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G.R. No.

81561 January 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee


vs.
ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee.


Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:

This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial
Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in relation
to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise
known as the Dangerous Drugs Act.

The facts as summarized in the brief of the prosecution are as follows:

On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife,
Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders" in the
Pistang Pilipino Complex, Ermita, Manila, carrying with them four (4) gift wrapped packages.
Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The
appellant informed Anita Reyes that he was sending the packages to a friend in Zurich,
Switzerland. Appellant filled up the contract necessary for the transaction, writing therein his
name, passport number, the date of shipment and the name and address of the consignee,
namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)

Anita Reyes then asked the appellant if she could examine and inspect the packages.
Appellant, however, refused, assuring her that the packages simply contained books, cigars,
and gloves and were gifts to his friend in Zurich. In view of appellant's representation, Anita
Reyes no longer insisted on inspecting the packages. The four (4) packages were then
placed inside a brown corrugated box one by two feet in size (1' x 2'). Styro-foam was placed
at the bottom and on top of the packages before the box was sealed with masking tape, thus
making the box ready for shipment (Decision, p. 8).

Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job
Reyes (proprietor) and husband of Anita (Reyes), following standard operating procedure,
opened the boxes for final inspection. When he opened appellant's box, a peculiar odor
emitted therefrom. His curiousity aroused, he squeezed one of the bundles allegedly
containing gloves and felt dried leaves inside. Opening one of the bundles, he pulled out a
cellophane wrapper protruding from the opening of one of the gloves. He made an opening
on one of the cellophane wrappers and took several grams of the contents thereof (tsn, pp.
29-30, October 6, 1987; Emphasis supplied).

Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a
laboratory examination of the samples he extracted from the cellophane wrapper (tsn, pp. 5-
6, October 6, 1987).
He brought the letter and a sample of appellant's shipment to the Narcotics Section of the
National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of that
date, i.e., August 14, 1987. He was interviewed by the Chief of Narcotics Section. Job Reyes
informed the NBI that the rest of the shipment was still in his office. Therefore, Job Reyes
and three (3) NBI agents, and a photographer, went to the Reyes' office at Ermita, Manila
(tsn, p. 30, October 6, 1987).

Job Reyes brought out the box in which appellant's packages were placed and, in the
presence of the NBI agents, opened the top flaps, removed the styro-foam and took out the
cellophane wrappers from inside the gloves. Dried marijuana leaves were found to have
been contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987; Emphasis
supplied).

The package which allegedly contained books was likewise opened by Job Reyes. He
discovered that the package contained bricks or cake-like dried marijuana leaves. The
package which allegedly contained tabacalera cigars was also opened. It turned out that
dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6,
1987).

The NBI agents made an inventory and took charge of the box and of the contents thereof,
after signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 2-3, October 7,
1987).

Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his
passport being the Manila Central Post Office, the agents requested assistance from the latter's
Chief Security. On August 27, 1987, appellant, while claiming his mail at the Central Post Office, was
invited by the NBI to shed light on the attempted shipment of the seized dried leaves. On the same
day the Narcotics Section of the NBI submitted the dried leaves to the Forensic Chemistry Section
for laboratory examination. It turned out that the dried leaves were marijuana flowering tops as
certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).

Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as
the Dangerous Drugs Act.

After trial, the court a quo rendered the assailed decision.

In this appeal, accused/appellant assigns the following errors, to wit:

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED


AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.

THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED


FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL
PROCEEDINGS WERE NOT OBSERVED.

THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF


THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION
(Appellant's Brief, p. 1; Rollo, p. 55)

1. Appellant contends that the evidence subject of the imputed offense had been obtained in
violation of his constitutional rights against unreasonable search and seizure and privacy of
communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same should be
held inadmissible in evidence (Sec. 3 (2), Art. III).

Sections 2 and 3, Article III of the Constitution provide:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized.

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety or order requires otherwise as
prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible
for any purpose in any proceeding.

Our present constitutional provision on the guarantee against unreasonable search and seizure had
its origin in the 1935 Charter which, worded as follows:

The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but
upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be seized. (Sec. 1 [3], Article III)

was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution.
As such, the Court may turn to the pronouncements of the United States Federal Supreme Court
and State Appellate Courts which are considered doctrinal in this jurisdiction.

Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme
Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA
383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective search and
seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v. People's
Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the illegality of its
seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried
over up to the present with the advent of the 1987 Constitution.

In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the
admissibility of evidence obtained in violation of the constitutional safeguard against unreasonable
searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de
Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA
687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).

It must be noted, however, that in all those cases adverted to, the evidence so obtained were
invariably procured by the State acting through the medium of its law enforcers or other authorized
government agencies.
On the other hand, the case at bar assumes a peculiar character since the evidence sought to be
excluded was primarily discovered and obtained by a private person, acting in a private capacity and
without the intervention and participation of State authorities. Under the circumstances, can
accused/appellant validly claim that his constitutional right against unreasonable searches and
seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in violation
of appellant's constitutional rights, be invoked against the State?

We hold in the negative. In the absence of governmental interference, the liberties guaranteed by
the Constitution cannot be invoked against the State.

As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

1. This constitutional right (against unreasonable search and seizure) refers to the immunity
of one's person, whether citizen or alien, from interference by government, included in which
is his residence, his papers, and other possessions. . . .

. . . There the state, however powerful, does not as such have the access except under the
circumstances above noted, for in the traditional formulation, his house, however humble, is
his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon
to refrain from any invasion of his dwelling and to respect the privacies of his life. . . . (Cf.
Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616
[1886]; Emphasis supplied).

In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in
construing the right against unreasonable searches and seizures declared that:

(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as
shown in previous cases, its protection applies to governmental action. Its origin and history
clearly show that it was intended as a restraint upon the activities of sovereign authority, and
was not intended to be a limitation upon other than governmental agencies; as against such
authority it was the purpose of the Fourth Amendment to secure the citizen in the right of
unmolested occupation of his dwelling and the possession of his property, subject to the right
of seizure by process duly served.

The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant
who searched the automobile to ascertain the owner thereof found marijuana instead, without the
knowledge and participation of police authorities, was declared admissible in prosecution for illegal
possession of narcotics.

And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and
seizure clauses are restraints upon the government and its agents, not upon private individuals
(citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391
S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:

The search of which appellant complains, however, was made by a private citizen the
owner of a motel in which appellant stayed overnight and in which he left behind a travel
case containing the evidence***complained of. The search was made on the motel owner's
own initiative. Because of it, he became suspicious, called the local police, informed them of
the bag's contents, and made it available to the authorities.
The fourth amendment and the case law applying it do not require exclusion of evidence
obtained through a search by a private citizen. Rather, the amendment only proscribes
governmental action."

The contraband in the case at bar having come into possession of the Government without the latter
transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent
reason why the same should not be admitted against him in the prosecution of the offense charged.

Appellant, however, would like this court to believe that NBI agents made an illegal search and
seizure of the evidence later on used in prosecuting the case which resulted in his conviction.

The postulate advanced by accused/appellant needs to be clarified in two days. In both instances,
the argument stands to fall on its own weight, or the lack of it.

First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents
conducted an illegal search and seizure of the prohibited merchandise. Records of the case clearly
indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made
search/inspection of the packages. Said inspection was reasonable and a standard operating
procedure on the part of Mr. Reyes as a precautionary measure before delivery of packages to the
Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original
Records, pp. 119-122; 167-168).

It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the
same to the NBI and later summoned the agents to his place of business. Thereafter, he opened the
parcel containing the rest of the shipment and entrusted the care and custody thereof to the NBI
agents. Clearly, the NBI agents made no search and seizure, much less an illegal one, contrary to
the postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search effected by
Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe and
look at that which is in plain sight is not a search. Having observed that which is open, where no
trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135).
Where the contraband articles are identified without a trespass on the part of the arresting officer,
there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202
[1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122
[1968]).

In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was
taken into custody of the police at the specific request of the manager and where the search was
initially made by the owner there is no unreasonable search and seizure within the constitutional
meaning of the term.

That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private
individuals finds support in the deliberations of the Constitutional Commission. True, the liberties
guaranteed by the fundamental law of the land must always be subject to protection. But protection
against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the
query which he himself posed, as follows:

First, the general reflections. The protection of fundamental liberties in the essence of
constitutional democracy. Protection against whom? Protection against the state. The Bill of
Rights governs the relationship between the individual and the state. Its concern is not the
relation between individuals, between a private individual and other individuals. What the Bill
of Rights does is to declare some forbidden zones in the private sphere inaccessible to any
power holder. (Sponsorship Speech of Commissioner Bernas , Record of the Constitutional
Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore applies as a
restraint directed only against the government and its agencies tasked with the enforcement of the
law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and
unreasonable exercise of power is imposed.

If the search is made upon the request of law enforcers, a warrant must generally be first secured if
it is to pass the test of constitutionality. However, if t he search is made at the behest or initiative of
the proprietor of a private establishment for its own and private purposes, as in the case at bar, and
without the intervention of police authorities, the right against unreasonable search and seizure
cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the
protection against unreasonable searches and seizures cannot be extended to acts committed by
private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.

Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by
the present phraseology found in the 1987 Charter, expressly declaring as inadmissible any
evidence obtained in violation of the constitutional prohibition against illegal search and seizure, it
matters not whether the evidence was procured by police authorities or private individuals
(Appellant's Brief, p. 8, Rollo, p. 62).

The argument is untenable. For one thing, the constitution, in laying down the principles of the
government and fundamental liberties of the people, does not govern relationships between
individuals. Moreover, it must be emphasized that the modifications introduced in the 1987
Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of
arrest vis-a-vis the responsibility of the judge in the issuance thereof (SeeSoliven v. Makasiar, 167
SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The
modifications introduced deviate in no manner as to whom the restriction or inhibition against
unreasonable search and seizure is directed against. The restraint stayed with the State and did not
shift to anyone else.

Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against
the State by an individual unjustly traduced by the exercise of sovereign authority. To agree with
appellant that an act of a private individual in violation of the Bill of Rights should also be construed
as an act of the State would result in serious legal complications and an absurd interpretation of the
constitution.

Similarly, the admissibility of the evidence procured by an individual effected through private seizure
equally applies, in pari passu, to the alleged violation, non-governmental as it is, of appellant's
constitutional rights to privacy and communication.

2. In his second assignment of error, appellant contends that the lower court erred in convicting him
despite the undisputed fact that his rights under the constitution while under custodial investigation
were not observed.

