212

DISSENTING OPINION OF JUDGE ODA

TABLE OF CONTENTS

Paragraphs

OPENING REMARKS

I. EFFECT OF THE APPLICATION GIVEN TO THE “VANDENBERG RESER-
VATION” BY THE JUDGMENT — NICARAGUA’S APPLICATION BASED
ON ARTICLE 36, PARAGRAPH 2, OF THE STATUTE SHOULD BE DIs-
MISSED

A. Applicability of the “Vandenberg Reservation”
B. The Judgment’s failure to understand the effect of the “Van-
denberg Reservation”

IT. THE NON-JUSTICIABILITY OF THE PRESENT CASE — NICARAGUA’S
APPLICATION BASED ON ARTICLE 36, PARAGRAPH 2, OF THE
STATUTE SHOULD BE DECLARED JNADMISSIBLE

A. Introduction
B. Limited scope of “legal disputes” in Article 36, paragraph 2, of
the Statute

1. The justiciability and concept of legal disputes — historical
survey

(i) The concept of “legal disputes subject to compulsory
arbitration” prior to the institution of the Permanent
Court of International Justice

(ii) Justiciable and non-justiciable disputes under the
Covenant of the League of Nations and the Statute of
the Permanent Court of International Justice

(iti) The concept of justiciable disputes subsequent to the
inception of the Permanent Court of International Jus-
tice

(iv) Legal disputes found suitable for settlement by the
International Court of Justice

2. The difficulty of viewing the present case as concerning a
“legal dispute” within the meaning of the Statute

(i) In general
(ii) Precedents in the previous and present Courts

(iii) Conclusion

202

1-3

15-19
20

21-26

27-35

36-38

39-40

41-45
46-47

48-49
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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. ODA)

Paragraphs

C. Considerations of judicial propriety that should have dissuaded
the Court from pronouncing on the Nicaraguan Application on
the basis of Article 36, paragraph 2, of the Statute

1. The Court should not have adjudged the Application
because of the considerations of administration of justice —
a preliminary issue

2. The concept of the non-justiciable “political dispute” —
parallelism of legal and political disputes

3. Incomplete picture of the dispute as portrayed by the
Court

(i) Lack of sufficient means for fact-finding
(ii) Nicaragua’s Application reflecting only one side of the
dispute
(iii) Non-participation of the United States in the proceed-
ings — Article 53 of the Statute

D. Concluding remarks on the non-justiciability

BREACH OF OBLIGATIONS UNDER THE TREATY OF FRIENDSHIP,
COMMERCE AND NAVIGATION — THE COURT’S APPROPRIATION OF
THE CASE UNDER ARTICLE 36, PARAGRAPH 1, OF THE STATUTE

A. The Court’s jurisdiction granted by Article XXIV, the Com-
promissory Clause, of the 1956 Treaty

B. The Court’s partial reversion to jurisdiction under Article 36,
paragraph 2, of the Statute in relation to the Treaty

C. Misconception of the customary-law rule not to defeat the
“object and purpose” of a Treaty

D. Breaches of the terms of the 1956 Treaty

1. Breaches of Article XIX of the Treaty
2. Applicability of Article XXI of the Treaty

IV. SUPPLEMENTARY OBSERVATIONS

203

50-54

55-60

61-64
65-66

67-69
70-72

73-74
75-78

79-82

83-84
85-89

90-97
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1. Ihave given support to subparagraph (1) of the Operative Clause but,
by the logic of this subparagraph which has recognized the applicability of
the so-called Vandenberg Reservation, the Court should now have ceased
to entertain the Application of Nicaragua in so far as it is based on Article
36, paragraph 2, of the Statute (Part I below). In addition, I believe that, for
other reasons as stated below (Part II), the dispute referred to the Court by
the Nicaraguan Application, as so based, should have been declared non-
justiciable.

2. I hold that the Court could have remained seised of this case only in
relation to the alleged violation by the United States of the 1956 Treaty of
Friendship, Commerce and Navigation between the two Parties. From this
point of view I voted in favour of subparagraph (7), but voted against
subparagraph (6) because it would have been sufficient for the Court to
decide on subparagraph (7) only, and against subparagraph (8) because
such a decision by the Court concerning a breach of obligations erga omnes
under customary international law is out of place in this Judgment. I was
also unable to vote in favour of subparagraph (10), for the reason that I
believed the Judgment was mistaken in bringing the United States attacks
on Nicaraguan territory into relation with that Treaty and, by basing a
construction upon its “object and purpose”, had exceeded the jurisdiction
granted by its compromissory clause. My negative vote on subparagraph
(11) was cast because the attacks on Nicaraguan territory could not be
related in my view to a breach of the 1956 Treaty ; nor was the trade
embargo to be regarded as a breach of it (Part HI below).

3. I was obliged to vote against subparagraphs (2), (3), (4), (5), (9), (12)
and (13), simply because | considered, as stated above, that the Court
should not have pronounced on these issues in the present case unless
covered by the compromissory clause of the 1956 Treaty. This does not
mean, however, that I am in disagreement with all the legal arguments
expounded by the Court regarding the principles of non-intervention,
prohibition of the use of force and respect for sovereignty. These principles
should certainly be respected, and by Nicaragua no less than the United
States. In particular, my negative vote on subparagraph (9) must not be
interpreted as implying that I am opposed to the Court’s findings on this
particular point.

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which, together with the prohibition of the threat or use of force, came to
encapsulate the founding spirit of the United Nations.

6. Thus I have no doubt that the present case conspicuously falls to be
considered within the framework of the United Nations system and, for
that matter, that of the Organization of American States, which has pio-
neered and adopted similar principles. Having regard to the fact that the
Court in 1984 found that it possessed jurisdiction under Article 36, para-
graph 2, of the Statute, I fully support the Court’s decision that “the Court
is required to apply the ‘multilateral treaty reservation’ contained in [the
United States declaration of acceptance of jurisdiction]” (para. 292

(1).

B. The Judgment’s Failure to Understand the Effect of the “Vandenberg
Reservation”

7. The United States declaration read, in part :

“ .. this declaration shall not apply to...

(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 Court does not doubt that all parties to multilateral treaties, i-e., the
Charter of the United Nations and the Charter of the Organization of
American States, affected by the Judgment are not parties to the present
case. Yet the Judgment states :

“It should however be recalled that . . . the effect of the reservation
in question is confined to barring the applicability of the United
Nations Charter and OAS Charter as multilateral treaty law, and has
no further impact on the sources of international law which Article 38
of the Statute requires the Court to apply.” (Para. 56.)

“In formulating its view on the significance of the United States
multilateral treaty reservation, the Court has reached the conclusion
that it must refrain from applying the multilateral treaties invoked by
Nicaragua in support of its claims, without prejudice either to other
treaties or to the other sources of law enumerated in Article 38 of the
Statute. The first stage in its determination of the law actually to be
applied to this dispute is to ascertain the consequences of the exclu-
sion of the applicability of the multilateral treaties for the definition
of the content of the customary international law which remains
applicable.” (Para. 172.)

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“It will... be clear that customary international law continues to
exist and to apply, separately from international treaty law, even
where the two categories of law have an identical content.”
(Para. 179.)

8. In sum, the Judgment holds that the Court can still decide the issues
before it for the reason that, without reference to such multilateral treaties
as the Charter of the United Nations and the Charter of the Organization
of American States, the Court can apply customary and general interna-
tional law which, though having been subsumed in the said multilateral
treaties, exists independently.

9. It may well be contended that principles such as the non-use of force
and the non-intervention now exist independently as customary and gen-
eral international law. However, I cannot agree with the Judgment in its
contention that the Court may entertain the Nicaraguan Application
under Article 36, paragraph 2, of the Statute on the alleged assumption that
the United States reservation regarding “disputes arising under a multi-
lateral treaty” simply excludes from the jurisdiction conferred on the
Court under that provision of the Statute legal disputes concerning “the
interpretation of a [multilateral] treaty”, or that, since the present case
involves a “question of international Jaw”, the Court’s entertainment of it
should not be affected by that reservation inasmuch as the Court, inde-
pendently of “the interpretation of a treaty”, can confine itself to the
application of the principles of customary and general international
law.

10. I believe that the issue — which relates to applicable law — of
whether, once the Court assumes jurisdiction over a case, it can apply the
rules of customary and general international law apart from any applicable
treaty rules, is quite different from the other issue — which relates to the
Court’s jurisdiction — of whether a State’s declaration excludes “disputes
arising under multilateral treat{ies]” (United States reservation) from “the
jurisdiction of the Court, [which by nature can only be voluntarily accep-
ted] in all legal disputes concerning (a) the interpretation of a treaty, (b) any
question of international law... .” (Statute, Art. 36, para. 2). The United
States declaration of acceptance of the Court’s jurisdiction excluded dis-
putes arising under multilateral treaties subject to exceptions which do not
qualify my reasoning and, in any event, have not materialized in the
present case.

11. The persistent use of the term “reservation” to describe the excep-
tion clauses attached by States to their declarations under Article 36,
paragraph 2, of the Statute, and more especially the attachment of the term
“Vandenberg Reservation” to the exception in the United States declara-
tion relating to disputes that arise under a multilateral treaty, have surely
contributed to a misconception of the inherent scope of such declarations,

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and of that one in particular. Because of the idealism underlying the notion
of a sovereign State submitting to be judged, the so-called “acceptance of
the Optional Clause” has always been imagined in terms of the ideal case,
where that submission is total and “unreserved”. Nevertheless, the very
structure of Article 36, paragraph 2, should make it clear that, in framing a
declaration, a State, guided by the categories there suggested (the historical
origins of which I shall explain in paras. 27-40), has simply to delineate the
bounds of the area of legal disputes over which, subject to reciprocity, it is
prepared to accept the Court’s jurisdiction independently of treaty clauses
or special agreements. If it is under no obligation to make any declaration
at all, still less is it obliged to take the ideal case as its standard.

12. Hence the fact that exception clauses may frequently be useful as a
means of delineation does not justify any presumption that a State
employing them has retracted various parts of an a priori wholesale
acceptance of the Court’s jurisdiction ; on the contrary, the instrument
remains a positive indication that the State has unreservedly accepted that
jurisdiction within a certain area which those exceptions have merely
helped to define. Outside that area, there is simply no acceptance, not even
an acceptance subject to a “reservation”, and to reason as if there were is to
yield to a kind of optical illusion.

13. In the present case, it seems that thinking about a certain exception
in terms of a “reservation” has helped the Court to imagine that if mul-
tilateral treaties were ignored as a source of positive law, the “reservation”
would lose its potency, so that the exception could be circumvented. I have
explained above why I find this erroneous. The reference to multilateral
treaties is merely a means of drawing the boundaries of jurisdiction so as to
exclude certain disputes : there is no justification for supposing that a
dispute “arising under” a multilateral treaty can nevertheless be brought
under the Court’s authority because (inevitably) it can also be analysed in
terms of general international law. Having decided that the present dispute
did “arise under” such a treaty or treaties, the Court should have con-
cluded that only in the circumstances described by the exception itself,
namely, the presence of all parties affected or specific waiver, could the
boundary of acceptance of jurisdiction be widened to admit the dispute
under Article 36, paragraph 2.

