558

DISSENTING OPINION OF JUDGE SCHWEBEL

TABLE OF CONTENTS

Paragraphs
SUMMARY
I. INTRODUCTION 1-2
II. QUESTIONS OF JURISDICTION
A. The jurisdictional issues 3
B. The question of whether Nicaragua has standing to maintain claims
under the Optional Clause
1. The essence of Nicaragua’s claims of standing 4
2. The essence of United States denial of Nicaragua’s standing 5
3. A State could not become party to the Optional Clause of the
Statute of the Permanent Court of International Justice without
being party to its Statute 6-7
4. Nicaragua never became party to the Protocol of Signature of the
Permanent Court or toits Statute and hence never was party to the
Optional Clause 8-13
5. The effect of Article 36, paragraph 5, of this Court’s Statute on a
declaration which was not binding under the Statute of the Per-
manent Court 14-17
6. The intentions of the drafters of Article 36, paragraph 5 18-24
7. The United States understanding of Article 36, paragraph 5, on
ratifying the Statute and adopting its declaration under Article
36, paragraph 2 25
8. The Court’s interpretation of Article 36, paragraph 5 26-40
9. The listings in the Yearbooks of the Court 41-47
10. Listings in-Reports of the Court 48-52
11. The conduct of the Parties 53-61
12. Conclusion 62
C. The question of whether the Court has jurisdiction over the United
States
1. Jurisdiction under the Optional Clause 63
(1) The Connally Reservation 64-66
(ii) The Vandenberg (Multilateral Treaty) Reservation 67-90
(ili) The “1984 notification” of the United States 91-116
2. Jurisdiction under the Treaty. of Friendship, Commerce and
Navigation 117-129

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SUMMARY

Standing of Nicaragua

Nicaragua lacks standing to invoke the Optional Clause not only
because it never has deposited a declaration under Article 36, paragraph 2,
of this Court’s Statute, but because it never became party to the Statute of
the Permanent Court of International Justice within the meaning of Article
36, paragraph 5, of this Court’s Statute. The Protocol of Signature of the
Statute of the Permanent Court of International Justice required that it be
ratified and that an instrument of ratification be deposited with the Sec-
retary-General of the League of Nations. No such deposit was made. Thus
Nicaragua was held by the League Secretariat and Permanent Court of
International Justice Registry never to have become party to the Protocol,
the Optional Clause which was an integral part of that Protocol, or to the
Statute. (Paras. 3-13.)

The intention of the drafters of the Statute of the International Court of
Justice, in respect of Article 36, paragraph 5, was to ensure that declara-
tions made under Article 36 of the Permanent Court of International
Justice Statute “and which are still in force” shall be deemed to be
acceptances of the compulsory jurisdiction of this Court. The travaux
préparatoires demonstrate that by the term, “still in force” was meant
declarations which bound declarants to the compulsory jurisdiction of the
Permanent Court of International Justice and which remain in force. The
intention was to maintain in effect declarations which were in effect, but it
was not to give effect for the first time to a declaration which, like Nica-
ragua’s, had never come into force. That meaning is expressed as precisely
by the French text as by the English of Article 36, paragraph 5. In pro-
posing a drafting amendment to the original text, the French delegation at
San Francisco apparently had not Nicaraguan but French interests in
view, namely, to make it perfectly clear that declarations which, like the
French, had expired, were not embraced by the terms of Article 36, para-
graph 5. Nicaragua’s Declaration was not of a duration which had not
expired, because it was never “inspired”. (Paras. 14-24.)

The four cases of this Court interpreting Article 36, paragraph 5, show
that the Court has always interpreted that Article only to embrace decla-
rations which had been binding under the Permanent Court of Interna-
tional Justice Statute. (Paras. 26-40.) The fact that Nicaragua was listed in
the Yearbooks of this Court as bound by the Optional Clause is not
dispositive, particularly because the listings were accompanied by foot-

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notes which indicated that Nicaragua had not deposited its instrument of
ratification with the League, i.e., that it had not fulfilled a condition
precedent to being covered by Article 36, paragraph 5. Listings in reports
of this Court to the General Assembly and in other publications lead to no
other conclusion. (Paras. 41-52.)

The conduct of Nicaragua, of other States, and of the Court, of its
Registry and the Secretary-General of the United Nations neither estab-
lishes nor confirms that Nicaragua is bound by the Optional Clause.
Before these proceedings, Nicaragua never expressly stated that it believed
itself to be bound. It evaded the clear occasion to do so when Honduras
so maintained during the Arbitral Award Made by the King of Spain on
23 December 1906 case. It rather gave the impression to the United States
and Honduras that it did not believe itself to be bound. Nicaragua never
queried or otherwise reacted to the footnotes in the Yearbook listings. In
all, its conduct, and that of other actors, is neither consistent with nor
clearly supportive of Nicaragua’s position. (Paras. 53-61.)

Jurisdiction over the United States

There is ground for questioning whether the United States 1946 adher-
ence to the Court’s compulsory jurisdiction under the Optional Clause is
valid, in view of its self-judging proviso, the “Connally Reservation”. But
that ground is not now pursued since the United States does not invoke it.
(Paras. 64-66.)

The Vandenberg “multilateral treaty” Reservation bars the Court from
assuming jurisdiction over the United States in a case in which multilateral
treaties are pleaded and in which all parties to the treaties affected by the
decision are not also parties to the case. It is plain from Nicaragua’s
pleadings that Honduras, Costa Rica and El Salvador will necessarily be
affected by the decision in the case. They are not parties. The Court evades
applying the reservation by holdings which conflict with any reasonable
interpretation of its terms and object. However, it is not clear that all of
Nicaragua’s claims should be barred, since it invokes customary interna-
tional law, which may not be pre-empted on all relevant counts by the
terms of the treaties on which Nicaragua relies. (Paras. 67-90.)

While failing to apply the Vandenberg Reservation, the Court does
apply another provision of the United States Declaration, that requiring it
to give six months’ notice of its termination. The Court might be able to
justify so doing if it equally applied the Vandenberg Reservation and other
elements of the United States Declaration.

A considerable case can be made out for the contention that, in view of

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State practice concerning the Optional Clause, all declarants are entitled to
terminate or modify their declarations at any time with immediate effect.
But even if that case is not accepted, and if the United States rather is held
to its six months’ notice proviso, it does not follow that its notification of
April 1984 purporting to modify its declaration is ineffective vis-a-vis
Nicaragua. It may be ineffective erga omnes. But since Nicaragua, by the
intendment of its unconditional declaration of 1929, at any time could
terminate (or modify) that declaration with immediate effect, reciprocally
the United States could terminate (or modify) its declaration with imme-
diate effect. The jurisprudence of the Court in respect of reciprocity
furnishes support for this approach, as do precedents of termination of
acceptances of the Court’s jurisdiction. Moreover, the Indonesian case
demonstrates that the United Nations and the Court accepted Indonesian
withdrawal from the Organization and from the Statute on 24 hours’
notice, which indicates that such withdrawal from declarations made
under the Statute is permissible. (Paras. 91-116.)

Finally, the Court does not have jurisdiction over the United States in
respect of the claims contained in Nicaragua’s Application — which alleges
acts of aggression and intervention by the United States — on the basis of
the Parties’ bilateral Treaty of Friendship, Commerce and Navigation.
That Treaty is a purely commercial agreement, whose terms do not relate
to the use or misuse of force in international relations. Moreover, Nica-
ragua failed to comply with the procedural prerequisites of invocation of
the Court’s jurisdiction under the Treaty. (Paras. 117-134.)

I. INTRODUCTION

1. The Application in this case is without precedent in the history of the
International Court of Justice and the Permanent Court of International
Justice. It is unprecedented in its substance, because never before has a
State come to the Court requesting it to adjudge and declare that another
State has the duty to cease and desist immediately from the use of force
against it. It is procedurally unprecedented as well, and not, of course,
because the defendant, the United States, challenges the jurisdiction of the
Court, for that is the characteristic response of States summoned to this
Court as Defendants. It is procedurally without precedent because the
standing of the Applicant, of Nicaragua itself to maintain suit in reliance
upon the Court’s compulsory jurisdiction under the Optional Clause is at
issue ; because the United States purports to have modified the scope of its
adherence to the Court’s compulsory jurisdiction under the Optional
Clause on which Nicaragua relies before the filing of Nicaragua’s Appli-
cation, so as to exclude the very class of case brought ; and because the
United States further pleads a reservation to the terms of its adherence to

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the Court’s compulsory jurisdiction of a kind which the Court earlier has
not had cause to adjudge. Thus the Court has been faced with multiple
preliminary objections to its jurisdiction and to the admissibility of the
case which it has never passed upon before in the course of its long and
complex history of jurisdictional controversy. The response of the Court to
these objections necessarily is of exceptional importance, not only because
of the significance of the case but because the issues of jurisdiction and
admissibility which it raises have profound implications for the nature and
extent of the Court’s jurisdiction and for the character of the Court as the
principal judicial organ of the United Nations.

2. I regret to be obliged to dissent from the Judgment, of the Court,
which I find to be in error on the principal questions of jurisdiction which
the case poses. In view of my conclusion that the Court lacks jurisdiction to
adjudicate upon the merits of the case, I have not found it necessary to cet
out my views on questions of admissibility, one or more of which, not
possessing, in the words of Article 79, paragraph 7, of the Rules of Court,
“in the circumstances of the case, an exclusively preliminary character”,
may in any event arise at the stage of the merits. Nevertheless, the Court’s
Judgment required a separate vote on the admissibility of the Application.
While I do not agree with all of the Court’s holdings on admissibility, at the
present stage I do not find the contentions of the United States concerning
the inadmissibility of the case to be convincing. Accordingly, I have joined
the Court in voting that the Application is admissible, by which I mean
that, if the Court had jurisdiction — as in my view it does not — the case
currently would appear to be admissible. I so conclude without prejudice
to any consideration of questions of admissibility which may arise at the
stage of the merits of the case.

II. QUESTIONS OF JURISDICTION

A. The Jurisdictional Issues

3. The jurisdictional issues in the case turn, first, on whether Nicaragua
has standing to file an Application relying, as it does, on its alleged
acceptance of the compulsory jurisdiction of the Court under Article 36 of
the Statute, by which, Nicaragua has made clear, it means by operation of
Article 36, paragraph 5, of the Statute ; second, if it has such standing, on
whether the terms of United States adherence to the Court’s compulsory
jurisdiction under the Optional Clause in force on the day on which
Nicaragua filed its Application afford the Court jurisdiction over the
parties and the claims made ; and third, on whether, in any event, the
Court has jurisdiction over some or all of Nicaragua’s claims by reason of
the fact that Nicaragua and the United States are party to a bilateral Treaty
of Friendship, Commerce and Navigation of 1956, which provides for
submission of disputes as to the interpretation or application of the Treaty,

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not satisfactorily adjusted by diplomacy, to the Court. Each of these three
large issues in turn subsumes a number of questions, which will be stated
and dealt with in their turn.

B. The Question of Whether Nicaragua Has Standing to Maintain
Claims under the Optional Clause

1. The essence of Nicaragua’s claims of standing

4. Nicaragua in its Application refers to the declarations made by
_ Nicaragua and by the United States “accepting the jurisdiction of the
Court as provided for in Article 36 of the Statute of the International Court
of Justice ...” (introduction) and says no more than : “Both the United
States and Nicaragua have accepted the compulsory jurisdiction of the
Court under Article 36 of the Statute of the Court” (para. 13). While the
United States filed a declaration under Article 36, paragraph 2, on 14
August 1946, which the United States (and Nicaragua) treat as valid and
generally in force, Nicaragua has never filed a declaration under Article 36,
paragraph 2, of the Statute. It relies on a declaration filed with the Sec-
retary-General of the League of Nations on 24 September 1929, uncon-
ditionally accepting the jurisdiction of the Permanent Court of Interna-
tional Justice without limit of time, and on the effect of Article 36, para-
graph 5, of the Statute, which reads as follows :

“Declarations made under Article 36 of the Statute of the Perma-
nent Court of International Justice and which are still in force shall be
deemed, as between the parties to the present Statute, to be accep-
tances 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.”

The rationale of that reliance is summarized by Nicaragua in its Memorial
as follows :

“11. Nicaragua meets the conditions of the Article. It ratified the
United Nations Charter on 6 September 1945 and became an Original
Member of the United Nations on 24 October 1945, when the Charter
came into force. Under Article 93 (1) of the Charter, it automatically
became a party to the Statute of the Court on the same date. On that
date, its declaration of 24 September 1929, accepting the compulsory
jurisdiction of the Permanent Court without condition, was in effect.
Being of unlimited duration, it had not expired. Thus, when the
Charter and Statute entered into force, that declaration was, by the
terms of Article 36 (5), ‘deemed, as between the parties to the present

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Statute, to be [an] acceptance[] of the compulsory jurisdiction’ of this
Court.

12. The result follows from the language of Article 36 (5) and from
its purpose to maintain to the maximum extent the actual and poten-
tial jurisdiction of the Permanent Court for the newly established
International Court of Justice. The construction is confirmed by the
jurisprudence of the Court and by its practice, as well as by the
unbroken practice of the parties to this proceeding and other States
over a period of more than 30 years, and by the substantially uniform
opinion of the most highly qualified publicists.”

2. The essence of the United States denial of Nicaragua’s standing

5. The United States maintains that Nicaragua lacks standing to main-
tain its claims, because it has not adhered to the jurisdiction of the Court
under the Optional Clause. Not only has it not done so under Article 36,
paragraph 2 ; it has not done so by operation of Article 36, paragraph 5,
because the declaration which Nicaragua made on 24 September 1929
accepting the jurisdiction of the Permanent Court of International Justice
never came into force by reason of Nicaragua’s failure to deposit its
instrument of ratification of the Protocol of Signature of the Statute of that
Court. That deposit was a necessary condition of bringing its declaration
into force. Since the declaration — as officially attested by the Registry of
the Permanent Court of International Justice and the Secretariat of the
League of Nations — never came into force, it was never (contrary to the
Nicaraguan Memorial, para. 11) “in effect” ; “it had not expired” only
because it had never been inspired. A declaration never in force could not
“be deemed” to be an acceptance of the compulsory jurisdiction of this
Court “for the period which” it “still” has “to run”, because, since the
Nicaraguan Declaration never began to run at all, it has no period in which
still to run. The United States maintains that Nicaragua never accepted
“nor intended to accept” any obligation under the Protocol of Signature of
the Permanent Court. “Nicaragua’s adherence to the Charter and subse-
quent conduct cannot constitute compliance with the requirements of the
present Court’s Statute for acceptance of compulsory jurisdiction”
(Counter-Memorial, para. 31).

3. A State could not become party to the Optional Clause of the Statute of
the Permanent Court of International Justice without being party to its
Statute

6. On 13 December 1920, the Assembly of the League of Nations by
resolution unanimously declared its approval of the draft Statute of the
Permanent Court of International Justice “for adoption in the form of a

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Protocol duly ratified...” (P.C.I.J., Series D, No. 1, p.4). On 16 December
1920, Members of the League signed a Protocol of Signature by which they
declared “their acceptance of the adjoined Statute” of the Court. The
Protocol provided :

“The present Protocol . . . is subject to ratification. Each Power shall
send its ratification to the Secretary-General of the League of
Nations ; the latter shall take the necessary steps to notify such
ratification to the other signatory Powers. The ratification shall be
deposited in the archives of the Secretary of the League of Nations.”
(Ibid. p. 5, emphasis supplied.)

The Protocol of Signature had two parts. Section “A” contained the text of
the Protocol itself, part of which has just been quoted. Section “B” of the
Protocol of Signature read as follows :

“B. OPTIONAL CLAUSE

The undersigned, being duly authorized thereto, further declare, on
behalf of their Government that, from this date, they accept as com-
pulsory ipso facto and without special convention, the jurisdiction of
the Court in conformity with Article 36, paragraph 2, of the Statute of
the Court, under the following conditions :” (Ibid, p. 6.)

Thereafter, the text of the Statute followed (ibid., pp. 7 ff.).

7. Thus it will be observed that the Protocol of Signature, in a single
instrument, comprised both the Protocol itself and the form of declara-
tions by which States could adhere to the Optional Clause. When a State
signed a declaration under the Optional Clause, it signed one section of the
Protocol of Signature, but that declaration did not take effect — it did not
bind the State making it to the Court’s compulsory jurisdiction under the
Optional Clause — unless or until that State had ratified the Protocol of
Signature of which the declaration was a part. Article 36, paragraph 2, of
the Statute itself provided that a State could make a declaration accepting
the Optional Clause “either when signing or ratifying the Protocol to which
the present Statute is adjoined, or at a later moment ...”. But it was
recognized throughout the life of the Permanent Court that a State could
not become a party to the Statute unless it became a party to the Protocol ;
and it could not become a party to the Optional Clause which was a part of
the Protocol unless it became party to the Protocol. Those conclusions
were officially affirmed more than once by the Legal Adviser of the League
of Nations in communications to various States — and with specific
reference to Nicaragua (see the Counter-Memorial of the United States,
Anns. 4, 6, 12, 23). As Manley O. Hudson put it in The Permanent Court of
International Justice (1934), page 388 :

“Clearly, the ‘optional clause’ does not stand on any independent
basis ; it is only a suggested form of the declaration which Article 36
permits to be made at the time of signing or ratifying the Protocol of

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Signature or at a later moment. It is entirely subsidiary to the Protocol
of Signature ; a State cannot become a party to the optional clause
unless it has become or becomes a party also to the Protocol of
Signature, and a State which is not effectively a party to the latter does
not make a binding declaration by merely signing the ‘optional clause’
even without conditions.”

4. Nicaragua never became party to the Protocol of Signature of the Per-
manent Court or to its Statute and hence never was party to the Optional
Clause

8. On 24 September 1929, Nicaragua’s authorized representative made
a declaration under the Optional Clause in the following terms :

“On behalf of the Republic of Nicaragua I recognize as compulsory
unconditionally the jurisdiction of the Permanent Court of Interna-
tional Justice.” (.C.J. Yearbook 1982-1983, p. 79 ; Registry’s trans-
lation from the French.)

It had not by that date ratified and deposited its instrument of ratification
of the Protocol of Signature of the Court’s Statute and so was not, on
making a declaration under the Optional Clause, a party either to the
Statute or to the Optional Clause. On 29 November 1939, Nicaragua, by
telegram, notified the Secretariat of the League of Nations that it had
ratified the Protocol of Signature and that the instrument of ratification
was to follow. In fact, the instrument appears never to have been sent and
certainly never was received by the League of Nations.

9. At the hearings on provisional measures in this case, Nicaragua
endeavoured to give the impression that it had ratified the Protocol and
had sent, or might have sent, the instrument of ratification, maintaining
that, as the Order of the Court of 10 May 1984, at paragraph 19, recounts,
“There are quite obvious reasons why this ratification may not have
reached Geneva at the time”. At the hearings at the current stage of the
proceedings, the Agent of Nicaragua indicated that the instrument of
ratification, if sent, may have been lost at sea during the Second World
War (Hearing of 8 October 1984). In its Memorial, Nicaragua acknow-
ledges that it never deposited the instrument of ratification to the Protocol
of Signature (e.g., at para. 44, — “The footnote shows that Nicaragua’s
failure to deposit its instrument of ratification of the Protocol of Signature
of the Permanent Court was well known” — as well as Annex 1, which
declares that “no evidence” has been uncovered indicating that the instru-
ment of ratification “was forwarded to Geneva”). Moreover, Nicaragua
was Officially and specifically informed by the Acting Legal Adviser of the
League of Nations, by letter of 16 September 1942, that the League had
never received the instrument of ratification of the Protocol of Signature,
“the deposit of which is necessary to bring the obligation effectively into

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being. Perhaps that instrument was lost on the way” (League of Nations
Archives, File No. 3C/17664/1589, published in the United States
Counter-Memorial, Ann. 26 ; translation by this Court’s Registry).

10. Thus the last Yearbook of the Court published before the Second
World War, the Fifteenth Annual Report (June 15th 1938-June 15th 1939),
in recording the facts respecting “the Optional Clause annexed to the
Statute of the Court” (at p. 37), provides a list of 53 “States which had
signed the Optional Clause” (at p. 39). Nicaragua is among them. It further
provides a list entitled : “The following had signed . . . but had not ratified
the Protocol of Signature of the Statute” (ibid, p. 40). Nicaragua is among
three States so listed. It finally provides a list of 39 “States bound by the
Clause” on 15 June 1939 (ibid.). Nicaragua is not on that list. It was this
Yearbook to which the delegates at the San Francisco Conference on
International Organization could have had recourse when they amended
and adopted what was the Statute of the Permanent Court to transform it
into the Statute of the International Court of Justice. The Sixteenth Report
(June 15th 1939-December 31st 1945), published after the San Francisco
Conference, records, with respect to “The special protocol, annexed to the
‘Protocol of Signature of the Statute’... known as the ‘Optional Clause’ ”
similar data. There is a list of States which had signed the Optional Clause
“but had not ratified the Protocol of Signature of the Statute” and
Nicaragua is on that list (p. 50). There is a list of “States bound by the
Clause” and Nicaragua is not on that list (ibid.). A footnote to the entry
concerning Nicaragua, however, refers to page 331, where the following
information is recorded :

“3. PROTOCOL OF SIGNATURE OF THE STATUTE OF THE COURT
Geneva, December 16th, 1920

According to a telegram dated November 29th, 1939, addressed to
the League of Nations, Nicaragua had ratified the Protocol, and the
instrument of ratification was to follow. The latter however has not
yet been deposited.”

11. The publication of these entries in the same Yearbook demonstrates
the continuing conclusion, which the law of treaties and the provisions of
the Protocol dictated and of which Nicaragua had been officially
informed, that the sending of a telegram announcing ratification of the
Protocol coupled with failure to deposit the instrument of ratification of
the Protocol with the Secretary-General of the League, could not consti-
tute Nicaragua a party to the Protocol, to the Statute or to the Optional
Clause of the Court. It is incontestable that, in the consistent interpretation
of the Registry of the Court as well as the Secretariat of the League which
had mandatory depositary functions in respect of the Protocol, Nicaragua
never became party to the Protocol ; hence, never party to the Statute ;

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hence, never party to the Optional Clause of the Statute, by which Statute
and Clause Nicaragua never was — in the definitive term officially
employed — “bound”.

12. The conclusion that Nicaragua was never bound was in accordance
with the jurisprudence of the Court. Thus, in the case relating to the
Territorial Jurisdiction of the International Commission of the River Oder,
P.CILJ., Series A, No. 23, the question arose of the effect of the Barcelona
Convention of 20 April 1921 relating to the régime of navigable waterways
of international concern. The Court observed that that Convention con-
tained provisions

“differing in no way from the clauses generally inserted in interna-
tional conventions of this nature ; such provisions clearly make the
coming into force of the Convention as regards each of the Parties
depend upon ratification” (at p. 21).