Again, the contention is without merit, We have carefully examined the records of the case and
found nothing to indicate, as an "undisputed fact", that appellant was not informed of his
constitutional rights or that he gave statements without the assistance of counsel. The law enforcers
testified that accused/appellant was informed of his constitutional rights. It is presumed that they
have regularly performed their duties (See. 5(m), Rule 131) and their testimonies should be given full
faith and credence, there being no evidence to the contrary. What is clear from the records, on the
other hand, is that appellant refused to give any written statement while under investigation as
testified by Atty. Lastimoso of the NBI, Thus:

Fiscal Formoso:

You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did
you investigate the accused together with the girl?

WITNESS:

Yes, we have interviewed the accused together with the girl but the accused availed of his
constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p. 62;
Original Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by the defense on
cross-examination. As borne out by the records, neither was there any proof by the defense that
appellant gave uncounselled confession while being investigated. What is more, we have examined
the assailed judgment of the trial court and nowhere is there any reference made to the testimony of
appellant while under custodial investigation which was utilized in the finding of conviction.
Appellant's second assignment of error is therefore misplaced.

3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was
not the owner of the packages which contained prohibited drugs but rather a certain Michael, a
German national, whom appellant met in a pub along Ermita, Manila: that in the course of their 30-
minute conversation, Michael requested him to ship the packages and gave him P2,000.00 for the
cost of the shipment since the German national was about to leave the country the next day
(October 15, 1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-
serving and contrary to human experience. It can easily be fabricated. An acquaintance with a
complete stranger struck in half an hour could not have pushed a man to entrust the shipment of four
(4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to comply
with the undertaking without first ascertaining its contents. As stated by the trial court, "(a) person
would not simply entrust contraband and of considerable value at that as the marijuana flowering
tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on
the other hand, would not simply accept such undertaking to take custody of the packages and ship
the same from a complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why he
readily agreed to do the errand, appellant failed to explain. Denials, if unsubstantiated by clear and
convincing evidence, are negative self-serving evidence which deserve no weight in law and cannot
be given greater evidentiary weight than the testimony of credible witnesses who testify on
affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237
[1989]).

Appellant's bare denial is even made more suspect considering that, as per records of the Interpol,
he was previously convicted of possession of hashish by the Kleve Court in the Federal Republic of
Germany on January 1, 1982 and that the consignee of the frustrated shipment, Walter Fierz, also a
Swiss national, was likewise convicted for drug abuse and is just about an hour's drive from
appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244;
Decision, p. 21; Rollo, p. 93).
Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be
credible in itself such as the common experience and observation of mankind can approve as
probable under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke,
37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327
[1983]); Castaares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did not even
bother to ask Michael's full name, his complete address or passport number. Furthermore, if indeed,
the German national was the owner of the merchandise, appellant should have so indicated in the
contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed the
contract as the owner and shipper thereof giving more weight to the presumption that things which a
person possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At
this point, appellant is therefore estopped to claim otherwise.

Premises considered, we see no error committed by the trial court in rendering the assailed
judgment.

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the
crime charged is hereby AFFIRMED. No costs.

SO ORDERED.

Nicaragua v. United States


The Republic of Nicaragua v. The United States of America (1986) ICJ 1 is a public
international law case decided by the International Court of Justice (ICJ). The ICJ ruled in favor
of Nicaragua and against the United States and awarded reparations to Nicaragua. The ICJ held
that the U.S. had violated international law by supporting the Contras in their rebellion against the
Nicaraguan government and by mining Nicaragua's harbors. The United States refused to
participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction
to hear the case. The U.S. also blocked enforcement of the judgment by the United Nations
Security Council and thereby prevented Nicaragua from obtaining any
compensation.[2] Nicaragua, under the later, post-FSLN government of Violeta Chamorro,
withdrew the complaint from the court in September 1992 following a repeal of the law which had
required the country to seek compensation.[3]
The Court found in its verdict that the United States was "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", "not to interrupt peaceful maritime commerce", and "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."
The Court had 16 final decisions upon which it voted. In Statement 9, the Court stated that while
the U.S. encouraged human rights violations by the Contras by the manual entitled Psychological
Operations in Guerrilla Warfare, this did not make such acts attributable to the U.S.

Background and history of US intervention in Nicaragua


The first armed intervention by the United States in Nicaragua occurred under President Taft. In
1909, he ordered the overthrow of Nicaraguan President Jos Santos Zelaya. During August and
September 1912, a contingent of 2300 U.S. Marines landed at the port of Corinto and
occupied Len and the railway line to Granada. A pro-U.S. government was formed under the
occupation. The 1914 BryanChamorro Treaty granted perpetual canal rights to the U.S. in
Nicaragua and was signed ten days before the U.S.-operated Panama Canal opened for use,
thus preventing anyone from building a competing canal in Nicaragua without U.S. permission.
In 1927, under Augusto Csar Sandino, a major peasant uprising was launched against both the
U.S. occupation and the Nicaraguan establishment. In 1933, the Marines withdrew and left
the National Guard in charge of internal security and elections. In 1934, Anastasio Somoza
Garca, the head of the National Guard, ordered his forces to capture and murder Sandino. In
1937, Somoza assumed the presidency, while still in control of the National Guard, and
established a dictatorship that his family controlled until 1979.
The downfall of the regime is attributed to its embezzlement of millions of dollars in foreign aid
that was given to the country in response to the devastating 1972 earthquake. Many moderate
supporters of the dictatorship began abandoning it in the face of growing revolutionary sentiment.
The Sandinista (FSLN) movement organized relief, began to expand its influence and assumed
the leadership of the revolution. A popular uprising brought the FSLN to power in 1979. The United
States had long been opposed to the socialist FSLN, and after the revolution the Carter
administration moved quickly to support the Somocistas with financial and material aid.
When Ronald Reagan took office, he augmented the direct support to an anti-Sandinista group,
called the Contras, which included factions loyal to the former dictatorship. When Congress
prohibited further funding to the Contras, Oliver North continued the funding through arms sales
that were also prohibited by Congress.
Nicaragua's submissions
Nicaragua charged:
(a) That the United States, in recruiting, training, arming, equipping, financing, supplying
and otherwise encouraging, supporting, aiding, and directing military
and paramilitaryactions in and against Nicaragua, had violated its treaty obligations to
Nicaragua under:
Article 2 (4) of the United Nations Charter;
Articles 18 and 20 of the Charter of the Organization of American States;
Article 8 of the Convention on Rights and Duties of States;
Article I, Third, of the Convention concerning the Duties and Rights of States in the Event
of Civil Strife.
(b) That the United States had breached international law by
1. violating the sovereignty of Nicaragua by:
armed attacks against Nicaragua by air, land and sea;
incursions into Nicaraguan territorial waters;
aerial trespass into Nicaraguan airspace;
efforts by direct and indirect means to coerce and intimidate the Government of Nicaragua.
2. using force and the threat of force against Nicaragua.
3. intervening in the internal affairs of Nicaragua.
4. infringing upon the freedom of the high seas and interrupting peaceful maritime
commerce.
5. killing, wounding and kidnapping citizens of Nicaragua.
Nicaragua demanded that all such actions cease and that the United States had an
obligation to pay reparations to the government for damage to their people, property,
and economy.
It is noteworthy that the United States, the defaulting party, was the only member that
put forward arguments against the validity of the judgment of the court, arguing that it
passed a decision that it "had neither the jurisdiction nor the competence to render."
Members that sided with the United States in opposing Nicaragua's claims did not
challenge the court's jurisdiction, its findings, nor the substantive merits of the
case.[9] Pursuant to general and customary international law, the United States has
an obligation to Nicaragua to respect the sovereignty of Nicaragua. ii. Pursuant to
general and customary international law, the United States has an obligation to
Nicaragua not to use force or the threat of force against Nicaragua. iii. Pursuant to
general and customary international law, the United States has an obligation to
Nicaragua not to intervene in the internal affairs of Nicaragua.

Judgment
The very long judgment first listed 291 points, among them that the United States had been
involved in the "unlawful use of force". The alleged violations included attacks on Nicaraguan
facilities and naval vessels, the mining of Nicaraguan ports, the invasion of Nicaraguan air space,
and the training, arming, equipping, financing and supplying of forces (the "Contras") and seeking
to overthrow Nicaragua's Sandinista government. This was followed by the statements that the
judges voted on.
Findings
The court found evidence of an arms flow between Nicaragua and insurgents in El Salvador
between 1979-81. However, there was not enough evidence to show that the Nicaraguan
government was imputable for this or that the US response was proportional. The court also found
that certain transborder incursions into the territory of Guatemala and Costa Rica, in 1982, 1983
and 1984, were imputable to the Government of Nicaragua. However, neither Guatemala nor
Costa Rica had made any request for US intervention; El Salvador did in 1984, well after the US
had intervened unilaterally.
"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."
Regarding human rights violations by the Contras, "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 the Contras, 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... 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."
The Court concluded that the United States, despite its objections, was subject to the Court's
jurisdiction. The Court had ruled on November 26 by 11 votes to one that it had jurisdiction in the
case on the basis of either Article 36 (i.e. compulsory jurisdiction) or the 1956 Treaty of Friendship,
Commerce and Navigation between the United States and Nicaragua. The Charter provides that,
in case of doubt, it is for the Court itself to decide whether it has jurisdiction, and that each member
of the United Nations undertakes to comply with the decision of the Court. The Court also ruled
by unanimity that the present case was admissible. The United States then announced that it had
"decided not to participate in further proceedings in this case." About a year after the Court's
jurisdictional decision, the United States took the further, radical step of withdrawing its consent
to the Court's compulsory jurisdiction, ending its previous 40 year legal commitment to binding
international adjudication. The Declaration of acceptance of the general compulsory jurisdiction
of the International Court of Justice terminated after a 6-month notice of termination delivered by
the Secretary of State to the United Nations on October 7, 1985.
Although the Court called on the United States to "cease and to refrain" from the unlawful use of
force against Nicaragua and stated that the US was "in breach of its obligation under customary
international law not to use force against another state" and ordered it to pay reparations, the
United States refused to comply. As a permanent member of the Security Council, the U.S. has
been able to block any enforcement mechanism attempted by Nicaragua. On November 3, 1986
the United Nations General Assembly passed, by a vote of 94-3 (El Salvador, Israel and the US
voted against), a non-binding[16] resolution urging the US to comply.
The ruling
On June 27, 1986, the Court made the following ruling:
The Court

1. 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 United States of America
deposited on 26 August 1946;
2. Rejects the justification of collective self-defense maintained by the United
States of America in connection with the military and paramilitary activities in
and against Nicaragua the subject of this case;
3. 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;
4. 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;
5. 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;
6. 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;
7. 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;
8. 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;
9. 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;
10. 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;
11. 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;
12. 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;
13. 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;
14. 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;
15. 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;
16. Recalls to both Parties their obligation to seek a solution to their disputes by
peaceful means in accordance with international law.
Legal clarification and importance
The ruling did in many ways clarify issues surrounding prohibition of the use of force and the right
of self-defence. Arming and training the Contra was found to be in breach with principles of non-
intervention and prohibition of use of force, as was laying mines in Nicaraguan territorial waters.
Nicaragua's dealings with the armed opposition in El Salvador, although it might be considered a
breach with the principle of non-intervention and the prohibition of use of force, did not constitute
"an armed attack", which is the wording in article 51 justifying the right of self-defence.
The Court considered also the United States claim to be acting in collective self-defence of El
Salvador and found the conditions for this not reached as El Salvador never requested the
assistance of the United States on the grounds of self-defence.
In regards to laying mines, "...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."

