reference to the page where its 1929 Declaration is reproduced).
"According to a telegram dated November 29th, 1939, addressed to the League of Nations, Nicaragua had ratified the Protocol of Signature of the Statute of the Permanent Court of International Justice (December 16th, 1920), and the instrument of ratification was to follow. It does not appear, however, that the instrument of ratification was ever received by the League of Nations."
A note to the same effect has been included in subsequent Yearbooks up to the present time.
"The texts of declarations set out in this Chapter are reproduced for convenience of reference only. The inclusion of a declaration made by any State should not be regarded as an indication of the view entertained by the Registry or, a fortiori, by the Court, regarding the nature, scope or validity of the instrument in question."
It concludes that it is clear that successive Registrars and the Yearbooks of the Court never adopted, and indeed expressly rejected, Nicaragua’s contention as to the effect of Article 36, paragraph 5, of the Statute. So far as the United Nations publications are concerned, the United States points out that where they cite their source of information, they invariably refer to the I.C.J. Yearbook, and none of them purport to convey any authority.
So far as the characteristics of Nicaragua’s declaration are concerned, the Court notes that, at the time when the question of the applicability of the new Statute arose, that is, on its coming into force, that declaration was certainly valid, for under the system of the Permanent Court of International Justice a declaration was valid on condition that it had been made by a State "either when signing or ratifying" the Protocol of Signature of the Statute "or at a later moment", whereas under the present Statute, declarations under Article 36, paragraph 2, can only be made by "States parties to the present Statute". Since Nicaragua had signed that Protocol, its declaration concerning the compulsory jurisdiction of the Permanent Court, which was not subject to ratification, was undoubtedly valid from the moment it was received by the Secretary-General of the League of Nations (cf. Right of Passage over Indian Territory, I.C.J. Reports 1957, p. 146). The Statute of the Permanent Court did not lay down any set form or procedure to be followed for the making of such declarations, and in practice a number of different methods were used by States. Nevertheless this declaration, though valid, had not become binding under the Statute of the Permanent Court. It may be granted that the necessary steps had been taken at national level for ratification of the Protocol of Signature of the Statute. But Nicaragua has not been able to prove that it accomplished the indispensable step of sending its instrument of ratification to the Secretary-General of the League of Nations. It did announce that the instrument would be sent : but there is no evidence to show whether it was. Even after having been duly informed, by the Acting Legal Adviser of the League of Nations Secretariat, of the consequences that this might have upon its position vis-à-vis the jurisdiction of the Permanent Court, Nicaragua failed to take the one step that would have easily enabled it to be counted beyond question as one of the States that had recognized the compulsory jurisdiction of the Permanent Court of International Justice. Nicaragua has in effect admitted as much.
"the clear intention which inspired Article 36, paragraph 5, was to continue in being something which was in existence, to preserve existing acceptances, to avoid that the creation of a new Court should frustrate progress already achieved" (I.C.J. Reports 1959, p. 145).
"Consent to the transfer to the International Court of Justice of a declaration accepting the jurisdiction of the Permanent Court may be regarded as effectively given by a State which, having been represented at the San Francisco Conference, signed and ratified the Charter and thereby accepted the Statute in which Article 36, paragraph 5, appears." (I.C.J. Reports 1959, p. 142.)
"The Foreign Minister informs me that the decree was never published in La Gaceta. He also declared that there is no record to the instrument of ratification having been transmitted to Geneva. It would appear that, while appropriate legislative action was taken in Nicaragua to approve adherence to the Protocol, Nicaragua is not legally bound thereby, in as much as it did not deposit its official document of ratification with the League of Nations."
According to the United States, the United States and Nicaragua could only have understood at that point in time that Nicaragua was not bound by the Optional Clause, and that understanding never changed.
"some doubt as to whether Nicaragua would be officially obligated to submit to the International Court because an instrument of ratification of the Court’s jurisdiction was never sent".
It is contended that the United States relied on these representations by Nicaragua ; the United States has produced documents to support the claims that the entire premise of United States diplomatic efforts was that Nicaragua was not a party to the Optional Clause, and observes that in the eventual proceedings before the Court between Nicaragua and Honduras, Nicaragua manifested its hostility to the compulsory jurisdiction of the Court. Nicaragua has made no direct reply to the United States argument of estoppel, which was only fully developed during the oral proceedings ; however, the position of Nicaragua as to its own conduct is, as indicated above, that so far from having represented that it was not bound by the Optional Clause, on the contrary its conduct unequivocally constituted consent to be so bound.
