NORTH SEA CONTINENTAL SHELF CASES

Judgment of 20 February 1969

The Court delivered judgment, by 11 votes to 6, in the North Sea
Continental Shelf cases.
The dispute, which was submitted to the Court on 20 February 1967,
related to the delimitation of the continental shelf between the Federal
Republic of Germany and Denmark on the one hand, and between the
Federal Republic of Germany and the Netherlands on the other. The
Parties asked the Court to state the principles and rules of international
law applicable, and undertook thereafter to carry out the delimitations on
that basis.
The Court rejected the contention of Denmark and the Netherlands to the
effect that the delimitations in question had to be carried out in
accordance with the principle of equidistance as defined in Article 6 of
the 1958 Geneva Convention on the Continental Shelf, holding:
- that the Federal Republic, which had not ratified the Convention, was
not legally bound by the provisions of Article 6;
- that the equidistance principle was not a necessary consequence of the
general concept of continental shelf rights, and was not a rule of
customary international law.
The Court also rejected the contentions of the Federal Republic in so far
as these sought acceptance of the principle of an apportionment of the
continental shelf into just and equitable shares. It held that each Party had
an original right to those areas of the continental shelf which constituted
the natural prolongation of its land territory into and under the sea. It was
not a question of apportioning or sharing out those areas, but of
delimiting them.
The Court found that the boundary lines in question were to be drawn by
agreement between the Parties and in accordance with equitable
principles, and it indicated certain factors to be taken into consideration
for that purpose. It was now for the Parties to negotiate on the basis of
such principles, as they have agreed to do.
The proceedings, relating to the delimitation as between the Parties of the
areas of the North Sea continental shelf appertaining to each of them,
were instituted on 20 February 1967 by the communication to the
Registry of the Court of two Special Agreements, between Denmark and
the Federal Republic and the Federal Republic and the Netherlands
respectively. By an Order of 26 April 1968, the Court joined the
proceedings in the two cases.
The Court decided the two cases in a single Judgment, which it adopted
by eleven votes to six. Amongst the Members of the Court concurring in
the Judgment, Judge Sir Muhammad Zafrulla Khan appended a
declaration; and President Bustamante y Rivero and Judges Jessup,
Padilla Nervo and Ammoun appended separate opinions. In the case of
the non-concurring Judges, a declaration of his dissent was appended by
Judge Bengzon; and Vice-President Koretsky, together with Judges
Tanaka, Morelli and Lachs, and Judge ad hoc Sorensen, appended
dissenting opinions.
In its Judgment, the Court examined in the context of the delimitations
concerned the problems relating to the legal rgime of the continental
shelf raised by the contentions of the Parties.
The Facts and the Contentions of the Parties (paras. 1-17 of the
Judgment)
The two Special Agreements had asked the Court to declare the principles
and rules of international law applicable to the delimitation as between
the Parties of the areas of the North Sea continental shelf appertaining to
each of them beyond the partial boundaries in the immediate vicinity of
the coast already determined between the Federal Republic and the
Netherlands by an agreement of 1 December 1964 and between the
Federal Republic and Denmark by an agreement of 9 June 1965.The
Court was not asked actually to delimit the further boundaries involved,
the Parties undertaking in their respective Special Agreements to effect
such delimitation by agreement in pursuance of the Court's decision.
The waters of the North Sea were shallow, the whole seabed, except for
the Norwegian Trough, consisting of continental shelf at a depth of less
than 200 metres. Most of it had already been delimited between the
coastal States concerned. The Federal Republic and Denmark and the
Netherlands, respectively, had, however, been unable to agree on the
prolongation of the partial boundaries referred to above, mainly because
Denmark and the Netherlands had wished this prolongation to be effected
on the basis of the equidistance principle, whereas the Federal Republic
had considered that it would unduly curtail what the Federal Republic

believed should be its proper share of continental shelf area, on the basis
of proportionality to the length of its North Sea coastline. Neither of the
boundaries in question would by itself produce this effect, but only both
of them together - an element regarded by Denmark and the Netherlands
as irrelevant to what they viewed as being two separate delimitations, to
be carried out without reference to the other.
A boundary based on the equidistance principle, i.e., an "equidistance
line", left to each of the Parties concerned all those portions of the
continental shelf that were nearer to a point on its own coast than they
were to any point on the coast of the other Party. In the case of a concave
or recessing coast such as that of the Federal Republic on the North Sea,
the effect of the equidistance method was to pull the line of the boundary
inwards, in the direction of the concavity. Consequently, where two
equidistance lines were drawn, they would, if the curvature were
pronounced, inevitably meet at a relatively short distance from the coast,
thus "cutting off" the coastal State from the area of the continental shelf
outside. In contrast, the effect of convex or outwardly curving coasts,
such as were, to a moderate extent, those of Denmark and the
Netherlands, was to cause the equidistance lines to leave the coasts on
divergent courses, thus having a widening tendency on the area of
continental shelf off that coast.
It had been contended on behalf of Denmark and the Netherlands that the
whole matter was governed by a mandatory rule of law which, reflecting
the language of Article 6 of the Geneva Convention on the Continental
Shelf of 29 April 1958, was designated by them as the "equidistancespecial circumstances" rule. That rule was to the effect that in the absence
of agreement by the parties to employ another method, all continental
shelf boundaries had to be drawn by means of an equidistance line unless
"special circumstances" were recognized to exist. According to Denmark
and the Netherlands, the configuration of the German North Sea coast did
not of itself constitute, for either of the two boundary lines concerned, a
special circumstance.
The Federal Republic, for its part, had contended that the correct rule, at
any rate in such circumstances as those of the North Sea, was one
according to which each of the States concerned should have a "just and
equitable share" of the available continental shelf, in proportion to the
length of its sea-frontage. It had also contended that in a sea shaped as is
the North Sea, each of the States concerned was entitled to a continental
shelf area extending up to the central point of that sea, or at least
extending to its median line. Alternatively, the Federal Republic had
claimed that if the equidistance method were held to bc applicable, the
configuration of the German North Sea coast constituted a special
circumstance such as to justify a departure from that method of
delimitation in this particular case.
The Apportionment Theory Rejected (paras. 18-20 of the Judgment)
The Court felt unable to accept, in the particular form it had taken, the
first contention put forward on behalf of the Federal Republic. Its task
was to delimit, not to apportion the areas concerned. The process of
delimitation involved establishing the boundaries of an area already, in
principle, appertaining to the coastal State and not the determination de
novo of such an area. The doctrine of the just and equitable share was
wholly at variance with the most fundamental of all the rules of law
relating to the continental shelf, namely, that the rights of the coastal
State in respect of the area of continental shelf constituting a natural
prolongation of its land territory under the sea existed ipso facto and ab
initio, by virtue of its sovereignty over the land. That right was inherent.
In order to exercise it, no special legal acts had to be performed. It
followed that the notion of apportioning an as yet undelimited area
considered as a whole (which underlay the doctrine of the just and
equitable share) was inconsistent with the basic concept of continental
shelf entitlement.
Non-Applicability of Article 6 of the 1958 Continental Shelf
Convention (paras. 21-36 of the Judgment)
The Court then turned to the question whether in delimiting those areas
the Federal Republic was under a legal obligation to accept the
application of the equidistance principle. While it was probably true that
no other method of delimitation had the same combination of practical
convenience and certainty of application, those factors did not suffice of
themselves to convert what was a method into a rule of law. Such a
method would have to draw its legal force from other factors than the
existence of those advantages.
The first question to be considered was whether the 1958 Geneva
Convention on the Continental Shelf was binding for all the Parties in the

case. Under the formal provisions of the Convention, it was in force for
any individual State that had signed it within the time-limit provided,
only if that State had also subsequently ratified it. Denmark and the
Netherlands had both signed and ratified the Convention and were parties
to it, but the Federal Republic, although one of the signatories of the
Convention, had never ratified it, and was consequently not a party. It
was admitted on behalf of Denmark and the Netherlands that in the
circumstances the Convention could not, as such, be binding on the
Federal Republic. But it was contended that the rgime of Article 6 of
the Convention had become binding on the Federal Republic, because, by
conduct, by public statements and proclamations, and in other ways, the
Republic had assumed the obligations of the Convention.
It was clear that only a very definite, very consistent course of conduct on
the part of a State in the situation of the Federal Republic could justify
upholding those contentions. When a number of States drew up a
convention specifically providing for a particular method by which the
intention to become bound by the rgime of the convention was to be
manifested, it was not lightly to be presumed that a State which had not
carried out those formalities had nevertheless somehow become bound in
another way. Furthermore, had the Federal Republic ratified the Geneva
Convention, it could have entered a reservation to Article 6, by reason of
the faculty to do so conferred by Article 12 of the Convention.
Only the existence of a situation of estoppel could lend substance to the
contention of Denmark and the Netherlands - i.e., if the Federal Republic
were now precluded from denying the applicability of the conventional
rgime, by reason of past conduct, declarations, etc., which not only
clearly and consistently evinced acceptance of that rgime, but also had
caused Denmark or the Netherlands, in reliance on such conduct,
detrimentally to change position or suffer some prejudice. Of this there
was no evidence. Accordingly, Article 6 of the Geneva Convention was
not, as such, applicable to the delimitations involved in the present
proceedings.
The Equidistance Principle Not Inherent in the Basic Doctrine of the
Continental Shelf (paras. 37-59 of the Judgment)
It had been maintained by Denmark and the Netherlands that the Federal
Republic was in any event, and quite apart from the Geneva Convention,
bound to accept delimitation on an equidistance basis, since the use of
that method was a rule of general or customary international law,
automatically binding on the Federal Republic.
One argument advanced by them in support of this contention, which
might be termed the a priori argument, started from the position that the
rights of the coastal State to its continental shelf areas were based on its
sovereignty over the land domain, of which the shelf area was the natural
prolongation under the sea. From this notion of appurtenance was derived
the view, which the Court accepted, that the coastal State's rights
existedipso facto and ab initio. Denmark and the Netherlands claimed
that the test of appurtenance must be "proximity": all those parts of the
shelf being considered as appurtenant to a particular coastal State which
were closer to it than they were to any point on the coast of another State.
Hence, delimitation had to be effected by a method which would leave to
each one of the States concerned all those areas that were nearest to its
own coast. As only an equidistance line would do this, only such a line
could be valid, it was contended.
This view had much force; the greater part of a State's continental shelf
areas would normally in fact be nearer to its coasts than to any other. But
the real issue was whether it followed that every part of the area
concerned must be placed in that way. The Court did not consider this to
follow from the notion of proximity, which was a somewhat fluid one.
More fundamental was the concept of the continental shelf as being the
natural prolongation of the land domain. Even if proximity might afford
one of the tests to be applied, and an important one in the right
conditions, it might not necessarily be the only, nor in all circumstances
the most appropriate, one. Submarine areas did not appertain to the
coastal State merely because they were near it, nor did their appurtenance
depend on any certainty of delimitation as to their boundaries. What
conferred the ipso jure title was the fact that the submarine areas
concerned might be deemed to be actually part of its territory in the sense
that they were a prolongation of its land territory under the sea.
Equidistance clearly could not be identified with the notion of natural
prolongation, since the use of the equidistance method would frequently
cause areas which were the natural prolongation of the territory of one
State to be attributed to another. Hence, the notion of equidistance was