Dissent
Judge Schwebel's dissent was twice as long as the actual judgment. Judge Schwebel argued that
the Sandinista government came to power with support of foreign intervention similar to what it
was now complaining about. He argued that the Sandinista government achieved international
recognition and received large amounts of foreign aid in exchange for commitments they
subsequently violated. He cited evidence that the Sandinista government had indeed supported
the rebels in El Salvador and noted that Nicaraguas own CIA witness contradicted their
assertions that they had never at any point supported the rebels in El Salvador. The CIA witness
said that there was no evidence of weapon shipments since early 1981, but Schwebel argued
that he could not credibly explained why opponents of Contra aid such as Congressman Boland,
who also saw the evidence, believed that weapon shipments were ongoing. He further argued
that Daniel Ortega publicly admitted such shipments in statements in 1985 and 1986.
Furthermore, there was no dispute that the leadership of the rebels operated in Nicaragua from
time to time.
He stated that in August 1981 the U.S. offered to resume aid to Nicaragua and to not support
regime change in exchange for Nicaraguan commitments to not support the rebels in El Salvador.
These proposals were rejected by the Sandinistas, and judge Schwebel argued that the U.S. was
entitled to take action in collective self-defense with El Salvador by authorizing contra aid in
December 1981. He stated that further U.S. proposals to resolve the issue made in early 1982
were also ignored by the Sandinistas. The Sandinista government in 1983 began advancing
proposals in which it would undertake not to support the rebels, but Schwebel noted that these
were coupled with demands that the U.S. cease supporting the lawful government of El Salvador.
The judge noted that since early 1985 the U.S. had increasingly made regime change a primary
objective but argued this was not inconsistent with self-defense because it was reasonable to
believe that Nicaragua would not maintain any commitments unless Sandinista power was diluted.
The judge said that both sides of the wars in Nicaragua and El Salvador had committed atrocities.
He said the U.S. mining of Nicaraguan harbors was unlawful in regard to third parties, but not
Nicaragua.

Certain witnesses against the US


First witness: Commander Luis Carrion
The first witness called by Nicaragua was Nicaragua's first Vice Minister of the Interior,
Commander Luis Carrion. Commander Carrion had overall responsibility for state security and
was in charge of all government operations in the "principal war zone". He was responsible for
monitoring United States involvement in military and paramilitary activities against Nicaragua,
directing Nicaragua's military and intelligence efforts against the contra guerrillas.
Commander Carrion began by explaining the condition of the contras prior to United States' aid
in December 1981. Commander Carrion stated that the contras consisted of insignificant bands
of poorly armed and poorly organized members of Somoza's National Guard, who carried out
uncoordinated border raids and rustled cattle (presumably for food).
In December 1981, the U.S. Congress authorized an initial appropriation of 19 million dollars to
finance paramilitary operations in Nicaragua and elsewhere in Central America. Because of this
aid, Commander Carrion stated that the contras began to become centralized and received both
training and weapons from the CIA. During 1982 the contra guerrillas engaged the Sandinista
armed forces in a series of hit and run border raids and carried out a number of sabotage
operations including:

1. the destruction of two key bridges in the northern part of Nicaragua, and
2. the planting of bombs in Nicaraguan civil aircraft in Mexico and in the baggage
area of a Nicaraguan port.
The United States Central Intelligence Agency, and Argentine military officers financed by the
CIA, were engaged in the training of the contra forces. The guerrillas received both basic infantry
training as well as training in specialized sabotage and demolition for "special operation groups".
The U.S. Congress apportioned new funds for the contras to the amount of $30 million at the end
of 1982. This made it possible for the contra forces to launch a military offensive against
Nicaragua. According to Commander Carrion, the offensive known as "C Plan" had the objective
of capturing the Nicaraguan border town of Jalapa in order to install a provisional government,
which could receive international recognition. This plan failed.
After the failure of the Jalapa offensive the contras changed their tactics from frontal assaults to
economic warfare against State farms, coffee plantations, grain storage centers, road junctions,
etc.
The CIA began to support the contras by setting up and coordinating a communications and
logistical system. The CIA supplied aircraft and the construction of airfields in the Honduran
border area next to Nicaragua. This allowed the contras to carry out deep penetration raids into
the more developed and populated areas of the Nicaraguan interior. U.S. Army engineers created
this airfield. The purpose of these deep penetration attacks upon economic targets was to weaken
the Nicaraguan economy, causing a shortages of goods.
As a part of its training program for the contras, the CIA prepared and distributed a manual
entitled Psychological Operations in Guerrilla Warfare. This manual included instructions in the
"use of implicit and explicit terror", and in the "selective use of violence for propaganda effects".
Commander Carrion explained that the manual was given to the Contras, "All of these terrorist
instructions have the main purpose of alienating the population from the Government through
creating a climate of terror and fear, so that nobody would dare support the Government". The
manual calls for the "neutralization" (i.e. assassination) of Sandinista local government officials,
judges, etc. for purposes of intimidation. It was openly admitted by the President Reagan in a
press conference that the manual had been prepared by a CIA contract employee.
After the United States Congress approved an additional $24 million aid to the contras in
December 1983, a new offensive was launched, named Plan Sierra. This offensive involved
approximately 7000 members of the contra forces. As in earlier attacks, the initial objective of this
offensive was to capture the border town of Jalapa to install a provisional government, which the
CIA informed the contras would be immediately recognized by the United States Government.
But this contra offensive was also repulsed by the Nicaraguan government forces.
In the beginning of 1984, the contras made a major effort to prevent the harvesting of the coffee
crop, which is one of Nicaragua's most important export products. Coffee plantations and state
farms where coffee is grown were attacked, vehicles were destroyed, and coffee farmers were
killed.
Commander Carrion testified that the ability of the contras to carry out military operations was
completely dependent upon United States funding, training and logistical support. Carrion stated
that the U.S. Government supplied the contras with uniforms, weapons, communications
equipment, intelligence, training, and coordination in using this material aid.
In September 1983, CIA operatives blew up Nicaragua's only oil pipeline, which was used to
transport oil from off-loading facilities to storage tanks on shore. The United States was also
directly involved in a large scale sabotage operation directed against Nicaragua's oil storage
facilities. This last attack was carried out by CIA contract employees termed by that organization
as "Unilaterally Controlled Latin Assets" (UCLAs). The CIA personnel were also directly involved
in a helicopter attack on a Nicaraguan army training camp. One of the helicopters was shot down
by Nicaraguan ground fire resulting in the death of two U.S. citizens.
Commander Carrion testified that the United States was involved in the mining of Nicaragua's
ports between February - April 1984. The mining operation was carried out by CIA ships directing
the operation from international waters, while the actual mining was carried out by CIA employees
on board speedboats operating inshore. After the mine-laying was completed the speedboats
returned to the mother vessel.
Carrion stated that 3,886 people had been killed and 4,731 wounded in the four years since the
contras began their attacks. Carrion estimated property damage at $375 million.
Commander Carrion stated if the United States stopped aid, support and training, this would result
in the end of the contras military activities within three months. Asked why he was so sure of this,
Commander Carrion answered, "Well, because the contras are an artificial force, artificially set
up by the United States, that exists only because it counts on United States direction, on United
States training, on United States assistance, on United States weapons, on United States
everything...Without that kind of support and direction the contras would simply disband,
disorganize, and thus lose their military capacity in a very short time".