Thus the Court in respect of a convention which, just as the Court’s
Protocol of Signature provided, specified that it is “subject to ratification”,
whose instrument of ratification “shall be transmitted to the Secretary-
General of the League of Nations, who will notify the receipt” to other
signatories, held that a convention which a State had not ratified had not
come “into force” for it. Appraising this and other cases, Dr. Hans Blix
concluded that,

“what the courts have established with increasing clarity is merely
that in law the procedure of ratification is not a ceremonial formality
but an act by which a State becomes bound by a treaty” (“The
Requirement of Ratification”, British Year Book of International Law
1953 (1954), pp. 352, 370).

Dr. Blix observed that

“there is no doubt that if an international agreement expressly stipu-
lates for entry into force by signature or ratification or some other
manner, the prescribed procedure must be complied with” (ibid,
p. 352).

The reason is that : “Parties to international compacts must know when
they become irrevocably bound by the compacts.” (Jbid., p. 356.) That
contemporary international law on this question is what the Court in the
Territorial Jurisdiction of the International Commission of the River Oder
case held it to be is demonstrated by the terms of Article 14 of the Vienna
Convention on the Law of Treaties, which provides that :

“1. The consent of a State to be bound by a treaty is expressed by
ratification when :

(a) the treaty provides for such consent to be expressed by means of
ratification ;...”

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Article 16 of the Vienna Convention further provides that instruments of
ratification

“establish the consent of a State to be bound by a treaty upon :

(a) their exchange between the contracting States ;

(b) their deposit with the depositary ; or

(c) their notification to the contracting States or to the depositary, if
so agreed”.

In the case before the Court, it could not be clearer that it was never agreed
that notification by Nicaragua would suffice. On the contrary, deposit of
the instrument of ratification was required by the Protocol of Signature
and insisted upon by the depositary who, in default of deposit, notified
Nicaragua that it was not bound.

13. However, while it cannot be denied — and Nicaragua itself does not
deny — that its Declaration of 1929 never bound it to the compulsory
jurisdiction of the Permanent Court of International Justice (and this fact
is repeatedly recognized by the Court in today’s Judgment), Nicaragua
maintains that the matter does not rest there. While it did not do so at the
stage of provisional measures, it now contends that its ratification of the
United Nations Charter and its appended Statute of this Court was suf-
ficient to give life to a declaration which otherwise had been and remained
inoperative. The Court, in its Order of 10 May 1984, and I, in my dissent to
that Order, were prepared to consider that argument as affording a pos-
sible basis for the Court’s jurisdiction in this case. But while the Court now
accepts that argument as affording a definitive basis of jurisdiction, on
analysis which the time afforded at the stage of provisional measures did
not admit, I have concluded that that argument is utterly inadequate. Nor
do I accept the allied argument that the conduct of this Court and its
Registry and of the United Nations, and of Nicaragua and other States,
endows Nicaragua with a standing and the Court with a jurisdiction which
the operation of the provisions of Article 36, paragraph 5, does not
engender.

5. The effect of Article 36, paragraph 5, of this Court’s Statute on a decla-
ration which was not binding under the Statute of the Permanent
Court

14. Nicaragua concedes that its 1929 Declaration, at the time immedi-
ately prior to its ratification of the United Nations Charter, lacked “bind-
ing force” (Nicaraguan Memorial, para. 178, E). The Court, in paragraph
26 of today’s Judgment, holds that “the declaration made by Nicaragua in
1929 had not acquired binding force prior to such effect as Article 36,
paragraph 5, of the Statute of the International Court of Justice might

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produce”. The critical question accordingly is : despite the acknowledged
fact that Nicaragua’s 1929 Declaration lacked binding force, is it a decla-
ration which, in the terms and meaning of Article 36, paragraph 5, of the
Statute, was “made under Article 36 of the Statute of the Permanent Court
of International Justice and which” is “still in force” ?

15. Nicaragua maintains that Article 36, paragraph 5 :

“does not speak of parties to the Statute of the Permanent Court but
of declarations accepting its jurisdiction. Such a declaration made by
a State not a party to the Statute and that by its terms had not expired
was a declaration ‘in force’... it ‘remained in an imperfect but not
invalid state” ; ... The effect of Article 36 (5), in the case of Nicara-
gua, was to make its ratification of the Statute of this Court... the
equivalent of ratification of the old Statute — the act that perfected the
declaration... That is the significance of the use of the language
‘deemed ...to be acceptances of the compulsory jurisdiction of the
International Court of Justice . .  ” (Memorial, paras. 13, 14.)

Does this imaginative construction of Article 36, paragraph 5, withstand
analysis ?

16. In the first place, it is beyond dispute that, in the understanding of
international law, “in force” means, and equates with, “bound”. One need
look no further than the provisions of the Vienna Convention on the Law
of Treaties, Articles 2 (1) (b), 24, 25 and 84. Article 24 in particular makes it
crystal clear that a “treaty enters into force as soon as consent to be bound
by the treaty has been established . . .”. As the late Sir Humphrey Waldock
put it, in his capacity of Special Rapporteur of the International Law
Commission on the law of treaties, “the basic rule” is that “the entry into
force of the treaty automatically makes it binding upon the parties”
(Yearbook of the International Law Commission, 1962, Vol. II, p. 71). It is
undeniable that an instrument of ratification establishing Nicaragua’s
consent to be bound by the Statute of the Permanent Court was never
received by the depositary ; rather, its failure to become so bound was
established by the depositary, the Secretary-General of the League of
Nations, and by that Court’s Registry ; consequently, the Statute of the
Permanent Court never entered into force for it. The question which then
arises is: despite that conclusion of fact and law, did its declaration
accepting the jurisdiction of the Permanent Court enter into force ?

17. To answer that question requires a review of the drafting history of
Article 36, paragraph 5, and of the meaning attached to that article by
those who were concerned with its acceptance, and, as well, of the judg-
ments of this Court interpreting Article 36, paragraph 5. It also requires a
consideration of the effect of the treatment of Nicaragua’s Declaration of

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1929 in the Yearbooks of the two Courts, the Reports of this Court to the
General Assembly, and elsewhere, and of the conduct of the Parties.

6. The intentions of the drafters of Article 36, paragraph 5

18. In the eyes of the drafters of the Statute of the Court, what was
Article 36, paragraph 5, designed to achieve ? The Committee of Jurists
which, in preparation for the San Francisco Conference, met in Washing-
ton on 14 April 1945, had before it the following observation of the United
Kingdom :

“One question which will arise in connection with Article 36, is
what action should be taken concerning the existing acceptances of
the ‘optional clause’, by which a number of countries have, subject to
certain reservations, bound themselves to accept the jurisdiction of the
Court as obligatory. Should these acceptances be regarded as having
automatically come to an end or should some provision be made for
continuing them in force with perhaps a provision by which those
concerned could revise or denounce them.” (Documents of the United
Nations Conference on International Organization, San Francisco,
1945, Vol. XIV, p. 318 ; emphasis supplied.)

In response, the subcommittee took a straightforward position :

“The subcommittee calls attention to the fact that many nations
have heretofore accepted compulsory jurisdiction under the ‘optional
clause’. The subcommittee believes that provision should be made at
the San Francisco Conference for a special agreement for continuing
these acceptances in force for the purpose of this Statute.” (Ibid,
p. 289 ; emphasis supplied.)

Let us apply these seminal statements of the purpose of what came to be
Article 36, paragraph 5, to the facts and question at issue. The intention of
the drafters of Article 36, paragraph 5, in addressing existing acceptances
under the Optional Clause by which States were “bound”, was to deal with
the fact that “many nations have heretofore accepted compulsory juris-
diction under the ‘Optional Clause’ ”. It was clear that Nicaragua was not
among such nations. It was clear by, inter alia, the terms of the Yearbook of
the Permanent Court, which listed Nicaragua as a State which was not
bound by compulsory jurisdiction under the Optional Clause (supra, para.
11). Moreover, the Committee of Jurists contemplated that what came to
be Article 36, paragraph 5, would be tantamount to a special agreement
“continuing these acceptances in force for the purpose of this Statute”.
That phrase imports that declarations, to be continued in force, were in
force. Nicaragua’s was not.

19. In pursuance of this purpose of the Committee of Jurists, a Report
of 31 May 1945 to Commission IV (Judicial Organization) of the San
Francisco Conference proposed to add to Article 36 of the Statute the
following provision :

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“Declarations made under Article 36 of the Statute of the Perma-
nent Court of International Justice and which are still in force shall be
deemed as between the parties to the present Statute to have been
made under this Article and shall continue to apply, in accordance
with their terms.” (Documents of the United Nations Conference on
International Organization, Vol. XIII, p. 558.)

With reference to a text of this substance, the British representative at San
Francisco three days earlier had said :

“If the Committee decides to retain the optional clause, it could
provide for the continuing validity of existing adherences to it. Since
forty members of the United Nations are bound by it, compulsory
jurisdiction would to this extent be a reality.” (/bid., p. 227 ; emphasis
supplied.)

Thus it appears that what was sought was the “continuing validity” of
adherences by which States were “bound” under the Statute of the Per-
manent Court. At that juncture, the corresponding French text of what
came to be Article 36, paragraph 5, read :

“Les déclarations encore en vigueur, faites en application de l’ar-
ticle 36 du Statut de la Cour permanente de Justice internationale
seront considérées, en ce qui concerne les rapports réciproques des
parties au présent Statut, comme ayant été faites en application du
présent article, et continueront à s'appliquer, conformément aux
conditions qu’elles stipulent.” (Ibid. p. 565.)

Thereafter, on 5 June 1945, the French representative proposed the fol-
lowing alternative wording :

“Les déclarations faites en application de l’article 36 du Statut de la
Cour permanente de Justice internationale pour une durée qui n’est
pas encore expirée seront considérées, dans les rapports entre parties
au présent Statut, comme comportant acceptation de la juridiction.
obligatoire de la Cour internationale de Justice pour la durée et dans
les conditions exprimées par ces déclarations.” (Jbid., p. 486.)

The “Proposals by the Delegation of France Relating to Article 36 of the
Statute of the International Court of Justice” which have just been repro-
duced in their French version were duplicated in the English text proposed
by France as follows :

“Declarations made under Article 36 of the Statute of the Perma-
nent Court of International Justice and which are still in force shall be
deemed, as between the parties to the present Statute, as including
acceptance of compulsory jurisdiction of the International Court of
Justice for the time and under the conditions expressed in these
declarations.” (Ibid., p. 485.)

The French representative, who thus proposed (on the point at issue in the

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instant case) to maintain the English text unchanged, on 7 June 1945
understandably explained his proposed recasting of the French text only of
Article 36, paragraph 5 — then numbered as Article 36, paragraph 4 — as
follows :

“The French Representative stated that the changes suggested by
him in paragraph (4) were not substantive ones, but were intended to
improve the phraseology.” (Ibid, pp. 284, 290.)

The Committee at the meeting of 7 June thereupon unanimously adopted
the text of Article 36, paragraph 5, in the terms in which they appear in the
Statute (ibid. p. 284). The relevant report of 9 June 1945 observes :

“In a sense... the new Court may be looked upon as the successor
to the old Court which is replaced. The succession will be explicitly
contemplated in some of the provisions of the new Statute, notably in
Article 36, paragraph 4, and Article 37. Hence, continuity in the
progressive development of the judicial process will be amply safe-
guarded.

A new paragraph 4 [now 5] was inserted to preserve declarations
made under Article 36 of the old Statute for periods of time which
have not expired, and to make these declarations applicable to the
jurisdiction of the new Court.” (/bid, pp. 307, 314, 328.)

The French text of that latter passage reads :

“On a inséré un nouveau paragraphe 4 afin de maintenir les décla-
rations formulées d’après l’article 36 de l’ancien Statut pour des
périodes qui n’ont pas encore expiré et pour rendre ces déclarations
applicables à la juridiction de la nouvelle Cour.” (Ibid, p. 348.)

Thereafter, the text of Article 36, paragraph 5, remained unchanged. Little
further light is shed upon its meaning by the San Francisco travaux pré-
paratoires.

20. However, the illumination provided by the San Francisco proceed-
ings is bright enough. For it is clear that the new paragraph, as the San
Francisco records state, “was inserted to preserve declarations made under
Article 36 of the old Statute for periods of time which have not expired, and
to make these declarations applicable to the jurisdiction of the new Court”
(emphasis supplied). The purpose of Article 36, paragraph 5, was not to
invest nugatory declarations which were never in effect with initial force, it
was “to preserve” declarations in force under the Permanent Court for the
new Court — declarations by which States were, as the Committee of
Jurists put it, “bound”.

21. Moreover, the French text of Article 36, paragraph 5, was designed,
and was clearly stated by its author to be, substantively identical to the

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English. Indeed, France itself apparently proposed to maintain the English
text as it was, and this was accepted. Article 36, paragraph 5, was initially a
British proposal. France proposed a revised text which it indicated was
substantively the same as the English. The motivations of the French
amendment are not altogether clear. The Court appears to believe that its
purpose was, by the operation of Article 36, paragraph 5, to maintain in
force not only declarations of the Permanent Court which were in force,
but to give effect to declarations which had been made but which never had
come into force. It seems likelier that the French amendment may have
been stimulated by the perception that the phrase in English, “and which
are still in force” — initially translated “encore en vigueur” (a phrase
which, as the Nicaraguan Memorial points out at paragraph 17 is char-
acteristic of treaty usage but not declarations which are “unilateral acts’’)
— would be more precisely translated if “still in force” were rendered “pour
une durée qui n’est pas encore expirée” because the latter phrase empha-
sized the continuing validity of declarations which had not yet expired. But
that change did not change the meaning of the English text so as to
embrace declarations which had never come into force, because a decla-
ration of a duration which has not yet expired must nevertheless be a
declaration which initially was “inspired”. The French text may well have
been meant to make the clearer that declarations in force under the Per-
manent Court’s Statute which have not by their terms expired should be
“preserved” (as it was put in the English text of the rapporteur’s report) or
“maintained” (“afin de maintenir”) as it was put in the French, but there is
no indication of the French amendment being designed to give life to a
declaration which had never come into force. The Nicaraguan Memorial
argues, in paragraph 48, that there was in fact only one such declaration,
that of Nicaragua. Can it be plausibly maintained that the object of the
French amendment was to give force for the first time to Nicaragua’s 1929
Declaration ? Or may it be more plausibly argued that France had French,
rather than Nicaraguan, interests in view ?

22. The true clue to the object of the French delegation in proposing its
amendment to the French text of Article 36, paragraph 5, may be found in
the joint dissent of three judges of this Court in the Aerial Incident case, the
probative passage from which is quoted below at paragraph 34. That
passage infers that France moved its amendment in order to make clear
beyond a doubt that Article 36, paragraph 5, did not embrace declarations
of a duration which had expired. France’s declaration was precisely of that
character. On the day in San Francisco on which France moved its
amendment, there was no French Declaration still in force which had been
made under Article 36 of the Statute of the Permanent Court. There was no
French Declaration “en application de l’article 36 du Statut de la Cour
permanente de Justice internationale pour une durée qui n’est pas encore
expirée”, for the pertinent reason that the last French Declaration under
the Permanent Court’s Statute had been renewed for five years, from 25

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April 1936 (P.C.LJ., Fifteenth Annual Report, p. 221). Accordingly it had
expired in 1941. Apparently France did not wish the possibility to remain
of its being revived by the operation of Article 36, paragraph 5, and to
make that point still clearer — it was clear in the English text and the
original French but not so precisely and fully expressed in the original
French as it was by the terms of the French amendment — France moved
its amendment. This explanation, while not certain, surely is far more
plausible — and probable — than that advanced by Nicaragua and
accepted by the Court.

23. While it is clear that the intention at San Francisco in drafting
Article 36, paragraph 5, was to preserve declarations under the Statute of
the Permanent Court which were in force, the French text of the Article is,
with some strain, capable of the broader interpretation which the Court
gives it, namely, that it is meant to give force to declarations which by their
own terms had not expired (even if they never had come into force). The
French text is also more than capable of supporting the narrower inter-
pretation set out in the preceding paragraphs, which is fully consistent with
the English text ; and, since the original English text remained unchanged,
since it was indeed apparently accepted by the French delegation itself as
the correct English version of its own amendment, and since the French
representative declared that his amendment was not substantive, there is
every reason to conclude that France itself attached the narrower inter-
pretation to what it described as an amendment designed “to improve the
phraseology”. But let us assume, arguendo, what has not been and cannot
be shown, namely, that the broader meaning is the meaning which France
meant to attach to Article 36, paragraph 5. Under the law of treaties, where
two authoritative texts in two languages differ, which is to be taken as
governing ? Article 33, paragraph 4, of the Vienna Convention on the Law
of Treaties provides that,

“when a comparison of the authentic texts discloses a difference of
meaning ..., the meaning which best reconciles the texts, having
regard to the object and purpose of the treaty, shall be adopted”.

Now it has been shown that the object and purpose of Article 36, para-
graph 5, of the Statute was to “continue” or to “preserve” declarations
made under the Optional Clause of the Statute of the Permanent Court by
which States party to that Statute were “bound” (supra, para. 18). That is,
the object and purpose are expressed by the narrower interpretation only.
Moreover, if one takes the narrower ground which is held by the English
text, it is also quite reasonably understood to be held by the French text ;
that is to say, both texts can be “best reconciled” on this narrower ground.
But if one ascribes the broader interpretation to the French text, then one
must leave the English text — not to speak of the texts in the three other

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authentic languages, the Spanish of which was attached to Nicaragua’s
ratification — out of account. For it is undeniable that the meaning which
attaches to the English text, and to the Spanish, Russian and Chinese texts,
is that Article 36, paragraph 5, encompasses only declarations which are
“still” in force, a term which surely imports that such declarations came
into force in the first place. Accordingly, by dint of application of the rules
of the law of treaties governing interpretation of different language texts, it
is not possible to sustain the contention that Article 36, paragraph 5, was
meant to give force to ineffective declarations.

24. In sum, the San Francisco proceedings do not support two key
contentions of Nicaragua in respect of Article 36, paragraph 5 : the pur-
pose of that provision was not, as Nicaragua’s Memorial contends, “to
maintain to the maximum extent the actual and potential jurisdiction of
the Permanent Court” but only its actual jurisdiction ; and that purpose is
expressed as precisely by the French text, which must on this issue be read
consistently with the English to relate only to declarations which were in
force under the Statute of the Permanent Court, i.e., declarations which
bound the declarant States, of which Nicaragua was not one.

7. The United States understanding of Article 36, paragraph 5, on ratifying
the Statute and adopting its declaration under Article 36, paragraph 2

25. The United States, in ratifying the Statute, and in adhering to the
Optional Clause, interpreted Article 36, paragraph 5, as embracing only
those declarations which were in force under the Statute of the Permanent
Court. The United States further appears to have understood that Article
36, paragraph 5, did not embrace Nicaragua’s Declaration of 1929. These
conclusions are supported by the following passages from the United
States Counter-Memorial :

“79. The United States understanding, both at the San Francisco
Conference and in making its own declaration for the new Court
under Article 36 (2), was also that Article 36 (5) applied only to
declarations in force for the Permanent Court. The United States
specifically understood that Nicaragua was not one of those States
that would be deemed to have accepted this Court’s compulsory
jurisdiction for purposes of reciprocity under Article 36 (2).

80. The United States delegation to the San Francisco Conference
reported the proceedings to the President on 26 June 1945, and a copy
of this report was submitted to the Senate on 9 July 1945. The Report
described Article 36 (5) as ‘maintaining in force with respect to the new
Court, declarations made under the old Statute whereby many states

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MILITARY AND PARAMILITARY ACTIVITIES (DIss. OP. SCHWEBEL)

accepted the compulsory jurisdiction of the old Court’. Report to the
President, at p. 124 (italics added).

81. Green H. Hackworth, the principal legal adviser to the U.S.
delegation at San Francisco and later a member of this Court,
described Article 36 (5) in similar terms. In testimony before the
Senate Foreign Relations Committee in 1945 as it considered United
States membership in the United Nations, Judge Hackworth ex-
plained that Article 36 (5) was intended to address the concern that —

‘states that had accepted compulsory jurisdiction under the present
Court {the Permanent Court] would no longer be bound by their
acceptance if a new Court were set up. That was taken care of by a
provision in the Statute in article 36, that those states which had
accepted compulsory jurisdiction for the Permanent Court of Inter-
national Justice would now substitute the proposed International
Court under the same terms.’ Report to the President, at p. 338 (italics
added).

82. In the Senate hearings the following year on whether the
United States should accept the Court’s compulsory jurisdiction, this
understanding was made even more explicit. Charles Fahy, then Legal
Adviser to the Department of State, and, as Solicitor General of the
United States, formerly a member of the United States delegation to
San Francisco, told the Senate Foreign Relations Committee that the
proposed United States declaration would be made only on condition
of reciprocity :

‘As to particular states I think the situation as you point out is
clear, that this resolution makes our declaration reciprocal ; that is,
only with respect to states which accepted similar jurisdiction.
Declarations of the following 19 states thus came into force:
Australia, Bolivia, Brazil, Canada, Colombia, Denmark, Domini-
can Republic, Haiti, India, Iran, Luxembourg, Netherlands, New
Zealand, Norway, Panama, El Salvador, South Africa, United
Kingdom, Uruguay ...’ (Hearings before a Subcommittee of the
Committee on Foreign Relations of the United States Senate on S.
Res. 196, 77th Cong., 2d Sess. July 11, 1946, pp. 141-142.)

83. The second paragraph quoted here, which listed ‘the 19 [States]
... whose declarations continue in force’, described the class of States
which by virtue of Article 36 (5) could satisfy the requirement of
reciprocity in the proposed United States declaration. Nicaragua was
not included among these States .

84. In its Report approving the proposal for a United States
578 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

declaration under article 36 (2), the Senate Foreign Relations Com-
mittee also adopted this view of Article 36 (5). The Report stated :

‘The San Francisco Conference added an additional paragraph
to article 36 of the statute, according to which declarations accepting
the jurisdiction of the old Court, and remaining in force, are deemed to
remain in force as among the parties to the present statute for such
period as they still have to run. Nineteen declarations are currently in
force under this provision.’ (Report of the Senate Committee on For-
eign Relations on Compulsory Jurisdiction of the International Court
of Justice, S. Rept. No. 1835, 79th Cong., 2d Sess. at p. 105 (25 July
1946) (italics added).)

85. In sum, the United States delegation to San Francisco, the
Department of State, and the Senate all understood (a) that Article 36
(5) applied only to declarations that were in force under the Perma-
nent Court’s Statute as of the date of adherence to this Court’s Statute
and (2) that Nicaragua’s declaration did not fall within this cate-

gory.”

8. The Court’s interpretation of Article 36, paragraph 5

26. Article 36, paragraph 5, has been directly interpreted or incidentally
addressed, in four prior Judgments of this Court. None of them support
Nicaragua’s thesis that its ratification of the Statute of this Court — or
relevant conduct — operated to perfect and give legal force to its Decla-
ration of 1929. Rather, the terms and tenor of those judgments indicate the
contrary.

