Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States)

Abstract

International Court of Justice — Contentious jurisdiction — Provisional measures of protection — Circumstances in which Court will indicate provisional measures — Whether necessary to determine that prima facie basis for jurisdiction exists — Nature of provisional measures in case involving continuing armed conflict

International Court of Justice — Contentious jurisdiction — Procedure — Removal of case from list — Circumstances in which request for removal will be granted — Necessary that there must be no prima facie basis for jurisdiction

International Court of Justice — Contentious jurisdiction — Procedure — Intervention — Application by State to intervene to contest jurisdiction and admissibility — Whether any basis for such intervention in Statute — Whether appropriate to hold hearing — Refusal of request to intervene not a bar to intervention at merits phase of proceedings

International Court of Justice — Organization of the Court — Judges — Standards of behaviour — Press conference — Reference by State party to case to nationality of certain judges — Suggestion that secret information could not be disclosed to court containing judges from certain countries

International Court of Justice — Contentious jurisdiction — Competence — Optional Clause — Declaration of acceptance — Declarations made under Statute of the Permanent Court of International Justice — When transferred to International Court of Justice — Statute of the International Court of Justice, Article 36(5) — Whether necessary for declaration to have been binding in respect of Permanent Court in order to be transferred under Article 36(5) — Declaration made by Nicaragua on signing Protocol of Signature to the Statute of the Permanent Court — Never completed by ratification — Whether possessing any legal effect — Whether constituting a binding acceptance of the compulsory jurisdiction of the International Court by virtue of Article 36(5)

International Court of Justice — Contentious jurisdiction — Competence — Optional Clause — State listed in Court publications as having accepted compulsory jurisdiction — Whether inclusion in list legally significant — Conduct of States — Whether capable of curing defect in State’s acceptance of compulsory jurisdiction — Whether conduct must be consistent and unequivocal — Whether State’s conduct amounting to an estoppel

International Court of Justice — Contentious jurisdiction — Competence — Optional Clause — Withdrawal or amendment of declaration accepting compulsory jurisdiction — Declaration stating that notice required — Whether States within Optional Clause system possessing extra-statutory right to withdraw declarations with immediate effect — State practice under Optional Clause — Reciprocity — Whether applicable to notice provisions of declarations

International Court of Justice — Contentious jurisdiction — Competence — Optional Clause — Reservations — Reservation excluding jurisdiction of the Court in relation to disputes arising under a multilateral treaty if the other parties to the treaty who would be affected by the decision not before the Court — Interpretation — Whether reservation capable of being applied in proceedings relating to jurisdiction — Whether more appropriate for application at merits phase — Reservation precluding Court from adjudicating upon claims based on treaty provisions on the use of force and intervention — Whether also precluding application of customary law principles with content similar or identical to treaty provisions

International Court of Justice — Contentious jurisdiction — Competence — Under bilateral treaty — Nicaragua-United States Treaty of Friendship, Commerce and Navigation, 1956 — Disputes regarding interpretation and application of Treaty — Extent of jurisdiction conferred upon Court

International Court of Justice — Contentious jurisdiction — Admissibility of application — Legal dispute — Definition — Whether excluding dispute involving continuing armed conflict — Whether such disputes reserved for Security Council — Whether State required to exhaust regional political machinery for settlement of disputes before referring matter to Court — Absence of other States involved in regional dispute — Whether international law includes indispensable parties rule — Whether admissibility to be considered at jurisdiction or merits phase of proceedings

International Court of Justice — Contentious jurisdiction — Procedure — Fact-finding — Rules of evidence — Procedure for determining facts — Relevant period — Press information and matters of public knowledge — Statements by representatives of States — Oral evidence of witnesses — Material not presented in accordance with Rules of Court

International Court of Justice — Contentious jurisdiction — Procedure — Absence of respondent State from part of proceedings — Statute of the International Court, Article 53

International Court of Justice — Contentious jurisdiction — Power to award damages — Whether including power to make interim award of damages

Sources of international law — Treaties — Customary international law — Relationship between treaties and custom — Development of customary international law through the conclusion of treaties — Whether treaty completely supplants identical rules of customary international law as between parties to the treaty — United Nations Charter — Charter of the Organization of American States — Provisions relating to intervention and the use of force — Whether codificatory of existing customary law at the date of their conclusion — Whether customary law has subsequently developed to take the same form as Charter provisions