14. Thus, if the so-called Vandenberg Reservation is applicable in this
case, and the United States acceptance of the Court’s compulsory juris-
diction consequently does not extend to disputes arising under the Charter
of the United Nations and the Charter of the Organization of American
States, and if the Judgment yet declares that the Court can entertain the
present case as admissible under Article 36, paragraph 2, as stated :

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“The Court concludes that it should exercise the jurisdiction con-
ferred upon it by the United States declaration of acceptance under
Article 36, paragraph 2, of the Statute, to determine the clatms of
Nicaragua based upon customary international law notwithstanding
the exclusion from its jurisdiction of disputes ‘arising under’ the
United Nations and OAS Charters” (para. 182),

the Court should have proved, not that it can apply customary and general
international law independently, but that the dispute referred to it in the
Applicant’s claims had not arisen under these multilateral treaties. The
Judgment, however, fails to do this. I must repeat my belief that, in so far as
the Judgment holds the Vandenberg Reservation to be applicable, in my
view, correctly, the Court should not, and indeed could not, on the basis of
Article 36, paragraph 2, of the Statute, have entertained the whole dispute
involving “military and paramilitary activities in and against Nicaragua”
which the United States has allegedly pursued.

IL THE NON-JUSTICIABILITY OF THE PRESENT CASE — NICARAGUA’S
APPLICATION BASED ON ARTICLE 36, PARAGRAPH 2, OF THE STATUTE
SHOULD BE DECLARED INADMISSIBLE

A. Introduction

15. While the test of jurisdiction is whether the dispute referred for
judgment lies within the scope and range of the specific competence
granted to the court in question by a basic instrument, so that the pos-
session of jurisdiction has to be assessed as a matter of priority and in terms
of that instrument, the question of the admissibility of a claim calls for
application of fundamental norms of the judiciary as to whether the
judicial function should or should not extend to cover the issues in con-
tention. Inasmuch as the answering of this question presupposes an ade-
quate characterization of those issues, admissibility is not necessarily a
preliminary matter, in the sense of one that can be resolved before their
merits are examined. In a more important sense, however, it is always
preliminary, in that no finding may be made on the merits if it remains
unresolved. The Judgment states :

“especially when the character of the objections is not exclusively
preliminary because (the objections] contain both preliminary aspects
and other aspects relating to the merits, they will have to be dealt with
at the stage of the merits” (para. 41).

16. The Court, in its 1984 Judgment, rejected some grounds adduced by
the United States for the inadmissibility of the dispute (/.C.J. Reports

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1984, pp. 429-441). It appears to me, however, that the 1984 Judgment did
not dispose of the still essential question of whether the present case is
justiciable or not. Dealing with the justiciability, the Court observes that
the United States did not argue that this is not a “legal dispute”, and
states :

“the Court can at this stage confine itself to a finding that, in the
circumstances of the present case, the issues raised of collective self-
defence are issues which it has competence, and is equipped, to
determine” (para. 35).

17. I believe that the Nicaraguan Application should be declared non-
justiciable, since in my view the dispute at issue is one which does not fall
into the category of “legal” disputes within the meaning and intention of
Article 36, paragraph 2, of the Statute. It may be argued (and the present
Judgment deliberately attempts to do so, see para. 32) that the interpre-
tation of the competence of the Court as conferred in accordance with that
provision has been settled by a determination of jurisdiction. However, the
question as to whether this dispute should be considered as justiciable in
terms of the concept of “legal disputes” within the meaning of the Statute is
related to the merits of the dispute. Accordingly, it deserves and requires
reconsideration at the present stage (see Section B below).

18. Furthermore, even if my contention were not well founded, it would
in my view have been prudent for the Court, in the light of the merits of the
present case, to find it a matter of judicial propriety not to proceed with a
case so highly charged with issues central to the sensitive political relations
of many States : a circumstance that undoubtedly accounts for much of the
vigour with which the Respondent has first challenged, then been seen to
defy, the Court’s jurisdiction (see Section C below).

19. These are the positions which I have taken throughout the Court’s
considerations of the present case, and I regret that the Judgment has not
taken them into account.

B. Limited Scope of “Legal Disputes” in Article 36, paragraph 2, of the
Statute

1. The justiciability and concept of legal disputes — historical survey

20. Referring to the concept of “legal disputes” in connection with the
function of the International Court of Justice, the following two provisions
may be recalled :

The Charter of the United Nations, Article 36, paragraph 3

“In making recommendations under this Article the Security Coun-
cil should also take into consideration that legal disputes should as a
general rule be referred by the parties to the International Court of

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Justice in accordance with the provisions of the Statute of the
Court.”

The Statute of the International Court of Justice, Article 36,
Paragraph 2

“The States parties to the present Statute may at any time declare
that they recognize as compulsory ipso facto and without special
agreement, in relation to any other State accepting the same obliga-
tion, the jurisdiction of the Court in all legal disputes concerning :

(a) the interpretation of a treaty ;

(b) any question of international law ;

(c) the existence of any fact which, if established, would constitute a
breach of an international obligation ;

(d) the nature or extent of the reparation to be made for the breach of
an international obligation.”

Looking back at the history of the settlement of international disputes by
arbitration or adjudication, one may clearly see that the “legal disputes”
subject to such settlement were limited in scope and, more basically, that
their referral to such a settlement was always to depend ultimately on the
assent of the States in dispute.

(i) The concept of “legal disputes subject to compulsory arbitration” prior
to the institution of the Permanent Court of International Justice

(a) The 1899 and 1907 Conventions for the Peaceful Settlement of
International Disputes

21. Following the precedents set by some arbitration clauses in bilateral
treaties towards the end of the nineteenth century, and by some arbitration
treaties, mainly among countries of the western hemisphere, the 1899
Convention for the Peaceful Settlement of International Disputes pro-
vided that :

“In questions of a legal nature, and especially in the interpretation
or application of international conventions, arbitration is recognized
by the signatory Powers as the most effective and at the same time the
most equitable means of settling disputes which diplomacy has failed
to settle.” (Art. 16.) (The Proceedings of the Hague Peace Conferences
(Translation of the Official Texts), The Conference of 1899, p. 238.)

Referral to arbitration was far from obligatory.

22. The 1899 Convention was amended in this regard at the Second
Peace Conference in 1907 only by the addition of a new paragraph, which
suggested that :

“Consequently, it would be desirable that, in disputes about the
above-mentioned questions, the contracting Powers, if the case arise,

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have recourse to arbitration, in so far as circumstances permit.” (Art.
38.) (The Proceedings of the Hague Peace Conferences (Translation of
Official Texts), The Conference of 1907, Vol. I, p. 605.)

The Second Peace Conference, held in 1907, failed to establish compulsory
arbitration. A project to institute it was put to the vote by the First
Commission but in the end was not found acceptable. The unsuccessful
draft, which would have been added to Article 16 of the 1899 Convention,
sought to provide that :

“Differences of a legal nature, and especially those relating to the
interpretation of treaties existing between two or more of the
contracting States, which may in future arise between them, and
which it may not have been possible to settle by diplomacy, shall be
submitted to arbitration, provided, nevertheless, that they do not
affect the vital interests, the independence or the honor of any of the
said States, and do not concern the interests of other States not
involved in the dispute.” (Art. 16a.) ({bid, p. 537.)

23. That project suggested, however, that some differences should be
“by nature subject to arbitration without the reservations mentioned in
Article 16a” (Art. 16c.) (ibid), and enumerated as such the following
differences :

“I. Disputes concerning the interpretation and application of con-
ventional stipulations relating to the following subjects :

. Reciprocal free aid to the indigent sick.
. International protection of workmen.

. Means of preventing collisions at sea.

. Weights and measures.

. Measurement of ships.

. Wages and estates of deceased seamen.
. Protection of literary and artistic works.

SA nABWN

II. Pecuniary claims for damages, when the principle of indemnity
is recognized by the parties.” (Art. 164) (Ibid)

A suggestion was also made for a protocol enumerating “such other mat-
ters . .. to admit of embodiment in a stipulation respecting arbitration
without reserve . . . on condition of reciprocity” (Art. 16e) (ibid.). The
British delegate accordingly proposed a protocol, with an annexed table
listing the following subjects :

“1. Pecuniary claims for damages, when the principle of indemnity is
recognized by the parties.
2. Reciprocal free aid to the indigent sick.
3. International protection of workmen.

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223 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. ODA)

Means of preventing collisions at sea.

Weights and measures.

Measurement of vessels.

Wages and estates of deceased seamen.

Protection of literary and artistic works.

Governance of commercial and industrial companies.
Pecuniary claims arising from acts of war, civil war, arrest of
foreigners, or seizure of their property.

SOWNIAAS

11. Sanitary regulations.
12. Equality of foreigners and nationals as to taxes and imposts.

13. Customs tariffs.

14. Regulations concerning epizooty, phylloxera, and other similar
pestilences.

15. Monetary systems.

16. Rights of foreigners to acquire and hold property.

17. Civil and commercial procedure.

18. Pecuniary claims involving the interpretation or application of
conventions of all kinds between the parties in dispute.

19. Repatriation conventions.

20. Postal, telegraph, and telephone conventions.

21. Taxes against vessels, dock charges, lighthouse and pilot dues,
salvage charges and taxes imposed in case of damage or ship-
wreck.

22. Private international law.” (Art. 16e) (The Proceedings of the
Hague Peace Conferences (Translation of Official Texts), The Con-
ference of 1907, Vol. I, p. 539.)

Thus we see that, despite the aim of compulsory referral to arbitration, the
project, on the one hand, embodied a reservation that the disputes con-
cerned

“do not affect the vital interests, the independence or the honor of any
of the said States, and do not concern the interests of other States not
involved in the dispute”

and, on the other hand, enumerated a limited number of extremely tech-
nical and preponderantly non-political subjects of dispute as constituting
those which the parties would unreservedly agree to submit to arbitra-
tion.

24. The project itself was not put to the vote at the plenary meeting and I
do not need to repeat that the result of the 1907 Conference was far from
successful, at least from the point of view of obligatory arbitration. It is,
however, important to note that even in that project only a narrowed
selection of the “differences of a legal nature, and especially those relating
to the interpretation of treaties” — a selection restricted to predominantly

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224 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. ODA)

technical matters — was suggested as falling within the ambit of compul-
sory arbitration. Hence it is clear that even the more idealistic drafters were
inclined to consider that the “justiciable dispute” should be so restricted as
to cover only some highly technical or procedural issues.

(b) Justiciable disputes in arbitration treaties early in this century

25. Four years after the 1899 Convention, but before the 1907 Second
Peace Conference, the bilateral treaty of 1903 between France and Great
Britain attracted the interest of the world as the first European step
towards the compulsory referral of international disputes to settlement by
arbitration, and this was followed by eight similar treaties concluded prior
to 1907, to which in the main either Great Britain or France was a party.
The number of similar bilateral treaties of arbitration concluded from 1907
to the 1920s amounts to 29. Unlike the multilateral treaty of 1899, this
bilateral model set up a binding norm for the two contracting parties with
regard to compulsory referral of some types of dispute to the Permanent
Court of Arbitration. The 1903 treaty states that “differences which may
arise of a legal nature, or relating to the interpretation of Treaties existing
between the two Contracting Parties”, should be referred to the Permanent
Court of Arbitration (Art. I). The conditions for compulsory referral were
restricted by the proviso in each treaty that :

“(the disputes] do not affect the vital interests, the independence, or
the honour of the two Contracting States, and do not concern the
interests of third Parties” (Art. I) (British and Foreign State Papers,
Vol. XCVI, p. 35).

This famous clause of four reservations concerning vital interests, inde-
pendence, honour and third party interests to be attached to compulsory
arbitration, which, as stated above, was also later incorporated in the 1907
project at the Hague Conference, commenced with the 1903 Treaty. It is to
be further noted that in each individual case the conclusion of a special
agreement was a prerequisite for

“defining clearly the matter in dispute, the scope of the powers of the
Arbitrators, and the periods to be fixed for the formation of the
Arbitral Tribunal and the several stages of the procedure” (Art.
II).