not an inescapable a priori accompaniment of basic continental shelf

doctrine.
A review of the genesis of the equidistance method of delimitation
confirmed the foregoing conclusion. The "Truman Proclamation" issued
by the Government of the United States on 28 September 1945 could be
regarded as a starting point of the positive law on the subject, and the
chief doctrine it enunciated, that the coastal State had an original, natural
and exclusive right to the continental shelf off its shores, had come to
prevail over all others and was now reflected in the1958 Geneva
Convention. With regard to the delimitation of boundaries between the
continental shelves of adjacent States, the Truman Proclamation had
stated that such boundaries "shall be determined by the United States and
the State concerned in accordance with equitable principles". These two
concepts, of delimitation by mutual agreement and delimitation in
accordance with equitable principles, had underlain all the subsequent
history of the subject. It had been largely on the recommendation of a
committee of experts that the principle of equidistance for the
delimitation of continental shelf boundaries had been accepted by the
United Nations International Law Commission in the text it had laid
before the Geneva Conference of 1958 on the Law of the Sea which had
adopted the Continental Shelf Convention. It could legitimately be
assumed that the experts had been actuated by considerations not of legal
theory but of practical convenience and cartography. Moreover, the article
adopted by the Commission had given priority to delimitation by
agreement and had contained an exception in favour of "special
circumstances".
The Court consequently considered that Denmark and the Netherlands
inverted the true order of things and that, far from an equidistance rule
having been generated by an antecedent principle of proximity inherent in
the whole concept of continental shelf appurtenance, the latter was rather
a rationalization of the former
The Equidistance Principle Not a Rule of Customary International
Law (paras. 60-82 of the Judgment)
The question remained whether through positive law processes the
equidistance principle must now be regarded as a rule of customary
international law.
Rejecting the contentions of Denmark and the Netherlands, the Court
considered that the principle of equidistance, as it figured in Article 6 of
the Geneva Convention, had not been proposed by the International Law
Commission as an emerging rule of customary international law. This
Article could not be said to have reflected or crystallized such a rule. This
was confirmed by the fact that any State might make reservations in
respect of Article 6, unlike Articles 1, 2 and 3, on signing, ratifying or
acceding to the Convention. While certain other provisions of the
Convention, although relating to matters that lay within the field of
received customary law, were also not excluded from the faculty of
reservation, they all related to rules of general maritime law very
considerably antedating the Convention which were only incidental to
continental shelf rights as such, and had been mentioned in the
Convention simply to ensure that they were not prejudiced by the
exercise of continental shelf rights. Article 6, however, related directly to
continental shelf rights as such, and since it was not excluded from the
faculty of reservation, it was a legitimate inference that it was not
considered to reflect emergent customary law.
It had been argued on behalf of Denmark and the Netherlands that even if
at the date of the Geneva Convention no rule of customary international
law existed in favour of the equidistance principle, such a rule had
nevertheless come into being since the Convention, partly because of its
own impact, and partly on the basis of subsequent State practice. In order
for this process to occur it was necessary that Article 6 of the Convention
should, at all events potentially, be of a norm-creating character. Article 6
was so framed, however, as to put the obligation to make use of the
equidistance method after a primary obligation to effect delimitation by
agreement. Furthermore, the part played by the notion of special
circumstances in relation to the principle of equidistance, the
controversies as to the exact meaning and scope of that notion, and the
faculty of making reservations to Article 6 must all raise doubts as to the
potentially norm-creating character of that Article.
Furthermore, while a very widespread and representative participation in
a convention might show that a conventional rule had become a general
rule of international law, in the present case the number of ratifications
and accessions so far was hardly sufficient. As regards the time element,
although the passage of only a short period of time was not necessarily a

bar to the formation of a new rule of customary international law on the

basis of what was originally a purely conventional rule, it was
indispensable that State practice during that period, including that of
States whose interests were specially affected, should have been both
extensive and virtually uniform in the sense of the provision invoked and
should have occurred in such a way as to show a general recognition that
a rule of law was involved. Some 15 cases had been cited in which the
States concerned had agreed to draw or had drawn the boundaries
concerned according to the principle of equidistance, but there was no
evidence that they had so acted because they had felt legally compelled to
draw them in that way by reason of a rule of customary law. The cases
cited were inconclusive and insufficient evidence of a settled practice.
The Court consequently concluded that the Geneva Convention was not
in its origins or inception declaratory of a mandatory rule of customary
international law enjoining the use of the equidistance principle, its
subsequent effect had not been constitutive of such a rule, and State
practice up to date had equally been insufficient for the purpose.
The Principles and Rules of Law Applicable (paras. 83-101 of the
Judgment)
The legal situation was that the Parties were under no obligation to apply
the equidistance principle either under the 1958 Convention or as a rule
of general or customary international law. It consequently became
unnecessary for the Court to consider whether or not the configuration of
the German North Sea coast constituted a "special circumstance". It
remained for the Court, however, to indicate to the Parties the principles
and rules of law in the light of which delimitation was to be effected.
The basic principles in the matter of delimitation, deriving from the
Truman Proclamation, were that it must be the object of agreement
between the States concerned and that such agreement must be arrived at
in accordance with equitable principles. The Parties were under an
obligation to enter into negotiations with a view to arriving at an
agreement and not merely to go through a formal process of negotiation
as a sort of prior condition for the automatic application of a certain
method of delimitation in the absence of agreement; they were so to
conduct themselves that the negotiations were meaningful, which would
not be the case when one of them insisted upon its own position without
contemplating any modification of it. This obligation was merely a
special application of a principle underlying all international relations,
which was moreover recognized in Article 33 of the Charter of the United
Nations as one of the methods for the peaceful settlement of international
disputes.
The Parties were under an obligation to act in such a way that in the
particular case, and taking all the circumstances into account, equitable
principles were applied. There was no question of the Court's decision
being ex aequo et bono. It was precisely a rule of law that called for the
application of equitable principles, and in such cases as the present ones
the equidistance method could unquestionably lead to inequity. Other
methods existed and might be employed, alone or in combination,
according to the areas involved. Although the Parties intended themselves
to apply the principles and rules laid down by the Court some indication
was called for of the possible ways in which they might apply them.
For all the foregoing reasons, the Court found in each case that the use of
the equidistance method of delimitation was not obligatory as between
the Parties; that no other single method of delimitation was in all
circumstances obligatory; that delimitation was to be effected by
agreement in accordance with equitable principles and taking account of
all relevant circumstances, in such a way as to leave as much as possible
to each Party all those parts of the continental shelf that constituted a
natural prolongation of its land territory, without encroachment on the
natural prolongation of the land territory of the other; and that, if such
delimitation produced overlapping areas, they were to be divided between
the Parties in agreed proportions, or, failing agreement, equally, unless
they decided on a rgime of joint jurisdiction, user, or exploitation.
In the course of negotiations, the factors to be taken into account were to
include: the general configuration of the coasts of the Parties, as well as
the presence of any special or unusual features; so far as known or readily
ascertainable, the physical and geological structure and natural resources
of the continental shelf areas involved, the element of a reasonable degree
of proportionality between the extent of the continental shelf areas
appertaining to each State and the length of its coast measured in the
general direction of the coastline, taking into account the effects, actual or
prospective, of any other continental shelf delimitations in the same
region.