27. The principal judgment in point was given in the case concerning the
Aerial Incident of 27 July 1955 (Israel v. Bulgaria), Preliminary Objections,
Judgment, I.C.J, Reports 1959, page 127. Israel relied on Bulgaria’s Decla-
ration of 29 July 1921, which had come into force under the Statute of the
Permanent Court (ibid., p. 129). Bulgaria objected that Article 36, para-
graph 5, was inapplicable to it (ibid., p. 131). The Court found for Bulgaria
on the ground that, by the time that it joined the United Nations in 1955
and became party to the Court’s Statute, the Permanent Court had ceased
to exist and a declaration in force vis-a-vis that Court could not be revived
to apply to this Court. In so holding, the Court declared :

“Article 36, paragraph 5, considered in its application to States
signatories of the Statute, effects a simple operation : it transforms
their acceptance of the compulsory jurisdiction of the Permanent Court
into an acceptance of the compulsory jurisdiction of the International
Court of Justice.” (Ibid., p. 137 ; emphasis supplied.)

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It continued :

“Article 36, paragraph 5, governed the transfer from one Court to
the other of still-existing declarations ; in so doing, it maintained an
existing obligation while modifying its subject-matter.” (.C.J. Re-
ports 1959, p. 138 ; emphasis supplied.)

The Court further explained the meaning of Article 36, paragraph 5, in
these terms :

“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 repre-
sented at the San Francisco Conference, signed and ratified the
Charter and thereby accepted the Statute in which Article 36, para-
graph 5, appears...

The declarations to which Article 36, paragraph 5, refers created for
the States which had made them the obligation to recognize the juris-
diction of the Permanent Court of International Justice. At the time
when the new Statute was drawn up, it was anticipated — and events
confirmed this — that the Permanent Court would shortly disappear
and these undertakings consequently lapse. It was sought to provide
for this situation, to avoid, as far as it was possible, such a result by
substituting for the compulsory jurisdiction of the Permanent Court,
which was to come to an end, the compulsory jurisdiction of the
International Court of Justice. This was the purpose of Article 36,
paragraph 5. This provision effected, as between the States to which it
applied, the transfer to the new Court of the compulsory jurisdiction of
the old. It thereby laid upon the States to which it applied an obli-
gation, the obligation to recognize, ipso facto and without special
agreement, the jurisdiction of the new Court. This constituted a new
obligation which was, doubtless, no more onerous than the obligation
which was to disappear but it was nevertheless a new obligation.”
({bid., pp. 142-143 ; emphasis supplied.)

28. These quotations demonstrate that the Aerial Incident case strik-
ingly and decisively cuts against Nicaragua’s thesis. If, as the Court there
said, the purpose of Article 36, paragraph 5, is to transform “acceptance of
the compulsory jurisdiction of the Permanent Court into an acceptance of
the compulsory jurisdiction” of this Court, then Nicaragua is excluded by
the fact that it never accepted the former’s compulsory jurisdiction. When
this Court speaks of “acceptance of” its compulsory jurisdiction, it means
“binding itself to” this Court’s jurisdiction. Can it be seriously maintained
that what the Court means when it speaks of “acceptance” of its compul-
sory jurisdiction, or “acceptance” of the Permanent Court’s jurisdiction, is
something less, such as non-acceptance ? Thus, when the Court says, as it
did in the Aerial Incident case, that Article 36, paragraph 5, effects a simple

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operation : it “transforms ... acceptance of the compulsory jurisdiction of
the Permanent Court into an acceptance of the compulsory jurisdiction of”
this Court, the Court could only have meant that Article 36, paragraph 5,
exclusively referred to declarations made under the Statute of the Perma-
nent Court which accepted, that is, bound the declarant to, that Court’s
compulsory jurisdiction. If, as the Court in Aerial Incident held, Article 36,
paragraph 5, “maintained an existing obligation”, there must have been an
obligation in existence. But Nicaragua had no obligation in existence in
respect of the Permanent Court’s jurisdiction, and it has acknowledged
that fact. If, again, as the Court says, the declarations to which Article 36,
paragraph 5, refers created “the obligation to recognize the jurisdiction of
the Permanent Court...” then Nicaragua is outside the reach of that
provision since it never undertook an obligation to recognize the jurisdic-
tion of that Court. If the purpose of Article 36, paragraph 5, was, as the
Court says, “to substitute” for the compulsory jurisdiction of the Perma-
nent Court the compulsory jurisdiction of this Court, Nicaragua is
excluded by reason of not having effectively adhered to the compulsory
jurisdiction of the Permanent Court. If its purpose, as the Court says, was
to “transfer to the new Court... the compulsory jurisdiction of the old”,
then Nicaragua fails by reason of its failure to adhere to that older juris-
diction.

29. The Court added :

“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 anew Court should
frustrate progress already achieved ; it is not permissible to substitute
for this intention to preserve, to secure continuity, an intention to
restore legal force to undertakings which have expired : it is one thing
to preserve an existing undertaking by changing its subject-matter ; it
is quite another to revive an undertaking which has already been
extinguished” (.C.J. Reports 1959, p. 145).

Thus the Court emphasized preservation, continuity. It excluded reviving
an undertaking which has already been extinguished. How then can Article
36, paragraph 5, be interpreted to give life to an undertaking which never
came into force at all?

30. In view of these holdings of the Court in the Aerial Incident case, it is
remarkable to find that the Court’s Order of 10 May 1984 relies on this case
and some of these very passages (it cites p. 142 of the Judgment) to
conclude that the absence of Nicaragua’s “effective ratification” of the
Permanent Court’s Protocol of Signature may not have excluded the
operation of Article 36, paragraph 5, that it may not have prevented the
transfer to the present Court of its 1929 Declaration “as a result of the

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consent” thereto of Nicaragua by its acceptance of this Court’s Statute
including Article 36, paragraph 5 (Order of 10 May 1984, I.C.J. Reports
1984, p. 179, para. 25). Since the Court’s holdings in the Aerial Incident case
run counter to the thrust of the Court’s Order of 10 May 1984, one is
entitled to ask : on what basis does the Court there rely upon and speci-
fically cite the Aerial Incident Judgment ? Moreover, today’s Judgment,
while endeavouring to distinguish the facts at bar in the Aerial Incident case
from the instant case, renews (with a suggestive lack of vigour) its reliance
upon the Judgment in the Aerial Incident case and so gives fresh point to
this question. The most one can do in Nicaragua’s support is to take out of
context a few passages, notably, as the Court does, a single sentence found
on page 142 of the Judgment :

“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 repre-
sented at the San Francisco Conference, signed and ratified the
Charter and thereby accepted the Statute in which Article 36, para-
graph 5, appears.”

But it is absolutely clear that, by this, the Court meant a declaration
accepting the jurisdiction of the Permanent Court which was in force under
the Statute of that Court. Why ? Not only because Article 36, paragraph 5,
says so in those terms, but because the Court says so, and on the very same
page :

“The declarations to which Article 36, paragraph 5, refers, created
for the States which had made them the obligation to recognize the
jurisdiction of the Permanent Court of International Justice.” (1 CJ.
Reports 1959, pp. 142-143.)

Now it is admitted on all sides, including that of Nicaragua, that its
Declaration of 1929 never imposed on Nicaragua “the obligation to
recognize the jurisdiction of the Permanent Court of International
Justice”.

31. In this regard, it is instructive to observe that counsel for Nicaragua
have conceded that the Court’s Judgment in the Aerial Incident case does
not support Nicaragua’s thesis. That is to say, Nicaragua’s own counsel
have in effect concluded that any reliance by this Court in this case on the
Judgment in that case would be misplaced. Thus Professor Chayes
declared that :

“the majority opinion in Aerial Incident really has no significance at
all for the present dispute ... Nothing in the opinion, either in hold-
ing or in considered obiter dictum, excludes or is even faintly incon-
sistent with the position taken by Nicaragua : namely, that its decla-
ration was ‘in force’ within the meaning of Article 36 (5) when Nica-

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ragua became an original Member of the United Nations in 1945.”
(Hearing of 8 October 1984.)

Now Professor Chayes is plainly wrong in arguing that nothing in the
majority opinion “is even faintly inconsistent” with the position taken by
Nicaragua: that has been shown by the foregoing quotations from the
Court’s Judgment. But that is beside the immediate point, which is : was
and is the Court justified in relying on or citing the Court’s Judgment in the
Aerial Incident case as support for the Article 36, paragraph 5, thesis that
is made out in Nicaragua’s favour? Nicaragua’s distinguished counsel
recognizes that it was and is not justified when he affirms that that opinion
has “no significance at all for the present dispute. ..”.

32. Professor Chayes continues that, “The matter is different with the
dissenters” (ibid). He points out that the joint dissenting opinion in the
Aerial Incident case of Judges Sir Hersch Lauterpacht, Wellington Koo
and Sir Percy Spender maintained that the purpose of Article 36, para-
graph 5, was “to ensure continuity between the old Court and the new” and
“to preserve to the greatest extent possible... the state of affairs with
respect to compulsory jurisdiction that existed under the Permanent
Court ...” (ibid. ). In this, he is quite right. But for the reasons set out above,
this does not advance his case.

33. The joint dissenting opinion held :

“The formal and, in effect, insignificant changes in the Statute of
the new Court were not to be permitted to stand in the way of the then
existing compulsory jurisdiction of the Permanent Court being taken
over by the International Court. It was specifically contemplated that
the continuity of the two Courts should be given expression by
recognizing the continuity of the compulsory jurisdiction at that time
existing.” (1.C.J. Reports 1959, p. 159.)

Thus the dissenters affirmed that the intention of Article 36, paragraph 5,
was to do no more than transfer “the then existing compulsory jurisdiction
of the Permanent Court” (by which Nicaragua had never accepted to be
bound). They further recalled that Article 36, paragraph 5, stemmed from a
British proposal to “provide for the continuing validity of existing adher-
ences” to the compulsory jurisdiction of the Permanent Court (ibid., p.
160). Nicaragua had no such adherence. The object of Article 36, para-
graph 5, as the dissenters saw it, was that none of the “existing declarations
of acceptance” should disappear with the dissolution of the Permanent
Court ; what was sought was “the maintenance of the entire group of
declarations of acceptances which were still in force...” (ibid.). That
object, however, would exclude Nicaragua, whose declaration was not and
never had been in force. |

34. The joint dissenters proceeded to interpret the phrase of Article 36,
paragraph 5, “which are still in force” as only meaning the exclusion of

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some 14 declarations of acceptance which “had already expired” and the
inclusion, irrespective of the dissolution of the Permanent Court, of “all
the declarations the duration of which has not expired” (1.CJ. Reports
1959, p. 161). They cited the French text in support of that conclusion
(ibid., pp. 161-162), stating :

“At the Conference of San Francisco there were present a number
of States that had in the past made Declarations of Acceptance which,
not having been renewed, had lapsed and were therefore no longer in
force. This applied, for instance, to the Declarations of China, Egypt,
Ethiopia, France, Greece, Peru, Turkey and Yugoslavia. It was clearly
necessary, by inserting the expression ‘which are still in force’, to
exclude those States from the operation of paragraph 5. That inter-
pretation is supported by the French text which is as authoritative as
the English text and which is even more clear and indisputable than
the latter. The words ‘pour une durée qui n’est pas encore expirée’ (for a
duration which has not yet expired) must be regarded as determining
the true meaning of the English text in question. The fact that the
Chinese, Russian and Spanish texts of that paragraph approximate to
the English text does not invalidate or weaken the obvious meaning of
the French text. Those three texts were translated from the English
version, whereas the French text was that of one of the two official
working languages adopted at the San Francisco Conference. How-
ever, while the French text removes any doubt whatsoever as to the
meaning of these words, there is in effect no reasonable doubt about
them also so far as the English text is concerned. There is no question
here of giving preference to the French text. Both texts have the same
meaning. The French text is no more than an accurate translation of
the English text as generally understood. Or, rather, in so far as it
appears that the final version was first formulated in the French
language, the English text is no more than an accurate translation
from the French.” (/bid, pp. 161-162 ; emphasis supplied.)

They observed that the phrase “in force” as found elsewhere in the Statute,
refers to the element of time (ibid. p. 163). They also pointed out that,
“Retroactive operation of a provision ought not to be assumed without
good cause . . .” (ibid., p. 164). Article 36, paragraph 5, did not lapse on the
dissolution of the Permanent Court ; it was rather designed to render that
dissolution.irrelevant in the matter of the transfer of declarations. They
then concluded, in the passage on which counsel for Nicaragua place great
emphasis, that the words, “which are still in force” refer “to the declara-
tions themselves...” (ibid).

“So long as the period of time of declarations made under Article 36
of the Statute of the Permanent Court still has to run at the time when
the declarant State concerned becomes a party to the Statute of the
International Court of Justice, those declarations fall within the pur-
view of Article 36, paragraph 5, of the new Statute and ‘shall be

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deemed to be acceptances of the compulsory jurisdiction of the
International Court for the period which they still have to run and in
accordance with their terms’.” (bid. pp. 164-165.)

But — and this is critical to and destructive of Nicaragua’s construction —
there is no indication whatsoever in this passage (or elsewhere in their
opinion) that, in saying this, the dissenters viewed a declaration which had,
unlike Bulgaria’s, never come into force at all to have a period of time in
which still to run.

35. It should be added that, at a much later point in the joint dissenting
opinion, the three distinguished dissenters took up the contention of a few
of their colleagues that Article 36, paragraph 5, refers only to declarations
which contain a time-limit of their validity, and thus does not embrace
declarations, such as that of Bulgaria, whose duration was unlimited. In
rebutting that contention, they said :

“Moreover, if the interpretation contended for had been adopted
by the Court in the present case, its result would be to invalidate, as
from the date of the Judgment of the Court, the existing declarations
of a number of States — such as Colombia, Haiti, Nicaragua and
Uruguay.” ([bid., p. 193.)

Nicaragua can derive comfort from that quotation. But there is no reason
to conclude that, in including it, the dissenters had investigated whether
Nicaragua’s 1929 Declaration, listed in the Court’s Yearbook, actually had
ever come into force.

36. In sum, while Nicaragua arguably may find a measure of support in
selected passages of the joint dissent in the Aerial Incident case, that
support is very limited. Moreover, the dissenters were speaking for them-
selves as dissenters, not for the Court. Counsel for Nicaragua appreciate
that, but maintain that the Temple of Preah Vihear case and Barcelona
Traction “wholeheartedly” adopt the principles espoused by the dissenters
in Aerial Incident (Hearing of 8 October 1984). Let us turn to those cases,
but first consider whether, as Nicaraguan counsel contend, United States
arguments in a companion Aerial Incident case lend support to Nicaragua’s
thesis.

37. Counsel for Nicaragua argued that, in the proceedings which the
United States brought against Bulgaria in connection with the latter’s
shooting down of an Israeli civil aircraft on which there were passengers of
United States nationality, the United States espoused the very interpre-
tation of Article 36, paragraph 5, for which Nicaragua now argues (Hear-
ing of 8 October 1984). It is true that the United States argument in that
case parallels the argument of the joint dissenters in Aerial Incident.
However, the United States expressly affirmed that the declaration of
Bulgaria there at issue came into force in 1921 (as did the United Kingdom

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in another companion case) !. (I.C.J. Pleadings, Aerial Incident of 27 July
1955 (Israel v. Bulgaria ; United States of America v. Bulgaria; United
Kingdom v. Bulgaria), p. 312.) The United States construction of Article 36,
paragraph 5, was based, inter alia, on “acceptance of the jurisdiction of the
Permanent Court” (ibid, pp. 317-318). That was one obligation ; Article
36, paragraph 5, entailed “a new and additional obligation . . .” (ibid, p.
318). The United States relied on the San Francisco negotiating history to
establish that the purpose of Article 36, paragraph 5, was “to preserve”
declarations (ibid., pp. 319-320). Article 36, paragraph 5, was included “to
prevent retrogression with respect to international judicial jurisdic-
tion...” (ibid, p. 320) — but the United States gave no hint of construing
Article 36, paragraph 5, so as to expand that jurisdiction by giving life toa
declaration which had never come into force. Article 36, paragraph 5, was
meant, the United States argued, “not to lose the effectiveness of decla-
rations made under the optional clause of the old Statute” (ibid.), but it
does not follow that it was intended to validate declarations which had not
come into effect. Thus, it is clear that these United States arguments give
no nourishment to the Nicaraguan thesis, because they all addressed the
situation — which is not Nicaragua’s but was Bulgaria’s — in which the
declarant State had ratified the Protocol of Signature and therefore had
brought its declaration under the Optional Clause into force.

38. The next significant reference to Article 36, paragraph 5, in the
Court’s jurisprudence was that of Judge Philip C. Jessup, in his separate
opinion in the South West Africa (Ethiopia v. South Africa, Liberia v. South
Africa), Preliminary Objections, Judgment, I. C.J. Reports 1962, pages 319,
415:

“It was clearly the intention in the drafting of the Statute of the
International Court of Justice to preserve for the new Court just as
much as possible of the jurisdiction which appertained to the old
Court. For this purpose, Article 36 (5) provided for the transfer of the
obligations assumed by States which made declarations under Article
36 of the old Statute, and Article 37 provided for a similar transfer
where a ‘treaty or convention’ had contained a provision for the
jurisdiction of the Permanent Court.”

' The British Memorial puts the matter precisely :

“Bulgaria’s acceptance of the compulsory jurisdiction of the Court is uncondi-
tional, and was made on July 29, 1921, when the instrument of Bulgaria’s ratifica-
tion of the Protocol of Signature of the Permanent Court of International Justice
was deposited, and became effective as to the jurisdiction of the International
Court of Justice by virtue of .. . Article 36 (5) of the Statute of the Court, on the
date of Bulgaria’s admission to membership of the United Nations.” (.CJ.
Pleadings referred to above, p. 331.)

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Again, there is the emphasis on preservation of the jurisdiction which
“appertained to the old Court”. Judge Jessup clearly was speaking of, as he
specifies, “the obligations assumed by States which made declarations
under Article 36 of the old Statute”, of a jurisdiction which was effective
and in force, not a jurisdiction to be brought initially into effect by
operation of Article 36, paragraph 5.

39. Nicaraguan counsel suggested that the three major opinions to be
considered by the Court in reaching the current Judgment are those of (a)
the Court in Aerial Incident ; (b) the joint dissent in that case ; and (c)
Barcelona Traction. Nicaraguan counsel views Barcelona Traction as in
effect, though not in terms, overturning the Court’s judgment in Aerial
Incident and as accepting the dissenters’ rationale in that case (Hearing of
8 October 1984). However, in Barcelona Traction, the Court, in interpret-
ing Article 37, decidedly did not overrule Aerial Incident ; and, even if it
had, it would have thereby lent no support to Nicaragua’s thesis, not only
because the joint dissenting opinion in Aerial Incident lends it so little, but
because both the Court and Judge Tanaka in his separate opinion in
Barcelona Traction emphasized that the purpose of Article 37, like Article
36, paragraph 5, was to maintain continuity between the jurisdiction given
to the Permanent Court and that given to the new Court. Thus the Court
stressed that Article 37 was “not intended to create any new obligatory
jurisdiction that had not existed before...”. Rather the point was “pre-
serving the existing conventional jurisdiction ...” (Barcelona Traction,
Light and Power Company, Limited, Preliminary Objections, Judgment,
I.CJ. Reports 1964, pp. 6, 34). In Barcelona Traction, the treaty at issue
affording jurisdiction to the Permanent Court had come into force. Thus
the analogy is with Bulgaria’s initially effective adherence to the Perma-
nent Court’s compulsory jurisdiction in Aerial Incident, it is not with
Nicaragua’s initially ineffective adherence in the current case. And why, by
the way, does Nicaragua try to make so much of Barcelona Traction when
on analysis it offers it so little ? Essentially because Nicaragua contends
that it overrules the Court’s Judgment in Aerial Incident. Nicaragua’s
exposition of Barcelona Traction, while lending scant support to its posi-
tion, thus underscores how dubious is such reliance of the Court as there is
upon the Aerial Incident case. If the Aerial Incident Judgment lends sup-
port to Nicaragua’s theory, why should Nicaragua argue that Barcelona
Traction overruled the Court’s Judgment in Aerial Incident ?

40. Let us finally advert to the case concerning the Temple of Preah
Vihear, Preliminary Objections, Judgment, I.C.J. Reports 1961, page 17. In
its Order of 10 May 1984, the Court relied on this case as well (without
specifying any page or passage) to support its conclusion that the absence

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of Nicaragua’s effective ratification of the Protocol of Signature might not
have excluded the operation of Article 36, paragraph 5. In today’s Judg-
ment, the Court cites the Temple case anew, apparently with regard to the
alleged reality of Nicaragua’s consent to be bound by the Court’s com-
pulsory jurisdiction. In the Temple case, the Court held that the intention
of Article 36, paragraph 5, was to provide a means whereby,

“within certain limits, existing declarations in acceptance of the com-
pulsory jurisdiction of the Permanent Court of International Justice
would become ipso jure transformed into acceptances of the compul-
sory jurisdiction of the present Court ...” (at p. 25 ; see also, p. 28 ;
emphasis supplied).

That is not a holding which helps Nicaragua, since its declaration did not
accept the compulsory jurisdiction of the Permanent Court. Once again it
may be observed that when the Court speaks of “acceptances” of this
Court’s compulsory jurisdiction, and, in the same sentence, speaks of
declarations “in acceptance” of the compulsory jurisdiction of the Perma-
nent Court, it incontestably interprets Article 36, paragraph 5, to refer only
to declarations which bound the declarants — in both Courts. The Court
does not assign one meaning to the term “accept” in this Court, and
another meaning to that term in the Permanent Court, and in the same
sentence. Furthermore, in the Temple case, the Court reaffirmed the
rationale of its Judgment in the Aerial Incident case. It observed that
Thailand in the Temple case endeavoured to apply that rationale in its
favour, maintaining that its Declaration of 1940 had lapsed with the
dissolution of the Permanent Court and could not have been renewed by a
later declaration of 1950 which purported to renew it. It held that Thai-
land’s 1950 Declaration, which was meant to be an effective acceptance of
this Court’s compulsory jurisdiction under the Optional Clause, was a new
and independent instrument not made under Article 36, paragraph 5, not
only because that provision did not contemplate the making of new
declarations but because it was concerned with the preservation of decla-
rations for the period which they still had to run. Thus the Court treated
Yhailand’s 1950 Declaration as intended to be made under Article 36,
paragraph 2, and effective as such. The Court expressly put aside questions
of revival of lapsed or spent instruments and questions of error, for in the
Temple case the Court concluded that there was no factor which impaired
the reality of the consent which Thailand intended to give in 1950. The
Court observed that, in the case of declarations under the Optional Clause
of this Court, the “only formality required” is the deposit of the acceptance
with the Secretary-General of the United Nations. The Court accordingly
concluded that Thailand’s acceptance could not be defeated by some
defect which did not involve “a mandatory legal requirement” (ibid. p. 34).
Thus the Court, in the Temple case, interpreted as a “mandatory legal
requirement” that act which is most closely analogous to the act which
Nicaragua failed to perform in this case, deposit of its instrument of

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ratification of the Protocol of Signature of the Permanent Court with the
League Secretary-General.