26. In 1911 the United States Government concluded with Great Bri-

tain and France respectively the General Arbitration Treaties, which pro-
vided that :

“All differences hereafter arising between the high contracting
parties . . . relating to international matters in which the high
contracting parties are concerned by virtue of a claim of right made by

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one against the other under treaty or otherwise, and which are justi-
ciable in their nature by reason of being susceptible of decision by the
application of the principles of law or equity, shall be submitted to the
Permanent Court of Arbitration... or to some other arbitral tribunal
as may be decided in each case by special agreement . . .” (Art. 1)
(American Journal of International Law, Supplement, Vol. V, pp. 253,
249.)

These treaties provided that, in cases where the parties disagreed as to
whether a difference was subject to arbitration under the treaty concerned,
the question should be submitted to a joint high commission of inquiry,
and that, if all, or all but one, of the members of that commission decided
the question in the affirmative, the case should be settled by arbitration
(Art. 3). These treaties would have been highly progressive from the
standpoint of the compulsory settlement of disputes, but they failed to
secure the approval of the United States Senate, in particular because of
the extremely novel concept of the determination of the jurisdiction of the
tribunal by a third body. Yet one more attempt to institute compulsory
arbitration had thus failed.

(li) Justiciable and non-justiciable disputes under the Covenant of the
League of Nations and the Statute of the Permanent Court of Inter-
national Justice

(a) The Covenant of the League of Nations

27. Plans for the post-war institution were being prepared from 1918
onwards. The peaceful settlement of international disputes was one of the
main issues, and it was always considered that, while some disputes might
be suitable for settlement by arbitration, others might be more properly
dealt with by that worldwide institution or through conciliation by an
organ to be set up by that institution. One of the earliest plans, proposed by
Lord Phillimore in 1918, identified, in particular, four types of dispute
suitable for settlement by arbitration, i.e., disputes concerning “the inter-
pretation of a treaty”, “any question of international law”, “the existence
of any fact which if established would constitute a breach of any inter-
national obligation” or “the nature and extent of the reparation to be made
for any such breach”, and suggested the provision reading that “arbitra-
tion is recognized by the Allied States as the most effective and at the same
time the most equitable means of settling the dispute” (David Hunter
Miller, The Drafting of the Covenant, Vol. XX, p. 4). General Smuts, British
delegate at the Paris Peace Conference, referring to “the two classes of
justiciable and other disputes”, also mentioned these four types of dispute
(ibid., p. 56). Reference to the four types was maintained throughout
several plans for the future institution of the worldwide organization.

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28. The Commission on the League of Nations, set up by the prelimi-
nary conference to study the constitution of the League of Nations, com-
menced its work on 3 February 1919. The draft covenant, including some
provisions concerning dispute settlement (Arts. 10-13) was presented. The
basic idea was that the high contracting parties should “in no case resort to
armed force without previously submitting the questions and matters
involved, either to arbitration or to enquiry by the Executive Council”
(Art. 10), and a provision was proposed :

“Article 11, The High Contracting Parties agree that whenever any
dispute or difficulty shall arise between them which they recognise to
be suitable for submission to arbitration, and which cannot be satis-
factorily settled by diplomacy, they will submit the whole subject
matter to arbitration . . .” (Miller, op. cit., p. 234.)

The idea of establishing a Permanent Court of International Justice was
also suggested in this draft covenant (Art. 12).

29. At the second reading of the text, on 24 March 1919, Lord Robert
Cecil, intending “to draw a distinction between justiciable and non-justi-
ciable disputes” (David Hunter Miller, The Drafting of the Covenant,
Vol. Il, p. 348), suggested an alternative sentence which in fact had pre-
viously been proposed by Lord Phillimore more than a year earlier. Lord
Robert Cecil’s suggestion read :

“If a dispute should arise between the States members of the
League as to the interpretation of a Treaty, as to any question of any
international law, as to the existence of any fact which, if established,
would constitute a breach of any international obligation, or as to the
extent and nature of the reparation to be made for any such breach, if
such dispute cannot be satisfactorily settled by diplomacy, the States
members of the League recognise arbitration to be the most effective
and at the same time the most equitable means of settling the dispute ;
and they agree to submit to arbitration any dispute which they
recognise to be of this nature.” (/bid., p. 352.)

On 10 April, examining the draft covenant as amended by the Drafting
Committee, Lord Robert Cecil again stated that

“it was difficult to lay down a strict rule. For example, one could not
say that the question of the interpretation of a Treaty should be
submitted to arbitration in every instance. It might happen that such
an interpretation would involve the honour or the essential interests of
a country. In such a case the question should rather be submitted to
examination by the Council of the League. It would be dangerous for
the future of the principle of arbitration to impose it too strictly in a
great number of cases.” (/bid., p. 378.)

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227 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. ODA)

The final version of the draft covenant was adopted at the last meeting of
the Commission on 11 April 1919.

30. The Covenant of the League of Nations contained, with regard to
the arbitration or judicial settlement of international disputes, the follow-
ing provisions ! :

“Article 12

1. The Members of the League agree that if there should arise
between them any dispute likely to lead to a rupture, they will submit
the matter either to arbitration * or to inquiry by the Council . . .

Article 13

1. The Members of the League agree that whenever any dispute
shall arise between them which they recognise to be suitable for
submission to arbitration * and which cannot be satisfactorily settled
by diplomacy, they will submit the whole subject-matter to arbitra-
tion *.

2. Disputes as to the interpretation of a treaty, as to any questions
of international law, as to the existence of any fact which if established
would constitute a breach of any international obligation, or as to the
extent and nature of the reparation to be made for any such breach,
are declared to be among those which are generally suitable for
submission to arbitration *.”

On 28 April, at the Peace Conference, President Wilson of the United
States explained that :

“The second paragraph of Article XIII is new, inasmuch as it
undertakes to give instances of disputes which are generally suitable
for submission to arbitration, instances of what have latterly been
called ‘justiciable’ questions.” (David Hunter Miller, The Drafting of
the Covenant, Vol. I, p. 700.)

Thus the League of Nations came to declare that the four types of dispute
which Lord Phillimore had originally suggested were generally suitable for
submission to arbitration.

(b) The Statute of the Permanent Court of International Justice

31. Meeting at The Hague, the Committee of Jurists set up pursuant to
the first (unquoted) sentence of Article 14 prepared a draft scheme for the
institution of the Permanent Court of International Justice which, bor-
rowing the concept of the four types of dispute, provided for the jurisdic-
tion of the Court as follows :

' The words “or judicial settlement” were inserted after the asterisks in 1924 fol-
lowing the establishment of the Permanent Court of International Justice anticipated
and referred to in Article 14.

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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. ODA)

“Article 34

Between States which are Members of the League of Nations, the
Court shall have jurisdiction (and this without any special convention
giving it jurisdiction) to hear and determine cases of a legal nature,
concerning :

(a) the interpretation of a treaty ;

(b) any question of international law ;

(c) the existence of any fact which, if established, would constitute a
breach of an international obligation ;

(d) the nature or extent of reparation to be made for the breach of an
international obligation ;

(e) the interpretation of a sentence passed by the Court.

The Court shall also take cognisance of all disputes of any kind
which may be submitted to it by a general or particular convention
between the parties.

In the event of a dispute as to whether a certain case comes within
any of the categories above mentioned, the matter shall be settled by
the decision of the Court.” (P.CLJ., Advisory Committee of Jurists,
Procès-Verbaux of the Proceedings of the Committee, p. 679.) (Empha-
sis added.)

32. The view advanced by the Committee of Jurists encountered objec-
tions from several delegates at the Council of the League of Nations, which
dealt with the draft scheme in the course of its sessions from February to
October 1920. They argued that, even if States admitted compulsory
jurisdiction in the cases laid down in the suggested article, they might not
go so far as to admit that any question of international law without exception
could be submitted to the Court. The report presented by the French
representative, Léon Bourgeois, on 27 October 1920 at the 10th Session of
the Council in Brussels, read in part :

218

“We do not think it necessary to discuss here the advantages which
would result from the system of compulsory jurisdiction proposed by
the Committee of Jurists with regard to the good administration of
international justice and the development of the Court’s authority.
But as in reality a modification in Articles 12 and 13 of the Covenant is
here involved, the Council will, no doubt, consider that it is not its
duty, at the moment when the General Assembly of the League of
Nations is about to meet for the first time, to take the initiative with
regard to proposed alterations in the Covenant, whose observance
and safe keeping have been entrusted to it.

At the present moment it is most important in the interests of the
authority of the League of Nations that differences of opinion should
not arise at the very outset with regard to the essential rules laid down
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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. ODA)

in the Covenant...” (League of Nations, P.C.L.J/., Documents con-
cerning the action taken by the Council of the League of Nations under
Article 14 of the Covenant, p. 47.)

Léon Bourgeois suggested that in the Hague draft scheme the Council
replace Articles 33 and 34 by a new text, which was eventually adopted by
the Council, as follows :

“Article 33

The jurisdiction of the Court is defined by Articles 12, 13 and 14 of
the Covenant.

Article 34

Without prejudice to the right of the Parties, according to Article 12
of the Covenant, to submit disputes between them either to judicial
settlement or arbitration or to enquiry by the Council, the Court shall
have jurisdiction (and this without any special agreement giving it
jurisdiction) to hear and determine disputes, the settlement of which is
by Treaties in force entrusted to it or to the tribunal instituted by the
League of Nations.” (Jbid., p. 47.)

33. While the Assembly was meeting from 24 November to 7 December
1920 a subcommittee of its Third Committee made a detailed study of the
draft scheme of the Court and suggested :

“Whatever differences of opinion there may be on the interpreta-
tion of the Covenant with regard to the acceptance of a compulsory
jurisdiction within the scope of its provisions, and upon the political
expediency of adopting an unconditionally compulsory jurisdiction
in international relations, the Sub-Committee was unable to go
beyond the consideration that unanimity on the part of the Members
of the League of Nations is necessary for the establishment of the
Court, and that it does not seem possible to arrive at unanimity except
on the basis of the principles laid down in the Council’s draft.” (bid,
p. 210.)

The subcommittee devised in fact a modified text intended to formulate as
clearly as possible the following ideas :

219

“1. The jurisdiction of the Court is in principle based upon an
agreement between the Parties. This agreement may be in the form of
a special Convention submitting a given case to the Court, or of a
Treaty or general Convention embracing a group of matters of a
certain nature.

2. With regard to the right of unilateral arraignment contemplated
in the words (‘and this without any special agreement giving it juris-
diction’) in the Council’s draft, the Sub-Committee, by deleting these
words, has not changed the meaning of the draft. In conformity with
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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. ODA)

the Council’s proposal, the text prepared by the Sub-Committee
admits this right only when it is based on an agreement between the
Parties. In the Sub-Committee’s opinion, the question must be settled
in the following manner : If a Convention establishes, without any
reservation, obligatory jurisdiction for certain cases or for certain
questions (as is done in certain general arbitration treaties and in
certain clauses of the Treaties of Peace dealing with the rights of
minorities, labour, etc.) each of the Parties has, by virtue of such a
treaty, the right to have recourse without special agreement (com-
promis) to the tribunal agreed upon. On the other hand, if the general
Convention is subject to certain reservations (‘vital interests’, ‘inde-
pendence’, ‘honour’, etc.), the question whether any of these are
involved in the terms of the Treaty, being for the Parties themselves to
decide, the Parties cannot have recourse to the International Tribunal
without a preliminary agreement (compromis) . . .” (League of Nations,
P.C.L.J., Documents concerning the action taken by the Council of the
League of Nations under Article 14 of the Covenant, p. 211.)

The draft scheme prepared by the Council was amended by the subcom-
mittee as follows :

“Article 36 (Brussels, Art. 33)

The jurisdiction of the Court comprises all cases which the Parties
refer to it and all matters specially provided for in treaties and con-
ventions in force.