Sources of international law — Customary international law — Constituent elements — Practice — Whether absolute consistency required — Opinio iuris — Evidence of — Treaties as evidence of opinio iuris — Resolutions of international organizations as evidence of opinio iuris — Significance of concordant views of parties to case as evidence of content of customary law

State responsibility — For acts of armed groups supported by State — Rebel groups operating in one State financed and equipped by other State — Whether acts of rebel groups imputable to the State which supports them — Degree of control necessary for acts to be imputable to State

War and armed conflict — Use of force — Definition — Whether supplying rebel groups operating in another State a use of force against that State — Whether an armed attack — Provision of funds and supply of arms — Logistical and organizational support — Training — Covert operations — Sending armed bands — Whether an armed attack — United Nations Charter, Articles 2(4) and 51 — Customary international law

War and armed conflict — Use of force — Self-defence — Limitations on the right of self-defence — Requirement of an armed attack — Necessity and proportionality — Motive of State using force in alleged self-defence — Collective self-defence — Requirements — Whether State which has been the victim of an armed attack must request assistance — Whether third State coming to assistance of victim State must itself be under threat — Duty to report measures taken to Security Council under United Nations Charter, Article 51 — Whether also a requirement of customary international law — Evidential significance of failure to report measures

War and armed conflict — Use of force — Self-defence — Whether State entitled to use force in response to unlawful intervention not amounting to an armed attack

War and armed conflict — Humanitarian law and the laws of armed conflict — Geneva Conventions, 1949 — Whether an expression or a development of fundamental principles of humanity — Common Article 3 — Fundamental principles applicable to non-international conflicts — Minimum yardstick also applicable to international conflicts — Conflict in Nicaragua — Whether international — Common Article 1 — Duty to ensure respect for Conventions in all circumstances — Publication of manual advocating the commission of acts contrary to humanitarian law — Whether publication a violation of humanitarian law

War and armed conflict — Humanitarian law and the laws of armed conflict — Naval warfare — Mines — Hague Convention No. VIII, Relative to the Laying of Automatic Submarine Contact Mines, 1907 — Duty to notify international shipping of the existence and location of minefields

States — Sovereignty — Duty of non-intervention — Scope and extent of duty at customary international law — Support for rebel groups in another State — Right of each State to determine political system and foreign policy for itself — Whether this freedom curtailed by announcement to regional organization of political programme — Whether announcement constituting binding undertaking — Regional organization and some States within region recognizing new government on strength of undertaking

States — Sovereignty — Mining approaches to State’s ports — Unauthorized intrusion into State’s airspace — Whether violations of State’s sovereignty

Governments — Recognition — Conditions of recognition — Nicaragua — Junta for National Reconstruction offering certain undertakings about future direction of Nicaragua — Organization of American States withdrawing recognition from previous “Somoza” Government — Whether undertakings binding

Governments — Succession — Successful rebellion — New government responsible for acts of rebels

Human rights — Enforcement — Whether States have a right to use force against State which is violating human rights — Alleged violations of human rights in Nicaragua — Whether justifying use of force by the United States

Air — Airspace — Unauthorized intrusion into State’s airspace — Whether a violation of State sovereignty

Sea — Territorial Sea — Internal waters — Freedom of passage — Mines — State laying mines in territorial sea and internal waters of other State — Access to other State’s ports impeded — Whether a violation of freedom of navigation

Economics, trade and finance — Economic sanctions — Trade embargo — State blocking loans in international organizations — United States sanctions against Nicaragua — Whether contrary to general international law — Whether contrary to Nicaragua-United States Treaty of Friendship, Commerce and Navigation, 1956 — Whether defeating object and purpose of treaty

Damages — Basis for award of damages — Reparation for unlawful use of force and intervention — Declaration that Respondent State under a duty to make reparation — Form and amount of reparation to be settled in later proceedings

Treaties — Form — Informal undertakings — Plan for political development of State issued by government in exile to regional organization — Whether intended to have legal effect