9. The listings in the Yearbooks of the Court

41. While it is not disputed that the responsible officials of the League
of Nations and the Registry of the Permanent Court did not regard
Nicaragua as party to the Court’s compulsory jurisdiction by reason of its
1929 Declaration, the Yearbooks of this Court are not so clear, as was
amply expounded in the pleadings of the Parties.

42. Those pleadings and the facts which they interpret need not be fully
recapitulated. The essential points that may be derived from them appear
to be the following :

— The Yearbooks of this Court, from the outset of the life of this Court to
the present day, have listed Nicaragua as party to the Court’s compulsory
jurisdiction. For example, the first Yearbook so lists Nicaragua, with a
footnote stating :

“Declaration made under Article 36 of the Statute of the Perma-
nent Court and deemed to be still in force (Article 36, paragraph 5, of
the Statute of the present Court).” (Yearbook 1946-1947, p. 111.)

— However, those Yearbooks have always contained, in terms or refer-
entially, a footnote. In the first Yearbook, that footnote to the text of
Nicaragua’s 1929 Declaration refers to the telegram of 20 November 1939
informing the League that Nicaragua’s instrument of ratification of the
Protocol of Signature of the Court’s Statute was to follow, concluding :
“Notification concerning the deposit of the said instrument has not, how-
ever, been received in the Registry.” (Jbid, p. 210.) Beginning with the
Yearbook 1955-1956, the footnote has concluded : “It does not appear,
however, that the instrument of ratification was ever received by the
League of Nations.” (At p. 218.)

— The footnote’s inclusion is incompatible with the thesis that Nicara-
gua’s ratification of the United Nations Charter and Statute of this Court
and the consequent operation of Article 36, paragraph 5, were sufficient to
bring into effect a declaration which otherwise was ineffective to bind
Nicaragua to the compulsory jurisdiction of the Permanent Court. Why ?
Nicaragua claims that the operation of Article 36, paragraph 5, combined
with the existence of its 1929 Declaration which was not binding on it, and
its ratification of the Charter and the Court’s Statute which is binding on it,
was and is sufficient to give life to its 1929 Declaration. Let us assume that
that is so. What then is the point of the footnote ? According to Nicaragua,

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it makes no difference at all whether its instrument of ratification of the
Permanent Court’s Protocol was or was not received, because, even if not
received, Nicaragua became party to this Court’s compulsory jurisdiction
by operation of Article 36, paragraph 5, upon its ratification of the Charter.
It maintains that its being so listed in the Yearbook so shows. But why then
should the Registry have said anything at all about non-receipt of the
instrument of ratification since it was absolutely irrelevant, on Nicaragua’s
argument, to the operation of Article 36, paragraph 5? Clearly only
because the Registry did vot think that it was irrelevant. Rather, it thought
that possible non-receipt was wholly relevant ; and it thought that it
warned States about the uncertainty in Nicaragua’s position by including
the footnote. When the first Yearbook (and immediately succeeding Year-
books) were composed, it was not definitively established whether or not
the Secretariat of the League had received the instrument of ratification
which Nicaragua in 1939 affirmed it would send ; it was only later that it
was established not only that this Court’s Registry had not been notified of
such deposit, but that in fact deposit never had been made.

43. Now let us turn to the second Yearbook. That Yearbook omits the
footnote, but, on page 127, it refers to the prior Yearbook in which Nica-
ragua’s declaration — and the footnote — are found. But it contains more of
interest and probative value, namely, the text of the Pact of Bogota. By the
terms of Article XXXI of that Pact, “In conformity with Article 36,
paragraph 2, of the Statute of the International Court of Justice”, the
Parties accept compulsory jurisdiction unconditionally under that Article
in relation to any other American State, in the precise terms of the Optional
Clause. Under Article XXXII of the Pact of Bogota, moreover, whenever
the conciliation or arbitration procedures prescribed by the Pact do not
lead to a solution, either party to a dispute shall be entitled to have recourse
to the International Court of Justice and, “The Court shall have general
compulsory jurisdiction in accordance with Article 36, paragraph 1, of the
said Statute”. A reservation to the Pact of Bogota by Nicaragua is found at
page 143 of that Yearbook, which states that Nicaragua’s acceptance of the
foregoing may not prejudice its position in respect of any arbitral decision
which it has attacked. Thus Nicaragua generally accepted the Court’s
compulsory jurisdiction under Article 36, paragraph 2, vis-a-vis any other
American State, and under Article 36, paragraph 1, as well, subject to this
reservation, which obviously related to the King of Spain’s contested
arbitral award of 1906. This may suggest that Nicaragua did not regard
itself otherwise as being bound to the Court’s compulsory jurisdiction by
reason of the operation of Article 36, paragraph 5. Why ? Because other-
wise Nicaragua’s reservation to the Pact of Bogota makes little sense. Why
should Nicaragua make this reservation to the Court’s compulsory juris-
diction under Article 36, paragraph 2, and Article 36, paragraph 1 (and to

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the other means of pacific settlement provided for in the Pact of Bogota), if
otherwise Nicaragua was bound, and believed itself to be bound, by the
Court’s compulsory jurisdiction under Article 36, paragraph 5, in terms
which omitted the reservation ? Nothing in the 1929 Declaration hints at
that reservation. It should be noted, moreover, that, in the King of Spain
case which is discussed below, Nicaragua invoked its reservation to the
Pact of Bogota U.C./. Pleadings, Arbitral Award Made by the King of Spain
on 23 December 1906 (Honduras v. Nicaragua), Vol. 1, pp. 132-133). Thus
the content of the Yearbook 1947-1948 itself gives ground for questioning
whether Nicaragua regarded itself as bound by the force of operation of
Article 36, paragraph 5.

44. The footnote of the Yearbook of 1946-1947, which was incorporated
by reference in subsequent editions, was revived and revised with the
Yearbook for 1955-1956, and maintained in all subsequent Yearbooks, in
the following terms :

“According to a telegram dated November 29th, 1939, addressed to
the League of Nations, Nicaragua had ratified the Protocol of Sig-
nature of the Statute of the Permanent Court of International Justice
(December 16th, 1920), and the instrument of ratification was to
foliow. It does not appear, however, that the instrument of ratification
was ever received by the League of Nations.” (P. 195.)

The reintroduction of a footnote apparently stemmed from correspon-
dence among the then Registrar, Julio Lopez-Olivan, Judge Hudson, and
the Director of the European Headquarters of the United Nations,
Adriaan Pelt, which was not brought to the attention of the Court at the
time it deliberated upon provisional measures and issued its Order of 10
May 1984. This correspondence is in the Court’s archives ; some of it was
found by the United States and by Nicaragua in Judge Hudson’s papers at
Harvard Law School. That correspondence is enlightening. The published
elements of it demonstrate that:

(a) Judge Hudson believed that Nicaragua’s ratification of the Charter did
not subject it to the Court’s compulsory jurisdiction in the event of the
League’s not having received the instrument of ratification ;

(b) Nicaragua’s instrument of ratification was never received by the Sec-
retariat of the League of Nations ;

(c) the Registrar concluded that Nicaragua was not bound by this Court’s
compulsory jurisdiction by reason of the operation of Article 36,
paragraph 5.

Thus his letter to Judge Hudson of 2 September 1955 concludes :

“T do not think one could disagree with the view you express when

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you say that it would be difficult to regard Nicaragua’s ratification of
the Charter of the United Nations as affecting that State’s acceptance
of the compulsory jurisdiction. If the Declaration of September 24th,
1929, was in fact ineffective by reason of failure to ratify the Protocol
of Signature, I think it is impossible to say that Nicaragua’s ratifica-
tion of the Charter could make it effective and therefore bring into
play Article 36, paragraph 5, of the Statute of the present Court.”

45. The opinion of the then Registrar, Sr. Lopez-Olivan, is of particular
interest. LOpez-Olivan was the last Registrar of the Permanent Court, and
obviously was familiar with its workings and the processes of adherence to
its compulsory jurisdiction. He was a member of the delegation (together
with the Court’s President and Judge Hudson) which represented the
Permanent Court of International Justice at the San Francisco Conference
(see P.C.I.T., Sixteenth Report, p. 12). And he later served as this Court’s
second Registrar. Thus there is every reason to presume that he was fully
familiar with the intentions of the drafters of Article 36, paragraph 5, and
that he was in a unique position to interpret the result of the failure of
Nicaragua to transmit to the League its instrument of ratification of the
Protocol of Signature. Moreover, his interpretation — manifested
cautiously but still manifested in the revised footnote inserted in the
Yearbook 1955-1956 and thereafter — is entitled to the greater weight in
the light of the fact that, when the Court itself subsequently came to inter-
pret Article 36, paragraph 5, it interpreted it in ways wholly consistent
with the interpretation of Lopez-Olivan. The Registrar understandably
did not take it upon himself in 1955 to delete Nicaragua’s declaration
from the Yearbook, an act which would have been particularly delicate
at a time when litigation between Nicaragua and Honduras over the
arbitral award of the King of Spain loomed and when it was uncertain
what the jurisdictional basis of such litigation might be. He contented
himself with reintroducing and revising the footnote which was suffi-
cient to place on guard any reader interested in the question of whether
Nicaragua was effectively a party to the Court’s compulsory jurisdic-
tion. He left it to the Court to draw legal conclusions from the facts so
presented.

46. But the Registrar did take one further step. With the Yearbook
1956-1957, Sr. Lopez-Olivan introduced the following caveat in presenting
the Yearbook’s recital of declarations made under Article 36 (including
Nicaragua’s) :

“The texts of declarations set out in this Chapter are reproduced for
convience of reference only. The inclusion of a declaration made by
any State should not be regarded as an indication of the view enter-
tained by the Registry or, a fortiori, by the Court, regarding the nature,
scope or validity of the instrument in question.” (At p. 207.)

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It cannot be shown that the inclusion of this new proviso was stimulated by
the uncertain status of Nicaragua’s declaration, but it is a sensible specu-
lation. Whatever the origins of the provision, which appears in subsequent
Yearbooks, it serves to place the listing of Nicaragua in the Yearbook in its
appropriate context.

47. The Court’s Yearbooks are instructive in a further aspect as well. At
page 188 of the Yearbook 1955-1956 one finds the following in bold
letters : “List of States which recognize the compulsory jurisdiction of the
International Court of Justice or which are still bound by their declarations
accepting the compulsory jurisdiction of the Permanent Court of Interna-
tional Justice.” (Emphasis supplied.) Nicaragua is listed thereunder,
together with the reintroduced footnote. The meaning to be attached to
this heading, Nicaragua and the Court appear to maintain, is that “still
bound” means — in Nicaragua’s unique case — “never bound” by the
Permanent Court’s jurisdiction but bound by this Court’s jurisdiction.
Does Nicaragua — or the Court — treat the French text of the Yearbook
more seriously ? The French Yearbook for 1955-1956, at page 182, provides
a “Liste analytique des Etats qui reconnaissent comme obligatoire la
juridiction de la Cour internationale de Justice ou qui sont encore liés par
leur acceptation de la juridiction de la Cour permanente de Justice inter-
nationale.” (Emphasis supplied.) How can the meaning which this phrase
of the Yearbook — “encore liés” — imports to Article 36, paragraph 5, be
reconciled with the meaning which the Court attributes to the French text
of Article 36, paragraph 5 ? The Court at paragraph 30 of its Judgment in
the instant case finds it significant that the English text of Article 36,
paragraph 5, does not specify that declarations must be “binding”. Then
what explanation can the Court offer for the terms of this heading of the
Yearbook which specifies “still bound” as the meaning of Article 36,
paragraph 5 ? As noted, these questions are not posed by the terminology
of this issue of the Yearbook only. For example, the Yearbook 1946-1947
containing the first version of the footnote similarly contains, at page 221,
a “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 Interna-
tional Justice ...”.

10. Listings in Reports of the Court to the General Assembly

48. Since 1968, the Court has submitted a brief annual report to the
General Assembly of the United Nations. That report has included a list of
States bound by the Court’s compulsory jurisdiction. Nicaragua always
has been included in that list. Does that fact establish as a matter of law
that Nicaragua is party to the Court’s compulsory jurisdiction, and does it
estop the Court from holding that it is not ?

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49. In adopting the Court’s Reports to the General Assembly, the judges
of the Court do not investigate the facts that lie behind a list of States which
are presented as having accepted the Court’s compulsory jurisdiction. That
list is submitted by the Registry and is routinely accepted by the Court.
How routinely is demonstrated by the Report of the International Court of
Justice, 1 August 1982-31 July 1983 (A/38/4), which, at page 1, contains the
following entry :

“8. There are now 47 States which recognize (a number of them
with reservations) the jurisdiction of the Court as compulsory in
accordance with declarations filed under Article 36, paragraph 2, of
the Statute. They are: Australia, Austria, Barbados, Belgium, Bot-
swana, Canada, Colombia, Costa Rica, Democratic Kampuchea,
Denmark, Dominican Republic, Egypt, El Salvador, Finland, Gam-
bia, Haiti, Honduras, India, Israel, Japan, Kenya, Liberia, Liechten-
stein, Luxembourg, Malawi, Malta, Mauritius, Mexico, Netherlands,
New Zealand, Nicaragua, Nigeria, Norway, Pakistan, Panama, Phil-
ippines, Portugal, Somalia, Sudan, Swaziland, Sweden, Switzerland,
Togo, Uganda, United Kingdom of Great Britain and Northern Ire-
land, United States of America and Uruguay. The texts of the decla-
rations filed by these States appear in Chapter IV, Section II, of L. CJ.
Yearbook 1982-1983.”

It will be observed that Nicaragua is thus listed as a State which has filed a
declaration “under Article 36, paragraph 2, of the Statute”. When this
Court speaks of “the Statute”, it speaks of its Statute. But the fact is that
Nicaragua has never filed a declaration under Article 36, paragraph 2, of
the Court’s Statute. It does not claim that it has. Rather, it claims that it is
bound to the Court’s compulsory jurisdiction by reason of a declaration
filed under the Statute of the Permanent Court and by the operation of
Article 36, paragraph 5, of this Court’s Statute. But that is not what the
aforesaid Report says. Can it be maintained that, although what the Report
says is inaccurate, it nevertheless has become the law because it is con-
tained in a Report to the General Assembly ?

50. In the Report of the International Court of Justice, 1 August 1983-
31 July 1984 (A/39/4), the following entry is found :

“7. There are now 47 States which recognize (a number of them
with reservations) the jurisdiction of the Court as compulsory in
accordance with declarations filed under Article 36, paragraphs 2 and
5, of the Statute. They are : Australia, Austria, Barbados, Belgium,
Botswana, Canada, Colombia, Costa Rica, Democratic Kampuchea,
Denmark, Dominican Republic, Egypt, El Salvador, Finland, Gam-
bia, Haiti, Honduras, India, Israel, Japan, Kenya, Liberia, Liechten-
stein, Luxembourg, Malawi, Malta, Mauritius, Mexico, Netherlands,

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New Zealand, Nicaragua, Nigeria, Norway, Pakistan, Panama,
Philippines, Portugal, Somalia, Sudan, Swaziland, Sweden, Switzer-
land, Togo, Uganda, United Kingdom of Great Britian and Northern
Ireland, United States of America and Uruguay. The texts of the
declarations filed by these States appear in Chapter IV, Section IH, of
LCJ. Yearbook 1983-1984.”

Thus the error which was published in last year’s Report has been dealt with
in this year’s Report, as is understandable in view of the fact that that
Report was written and adopted well after the commencement of proceed-
ings in the current case. However, the error of stating that Nicaragua has
recognized the compulsory jurisdiction of this Court under Article 36,
paragraph 2, is found in the Reports of the Court to the General Assembly
in all reports from 1 August 1973 through that of 1983, that is, in 9 reports
out of the 16 rendered to the General Assembly to date.

51. Thus, it is demonstrable — and demonstrated — that when the Court
provides information in an administrative capacity, not only may it err and
repeatedly err, but that it cannot be thought to be making a judgment in
law or of legal effect. There is an obvious difference between the admin-
istrative acts and the judicial acts of the Court. The administrative acts of
the Court — and particularly inconsistent acts of this character — cannot
reasonably be taken as either establishing the law or estopping the Court
from holding what the law is. Indeed, if the current Report of the Court
were to be treated as dispositive, what would be the point of the Court’s
receiving extensive memorials, having substantial hearings and writing a
judgment on the very issue? It could rather treat what otherwise is a
question of considerable complexity as perfectly simple, as one resolved
not by last year’s Report but by this year’s.

52. In sum, while the reader on the run may have gained the impression
from the Court’s Yearbooks and Reports that Nicaragua is bound to the
Court’s compulsory jurisdiction, if not under Article 36, paragraph 2, then
by operation of Article 36, paragraph 5, that is not a lawyerlike conclusion
which follows from a careful analysis of the relevant documentation, and
still less of the relevant law. Nor is it a conclusion which follows from the
annually published collection of Signatures, Ratifications, Acceptances,
Accessions, etc., concerning the Multilateral-Conventions, and Agreements in
respect of which the Secretary-General acts as Depositary, to which the
Court, in paragraph 36 of its Judgment, also ascribes “particular weight”.
Those reports state that, “All data and footnotes concerning these decla-
rations” of acceptance of the Court’s jurisdiction are reprinted from the
Court’s Yearbook, and, when that Yearbook runs the footnote to Nicara-
gua’s declaration, so does the derivative volume of the Secretary-General.
See, e.g., Multilateral Treaties Deposited with the Secretary-General, Status
as at 31 December 1982, pages 24 and 27, note 54.

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11. The conduct of the Parties

53. Nicaragua argues that, in any event, its Declaration of 1929 is
effective to confer jurisdiction on the Court in the present proceeding “for
an entirely separate and independent reason”, namely :

“(i) Nicaragua’s conduct over the past 38 years unequivocally mani-
fests its consent to be bound by the Court’s compulsory jurisdic-
tion. Such an expression of consent overcomes any formal defect
in Nicaragua’s ratification of the Protocol of Signature.

(ii) The conduct of the United States during the past 38 years, like the
conduct of the other States that have declared their acceptance of
the Court’s compulsory jurisdiction, constitutes an acceptance of
and acquiescence in the effectiveness of Nicaragua’s 1929 decla-
ration and a waiver of any formal defect in Nicaragua’s ratifica-
tion of the Protocol of Signature.” (Nicaraguan Memorial, para.
85.) :

54. That contention is unpersuasive for two reasons. First, the conduct
in question actually is ambiguous not unequivocal, and it cannot on the
part of the United States reasonably be interpreted to constitute acquies-
cence in the effectiveness of Nicaragua’s 1929 Declaration. Second, even if
the course of the Parties’ conduct were more consistent and more favour-
able to Nicaragua’s position than it is, it is implausible to argue that a State
may become party to the Optional Clause of the Statute not by the deposit
of a declaration with the Secretary-General of the United Nations pur-
suant to Article 36, paragraphs 2 and 4, not by the operation of Article 36,
paragraph 5, but by conduct extraneous to those provisions. The ambi-
guities of Nicaragua’s behaviour by no means establish the reality of its
consent ; if Nicaragua had wished to ensure that its consent were real, it
needed merely to file a declaration under Article 36, paragraphs 2 and 4.
But in any event, the deposit of an instrument of ratification is no mere
optional formality ; as pointed out in paragraph 12 of this opinion, where a
treaty exclusively provides for that means of ratification {as did the Pro-
tocol of Signature) no other is permitted ; in the words of the Temple of
Preah Vihear case, it was, like deposit of a declaration is under this Court’s
Article 36, paragraph 4, “a mandatory legal requirement”.

55. Since, despite the foregoing considerations, the Court nevertheless
gives weight to what it appears to find as a sufficiently consistent course of
conduct of those concerned, comment on that conduct is in order.

56. It is of course true that the Court’s Yearbooks and Reports (and those
of the Secretary-General and national authorities) listed Nicaragua as
party to the Court’s compulsory jurisdiction. Much is made of the fact that
such listings were never protested. But what does the lack of protest

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indicate ? Arguably, on Nicaragua’s part, an intent to be bound; and
arguably, on Nicaragua’s part — by reason of its failure to challenge or
otherwise react to the footnote — an intent not to be bound. As for the
United States, and third States generally, since they did not have litigation
with Nicaragua actively in view, they had no reason to protest what, on
analysis, might have been seen as a questionable listing.

57. Moreover, Nicaragua’s conduct in and in connection with the King
of Spain case strongly suggests that Nicaragua was not seen to be bound by
the Court’s compulsory jurisdiction, by itself, by Honduras or by the
United States. Honduras was anxious to bring Nicaragua before the Court
in the hope that the Court would uphold the King of Spain’s arbitral award
of 1906 which awarded to Honduras territory of which Nicaragua had
remained in occupation. Honduras engaged Manley O. Hudson as its
leading counsel. That was what prompted him to make the inquiry of the
Registrar which led to the re-introduction of the footnote in the Yearbook
1955-1956. In the light of his correspondence with the Registrar, Hudson
was confirmed in his view that, if Honduras invoked its own submission to
the Court’s compulsory jurisdiction and Nicaragua’s declaration of 1929, it
was unlikely that the Court would find that it had jurisdiction over Nica-
ragua. Thus Honduras sought the good offices of the United States in order
to persuade Nicaragua to conclude a special agreement submitting the case
to the Court. In that connection, Honduras sent to the United States a
memorandum of 15 June 1955 which declared :

“Nicaragua has refused until now to recognize the compulsory
jurisdiction of the International Court of Justice so that the Court
could take cognizance of and resolve the case which Honduras has
considered filing against Nicaragua. Nicaragua has suggested that the
two countries sign a kind of special protocol to submit the problem to
the Court so that it could declare whether or not the award is valid.”
(United States Counter-Memorial, Ann. 34, p. 2.)

Thereafter, in a conversation of 21 December 1955 between Nicaragua’s
Ambassador to the United States, Guillermo Sevilla-Sacasa, and officials
of the Department of State, it was said, according to a memorandum of
conversation then drawn up which the United States has submitted in
evidence, that :

“Reference was made to the fact that the matter had not been
previously referred to the Court because Nicaragua had never agreed
to submit to compulsory jurisdiction.

Ambassador Sevilla-Sacasa indicated that an agreement between
the two countries would have to be reached to overcome this diffi-
culty.” (Ibid, p. 4 and App. K thereto at p. 2.)

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The problem was finally taken to the Organization of American States,
which succeeded in persuading Nicaragua and Honduras to conclude a
special agreement submitting the case to the Court. Nevertheless, there are
indications that Honduras remained uncertain whether Nicaragua would
in fact appear. (See, for example, the repeated statements in the Honduran
Application seeking a judgment “whether the Government of Nicaragua
appears or not” (1.C.J. Pleadings, Arbitral Award Made by the King of Spain
on 23 December 1906, Vol. I (e.g., at p. 10).) Perhaps this explains why
Honduras did not exclusively rely on the terms of the special agreement ; it
also made the claim that Nicaragua’s telegram to the League was tanta-
mount to ratification and that Nicaragua thus was bound under the
Optional Clause by operation of Article 36, paragraph 5 (ibid., pp. 8-9).
More than that, it was in Honduras’ interest to seek to establish jurisdic-
tion in this way, since it could then make a claim for damages for unlawful
occupation of its territory which the terms of the special agreement did not
admit.