Article 37 (Brussels, Art. 34)

When a treaty or convention in force provides for the reference of a
matter to a tribunal to be instituted by the League of Nations, the
Court will be such tribunal.” (/bid., p. 218.)

34. In the course of the deliberations of the Third Committee of the
First Assembly, however, Mr. Fernandes, the Brazilian delegate, intro-
duced the text adopted by the Committee of Jurists but abandoned by the
Council (quoted in para. 31 above), which was accompanied by a tem-
porary provision reading :

“Article

In ratifying the Assembly’s decision adopting this Statute, the
Members of the League of Nations are free to adhere to either of the
two texts of Article 33. They may adhere unconditionally or condi-
tionally to the Article providing for compulsory jurisdiction, a pos-
sible condition being reciprocity on the part of a certain number of
Members, or of certain Members, or, again, of a number of Members
including such and such specified Members.” (/bid., p. 168.)

This proposal was adopted with some amendments. The Third Committee

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231 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. ODA)

reported in connection with Article 36 that a new provision had been
added which :

“gives power to choose compulsory jurisdiction either in all the ques-
tions enumerated in the Article or only in certain of these questions.
Further, it makes it possible to specify the States (or Members of the
League of Nations) in relation to which each Government is willing to
agree to a more extended jurisdiction.” (/bid., p. 222.)

35. The text as amended by the Third Committee at its last session, on
10 December 1920, was finally adopted, with further slight changes, as
Article 36 of the Statute of the Permanent Court of International Justice.
Thus the Statute read, in part :

“Article 36

... The Members of the League of Nations... may... declare that
they recognize as compulsory ipso facto and without special agreement
... the jurisdiction of the Court in all or any of the classes of legal
disputes concerning :

(a) the interpretation of a treaty ;

(b) any question of international law ;

{c) the existence of any fact which, if established, would constitute a
breach of an international obligation ;

{d) the nature or extent of the reparation to be made for the breach of
an international obligation.” (Emphasis added.)

While the Covenant of the League of Nations declared, in general terms,
that “disputes” as enumerated “are generally suitable for submission to
arbitration”, the Statute of the Permanent Court of International Justice
provided for optional acceptance of the Court’s jurisdiction for “legal
disputes concerning” the four categories specified in the Covenant.

(ili) The concept of justiciable disputes subsequent to the inception of the
Permanent Court of International Justice

36. In the post-war period, particularly during a decade beginning with
the mid-1920s, a great number of bilateral treaties were concluded to unify
the procedure of conciliation with the submission of various kinds of
international dispute to arbitration or to the newly established Permanent
Court of International Justice. In October 1925, at Locarno, Switzerland,
where a treaty of mutual guarantee aimed at maintaining the territorial
status quo resulting from the adjustment of the western frontiers of
Germany was initialled, Germany negotiated arbitration treaties with
Belgium, Czechoslovakia, France and Poland, respectively, in which it was
stated that :

“All disputes of every kind between Germany and [the parties] with
regard to which the Parties are in conflict as to their respective rights

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232 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. ODA)

... Shall be submitted for decision either to an arbitral tribunal or to
the Permanent Court of International Justice . . .” (Art. I.) (League of
Nations Treaty Series, Vol. 54, p. 304.)

The disputes were to “include in particular those mentioned in Article 13
of the Covenant of the League of Nations” (Art. 1) and be submitted — but
only by means of a special agreement — either to the Permanent Court of
International Justice or to an arbitral tribunal (Art. 16).

37. Originating with the Committee on Arbitration and Security which
the Preparatory Committee of the Disarmament Conference established in
November 1927, the General Act for Pacific Settlement of International
Disputes was approved by the Ninth Assembly of the League of Nations in
1928 as a compendium of the results produced by a number of bilateral
arbitration or conciliation treaties. As to judicial recourse, it was agreed
that “All disputes with regard to which the parties are in conflict as to their
respective rights” should be submitted for decision to the Permanent Court
of International Justice. It was understood, however, that these disputes
would “include in particular those mentioned in Article 36 of the Statute of
the Permanent Court of International Justice” (Art. 17) (League of Nations
Treaty Series, Vol. 93, p. 351).

38. The arbitration treaties concluded by the United States in the years
1928-1930 with as many as 25 countries provided for the submission to the
Permanent Court of Arbitration or to some other competent tribunal
of :

“all differences relating to international matters in which the high
contracting parties are concerned by virtue of a claim of right made by
one against the other under treaty or otherwise . . . which are jus-
ticiable in their nature by reason of being susceptible of decision
by the application of the principles of law or equity” (Art. I)
(The American Journal of International Law, Supplement, Vol. 23,
p. 197).

A special agreement for the submission was first to be made by the parties
in each case. In 1929 the United States concluded at Washington with 19
Latin American States the General Treaty of Inter-American Arbitration,
which belonged to the same type in providing for the obligation of the
contracting parties to submit to arbitration :

“all differences of an international character which have arisen or may
arise between them by virtue of a claim of right made by one against
the other under treaty or otherwise . . . which are juridical in their
nature by reason of being susceptible of decision by the application of
the principles of law” (Art. I) (League of Nations Treaty Series,
Vol. 130, p. 140).

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233 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. ODA)

The Treaty also provided that the “questions of juridical character”
(Art. 1) would include four types of dispute specified in Article 13, para-
graph 2, of the Covenant of the League of Nations. The formulation of a
special agreement, to be concluded in each case, was to define the parti-
cular subject-matter of the controversy (Art. 4).

(iv) Legal disputes found suitable for settlement by the International Court
of Justice

39. The United Nations set up the International Court of Justice as “the
principal judicial organ of the United Nations” to “function in accordance
with the annexed Statute” (Charter, Art. 92), but the principal responsi-
bility for the maintenance of international peace and security is entrusted
to the Security Council, which should as a final resort handle a dispute the
continuation of which is likely to endanger the maintenance of interna-
tional peace and security, while taking cognizance of the consideration that
“legal disputes” should as a general rule be referred by the parties to the
International Court of Justice (Charter, Art. 36, para. 3).

40. The 1945 Statute of the present Court, the relevant provision of
which is quoted above (para. 20), follows the pattern of the previous Court
except that declarations may be made accepting the jurisdiction of the
Court “in all legal disputes concerning. . .” (Art. 36, para. 2), not “in all or
any of the classes of legal disputes concerning . . .”, and that the Optional
Clause attached to the protocol of signature of the previous Statute was
incorporated in the new Statute (Art. 36, paras. 3 and 4). All that the
dropping of the reference to “classes” of legal dispute indicates is a reali-
zation of the redundancy of this vague expression, while the relocation of
the Optional Clause is but a corollary of the permanent integration of the
Court and its Statute into the system of the Charter. Consequently, any
suggestion that the present Court possesses a wider jurisdiction than its
predecessor ratione materiae must depend on an assumed evolution in the
meaning of the term “legal disputes”.

”

2. The difficulty of viewing the present case as concerning a “legal dispute
within the meaning of the Statute

(i) In general

41. The above survey of the developments behind the provision of
Article 36, paragraph 2, of the Statute of the International Court of Justice
leads me to the following observations.

42. First, the term “legal disputes” was defined in some instruments as
referring to those disputes which arise

“by virtue of a claim of right made by one against the other under
treaty or otherwise [and] which are juridical in their nature by reason

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234 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. ODA)

of being susceptible of decision by the application of the principles of
law” (e.g., the 1911 General Arbitration Treaties),

or in other cases as those “with regard to which the Parties are in conflict as
to their respective rights” (e.g., the 1925 Locarno Treaties ; the 1928
General Act). These definitions should not be overlooked or made light of
in interpreting the term “legal disputes” as used in the Statute.

43. Secondly, the well-known reservations in the 1903 Anglo-French
Treaty concerning vital interests, independence, honour and third-party
interests in connection with referral to arbitration disappeared with the
League of Nations. However, this was only because disputes involving
such considerations were thenceforth to be submitted for examination by
the Council, the League’s pre-eminently political organ. In the United
Nations system, it is likewise the Security Council which is entrusted with
the ultimate function for the peaceful settlement of any dispute the con-
tinuance of which is likely to endanger the maintenance of international
peace and security.

44, Thirdly, it should be recalled that, while the draft prepared by the
Hague Committee of Jurists was being discussed at the Brussels Council,
the suggestion of the compulsory referral of disputes over any point of
international law met with opposition, as reflected in Léon Bourgeois’s
report, part of which read :

“If this view advanced by the Jurisconsults at The Hague is adopted
without modification, a considerable advance has certainly been
made, in view of the terms of Article 34. What must be understood,
then, by the expression ‘any point of international law’ ? Even if the
States admitted the compulsory jurisdiction in the cases definitely laid
down in the Article, will they consent to go so far as to admit that any
question of international law may be submitted to the Court ? Objec-
tions of this nature have been raised by several Governments, which
have forwarded us their remarks on the draft scheme.” (League of
Nations, P.C.L.J., Documents concerning the action taken by the Council
of the League of Nations under Article 14 of the Covenant, pp. 46-47.)

45. Fourthly, it is important to note that at the First Assembly of the
League of Nations the proposal for the compulsory referral of “legal
disputes” to arbitration was declared acceptable subject to its voluntary
acceptance by each State, as witness the eventual Article 36 of the Statute.
It follows that, despite the provision of the Statute that determination of the
Court’s jurisdiction should in case of doubt be in the hands of the Court
(Art. 36 (6)), it is to be assumed that when voluntarily accepting compul-

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235 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. ODA)

sory jurisdiction a State (the United States in this case) will not only have
had in mind its own concept of what should constitute a justiciable “legal
dispute” under Article 36, paragraph 2, of the Statute but may legitimately
entertain expectations that that concept will if necessary be elicited and
respected by the Court.

(ii) Precedents in the previous and present Courts

46. Previous opportunities for testing this assumption have been almost
non-existent, as may be demonstrated by a survey of the past practice
regarding the submission of a case under the Optional Clause of the
Statutes of the previous and present Courts. Of more than 20 contentious
cases during the period of the Permanent Court of International Justice,
the cases which were brought to the previous Court relying on Article 36,
paragraph 2, numbered only seven, among which three cases — Denun-
ciation of the Treaty of 2 November 1865 between China and Belgium,
Losinger and Legal Status of the South-Eastern Territory of Greenland —
were eventually withdrawn, and the Electricity Company of Sofia and
Bulgaria case was not concluded because of the Second World War. Legal
Status of Eastern Greenland, Phosphates in Morocco and Panevezys-Saldu-
tiskis Railway were the only such cases to have remained before the pre-
vious Court, and in the first of these Denmark, the respondent Party, raised
no objection to the Court’s jurisdiction. The objections raised in the other
two were merely procedural in character ; the previous Court, recognizing
the objection of the Respondents, declared the applications in both cases
inadmissible. There was no single case before the previous Court in which
judgment on the merits was given against a challenge by a Respondent to
the Court’s jurisdiction under the Optional Clause of the Statute.

47. Of the ten cases brought before the present Court under Article 36,
paragraph 2, prior to the present case, there were three in which objections
regarding jurisdiction and admissibility were not raised by the Respon-
dent: Fisheries, Rights of Nationals of the United States of America in
Morocco and Application of the Convention of 1902 Governing the Guar-
dianship of Infants. In the remaining seven cases : Anglo-Iranian Oil Co.
Nottebohm, Certain Norwegian Loans, Right of Passage over Indian Terri-
tory, Interhandel, Aerial Incident of 27 July 1955 and Temple of Preah
Vihear, the jurisdiction of the Court was disputed only for reasons of a
procedural nature. The Court, after having rejected the preliminary objec-
tions raised by the Respondents, has proceeded on the merits only in the
following three cases : Nottebohm, Right of Passage over Indian Territory
and Temple of Preah Vihear. In these cases, the objections raised by the
Respondents were of a procedural nature not related to the substantive
justiciability of the dispute. Prior to the present case, therefore, there has
never been an Article 36, paragraph 2, case before either the previous or the
present Court where justiciability was doubtful because of the substantive
nature of the dispute.