CASE CONCERNING THE MILITARY AND PARAMILITARY

ACTIVITIES
IN AND AGAINST NICARAGUA (NICARAGUA v. UNITED
STATES OF AMERICA)
(MERITS)
Judgment of 27 June 1986
For its judgment on the merits in the case concerning military and
Paramilitary Activities in and against Nicaragua brought by Nicaragua
against the United States of America, the Court was composed as follows:
President Nagendra Singh, Vice-President de Lacharrire; Judges Lachs,
Ruda, Elias, Oda, Ago, Sette-Camara, Schwebel, Sir Robert Jennings,
Mbaye, Bedjaoui, Ni, Evensen, Judge ad hoc Colliard
*
**
OPERATIVE PART OF THE COURT'S JUDGMENT
THE COURT
(1) By eleven votes to four,
Decides that in adjudicating the dispute brought before it by the
Application filed by the Republic of Nicaragua on 9 April 1984, the Court
is required to apply the "multilateral treaty reservation"contained in
proviso (c) to the declaration of acceptance of jurisdiction made under
Article 36, paragraph 2, of the Statute of the Court by the Government of
the Untied States of America deposited on 26 August 1946;
IN FAVOUR: President Nagendra Singh; Vice-President de
Lacharrire; Judges Lachs, Oda, Ago, Schwebel, Sir Robert Jennings,
Mbaye, Bedjaoui and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Ruda, Elias, Sette-Camara and Ni.
(2) By twelve votes to three,
Rejects the justification of collective self-defence maintained by the
United States of America in connection with the military and paramilitary
activities in and against Nicaragua the subject of this case;
IN FAVOUR: President Nagendra Singh; Vice-President de
Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(3) By twelve votes to three,
Decides that the United States of America, by training, arming,
equipping, financing and supplying the contra forces or otherwise
encouraging, supporting and aiding military and paramilitary activities in
and against Nicaragua, has acted, against the Republic of Nicaragua, in

breach of its obligation under customary international law not to

intervene in the affairs of another State;
IN FAVOUR: President Nagendra Singh; Vice-President de
Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(4) By twelve votes to three,
Decides that the United States of America, by certain attacks on
Nicaraguan territory in 1983-1984, namely attacks on Puerto Sandino on
13 September and 14 October 1983, an attack on Corinto on 10 October
1983; an attack on Potosi Naval Base on 4/5 January 1984, an attack on
San Juan del Sur on 7 March 1984; attacks on patrol boats at Puerto
Sandino on 28 and 30 March 1984; and an attack on San Juan del Norte
on 9 April 1984; and further by those acts of intervention referred to in
subparagraph (3) hereof which involve the use of force, has acted, against
the Republic of Nicaragua, in breach of its obligation under customary
international law not to use force against another State;
IN FAVOUR: President Nagendra Singh; Vice-President de
Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;

Decides that, by the acts referred to in subparagraph (6) hereof the United
States of America has acted, against the Republic of Nicaragua, in breach
of its obligations under Article XIX of the Treaty of Friendship,
Commerce and Navigation between the United States of America and the
Republic of Nicaragua signed at Managua on 21 January 1956;
IN FAVOUR: President Nagendra Singh, Vice-President de
Lacharrire; Judges Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Sir
Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad
hoc Colliard;
AGAINST: Judge Schwebel.
(8) By fourteen votes to one,
Decides that the United States of America, by failing to make known the
existence and location of the mines laid by it, referred to in subparagraph
(6) hereof, has acted in breach of its obligations under customary
international law in this respect;
IN FAVOUR: President Nagendra Singh; Vice-President de
Lacharrire, Judges Lachs, Ruda, Elias, Ago, Sette Camara, Schwebel,
Sir Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad
hoc Colliard;
AGAINST: Judge Oda.

AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.

(9) By fourteen votes to one,
(5) By twelve votes to three,
Decides that the United States of America, by directing or authorizing
over Rights of Nicaraguan territory, and by the acts imputable to the
United States referred to in subparagraph (4) hereof, has acted, against
the Republic of Nicaragua, in breach of its obligation under customary
international law not to violate the sovereignty of another State;
IN FAVOUR: President Nagendra Singh; Vice-President de
Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;

Finds that the United States of America, by producing in 1983 a manual

entitled "Operaciones sicolgicas en guerra de guerrillas", and
disseminating it to contra forces, has encouraged the commission by
them of acts contrary to general principles of humanitarian law; but does
not find a basis for concluding that any such acts which may have been
committed are imputable to the United States of America as acts of the
United States of America;

AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.

IN FAVOUR: President Nagendra Singh; Vice-President de

Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette Camara, Schwebel,
Sir Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad
hoc Colliard;

(6) By twelve votes to three,

AGAINST: Judge Oda.

Decides that, by laying mines in the internal or territorial waters of the

Republic of Nicaragua during the first months of 1984, the United States
of America has acted, against the Republic of Nicaragua, in breach of its
obligations under customary international law not to use force against
another State, not to intervene in its affairs, not to violate its sovereignty
and not to interrupt peaceful maritime commerce;

(10) By twelve votes to three,

IN FAVOUR: President Nagendra Singh, Vice-President de

Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;

Decides that the United States of America, by the attacks on Nicaraguan

territory referred to in subparagraph (4) hereof, and by declaring a
general embargo on trade with Nicaragua on 1 May 1985, has committed
acts calculated to deprive of its object and purpose the Treaty of
Friendship, Commerce and Navigation between the Parties signed at
Managua on 21 January 1956;

AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.

IN FAVOUR: President Nagendra Singh; Vice-President de

Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette Camara, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;

(7) By fourteen votes to one,

AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.

(11) By twelve votes to three,

Decides that the United States of America, by the attacks on Nicaraguan

territory referred to in subparagraph (4) hereof, and by declaring a
general embargo on trade with Nicaragua on 1 May 1985, has acted in
breach of its obligations under Article XIX of the Treaty of Friendship,
Commerce and Navigation between the Parties signed at Managua on 21
January 1956;
IN FAVOUR: President Nagendra Singh; Vice-President de
Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(12) By twelve votes to three,
Decides that the United States of America is under a duty immediately to
cease and to refrain from all such acts as may constitute breaches of the
foregoing legal obligations;
IN FAVOUR: President Nagendra Singh; Vice-President de
Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette Camara, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(13) By twelve votes to three,
Decides that the United States of America is under an obligation to make
reparation to the Republic of Nicaragua for all injury caused to Nicaragua
by the breaches of obligations under customary international law
enumerated above;
IN FAVOUR: President Nagendra Singh; Vice-President de
Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(14) By fourteen votes to one,

Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad

hoc Colliard;
AGAINST: Judge Schwebel.
(16) Unanimously,
Recalls to both Parties their obligation to seek a solution to their disputes
by peaceful means in accordance with international law.
SUMMARY OF THE JUDGMENT
I. Qualits (paras. 1 to 17)
II. Background to the dispute (paras. 18-25)
III. The non-appearance of the Respondent and Article 53 of the
Statute (paras. 26-31)
The Court recalls that subsequent to the delivery of its Judgment of 26
November 1984 on the jurisdiction of the Court and the admissibility of
Nicaragua's Application, the United States decided not to take part in the
present phase of the proceedings. This however does not prevent the
Court from giving a decision in the case, but it has to do so while
respecting the requirements of Article 53 of the Statute, which provides
for the situation when one of the parties does not appear. The Court's
jurisdiction being established, it has in accordance with Article 53 to
satisfy itself that the claim of the party appearing is well founded in fact
and law. In this respect the Court recalls certain guiding principles
brought out in a number of previous cases, one of which excludes any
possibility of a judgment automatically in favour of the party appearing.
It also observes that it is valuable for the Court to know the views of the
non-appearing party, even if those views are expressed in ways not
provided for in the Rules of Court. The principle of the equality of the
parties has to remain the basic principle, and the Court has to ensure that
the party which declines to appear should not be permitted to profit from
its absence.
IV. Justiciability of the dispute (paras. 32-35)

IN FAVOUR: President Nagendra Singh; Vice-President de

Lacharrire; Judges Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Sir
Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad
hoc Colliard;

The Court considers it appropriate to deal with a preliminary question. It

has been suggested that the questions of the use of force and collective
self-defence raised in the case fall outside the limits of the kind of
questions the Court can deal with, in other words that they are not
justiciable. However, in the first place the Parties have not argued that the
present dispute is not a "legal dispute" within the meaning of Article 36,
paragraph 2, of the Statute, and secondly, the Court considers that the
case does not necessarily involve it in evaluation of political or military
matters, which would be to overstep proper judicial bounds.
Consequently, it is equipped to determine these problems.

AGAINST: Judge Schwebel.

V. The significance of the multilateral treaty reservation (paras. 36-56)

(15) By fourteen votes to one,

The United States declaration of acceptance of the compulsory

jurisdiction of the Court under Article 36, paragraph 2, of the Statute
contained a reservation excluding from operation of the declaration

Decides that the United States of America is under an obligation to make

reparation to the Republic of Nicaragua for all injury caused to Nicaragua
by the breaches of the Treaty of Friendship, Commerce and Navigation
between the Parties signed at Managua on 21 January 1956;

Decides that the form and amount of such reparation, failing agreement
between the Parties, will be settled by the Court, and reserves for this
purpose the subsequent procedure in the case;
IN FAVOUR: President Nagendra Singh; Vice-President de
Lacharrire; Judges Lachs, Ruda, Elias, Oda, Ago, Sette Camara, Sir

"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".

In its Judgment of 26 November 1984 the Court found, on the basis of

Article 79, paragraph 7, of the Rules of Court, that the objection to
jurisdiction based on the reservation raised "a question concerning
matters of substance relating to the merits of the case" and that the
objection did "not possess, in the circumstances of the case, an
exclusively preliminary character". Since it contained both preliminary
aspects and other aspects relating to the merits, it had to be dealt with at
the stage of the merits.
In order to establish whether its jurisdiction were limited by the effect of
the reservation in question, the Court has to ascertain whether any third
States, parties to the four multilateral treaties invoked by Nicaragua, and
not parties to the proceedings, would be "affected" by the Judgment. Of
these treaties, the Court considers it sufficient to examine the position
under the United Nations Charter and the Charter of the Organization of
American States.
The Court examines the impact of the multilateral treaty reservation on
Nicaragua's claim that the United States has used force in breach of the
two Charters. The Court examines in particular the case of El Salvador,
for whose benefit primarily the United States claims to be exercising the
right of collective self-defence which it regards as a justification of its
own conduct towards Nicaragua, that right being endorsed by the United
Nations Charter (Art. 51) and the OAS Charter (Art. 21). The dispute is to
this extent a dispute "arising under" multilateral treaties to which the
United States, Nicaragua and El Salvador are Parties. It appears clear to
the Court that El Salvador would be "affected" by the Court's decision on
the lawfulness of resort by the United States to collective self-defence.