"One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international cooperation, in particular in an age when this co-operation in many fields is becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration. Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected." (Ibid., p. 268, para. 46 ; p. 473, para. 49.)
"when a case is submitted to the Court, it is always possible to ascertain what are, at that moment, the reciprocal obligations of the Parties in accordance with their respective Declarations" (I.C.J. Reports 1957, p. 143).
"It is not necessary that the ‘same obligation’ should be irrevocably defined at the time of the deposit of the Declaration of Acceptance for the entire period of its duration. That expression means no more than that, as between States adhering to the Optional Clause, each and all of them are bound by such identical obligations as may exist at any time during which the Acceptance is mutually binding." (Ibid., p. 144.)
The coincidence or interrelation of those obligations thus remain in a state of flux until the moment of the filing of an application instituting proceedings. The Court has then to ascertain whether, at that moment, the two States accepted "the same obligation" in relation to the subject-matter of the proceedings ; the possibility that, prior to that moment, the one enjoyed a wider right to modify its obligation than did the other, is without incidence on the question.
"disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction".
This reservation will be referred to for convenience as the "multilateral treaty reservation". Of the two remaining provisos to the declaration, it has not been suggested that proviso (a), referring to disputes the solution of which is entrusted to other tribunals, has any relevance to the present case. As for proviso (b), excluding jurisdiction over "disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States of America", the United States has informed the Court that it has determined not to invoke this proviso, but "without prejudice to the rights of the United States under that proviso in relation to any subsequent pleadings, proceedings, or cases before this Court".
"The United States of America is using military force against Nicaragua and intervening in Nicaragua’s internal affairs, in violation of Nicaragua’s sovereignty, territorial integrity and political independence and of the most fundamental and universally accepted principles of international law. The United States has created an ‘army’ of more than 10,000 mercenaries... installed them in more than ten base camps in Honduras along the border with Nicaragua, trained them, paid them, supplied them with arms, ammunition, food and medical supplies, and directed their attacks against human and economic targets inside Nicaragua",
and that Nicaragua has already suffered and is now suffering grievous consequences as a result of these activities. The purpose of these activities is claimed to be
"to harass and destabilize the Government of Nicaragua so that ultimately it will be overthrown, or, at a minimum, compelled to change those of its domestic and foreign policies that displease the United States".
"the other States of Central America have stated their view that Nicaragua’s request for the indication of provisional measures directly implicates their rights and interests, and that an indication of such measures would interfere with the Contadora negotiations. These other Central American States are indispensable parties in whose absence this Court cannot properly proceed." (I.C.J. Reports 1984, p. 184, para. 35.)
The United States then referred to communications addressed to the Court by the Governments of Costa Rica and El Salvador, and a telex message to the United Nations Secretary-General addressed by the Government of Honduras which, according to the United States, "make it quite clear that Nicaragua’s claims are inextricably linked to the rights and interests of those other States", and added "Any decision to indicate the interim measures requested, or a decision on the merits, would necessarily affect the rights of States not party to the proceedings" (ibid.). It should be pointed out, however, that in none of the communications from the three States mentioned by the United States was there any indication of an intention to intervene in the proceedings before the Court between Nicaragua and the United States of America, and one (Costa Rica) made it abundantly clear that it was not to be regarded as indicating such an intention. At a later date El Salvador did of course endeavour to intervene.
"The United States notes that the allegations of the Government of Nicaragua comprise but one facet of a complex of interrelated political, social, economic and security matters that confront the Central American region. Those matters are the subject of a regional diplomatic effort, known as the ‘Contadora Process’, which has been endorsed by the Organization of American States, and in which the Government of Nicaragua participates." (I.C.J. Reports 1984, p. 183, para. 33.)
To this Nicaragua then replied that, while it was
"actively participating in the Contadora Process, and will continue to do so, our legal claims against the United States cannot be resolved, or even addressed, through that Process" (ibid., p. 185, para. 38).
Nicaragua further denied that the present proceedings could prejudice the legitimate rights of any other States or disrupt the Contadora Process, and referred to previous decisions of the Court as establishing the principle that the Court is not required to decline to take cognizance of one aspect of a dispute merely because that dispute has other aspects and that the Court should not decline its essentially judicial task merely because the question before the Court is intertwined with political questions.
"In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."
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