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236 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. ODA)
(iii) Conclusion

48. In consequence, the fact that the Court or its predecessor enter-
tained a handful of previous cases submitted on the basis of Article 36,
paragraph 2, of the Statute affords absolutely no ground for concluding
that voluntary acceptance of the obligation for submission of legal dis-
putes to the Court’s jurisdiction under that Article equates with the sub-
mission of all disputes however politically charged they may be. The
United States, though having voluntarily accepted the Optional Clause,
appears to be of the view that the present dispute does not fall within the
meaning of what is a “legal dispute” under Article 36, paragraph 2. Even if
it did not explicitly contend this during the proceedings on jurisdiction,
which were largely devoted to the jurisdictional position of the Applicant,
its reliance on the “ongoing armed conflict” argument furnished a clear
indication that the Respondent viewed the dispute as “not susceptible of
decision by the application of the principles of law” — or, in other words,
that the sense of “legal dispute” had not evolved so far as to embrace the
subject-matter of the application. Whether this view is right or wrong is
beside the point in considering a voluntary acceptance of jurisdiction.

49. Insum, the Court should note that the meaning of “legal disputes” is
not to be taken separately from the fact that the Court’s jurisdiction over
“legal disputes” can only be accepted voluntarily. The Court is at present
not in a position, as it was in the Aegean Sea Continental Shelf case, to
apply an extended concept of the law, one not contemplated at the time of
the filing of the declaration, because by doing so it would risk imposing its
jurisdiction in contravention of the voluntary character of that instrument,
whereas in the case referred to it did so in order to be quite sure of
respecting that character in the case of the Respondent’s declaration.

C. Considerations of Judicial Propriety that Should Have Dissuaded the
Court from Pronouncing on the Nicaraguan Application on the Basis of
Article 36, Paragraph 2, of the Statute

1. The Court should not have adjudged the Application because of the con-
siderations of administration of justice — a preliminary issue

50. Even if the foregoing argument (Section B above) is not considered
well founded, and if the present dispute is regarded as a “legal dispute”
under Article 36, paragraph 2, of the Statute from the procedural point of
view, I still believe that “Judicial propriety” provides another prudential
ground for concluding that the Nicaraguan Application as based on that

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provision should be declared by the Court as non-justiciable and hence as
inadmissible.

51. I do not deny that once a judicial institution is duly seised of a
dispute which is not primarily legal, that dispute may be held justiciable, as
a matter of principle. In many systems of domestic law, non liquet is
generally rejected, even if a directly applicable rule of law is lacking, and a
judicial court, in relying on the exclusion of non liquet, is in theory able to
pass judgment. The French Civil Code of 1804 states :

“Le juge qui refusera de juger sous prétexte du silence, de l'obscu-
rité ou de l'insuffisance de la loi, pourra être poursuivi comme cou-
pable de déni de justice.” (Art. 4.) (Code civil des Français, édition
originale et seule officielle, 1804, p. 2.)

Speaking of English law, Sir Frederick Pollock in his note on Maine’s
Ancient Law stated :

“[English judges] are bound to find a decision for every case,
however novel it may be ; and that decision, so far as it goes beyond
drawing inferences of fact, will be authority for other like cases in
future ; therefore it is part of their duty to lay down new rules if
required. Perhaps this is really the first and greatest rule of our
customary law.” (Maine, Ancient Law, with introduction and notes by
Sir Frederick Pollock, 1906, p. 48.)

$2. In the case of international law, the Statute of the Permanent Court
of International Justice introduced the clause “the general principles of
law recognized by civilized nations” mainly to avoid a non liquet resulting
from the lack of any positive rules. The Model Rules on Arbitral Procedure
prepared by the International Law Commission in 1958 state that “the
tribunal may not bring in a finding of non liquer on the ground of the silence
or obscurity of the law to be applied” (Art. 11) (Yearbook of the Interna-
tional Law Commission, 1958, Vol. IL, p. 84). Here it is important to note
that the exclusion of non liquet is connected with the absence of an alter-
native forum.

53. It is definitely not my intention to have the Court declare, as a
matter of principle, that disputes relating to use of force or intervention are
non-justiciable, nor to contend that the Court is incapable of dealing with
the present dispute once it is properly entertained. Yet my opinion is that
the fact that the Court can entertain a case once it is properly seised is a
different matter from the suggestion that the Court must exercise juris-
diction. Let me quote a well-known passage from the 1963 Judgment in the
case concerning the Northern Cameroons :

“In its Judgment of 18 November 1953 on the Preliminary Objec-
tion in the Nottebohm case . . . the Court had occasion to deal at some

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238 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. ODA)

length with the nature of seisin and the consequences of seising the
Court. As this Court said in that Judgment : ‘the seising of the Court is
one thing, the administration of justice is another’. It is the act of the
Applicant which seises the Court but even if the Court, when seised,
finds that it has jurisdiction, the Court is not compelled in every case
to exercise that jurisdiction. There are inherent limitations on the
exercise of the judicial function which the Court, as a court of justice,
can never ignore. There may thus be an incompatibility between the
desires of an applicant, or, indeed, of both parties to a case, on the one
hand, and on the other hand the duty of the Court to maintain its
judicial character. The Court itself, and not the parties, must be the
guardian of the Court’s judicial integrity.” (CJ. Reports 1963,
p. 29.)

54. It must be added that the Court should not allow any sentiment that
States ought to accept its jurisdiction to affect its perception of the volun-
tary nature of such acceptance or its caution not to overstep the limits of
individual acts of acceptance. Thus, for example, the phenomenon of the
so-called self-judging reservation may be objectively dubious and deplor-
able, but it must nonetheless be respected as a symptom of the importance
attached by the declarant State to the voluntary character of its submission
to the Court. It therefore behoves the Court to exercise that caution with
special care in dealing with States that have made such reservations — and
the United States is notoriously one. In pointing this out, however, I must
not be understood as suggesting that the subject-matter of the present case
belongs in any way to the exclusive domestic jurisdiction of that country ;
clearly it does not, and the United States has not maintained that it
does.

2. The concept of the non-justiciable “political dispute” — parallelism of legal
and political disputes

55. As stated above (sec. B,1), it has throughout this century been con-
sidered that any dispute which a State was prepared voluntarily to sub-
mit to judicial settlement should be one where the parties are in conflict
as to their respective rights, or where differences arise by virtue of a claim
of right made by one against the other ; and disputes such as the present
one, at least where it concerns allegations of threat or use of force and
intervention, have not been deemed to fall into this category. The distinc-
tion between “legal” and “non-legal” (or political) is certainly vague
inasmuch as, on the one hand, a legal dispute may eventually give rise to
political friction and tension and, on the other, any political dispute is
almost bound to contain certain aspects of a legal nature : yet in the
60-year history of the past and present Courts, issues regarding matters of
an overwhelmingly political nature have never been dealt with by way of
adjudication before the Court on the basis of Article 36, paragraph 2, of the
Statute.

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56. The drafters of the Covenant of the League of Nations were well
aware that those disputes which could have been excluded from the Court’s
jurisdiction in terms of the well-known four reservations of the 1903 Treaty
could more properly be disposed of in the international political field, not
by a neutral third party, but by a highly political organ such as the Council,
as rightly pointed out by Lord Robert Cecil at the drafting of the Covenant
of the League of Nations, when he stated that :

“One could not say that the question of the interpretation of a
Treaty should be submitted to arbitration in every instance. It might
happen that such an interpretation would involve the honour or the
essential interests of a country. In such a case the question should
rather be submitted to examination by the Council of the League.”
(David Hunter Miller, The Drafting of the Covenant, Vol. I,
p. 378.)

The League of Nations accordingly initiated a means of having its supreme
political organ, that is, the Council, offer a conciliation procedure for the
fundamental frictions and tensions existing among nations, apart from
some differences of view over certain specific items covered by the terms
“disputes as to the interpretation of a treaty, as to any question of inter-
national law, . . .” (Covenant of the League of Nations, Art. 13,
para. 2).

57. There can be no doubt that this parallelism was essentially main-
tained by the United Nations. While Article 36 of the United Nations
Charter states that “legal disputes should as a general rule be referred by
the parties to the International Court of Justice”, this certainly should not
be interpreted as implying that the term “legal disputes” covers disputes
which are non-justiciable because of their overwhelmingly political nature.
In other words, it is normal to assume that the term “legal disputes” refers
to disputes whose primary characteristic it is to be “legal”. Otherwise —
since practically every dispute has a “legal” aspect as at least a secondary
characteristic — there would have been no reason to include the word
“legal” in the provision. Furthermore, the qualifying phrase “as a general
rule” serves to stress the necessity of not jumping to the conclusion that the
presence of a legal element in a dispute attracts the application of the
provision. For it is well known that the phrase in question, just like “in
principle”, functions as a pointer to the possibility of exceptions and
borderline cases. Moreover, it may be observed that, in practice, the parties
to international legal disputes do not, as a general rule, refer them to the
Court, while, for its part, the Security Council has almost invariably failed
to make recommendations for such referral ; this may be deplored, but
should not be ignored as an indication of the relative cogency of the
rule.

58. Under the United Nations system, where the maintenance of inter-
national peace and security falls within the functions of the Security

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Council, resort to force as a means of self-defence is permissible only until
such time as the Security Council has taken the necessary measures, and
any measures taken by the member State in the exercise of its right of
self-defence must be reported immediately to the Security Council. This
would mean, in my view, that a dispute in which use of force is resorted to is
in essence and in limine one most suitable for settlement by a political
organ such as the Security Council, but is not necessarily a justiciable
dispute such as falls within the proper functions of the judicial organ.

59. I certainly am not suggesting any principle that, once a dispute has
been brought before the Security Council, or considered through regional
negotiations, it cannot or should not be dealt with by the Court. The 1984
Judgment was quite correct in stating that “the fact that the matter is
before the Security Council should not prevent it being dealt with by the
Court and both proceedings could be pursued pari passu” U.C.J. Reports
1984, p. 433). Yet the international community, or the States Members of
the League of Nations or the United Nations, have always been aware that
certain disputes are more properly resolved by a means other than judicial
settlement, that is, by the Council in the case of the League of Nations and
the Security Council or the General Assembly in the case of the United
Nations, or by some other means. The parallel scheme pursued under the
League of Nations and the United Nations is surely confirmed by a
scrutiny of the precedents, in the previous and present Courts.

60. The case of United States Diplomatic and Consular Staff in Tehran
has often been referred to as an instance of a highly political issue having
been dealt with by the present Court. Yet the Court then stood seised of the
United States Application not because of the Optional Clause, 1.e., Article
36, paragraph 2, of the Statute, but on the basis of some multilateral and
bilateral treaties to which both Iran and the United States were signatory
parties, thus because of Article 36, paragraph 1, of the Statute. It was
therefore to the subject-matter of those treaties that the Court had to look in
order to determine the admissibility of the Application, and it did not have
to involve itself, for that particular purpose, in any general considerations
of justiciability or propriety.