Court has treated these with caution. It regards than not as evidence
capable of proving facts, but as material which can nevertheless
contribute to corroborating the existence of a fact and be taken into
account to show whether certain facts are matters of public knowledge.
With regard tostatements by representatives of States, sometimes at the
highest level, the Court takes the view that such statements are of
particular probative value when they acknowledge facts or conduct
unfavourable to the State represented by the person who made them. With
regard to the evidence of witnesses presented by Nicaragua - five
witnesses gave oral evidence and another a written affidavit-one
consequence of the absence of the Respondent was that the evidence of
the witnesses was not tested by cross-examination. The Court has not
treated as evidence any part of the testimony which was a mere
expression of opinion as to the probability or otherwise of the existence
of a fact not directly known to the witness. With regard in particular
to affidavits and sworn statements made by members of a Government,
the Court considers that it can certainly retain such parts of this evidence
as may be regarded as contrary to the interests or contentions of the State
to which the witness has allegiance; for the rest such evidence has to be
treated with great reserve.
The Court is also aware of a publication of the United States State
Department entitled "Revolution Beyond Our Borders, Sandinista
Intervention in Central America" which was not submitted to the Court in
any form or manner contemplated by the Statute and Rules of Court. The
Court considers that, in view of the special circumstances of this case, it
may, within limits, make use of information in that publication.
VII. The facts imputable to the United States (paras. 75 to 125)

As to Nicaragua's claim that the United States has intervened in its affairs
contrary to the OAS Charter (Art. 18) the Court observes that it is
impossible to say that a ruling on the alleged breach of the Charter by the
United States would not "affect" El Salvador.
Having thus found that El Salvador would be "affected" by the decision
that the Court would have to take on the claims of Nicaragua based on
violation of the two Charters by the United States, the Court concludes
that the jurisdiction conferred on it by the United States declaration does
not permit it to entertain these claims. It makes it clear that the effect of
the reservation is confined to barring the applicability of these two
multilateral treaties 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, including customary international law.
VI. Establishment of the facts: evidence and methods employed by the
Court (paras. 57-74)
The Court has had to determine the facts relevant to the dispute. The
difficulty of its task derived from the marked disagreement between the
Parties, the non-appearance of the Respondent, the secrecy surrounding
certain conduct, and the fact that the conflict is continuing. On this last
point, the Court takes the view, in accordance with the general principles
as to the judicial process, that the facts to be taken into account should be
those occurring up to the close of the oral proceedings on the merits of
the case (end of September 1985).
With regard to the production of evidence, the Court indicates how the
requirements of its Statute - in particular Article 53 - and the Rules of
Court have to be met in the case, on the basis that the Court has freedom
in estimating the value of the various elements of evidence. It has not
seen fit to order an enquiry under Article 50 of the Statute. With regard to
certain documentary material (press articles and various books), the

1. The Court examines the allegations of Nicaragua that the mining of

Nicaraguan ports or waters was carried out by United States military
personnel or persons of the nationality of Latin American countries in the
pay of the United States. After examining the facts, the Court finds it
established that, on a date in late 1983 or early 1984, the President of the
United States authorized a United States Government agency to lay mines
in Nicaraguan ports, that in early 1984 mines were laid in or close to the
ports of El Bluff, Corinto and Puerto Sandino, either in Nicaraguan
internal waters or in its territorial sea or both, by persons in the pay and
acting on the instructions of that agency, under the supervision and with
the logistic support of United States agents; that neither before the laying
of the mines, nor subsequently, did the United States Government issue
any public and official warning to international shipping of the existence
and location of the mines; and that personal and material injury was
caused by the explosion of the mines, which also created risks causing a
rise in marine insurance rates.
2. Nicaragua attributes to the direct action of United States personnel, or
persons in its pay, operations against oil installations, a naval base,
etc.,listed in paragraph 81 of the Judgment. The Court finds all these
incidents, except three, to be established. Although it is not proved that
any United States military personnel took a direct part in the operations,
United States agents participated in the planning, direction and support.
The imputability to the United States of these attacks appears therefore to
the Court to be established.
3. Nicaragua complains of infringement of its air space by United States
military aircraft. After indicating the evidence available, the Court finds
that the only violations of Nicaraguan air space imputable to the United
States on the basis of the evidence are high altitude reconnaissance flights
and low altitude flights on 7 to 11 November 1984 causing "sonic
booms".

With regard to joint military manoeuvres with Honduras carried out by

the United States on Honduran territory near the Honduras/Nicaragua
frontier, the Court considers that they may be treated as public knowledge
and thus sufficiently established.
4. The Court then examines the genesis, development and activities of the
contra force, and the role of the United States in relation to it. According
to Nicaragua, the United States "conceived, created and organized a
mercenary army, the contra force". On the basis of the available
information, the Court is not able to satisfy itself that the Respondent
State "created" the contra force in Nicaragua, but holds it established that
it largely financed, trained, equipped, armed and organized the FDN, one
element of the force.
It is claimed by Nicaragua that the United States Government devised the
strategy and directed the tactics of the contra force, and provided direct
combat support for its military operations. In the light of the evidence and
material available to it, the Court is not satisfied that all the operations
launched by the contra force, at every stage of the conflict, reflected
strategy and tactics solely devised by the United States. It therefore
cannot uphold the contention of Nicaragua on this point. The Court
however finds it clear that a number of operations were decided and
planned, if not actually by the United States advisers, then at least in
close collaboration with them, and on the basis of the intelligence and
logistic support which the United States was able to offer. It is also
established in the Court's view that the support of the United States for
the activities of the contras took various forms over the years, such as
logistic support the supply of information on the location and movements
of the Sandinista troops, the use of sophisticated methods of
communication, etc. The evidence does not however warrant a finding
that the United States gave direct combat support, if that is taken to mean
direct intervention by United States combat forces.
The Court has to determine whether the relationship of the contras to the
United States Government was such that it would be right to equate
thecontras, for legal purposes, with an organ of the United States
Government, or as acting on behalf of that Government. The Court
considers that the evidence available to it is insufficient to demonstrate
the total dependence of the contras on United States aid. A partial
dependency, the exact extent of which the Court cannot establish, may be
inferred from the fact that the leaders were selected by the United States,
and from other factors such as the organisation, training and equipping of
the force, planning of operations, the choosing of targets and the
operational support provided. There is no clear evidence that the United
States actually exercised such a degree of control as to justify treating
the contras as acting on its behalf.
5. Having reached the above conclusion, the Court takes the view that
the contras remain responsible for their acts, in particular the alleged
violations by them of humanitarian law. For the United States to be
legally responsible, it would have to be proved that that State had
effective control of the operations in the course of which the alleged
violations were committed.
6. Nicaragua has complained of certain measures of an economic
nature taken against it by the Government of the United States, which it
regards as an indirect form of intervention in its internal affairs.
Economic aid was suspended in January 1981, and terminated in April
1981; the United States acted to oppose or block loans to Nicaragua by
international financial bodies; the sugar import quota from Nicaragua was
reduced by 90 percent in September 1983; and a total trade embargo on
Nicaragua was declared by an executive order of the President of the
United States on 1 May 1985.

VIII. The conduct of Nicaragua (paras. 126-171)

The Court has to ascertain, so far as possible, whether the activities of the
United States complained of, claimed to have been the exercise of
collective self-defence, may be justified by certain facts attributable to
Nicaragua.
1. The United States has contended that Nicaragua was actively
supporting armed groups operating in certain of the neighbouring
countries,particularly in El Salvador, and specifically in the form of
the supply of arms, an accusation which Nicaragua has repudiated. The
Court first examines the activity of Nicaragua with regard to El Salvador.
Having examined various evidence, and taking account of a number of
concordant indications, many of which were provided by Nicaragua
itself, from which the Court can reasonably infer the provision of a
certain amount of aid from Nicaraguan territory, the Court concludes that
support for the armed opposition in El Salvador from Nicaraguan
territory was a fact up to the early months of 1981. Subsequently,
evidence of military aid from or through Nicaragua remains very weak,
despite the deployment by the United States in the region of extensive
technical monitoring resources. The Court cannot however conclude that
no transport of or traffic in arms existed. It merely takes note that the
allegations of arms traffic are not solidly established, and has not been
able to satisfy itself that any continuing flow on a significant scale took
place after the early months of 1981.
Even supposing it were established that military aid was reaching the
armed opposition in El Salvador from the territory of Nicaragua, it skill
remains to be proved that such aid is imputable to the authorities of
Nicaragua, which has not sought to conceal the possibility of weapons
crossing its territory, but denies that this is the result of any deliberate
official policy on its part. Having regard to the circumstances
characterizing this part of Central America, the Court considers that it is
scarcely possible for Nicaragua's responsibility for arms traffic on its
territory to be automatically assumed. The Court considers it more
consistent with the probabilities to recognize that an activity of that
nature, if on a limited scale, may very well be pursued unknown to the
territorial government. In any event the evidence is insufficient to satisfy
the Court that the Government of Nicaragua was responsible for any flow
of arms at either period.
2. The United States has also accused Nicaragua of being responsible
for cross-border military attacks on Honduras and Costa Rica. While not
as fully informed on the question as it would wish to be, the Court
considers as established the fact that certain trans-border military
incursions are imputable to the Government of Nicaragua.
3. The Judgment recalls certain events which occurred at the time of the
fall of President Somoza, since reliance has been placed on them by the
United States to contend that the present Government of Nicaragua is in
violation of certain alleged assurances given by its immediate
predecessor. The Judgment refers in particular to the "Plan to secure
peace" sent on 12 July 1979 by the "Junta of the Government of National
Reconstruction" of Nicaragua to the Secretary-General of the OAS,
mentioning, inter alia, its "firm intention to establish full observance of
human rights in our country" and "to call the first free elections our
country has known in this century". The United States considers that it
has a special responsibility regarding the implementation of these
commitments.
IX. The applicable law: customary international law (paras. 172-182)