Second witness: Dr. David MacMichael


David MacMichael was an expert on counter-insurgency, guerrilla warfare, and Latin American
affairs, he was also a witness because he was closely involved with U.S. intelligence activities as
a contract employee from March 1981 - April 1983. MacMichael worked for Stanford Research
Institute, which was contracted by the U.S. Department of Defense. After this he worked two years
for the CIA as a "senior estimates officer", preparing the National Intelligence Estimate. Dr.
MacMichael's responsibility was centered upon Central America. He had top-secret clearance.
He was qualified and authorized to have access to all relevant U.S. intelligence concerning
Central America, including intelligence relating to alleged Nicaraguan support for, and arms
shipments to the anti-Government insurgents in El Salvador. He took part in high level meetings
of the Latin American affairs office of the CIA. Including a fall 1981 meeting, which submitted the
initial plan to set up a 1500-man covert force on the Nicaraguan border, shipping arms from
Nicaragua to the El Salvador insurgents. This plan was approved by President Reagan.[22][23]
"The overall purpose (for the creation of the contras) was to weaken, even destabilize the
Nicaraguan Government and thus reduce the menace it allegedly posed to the United States'
interests in Central America..."
Contra paramilitary actions would "hopefully provoke cross-border attacks by Nicaraguan forces
and thus serve to demonstrate Nicaragua's aggressive nature and possibly call into play the
Organization of American States' provisions (regarding collective self-defense). It was hoped that
the Nicaraguan Government would clamp down on civil liberties within Nicaragua itself, arresting
its opposition, so demonstrating its allegedly inherent totalitarian nature and thus increase
domestic dissent within the country, and further that there would be reaction against United States
citizens, particularly against United States diplomatic personnel within Nicaragua and thus to
demonstrate the hostility of Nicaragua towards the United States".
In response to repeated questions as to whether there was any substantial evidence of the supply
of weapons to the guerrilla movement in El Salvador- either directly by the Nicaraguan
Government itself-or with the knowledge, approval or authorization of the Nicaraguan
Government of either non-official Nicaraguan sources, or by third country nationals inside or
outside Nicaragua, using Nicaraguan territory for this purpose, Dr. MacMichael answered that
there was no such evidence. In the opinion of the witness it would not have been possible for
Nicaragua to send arms to the insurgents in El Salvador in significant amounts (as alleged by the
U.S. Government) and over a prolonged period, without this being detected by the U.S.
intelligence network in the area...Counsel for Nicaragua, asked the witness several times whether
any detection of arms shipments by or through Nicaragua had taken place during the period he
was employed by the CIA. (MacMichael) answered repeatedly that there was no such evidence.
He also stated that after his employment had terminated, nothing had occurred that would cause
him to change his opinion. He termed the evidence that had been publicly disclosed by the U.S.
Government concerning Nicaraguan arms deliveries to the El Salvadoran insurgents as both
"scanty" and "unreliable". The witness did however state that based on evidence, which had been
gathered immediately prior to his employment with the CIA, evidence he had already actually
seen, there was substantial evidence that arms shipments were reaching El Salvador from
Nicaragua - with the probable involvement and complicity of the Nicaraguan Government -
through late 1980 up until the spring of 1981....But this evidence, which most importantly had
included actual seizures of weapons, which could be traced to Nicaragua, as well as documentary
evidence and other sources, had completely ceased by early 1981. Since then, no evidence
linking Nicaragua to shipments of arms in any substantial quantities had resumed coming in.
Third witness: Professor Michael Glennon
Mr. Glennon testified about a fact-finding mission he had conducted in Nicaragua to investigate
alleged human rights violations committed by the contra guerrillas, sponsored by the International
Human Rights Law Group, and the Washington Office on Latin America. Glennon conducted the
investigation with Mr. Donald T. Fox who is a New York attorney and a member of the International
Commission of Jurists.
They traveled to Nicaragua, visiting the northern region where the majority of contra military
operations took place. The two lawyers interviewed around 36 northern frontier residents who had
direct experience with the contras. They also spoke with the U.S. Ambassador to Nicaragua, and
with senior officials of the U.S. Department of State in Washington after returning to the United
States.
No hearsay evidence was accepted. Professor Glennon stated that those interviewed were
closely questioned and their evidence was carefully cross-checked with available documentary
evidence. Doubtful "testimonies" were rejected, and the results were published in April 1985. The
conclusions of the report were summarized by Glennon in Court:
"We found that there is substantial credible evidence that the contras were engaged with some
frequency in acts of terroristic violence directed at Nicaraguan civilians. These are individuals who
have no connection with the war effort-persons with no economic, political or military significance.
These are Individuals who are not caught in the cross-fire between Government and contra
forces, but rather individuals who are deliberately targeted by the contras for acts of terror. "Terror"
was used in the same sense as in recently enacted United States law, i.e. "an activity that involves
a violent act or an act dangerous to human life that Is a violation or the criminal law, and appears
to be intended to intimidate or coerce a civilian population, to Influence the policy of a government
by intimidation or coercion, or to affect the conduct of a government by assassination or
kidnapping".
In talks with U.S. State Department officials, at those in Managua U.S. Embassy, and with officials
in Washington, Professor Glennon had inquired whether the U.S. Government had ever
investigated human rights abuses by the contras. Professor Glennon testified that no such
investigation had ever been conducted, because in the words of a ranking State Department
official who he could not name, the U.S. Government maintained a policy of "intentional
ignorance" on the matter. State Department officials in Washington- had admitted to Glennon that
"it was clear that the level of atrocities was enormous". Those words "enormous" and "atrocities"
were the ranking State Department official's words.
Fourth witness: Father Jean Loison
Father Jean Loison was a French priest who worked as a nurse in a hospital in the northern
frontier region close to Honduras.
Asked whether the contras engaged in acts of violence directed against the civilian population,
Father Loison answered:
"Yes, I could give you several examples. Near Quilali, at about 30 kilometers east of Quilali, there
was a little village called El Coco. The contras arrived, they devastated it, they destroyed and
burned everything. They arrived in front of a little house and turned their machinegun fire on it,
without bothering to check if there were any people inside. Two children, who had taken fright and
hidden under a bed, were hit. I could say the same thing of a man and woman who were hit, this
was in the little co-operative of Sacadias Olivas. It was just the same. They too had taken fright
and got into bed. Unlike El Coco, the contras had just been on the attack, they had encountered
resistance and were now in flight. During their flight they went into a house, and seeing that there
were people there, they threw grenade. The man and the woman were killed and one of the
children was injured."
About contra kidnappings:
"I would say that kidnappings are one of the reasons why some of the peasants have formed
themselves into groups. Here (indicates a point on the map) is Quilali. Between Quilali and Uilili,
in this region to the north, there are hardly any peasants left of any age to bear arms, because
they have all been carried off"."
Father Loison described many examples of violence, mostly indiscriminate, directed at the civilian
population in the region where he resides. The picture that emerges from his testimony is that the
contras engage in brutal violation of minimum standards of humanity. He described murders of
unarmed civilians, including women and children, rape followed in many instances by torture or
murder, and indiscriminate terror designed to coerce the civilian population. His testimony was
similar to various reports including the International Human Rights Law Group, Amnesty
International, and others.
Fifth witness: William Hper
William Hper was Nicaragua's Minister of Finance. He testified about Nicaragua economic
damage, including the loss of fuel as a result of the attack in the oil storage facilities at Corinto,
the damage to Nicaragua's commerce as a result of the mining of its ports, and other economic
damage.

UN voting
After five vetoes in the Security Council between 1982 and 1985 of resolutions concerning the
situation in Nicaragua [5], the United States made one final veto on 28 October 1986[27] (France,
Thailand, and United Kingdom abstaining) of a resolution calling for full and immediate
compliance with the judgment.
Nicaragua brought the matter to the U.N. Security Council, where the United States vetoed a
resolution (11 to 1, 3 abstentions) calling on all states to observe international law. Nicaragua also
turned to the General Assembly, which passed a resolution 94 to 3 calling for compliance with the
World Court ruling. Two states, Israel and El Salvador, joined the United States in opposition. At
that time, El Salvador was receiving substantial funding and military advisement from the U.S.,
which was aiming to crush a Sandinista-like revolutionary movement by the FMLN. At the same
session, Nicaragua called upon the U.N. to send an independent fact-finding mission to the border
to secure international monitoring of the borders after a conflict there; the proposal was rejected
by Honduras with U.S. backing. A year later, on November 12, 1987, the General Assembly again
called for "full and immediate compliance" with the World Court decision. This time only Israel
joined the United States in opposing adherence to the ruling.]

U.S. defense and response


The United States refused to participate in the merits phase of the proceedings, but the Court
found that the US refusal did not prevent it from deciding the case. The Court also rejected the
United States defense that its action constituted collective self-defense. The United States argued
that the Court did not have jurisdiction, with U.S. ambassador to the United Nations Jeane
Kirkpatrick dismissing the Court as a "semi-legal, semi-juridical, semi-political body, which nations
sometimes accept and sometimes don't." [31]
The United States had signed the treaty accepting the Court's decision as binding, but with the
exception that the court would not have the power to hear cases based on multilateral treaty
obligations unless it involved all parties to the treaty affected by that decision or the United States
specially agreed to jurisdiction. The court found that it was obliged to apply this exception and
refused to take on claims by Nicaragua based on the United Nations Charter and Organization of
American States charter, but concluded that it could still decide the case based on customary
international law obligations with 11-4 majority.
After five vetoes in the Security Council between 1982 and 1985 of resolutions concerning the
situation in Nicaragua [6], the United States made one final veto on 28 October 1986[27] (France,
Thailand, and United Kingdom abstaining) of a resolution calling for full and immediate
compliance with the Judgement.[28]
When the same resolution was brought before the United Nations General Assembly on 3
November it was passed.[29] Only El Salvador and Israel voted with the U.S. against it. El
Salvador's ruling junta was at that time receiving substantial funding and military advisement from
the U.S., which was aiming to crush a Sandinista-like revolutionary movement by the FMLN. In
spite of this resolution, the U.S. still chose not to pay the fine.

Significance
Third-party interpretations
Professor of International Law, Anthony D'Amato, writing for the American Journal of International
Law (Vol. 80, 1986), commented on this case, stating that "...law would collapse if defendants
could only be sued when they agreed to be sued, and the proper measurement of that collapse
would be not just the drastically diminished number of cases but also the necessary restructuring
of a vast system of legal transactions and relations predicated on the availability of courts as a
last resort. There would be talk of a return to the law of the jungle." The author also notes that the
case resulted in an unusual candor. A month after the announced withdrawal, Secretary of State
Shultz suggested, and President Reagan later confirmed in a press conference, that the goal of
U.S. policy was to overthrow the Sandinista Government of Nicaragua. Although this was what
Nicaragua had alleged to be the U.S. goal, while the case was actively pending, the United States
could not concede that goal without serious risk of undermining its litigating position.

(Nicaragua v. United States of America)

International Court of Justice

June 27, 1986

MERITS

Judgment

Present: President NAGENDRA SINGH; Vice-President DE LACHARRIERE; Judges LACHS,


RUDA, ELIAS, ODA, AGO, SETTE-CAMARA, SCHWEBEL, Sir Robert JENNINGS,
MBAYE, BEDJAOUI, NI, EVENSEN; Judge ad hoc COLLIARD; Registrar TORRES
BERNARDEZ.

In the case concerning military and paramilitary activities in and against Nicaragua, ...

THE COURT,

composed as above, delivers the following Judgment:

1. On 9 April 1984 the Ambassador of the Republic of Nicaragua to the Netherlands filed in the
Registry of the Court an Application instituting proceedings against the United States of America
in respect of a dispute concerning responsibility for military and paramilitary activities in and
against Nicaragua. In order to found the jurisdiction of the Court the Application relied on
declarations made by the Parties accepting the compulsory jurisdiction of the Court under Article
36 of the Statute.

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was at once communicated
to the Government of the United States of America. In accordance with paragraph 3 of that
Article, all other States entitled to appear before the Court were notified of the Application.

3. At the same time as the Application was filed, the Republic of Nicaragua also filed a request
for the indication of provisional measures under Article 41 of the Statute. By an Order dated 10
May 1984, the Court rejected a request made by the United States for removal of the case from
the list, indicated, pending its final decision in the proceedings, certain provisional measures, and
decided that, until the Court delivers its final judgment in the case, it would keep the matters
covered by the Order continuously under review.