3. Incomplete picture of the dispute as portrayed by the Court

(i) Lack of sufficient means for fact-finding

61. The subject-matters comprised in the dispute at issue are related to
the resort to force and intervention that the United States has allegedly
undertaken against Nicaragua and to the United States allegation that
these measures have been taken as a means of collective self-defence
against actions of Nicaragua. Yet the picture which the Court has depicted
for the present conflict between the two States seems to be incomplete. The
Judgment hinges to a critical extent on the mere assumptions that, while

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there may have been a flow of arms from Nicaragua to El Salvador prior to
1981, no significant flow of arms has occurred since that time, and that
there has never been any use of force by Nicaragua against El Salvador
amounting, in the Court’s interpretation, to armed attack. The Judgment
States :

“The Court merely takes note that the allegations of arms-traffick-
ing are not solidly established ; it has nor, in any event, been able to
satisfy itself that any continuing flow on a significant scale took place
after the early months of 1981.” (Para. 153.) (Emphasis added.)

“(The Court] can only interpret the lack of evidence of the trans-
border arms-flow in one of the following two ways .. .” (Para. 154.)
(Emphasis added.)

“{T]he Court is satisfied that, between July 1979, the date of the fall
of the Somoza régime in Nicaragua, and the early months of 1981, an
intermittent flow of arms was routed via the territory of Nicaragua to
the armed opposition in El Salvador. On the other hand, the evidence is
insufficient to satisfy the Court that, since the early months of 1981,
assistance has continued to reach the Salvadorian armed opposition
from the territory of Nicaragua on any significant scale, or that the
Government of Nicaragua was responsible for any flow of arms at
either period.” (Para. 160.) (Emphasis added.)

The Court has thus frequently had to admit that the evidence, particularly
concerning the relevant facts attributable to Nicaragua, is not suffi-
cient.

62. The assertions in the Judgment, based on the evidence presented to
the Court, may — or may not — be unchallengeable from the point of view
of the Court’s procedure on evidence. Be that as it may, the materials
available through official publications of the United States Government
suggest completely opposite facts. The 13 May 1983 Report of the Per-
manent Select Committee on Intelligence of the House of Representatives,
presented by Nicaragua as evidence, reiterated its early finding that :

“The insurgents [in El Salvador] are well trained, well equipped
with modern weapons and supplies, and rely on the use of sites in
Nicaragua for command and control and for logistical support.”
(P. 5.)

More concretely, the document Background Paper : Central America of
27 May 1983 stated in section IIT that :

“Throughout 1981, Cuba, Nicaragua and the Soviet bloc aided in
rebuilding, rearming and improving the Salvadoran guerrilla forces,
which expanded their operations in the fall . . . The FMLN head-
quarters in Nicaragua evolved into an extremely sophisticated com-

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mand-and-control center — more elaborate in fact, than that used by
the Sandinistas against Somoza. Guerrilla planning and operations
are guided from this headquarters, where Cuban and Nicaraguan
officers are involved in command and control. The guidance flows to
guerrilla units widely spread throughout El Salvador. The FMLN
headquarters in Nicaragua also coordinates propaganda and logis-
tical support for the insurgents, including food, medicines, clothing,
money and — most importantly — weapons and ammunition.”
(P. 6.)

“During the first 3 months of 1982, arms shipments into El Sal-
vador surged. Cuban-Nicaraguan arms flowed through Honduras
into El Salvador by sea, air, and overland routes. In February, for
example, Salvadoran guerrilla groups picked up a large shipment on
the Salvadoran coast, near Usulutan, after the shipment arrived by sea
from Nicaragua.” (P. 7.)

The document Background Paper. Nicaragua’s Military Build-up and Sup-
port for Central American Subversion of 18 July 1984 offered extensive
accounts of “The Nicaraguan Supply Operations for the Salvadoran
Guerrillas”, “Sources of FMLN Armaments”, “Training, Communica-
tions, and Staging of the FMLN”, “The International Connection”, “The
Significance of the Subversive Network” and others. The conclusions of
this document read in part :

“Guerrilla and Sandinista defectors maintain that the Nicaraguan
regime provides the Salvadoran guerrillas communications centers,
safehouses, storage of arms, shops for vehicles, and transportation of
military supplies . . .

Training of Central American guerrillas has taken place in Nica-
ragua, Cuba, and Vietnam.

Because of the subversive system involving a number of govern-
ments and terrorist organizations centered in Nicaragua, the Sandi-
nista Government is able to threaten neighboring countries and to
carry out the threats, indirectly, through one or other of the organi-
zations.” (P. 37.)

“Revolution Beyond Our Borders” — Sandinista Intervention in Central
America issued in September 1985, addressed to the library of the Court
during the oral proceedings on the merits and mentioned in the Judgment
(para. 73), reads in part :

“The Sandinistas can no longer deny that they have engaged and
continue to engage in intervention by :

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— Providing the arms, training areas, command and control facili-
ties, and communications that transformed disorganized factions in
El Salvador into a well-organized and -equipped guerrilla force of
several thousand responsible for many thousands of civilian casual-
ties and direct economic damages of over $1 billion.” (P. 31.)

63. In addition, these elements supplied by the United States were
supported in El Salvador’s Declaration of Intervention filed with the Court
on 15 August 1984, which stated :

“A blatant form of Nicaraguan aggression against El Salvador is
the Sandinista involvement in supply operations for the FMLN sub-
versives. Although the quantities of arms and supplies, and the
routes used, vary, there has been a continuing flow of arms, ammu-
nition, medicines, and clothing from Nicaragua to our country.”
(Para. VIII.)

“The subversives, aided and abetted by their allies in Nicaragua,
have destroyed farms, businesses, bridges, roads, dams, power
sources, trains and buses. They have mined our roads in an attempt to
disrupt our economy and with the purpose of preventing our citizens
from participating effectively in the national elections. The total of
the damages produced by the subversion to the Salvadorian economy
since 1979 to the end of 1983 has been conservatively estimated to
amount to approximately US$800 million.” (Para. XI.)

“up to this moment, Nicaragua continues to be the principal source of
material assistance to the subversives (munitions, arms, medical sup-
plies, training, etc.) in preparation for the expected general summer
offensive, predicted by the very same FMLN” (Para. XIII).

64. The clear discrepancy thus revealed in the assessment of the facts
mainly derives from three elements : first, that no counter-claim has ever
been presented by the United States against Nicaragua (see (ii) below) ;
secondly, that El Salvador was not allowed to intervene in this case when it
wished (ibid.) ; thirdly, that the United States was absent from the whole of
the proceedings on the merits (see (iii) below). These missing elements were
of such potential importance that the Court was ill-advised to rely on
certain evidence which, had these missing elements been present, would
undoubtedly have been tested in a normal adversarial framework. Thus,
while I am in no way attempting to suggest that conclusions disseminated
by the United States Government outside the courtroom should be ac-
cepted as evidence, it is in my view beyond any doubt that the picture
of the present dispute painted by the Court is far from the reality. That
is clear even if one confines oneself to a scrutiny of the evidence which the
United States duly submitted in 1984 together with its Counter-Memor-

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ial on jurisdiction and admissibility — evidence to which the Judgment
barely alludes. I enlarge upon this view in the following subsections.

(ii) Nicaragua’s Application reflecting only one side of the dispute

65. If one notes that the conflict in progress between Nicaragua and the
United States is not simply one involving accusations levelled by Nicara-
gua against the United States, but that the accusations made by the United
States against Nicaragua may be claimed to be technically not at issue in
this case, brought as it is by the one side, and in the absence of formal
submissions by the other, it should also be noted that the true facts may
have remained hidden behind the scenes. It may be contended that such a
problem could have been properly solved if the United States had pre-
sented a counter-claim in this case or El Salvador had been allowed to
participate ; but the actual situation to be faced is simply that the United
States did not bring a counter-claim — whether it could have, under the
Statute, in the present case is another matter — and that the Court, in its
Order of 4 October 1984, denied El Salvador the right to participate when it
wished.

66. Thus I would like here to take the opportunity of expressing regret
that, with regard to the attempt of El Salvador to intervene in the earlier
phase of the present case, I took a negative position towards granting that
State a hearing ; however, as I stated in my separate opinion attached to
the Order of 4 October 1984, I did so only for “purely procedural reasons”.
At any rate, the situation resulting from the absence of any counter-claim
by the United States and the frustration, at that stage, of El Salvador’s
intervention effectively precluded the Court from obtaining a complete
picture of the dispute in all the ramifications needed to determine the
validity of the United States claim of acting in collective self-defence.

(iii) Non-participation of the United States in the proceedings — Article 53
of the Statute

67. In the present case, Nicaragua presented a great amount of evidence
to the Court and asked for five witnesses to be heard, but it would certainly
not have been expected to provide evidence unfavourable to itself. Owing
to the United States failure to participate in the proceedings, the evidence
presented by Nicaragua was not challenged, and the witnesses were not
subjected to cross-examination, although questions were put from the
bench. Moreover, Nicaragua was not obliged to and in fact did not make
any comment upon several relevant United States documents, some duly
deposited with the Court in 1984.

68. Here I wish to consider the spirit behind the Statute relevant to this

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problem. What is laid down in the first paragraph of Article 53 of the
Statute originates in a general rule of domestic law. In civil cases in
domestic society, the obligation of the defending party to appear before
and be subject to the jurisdiction of the court is, in principle, not disputed :
and the rule has been established in domestic society that the simple fact of
non-appearance of a defendant allows the court to deliver a judgment in
favour of the plaintiff. However, inter-State issues in dispute before an
international judicial court are placed in a different legal environment in
that the jurisdiction of the Court is based upon the consent of sovereign
States and compulsory jurisdiction is lacking. The second paragraph of
Article 53 is therefore drafted so as to prevent the absolute application of
the above rule of domestic law. This provision, whereby the Court is not
allowed to pronounce judgment in favour of an applicant for the simple
reason that the respondent has not appeared, is unique in procedure before
an international judicial forum.

69. This does not however suggest that the Court is required to establish
proprio motu facts on behalf of the absent respondent, or to assume the
mantle of a defending counsel. The way in which the Judgment proposes to
handle the evidence and information available to it may be correct under
the Statute, and the Judgment is right in stating that “the party which
declines to appear cannot be permitted to profit from its absence, since this
would amount to placing the party appearing at a disadvantage” (para. 31).
Yet Article 53 by no means prohibits the Court from endeavouring to find
facts proprio motu, and the facts ascertained by the Court through the
procedure of evidence under its interpretation of Article 53 of the Statute
and Article 58 of the Rules of Court do not necessarily reflect the true
situation of the dispute as a whole. The Court should therefore have been
wary of over-facile “satisfaction” as to the facts, and perhaps should not
have ventured to deliver a Judgment on the basis of such unreliable sources
of evidence.

D. Concluding Remarks on Non-Justiciability

70. The present case is characterized by the fact that the dispute at issue,
not being a /egal dispute within the demonstrable meaning of Article 36,
paragraph 2, of the Statute, is one which the Respondent had never im-
agined as falling under the jurisdiction which it had voluntarily accepted.
To point this out is not to nullify but to clarify Article 36, paragraph 2,
of the Statute. It must be realized that, in accepting the Court’s jurisdiction
under Article 36, paragraph 2, of the Statute, States express their readiness
to accept the Court’s decision in disputes the scope of which is limited to
the issue as to whether or not the right which the Applicant asserts has a
ground in international law. A number of disputes of political significance
which contain certain legal implications have been reported from every
corner of the world for the past six decades, both prior and subsequent to
the Second World War. Yet they have not been treated as justiciable

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disputes subject to compulsory jurisdiction before the Court or its prede-
cessor under the Optional Clause of the Statute. How then could this
particular case have come to be singled out ? Is it because the Court has
managed to assume jurisdiction in the present case, in spite of the objec-
tions of the United States, through a questionable loophole in Article 36,
paragraph 2, of the Statute (not to speak of the questionable loophole
which the Court drilled into Article 36, paragraph 5), when jurisdiction
should have been based in principle on the sovereign consent or will of the
respondent State ?