58. Conversely, it was not in Nicaragua’s interest in the King of Spain
case to accept Honduras’ argument that it was bound by operation of
Article 36, paragraph 5, since then it might have been held liable for
damages. That may be why it carefully refrained from doing what it could
so easily and plausibly have done: squarely stated to the Court that it
agreed with Honduras that it was bound to the Court’s compulsory juris-
diction by reason of its 1929 Declaration and the operation of Article 36,
paragraph 5. In fact, what Nicaragua said was the following :

“It goes without saying that the competence of the International
Court of Justice to settle this dispute meets with no contradiction
from Nicaragua. It was, moreover, expressly admitted by both Parties
in the Agreement of June 21st and 22nd, 1957, . . . reproduced in the
Resolution of the Organization of American States, ... Nicaragua
agrees with Honduras. . .in ascribing to that instrument the character
of a special agreement.

2. The Court will also note that, with the agreement of the Parties,
the present dispute is defined in the said Resolution and in the various
documents as a dispute ‘existing between them with respect to the
Arbitral Award handed down by His Majesty the King of Spain on
December 23rd, 1906’ and not as concerning a claim for the execution
of the decision or for denunciation of its breach.

It is true that the Honduran Foreign Minister, in a Declaration
annexed to the Agreement of July 21st, 1957. . . expressed his explicit
wish that the Arbitral Award ... be carried out and its view that
‘Nicaragua’s failure to comply with that arbitral decision constitutes,
under Article 36 of the Statute of the International Court of Justice (?)
and, in accordance with the principles of international law, a breach
of an international obligation’.

But Nicaragua at the same time expressed the equally clear inten-
tion of answering the claim of Honduras, not only ‘opposing the

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exceptions that it considers appropriate in order to impugn the vali-
dity of the Arbitral Award of December 23rd, 1906, and its compul-
sory force’, but also ‘invoking all those rights that may be in its
interest’, maintaining in particular ‘that its boundaries with Honduras
continue in the same legal status as before the issuance of the above-
mentioned Arbitral Award’...

It was expressly understood in the Agreement of July 21st, 1957,
that each Government ‘in the exercise of its sovereignty and in
accordance with the procedures underlined in this instrument, shall
present the matter in this Agreement as it deems pertinent’.

3. We should add that it may be only by inadvertence that Hon-
duras presented the first claim set forth in its submissions as coming
within the category of disputes covered by Article 36, 2 fc), of the
Statute of the International Court of Justice. The present dispute in no
way concerns the existence of any fact which, if established, would
constitute a breach of an international obligation. There is in this case
no dispute as to the existence of the exercise of Nicaraguan sover-
eignty over part of the disputed territory ; on the other hand, there is a
disagreement over the existence of an obligation upon Nicaragua to
agree to execute an alleged Arbitral Award against which it has for
years formulated much serious and detailed criticism, expressing
readiness from the outset to acquiesce in the opinion of arbiters in this
matter.

4. Similarly, Nicaragua can only express surprise that Honduras
should have invoked Article VI of the Pact of Bogota, ratified by the
two Parties to the present dispute and according to which the proce-
dures provided in that Pact ‘may not be applied to matters already
settled by arrangement between the Parties or by arbitral award’.

For it is well known that Nicaragua, when signing the said Treaty,
made an explicit reservation reading as follows :

‘The Nicaraguan Delegation, on giving its approval to the Amer-
ican Treaty on Pacific Settlement (Pact of Bogota), wishes to record
expressly that no provisions contained in the said Treaty may
prejudice any position assumed by the Government of Nicaragua
with respect to arbitral decisions the validity of which it has con-
tested on the basis of the principles of international law, which
clearly permit arbitral decisions to be attacked when they are
adjudged to be null or invalidated. Consequently, the signature of
the Nicaraguan Delegation to the Treaty in question cannot be
alleged as an acceptance of any arbitral decisions that Nicaragua
has contested and the validity of which is not certain.’
599 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

It is true that, according to the Resolution of the Organization of
American States of July 5th, 1957, mentioned above, Nicaragua’s
agreement to the method of settlement proposed implied its aban-
donment of the reservation attached to the Bogota Pact, but obviously
that abandonment was motivated solely by the assured conviction
that the whole of the dispute was going to be submitted to the Inter-
national Court of Justice and that it would be at variance with the
undoubted intention of the Parties to interpret it as a recognition of
the validity of the Award of December 23rd, 1906, or as waiving the
assertion of Nicaragua’s complaints before the Court.

In these circumstances and subject to what may be said on this
matter in the Reply, Nicaragua will say no more on this question of
jurisdiction.” (C.J. Pleadings, Arbitral Award Made by the King of
Spain on 23 December 1906, Vol. 1, pp. 131-133. The translation from
the French is the Registry’s.)

59. It follows that, in the one case before the instant case in which the
question of whether Nicaragua was bound under the Optional Clause was
explicitly raised, Nicaragua remained significantly silent. It did not answer
that question positively ; it did not answer it directly ; rather it contented
itself with answers which channelled the case away from the Optional
Clause and towards exclusive reliance on the special agreement. That is
hardly the conduct of a State which harbours and manifests the belief that
it is bound under the Optional Clause.

60. There are other events as well which weaken Nicaragua’s claim of
consistent conduct showing that it was, and believed itself to have been,
bound under the Optional Clause. Notably, after San Francisco, the
Nicaraguan Foreign Minister made a substantial report to Nicaragua’s
Congress on the Conference, the Charter and the Statute of the Court. He
spoke about the attachment of Latin American States to the compulsory
jurisdiction of the Court. But he said not a word which even hinted that he
regarded Nicaragua as bound by that compulsory jurisdiction.

61. It is suggested by the Court that, if Nicaragua were a defendant in
this Court, and sought to deny its recognition of the Court’s compulsory
jurisdiction in reliance on Article 36, paragraph 5, the Court would pro-
bably reject that argument ; and that, accordingly, since it would hold
Nicaragua to what it sees as the appearance of its being bound under the
Optional Clause, it should hold the United States to that appearance in this
case. In my view, that does not follow. As the Court indicated in the
Anglo-Iranian Oil Co. case (Judgment, I.C.J. Reports 1952, pp. 93, 105-
107), the declarant State in making a declaration under the Optional
Clause has a special knowledge of its own sitnation and intentions. Nica-
ragua is chargeable with knowing not only the equivocations referred to in
preceding paragraphs, but, above all, of the footnotes and what they
implied. There is ample indication that, all along, Nicaragua might have
known of the possibility of its maintaining that it was not bound, despite

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the Yearbook and other publications apparently holding it out as bound.
Thus the Court should not countenance Nicaragua having it both ways :
being able to plead that it is bound under the Optional Clause, as in this
case, but avoiding such a plea, as in the King of Spain case. However, were
the United States bringing an application against Nicaragua, these con-
siderations might well not impair the reliance of the United States on the
appearance of Nicaragua being bound because, in view of Nicaragua’s
having taken no public, clear and unambiguous step to correct an appear-
ance of being bound, Nicaragua cannot be heard to deny the truth of an
appearance in which it so long acquiesced. In short, Nicaragua may well be
in no position to deny, after almost 40 years, what it has tolerated despite
the ambiguities of which it had special knowledge. But the United States
and other States were and are not in the same knowledgeable position
(even if the United States may be said in the 1950s to have had some
knowledge of the situation) ; they were not charged with a like duty of
sensitivity to Nicaragua’s position ; and thus they could rely on appear-
ances which Nicaragua peculiarly knew, or should have known, to be
questionable.

12. Conclusion

62. In light of the foregoing facts and analysis, it is concluded that
Nicaragua manifestly is without standing to maintain suit before this
Court on the basis of the contention that it is party to the Court’s com-
pulsory jurisdiction by operation of Article 36, paragraph 5, of the Statute,
or on the basis of conduct. In view of that conclusion, Nicaragua’s Appli-
cation, in so far as it relies — and it largely and essentially relies — on
Article 36, paragraph 2, and Article 36, paragraph 5, should have been
dismissed.

C. The Question of Whether the Court Has Jurisdiction over the United
States

1. Jurisdiction under the Optional Clause

63. Nevertheless let us assume, contrary to what I believe to be mani-
fest, that Nicaragua is party to the compulsory jurisdiction of the Court. Is
the United States subject in this case to the Court’s compulsory jurisdic-
tion under its declaration of 26 August 1946 ? That question gives rise to
the folowing subsidiary questions :

— Is the United States declaration of 26 August 1946 valid ?

— Ifitis valid, does its Vandenberg multilateral treaty reservation to the
Court’s compulsory jurisdiction operate so as to exclude all or some of
Nicaragua’s claims ?

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— If itis valid, does the United States Note of 6 April 1984 — the “1984
notification” — operate to exclude Nicaragua’s claims ?

(i) The Connally Reservation

64. Itis well known that Judge Lauterpacht, in his dissenting opinion in
the Interhandel case (Judgment, I.C.J. Reports 1959, pp. 6, 95), concluded
that the United States Declaration of 26 August 1946 is invalid by reason
of its incorporation of the automatic, self-judging proviso known as the
“Connally Reservation”. The United States thereby reserved from the
Court’s jurisdiction :

“(b) disputes with regard to matters which are essentially within the
domestic jurisdiction of the United States of America as deter-
mined by the United States of America”.

He reached a similar conclusion earlier in respect of a French self-judging
reservation in the case of Certain Norwegian Loans (Judgment, LC.J.
Reports 1957, p. 34). Judge Lauterpacht in the /nterhandel case summa-
rized his position in these terms :

“{a) the reservation in question, while constituting an essential part
of the Declaration of Acceptance, is contrary to paragraph 6 of Article
36 of the Statute of the Court ; it cannot, accordingly, be acted upon
by the Court ; which means that it is invalid ;

(b) that, irrespective of its inconsistency with the Statute, that
reservation by effectively conferring upon the Government of the
United States the right to determine with finality whether in any
particular case it is under an obligation to accept the jurisdiction of
the Court, deprives the Declaration of Acceptance of the character of
a legal instrument, cognizable before a judicial tribunal, expressing
legal rights and obligations ;

(c) that reservation, being an essential part of the Declaration of
Acceptance, cannot be separated from it so as to remove from the
Declaration the vitiating element of inconsistency with the Statute
and of the absence of a legal obligation. The Government of the
United States, not having in law become a party, through the pur-
ported Declaration of Acceptance, to the system of the Optional
Clause of Article 36 (2) of the Statute, cannot invoke it as an appli-
cant; neither can it be cited before the Court as defendant by
reference to its Declaration of Acceptance.” (1.CJ. Reports 1959,
pp. 101-102.)

65. In testimony before the Senate Committee on Foreign Relations in
1960, I agreed with Judge Lauterpacht’s position (Compulsory Jurisdiction,
International Court of Justice, Hearings before the Committee on Foreign
Relations, United States Senate, Eighty-Sixth Congress, Second Session, on
S. Res. 94, 1960, pp. 191, 202-203). I continue to see great force in it, while
appreciating the argument that, since declarations incorporating self-

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judging provisions apparently have been treated as valid, certainly by the
declarants, for many years, the passage of time may have rendered Judge
Lauterpacht’s analysis less compelling today than it was when made. Were
his position to be applied to the instant case, the result would be that there
is no valid adherence by the United States to the Optional Clause in
existence and that, accordingly, in so far as Nicaragua relies on that
adherence, its Application must be dismissed.

66. However, I do not rest my conclusions in this case on that basis,
essentially but not exclusively for the reason that the United States itself
has treated its adherence to the Court’s jurisdiction by means of its
Declaration of 26 August 1946 as valid in this case and otherwise. I say this
without prejudice to my position in such subsequent pleadings in this case
as there may be which are relevant, taking note, in that connection, of the
following statement which is found as note | to page 9 of the United States
Counter-Memorial :

“On the basis of Nicaragua’s pleadings to date, the United States
has determined not to invoke proviso ‘b’ to the United States 1946
declaration (the so-called ‘Connally Reservation’). This determina-
tion is without prejudice to the rights of the United States under that
proviso in relation to any subsequent pleadings, proceedings, or cases
before this Court.”

Moreover, for other reasons, in any event I conclude that Nicaragua
cannot maintain its claims against the United States in reliance upon its
Declaration of 26 August 1946.

(ii) The Vandenberg (Multilateral Treaty) Reservation

67. The Vandenberg Reservation—or multilateral treaty reservation—to
the United States adherence to the Court’s compulsory jurisdiction of 14
August 1946 withholds from the jurisdiction of the Court :

“(c) disputes arising under a multilateral treaty, unless (1) all parties
to the treaty affected by the decision are also parties to the case
before the Court, or (2) the United States of America specially
agrees to jurisdiction”.

The United States maintains that, since Nicaragua essentially bases its
Application on alleged violation by the United States of its treaty obliga-
tions under the United Nations Charter, the Charter of the Organization of
American States and two other inter-American treaties, the Court is bound
to give effect to this exception from its jurisdiction. It contends that. in
view of Nicaraguan claims that El Salvador, Honduras and Costa Rica are
acting in concert with the United States, and in view of the factual situation
obtaining in Central America which is rooted in Nicaraguan acts of sub-

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version and aggression against its neighbours, those States will necessarily
be “affected” by any judgment which the Court renders on the merits of
Nicaragua’s claims. While acknowledging that Nicaragua requests judg-
ment for alleged violations of customary international law as well as treaty
law, the United States argues that Nicaragua’s claims are so integrally and
essentially governed by the specific treaty provisions which it invokes that
the Court cannot decide upon the merits of those claims while excluding
those treaty provisions ; Nicaragua’s claims of violation of customary
international law are no more than paraphrases of these preclusive treaty
standards. Nicaragua maintains that the multilateral treaties reservation is
mere surplusage ; that the records of Senate debate indicate that it was
addressed to a non-existent problem ; and that in any event, even if the
reservation were to be applied, it could not debar its claims under cus-
tomary international law, which it contends, exists on the points at issue
quite apart from the treaty provisions on which it has relied. (A much fuller
summary of the Parties’ contentions in this regard is found in paras. 68-71
of the Court’s Judgment.)

68. In disposing of the multilateral treaty reservation, the Court arrives
at the following conclusions :

(a) El Salvador, Honduras and Costa Rica, being bound by the Court’s
compulsory jurisdiction, are free to institute proceedings against Nica-
ragua if they should find that they might be affected by the future
decision of the Court. Moreover, they are free to resort to the incidental
procedure of intervention. Thus there is no question of their needing
the protection of the multilateral treaties reservation.

(b) It is for the Court to determine which are the States “affected” within
the meaning of the reservation. But it is “only when the general lines of
the judgment to be given have come clear that the States ‘affected’
could be identified. By way of example we may take the hypothesis that
if the Court were to decide to reyect the Application of Nicaragua on
the facts, there would be no third States that could claim to be
affected.”

(c) The question of which States are affected is a matter of substance
relating to the merits of the case, “obviously” not a jurisdictional
problem. The Court must therefore avail itself of Article 79, paragraph
7, of the Rules of Court and declare that the objection based on the
reservation “does not possess, in the circumstances of the case, an
exclusively preliminary character” and that consequently it does not
constitute an obstacle for the Court to consider the merits of Nicara-
gua’s Application. At the same time, the Court holds, the Rules of
Court as revised have done away with the procedural technique for-
merly available of joinder of preliminary objections to the merits.

(d) Moreover, the reservation could not bar adjudication by the Court of

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all Nicaragua’s claims, since those claims embrace principles of cus-
tomary international law. The fact that such principles have been
codified or embodied in multilateral conventions does not mean that
they have ceased to exist as customary international law.

69. In my view, conclusions (a), (b) and (c) are misconceived. Conclu-
sion (d) raises substantial and difficult questions which are discussed
below. My reasons for so maintaining are the following :

70. With respect to (a), it may be observed that the multilateral treaties
reservation excludes from the scope of United States submission to the
Court’s compulsory jurisdiction disputes arising under a multilateral
treaty unless “all parties to the treaty affected by the decision are also
parties to the case before the Court” (emphasis supplied). The only Parties
now before the Court are Nicaragua and the United States. The fact that
third States affected by the decision might, if they choose, institute pro-
ceedings in separate cases against Nicaragua, or might seek to intervene in
the current case, is beside the point of the reservation. It may be that those
States, or some of them, will choose not to institute proceedings against
Nicaragua — none have to date — and that is their perfect right. Equally, it
is unknown whether they will seek to intervene (a process which, as Orders
of the Court rendered in recent times in respect of attempted interventions
of Malta, Italy and El Salvador demonstrate, is in any event problema-
tical). But what is determinative, in application — rather than evasion — of
the multilateral treaty reservation is the answer to a simple question of
fact : are all parties to the multilateral treaties at issue affected by the
decision also parties to the case before the Court ? Obviously, now, they are
not. The United States has not specially agreed to jurisdiction. Thus the
reservation, which by its nature was meant to take effect at the Jurisdic-
tional phase of the proceedings, applies, and must be applied. But what is
less obvious is which are the parties “affected”.

71. In respect to (b), the Court rightly holds that it is for the Court to
determine which are the States “affected” within the meaning of the
reservation. But the Court concludes that it is only “when the general lines
of the judgment to be given have become clear” that the States “affected”
could be identified. It goes without saying that, if that identification can be
made only at that late stage, after the parties have been required fully to
brief and argue the merits, the reservation could not fully serve the pur-
poses of a jurisdictional bar which it was designed to serve. The Court’s
inference accordingly is that the reservation is incapable of application at a
jurisdictional stage of the proceedings. In my view, such an interpretation
of the multilateral treaty reservation is unacceptable. It is not the function
of the Court to interpret the reservations of States to their adherences to
the Court’s compulsory jurisdiction so as to lead, if not “to a result which is
manifestly absurd or unreasonable” (Vienna Convention on the Law of

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Treaties, Art. 32), then to a result which denies a reservation its obvious
object. Rather, the Court is obliged, in accordance with its consistent
jurisprudence, to give effect to “the close and necessary link that always
exists between a jurisdictional clause and reservations to it” (Aegean Sea
Continental Shelf, Judgment, I.C.J. Reports 1978, p. 33). It is not free to
sever that link by an interpretation of a reservation which deprives it of its
point. Moreover, the Court’s interpretation is inconsonant with the terms
of the Court’s Statute and inconsistent with the pleadings of the Parties in
this case.

72. The Court’s interpretation of the multilateral treaty reservation is
inconsonant with the terms of Article 62 of its Statute, which pro-
vides :

“1. Should a State consider that it has an interest of a legal nature
which may be affected by the decision in the case, it may submit a
request to the Court to be permitted to intervene.

2. It shall be for the Court to decide upon this request.”

It will be observed that Article 62, like the multilateral treaty reservation,
employs the verb “to affect” in its past participle, “affected”. In one sense,
Article 62 is more narrowly cast than the reservation, because it is confined
to “an interest of a legal nature which may be affected”, whereas the
reservation speaks of parties to the treaty “affected by the decision” —
which admits of being affected not only legally but politically, economi-
cally, militarily, and otherwise. In another sense, Article 62 is more broadly
cast, because it covers cases in which a State’s legal interest “may be”
affected, whereas the reservation simply states : “affected”. But what is
instructive in answering the immediate question are two facts relating to
Article 62 : first, it provides Statutory demonstration of the use of the very
term “affected” to which the Court in this case finds itself unable to give
operative significance at this stage of the proceedings. And second, in the
history of the interpretation of Article 62 by the Permanent Court and this
Court, it has never before been suggested, still less held by the Court, that
Article 62 could not be applied because it was only after the general lines of
the judgment to be given have become clear that the Court could determine
whether a State actually has an interest that may be or is affected by the
judgment.

73. The Court’s interpretation of the multilateral treaties reservation is
inconsistent with the pleadings of the Parties in the case; which themselves
quite clearly demonstrate which are the States whose interests are to be
affected by the Court’s judgment on the merits. The pleadings of Nicara-
gua are particularly probative, for it is Nicaragua’s Application and its
precise claims in which it sets out what the Court is requested to adjudge
and declare which frame the issues of the case. Nicaragua, while making its
claims against the United States alone, has made it clear that other Central
American States in addition to itself are involved in the dispute. The very

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first numbered paragraph of its Application claims that the United States
has installed more than “10,000 mercenaries ...in more than ten base
camps in Honduras along the border with Nicaragua . . .”. This accusation
is elaborated in Annex A to the Nicaraguan Application, in its introduc-
tory paragraphs and in numbered paragraphs 1, 2, 5, 6, 7, 8, 9, 10, 11, 13, 14,
17, 20, 22 and 23. Nicaragua has also alleged that there are 2,000 United
States-supported “mercenaries” operating against it from Costa Rica (af-
fidavit of Nicaraguan Foreign Minister d’Escoto Brockmann, Exhibit II,
para. 5, submitted during the oral proceedings on provisional measures)
and that the Government of Costa Rica is acting in concert with the United
States (affidavit of Luis Carrion, Exhibit I, para. 4, also submitted at the
stage of provisional measures). Moreover, in the recent oral argument in
this phase of the proceedings, the Agent of Nicaragua alleged that, in this
dispute, the United States has bases, radar stations, spy planes, spy ships —
the armies of El Salvador and Honduras at its service...” (Hearing of
8 October 1984) ; that is to say, Nicaragua has alleged that the United
States acts in concert with Honduras and El Salvador. It is accordingly
plain that, if the pleadings of Nicaragua are to be accepted for these
purposes as accurate, and if Nicaragua were in a decision of the Court to be
accorded the remedies which it seeks, Honduras, Costa Rica and El Sal-
vador necessarily would be “affected” by the Court’s decision. Point (g) of
what Nicaragua in its Application (at para. 26) requests the Court to
adjudge and declare makes this particularly clear. Nicaragua requests that
the Court hold that the United States

“is under a particular duty to cease and desist immediately .. . from
all support of any kind — including the provision of training, arms,
ammunition, finances, supplies, assistance, direction or any other
form of support — to any nation... engaged or planning to engage in
military or paramilitary actions in or against Nicaragua...”