4. By the said Order of 10 May 1984, the Court further decided that the written proceedings in
the case should first be addressed to the questions of the jurisdiction of the Court to entertain the
dispute and of the admissibility of the Application. By an Order dated 14 May 1984, the
President of the Court fixed 30 June 1984 as time-limit for the filing of a Memorial by the
Republic of Nicaragua and 17 August 1984 as time-limit for the filing of a Counter- Memorial
by the United States of America on the questions of jurisdiction and admissibility and these
pleadings were duly filed within the time-limits fixed.

5. In its Memorial on jurisdiction and admissibility, the Republic of Nicaragua contended that, in
addition to the basis of jurisdiction relied on in the Application, a Treaty of Friendship,
Commerce and Navigation signed by the Parties in 1956 provides an independent basis for
jurisdiction under Article 36, paragraph 1, of the Statute of the Court.

6. Since the Court did not include upon the bench a judge of Nicaraguan nationality, Nicaragua,
by a letter dated 3 August 1984, exercised its right under Article 31, paragraph 2, of the Statute
of the Court to choose a judge ad hoc to sit in the case. The person so designated was Professor
Claude-Albert Colliard.

7. On 15 August 1984, two days before the closure of the written proceedings on the questions of
jurisdiction and admissibility, the Republic of El Salvador filed a Declaration of Intervention in
the case under Article 63 of the Statute. Having been supplied with the written observations of
the Parties on the Declaration pursuant to Article 83 of the Rules of Court, the Court, by an
Order dated 4 October 1984, decided not to hold a hearing on the Declaration of Intervention,
and decided that that Declaration was inadmissible inasmuch as it related to the phase of the
proceedings then current.

8. On 8-10 October and 15-18 October 1984, the Court held public hearings at which it heard the
argument of the Parties on the questions of the jurisdiction of the Court to entertain the dispute
and the admissibility of the Application.

9. By a Judgment dated 26 November 1984, the Court found that it had jurisdiction to entertain
the Application on the basis of Article 36, paragraphs 2 and 5, of the Statute of the Court; that it
had jurisdiction to entertain the Application in so far as it relates to a dispute concerning the
interpretation or application of the Treaty of Friendship, Commerce and Navigation between the
United States and Nicaragua of 21 January 1956, on the basis of Article XXIV of that Treaty;
that it had jurisdiction to entertain the case; and that the Application was admissible.

10. By a letter dated 18 January 1985 the Agent of the United States referred to the Court's
Judgment of 26 November 1984 and informed the Court as follows:

'the United States is constrained to conclude that the judgment of the Court was clearly and
manifestly erroneous as to both fact and law. The United States remains firmly of the view, for
the reasons given in its written and oral pleadings, that the Court is without jurisdiction to
entertain the dispute, and that the Nicaraguan application of 9 April 1984 is inadmissible.
Accordingly, it is my duty to inform you that the United States intends not to participate in any
further proceedings in connection with this case, and reserves its rights in respect of any decision
by the Court regarding Nicaragua's claims.'

11. By an Order dated 22 January 1985, the President of the Court, after referring to the letter
from the United States Agent, fixed 30 April 1985 as time-limit for a Memorial of Nicaragua and
31 May 1985 as time-limit for a Counter-Memorial of the United States of America on the merits
of the dispute. The Memorial of Nicaragua was filed within the time-limit so fixed; no pleading
was filed by the United States of America, nor did it make any request for extension of the time-
limit. In its Memorial, communicated to the United States pursuant to Article 43 of the Statute of
the Court, Nicaragua invoked Article 53 of the Statute and called upon the Court to decide the
case despite the failure of the Respondent to appear and defend.

12. On 10 September 1985, immediately prior to the opening of the oral proceedings, the Agent
of Nicaragua submitted to the Court a number of documents referred to as 'Supplemental
Annexes' to the Memorial of Nicaragua. In application of Article 56 of the Rules of Court, these
documents were treated as 'new documents' and copies were transmitted to the United States of
America, which did not lodge any objection to their production.

13. On 12-13 and 16-20 September 1985, the Court held public hearings at which it was
addressed by the following representatives of Nicaragua: H.E. Mr. Carlos Arguello Gomez, Hon.
Abram Chayes, Mr. Paul S. Reichler, Mr. Ian Brownlie, and Mr. Alain Pellet. The United States
was not represented at the hearing. The following witnesses were called by Nicaragua and gave
evidence: Commander Luis Carrion, Vice-Minister of the Interior of Nicaragua (examined by
Mr. Brownlie); Dr. David MacMichael, a former officer of the United States Central Intelligence
Agency (CIA) (examined by Mr. Chayes); Professor Michael John Glennon (examined by Mr.
Reichler); Father Jean Loison (examined by Mr. Pellet); Mr. William Huper, Minister of Finance
of Nicaragua (examined by Mr. Arguello Gomez). Questions were put by Members of the Court
to the witnesses, as well as to the Agent and counsel of Nicaragua, and replies were given either
orally at the hearing or subsequently in writing. On 14 October 1985 the Court requested
Nicaragua to make available certain further information and documents, and one Member of the
Court put a question to Nicaragua. The verbatim records of the hearings and the information and
documents supplied in response to these requests were transmitted by the Registrar to the United
States of America.
14. Pursuant to Article 53, paragraph 2, of the Rules of Court, the pleadings and annexed
documents were made accessible to the public by the Court as from the date of opening of the
oral proceedings.

15. In the course of the written proceedings, the following submissions were presented on behalf
of the Government of Nicaragua:

in the Application:

'Nicaragua, reserving the right to supplement or to amend this Application and subject to the
presentation to the Court of the relevant evidence and legal argument, requests the Court to
adjudge and declare as follows:

(a) That the United States, in recruiting, training, arming, equipping, financing, supplying and
otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and
against Nicaragua, has violated and is violating its express charter and treaty obligations to
Nicaragua, and in particular, its charter and treaty obligations under:

- Article 2 (4) of the United Nations Charter;

- Articles 18 and 20 of the Charter of the Organization of American States;

- Article 8 of the Convention on Rights and Duties of States;

- Article I, Third, of the Convention concerning the Duties and Rights of States in the Event of
Civil Strife.

(b) That the United States, in breach of its obligation under general and customary international
law, has violated and is violating the sovereignty of Nicaragua by:

- armed attacks against Nicaragua by air, land and sea;

- incursions into Nicaraguan territorial waters;

- aerial trespass into Nicaraguan airspace;

- efforts by direct and indirect means to coerce and intimidate the Government of Nicaragua.

(c) That the United States, in breach of its obligation under general and customary international
law, has used and is using force and the threat of force against Nicaragua.

(d) That the United States, in breach of its obligation under general and customary international
law, has intervened and is intervening in the internal affairs of Nicaragua.
(e) That the United States, in breach of its obligation under general and customary international
law, has infringed and is infringing the freedom of the high seas and interrupting peaceful
maritime commerce.

(f) That the United States, in breach of its obligation under general and customary international
law, has killed, wounded and kidnapped and is killing, wounding and kidnapping citizens of
Nicaragua.

(g) That, in view of its breaches of the foregoing legal obligations, the United States is under a
particular duty to cease and desist immediately: from all use of force - whether direct or indirect,
overt or covert - against Nicaragua, and from all threats of force against Nicaragua;

from all violations of the sovereignty, territorial integrity or political independence of Nicaragua,
including all intervention, direct or indirect, in the internal affairs of Nicaragua;

from all support of any kind - including the provision of training, arms, ammunition, finances,
supplies, assistance, direction or any other form of support - to any nation, group, organization,
movement or individual engaged or planning to engage in military or paramilitary actions in or
against Nicaragua;

from all efforts to restrict, block or endanger access to or from Nicaraguan ports;

and from all killings, woundings and kidnappings of Nicaraguan citizens.

(h) That the United States has an obligation to pay Nicaragua, in its own right and as parens
patriae for the citizens of Nicaragua, reparations for damages to person, property and the
Nicaraguan economy caused by the foregoing violations of international law in a sum to be
determined by the Court. Nicaragua reserves the right to introduce to the Court a precise
evaluation of the damages caused by the United States';

in the Memorial on the merits:

'The Republic of Nicaragua respectfully requests the Court to grant the following relief:

First: the Court is requested to adjudge and declare that the United States has violated the
obligations of international law indicated in this Memorial, and that in particular respects the
United States is in continuing violation of those obligations.

Second: the Court is requested to state in clear terms the obligation which the United States bears
to bring to an end the aforesaid breaches of international law.

Third: the Court is requested to adjudge and declare that, in consequence of the violations of
international law indicated in this Memorial, compensation is due to Nicaragua, both on its own
behalf and in respect of wrongs inflicted upon its nationals; and the Court is requested further to
receive evidence and to determine, in a subsequent phase of the present proceedings, the
quantum of damages to be assessed as the compensation due to the Republic of Nicaragua.
Fourth: without prejudice to the foregoing request, the Court is requested to award to the
Republic of Nicaragua the sum of 370,200,000 United States dollars, which sum constitutes the
minimum valuation of the direct damages, with the exception of damages for killing nationals of
Nicaragua, resulting from the violations of international law indicated in the substance of this
Memorial.

With reference to the fourth request, the Republic of Nicaragua reserves the right to present
evidence and argument, with the purpose of elaborating the minimum (and in that sense
provisional) valuation of direct damages and, further, with the purpose of claiming compensation
for the killing of nationals of Nicaragua and consequential loss in accordance with the principles
of international law in respect of the violations of international law generally, in a subsequent
phase of the present proceedings in case the Court accedes to the third request of the Republic of
Nicaragua.

16. At the conclusion of the last statement made on behalf of Nicaragua at the hearing, the final
submissions of Nicaragua were presented, which submissions were identical to those contained
in the Memorial on the merits and set out above.

17. No pleadings on the merits having been filed by the United States of America, which was
also not represented at the oral proceedings of September 1985, no submissions on the merits
were presented on its behalf.

18. The dispute before the Court between Nicaragua and the United States concerns events in
Nicaragua subsequent to the fall of the Government of President Anastasio Somoza Debayle in
Nicaragua in July 1979, and activities of the Government of the United States in relation to
Nicaragua since that time. Following the departure of President Somoza, a Junta of National
Reconstruction and an 18-member government was installed by the body which had led the
armed opposition to President Somoza, the Frente Sandinista de Liberacion Nacional (FSLN).
That body had initially an extensive share in the new government, described as a 'democratic
coalition', and as a result of later resignations and reshuffles, became almost its sole component.
Certain opponents of the new Government, primarily supporters of the former Somoza
Government and in particular ex-members of the National Guard, formed themselves into
irregular military forces, and commenced a policy of armed opposition, though initially on a
limited scale.