The Court has reached the conclusion (section V, in fine) that it has to
apply the multilateral treaty reservation in the United States declaration,
the consequential exclusion of multilateral treaties being without
prejudice either to other treaties or other sources of law enumerated in
Article 38 of the Statute. In order to determine the law actually to be
applied to the dispute, it has to ascertain the consequences of the
exclusion of the applicability of the multilateral treaties for the definition
of the content of the customary international law which remains
applicable.
The Court, which has already commented briefly on this subject in the
jurisdiction phase (I.C.J. Reports 1984, pp. 424 and 425, para. 73),
develops its initial remarks. It does not consider that it can be claimed, as
the United States does, that all the customary rules which may be invoked
have a content exactly identical to that of the rules contained in the
treaties which cannot be applied by virtue of the United States
reservation. Even if a treaty norm and a customary norm relevant to the
present dispute were to have exactly the same content, this would not be a
reason for the Court to take the view that the operation of the treaty
process must necessarily deprive the customary norm of its separate
applicability. Consequently, the Court is in no way bound to uphold
customary rules only in so far as they differ from the treaty rules which it
is prevented by the United States reservation from applying.

The general rule prohibiting force established in customary law allows

for certain exceptions. The exception of the right of individual or
collective self-defence is also, in the view of States, established in
customary law, as is apparent for example from the terms of Article 51 of
the United Nations Charter, which refers to an "inherent right", and from
the declaration in resolution 2625 (XXV). The Parties, who consider the
existence of this right to be established as a matter of customary
international law, agree in holding that whether the response to an attack
is lawful depends on the observance of the criteria of the necessity and
the proportionality of the measures taken in self-defence.
Whether self-defence be individual or collective, it can only be exercised
in response to an "armed attack". In the view of the Court, this is to be
understood as meaning not merely action by regular armed forces across
an international border, but also the sending by a State of armed bands on
to the territory of another State, if such an operation, because of its scale
and effects, would have been classified as an armed attack had it been
carried out by regular armed forces. The Court quotes the definition of
aggression annexed to General Assembly resolution 3314 (XXIX) as
expressing customary law in this respect.

In response to an argument of the United States, the Court considers that

the divergence between the content of the customary norms and that of
the treaty law norms is not such that a judgment confined to the field of
customary international law would not be susceptible of compliance or
execution by the parties.

The Court does not believe that the concept of "armed attack" includes
assistance to rebels in the form of the provision of weapons or logistical
or other support. Furthermore, the Court finds that in customary
international law, whether of a general kind or that particular to the interAmerican legal system, there is no rule permitting the exercise of
collective self-defence in the absence of a request by the State which is a
victim of the alleged attack, this being additional to the requirement that
the State in question should have declared itself to have been attacked.

X. The content of the applicable law (paras. 183 to 225)

3. The principle of non-intervention (paras. 202 to 209)

1. Introduction: general observations (paras. 183-186)

The principle of non-intervention involves the right of every sovereign

State to conduct its affairs without outside interference. Expressions of
anopinio juris of States regarding the existence of this principle are
numerous. The Court notes that this principle, stated in its own
jurisprudence, has been reflected in numerous declarations and
resolutions adopted by international organizations and conferences in
which the United States and Nicaragua have participated. The text thereof
testifies to the acceptance by the United States and Nicaragua of a
customary principle which has universal application. As to the content of
the principle in customary law, the Court defines the constitutive
elements which appear relevant in this case: a prohibited intervention
must be one bearing on matters in which each State is permitted, by the
principle of State sovereignty, to decide freely (for example the choice of
a political, economic, social and cultural system, and formulation of
foreign policy). Intervention is wrongful when it uses, in regard to such
choices, methods of coercion, particularly force, either in the direct form
of military action or in the indirect form of support for subversive
activities in another State.

The Court has next to consider what are the rules of customary law
applicable to the present dispute. For this purpose it has to consider
whether a customary rule exists in the opinio juris of States,and satisfy
itself that it is confirmed by practice.
2. The prohibition of the use of force, and the right of self-defence (paras.
187 to 201)
The Court finds that both Parties take the view that the principles as to
the use of force incorporated in the United Nations Charter correspond, in
essentials, to those found in customary international law. They therefore
accept a treaty-law obligation to refrain in their international relations
from the threat or use of force against the territorial integrity or political
independence of any State, or in any other manner inconsistent with the
purposes of the United Nations (Art. 2, para. 4, of the Charter). The Court
has however to be satisfied that there exists in customary law an opinio
juris as to the binding character of such abstention. It considers that
this opinio juris may be deduced from, inter alia, the attitude of the
Parties and of States towards certain General Assembly resolutions, and
particularly resolution 2625 (XXV) entitled "Declaration on Principles of
International Law concerning Friendly Relations and Co-operation
among States in Accordance with the Charter of the United Nations".
Consent to such resolutions is one of the forms of expression of an opinio
juris with regard to the principle of non-use of force, regarded as a
principle of customary international law, independently of the provisions,
especially those of an institutional kind, to which it is subject on the
treaty-law plane of the Charter.

With regard to the practice of States, the Court notes that there have been
in recent years a number of instances of foreign intervention in one State
for the benefit of forces opposed to the government of that State. It
concludes that the practice of States does not justify the view that any
general right of intervention in support of an opposition within another
State exists in contemporary international law; and this is in fact not
asserted either by the United States or by Nicaragua.
4. Collective counter-measures in response to conduct not amounting to
armed attack (paras. 210 and 211)

The Court then considers the question whether, if one State acts towards
another in breach of the principle of non-intervention, a third State may
lawfully take action by way of counter-measures which would amount to
an intervention in the first State's internal affairs. This would be
analogous to the right of self-defence in the case of armed attack, but the
act giving rise to the reaction would be less grave, not amounting to
armed attack. In the view of the Court, under international law in force
today, States do not have a right of "collective" armed response to acts
which do not constitute an "armed attack".
5. State sovereignty (paras. 212 to 214)
Turning to the principle of respect for State sovereignty, the Court recalls
that the concept of sovereignty, both in treaty-law and in customary
international law, extends to the internal waters and territorial sea of
every State and to the airspace above its territory. It notes that the laying
of mines necessarily affects the sovereignty of the coastal State, and that
if the right of access to ports is hindered by the laying of mines by
another State, what is infringed is the freedom of communications and of
maritime commerce.

Having set out the facts of the case and the rules of international law
which appear to be in issue as a result of those facts, the Court has now to
appraise the facts in relation to the legal rules applicable, and determine
whether there are present any circumstances excluding the unlawfulness
of particular acts.
1. The prohibition of the use of force and the right of self-defence (paras.
227 to 238)
Appraising the facts first in the light of the principle of the non-use of
force, the Court considers that the laying of mines in early 1984 and
certain attacks on Nicaraguan ports, oil installations and naval bases,
imputable to the United States constitute infringements of this principle,
unless justified by circumstances which exclude their unlawfulness. It
also considers that the United States has committed a prima facie
violation of the principle by arming and training the contras, unless this
can be justified as an exercise of the right of self-defence.
On the other hand, it does not consider that military manoeuvres held by
the United States near the Nicaraguan borders, or the supply of funds to
the contras, amounts to a use of force.

6. Humanitarian law (paras. 215 to 220)

The Court observes that the laying of mines in the waters of another State
without any warning or notification is not only an unlawful act but also a
breach of the principles of humanitarian law underlying the Hague
Convention No. VIII of 1907. This consideration leads the Court on to
examination of the international humanitarian law applicable to the
dispute. Nicaragua has not expressly invoked the provisions of
international humanitarian law as such, but has complained of acts
committed on its territory which would appear to be breaches thereof. In
its submissions it has accused the United States of having killed,
wounded and kidnapped citizens of Nicaragua. Since the evidence
available is insufficient for the purpose of attributing to the United States
the acts committed by the contras, the Court rejects this submission.
The question however remains of the law applicable to the acts of the
United States in relation to the activities of the contrast Although
Nicaragua has refrained from referring to the four Geneva Conventions of
12 August 1949, to which Nicaragua and the United States are parties, the
Court considers that the rules stated in Article 3, which is common to the
four Conventions, applying to armed conflicts of a non-international
character, should be applied. The United States is under an obligation to
"respect" the Conventions and even to "ensure respect" for them, and thus
not to encourage persons or groups engaged in the conflict in Nicaragua
to act in violation of the provisions of Article 3. This obligation derives
from the general principles of humanitarian law to which the Conventions
merely give specific expression.
7. The 1956 treaty (paras. 221 to 225)
In its Judgment of 26 November 1984, the Court concluded that it had
jurisdiction to entertain claims concerning the existence of a dispute
between the United States and Nicaragua as to the interpretation or
application of a number of articles of the treaty of Friendship, Commerce
and Navigation signed at Managua on 21 January 1956. It has to
determine the meaning of the various relevant provisions, and in
particular of Article XXI, paragraphs I (c) and I (d), by which the parties
reserved the power to derogate from the other provisions.
XI. Application of the law to the facts (paras. 226 to 282)