It is a fact that the United States is heavily engaged in supporting Hon-
duras and El Salvador with training, arms, finances, etc. Nicaragua itself in
its Application and pleadings alleges that Honduras and El Salvador are
engaged in military or paramilitary actions in or against Nicaragua, in
concert with the United States. Honduras and El Salvador, in their com-
munications to the Court, maintain that actually it is Nicaragua which
has engaged and is engaging in a variety of acts of direct and indirect
aggression against them, including armed attacks. (See the letter of
18 April 1984 from the Government of Honduras to the Secretary-General
of the United Nations containing observations on the then pending request
for provisional measures, as well as-the Court’s Order of 10 May 1984, my
dissenting opinion, p. 199 ; and see El Salvador’s Declaration of Inter-
vention of 15 August 1984, in which it alleges, inter alia, that it “considers
itself under the pressure of an effective armed attack on the part of
Nicaragua ...”. It there protested “the aggression of which it is a victim

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through subversion directed by Nicaragua . . .”. It claimed that, “Nicara-
gua has been converted into a base from which the terrorists seek the
overthrow of the popularly elected Government of our nation. They are
directed, armed, supplied and trained by Nicaragua...” (at paras. I and
III).) In short, Nicaragua seeks a judgment from the Court requiring the
United States to cease and desist from actions which Nicaragua claims are
unlawfully directed against Nicaragua, with the assistance of Honduras,
Costa Rica and El Salvador, whereas the United States, Honduras and El
Salvador claim that these very actions are conducted in collective self-
defence against Nicaraguan acts of aggression. The judgment which the
Court reaches on this critical point accordingly must “affect” not only the
United States but Honduras and El Salvador, and — in view of Nicaragua’s
allegations — Costa Rica as well. If the Court takes the facts as alleged in
Nicaragua’s pleadings as true — which the Court is entitled to do for
purposes of deciding whether Nicaragua presents a cause of action over
which the Court has jurisdiction or which is admissible — then it neces-
sarily follows that Honduras, Costa Rica and El Salvador must be affected
by a decision of the Court in this case, whatever that decision turns out to
be. Nicaragua’s Agent indeed maintained that Nicaragua has no objection
“to a participation of El Salvador” in this case, indeed, “no objection to a
participation of other States” (Hearing of 8 October 1984). This suggests
that Nicaragua itself has recognized that, at least within the compass of
Article 63, El Salvador, Honduras and Costa Rica will be “affected” by any
“decision of the Court in this case. El Salvador itself has sought to intervene
under Article 63 of the Statute ; the Court has inferred in its Order of
4 October 1984 the propriety of such intervention on the merrits ; and
Honduras and Costa Rica, while not seeking to intervene, have also sent
communications to the Court or to the Secretary-General which demon-
strate their concern about how adjudication of this case would affect
them.

74. The conclusion to which the particulars of the pleadings of the
Parties lead is supported by the principles of international law. If Nica-
ragua’s charges are true — if the acts against it which it alleges the United
States is taking or supporting are in fact taking place, if they are unlawful,
and if Honduras and Costa Rica are knowingly lending their territory and
El Salvador is lending its resources to the commission of these acts — then
Honduras, Costa Rica and El Salvador also stand in violation of their
international obligations. Indeed, even if the acts of Honduras, Costa Rica
and El Salvador themselves do not give rise to international responsibility,
then aid or assistance by Honduras, Costa Rica and El Salvador to the
United States for the commission of the acts of the United States consti-
tutes an internationally wrongful act on the part of those three States.
These elemental aspects of accepted international law are illustrated in the
draft articles on State Responsibility which my eminent colleague, Judge
Ago, prepared and which the International Law Commission has adopted.
Article 27 of that draft provides :

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608 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

“Aid or Assistance by a State to Another State for the Commission
of an Internationally Wrongful Act

Aid or assistance by a State to another State, if it is established that
it is rendered for the commission of an internationally wrongful act,
carried out by the latter, itself constitutes an internationally wrongful
act, even if, taken alone, such aid or assistance would not constitute
the breach of an international obligation.” (Yearbook of the Interna-
tional Law Commission 1978, Vol. IT, Part Two, p. 99.)

The commentary to that article demonstrates how established are these
principles of international law in doctrine and practice (pp. 99-105). It
follows from these principles, and from the pleadings of Nicaragua, that, if
the Court should sustain Nicaragua’s claims, Honduras, Costa Rica and El
Salvador necessarily will be affected by the Court’s judgment in the
case.

75. Nor isit persuasive to argue, as the Court does, that if it should reject
Nicaragua’s Application, there would be no third States that could claim to
be affected by the judgment in the case. That is like saying that, if in a
national court, citizen “A” is indicted on charges of terrorism involving the
smuggling of narcotics and arms, and foreigners “B”, “C” and “D”, who
are situated abroad, are named in the charges as unindicted co-conspira-
tors, and if the court finds citizen “A” not guilty, then foreigners “B”, “C”’
and “D” are not affected by the judgment — not affected legally, econom-
ically, morally or otherwise. Indeed, the case before this Court is an a
fortiori case, because, while in the hypothetical case, the foreigners, not
being within the territorial jurisdiction of the forum, are not, or probably
are not, subject to its law, in the case before this Court the situation is
fundamentally otherwise. While, by the terms of Article 59 of the Court’s
Statute, the decision of the Court has no binding force except between the
Parties and in respect of that particular case, and while, in point of fact, the
only Parties before the Court are Nicaragua and the United States,
nevertheless all States are subject to the same law to which they are sub-
ject, international law. Thus the certainty of States which are deeply impli-
cated in the pleadings of the Applicant being affected by the judgment
of the Court in this case is the clearer.

76. Let us assume, however, contrary to the foregoing considerations,
that the Court is correct in a holding which had the effect of rendering the
multilateral treaty reservation of the United States inoperative, at any rate
in the jurisdictional phase of the proceedings in which it was designed to
operate. Let us assume that it is right in concluding that “it is only when the
general lines of the judgment to be given become clear that the States
‘affected’ could be identified”. What follows from that portentous con-
clusion ? In the Court’s view, apparently it follows, for this and other
reasons, that the multilateral treaty reservation “does not constitute an
obstacle for the Court to entertain the proceedings instituted by Nica-
ragua ...”. My conclusion is the opposite.

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77. In his notable dissent in the Interhandel case, Judge Sir Hersch
Lauterpacht observed that :

“Invalidity, in the contemplation of the law, is nothing else than
inherent incapacity to produce legal results . ..

The United States of America has accepted the obligations of
Article 36 (2) of the Statute on condition that in any particular case it
is for the Government of the United States of America, and not for the
International Court of Justice, to determine whether a matter is
essentially within the domestic jurisdiction of the United States of
America. That condition, covering as it does a potentially all-com-
prehensive category of disputes relating to matters essentially within
domestic jurisdiction, has replaced — in addition to another wide
reservation in the American Declaration of Acceptance relating to the
interpretation of multilateral treaties — the traditional formula
requiring the consent of the Senate, or of the Government of the
United States of America, to the submission of any particular dispute
to the international tribunal. This Court, whose jurisdiction is
grounded solely and exclusively in the consent of the defendant State,
must respect that essential condition of the Declaration of Accep-
tance.

Any decision of the Court which arrogates to it a competence
denied to it by the express terms of the jurisdictional instrument relied
upon by the parties disturbs the continuity of the established juris-
prudence of the Court. That jurisprudence has been based on the
accepted principle of international law that the jurisdiction of the
Court is based invariably on the consent of the parties, given in
advance or in relation to a particular dispute . . . But the Court has not
assumed jurisdiction — and cannot properly do so — if jurisdiction is
expressly denied to it.” ({nterhandel, Judgment, I.C.J. Reports 1959,
pp. 104, 107, 114-115.)

Judge Lauterpacht then considered the question whether, although the
Connally Reservation

“is invalid — the Declaration of Acceptance may, apart from that
reservation, be treated as otherwise subsistent and given effect by the
Court. In the case concerning Certain Norwegian Loans I gave reasons
in my separate opinion — which must be read as forming part of the
present Opinion — why that question must be answered in the nega-
tive. These reasons included the general principle of law governing the
subject, namely, the principle that a condition which, having regard to
the intention of the party making it, is essential to and goes to the roots
of the main obligation, cannot be separated from it. This is not a mere

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refinement of private law, or of any municipal system thereof, but —
as all general principles of law — a maxim based on common sense and
equity. A party cannot be held to be bound by an obligation divested
of a condition without which that obligation would never have been
undertaken.” (/bid., pp. 116-117.)

In his separate opinion in the Certain Norwegian Loans case, Judge Lau-
terpacht, in discussing whether it was possible to sever a French self-
judging proviso from the French declaration accepting the compulsory
Jurisdiction of the Court, concluded :

“The Court cannot properly uphold the validity of the Acceptance
as a whole and at the same time treat as non-existent any such
far-reaching, articulate and deliberate limitation of its jurisdiction. To
do so would run counter to the established practice of the Court —
which, in turn, is in accordance with a fundamental principle of
international judicial settlement — that the Court will not uphold its
jurisdiction unless the intention to confer it has been proved beyond
reasonable doubt. The Court certainly cannot assume jurisdiction if
there is a clearly expressed intention to deny it in specified circum-
stances. This means that it would not be possible for the Court to
disregard that part of the reservation in question which claims for the
State concerned the right to determine its application. It is not pos-
sible for the Court to do otherwise than to regard this particular part
of the reservation, so specifically formulated, as constituting an
essential and not severable part of the instrument of acceptance.”
(Case of Certain Norwegian Loans, Judgment, I.C.J. Reports 1957,
pp. 58-59.)

78. It cannot be maintained that the Senate of the United States
attached the same importance to the Vandenberg multilateral treaties
Reservation as it attached to the Connally Reservation. Indeed, the Senate
debate in the course of which the Vandenberg Reservation was added
suggests that the Senators concerned were under the impression that the
objective which the Vandenberg Reservation was meant to ensure was
already written into the Statute by the doctrine and practice of reciprocity.
(See the Congressional Record, Proceedings and Debates of the 79th Con-
gress, Second Session, 1 August 1946, p. 10618.) They nevertheless added
the Vandenberg Reservation with a view to being “doubly assured” (ibid. )
that the Court could not entertain a dispute involving the United States
arising under a multilateral convention unless all parties to the treaty
affected by the decision were also parties to the case before the Court. That
was the Senate’s intention. That intention is clearly reflected in the words
of the reservation which were incorporated into the text of the declaration.
That is what proviso fc} of the United States reservations to the Court’s
compulsory jurisdiction says. While there may be room for questioning

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whether the United States was of the view that this proviso was essential to
its declaration, nevertheless I do not believe that the Court is free to
disregard or sever it on the ground of its relative unimportance. It is a
safeguard which, after deliberation, and in the absence of a recommen-
dation supporting its inclusion from the Department of State, the Senate of
the United States nevertheless decided to require. In my view, it accord-
ingly follows that it would not be appropriate for the Court to find that that
reservation is inherently inoperative at the stage at which it was designed to
operate, i.e., in a limited sense, invalid, by finding, as Judge Lauterpacht
put it, that is has “an inherent incapacity to produce legal results” ;
however, once the Court so finds — as it in effect does for present purposes
in today’s judgment — it also follows that it must treat the whole of the
United States Declaration of 14 August 1946 as invalid. If for that reason
the United States declaration as a whole is invalid, then it cannot be
invoked by Nicaragua to sustain the jurisdiction of the Court.

79. As for (c), the Court’s third reason for not giving effect to the
multilateral treaty reservation, it is difficult to express a definitive view
because of the compressed character of the Court’s reasoning. After hold-
ing — in my view, wrongly — that “obviously” the question of what States
may be “affected” is not a jurisdictional problem, the Court states, first,
that “the procedural technique formerly available of joinder of preliminary
objections to the merits has been done away with...” and second, that
“the Court has no choice but to avail itself of Article 79, paragraph 7, of the
present Rules of Court”, and

“declare that the objection based on the multilateral treaty reserva-
tion of the United States Declaration of Acceptance does not possess,
in the circumstances of the case, an exclusively preliminary character,
and that consequently it does not constitute an obstacle for the Court
to entertain the proceedings instituted by Nicaragua under the Appli-
cation of 9 April 1984” (Judgment, para. 76).

80. This holding of the Court may be understood in more than one way.
It can be interpreted as meaning that, since the United States objection
based on the reservation does not possess an exclusively preliminary
character, it does not constitute — at this stage of the proceedings — an
obstacle for the Court to entertain the case instituted by Nicaragua. From
this it follows that this United States objection, not possessing an “exclu-
sively” preliminary character, necessarily possesses some preliminary
character, and that that character will be addressed, as a preliminary and
Jurisdictional question, at the stage of the merits, at which time the Parties
can plead further, inter alia, to the question of which States, if any, are to be
affected by any judgment which the Court may render on the merits of the
case. If this is what the Court means, while it would hardly constitute an
application of the multilateral treaty reservation as it must have been
intended that it would be applied — at the jurisdictional stage — otherwise
this would be a tenable holding.

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81. However, the Court confounds this interpretation by holding that
“the procedural technique formerly available of joinder of the preliminary
objections to the merits has been done away with since the 1972 revision of
the Rules . . .”. By this, the Court appears to hold that, at the stage of the
merits, the United States preliminary objection based on the multilateral
treaty reservation may not be argued and may not be found to bar the
claims, or some of the claims, of Nicaragua. If this is indeed what the Court
means to say — and whatever it means, its words are subject to this
construction — then the Court will have sunk the multilateral treaty
reservation without a trace by use of a watertight device : on the one hand,
by holding that, since it is not of an exclusively preliminary character, it
cannot be given effect at the jurisdictional stage of the proceedings ; on the
other hand, by holding that that preliminary objection cannot be taken up
at the stage of the merits, since the joinder of preliminary objections to the
merits “has been done away with”. That would be an extraordinary pro-
cedure, which could be used not only to vitiate this reservation but all sorts
of reservations, on the ground that they may not be applied by way of
preliminary objection since they are not of an exclusively preliminary
character, and may not be addressed at the stage of the merits, on the
ground that the revised rules exclude joining preliminary objections to the
merits.

82. The pertinent passages of Article 79 of the Rules of Court on
“Preliminary Objections” read as follows :

“6. In order to enable the Court to determine its jurisdiction at the
preliminary stage of the proceedings, the Court, whenever necessary,
may request the parties to argue all questions of law and fact, and to
adduce all evidence, which bear on the issue.

7. After hearing the parties, the Court shall give its decision in the
form of a judgment, by which it shall either uphold the objection,
reject it, or declare that the objection does not possess, in the cir-
cumstances 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 fur-
ther proceedings.

8. Any agreement between the parties that an objection submitted
under paragraph 1 of this Article be heard and determined within the
framework of the merits shall be given effect by the Court.”

83. It is plain the Court may treat a preliminary objection in three
ways : (a) uphold it ; (b) reject it ; (c) “declare that the objection does not
possess, in the circumstances of the case, an exclusively preliminary char-
acter”. In that latter event, the Court shall fix time-limits for the further
proceedings, a provision which imports that, at those proceedings, an
objection which does not possess an exclusively preliminary character, but
therefore some preliminary character, will be taken up. Iam unable to see
that paragraph 8 prejudices this interpretation ; rather, it supplies an

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alternative route to the same terminus. I am confirmed in these conclusions
by an article which a former distinguished President of the Court, Judge
Eduardo Jiménez de Aréchaga, wrote on “The Amendments to the Rules
of Procedure of the International Court of Justice” which was published in
the American Journal of International Law for January 1973, Volume 67,
page 1. Judge Jiménez de Aréchaga observed that, in revising its rules, there
was majority recognition of the need to:

“(3) regulate preliminary objections so as to settle them as soon as
feasible and avoid the delay and expense involved in a double dis-
cussion of the same question at both the preliminary stage and the
stage of the merits” (ibid. ).

Accordingly, what is now paragraph 6 of Article 79 was introduced, with a
view towards inducing the Court to determine all preliminary objections at
the preliminary stage of the proceedings, if possible. Where, however, a
preliminary objection so relates to the merits that its argument at the
preliminary stage would entail arguing the whole of the case at that stage,
or where the Court does not find it necessary — or desirable — to require the
Parties at the preliminary stage to argue all questions of law and fact, and
to adduce all evidence, which bear upon the issue : “It would then be for
the Respondent to raise such a defense at the stage of the merits, if it so
wished.” (bid, p. 17.)

84. Now in the instant case the Court has not invoked or applied
paragraph 6 of Article 79 of its Rules. It has not requested the Parties to
argue all questions of law and fact, and to adduce all evidence, which bear
upon the issue of whether Honduras, Costa Rica and El Salvador are to be
affected by the Court’s judgment in the case. If it had done so, it would
have required, if not the argument of the whole of the case, then the
argument of the essence of the defence to the case. That being so — and
having failed to sustain the objection of the United States invoking the
multilateral treaties reservation on the pleadings, as, in my view, the Court
should have — it follows that, at the stage of the merits, the United States is
free to raise its defence based on that reservation in bar to the Court’s
proceeding with the case. That, at any rate, is in my understanding of the
Rules and of what the Court’s pertinent holding in this case should mean,
but I am not able to say that that is what the Court does mean.

85. Let us finally, in respect of the multilateral treaty reservation,
address point (d), the Court’s holding that Nicaragua’s claims embrace
customary as well as treaty law and to that extent are not debarred by the
reservation even if that reservation were to be applied.

86. Assuming application of the reservation, there are two possibilities.
The first would be to dismiss the case (except in so far as it may have a
bilateral treaty basis), on the ground that Nicaragua’s claims are so inte-

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grally and essentially bound up with the treaty provisions on which they
rely that, if those provisions cannot be pleaded, there is no case which the
Court can consider. The second would be to retain the case in so far as
Nicaragua can make out a case divorced from the terms of those treaties, a
case which is based on customary international law. In its Application,
Nicaragua claims violation not only of the four treaties but of “funda-
mental rules of general and customary international law...” (para.
14).

87. Nicaragua attempts to meet the United States reliance on the reser-
vation by arguing that, even if that proviso can be and is applied, it leaves
its claims under customary international law intact. It observes that there
is nothing to prevent a State from pleading simultaneously in conventional
and customary law. Some of its claims are exclusively cast in terms of
customary law. But in any event, Nicaragua argues, even if one were to
accept the United States contention that all of the Nicaraguan claims are
variations of the obligations encompassed by the provisions of Article 2,
paragraph 4, of the United Nations Charter, those provisions are de-
claratory of international law ; the obligations of Article 2, paragraph 4 —
and corresponding and complementary obligations of the Charter of the
Oganization of American States — exist in customary international law
even if those treaty provisions cannot be relied upon as such. In reply, the
United States argues that, on analysis, all of Nicaragua’s claims — cus-
tomary and treaty-based — are in substance the same ; the one set merely
paraphrases the other ; and no relevant customary international law exists
apart from the treaties invoked by Nicaragua. Moreover, the United States
maintains, the Court cannot properly adjudicate the customary interna-
tional law claims which Nicaragua makes when the limitations contained
in the United States declaration preclude the Court from applying the
specific, governing legal standards to which the Parties have agreed in the
treaties in force between them.

88. In my view, there is a broad but not necessarily complete substantive
equivalence between the claims which Nicaragua makes under conven-
tional and under customary international law (as appears from a com-
parison of those claims). Furthermore, contemporary international law
governing the use of force in international relations is essentially composed
of Article 2, paragraph 4, and Article 51 of the United Nations Charter.
Are those provisions also part of contemporary customary international
law ? Article 2, paragraph 6, of the United Nations Charter provides :

“The Organization shall ensure that States which are not members

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of the United Nations act in accordance with these Principles so far as
may be necessary for the maintenance of international peace and
security.”

While there is little agreement on the scope of jus cogens, it is important to
recall that in the International Law Commission and at the Vienna Con-
ference on the Law of Treaties there was general agreement that, if jus
cogens has any agreed core, it is Article 2, paragraph 4. Moreover, Article
52 of the Vienna Convention on the Law of Treaties provides :

“A treaty is void if its conclusion has been procured by the threat or
use of force in violation of the principles of international law em-
bodied in the Charter of the United Nations.”

That is not to say that Article 2, paragraph 4, and Article 51 of the Charter
occupy the whole field of the use of force in international relations. It is not
to say, for example, that necessarily there is no scope to self-defence or to
protection of nationals apart from Article 51 and Article 2, paragraph 4.
But it is to say that Article 2, paragraph 4, is the supreme and pre-emptive
statement of the law in the field which it does occupy. Moreover, while
Article 2, paragraph 4, had its antecedents in the Covenant of the League of
Nations, the Kellogg-Briand Pact, and the Nuremberg principles and
judgments, it is difficult to conclude that it was merely a codification of
customary international law ; on the contrary, the Charter was viewed at
the time of its adoption as a revolutionary advance in respect of the legality
of the use of force and of resort to war in international relations, and, if one
speaks not of doctrine but of reality, Article 2, paragraph 4, still represents
more preachment than practice in the affairs of States. Thus, I am inclined
to think that it cannot simply be said that customary international law, as it
had evolved by 1945, equated with the content of Article 2, paragraph 4 ;
and it can even less be said that, if Article 51 is removed, the bounds of
self-defence in customary international law equate with its terms. May it
nevertheless be argued that, as a result of the ratification of the United
Nations Charter (including Art. 2, para. 6) by virtually every State in the
world, and by virtue of general agreement that Article 2, paragraph 4, of
that Charter is jus cogens, the provisions of Article 2, paragraph 4, have
been subsequently imported into customary international law ? Surely
Switzerland, which has not yet joined the United Nations, or Indonesia,
which for a time withdrew from the United Nations, were and are as bound
by the prescriptions of Article 2, paragraph 4, as are the States Members of
the United Nations. That is a powerful and probably correct argument, but
it.runs into the profound difficulty that the practice of States does not
demonstrate that Article 2, paragraph 4, in fact reflects customary inter-
national law. Finally, since Article 2, paragraph 4, and Article 51 (and
variations upon their themes as they appear in the OAS Charter) are the
specific and governing legal standards to which the Parties in this case have

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agreed, I have some difficulty in seeing how the Court can proceed to
adjudicate Nicaragua’s claims if, by application of the multilateral treaty
reservation, reliance on those standards is excluded. Such adjudication
would be an unreal, artificial, highly constricted — and yet unduly uncon-
strained — process, in which the Court could be confronted with pro-
foundly sensitive questions, such as : what is the scope of self-defence in
international law if the provisions of Article 51 are left entirely out of
consideration ?

89. Nevertheless, there are aspects of the instant case — such as freedom
of navigation on the high seas — on which customary international law
indisputably existed before the treaties on which Nicaragua relies came
into force. It is by no means clear that those treaties establish preclusive
legal standards governing that freedom, though they may do so with
respect to the use of force which impairs that freedom.

90. More than this, the question of to what extent the claims of Nica-
ragua embody claims under customary international law which subsists or
exists, even if the treaties on which Nicaragua relies are left out of account,
is a delicate and complex question, which has not been fully argued by the
Parties. Aspects of it may relate to the merits of the case. In view of these
considerations, and of the fact that the haste with which the Court has dealt
with aspects of the current case, from the moment of its filing through the
issuance of today’s Judgment, has not afforded me the time sufficiently
to consider this difficult question, I feel bound to reserve my position
upon it.

(in) The “1984 notification” of the United States

91. It is clear that, if the Court were to give effect to the United States
Note of 6 April 1984 — the “1984 notification” — purporting to modify the
terms of its 1946 Declaration with immediate effect so as to exclude, for a
period of two years, “disputes with any Central American State or arising
out of or related to events in Central America”, the claims of Nicaragua
would be debarred in so far as they rely on the United States declaration
accepting the Court’s compulsory jurisdiction. The Court declines to give
such effect to the 1984 notification, on the following grounds :

(a) Whether the 1984 notification is classified as a termination or modi-
fication of the 1946 Declaration does not matter, for it is intended to
secure a partial and temporary termination of the United States obli-
gation to subject itself to the Court’s jurisdiction in the specified
respects.