19. The attitude of the United States Government to the 'democratic coalition government' was at
first favourable; and a programme of economic aid to Nicaragua was adopted. However by 1981
this attitude had changed. United States aid to Nicaragua was suspended in January 1981 and
terminated in April 1981. According to the United States, the reason for this change of attitude
was reports of involvement of the Government of Nicaragua in logistical support, including
provision of arms, for guerrillas in El Salvador. There was however no interruption in diplomatic
relations, which have continued to be maintained up to the present time. In September 1981,
according to testimony called by Nicaragua, it was decided to plan and undertake activities
directed against Nicaragua.
20. The armed opposition to the new Government in Nicaragua, which originally comprised
various movements, subsequently became organized into two main groups: the Fuerza
Democratica Nicaraguense (FDN) and the Alianza Revolucionaria Democratica (ARDE). The
first of these grew from 1981 onwards into a trained fighting force, operating along the borders
with Honduras; the second, formed in 1982, operated along the borders with Costa Rica. The
precise extent to which, and manner in which, the United States Government contributed to
bringing about these developments will be studied more closely later in the present Judgment.
However, after an initial period in which the 'covert' operations of United States personnel and
persons in their pay were kept from becoming public knowledge, it was made clear, not only in
the United States press, but also in Congress and in official statements by the President and high
United States officials, that the United States Government had been giving support to the contras,
a term employed to describe those fighting against the present Nicaraguan Government. In 1983,
budgetary legislation enacted by the United States Congress made specific provision for funds to
be used by United States intelligence agencies for supporting 'directly or indirectly, military or
paramilitary operations in Nicaragua'. According to Nicaragua, the contras have caused it
considerable material damage and widespread loss of life, and have also committed such acts as
killing of prisoners, indiscriminate killing of civilians, torture, rape and kidnapping. It is
contended by Nicaragua that the United States Government is effectively in control of the
contras, that it devised their strategy and directed their tactics, and that the purpose of that
Government was, from the beginning, to overthrow the Government of Nicaragua.

21. Nicaragua claims furthermore that certain military or paramilitary operations against it were
carried out, not by the contras, who at the time claimed responsibility, but by persons in the pay
of the United States Government, and under the direct command of United States personnel, who
also participated to some extent in the operations. These operations will also be more closely
examined below in order to determine their legal significance and the responsibility for them;
they include the mining of certain Nicaraguan ports in early 1984, and attacks on ports, oil
installations, a naval base, etc. Nicaragua has also complained of overflights of its territory by
United States aircraft, not only for purposes of intelligence-gathering and supply to the contras in
the field, but also in order to intimidate the population.

22. In the economic field, Nicaragua claims that the United States has withdrawn its own aid to
Nicaragua, drastically reduced the quota for imports of sugar from Nicaragua to the United
States, and imposed a trade embargo; it has also used its influence in the Inter-American
Development Bank and the International Bank for Reconstruction and Development to block the
provision of loans to Nicaragua.

23. As a matter of law, Nicaragua claims, inter alia, that the United States has acted in violation
of Article 2, paragraph 4, of the United Nations Charter, and of a customary international law
obligation to refrain from the threat or use of force; that its actions amount to intervention in the
internal affairs of Nicaragua, in breach of the Charter of the Organization of American States and
of rules of customary international law forbidding intervention; and that the United States has
acted in violation of the sovereignty of Nicaragua, and in violation of a number of other
obligations established in general customary international law and in the inter-American system.
The actions of the United States are also claimed by Nicaragua to be such as to defeat the object
and purpose of a Treaty of Friendship, Commerce and Navigation concluded between the Parties
in 1956, and to be in breach of provisions of that Treaty.

24. As already noted, the United States has not filed any pleading on the merits of the case, and
was not represented at the hearings devoted thereto. It did however make clear in its Counter-
Memorial on the questions of jurisdiction and admissibility that 'by providing, upon request,
proportionate and appropriate assistance to third States not before the Court' it claims to be
acting in reliance on the inherent right of self-defence 'guaranteed . . . by Article 51 of the
Charter' of the United Nations, that is to say the right of collective self-defence.

25. Various elements of the present dispute have been brought before the United Nations
Security Council by Nicaragua, in April 1984 (as the Court had occasion to note in its Order of
10 May 1984, and in its Judgment on jurisdiction and admissibility of 26 November 1984, I.C.J.
Reports 1984, p. 432, para. 91), and on a number of other occasions. The subject-matter of the
dispute also forms part of wider issues affecting Central America at present being dealt with on a
regional basis in the context of what is known as the 'Contadora Process' (I.C.J. Reports 1984,
pp. 183-185, paras. 34-36; pp. 438-441, paras. 102-108).

26. The position taken up by the Government of the United States of America in the present
proceedings, since the delivery of the Court's Judgment of 26 November 1984, as defined in the
letter from the United States Agent dated 18 January 1985, brings into operation Article 53 of the
Statute of the Court, which provides that 'Whenever one of the parties does not appear before the
Court, or fails to defend its case, the other party may call upon the Court to decide in favour of
its claim'. Nicaragua, has, in its Memorial and oral argument, invoked Article 53 and asked for a
decision in favour of its claim. A special feature of the present case is that the United States only
ceased to take part in the proceedings after a Judgment had been given adverse to its contentions
on jurisdiction and admissibility. Furthermore, it stated when doing so 'that the judgment of the
Court was clearly and manifestly erroneous as to both fact and law', that it 'remains firmly of the
view . . . that the Court is without jurisdiction to entertain the dispute' and that the United States
'reserves its rights in respect of any decision by the Court regarding Nicaragua's claims'.

27. When a State named as party to proceedings before the Court decides not to appear in the
proceedings, or not to defend its case, the Court usually expresses regret, because such a decision
obviously has a negative impact on the sound administration of justice (cf. Fisheries Jurisdiction,
I.C.J. Reports 1973, p. 7, para. 12; p. 54, para. 13; I.C.J. Reports 1974, p. 9, para. 17; p. 181,
para. 18; Nuclear Tests, I.C.J. Reports 1974, p. 257, para. 15; p. 461, para. 15; Aegean Sea
Continental Shelf, I.C.J. Reports 1978, p. 7, para. 15; United States Diplomatic and Consular
Staff in Tehran, I.C.J. Reports 1980, p. 18, para. 33). In the present case, the Court regrets even
more deeply the decision of the respondent State not to participate in the present phase of the
proceedings, because this decision was made after the United States had participated fully in the
proceedings on the request for provisional measures, and the proceedings on jurisdiction and
admissibility. Having taken part in the proceedings to argue that the Court lacked jurisdiction,
the United States thereby acknowledged that the Court had the power to make a finding on its
own jurisdiction to rule upon the merits. It is not possible to argue that the Court had jurisdiction
only to declare that it lacked jurisdiction. In the normal course of events, for a party to appear
before a court entails acceptance of the possibility of the court's finding against that party.
Furthermore the Court is bound to emphasize that the non-participation of a party in the
proceedings at any stage of the case cannot, in any circumstances, affect the validity of its
judgment. Nor does such validity depend upon the acceptance of that judgment by one party. The
fact that a State purports to 'reserve its rights' in respect of a future decision of the Court, after
the Court has determined that it has jurisdiction, is clearly of no effect on the validity of that
decision. Under Article 36, paragraph 6, of its Statute, the Court has jurisdiction to determine
any dispute as to its own jurisdiction, and its judgment on that matter, as on the merits, is final
and binding on the parties under Articles 59 and 60 of the Statute (cf. Corfu Channel, Judgment
of 15 December 1949, I.C.J. Reports 1949, p. 248).

28. When Article 53 of the Statute applies, the Court is bound to 'satisfy itself, not only that it
has jurisdiction in accordance with Articles 36 and 37, but also that the claim' of the party
appearing is well founded in fact and law. In the present case, the Court has had the benefit of
both Parties pleading before it at the earlier stages of the procedure, those concerning the request
for the indication of provisional measures and to the questions of jurisdiction and admissibility.
By its Judgment of 26 November 1984, the Court found, inter alia, that it had jurisdiction to
entertain the case; it must however take steps to 'satisfy itself' that the claims of the Applicant are
'well founded in fact and law'. The question of the application of Article 53 has been dealt with
by the Court in a number of previous cases, referred to above, and the Court does not therefore
find it necessary to recapitulate the content of these decisions. The reasoning adopted to dispose
of the basic problems arising was essentially the same, although the words used may have
differed slightly from case to case. Certain points of principle may however be restated here. A
State which decides not to appear must accept the consequences of its decision, the first of which
is that the case will continue without its participation; the State which has chosen not to appear
remains a party to the case, and is bound by the eventual judgment in accordance with Article 59
of the Statute. There is however no question of a judgment automatically in favour of the party
appearing, since the Court is required, as mentioned above, to 'satisfy itself' that that party's
claim is well founded in fact and law.

29. The use of the term 'satisfy itself' in the English text of the Statute (and in the French text the
term 's'assurer') implies that the Court must attain the same degree of certainty as in any other
case that the claim of the party appearing is sound in law, and, so far as the nature of the case
permits, that the facts on which it is based are supported by convincing evidence. For the purpose
of deciding whether the claim is well founded in law, the principle jura novit curia signifies that
the Court is not solely dependent on the argument of the parties before it with respect to the
applicable law (cf. 'Lotus', P.C.I.J., Series A, No. 10, p. 31), so that the absence of one party has
less impact. As the Court observed in the Fisheries Jurisdiction cases:

'The Court . . ., as an international judicial organ, is deemed to take judicial notice of


international law, and is therefore required in a case falling under Article 53 of the Statute, as in
any other case, to consider on its own initiative all rules of international law which may be
relevant to the settlement of the dispute. It being the duty of the Court itself to ascertain and
apply the relevant law in the given circumstances of the case, the burden of establishing or
proving rules of international law cannot be imposed upon any of the parties, for the law lies
within the judicial knowledge of the Court.' (I.C.J. Reports 1974, p. 9, para. 17; p. 181, para. 18.)
Nevertheless the views of the parties to a case as to the law applicable to their dispute are very
material, particularly, as will be explained below (paragraphs 184 and 185), when those views
are concordant. In the present case, the burden laid upon the Court is therefore somewhat
lightened by the fact that the United States participated in the earlier phases of the case, when it
submitted certain arguments on the law which have a bearing also on the merits.