71. Asecond characteristic of the present case is that the facts the Court
could elicit by examining the evidence under the conditions of Article 53 of
the Statute were far from sufficient to show a complete picture of the
dispute, because the issues placed before the Court were limited to aspects
significantly narrower than the whole.

72. Considering these two characteristics together, I came to the con-
clusion that it would not be consonant with judicial propriety for the Court
to entertain Nicaragua’s Application on the basis of the Optional Clause of
the Statute. The Court’s appropriation of a case against the wish of a
respondent State under these circumstances will distort the genuine solu-
tion of the dispute. I neither undervalue the sincere intentions of Nicara-
gua in bringing a dispute of such a massive scale to the Court under the
Optional Clause of the Statute nor necessarily support the activities which
the United States is pursuing against Nicaragua. In my opinion, however,
judicial propriety dictates that the correct manner for dealing with the
dispute would have been, and still may prove to be, a conciliation proce-
dure through the political organs of the United Nations or a regional
arrangement such as the Contadora Group, and not reference to the
International Court of Justice, whose function, which is limited to the
purely legal aspect of disputes, has heretofore not been exceeded.

III. BREACH OF OBLIGATIONS UNDER THE 1956 TREATY OF FRIENDSHIP,
COMMERCE AND NAVIGATION — THE COURT’S APPROPRIATION OF
THE CASE UNDER ARTICLE 36, PARAGRAPH 1, OF THE STATUTE

A. The Court’s Jurisdiction Granted by Article XXIV, the Compromissory
Clause, of the 1956 Treaty

73. The contention that the Court should not be seised of the Nicara-
guan Application in so far as it is based on Article 36, paragraph 2, of the
Statute does not preclude the Court’s seisin on the basis of Article 36,

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paragraph 1. The term “all matters” to be comprised by the jurisdiction of
the Court under Article 36, paragraph 1, of the Statute is different from “all
legal disputes” under Article 36, paragraph 2, since the former, “provided
for in the Charter of the United Nations or in treaties and conventions in
force”, are specified in concrete terms in each instrument, no matter
whether legal or political, and thus there will be no supervening question of
justiciability, as I stated above (para. 60) in connection with the case of
United States Diplomatic and Consular Staff in Tehran.

74. In fact, the 1956 Treaty of Friendship, Commerce and Navigation
was not mentioned at all in Nicaragua’s Application, even though the
compromissory clause of the Treaty reads :

“Article XXIV

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.”

Nevertheless, considering that

“the fact that the 1956 Treaty was not invoked in the Application as a
title of jurisdiction does not in itself constitute a bar to reliance being
placed upon it in the Memorial” (.C.J. Reports 1984, p. 426),

the Court found in the operative parts of its 1984 Judgment that it had

“Jurisdiction to entertain the Application . . . in so far as that Appli-
cation relates to a dispute concerning the interpretation or application
of the [1956] Treaty of Friendship, Commerce and Navigation” (ibid.,
p. 442, para. 113 (1) (b)).

With regard to a precondition of adjustment by diplomacy, the Court was
of the view in 1984 that :

“it does not necessarily follow that, because a State has not expressly
referred in negotiations with another State to a particular treaty as
having been violated by conduct of that other State, it is debarred
from invoking a compromissory clause in that treaty” (ibid,
p. 428).

In 1984, the Court thus confirmed its jurisdiction under the 1956 Treaty on

“any dispute between [Nicaragua and the United States] as to the inter-
pretation or application of the Treaty”.

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B. The Court’s Partial Reversion to Jurisdiction under Article 36,
paragraph 2, of the Statute in Relation to the Treaty

75. If the Court remained duly seised of this case, it was in my view only
because the Court’s jurisdiction was granted by virtue of Article XXIV of
the 1956 Treaty under Article 36, paragraph 1, of the Statute. I further
believe that, irrespective of my arguments in opposition to the Judgment,
expounded in Parts I and II above, to the effect that the Court should have
ceased to entertain the Nicaraguan Application in so far as it is based on
Article 36, paragraph 2, of the Statute, the Court has erred in its handling
of this Treaty even within the bounds of the jurisdiction under Article 36,
paragraph 1, of the Statute which it recognized in 1984 to be the proper
basis for its consideration of this Treaty.

76. The Court first identifies “the direct attacks on ports, oil installa-
tions, etc.” and “the mining of Nicaraguan ports” as activities of the
United States “which are such as to undermine the whole spirit of” the
1956 Treaty (para. 275) ; referring to “the acts of economic pressure”, the
Judgment also states that

“such an abrupt act of termination of commercial intercourse as the
general trade embargo of 1 May 1985 will normally constitute a
violation of the obligation not to defeat the object and purpose of the
treaty” (para. 276).

In the Court’s view these activities on the part of the United States “were
violations of customary international law” (para. 274). Thus the Court
attempts to dissociate these issues from the compromissory clause of the
1956 Treaty, and states instead that this particular provision (which, as I
have just pointed out, the Judgment in 1984 referred to as a basis for the
Court’s jurisdiction) does not constitute “a bar to examination of Nica-
ragua’s claims” (para. 274). The Judgment further states that these viola-
tions of customary international law cannot be justified under Article XXI
(that is, an exclusion clause) of the Treaty.

77. The Judgment then speaks of breaches of concrete provisions of the
Treaty, and maintains that

“the mining of the Nicaraguan ports by the United States is in
manifest contradiction with the freedom of navigation and com-
merce guaranteed by Article XEX, paragraph 1, of the 1956 Treaty”
(para. 278)

and that the trade embargo declared by the United States Government on
1 May 1985 “constituted a measure in contradiction with Article XIX of
the 1956 FCN Treaty” (para. 279). The relevant provisions, quoted in the
Judgment, read :

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249 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. ODA)

“Article XIX

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

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 .. .”

78. The Court comes to a conclusion that

“the United States [on the one hand] is in breach of a duty not to
deprive the 1956 FCN Treaty of its object and purpose, and [on the
other hand] has committed acts which are in contradiction with the
terms of the Treaty” (para. 280).

Thus the Judgment appears to be very confused, as it partially reverts to the
Court’s jurisdiction under Article 36, paragraph 2, of the Statute by
speaking of the customary law rule not to defeat the object and purpose of
a treaty despite the fact that it, quite properly, adjudges breaches of the
terms of the 1956 Treaty on the basis of Article 36, paragraph 1.

C. Misconception of the Customary-Law Rule not to Defeat the “Object and
Purpose” of a Treaty

79. It appears to me that the Court exceeds its powers in examining the
question of a “duty not to deprive the 1956 FCN Treaty of its object and
purpose” (para. 280). The “undermin[ing of] the whole spirit” (para. 275)
of a treaty or “violation of the obligation not to defeat the object and
purpose of” (para. 276) a treaty is not tantamount to specific breach of the
treaty obligations. But it is the fulfilment of those obligations, and of those
alone, that may be subject to the Court’s jurisdiction under Article XXIV,
the compromissory clause in the Treaty. The Court, therefore, should
simply have taken a decision as to whether the United States had breached
the terms of the 1956 Treaty and thus incurred responsibility for the
violation of international law.

80. The Court appears to have been misled by speaking of the custom-
ary law rule concerning respect for “the whole spirit” or “the object and
purpose” of the treaty. The term “the object and/or purpose of the treaty”
is referred to several times in the 1969 Vienna Convention on the Law of
Treaties but only for the purpose of indicating first, that a reservation to a
treaty is impermissible unless it is compatible with “the object and purpose
of the treaty” (Art. 19), or, second, that multilateral treaties may only be
modified as between certain of the parties if the modification “does

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not relate to a provision, derogation from which is incompatible with
the effective execution of the object and purpose of the treaty as a whole”
(Art. 41), and, third, in connection with the termination or suspension of
the operation of a treaty as a consequence of its breach. The Convention
stipulates in the latter connection that :

“Article 60

1. A material breach of a bilateral treaty by one of the parties
entitles the other to invoke the breach as a ground for terminating the
treaty or suspending its operation in whole or in part.

3. A material breach of a treaty, for the purpose of this article,
consists in :
(b) the violation of a provision essential to the accomplishment of the
object or purpose of the treaty.”

Here it is important to emphasize the reference to the violation of a provision
in paragraph 3 (b). All that the Convention is here seeking to establish is
that there is a degree of such violation justifying termination or suspension,
and that the touchstone of that degree is that the provision violated should
be essential to the accomplishment of the treaty’s object and purpose.
There is no suggestion that the undermining of the object and/or purpose,
independently of any breach of a provision, would be tantamount in itself to
a violation of the Treaty.

81. Thus the Court appears to have misinterpreted the words “the
object and purpose” of a treaty, as introduced by the 1969 Convention on
the Law of Treaties in a completely different context. Independently of
that Convention, it is noted that the Court attributes to Nicaragua an
argument to the effect that abstention from conduct likely to defeat the
object and purpose of a treaty is an obligation implicit in the principle
pacta sunt servanda. However, the Judgment does not make it clear whether
it is espousing this point of view. In any case, I wouid like to take this
opportunity of indicating my own understanding of this principle, which
to my mind requires compliance with the letter of obligations subscribed
to, and not necessarily the avoidance of conduct not expressly precluded
by the terms of the given treaty. It may furthermore be asked where the
jurisdiction granted by a treaty clause would ever end if it were held to
entitle the Court to scrutinize any act remotely describable as inimical to
the object and purpose of the treaty in question. The ultimate result of so
sweeping an assumption could only be an increasing reluctance on the part
of States to support the inclusion of such clauses in their treaties.

82. All this may be said without in any way condoning or minimizing
the gravity of any action which does in fact thwart the purpose of a
treaty.

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D. Breaches of the Terms of the 1956 Treaty

1. Breaches of Article XIX of the Treaty

83. If the Court is duly seised of Nicaragua’s Application on the basis of
Article 36, paragraph 1, of the Statute, the Court should have more clearly
declared what United States actions, unjustifiable by reference to Arti-
cle XXI (to which I shall refer in paras. 85-89) of the 1956 Treaty of
Friendship, Commerce and Navigation, constituted breaches of the treaty
obligations incumbent upon the United States under specific provisions of
that Treaty. The Judgment refers in its reasoning to a few activities of the
United States as constituting breaches of the 1956 Treaty. As stated above
(para. 77), the laying of mines in early 1984 and the trade embargo on
1 May 1985 are thus mentioned.

84. The Judgment does not in its reasoning identify any other types of
action taken by the United States as constituting breaches of treaty obli-
gations under the Treaty. In the operative part of the Judgment, however,
the Court lists not only “laying mines” (para. 292 (7)) and the “general
embargo on trade” (para. 292 (11)) but also “the attacks on Nicaraguan
territory” (ibid.) as breaches of the United States obligations under Arti-
cle XIX of the Treaty. No reasoning is given as to how the attacks on
Nicaraguan territory constituted a violation of that Article, which is
exclusively devoted to matters of maritime commerce.

2. Applicability of Article XXT of the Treaty

85. The question which remains is whether, in case the United States has
breached the provisions of Article XIX of the 1956 Treaty, these actions
could have been justified for the reasons specified in Article XXI of the
Treaty, which 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, .. .

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

The Court’s treatment of this provision involves, in my view, anon sequitur
when it states :

“The question thus arises whether Article XXI similarly affords a
defence to a claim under customary international law based on alle-

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gation of conduct depriving the Treaty of its object and purpose if
such conduct can be shown to be ‘measures . . . necessary to protect’
essential security interests.” (Para. 271.)

Article XXI is meant, in my view, to absolve either treaty partner from
responsibility in the event of its having applied certain measures which,
had they not possessed the character described, would have conflicted with
any obligations imposed in any provisions of the Treaty, and not to afford
“a defence to a claim under customary international law” as the Judgment
states.