(b) Declarations accepting the Court’s compulsory jurisdiction, while uni-
lateral, do not leave the declarant free to amend the scope and content

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of its commitments as it pleases. The principle of good faith governs.
Since the United States Declaration of 1946 formally and solemnly
provides that any change should take effect only after six months have
elapsed from the date of notice, the United States must be held to this
undertaking.

(c) The notion of reciprocity is concerned with the scope and substance of
commitments entered into under the Optional Clause, and not with the
formal conditions of their duration.

(d) Reciprocity cannot be invoked in order to excuse departure from the
terms of a State’s own declaration ; it can only take advantage of an
express restriction in the declaration of the other Party to the case.
Thus the United States cannot rely upon the claimed right of Nica-
ragua to revoke its declaration at any time.

(e) Nicaragua in any event has not reserved such a right but, if it has that
right, it could only be exercised on reasonable notice. Thus, if the
United States may reciprocally invoke such a right, it also can do so
only on reasonable notice, which is absent in this case.

(f) Nor is it clear that a State can invoke considerations of reciprocity
before the Court is seised of a case.

92. I am essentially in agreement with point (a). I do not believe that it
can be persuasively argued that, since the United States Declaration of
1946 excludes termination on less than six months’ notice, but not modi-
fication, the United States may freely modify its declaration, at any rate in
the manner in which the 1984 notification purports to do. The Court is
right to hold that that notification is tantamount to a limited, suspensive
termination.

93. Point (b) of the Court’s conclusions is not altogether self-evident, as
distinguished colleagues’ opinions in this case show. Nevertheless, for my
part, and for the purposes of this case, I am prepared to accept it, subject to
one critical caveat which the Court’s judgment does not meet : that the
principle of good faith interpretation be applied equally to all elements of
the United States declaration. The United States may quite reasonably be
held to the provision of no termination on less than six months’ notice,
provided that the Court is held to respect for the multilateral treaty
reservation which that declaration embodies. The relevant report of the
Senate Committee on Foreign Relations tellingly provides — as counsel for
Nicaragua stressed — that the six months’ termination proviso “has the
effect of a renunciation of any intention to withdraw our obligation in the
face of a threatened legal proceeding” (79th Congress, 2nd Session, United
States Senate, Report No. 1835, p. 5). But that report also contains other
conditions respecting the United States declaration, which are set out
below. If all those conditions are respected, then it would be right to hold
the United States to that renunciation. But if those other conditions are not
respected — and the Court’s Judgment does not respect them — on what

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ground may the Court selectively choose the elements of the United States
declaration to which the United States is to be held ?

94. I do not find myself in agreement with the holdings of the Court
summarized in points (c), (d), (e) and (f), though I recognize that those
holdings are not unfounded. Before setting out my conclusions on these
points, it will be convenient to place the United States Declaration of 1946
in its context, to show what were the intentions of the Government of the
United States in adopting it, and to contrast the situation as it obtained in
respect of the Optional Clause in 1946 with present reality.

95. When the declaration was under consideration in the United States
Senate, the Committee on Foreign Relations took care to describe the
scope of the jurisdiction to be conferred under the declaration as “carefully
defined and limited”. In the first place, it said, there is “a general limitation
of jurisdiction to legal disputes”. Then a “second major limitation on the
jurisdiction conferred arises from the condition of reciprocity . . . specified
in the resolution . . .” and in the language of the Statute and by practice in
pursuance of it. A third limitation is to disputes arising in the future. Of
this limitation and the effect of reciprocity, the Senate Report declared
that :

“any limitation imposed by a state in its grant of jurisdiction thereby
also becomes available to any other state with which it might become
involved in proceedings, even though the second state had not speci-
fically imposed the limitation. Thus, for example, if the United States
limited its grant of jurisdiction to cases ‘hereafter arising’ this country
would be unable to institute proceedings regarding earlier disputes,
even though the defendant state might not have interposed this reser-
vation.” (Report No. 1835, p. 5.)

Thus it will be observed that, when the United States filed its declaration
embracing “all legal disputes hereafter arising”, subject to specified limi-
tations, it understood that reciprocity embraces temporal limitations. A
fourth limitation concerns freedom to entrust disputes to other tribunals.
A fifth limitation excludes matters essentially within the domestic juris-
diction of the United States. The Report then declares :

“The resolution provides that the declaration should remain in
force for a period of 5 years and thereafter until 6 months following
notice of termination. The declaration might, therefore, remain in
force indefinitely. The provision for 6 months’ notice of termination
after the 5-year period has the effect of a renunciation of any intention
to withdraw our obligation in the face of a threatened legal proceed-
ing.” (Ibid. )

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Consideration of the Report on the floor of the Senate emphasized that, by
adhering to the Court’s compulsory jurisdiction in these terms, the United
States would vitally contribute to the general acceptance of the Court’s
effective compulsory jurisdiction. A discordant and contentious note was
struck by Senator Connally’s proposal on the floor to add his famous
reservation, which carried, over energetic opposition. But another crip-
pling reservation, which would have endeavoured to confine the sources of
law to be applied in cases to which the United States is party to treaties, in
the absence of prior agreement as to what are the applicable sources of
international law, was defeated. The Vandenberg Reservation was easily
accepted. The provision for six months’ notice attracted no criticism in
floor debate.

96. In introducing the proposed declaration, the Senate’ Committee on
Foreign Relations recalled to the Senate that the Optional Clause in the
days of the Permanent Court had achieved at one time the acceptance of
the very great majority of the States then independent :

“Under this provision some 44 states, including 3 of the 5 states
now permanent members of the Security Council (Great Britain,
France, and China), at one time or another deposited declarations
accepting this jurisdiction.” (Report No. 1835, p. 8.)

In 1946, declarations by which States reserved the right to terminate their
declarations on notice were few and to modify them at any time were
unknown. A term of years, together with a notice period, was the pattern
which the 1928 General Act for the Pacific Settlement of International
Disputes had adopted, which a large number of States had followed, and
which the United States embraced. The unconditional declaration which
was indefinite in duration because it specified no term of years or notice
period, of which Nicaragua’s 1929 Declaration is an example, was uncom-
mon in 1946 and is almost extinct today. The seven such declarations that
still exist were made in the optimistic if transient days of the League when
it was believed that universal and effective compulsory jurisdiction of the
Court was burgeoning.

97. However, the contemporary situation is unlike that which prevailed
in 1929 or 1946. Today, only 47 of the 162 States party to the Statute are
bound under the Optional Clause. Of the 47 declarations now in effect,
only 19 are not expressly subject either to unilateral termination or to
modification on notice. The Soviet Union has never adhered to the Court’s
compulsory jurisdiction under the Optional Clause ; neither China nor
France currently adhere. The only Permanent Member of the Security
Council party to the Optional Clause other that the United States is the
United Kingdom, which has reserved “the right at any time ... and with
effect from the moment of ... notification, either to add to, amend or
withdraw” any of its extensive reservations, and this in a declaration which
has been made “until such time as notice may be given to terminate” it.

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Many other leading States, including Algeria, Argentina, Brazil, the Fed-
eral Republic of Germany, Italy, Poland and the other States of Eastern
Europe, Senegal, and Syria do not adhere to the Optional Clause. Thus it is
clear that the expectations in the light of which the Senate gave its consent
and the President filed the declaration of the United States have not been
fulfilled.

98. Does it follow, in part because of the failure of these expectations,
that the United States is entitled to exercise what subsequent practice may
be said to have recognized to be an inherent right to terminate a declaration
on notice, despite the presence of a termination clause providing for a
period of notice ? In my view, a considerable case can be made out for that
conclusion, as distinguished colleagues show in their opinions. But in order
to pass upon the 1984 notification of the United States, it is not necessary,
in my view, for the Court to take a position on that question.

99. Nor is the Court required to take a position on the allied question of
whether declarations under the Optional Clause are subject to the provi-
sions of the law of treaties regulating the termination of treaties or, rather,
to a sui generis régime. The Court appears nevertheless to incline towards
the view that the law of treaties governs declarations, if only by analogy.
My own view is that the argument for a sui generis régime is much stronger.
That is because of the nature of declarations under the Optional Clause —
unilateral as they are, not subject to negotiation, reservations to which are
not subject to agreement. Their nature differs substantially from that of
treaties. The Court’s treatment of such declarations is suggestive, notably
in the Anglo-Iranian Oil Co. case (jurisdiction), Judgment, I.C.J. Reports
1952, pages 93, 105, where the Court held :

“the text of the Iranian Declaration is not a treaty text resulting from
negotiations between two or more States. It is the result of unilateral
drafting by the Government of Iran ...”

The Court thus held that a rule of the interpretation of treaties for which
the United Kingdom argued did not govern the interpretation of the
Iranian Declaration (ibid., pp. 102-107). The Court has more than once
described declarations under the Optional Clause as “unilateral” (Certain
Norwegian Loans, Judgment, 1 CJ. Reports 1957, pp. 9, 23; Barcelona
Traction, Light and Power Company, Limited, Preliminary Objections,
Judgment, I.C.J. Reports 1964, pp. 6, 29). But even if, contrary to this view,
rules for the termination or suspension of treaties were to be directly
applied, or by analogy were to be applied, to the legal effectiveness of the
United States suspension of elements of its 1946 Declaration, the United
States still would be able to argue, and with much reason, that a “funda-
mental change of circumstances ... has occurred with regard to those
existing at the time of the conclusion” of the declaration within the

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meaning of Article 62 of the Vienna Convention on the Law of Treaties. An
essential basis of the United States consent to be bound by its declaration,
it may be maintained, was its perception that that declaration would be one
of a near universal number of effective declarations. But the impact of
non-adherence to the Optional Clause by the large majority of States,
including so many of the more influential States, and the effect of the
widespread making of reservations permitting declarants to modify or
terminate their declarations at will, has been radically to transform the
extent of the obligations still to be performed by the United States under
its declaration, should it not be seen as retaining the unfettered right to
modify or suspend it.

100. This is a substantial argument. Moreover, even if one does not
resort to rebus sic stantibus, there is another substantial argument for
treating declarations made under the Optional Clause as inherently ter-
minable, even if they are regarded as subject to the law of treaties on
termination. It was expressed by Sir Humphrey Waldock in his capacity as
Special Rapporteur of the International Law Commission on the Law of
Treaties in the following terms :

“It is only necessary to look at the texts of the large number of such
treaties collected in the United Nations publication ‘Systematic Sur-
vey of Treaties for the Pacific Settlement of International Disputes,
1928-48" to see how almost invariably they are concluded either for a
fixed term or for renewable terms subject to a right of denunciation, or
are made terminable upon notice . . . If the proportion of instruments
containing no provision regarding their duration or termination is
somewhat greater among declarations under the ‘optional clause’ of
the Statute of the International Court of Justice (or of the Permanent
Court), the general picture is the same. Out of the thirty-seven decla-
rations listed in the Court’s Yearbook for 1961-2, eight contain no
statement as to their duration or termination, and all the others are
made for a limited period or made terminable upon notice. It is true
that in 1938, when Paraguay, which then had a declaration of this
kind, denounced it in a letter to the Secretary-General, six States made
reservations with regard to the denunciation ; and that the Para-
guayan declaration was retained in the list of optional clause accep-
tances in the Yearbook of the Court until the year 1959-60, though
with an explanatory footnote mentioning the reservations. But the
declaration has now been removed from the list, ... Moreover, even
before the Paraguayan denunciation, Colombia had ‘corrected’
in 1937 an unlimited and unconditional declaration of 1932 by res-
tricting it to disputes arising out of facts subsequent to 6 January
1932. Taken as a whole, State practice under the optional clause,
and especially the modern trend towards Declarations terminable
upon notice, seem only to reinforce the clear conclusion to be drawn
from treaties of arbitration, conciliation and judicial settlement, that

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_these treaties are regarded as essentially of a terminable character.”
Yearbook of the International Law Commission, 1963, Vol. II,
p. 68.)

In oral argument, the distinguished counsel of the United States, Professor
McDougal, further recalled that Waldock in the foregoing report had also
concluded that the constituent instruments of international organizations
are impliedly terminable upon notice (ibid, p. 69). A primary example
which Sir Humphrey cited as confirming the existence of a general pre-
sumption in favour of a right of withdrawal in this class of treaty is the
United Nations Charter. Professor McDougal then submitted :

“It is familiar knowledge that the Statute of the Court, including its
component obligations, are now a part of the comprehensive United
Nations system. If the authors of the Charter in 1945 and the Special
Rapporteur of the International Law Commission in 1963 thought
there was inherent power to withdraw from the Charter itself, surely
they thought that a modification or termination of participation in the
Optional Clause system was authorized.” (Hearing of 16 October
1984, morning.)

101. In view of the foregoing considerations, a considerable case can be
made out for viewing declarations under the Optional Clause as not
governed by the law of treaties, and as inherently terminable ; or, in the
alternative, if governed by the law of treaties, then terminable as a special
class of treaty which by its nature is terminable ; or, in any event, termin-
able where a fundamental change of circumstances has occurred. Never-
theless, in the present proceedings, I believe that the preferred position is
that every proviso of the United States 1946 Declaration is to be given
effect. The Court should have given effect to the multilateral treaty reser-
vation and to the intention that gave rise to it. If it had, it would be right to
give effect to the termination clause of the declaration and to the intention
that gave rise to it. However, where the Court finds that it is unclear
whether any States are affected, or could be affected, under the multilateral
treaty reservation, the Court, to be consistent, could equally hold that it is
unclear that the six months’ termination provision debars modification.
Moreover, if the Court is to give effect to these provisions of the United
States Declaration of 1946, then it equally must give effect to the reci-
procity provision — a provision, it should be recalled, which was under-

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stood by the United States Senate to embrace temporal elements of the
declaration under the Optional Clause.

102. The Declaration of 1929 by which Nicaragua now maintains that it
is bound provides : “On behalf of the Republic of Nicaragua I recognize as
compulsory unconditionally the jurisdiction of the Permanent Court of
International Justice.” That declaration thus contains no limit of time ; its
duration is indefinite. Does the declaration accordingly mean that Nica-
ragua is bound to the Court’s compulsory jurisdiction in perpetuity ? Or
does “unconditionally” rather mean that Nicaragua has set no condition of
time, that the duration of its declaration is indefinite until such time as it
may set whatever limit it chooses to it ?

103. To argue, in the abstract, that a State in accepting the Court’s
compulsory jurisdiction unconditionally has accepted it in perpetuity, is
implausible. To argue, concretely, that a State which unconditionally
accepted the Court’s jurisdiction in 1929 is bound in perpetuity — even
vis-a-vis States that have made declarations in which they have reserved
the right to modify or terminate at notice, or, indeed vis-a-vis that large
majority of States which have never adhered to the Optional Clause but
could at any time adhere with the profoundest restrictions simply with the
purpose of bringing suit against a State which has unconditionally
adhered, and thereafter terminate acceptance — is less plausible still. That
obvious conclusion is reinforced by the practice of States. The practice is
not large in the nature of the question. Nor is it unambiguous. But on
balance it establishes that a small number of States, such as Colombia and
Paraguay, have succeeded in freeing themselves of unconditional submis-
sions to the Court’s compulsory jurisdiction. There are no cases in which
States in that position have been effectively held to their unconditional
adherences. In sum, as Shabtai Rosenne, writing in 1965, put itin The Law
and Practice of the International Court :

“it is sometimes argued that the essential objection to the unilateral
denunciation of a declaration accepting the compulsory jurisdiction,
is that these declarations are governed by the law of treaties which in
principle does not permit unilateral denunciation, with the possible
exception supplied by the doctrine of rebus sic stantibus. But... that
view cannot easily be reconciled with the picture which emerges
from close analysis of the jurisprudence on the compulsory juris-
diction ...

The question whether declarations of the type here being discussed
can be withdrawn or denounced must, ... largely be relegated to the
realm of theory. Moreover, with the exception of a few — not more
than seven — of the pre-War declarations accepting the compulsory
jurisdiction of the Permanent Court which are now applicable to the

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present Court by virtue of Article 36 (5) of the present Statute, States
have developed the practice of protecting themselves by inserting a
reservation of the right to withdraw, and the practical problem is now
limited. As far as those seven declarations are concerned, it is sub-
mitted that it would be singularly unreal to apply to them an inflexible
rule said to derive from the general law of treaties and disallowing the
right of unilateral denunciation. The dissolution of the League of
Nations and the Permanent Court and the far-reaching changes in the
international community and its organization which that dissolution
mirrors, are sufficient to allow those States to withdraw their decla-
rations made in those far off days when the compulsory Jurisdiction
was [in] its infancy, and which are today applicable by virtue of Article
36 (5) of the Statute.” (Vol. I, pp. 416-417 ; footnotes omitted.)

104. It follows that Nicaragua, if its 1929 Declaration binds it at all, is
free to terminate its acceptance. Is it free to do so at any time, or only on
“reasonable notice” ? In the light of the practice in making declarations
adhering to the Optional Clause, so many of which permit termination or
modification not on “reasonable notice” or after a prescribed period but
immediately, the reasonable response to this reasonable question is that
Nicaragua has the right to terminate its declaration on immediate notice.
That conclusion is reinforced by the experience of withdrawal from in-
definite adherences to the Court’s compulsory jurisdiction by States such
as Colombia and Paraguay, withdrawals which did not entail a period of
reasonable notice. (It strains the facts to suggest that, since some States
protested Paraguay’s action, and its declaration was retained in the Court’s
Yearbooks for some years, with a footnote, that is tantamount to imposi-
tion of a period of reasonable notice on Paraguay’s termination.)

105. The case of Indonesia is particularly instructive. On 31 December
1964, Indonesia announced that it would withdraw from the United
Nations as of 1 January 1965. It confirmed that decision in a communi-
cation of 20 January 1965 (doc. A/5857). The United Nations acquiesced
in that decision. Indonesian withdrawal, on 24 hours’ notice, was given
effect, legally and practically. Indonesia ceased to be listed as a member of
the Organization. Indonesia was not assessed for any financial contribu-
tions for the whole of 1965 (see the Report of the Committee on Contribu-
tions, General Assembly, Official Records: Twentieth Session, supplement
No. 10 (A/6010), pp. 1, 2, 3). Subsequently, from September 1966, Indo-
nesia resumed participation in the United Nations, and it was agreed by
all concerned that what had been treated as Indonesia’s legally effective
withdrawal from the United Nations would be regarded retroactively not
as a withdrawal but “a cessation of co-operation” (General Assembly,
Twenty-First Session, Official Records, 1420th Plenary Meeting, pp. 1-2).

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A payment of 10 per cent of the amount for which Indonesia would have
been assessed for its contributions to the regular budget for the period of
Indonesian withdrawal was agreed upon. (Contributions of Indonesia for
the years 1965 and 1966, Report of the Secretary-General, doc. A/C.5/1097,
pp. 1, 2; and doc. A/6630, p. 3.)

106. Upon its withdrawal on 24 hours’ notice from the United Nations,
Indonesian withdrawal from the Statute of the Court, an integral part of
the Charter, likewise had the same legal and temporal effect. This was
reflected in the Yearbooks of the Court. Thus the Yearbook 1964-1965, in
listing the States Members of the United Nations which ipso facto are
parties to the Statute, has a footnote after the entry respecting Indonesia
(which embraced 1964) observing that Indonesia notified withdrawal as of
1 January 1965 (at p. 27). The Yearbook 1965-1966, in listing the States
Members of the United Nations, and hence parties to the Statute, simply
omits Indonesia (p. 26). However, the Yearbook 1966-1967 states that,
among the States Members of the United Nations on 31 July 1967, was
Indonesia (p. 29). There is no indication that the Court, any more than the
United Nations, imposed a period of reasonable time upon the effective-
ness of Indonesia’s notice of withdrawal. Now, if a State can withdraw
from the Statute of the Court on 24 hours’ notice, may not a State withdraw
from a declaration accepting the Court’s compulsory jurisdiction under
that Statute on 24 hours’ notice ?

107. If Nicaragua could have so acted with immediate effect, may the
United States reciprocally do so ? The Court concludes that it may not, on
two grounds: first, that reciprocity does not apply to temporal reserva-
tions or conditions but only to substantive reservations ; and second, that,
in any event, the United States cannot invoke and have the benefit of a
right which Nicaragua has but which Nicaragua itself did not invoke
before filing its Application.

108. The second point may be summarily addressed. Clearly, if Nica-
ragua itself — assuming it to have the right of unilateral termination of a
declaration which is assumed to be in force — exercised that right before it
filed its Application, then it could not file an application based on the
Optional Clause with any colourable basis of jurisdiction. It would have
itself terminated the jurisdiction it proposed to invoke before invoking
it.

109. The question of whether reciprocity applies to temporal conditions
is a more substantial question, on which authorities are divided. In my
view, there is no persuasive reason, a priori or having regard to the practice
of the Court, to exclude temporal conditions from the reach of reciprocity.
I so conclude for four reasons.

110. First, temporal conditions may be no less important than other
conditions. They may exclude jurisdiction just as surely as may substantive
reservations to the Court’s compulsory jurisdiction. Since reciprocity is so
closely tied to considerations of mutuality and of the sovereign equality of

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States before the law and before the Court, I see no reason in principle to
exclude temporal conditions from the scope of application of recipro-
city.

111. Second, the Court has more than once entertained argument about
the application of reciprocity ratione temporis. It has never held that
reciprocity does not apply to temporal conditions. On the contrary, both
opposing States in these cases and the Court appear to have assumed that it
did or might. See, Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series
A/B, No. 74, page 22 ; Electricity Company of Sofia and Bulgaria, P.C.LJ.,
Judgment, 1939, Series A/B, No. 77, page 81 ; and the Anglo-Iranian Oil
Co. case, I.C.J. Reports 1952, pages 93, 103, and the analysis of those cases
by Waldock to this effect in “Decline of the Optional Clause”, British Year
Book of International Law 1955-1956 (1957), Vol. XXXII, pages 258-261.
See also, case concerning Right of Passage over Indian Territory, Prelimi-
nary Objections, Judgment, I.C.J. Reports 1957, pages 125, 143-144. As
Helmut Steinberger concluded in “The International Court of Justice”,
which is found in the volume on Judicial Settlement of International Dis-
putes (1974) edited by Hermann Mosler and Rudolf Bernhardt :

“The Court in several cases has confirmed the wide operational
scope of the condition of reciprocity and stated that jurisdiction under
the optional clause is conferred on the Court ‘only to the extent to
which the two declarations coincide in conferring it’. That goes for the
jurisdiction ratione temporis as well as for the jurisdiction ratione
materiae.” (At pp. 216-217 ; footnotes omitted.)

112. Third, the United States, in drafting its Declaration of 14 August
1946, made it clear that it did regard the safeguard of reciprocity as
applying to temporal conditions (supra, para. 95).