30. As to the facts of the case, in principle the Court is not bound to confine its consideration to
the material formally submitted to it by the parties (cf. Brazilian Loans, P.C.I.J., Series A, No.
20/21, p. 124; Nuclear Tests, I.C.J. Reports 1974, pp. 263-264, paras. 31, 32). Nevertheless, the
Court cannot by its own enquiries entirely make up for the absence of one of the Parties; that
absence, in a case of this kind involving extensive questions of fact, must necessarily limit the
extent to which the Court is informed of the facts. It would furthermore be an over-simplification
to conclude that the only detrimental consequence of the absence of a party is the lack of
opportunity to submit argument and evidence in support of its own case. Proceedings before the
Court call for vigilance by all. The absent party also forfeits the opportunity to counter the
factual allegations of its opponent. It is of course for the party appearing to prove the allegations
it makes, yet as the Court has held:

'While Article 53 thus obliges the Court to consider the submissions of the Party which appears,
it does not compel the Court to examine their accuracy in all their details; for this might in
certain unopposed cases prove impossible in practice.' (Corfu Channel, I.C.J. Reports 1949, p.
248.)

31. While these are the guiding principles, the experience of previous cases in which one party
has decided not to appear shows that something more is involved. Though formally absent from
the proceedings, the party in question frequently submits to the Court letters and documents, in
ways and by means not contemplated by the Rules. The Court has thus to strike a balance. On the
one hand, it is valuable for the Court to know the views of both parties in whatever form those
views may have been expressed. Further, as the Court noted in 1974, where one party is not
appearing 'it is especially incumbent upon the Court to satisfy itself that it is in possession of all
the available facts' (Nuclear Tests, I.C.J. Reports 1974, p. 263, para. 31; p. 468, para. 32). On the
other hand, the Court has to emphasize that the equality of the parties to the dispute must remain
the basic principle for the Court. The intention of Article 53 was that in a case of non-appearance
neither party should be placed at a disadvantage; therefore the party which declines to appear
cannot be permitted to profit from its absence, since this would amount to placing the party
appearing at a disadvantage. The provisions of the Statute and Rules of Court concerning the
presentation of pleadings and evidence are designed to secure a proper administration of justice,
and a fair and equal opportunity for each party to comment on its opponent's contentions. The
treatment to be given by the Court to communications or material emanating from the absent
party must be determined by the weight to be given to these different considerations, and is not
susceptible of rigid definition in the form of a precise general rule. The vigilance which the
Court can exercise when aided by the presence of both parties to the proceedings has a
counterpart in the special care it has to devote to the proper administration of justice in a case in
which only one party is present.
32. Before proceeding further, the Court considers it appropriate to deal with a preliminary
question, relating to what may be referred to as the justiciability of the dispute submitted to it by
Nicaragua. In its Counter-Memorial on jurisdiction and admissibility the United States advanced
a number of arguments why the claim should be treated as inadmissible: inter alia, again
according to the United States, that a claim of unlawful use of armed force is a matter committed
by the United Nations Charter and by practice to the exclusive competence of other organs, in
particular the Security Council; and that an 'ongoing armed conflict' involving the use of armed
force contrary to the Charter is one with which a court cannot deal effectively without
overstepping proper judicial bounds. These arguments were examined by the Court in its
Judgment of 26 November 1984, and rejected. No further arguments of this nature have been
submitted to the Court by the United States, which has not participated in the subsequent
proceedings. However the examination of the merits which the Court has now carried out shows
the existence of circumstances as a result of which, it might be argued, the dispute, or that part of
it which relates to the questions of use of force and collective self-defence, would be
nonjusticiable.

33. In the first place, it has been suggested that the present dispute should be declared
nonjusticiable, because it does not fall into the category of 'legal disputes' within the meaning of
Article 36, paragraph 2, of the Statute. It is true that the jurisdiction of the Court under that
provision is limited to 'legal disputes' concerning any of the matters enumerated in the text. The
question whether a given dispute between two States is or is not a 'legal dispute' for the purposes
of this provision may itself be a matter in dispute between those two States; and if so, that
dispute is to be settled by the decision of the Court in accordance with paragraph 6 of Article 36.
In the present case, however, this particular point does not appear to be in dispute between the
Parties. The United States, during the proceedings devoted to questions of jurisdiction and
admissibility, advanced a number of grounds why the Court should find that it had no
jurisdiction, or that the claim was not admissible. It relied inter alia on proviso (c) to its own
declaration of acceptance of jurisdiction under Article 36, paragraph 2, without ever advancing
the more radical argument that the whole declaration was inapplicable because the dispute
brought before the Court by Nicaragua was not a 'legal dispute' within the meaning of that
paragraph. As a matter of admissibility, the United States objected to the application of Article
36, paragraph 2, not because the dispute was not a 'legal dispute', but because of the express
allocation of such matters as the subject of Nicaragua's claims to the political organs under the
United Nations Charter, an argument rejected by the Court in its Judgment of 26 November 1984
(I.C.J. Reports 1984, pp. 431- 436). Similarly, while the United States contended that the nature
of the judicial function precludes its application to the substance of Nicaragua's allegations in
this case - an argument which the Court was again unable to uphold (ibid., pp. 436-438) , it was
careful to emphasize that this did not mean that it was arguing that international law was not
relevant or controlling in a dispute of this kind. In short, the Court can see no indication
whatsoever that, even in the view of the United States, the present dispute falls outside the
category of 'legal disputes' to which Article 36, paragraph 2, of the Statute applies. It must
therefore proceed to examine the specific claims of Nicaragua in the light of the international law
applicable.

34. There can be no doubt that the issues of the use of force and collective self-defence raised in
the present proceedings are issues which are regulated both by customary international law and
by treaties, in particular the United Nations Charter. Yet it is also suggested that, for another
reason, the questions of this kind which arise in the present case are not justiciable, that they fall
outside the limits of the kind of questions a court can deal with. It is suggested that the plea of
collective self-defence which has been advanced by the United States as a justification for its
actions with regard to Nicaragua requires the Court to determine whether the United States was
legally justified in adjudging itself under a necessity, because its own security was in jeopardy,
to use force in response to foreign intervention in El Salvador. Such a determination, it is said,
involves a pronouncement on political and military matters, not a question of a kind that a court
can usefully attempt to answer.

35. As will be further explained below, in the circumstances of the dispute now before the Court,
what is in issue is the purported exercise by the United States of a right of collective self-defence
in response to an armed attack on another State. The possible lawfulness of a response to the
imminent threat of an armed attack which has not yet taken place has not been raised. The Court
has therefore to determine first whether such attack has occurred, and if so whether the measures
allegedly taken in self-defence were a legally appropriate reaction as a matter of collective self-
defence. To resolve the first of these questions, the Court does not have to determine whether the
United States, or the State which may have been under attack, was faced with a necessity of
reacting. Nor does its examination, if it determines that an armed attack did occur, of issues
relating to the collective character of the self-defence and the kind of reaction, necessarily
involve it in any evaluation of military considerations. Accordingly the Court can at this stage
confine itself to a finding that, in the circumstances of the present case, the issues raised of
collective self-defence are issues which it has competence, and is equipped, to determine.

36. By its Judgment of 26 November 1984, the Court found that it had jurisdiction to entertain
the present case, first on the basis of the United States declaration of acceptance of jurisdiction,
under the optional clause of Article 36, paragraph 2, of the Statute, deposited on 26 August 1946,
and secondly on the basis of Article XXIV of a Treaty of Friendship, Commerce and Navigation
between the Parties, signed at Managua on 21 January 1956. The Court notes that since the
institution of the present proceedings, both bases of jurisdiction have been terminated. On 1 May
1985 the United States gave written notice to the Government of Nicaragua to terminate the
Treaty, in accordance with Article XXV, paragraph 3, thereof; that notice expired, and thus
terminated the treaty relationship, on 1 May 1986. On 7 October 1985 the United States
deposited with the Secretary-General of the United Nations a notice terminating the declaration
under the optional clause, in accordance with the terms of that declaration, and that notice
expired on 7 April 1986. These circumstances do not however affect the jurisdiction of the Court
under Article 36, paragraph 2, of the Statute, or its jurisdiction under Article XXIV, paragraph 2,
of the Treaty to determine 'any dispute between the Parties as to the interpretation or application'
of the Treaty. As the Court pointed out in the Nottebohm case:

'When an Application is filed at a time when the law in force between the parties entails the
compulsory jurisdiction of the Court . . . the filing of the Application is merely the condition
required to enable the clause of compulsory jurisdiction to produce its effects in respect of the
claim advanced in the Application. Once this condition has been satisfied, the Court must deal
with the claim; it has jurisdiction to deal with all its aspects, whether they relate to jurisdiction,
to admissibility or to the merits. An extrinsic fact such as the subsequent lapse of the Declaration
[or, as in the present case also, the Treaty containing a compromissory clause], by reason of the
expiry of the period or by denunciation, cannot deprive the Court of the jurisdiction already
established.' (I.C.J. Reports 1953, p. 123.)

37. In the Judgment of 26 November 1984 the Court, however, also declared that one objection
advanced by the United States, that concerning the exclusion from the United States acceptance
of jurisdiction under the optional clause of 'disputes arising under a multilateral treaty', raised 'a
question concerning matters of substance relating to the merits of the case', and concluded:

'That being so, and since the procedural technique formerly available of joinder of preliminary
objections to the merits has been done away with since the 1972 revision of the Rules of Court,
the Court has no choice but to avail itself of Article 79, paragraph 7, of the present Rules of
Court, and declare that Paragraph 7, of the present Rules of Court, and declare tht the objection
based on the multilateral treaty reservation of the United States Declaration of Acceptance does
not possess, in the circumstances of the case, an exclusively preliminary character, and that
consequently it does not constitute an obstacle for the Court to entertain the proceedings
instituted by Nicaragua under the Application of 9 April 1984.' (I.C.J. Reports 1984, pp. 425-
426, para. 76.)

******************

42. The Court must thus now rule upon the consequences of the United States multilateral treaty
reservation for the decision which it has to give. It will be recalled that the United States
acceptance of jurisdiction deposited on 26 August 1946 contains a proviso excluding from its
application: 'disputes arising under a multilateral treaty, unless (1) all parties to the treaty
affected by the decision are also parties to the case before the Court, or (2) the United States of
America specially agrees to jurisdiction'. The 1984 Judgment included pronouncements on
certain aspects of that reservation, but the Court then took the view that it was neither necessary
nor possible, at the jurisdictional stage of the proceedings, for it to take a position on all the
problems posed by the reservation.