The Court has to consider whether the acts which it regards as breaches
of the principle may be justified by the exercise of the right of collective
self-defence, and has therefore to establish whether the circumstances
required are present. For this, it would first have to find that Nicaragua
engaged in an armed attack against El Salvador, Honduras or Costa Rica,
since only such an attack could justify reliance on the right of selfdefence. As regards El Salvador, the Court considers that in customary
international law the provision of arms to the opposition in another State
does not constitute an armed attack on that State. As regards Honduras
and Costa Rica, the Court states that, in the absence of sufficient
information as to the transborder incursions into the territory of those two
States from Nicaragua, it is difficult to decide whether they amount,
singly or collectively, to an armed attack by Nicaragua. The Court finds
that neither these incursions nor the alleged supply of arms may be relied
on as justifying the exercise of the right of collective self-defence.
Secondly, in order to determine whether the United States was justified in
exercising self-defence, the Court has to ascertain whether the
circumstances required for the exercise of this right of collective selfdefence were present, and therefore considers whether the States in
question believed that they were the victims of an armed attack by
Nicaragua, and requested the assistance of the United States in the
exercise of collective self-defence. The Court has seen no evidence that
the conduct of those States was consistent with such a situation.
Finally, appraising the United States activity in relation to the criteria of
necessity and proportionality, the Court cannot find that the activities in
question were undertaken in the light of necessity, and finds that some of
them cannot be regarded as satisfying the criterion of proportionality.
Since the plea of collective self-defence advanced by the United States
cannot be upheld, it follows that the United States has violated the
principle prohibiting recourse to the threat or use of force by the acts
referred to in the first paragraph of this section.
2. The principle of non-intervention (paras. 239 to 245)
The Court finds it clearly established that the United States intended, by
its support of the contras, to coerce Nicaragua in respect of matters in
which each State is permitted to decide freely, and that the intention of

the contras themselves was to overthrow the present Government of

Nicaragua. It considers that if one State, with a view to the coercion of
another State, supports and assists armed bands in that State whose
purpose is to overthrow its government, that amounts to an intervention
in its internal affairs, whatever the political objective of the State giving
support. It therefore finds that the support given by the United States to
the military and paramilitary activities of the contras in Nicaragua, by
financial support, training, supply of weapons, intelligence and logistic
support, constitutes a clear breach of the principle of non-intervention.
Humanitarian aid on the other hand cannot be regarded as unlawful
intervention. With effect from 1 October 1984, the United States
Congress has restricted the use of funds to "humanitarian assistance" to
the contrast The Court recalls that if the provision of "humanitarian
assistance" is to escape condemnation as an intervention in the internal
affairs of another State, it must be limited to the purposes hallowed in the
practice of the Red Cross, and above all be given without discrimination.
With regard to the form of indirect intervention which Nicaragua sees in
the taking of certain action of an economic nature against it by the United
States, the Court is unable to regard such action in the present case as a
breach of the customary law principle of non-intervention.
3. Collective counter-measures in response to conduct not amounting to
armed attack (paras. 246 to 249)
Having found that intervention in the internal affairs of another State does
not produce an entitlement to take collective counter-measures involving
the use of force, the Court finds that the acts of which Nicaragua is
accused, even assuming them to have been established and imputable to
that State, could not justify counter-measures taken by a third State, the
United States, and particularly could not justify intervention involving the
use of force.
4. State sovereignty (paras. 250 to 253)
The Court finds that the assistance to the contras, the direct attacks on
Nicaraguan ports, oil installations, etc., the mining operations in
Nicaraguan ports, and the acts of intervention involving the use of force
referred to in the Judgment, which are already a breach of the principle of
non-use of force, are also an infringement of the principle of respect for
territorial sovereignty. This principle is also directly infringed by the
unauthorized overflight of Nicaraguan territory. These acts cannot be
justified by the activities in El Salvador attributed to Nicaragua; assuming
that such activities did in fact occur, they do not bring into effect any
right belonging to the United States. The Court also concludes that, in the
context of the present proceedings, the laying of mines in or near
Nicaraguan ports constitutes an infringement, to Nicaragua's detriment, of
the freedom of communications and of maritime commerce.
5. Humanitarian law (paras. 254 to 256)
The Court has found the United States responsible for the failure to give
notice of the mining of Nicaraguan ports.
It has also found that, under general principles of humanitarian law, the
United States was bound to refrain from encouragement of persons or
groups engaged in the conflict in Nicaragua to commit violations of
common Article 3 of the four Geneva Conventions of 12 August 1949.
The manual on "Psychological Operations in Guerrilla Warfare", for the
publication and dissemination of which the United States is responsible,
advises certain acts which cannot but be regarded as contrary to that
article.

6. Other grounds mentioned in justification of the acts of the United

States (paras. 257 to 269)
The United States has linked its support to the contras with alleged
breaches by the Government of Nicaragua of certain solemn
commitments to the Nicaraguan people, the United States and the OAS.
The Court considers whether there is anything in the conduct of
Nicaragua which might legally warrant counter-measures by the United
States in response to the alleged violations. With reference to the "Plan to
secure peace" put forward by the Junta of the Government of National
Reconstruction (12 July 1979), the Court is unable to find anything in the
documents and communications transmitting the plan from which it can
be inferred that any legal undertaking was intended to exist. The Court
cannot contemplate the creation of a new rule opening up a right of
intervention by one State against another on the ground that the latter has
opted for some particular ideology or political system. Furthermore the
Respondent has not advanced a legal argument based on an alleged new
principle of "ideological intervention".
With regard more specifically to alleged violations of human rights relied
on by the United States, the Court considers that the use of force by the
United States could not be the appropriate method to monitor or ensure
respect for such rights, normally provided for in the applicable
conventions. With regard to the alleged militarization of Nicaragua, also
referred to by the United States to justify its activities, the Court observes
that in international law there are no rules, other than such rules as may
be accepted by the State concerned, by treaty or otherwise, whereby the
level of armaments of a sovereign State can be limited, and this principle
is valid for all States without exception.
7. The 1956 Treaty (paras. 270 to 282)
The Court turns to the claims of Nicaragua based on the Treaty of
Friendship, Commerce and Navigation of 1956, and the claim that the
United States has deprived the Treaty of its object and purpose and
emptied it of real content. The Court cannot however entertain these
claims unless the conduct complained of is not "measures . . . necessary
to protect the essential security interests" of the United States, since
Article XXI of the Treaty provides that the Treaty shall not preclude the
application of such measures. With regard to the question what activities
of the United States might have been such as to deprive the Treaty of its
object and purpose, the Court makes a distinction. It is unable to regard
all the acts complained of in that light, but considers that there are certain
activities which undermine the whole spirit of the agreement. These are
the mining of Nicaraguan ports, the direct attacks on ports, oil
installations, etc., and the general trade embargo.
The Court also upholds the contention that the mining of the ports is in
manifest contradiction with the freedom of navigation and commerce
guaranteed by Article XIX of the Treaty. It also concludes that the trade
embargo proclaimed on 1 May 1985 is contrary to that article.
The Court therefore finds that the United States is prima facie in breach
of an obligation not to deprive the 1956 Treaty of its object and
purpose(pacta sunt servanda), and has committed acts in contradiction
with the terms of the Treaty. The Court has however to consider whether
the exception in Article XXI concerning "measures . . . necessary to
protect the essential security interests" of a Party may be invoked to
justify the acts complained of. After examining the available material,
particularly the Executive Order of President Reagan of 1 May 1985, the
Court finds that the mining of Nicaraguan ports, and the direct attacks on
ports and oil installations, and the general trade embargo of 1 May 1985,

cannot be justified as necessary to protect the essential security interests

of the United States.
XII. The claim for reparation (paras. 283 to 285)
The Court is requested to adjudge and declare that compensation is due to
Nicaragua, the quantum thereof to be fixed subsequently, and to award to
Nicaragua the sum of 370.2 million US dollars as an interim award. After
satisfying itself that it has jurisdiction to order reparation, the Court
considers appropriate the request of Nicaragua for the nature and amount
of the reparation to be determined in a subsequent phase of the
proceedings. It also considers that there is no provision in the Statute of
the Court either specifically empowering it or debarring it from making
an interim award of the kind requested. In a cases in which one Party is
not appearing, the Court should refrain from any unnecessary act which
might prove an obstacle to a negotiated settlement. The Court therefore
does not consider that it can accede at this stage to this request by
Nicaragua.
XIII. The provisional measures (paras. 286 to 289)
After recalling certain passages in its Order of 10 May 1984, the Court
concludes that it is incumbent on each Party not to direct its conduct
solely by reference to what it believes to be its rights. Particularly is this
so in a situation of armed conflict where no reparation can efface the
results of conduct which the Court may rule to have been contrary to
international law
XIV. Peaceful settlement of disputes; the Contadora process (paras. 290
to 291)
In the present case the Court has already taken note of the Contadora
process, and of the fact that it had been endorsed by the United Nations
Security Council and General Assembly, as well as by Nicaragua and the
United States. It recalls to both Parties to the present case the need to cooperate with the Contadora efforts in seeking a definitive and lasting
peace in Central America, in accordance with the principle of customary
international law that prescribes the peaceful settlement of international
disputes, also endorsed by Article 33 of the United Nations Charter.

CASE CONCERNING RIGHT OF PASSAGE OVER

INDIAN TERRITORY (MERITS)
Judgment of 12 April 1960
The case concerning Right of Passage over Indian Territory
(Portugal v. India) was referred to the Court by an Application filed on 22
December 1955. In that Application, the Government of Portugal stated
that its territory in the Indian Peninsula included two enclaves surrounded
by the Territory of India, Dadra and Nagar-Aveli. It was in respect of the
communications between those enclaves and the coastal district of
Daman, and between each other, that the question arose of a right of
passage in favour of Portugal through Indian territory and of a correlative
obligation binding upon India. The Application stated that in July 1954
the Government of India prevented Portugal from exercising that right of
passage and that Portugal was thus placed in a position in which it
became impossible for it to exercise its rights of sovereignty over the
enclaves.