86. I must now, for the sake of clarity, recapitulate the argument of the
Judgment in respect of Article XXI. Considering “whether the exceptions
in Article XXI, paragraphs 1 (c) and 1 (d), ... may be invoked to justify the
acts complained of”, the Judgment includes in these acts “the direct
attacks on ports, oil installations, etc. ; the mining of Nicaraguan ports ;
and the general trade embargo of 1 May 1985” (para. 280). The “direct
attacks on ports, oil installations, etc.”, which were not mentioned at all as
constituting breaches of the terms of the 1956 Treaty in any preceding part
of the Judgment, are suddenly placed in this context.

87. As the Court finds that “laying mines” and the “general trade
embargo” constitute violations of Article XIX, it has to examine whether
these acts were justifiable or not under Article XXI. The Court considers
that

“the mining of Nicaraguan ports . . . cannot possibly be justified as
‘necessary’ to protect the essential security interests of the United
States” (para. 282).

With regard to the trade embargo, the Court is also “unable to find that the
embargo was ‘necessary’ to protect those interests” (para. 282). In con-
clusion, the Judgment suggests that “Article XXI affords no defence for
the United States in respect of any of the actions here under consideration”
(ibid). The Judgment states :

“Since no evidence at all is available to show how Nicaraguan
policies had in fact become a threat to ‘essential security interests’ in
May 1985, when those policies had been consistent, and consistently
criticized by the United States for four years previously, the Court is
unable to find that the embargo was ‘necessary’ to protect those
interests.” (Para. 282.)

88. Now, whatever the situation with regard to the laying of mines (see
para. 89 below), I totally fail to understand what the Court has attempted
to contend in connection with the trade embargo ordered on 1 May 1985.
From my point of view, the United States decision on a trade embargo,

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quite unlike that on laying of mines, is open to justification under Arti-
cle XXI. Trade is not a duty of a State under general international law but
may only be a duty imposed by a treaty to which that State is a party, and
can be suspended under certain circumstances expressly specified in that
treaty. In fact, the United States, when declaring a trade embargo on 1 May
1985, did not announce its reliance on this particular provision of the
Treaty, but, instead, gave notice on the same day to terminate the Treaty.
Even so, I am inclined to maintain that, in principle, the trade assured by
Article XIX, paragraph 3, of the Treaty, could also justifiably have been
suspended in reliance on another provision, Article XXI, of the same
Treaty.

89. “Laying mines” is totally different, in that it is illegal in the absence
of any justification recognized in international law, while Article XXI of
the Treaty, being simply one provision in a commercial treaty, can in no
way be interpreted to justify a State party in derogating from this principle
of general international law. I must add that this action did not meet the
conditions of necessity and proportionality that may be required as a
minimum in resort to the doctrine of self-defence under general and
customary international law. I thus conclude that, under the jurisdiction
granted to the Court by Article XXIV of the 1956 Treaty, the Court should
have found the United States responsible only for violation of Article XIX
by laying mines in Nicaraguan waters. It was for this reason only that I
voted for subparagraph (14) in the operative clause.

IV. SUPPLEMENTARY OBSERVATIONS

90. Since I hold the view that the Court should have dismissed the
Nicaraguan Application so far as it is based on Article 36, paragraph 2, of
the Statute, I have refrained from making comments on the doctrines of
non-use of force, non-intervention, etc., which the Court has expounded.
However, I would like to express just one of my concerns, namely that the
Court was so precipitate in giving its views on collective self-defence
justifying the use of force which would otherwise have been illegal.

91. The term “collective self-defence”, unknown before 1945, was not
found in the Dumbarton Oaks proposals which were prepared by the four
big Powers to constitute a basis for a general international organization in
the post-war period. The deliberations on Chapter VIII, Section C, of the
Dumbarton Oaks proposals concerning regional arrangements were en-
trusted, at the San Francisco Conference in 1945, to Commission III
(Security Council), Committee 4 (Regional arrangements). On 17 May
1945, in this Committee, the United States representative observed that his
delegation was “now prepared to submit a formula regarding the relation-
ship of regional agencies to the world Organization” (United Nations

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Conference on International Organization, Vol. 12, p. 674). This United
States formula had already been announced by Stettinius, the United
States Secretary of State, on 15 May 1945 as follows :

“As a result of discussions with a number of interested delegations,
proposals will be made to clarify in the Charter the relationship of
regional agencies and collective arrangements to the world Organi-
zation.

These proposals will :

2. Recognize that the inherent right of self-defense, either individual
or collective, remains unimpaired in case the Security Council does not
maintain international peace and security and an armed attack
against a member state occurs . . .

The second point will be dealt with by an addition to chapter VII
of a new section substantially as follows :

Nothing in this Charter impairs the inherent right of self-defense,
either individual or collective, in the event that the Security Council
does not maintain international peace and security and an armed
attack against a member state occurs . . .” (Documents on American
Foreign Relations, Vol. VII, 1944-1945, p. 434.) (Emphasis added.)

92. On 23 May 1945, a subcommittee on the Amalgamation of Amend-
ments unanimously recommended to Committee 4:

“2. That a new paragraph be inserted into the language of the
Dumbarton Oaks Proposals, in accordance with a further suggestion
in the United States proposal for the amalgamation of amendments to
Chapter VIII, Section C, reading as follows :

‘Nothing in this Charter impairs the inherent right of individual or
collective self-defense if an armed attack occurs against a member
state, until the Security Council has taken the measures necessary to
maintain international peace and security . . ” ”

(United Nations Conference on International Organization, Vol. 12,
p. 848.) (Emphasis added.)

93. Committee 4, at its fourth meeting on 25 May 1945, unanimously
approved the following decision :

“That a new paragraph be inserted in the text of the Dumbarton
Oaks Proposals, to read as follows :

‘Nothing in this Charter impairs the inherent right of the individual
or collective self-defense if an armed attack occurs against a member

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state, until the Security Council has taken the measures necessary to
maintain international peace and security . . .” (United Nations
Conference on International Organization, Vol. 12, p. 680.)
(Emphasis added.)

The emphasized part of this quotation was expressed in the French version
as follows :

“Aucune disposition de la présente Charte ne peut porter atteinte
au droit naturel de tout Etat Membre de se défendre, par une action
individuelle ou collective, contre une agression armée.” (/bid,
p. 691.)

In connection with this decision, the Chairman, speaking as the delegate of
Colombia, made the following statement :

“The Latin American Countries understood, as Senator Vanden-
berg [a delegate of the United States] had said, that the origin of the
term ‘collective self-defense’ is identified with the necessity of pre-
serving regional systems like the Inter-American one. The Charter, in
general terms, is a constitution, and it legitimatizes the right of col-
lective self-defense to be carried out in accord with regional pacts so
long as they are not opposed to the purposes and principles of the
Organization as expressed in the Charter. If a group of countries with
regional ties declare their solidarity for their mutual defense, as in the
case of the American States, they will undertake such defense jointly if
and when one of them is attacked. And the right of defense is not
limited to the country which is the direct victim of aggression but
extends to those countries which have established solidarity through
regional arrangements, with the country directly attacked.” (/bid.,
p. 680.)

After the exchange of opinions, particularly among the Latin American
delegates, “the Chairman paid tribute at this point to the work of Senator
Vandenberg [of the United States] in the elaboration of the new text” (ibid.,
p. 682). Senator Vandenberg replied that “in his opinion the unanimity
expressed by voice and vote on this question was a signpost towards a
peaceful world with justice for free men in a free earth” (ibid.). Thus the
concepts of individual or collective self-defence were incorporated into the
United Nations Charter, at the suggestion of the United States, without
much discussion. Hence Article 51 of the Charter reads :

“Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs against a
Member of the United Nations, until the Security Council has taken
necessary measures to maintain international peace and security...”
(Emphasis added.)

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This text is practically identical to the one adopted by Committee 4 but the
French version is different :

“Aucune disposition de la présente Charte ne porte atteinte au droit
naturel de légitime défense, individuelle ou collective, dans le cas ot
un Membre des Nations Unies est l’objet d’une agression armée . . .”

It is to be noted that the reflexive verb “se défendre” (corresponding to the
English “self-defence”) has disappeared in this version, so that it no longer
appears that the invocation of individual or collective defence is the
exclusive prerogative of the State directly attacked.

94. At all events, there was certainly no discussion whether the right of
collective self-defence was inherent or not. If there was any statement that
the right of self-defence is inherent, this goes back to 1928, when at the time
of the preparation of the 1928 Multilateral Treaty for the Renunciation of
War the United States Government sent notes to various governments on
23 June 1928, which read :

“There is nothing in the American draft of anti-war treaty which
restricts or impairs in any way the right of self-defense. That right is
inherent in every sovereign state and is implicit in every treaty. Every
nation is free at all times and regardless of treaty provisions to defend
its territory from attack or invasion and it alone is competent to
decide whether circumstances require recourse to war in self-
defense.” (American Journal of International Law, Supplement,
Vol. 22, p. 109.) (Emphasis added.)

A fortiori, the idea that the right of collective self-defence is inherent is
certainly not traceable up to 1928, and so far as the proceedings of the San
Francisco Conference indicate, there was hardly any discussion on this
point in 1945.

95. After recalling that “the Charter [of the United Nations] itself
testifies to the existence of the right of collective self-defence in customary
international law” (para. 193), and that the General Assembly resolution
containing the Declaration on the principles of international law concern-
ing friendly relations and co-operation among States

“demonstrates that the States represented in the General Assembly
regard the exception to the prohibition of force constituted by the
right of individual or collective self-defence as already a matter of
customary international law” (ibid. ),

the present Judgment states that

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“Since the existence of the right of collective self-defence is estab-
lished in customary international law, the Court must define the
specific conditions which may have to be met for its exercise, in
addition to the conditions of necessity and proportionality to which
the Parties have referred.” (Para. 194.)

Referring to a precondition required for the exercise of collective self-
defence, the Judgment remarks :

“Where collective self-defence is invoked, it is to be expected that
the State for whose benefit this right is used will have declared itself to
be the victim of an armed attack.” (Para. 195.)

And it goes on to mention a second condition :

“The Court concludes that the requirement of a request by the State
which is the victim of the alleged attack is additional to the require-
ment that such a State should have declared itself to have been
attacked.” (Para. 199.)

The Judgment also draws certain inferences from a further requirement
imposed by the Charter of the United Nations for the exercise of the right
of self-defence under Article 51, namely that : “measures taken by States
in exercise of this right of self-defence must be ‘immediately reported’ to
the Security Council” (para. 200).

96. The concept of collective self-defence has been the subject of exten-
sive discussion among the scholars of international law for the past several
decades. It is well known that speaking of “inherent” right of self-defence,
Kelsen stated :

“This is a theoretical opinion of the legislator which has no legal
importance. The effect of Article 51 would not change if the term
‘inherent’ were dropped.” (The Law of the United Nations, 1950,
p. 791.)

Julius Stone held the view :

“In its form as reserving a preexisting right of ‘collective self-
defence’, Article 51 presents such insoluble problems that it may seem
better to treat the term ‘inherent’ as otiose, and regard Article 51 as
itself conferring the liberties there described.” (Legal Controls of
International Conflict, 1954, p. 245.)

I do not attempt to suggest that these views necessarily reflect the leading
school of thought. Yet the Court should have been aware of so much
discussion, either for or against, on the inherent right of collective self-

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defence. Attention should also be paid to the difference in connotations of
the English and French texts of Article 51 of the United Nations Char-
ter.

97. In sum even if it was necessary for the Court to take up the concept
of collective self-defence — and I do not agree that it was — this concept
should have been more extensively probed by the Court in its first Judg-
ment to broach the subject.

(Signed) Shigeru ODA.

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