113. Fourth, the contrary result may produce inequality and inequity.
As Waldock so emphatically put it in his article on the “Decline of the
Optional Clause” :

“There is, .. . another aspect of reciprocity in regard to time-limits
which seems to deserve attention, since it may well assume impor-
tance in view of the increasing number of declarations which are
immediately terminable on notice to the Secretary-General. Reci-
procity would seem to demand that in any given pair of States each
should have the same right as the other to terminate the juridical bond
existing between them under the Optional Clause. This is so even in
the ordinary case where State A’s declaration is without time-limit
while State B’s is for a period of five or ten years. State B at the end of
the period may choose whether to renew or to terminate its obligations
towards State A under the Optional Clause. State A may reasonably
contend that, while not retracting its general acceptance of the
Optional Clause, it also is entitled at the end of the period to choose
whether or not to continue its particular obligations towards State B.
It is one thing to hold that a unilateral declaration made without

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time-limit binds the State concerned indefinitely toward other States
which have made similar declarations. It is quite another thing to hold
that such a unilateral declaration is binding indefinitely towards other
States which have not undertaken the same commitment. The in-
equality in the positions of the two States under the Optional Clause,
if the principle of reciprocity is not applied to time-limits, becomes
absolutely inadmissible when State A’s declaration is without time-
limit while that of State B is immediately terminable on notice to the
Secretary-General. It would be intolerable that State B should always
be able, merely by giving notice, to terminate at any moment its
liability to compulsory jurisdiction vis-à-vis State A, whilst the latter
remained perpetually bound to submit to the Court’s jurisdiction at
the suit of State B. The Court has not yet had occasion to examine this
aspect of the operation of reciprocity in relation to time-limits. In the
light, however, of its interpretation of the condition of reciprocity in
regard to reservations, the Court, it is believed, must hold that under
the Optional Clause each State, with respect to any other State, has the
same right to terminate its acceptance of compulsory jurisdiction as is
possessed by that other State.” (Loc. cit., pp. 278-279.)

114. It is no less clear that what is critical in the application of the
Optional Clause is that jurisdiction must subsist as of the date of seisin of
the Court. That is axiomatic, and is made the clearer by the Court’s
Judgments in the Nottebohm case, Preliminary Objection, Judgment, 1.CJ.
Reports 1953, pages 111, 122-123 ; and in the Right of Passage over Indian
Territory case, I.C.J. Reports 1957, pages 142-144.

115. Since the United States exercised its reciprocal right to modify or
partially suspend elements of its Declaration of 14 August 1946 by a Note
deposited with the Secretary-General of the United Nations on 6 April
1984, since Nicaragua filed its Application in this case on 9 April 1984, and
since it is clear and is not disputed that the Application of Nicaragua falls
within the terms of the exclusions effected by the United States Note of
6 April, it follows that the Court is without jurisdiction to entertain the
claims which Nicaragua makes, in so far as they are based on the decla-
rations of the Parties under Article 36, paragraph 2, and Article 36, para-
graph 5, of the Court’s Statute.

116. It must be acknowledged that to take this broad view of recipro-
city, which would not give effect to the 1984 notification of the United
States erga omnes, but would regard the United States as having been
empowered reciprocally and immediately to terminate its declaration
vis-a-vis Nicaragua, involves a construction of reciprocity which, being
applied before a case is filed in the Court, gives rise to complications. Once
the Court is seised of a case, the scope of the declarations of the parties can
be compared, but, before seisin, the situation is much more complex. In my
view, that is a drawback of my analysis but not a fatal drawback. After all,

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prior to this Court’s advisory opinion on Reservations to the Convention on
the Prevention and Punishment of the Crime of Genocide, the law governing
the making of reservations to treaties was relatively clear and simple. But in
the interests of wider adherence to treaties, the Court took a flexible
approach to the making of reservations which, in return for that ease of
adherence, produces a most complicated pattern of treaty relationships,
which the Vienna Convention on the Law of Treaties has adopted in the
train of the Court’s reasoning. I believe that, in the interests of maintaining
and widening the extent of adherences to the Court’s compulsory juris-
diction, the Court in this case should have taken a similarly flexible
approach towards the application of reciprocity to declarations made
under the Optional Clause.

2. Jurisdiction under the Treaty of Friendship, Commerce and Navigation

117. In its Application, the sole jurisdictional basis alleged by Nicara-
gua is “the Declarations made by the Republic of Nicaragua and by the
United States of America accepting the jurisdiction of the Court as pro-
vided for in Article 36 of the Statute . . .” (introduction). Nevertheless, the
Nicaraguan Memorial, in paragraph 177, invokes “a complementary
ground” of the Court’s jurisdiction, namely, the Treaty of Friendship,
Commerce and Navigation between the United States of America and the
Republic of Nicaragua, signed on 21 January 1956, which came into force
in 1958 and remains in force. This poses the threshold question : may a
State which has failed to cite a possible basis of jurisdiction in its Appli-
cation rely upon that basis thereafter ?

118. Such answer as the Court’s sparse jurisprudence on the question
contains suggests that it may not. The Court held, in the case of Certain
Norwegian Loans, Judgment, I.C.J. Reports 1957, pages 24-25, that, where
an Applicant, France, sought to introduce two treaties as bases for jJuris-
diction which were not relied upon by it in its Application but only invoked
in the proceedings on preliminary objections, it could not do so. The Court
held that :

“If the French Government has intended to proceed upon that
basis it would expressly have so stated.

As already shown, the Application of the French Government is
based clearly and precisely on the Norwegian and French Declara-
tions under Article 36, paragraph 2, of the Statute. In these circum-
stances the Court would not be justified in seeking a basis for its
Jurisdiction different from that which the French Government itself
set out in its Application and by reference to which the case has been
presented by both Parties to the Court.” (Certain Norwegian Loans,
Judgment, I.C.J. Reports 1957, pp. 24-25.)

Equally, the Application of Nicaragua is based “clearly” if not so precisely
upon the United States and Nicaraguan Declarations under Article 36,

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paragraphs 2 and 5, of the Statute. If Nicaragua “had intended to proceed”
upon the basis of the Treaty with the United States, “it would expressly
have so stated”. Accordingly, in “these circumstances” — which are not
unlike those in Certain Norwegian Loans — “the Court would not be
justified in seeking a basis for its jurisdiction different from that which” the
Nicaraguan Government “itself set out in its Application and by reference
to which the case has been presented by both Parties to the Court”.
Therefore, in so far as Nicaragua relies upon the Treaty to establish
jurisdiction in this case, there is ground for holding that its Application
should be dismissed.

119. However, the Court, for reasons that are not altogether clear, seems
in this case to have another understanding of the import of its holding in
Certain Norwegian Loans. It accordingly turns to a second preliminary
consideration which also presents a considerable jurisdictional barrier to
Nicaraguan invocation of the Treaty.

Article XXIV of the Treaty provides :

“1. Each Party shall accord sympathetic consideration to, and shall
afford adequate opportunity for consultation regarding, such repre-
sentations as the other Party may make with respect to any matter
affecting the operation of the present Treaty.

2. Any dispute between the Parties as to the interpretation or
application of the present Treaty, not satisfactorily adjusted by diplo-
macy, shall be submitted to the International Court of Justice, unless
the Parties agree to settlement by some other pacific means.”

Paragraph 2 of this Article permits either Party unilaterally to seise the
Court of a dispute over “the interpretation or application of the present
Treaty, not satisfactorily adjusted by diplomacy . . .”. In its Application in
United States Diplomatic and Consular Staff in Tehran, the United States
invoked an identical provision of its Treaty of Amity, Economic Relations
and Consular Rights with Iran, and the Court in its Judgment held that
such a clause provides for “a right of unilateral recourse to the Court”
which “establishes the jurisdiction of the Court as compulsory for such
disputes” unless the Parties agree to settlement by some other means
(CJ. Reports 1980, p. 27). In that case, however, there was no question of
initially determining whether the dispute could or could not be satisfac-
torily adjusted by diplomacy, since, as the Court observed, Iran refused to
negotiate. But, in the current case, not only have Nicaragua and the United
States engaged in direct negotiations between them, which are actively
continuing over their larger disputes, but Nicaragua does not allege that it
has ever claimed, before or during those negotiations or otherwise, that
there is any dispute between it and the United States over the interpre-
tation or application of the Treaty. Such claims for the first time appear in
the Nicaraguan Memorial. For its part, the United States denies that there
has been any effort to adjust by diplomacy any dispute with Nicaragua

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over the interpretation or application of the Treaty, particularly because
Nicaragua has not even made representations under the Treaty that could
give rise to a dispute. Nicaragua has not challenged these United States
allegations. There is no reason to suppose that Nicaragua failed to invoke
the Treaty because of an unwillingness to charge the United States with
violation of its international obligations. It rather appears that it did not
occur to Nicaragua — despite its allegations about the conduct of the
United States to which the Court alludes — that the actions of which it was
complaining were violations of this Treaty. In these circumstances, it
appears to follow that Nicaragua has not discharged the procedural
prerequisites for invocation of Article XXIV (2) of the Treaty. For this
reason as well, the Court should have held that the Treaty does not furnish
a basis of jurisdiction which sustains the Application of Nicaragua.

120. If, however, with the Court, we lightly vault these barriers rather
than demolish them, let us examine whether Nicaragua’s invocation of the
Treaty is sufficient to establish any measure of the Court’s Jurisdiction over
the claims which Nicaragua’s Application sets out. To what extent, if at all,
is the substance or are the provisions of the Treaty relevant to Nicaragua’s
claims ?

121. In its Application, Nicaragua claims that the United States has
breached

“express obligations under the Charter of the United Nations, the
Charter of the Organization of American States and other multilateral
treaties, and has violated fundamental rules of general and customary
international law...” (para. 14).

Not a word is said, in terms or in substance, about violation of a bilateral
commercial treaty. Rather, the gravamen of Nicaragua’s Application is
that the United States is “using military force against Nicaragua and
intervening in Nicaragua’s internal affairs . . .” (para. 1). However, in the
precise claims on which Nicaragua requests the Court to adjudge and
declare, there are two points that arguably may be said to bear upon the
Treaty of Friendship, Commerce and Navigation, though this is nowhere
alleged in the Application. Paragraph (e) reads :

“That the United States, in breach of its obligation under general
and customary international law, has infringed and is infringing the
freedom of the high seas and interrupting peaceful maritime com-
merce.”

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631 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

(It will be observed that this claim does not relate to the Treaty, or any
treaty, but to customary international law.) And paragraph (g) con-
cludes :

“That, in view of its breaches of the foregoing legal obligations, the
United States is under a particular duty to cease and desist immedi-
ately :

from ail efforts to restrict, block or endanger access to or from
Nicaraguan ports.”

122. The Treaty is one of a large number of similar treaties which the
United States has concluded. The purpose and scope of these “FCN”
treaties was summarized by a commentator who had a leading role in their
negotiation as follows :

“IFCN] treaties are not political in character. Rather, they are
fundamentally economic and legal. Moreover, though ‘commerce’
and ‘navigation’ complete the title and accurately describe part of
their content, their concern nowadays is only secondarily with foreign
trade and shipping. They are ‘commercial’ in the broadest sense of
that term; and they are above-all treaties of ‘establishment’, con-
cerned with the protection of persons, natural and juridical, and of the
property and interests of such persons. They define the treatment each
country owes the nationals of the other ; their rights to engage in
business and other activities within the boundaries of the former ; and
the respect due them, their property and their enterprises.” (Herman
Walker, “Modern Treaties of Friendship, Commerce and Naviga-
tion”, Minnesota Law Review, Vol. 42 (1958), p. 806.)

123. How does Nicaragua purport to link the grave and sweeping
charges of its Application with the commercial particularities of the
Treaty? Nicaragua proceeds in its Memorial not by establishing,
demonstrating or even indicating in any detail that its claims under its
Application entail violation by the United States of provisions of the
Treaty. It rather contents itself with “simply” identifying those provi-
sions of the Treaty which it claims are contravened. It concentrates such
argument as it offers on one clause of the Treaty. It submits that, “for
example”, Article XIX, paragraph 1, provides : “1. Between the territories
of the two Parties, there shall be freedom of commerce and navigation.”
Nicaragua maintains that, “The activities of the United States clearly
violate this provision” (Nicaraguan Memorial, para. 167). It contends :

“172. It is obvious that the military and paramilitary operations

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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

directed and maintained in and against Nicaragua by the United

‘States — including the mining of Nicaraguan ports and territorial

waters, as well as attacks on Nicaragua’s airports, and military oper-
ations that endanger and limit trade and traffic on land — are designed
to paralyze the freedom of commerce and navigation, thus defined
and guaranteed in Article XIX (1) of the Treaty.”

124. Is this argument consistent with the purpose of Article XIX, para-
graph 1, of the Treaty, as indeed of the Treaty as a whole ? The Treaty as
a whole has nothing to do with the use of force in international relations,
or rights to be free of such use — and correspondingly, prima facie, little or
nothing to do with Nicaragua’s claims in this case. It is a purely commercial
treaty “based in general upon the principles of national and most-
favoured-nation treatment” (preamble). Article XIX, paragraph 1, mirrors
that commercial concern, as is clear when it is considered in the context of
the whole article of which it is part, which reads :

244

“1. Between the territories of the two Parties there shall be freedom
of commerce and navigation.

2. Vessels under the flag of either Party, and carrying the papers
required by its law in proof of nationality, shall be deemed to be
vessels of that Party both on the high seas and within the ports, places
and waters of the other Party.

3. Vessels of either Party shall have liberty, on equal terms with
vessels of the other Party and on equal terms with vessels of any third
country, to come with their cargoes to all ports, places and waters of
such other Party open to foreign commerce and navigation. Such
vessels and cargoes shall in all respects be accorded national treat-
ment and most-favored-nation treatment within the ports, places and
waters of such other Party ; but each Party may reserve exclusive
rights and privileges to its own vessels with respect to the coasting
trade, inland navigation and national fisheries.

4. Vessels of either Party shall be accorded national treatment and
most-favored-nation treatment by the other Party with respect to the
right to carry all products that may be carried by vessel to or from the
territories of such other Party ; and such products shall be accorded
treatment no less favorable than that accorded like products carried in
vessels of such other Party, with respect to : (a) duties and charges of
all kinds, (b) the administration of the customs, and (c) bounties,
drawbacks and other privileges of this nature.
633 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

5. Vessels of either Party that are in distress shall be permitted to
take refuge in the nearest port or haven of the other Party, and shall
receive friendly treatment and assistance.

6. The term ‘vessels’, as used herein, means all types of vessels,
whether privately owned or operated, or publicly owned or operated ;
but this term does not, except with reference to paragraphs 2 and 5 of
the present Article, include fishing vessels or vessels of war.”

It is difficult to see the relevance of such provisions to the claims of un-
lawful use of force made by Nicaragua in its Application. The obligations
created for the United States by this article essentially relate to treatment
of Nicaraguan vessels in United States waters. It is only by taking para-
graph 1 of Article XIX out of the context of that article and of the Treaty as
a whole that one can argue that it is relevant to the claim of mining of
Nicaraguan ports. Is the Court justified in reaching out to make that
argument ? The jurisprudence of the Court suggests that it is not. The
Court rather in the past has held that : “It is not enough for the claimant
Government to establish a remote connection between the facts of the
claim and the Treaty” upon whose compromissory clause it relies (Amba-
tielos, Merits, Judgment, I.C.J. Reports 1953, p. 18).

125. The other articles which Nicaragua cites as contravened by activi-
ties of the United States are Articles XIV, paragraph 2 ; XVII, paragraph
3; XIX, paragraph 3; XX; and I of the Treaty. These clauses pro-
vide :

Article XIV, paragraph 2 :

“Neither Party shall impose restrictions or prohibitions on the
importation of any product of the other Party, or on the exportation of
any product to the territories of the other Party, unless the importa-
tion of the like product of, or the exportation of the like product to, all
third countries is similarly restricted or prohibited.”

Article XVII, paragraph 3 :

“Neither Party shall impose any measure of a discriminatory
nature that hinders or prevents the importer or exporter of products of
either country from obtaining marine insurance on such products in
companies of either Party.”

Article XIX, paragraph 3 :

“Vessels of either Party shall have liberty, on equal terms with
vessels of the other Party and on equal terms with vessels of any third

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634 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

country, to come with their cargoes to all ports, places and waters of
such other Party open to foreign commerce and navigation...”

Article XX :

“There shall be freedom of transit through the territories of each
Party by the routes most convenient for international transit :

(a) for nationals of the other Party, together with their baggage ;

(b) for other persons, together with their baggage, en route to or from
the territories of such other Party ; and

{c} for products of any origin en route to or from the territories of
such other Party...”

Nicaragua maintains — with respect to the foregoing articles — that the
military and paramilitary activities which it alleges are carried on by the
United States cannot be seen as “equitable treatment to the persons,
property and enterprises and other interests” of Nicaraguan nationals and
companies (Memorial, para. 174).

126. But the foregoing Treaty provisions on which Nicaragua relies —
without pleading the facts that relate such reliance to the claims set out in
its Application — concern the treatment of the nationals of one Party, or
goods or property of those nationals, or the vessels of one Party, in the
territory of the other Party. They concern marine insurance, free transit of
nationals, etc. It is obvious on their face that these provisions have no
relationship to the claims of direct and indirect aggression made out in
Nicaragua’s Application. Article I of the Treaty, on which Nicaragua also
relies, and which provides that,

“Each Party shall at all times accord equitable treatment to the
persons, property, enterprises and other interests of nationals and
companies of the other Party”,

sets out the broad principle of equitable treatment in the light of which the
Treaty’s detailed operative provisions are to be read, but it does not deal
with problems of the use or misuse of force in international relations.

127. In addition to the foregoing articles of the Treaty, the Court also
takes account of “the references in the Preamble to peace and friendship”.
The Preamble to the Treaty provides :

“The United States of America and the Republic of Nicaragua,
desirous of strengthening the bonds of peace and friendship tradi-
tionally existing between them and of encouraging closer economic
and cultural relations between their peoples, and being cognizant of
the contributions which may be made towards these ends by arran-
gements encouraging mutually beneficial investments, promoting

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mutually advantageous commercial intercourse and otherwise estab-
lishing mutual rights and privileges, have resolved to conclude a
Treaty of Friendship, Commerce and Navigation, based in general
upon the principles of national and of most-favored-nation treatment
unconditionally accorded, . . .”

Thus the preamble, if it were to be thought to have any legal effect,
emphasizes the commercial purposes of the Treaty. In any event, the
provisions of a preamble are not generally regarded as giving rise to legal
obligations as the terms of the body of a treaty do or may. The Vienna
Convention on the Law of Treaties provides that the preamble is part of the
context of a treaty and that a treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty
“in their context and in the light of its object and purpose” (Art. 32).
Having regard to the context of this treaty among a score of commercial
FCN treaties, and in the light of its commercial objects and purpose, the
Treaty’s preambular reference to strengthening the bonds of peace and
friendship does not appear to provide an additional basis for relating
the claims set out in the Application of Nicaragua to the terms of the
Treaty.

128. There is another provision of the Treaty which merits comment,
because it indicates that the Application of Nicaragua does not fall within
the scope of the Treaty. Article XXI (1) of the Treaty provides :

“1. The present Treaty shall not preclude the application of mea-
sures :

(c) regulating the production of or traffic in arms, ammunition and
implements of war, or traffic in other materials carried on directly
or indirectly for the purpose of supplying a military establish-
ment ;

(d) necessary to fulfill the obligations of a Party for the maintenance
or restoration of international peace and security, or necessary to
protect its essential security interests ;...”

Now it cannot be argued — and Nicaragua did not argue, nor does the
Court hold — that, since the Treaty “shall not preclude the application of
measures” regulating the production of or traffic in arms, or measures
which are necessary to fulfil the obligations of a Party for the maintenance
of international peace and security or to protect its essential security
interests, these very exclusions entitle the Court to assume jurisdiction over
claims based on the Treaty that relate to traffic in arms or to the main-
tenance of international peace and security or essential security interests.
It is clear that, where a treaty excludes from its regulated reach certain
areas, those areas do not fall within the jurisdictional scope of the treaty.

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That this preclusion clause is indeed an exclusion clause is demonstrated
not only by its terms but by its travaux préparatoires, which were appended
to the United States pleadings in the case of United States Diplomatic and
Consular Staff in Tehran. A list of a score of Treaties of Friendship,
Commerce and Navigation, including that with Nicaragua, is found at
page 233, which is followed by a “Memorandum on Dispute Settlement
Clause in Treaty of Friendship, Commerce and Navigation with China”
which contains the following paragraph :

“The compromissory clause . . . is limited to questions of the inter-
pretation or application of this treaty ; i.e., it is a special not a general
compromissory clause. It applies to a treaty on the negotiation of
which there is voluminous documentation indicating the intent of the
parties. This treaty deals with subjects which are common to a large
number of treaties, concluded over a long period of time by nearly all
nations. Much of the general subject-matter — and in some cases
almost identical language — has been adjudicated in the courts of this
and other countries. The authorities for the interpretation of this
treaty are, therefore, to a considerable extent established and well
known. Furthermore, certain important subjects, notably immigration,
traffic in military supplies, and the ‘essential interests of the country in
time of national emergency’, are specifically excepted from the purview of
the treaty. In view of the above, it is difficult to conceive how Article
XXVIII could result in this Government’s being impleaded in a
matter in which it might be embarrassed.” (At p. 235 ; emphasis
supplied.)

A second memorandum, entitled “Department of State Memorandum on
Provisions in Commercial Treaties relating to the International Court of
Justice”, similarly concludes, first with respect to the scope of the juris-
diction accorded to the Court under FCN treaties, and second with respect
to national security clauses :

“This paper [of the Department of State]... points out a number of
the features which in its view make the provision satisfactory ...
These include the fact that the provision is limited to differences
arising immediately from the specific treaty concerned, that such
treaties deal with familiar subject-matter and are thoroughly docu-
mented in the records of the negotiation, that an established body of
interpretation already exists for much of the subject-matter of such

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treaties, and that such purely domestic matters as immigration policy
and military security are placed outside the scope of such treaties by
specific exceptions.” (Ibid., p. 237 ; emphasis supplied.)

Article XXI of the Treaty thus serves to indicate that the parties to the
Treaty acted to exclude from its scope the kind of claim (“restoration of
international peace and security” and protection of “essential security
interests”) which Nicaragua seeks to base upon it.

129. Nevertheless, the Court concludes that :

“_.. itis quite clear for the Court that, on the basis alone of the Treaty
of Friendship, Commerce and Navigation of 1956, Nicaragua and
the United States of America are bound to accept the compulsory
jurisdiction of this Court over claims presented by the Applica-
tion of Nicaragua in so far as they imply violations of provisions of
this treaty” (Judgment, para. 111).

The difficulty with that conclusion is that, on analysis, the claims pre-
sented by this Application of Nicaragua imply no violations of that Treaty.
Not only does the Application fail to refer to the Treaty ; it is plain that the
Treaty itself cannot plausibly be interpreted to afford the Court jurisdic-
tion “to entertain the Application filed by Nicaragua on 9 April 1984”. It
might furnish basis for another Application, but not for the one before the
Court.

(Signed) Stephen M. SCHWEBEL.

249