Following upon the Application, the Court was seised of six preliminary
objections raised by the Government of India. By a Judgment given on 26
November 1957, the Court rejected the first four objections and joined
the fifth and sixth objections to the Merits.
In its Judgment, the Court:
(a) rejected the Fifth Preliminary Objection by 13 votes to 2;
(b) rejected the Sixth Preliminary Objection by 11 votes to 4;
(c) found, by 11 votes to 4, that Portugal had in 1954 a right of passage
over intervening Indian territory between the enclaves of Dadra and
Nagar-Aveli and the coastal district of Daman and between these
enclaves, to the extent necessary for the exercise of Portuguese
sovereignty over the enclaves and subject to the regulation and control of
India, in respect of private persons, civil of officials and goods in general;
(d) found, by 8 votes to 7, that Portugal did not have in 1954 such a right
of passage in respect of armed forces, armed police and arms and
ammunition;
(e) found, by 9 votes to 6, that India had not acted contrary to its
obligations resulting from Portugal's right of passage in respect of private
persons, civil officials and goods in general.
The President and Judges Basdevant, Badawi, Kojevnikov and
Spiropoulos appended Declarations to the Judgment of the Court. Judge
Wellington Koo appended a Separate Opinion. Judges Winiarski and
Badawi appended a Joint Dissenting Opinion. Judges Armand-Ugon,
Moreno Quintana and Sir Percy Spender, and Judges ad hoc Chagla and
Fernandes, appended Dissenting Opinions.
*
**
In its Judgment the Court referred to the Submissions filed by Portugal
which in the first place requested the Court to adjudge and declare that a
right of passage was possessed by Portugal and must be respected by
India; this right was invoked by Portugal only to the extent necessary for
the exercise of its sovereignty over the enclaves, and it was not contended
that passage was accompanied by any immunity and made clear that such
passage remained subject to the regulation and control of India, which
must be exercised in good faith, India being under an obligation not to
prevent the transit necessary for the exercise of Portuguese sovereignty.
The Court then considered the date with reference to which it must
ascertain whether the right invoked existed or did not exist. The question
as to the existence of a right of passage having been put to the Court in
respect of the dispute which had arisen with regard to obstacles placed by
India in the way of passage, it was the eve of the creation of those
obstacles that must be selected as the standpoint from which to certain
whether or not such a right existed; the selection of that date would leave
open the arguments of India regarding the subsequent lapse of the right of
passage.
Portugal next asked the Court to adjudge and declare that India had not
complied with the obligations incumbent upon it by virtue of the right of
passage. But the Court pointed out that it had not been asked, either in the
Application or in the final Submissions of the Parties, to decide whether
or not India's attitude towards those who had instigated the over-throw of

Portuguese authority at Dadra and Nagar-Aveli in July and August 1954

constituted a breach of the obligation, said to be binding upon it under
general international law, to adopt suitable measures to prevent the
incursion of subversive elements into the territory of another State.
Turning then to the future, the Submissions of Portugal requested the
Court to decide that India must end the measures by which it opposed the
exercise of the right of passage or, if the Court should be of opinion that
there should be a temporary suspension of the right, to hold that that
suspension should end as soon as the course of events disclosed that the
justification for the suspension had disappeared. Portugal had previously
invited the Court to hold that the arguments of India concerning its right
to adopt an attitude of neutrality, the application of the United Nations
Charter and the existence in the enclaves of a local government were
without foundation. The Court, however, considered that it was no part of
its judicial function to declare in the operative part of its Judgment that
any of those arguments was or was not well founded.
*
**
Before proceeding to the consideration of the Merits, the Court had to
ascertain whether it had jurisdiction to do so, a jurisdiction which India
had expressly contested.
In its Fifth Preliminary Objection the Government of India relied upon
the reservation in its Declaration of 28 February 1940 accepting the
jurisdiction of the Court, which excluded from that jurisdiction disputes
with regard to questions which by international law fall exclusively
within the jurisdiction of India. The Court pointed out that in the course
of the proceedings both Parties had taken their stand on grounds which
were on the plane of international law, and had on occasion expressly said
so. The fifth objection could not therefore be upheld.
The Sixth Preliminary Objection likewise related to a limitation in the
Declaration of 28 February 1940. India, which had accepted the
jurisdiction of the Court "over all disputes arising after February 5th,
1930, with regard to situations or facts subsequent to the same date",
contended that the dispute did not satisfy either of these two conditions.
As to the first condition, the Court pointed out that the dispute could not
have arisen until all its constituent elements had come into existence;
among these were the obstacles which India was alleged to have placed in
the way of exercise of passage by Portugal in 1954; even if only that part
of the dispute relating to the Portuguese claim to a right of passage were
to be considered, certain incidents had occurred before 1954, but they had
not led the Parties to adopt clearly-defined legal positions as against each
other; accordingly, there was no justification for saying that the dispute
arose before 1954. As to the second condition, the Permanent Court of
International Justice had in 1938 drawn a distinction between the
situations or facts which constituted the source of the rights claimed by
one of the Parties, and the situations or facts which were the source of the
dispute. Only the latter were to be taken into account for the purpose of
applying the Declaration. The dispute submitted to the Court was one
with regard to the situation of the enclaves, which had given rise to
Portugal's claim to a right of passage and, at the same time, with regard to
the facts of 1954 which Portugal advanced as infringements of that right;
it was from all of this that the dispute arose, and this whole, whatever
may have been the earlier origin of one of its parts, came into existence
only after 5 February 1930. The Court had not been asked for any finding
whatsoever with regard to the past prior to that date; it was therefore of

opinion that the sixth objection should not be upheld and, consequently,
that it had jurisdiction.
*
**
On the merits, India had contended in the first place that the right of
passage claimed by Portugal was too vague and contradictory to enable
the Court to pass judgment upon it by the application of the legal rules
enumerated in Article 38 (1) of the Statute. There was no doubt that the
day-to-day exercise of the right might give rise to delicate questions of
application but that was not, in the view of the Court, sufficient ground
for holding that the right was not susceptible of judicial determination.
Portugal had relied on the Treaty of Poona of 1779 and
on sanads (decrees) issued by the Maratha ruler in 1783 and 1785, as
having conferred on Portugal sovereignty over the enclaves with the right
of passage to them; India had objected that what was alleged to be the
Treaty of 1779 was not validly entered into and never became in law a
treaty binding upon the Marathas. The Court, however, found that the
Marathas did not at any time cast any doubt upon the validity or binding
character of the Treaty. India had further contended that the Treaty and
the two sanads did not operate to transfer sovereignty over the assigned
villages to Portugal but only conferred, with respect to the villages, a
revenue grant. The Court was unable to conclude from an examination of
the various texts of the Treaty of 1779 that the language employed therein
was intended to transfer sovereignty; the expressions used in the
two sanads, on the other hand, established that what was granted to the
Portuguese was only a revenue tenure called ajagir or saranjam, and not
a single instance had been brought to the notice of the Court in which
such a grant had been construed as amounting to a cession of sovereignty.
There could, therefore, be no question of any enclave or of any right of
passage for the purpose of exercising sovereignty over enclaves.
The Court found that the situation underwent a change with the advent of
the British as sovereign of that part of the country in place of the
Marathas: Portuguese sovereignty over the villages had been recognized
by the British in fact and by implication and had subsequently been
tacitly recognized by India. As a consequence the villages had acquired
the character of Portuguese enclaves within Indian territory and there had
developed between the Portuguese and the territorial sovereign with
regard to passage to the enclaves a practice upon which Portugal relied
for the purpose of establishing the right of passage claimed by it. It had
been objected on behalf of India that no local custom could be established
between only two States, but the Court found it difficult to see why the
number of States between which a local custom might be established on
the basis of long practice must necessarily be larger than two.
It was common ground between the Parties that during the British and
post-British periods the passage of private persons and civil officials had
not been subject to any restrictions beyond routine control. Merchandise
other than arms and ammunition had also passed freely subject only, at
certain times, to customs regulations and such regulation and control as
were necessitated by considerations of security or revenue. The Court
therefore concluded that, with regard to private persons, civil officials and
goods in general there had existed a constant and uniform practice
allowing free passage between Daman and the enclaves, it was, in view
of all the circumstances of the case, satisfied that that practice had been
accepted as law by the Parties and had given rise to a right and a
correlative obligation.

As regards armed forces, armed police and arms and ammunition, the
position was different.
It appeared that, during the British and post-British periods, Portuguese
armed forces and armed police had not passed between Daman and the
enclaves as of right, and that after 1878 such passage could only take
place with previous authorization by the British and later by India,
accorded either under a reciprocal arrangement already agreed to, or in
individual cases: it had been argued that that permission was always
granted, but there was nothing in the record to show that grant of
permission was incumbent on the British or on India as an obligation.
A treaty of 26 December 1878 between Great Britain and Portugal had
laid down that the armed forces of the two Governments should not enter
the Indian dominions of the other, except in specified cases or in
consequence of a formal request made by the party desiring such entry.
Subsequent correspondence showed that this provision was applicable to
passage between Daman and the enclaves: it had been argued on behalf of
Portugal that on twenty-three occasions armed forces crossed British
territory between Daman and the enclaves without obtaining permission,
but in 1890, the Government of Bombay had forwarded a complaint to
the effect that armed men in the service of the Portuguese Government
were in the habit of passing without formal request through a portion of
British territory en route from Daman to Nagar-Aveli which would appear
to constitute a breach of the Treaty; on 22 December, the GovernorGeneral of Portuguese India had replied: "Portuguese troops never cross
British territory without previous permission", and the Secretary-General
of the Government of Portuguese India stated on 1 May 1891: "On the
part of this Government injunctions will be given for the strictest
observance of . . . the Treaty". The requirement of a formal request before
passage of armed forces could take place had been repeated in an
agreement of 1913. With regard to armed police, the Treaty of 1878 and
the Agreement of 1913 had regulated passage on the basis of reciprocity,
and an agreement of 1920 had provided that armed police below a certain
rank should not enter the territory of the other party without consent
previously obtained; finally, an agreement of 1940 concerning passage of
Portuguese armed police over the road from Daman to Nagar-Aveli had
provided that, if the party did not exceed ten in number, intimation of its
passage should be given to the British authorities within twenty-four
hours, but that, in other cases, "the existing practice should be followed
and concurrence of the British authorities should be obtained by prior
notice as heretofore."
As regards arms and ammunition, the Treaty of 1878 and rules framed
under the Indian Arms Act of 1878 prohibited the importation of arms,
ammunition or military stores from Portuguese India and its export to
Portuguese India without a special licence. Subsequent practice showed
that this provision applied to transit between Daman and the enclaves.
The finding of the Court that the practice established between the Parties
had required for the passage of armed forces, armed police and arms and
ammunition the permission of the British or Indian authorities rendered it
unnecessary for the Court to determine whether or not, in the absence of
the practice that actually prevailed, general international custom or
general principles of law recognized by civilized nations, which had also
been invoked by Portugal, could have been relied upon by Portugal in
support of its claim to a right of passage in respect of these categories.
The Court was dealing with a concrete case having special features:
historically the case went back to a period when, and related to a region
in which, the relations between neighbouring States were not regulated by
precisely formulated rules but were governed largely by practice: finding
a practice clearly established between two States, which was accepted by
the Parties as governing the relations between them, the Court must

attribute decisive effect to that practice. The Court was, therefore, of the
view that no right of passage in favour of Portugal involving a correlative
obligation on India had been established in respect of armed forces,
armed police and arms and ammunition.
Having found that Portugal had, in 1954, a right of passage in respect of
private persons, civil officials and goods in general, the Court lastly
proceeded to consider whether India had acted contrary to its obligation
resulting from Portugal's right of passage in respect of any of these
categories. Portugal had not contended that India had acted contrary to
that obligation before July 1954, but it complained that passage was
thereafter denied to Portuguese nationals of European origin, to native
Indian Portuguese in the employ of the Portuguese Government and to a
delegation that the Governor of Daman proposed, in July 1954, to send to
Nagar-Aveli and Dadra. The Court found that the events which had
occurred in Dadra on 21-22 July 1954 and which had resulted in the
overthrow of Portuguese authority in that enclave had created tension in
the surrounding Indian district, having regard to that tension, the Court
was of the view that India's refusal of passage was covered by its power
of regulation and control of the right of passage of Portugal.
For these reasons, the Court reached the findings indicated above.

FISHERIES JURISDICTION CASE

(UNITED KINGDOM v. ICELAND)
(JURISDICTION OF THE COURT)
Judgment of 2 February 1973
In its Judgment on the question of its jurisdiction in the case concerning
Fisheries Jurisdiction (United Kingdom v. Iceland), the Court found by 14
votes to 1 that it had jurisdiction to entertain the Application filed by the
United Kingdom on 14 April 1972 and to deal with the merits of the
dispute.
The Court was composed as follows: President Sir Muhammad Zafrulla
Khan, Vice-President Ammoun and Judges Sir Gerald Fitzmaurice,
Padilla Nervo, Forster, Gros, Bengzon, Petrn, Lachs, Onyeama,
Dillard, Ignacio-Pinto, de Castro, Morozov and Jimnez de Archaga.
The President of the Court appended a declaration to the Judgment. Judge
Sir Gerald Fitzmaurice appended a separate opinion, and Judge Padilla
Nervo a dissenting opinion.
*
**
Rsum of the Proceedings (paras. 1-12 of the Judgment)
In its Judgment the Court recalls that on 14 April 1972 the Government of
the United Kingdom instituted proceedings against Iceland in respect of a
dispute concerning the proposed extension by the Icelandic Government
of its exclusive fisheries jurisdiction to a distance of 50 nautical miles
from the baselines around its coasts. By a letter of 29 May 1972 the
Minister for Foreign Affairs of Iceland informed the Court that his
Government was not willing to confer jurisdiction on it and would not
appoint an Agent. By Orders of 17 and 18 August 1972 the Court
indicated certain interim measures of protection at the request of the

United Kingdom and decided that the first written pleadings should be
addressed to the question of its jurisdiction to deal with the case. The
Government of the United Kingdom filed a Memorial, and the Court
heard oral argument on its behalf at a public hearing on 5 January 1973.
The Government of Iceland has filed no pleadings and was not
represented at the hearing.
It is, the Court observes, to be regretted that the Government of Iceland
has failed to appear to plead the objections to the Court's jurisdiction
which it is understood to entertain. Nevertheless the Court, in accordance
with its Statute and its settled jurisprudence, must examine the question
on its own initiative, a duty reinforced by Article 53 of the Statute,
whereby, whenever one of the parties does not appear, the Court must
satisfy itself that it has jurisdiction before finding on the merits. Although
the Government of Iceland has not set out the facts and law on which its
objection is based, or adduced any evidence, the Court proceeds to
consider those objections which might, in its view, be raised against its
jurisdiction. In so doing, it avoids not only all expressions of opinion on
matters of substance, but also any pronouncement which might prejudge
or appear to prejudge any eventual decision on the merits.
Compromissory clause of the 1961 Exchange of Notes (paras. 13-23 of
the Judgment)
To found the Court's jurisdiction, the Government of the United Kingdom
relies on an Exchange of Notes which took place between it and the
Government of Iceland on 11 March 1961, following an earlier dispute
over fisheries. By that Exchange of Notes the United Kingdom undertook
to recognise an exclusive Icelandic fishery zone up to a limit of 12 miles
and to withdraw its fishing vessels from that zone over a period of 3
years. The Exchange of Notes featured a compromissory clause in the
following terms:
"The Icelandic Government will continue to work for the
implementation of the Althing Resolution of May 5, 1959, regarding
the extension of fisheries jurisdiction around Iceland, but shall give
to the United Kingdom Government six months' notice of such
extension, and, in case of a dispute in relation to such extension,
the matter shall, at the request of either party, be referred to the
International Court of Justice."
The Court observes that there is no doubt as to the fulfilment by the
Government of the United Kingdom of its part of this agreement or as to
the fact that the Government of Iceland, in 1971, gave the notice provided
for in the event of a further extension of its fisheries jurisdiction. Nor is
there any doubt that a dispute has arisen, that it has been submitted to the
Court by the United Kingdom and that, on the face of it, the dispute thus
falls exactly within the terms of the compromissory clause.
Although, strictly speaking, the text of this clause is sufficiently clear for
there to be no need to investigate the preparatory work, the Court reviews
the history of the negotiations which led to the Exchange of Notes,
finding confirmation therein of the parties' intention to provide the United
Kingdom, in exchange for its recognition of the 12-mile limit and the
withdrawal of its vessels, with a genuine assurance which constituted
a sine qua non for the whole agreement, namely the right to challenge
before the Court the validity of any further extension of Icelandic
fisheries jurisdiction beyond the 12-mile limit.

It is thus apparent that the Court has jurisdiction.

Validity and duration of the 1961 Exchange of Notes (paras. 24-45 of the
Judgment)
The Court next considers whether, as has been contended the agreement
embodied in the 1961 Exchange of Notes either was initially void or has
since ceased to operate.
In the above-mentioned letter of 29 May 1972 the Minister for Foreign
Affairs of Iceland said that the 1961 Exchange of Notes had taken place
at a time when the British Royal Navy had been using force to oppose the
12-mile fishery limit. The Court, however, notes that the agreement
appears to have been freely negotiated on the basis of perfect equality and
freedom of decision on both sides.
In the same letter the Minister for Foreign Affairs of Iceland expressed
the view that "an undertaking for judicial settlement cannot be considered
to be of a permanent nature" and the Government of Iceland had indeed,
in an aide-mmoire of 31 August 1971, asserted that the object and
purpose of the provision for recourse to judicial settlement had been fully
achieved. The Court notes that the compromissory clause contains no
express provision regarding duration. In fact, the right of the United
Kingdom to challenge before the Court any claim by Iceland to extend its
fisheries zone was subject to the assertion of such a claim and would last
so long as Iceland might seek to implement the 1959 Althing resolution.
In a statement to the Althing (the Parliament of Iceland) on 9 November
1971, the Prime Minister of Iceland alluded to changes regarding "legal
opinion on fisheries jurisdiction". His argument appeared to be that as the
compromissory clause was the price that Iceland had paid at the time for
the recognition by the United Kingdom of the 12-mile limit, the present
general recognition of such a limit constituted a change of legal
circumstances that relieved Iceland of its commitment. The Court
observes that, on the contrary, since Iceland has received benefits from
those parts of the agreement already executed, it behoves it to comply
with its side of the bargain.
The letter and statement just mentioned also drew attention to "the
changed circumstances resulting from the ever-increasing exploitation of
the fishery resources in the seas surrounding Iceland". It is, notes the
Court, admitted in international law that if a fundamental change of the
circumstances which induced parties to accept a treaty radically
transforms the extent of the obligations undertaken, this may, under
certain conditions, afford the party affected a ground for invoking the
termination or suspension of the treaty. It would appear that in the present
case there is a serious difference of views between the Parties as to
whether there have been any fundamental changes in fishing techniques
in the waters around Iceland. Such changes would, however, be relevant
only for any eventual decision on the merits. It cannot be said that the
change of circumstances alleged by Iceland has modified the scope of the
jurisdictional obligation agreed to in the 1961 Exchange of Notes.
Moreover, any question as to the jurisdiction of the Court, deriving from
an alleged lapse of the obligation through changed circumstances, is for
the Court to decide, by virtue of Article 36, paragraph 6, of its Statute.