43. It regarded this as not necessary because, in its Application, Nicaragua had not confined its
claims to breaches of multilateral treaties but had also invoked a number of principles of 'general
and customary international law', as well as the bilateral Treaty of Friendship, Commerce and
Navigation of 1956. These principles remained binding as such, although they were also
enshrined in treaty law provisions. Consequently, since the case had not been referred to the
Court solely on the basis of multilateral treaties, it was not necessary for the Court, in order to
consider the merits of Nicaragua's claim, to decide the scope of the reservation in question: 'the
claim . . . would not in any event be barred by the multilateral treaty reservation' (I.C.J. Reports
1984, p. 425, para. 73). Moreover, it was not found possible for the reservation to be definitively
dealt with at the jurisdictional stage of the proceedings. To make a judgment on the scope of the
reservation would have meant giving a definitive interpretation of the term 'affected' in that
reservation. In its 1984 Judgment, the Court held that the term 'affected' applied not to
multilateral treaties, but to the parties to such treaties. The Court added that if those parties
wished to protect their interests 'in so far as these are not already protected by Article 59 of the
Statute', they 'would have the choice of either instituting proceedings or intervening' during the
merits phase. But at all events, according to the Court, 'the determination of the States "affected"
could not be left to the parties but must be made by the Court' (I.C.J. Reports 1984, p. 425, para.
75). This process could however not be carried out at the stage of the proceedings in which the
Court then found itself; 'it is only when the general lines of the judgment to be given become
clear,' the Court said, 'that the States 'affected' could be identified' (ibid.). The Court thus
concluded that this was 'a question concerning matters of substance relating to the merits of the
case' (ibid., para. 76). Since 'the question of what States may be "affected" by the decision on the
merits is not in itself a jurisdictional problem,' the Court found that it 'has no choice but to avail
itself of Article 79, paragraph 7, of the present Rules of Court, and declare that the objection
based on the multilateral treaty reservation . . . does not possess, in the circumstances of the case,
an exclusively preliminary character' (ibid., para. 76).

44. Now that the Court has considered the substance of the dispute, it becomes both possible and
necessary for it to rule upon the points related to the United States reservation which were not
settled in 1984. It is necessary because the Court's jurisdiction, as it has frequently recalled, is
based on the consent of States, expressed in a variety of ways including declarations made under
Article 36, paragraph 2, of the Statute. It is the declaration made by the United States under that
Article which defines the categories of dispute for which the United States consents to the
Court's jurisdiction. If therefore that declaration, because of a reservation contained in it,
excludes from the disputes for which it accepts the Court's jurisdiction certain disputes arising
under multilateral treaties, the Court must take that fact into account. The final decision on this
point, which it was not possible to take at the jurisdictional stage, can and must be taken by the
Court now when coming to its decision on the merits. If this were not so, the Court would not
have decided whether or not the objection was well-founded, either at the jurisdictional stage,
because it did not possess an exclusively preliminary character, or at the merits stage, because it
did to some degree have such a character. It is now possible to resolve the question of the
application of the reservation because, in the light of the Court's full examination of the facts of
the case and the law, the implications of the argument of collective self-defence raised by the
United States have become clear.

45. The reservation in question is not necessarily a bar to the United States' accepting the Court's
jurisdiction whenever a third State which may be affected by the decision is not a party to the
proceedings. According to the actual text of the reservation, the United States can always
disregard this fact if it 'specially agrees to jurisdiction'. Besides, apart from this possibility, as the
Court recently observed: 'in principle a State may validly waive an objection to jurisdiction
which it might otherwise have been entitled to raise' (I.C.J. Reports 1985, p. 216, para. 43). But it
is clear that the fact that the United States, having refused to participate at the merits stage, did
not have an opportunity to press again at that stage the argument which, in the jurisdictional
phase, it founded on its multilateral treaty reservation cannot be tantamount to a waiver of the
argument drawn from the reservation. Unless unequivocally waived, the reservation constitutes a
limitation on the extent of the jurisdiction voluntarily accepted by the United States; and, as the
Court observed in the Aegean Sea Continental Shelf case,

'It would not discharge its duty under Article 53 of the Statute if it were to leave out of its
consideration a reservation, the invocation of which by the Respondent was properly brought to
its notice earlier in the proceedings.' (I.C.J. Reports 1978, p. 20, para. 47.)
The United States has not in the present phase submitted to the Court any arguments whatever,
either on the merits proper or on the question - not exclusively preliminary - of the multilateral
treaty reservation. The Court cannot therefore consider that the United States has waived the
reservation or no longer ascribes to it the scope which the United States attributed to it when last
stating its position on this matter before the Court. This conclusion is the more decisive
inasmuch as a respondent's non-participation requires the Court, as stated for example in the
Fisheries Jurisdiction cases, to exercise 'particular circumspection and . . . special care' (I.C.J.
Reports 1974, p. 10, para. 17, and p. 181, para. 18).

46. It has also been suggested that the United States may have waived the multilateral treaty
reservation by its conduct of its case at the jurisdictional stage, or more generally by asserting
collective self defence in accordance with the United Nations Charter as justification for its
activities vis-a-vis Nicaragua. There is no doubt that the United States, during its participation in
the proceedings, insisted that the law applicable to the dispute was to be found in multilateral
treaties, particularly the United Nations Charter and the Charter of the Organization of American
States; indeed, it went so far as to contend that such treaties supervene and subsume customary
law on the subject. It is however one thing for a State to advance a contention that the law
applicable to a given dispute derives from a specified source; it is quite another for that State to
consent to the Court's having jurisdiction to entertain that dispute, and thus to apply that law to
the dispute. The whole purpose of the United States argument as to the applicability of the
United Nations and Organization of American States Charters was to convince the Court that the
present dispute is one 'arising under' those treaties, and hence one which is excluded from
jurisdiction by the multilateral treaty reservation in the United States declaration of acceptance of
jurisdiction. It is impossible to interpret the attitude of the United States as consenting to the
Court's applying multilateral treaty law to resolve the dispute, when what the United States was
arguing was that, for the very reason that the dispute 'arises under' multilateral treaties, no
consent to its determination by the Court has ever been given. The Court was fully aware, when
it gave its 1984 Judgment, that the United States regarded the law of the two Charters as
applicable to the dispute; it did not then regard that approach as a waiver, nor can it do so now.
The Court is therefore bound to ascertain whether its jurisdiction is limited by virtue of the
reservation in question.

47. In order to fulfil this obligation, the Court is now in a position to ascertain whether any third
States, parties to multilateral treaties invoked by Nicaragua in support of its claims, would be
'affected' by the Judgment, and are not parties to the proceedings leading up to it. The
multilateral treaties discussed in this connection at the stage of the proceedings devoted to
jurisdiction were four in number: the Charter of the United Nations, the Charter of the
Organization of American States, the Montevideo Convention on the Rights and Duties of States
of 26 December 1933, and the Havana Convention on the Rights and Duties of States in the
Event of Civil Strife of 20 February 1928 (cf. I.C.J. Reports 1984, p. 422, para. 68). However,
Nicaragua has not placed any particular reliance on the latter two treaties in the present
proceedings; and in reply to a question by a Member of the Court on the point, the Nicaraguan
Agent stated that while Nicaragua had not abandoned its claims under these two conventions, it
believed 'that the duties and obligations established by these conventions have been subsumed in
the Organization of American States Charter.' The Court therefore considers that it will be
sufficient to examine the position under the two Charters, leaving aside the possibility that the
dispute might be regarded as 'arising' under either or both of the other two conventions.

48. The argument of the Parties at the jurisdictional stage was addressed primarily to the impact
of the multilateral treaty reservation on Nicaragua's claim that the United States has used force
against it in breach of the United Nations Charter and of the Charter of the Organization of
American States, and the Court will first examine this aspect of the matter. According to the
views presented by the United States during the jurisdictional phase, the States which would be
'affected' by the Court's judgment were El Salvador, Honduras and Costa Rica. Clearly, even if
only one of these States is found to be 'affected', the United States reservation takes full effect.
The Court will for convenience first take the case of El Salvador, as there are certain special
features in the position of this State. It is primarily for the benefit of El Salvador, and to help it to
respond to an alleged armed attack by Nicaragua, that the United States claims to be exercising a
right of collective self-defence, which it regards as a justification of its own conduct towards
Nicaragua. Moreover, El Salvador, confirming this assertion by the United States, told the Court
in the Declaration of Intervention which it submitted on 15 August 1984 that it considered itself
the victim of an armed attack by Nicaragua, and that it had asked the United States to exercise
for its benefit the right of collective self-defence. Consequently, in order to rule upon Nicaragua's
complaint against the United States, the Court would have to decide whether any justification for
certain United States activities in and against Nicaragua can be found in the right of collective
self-defence which may, it is alleged, be exercised in response to an armed attack by Nicaragua
on El Salvador. Furthermore, reserving for the present the question of the content of the
applicable customary international law, the right of self- defence is of course enshrined in the
United Nations Charter, so that the dispute is, to this extent, a dispute 'arising under a multilateral
treaty' to which the United States, Nicaragua and El Salvador are parties.

49. As regards the Charter of the Organization of American States, the Court notes that
Nicaragua bases two distinct claims upon this multilateral treaty: it is contended, first, that the
use of force by the United States against Nicaragua in violation of the United Nations Charter is
equally a violation of Articles 20 and 21 of the Organization of American States Charter, and
secondly that the actions it complains of constitute intervention in the internal and external
affairs of Nicaragua in violation of Article 18 of the Organization of American States Charter.
The Court will first refer to the claim of use of force alleged to be contrary to Articles 20 and 21.
Article 21 of the Organization of American States Charter provides:

'The American States bind themselves in their international relations not to have recourse to the
use of force, except in the case of self-defense in accordance with existing treaties or in
fulfillment thereof.'

Nicaragua argues that the provisions of the Organization of American States Charter prohibiting
the use of force are 'coterminous with the stipulations of the United Nations Charter', and that
therefore the violations by the United States of its obligations under the United Nations Charter
also, and without more, constitute violations of Articles 20 and 21 of the Organization of
American States Charter.
50. Both Article 51 of the United Nations Charter and Article 21 of the Organization of
American States Charter refer to self-defence as an exception to the principle of the prohibition
of the use of force. Unlike the United Nations Charter, the Organization of American States
Charter does not use the expression 'collective self-defence', but refers to the case of 'self-defence
in accordance with existing treaties or in fulfillment thereof', one such treaty being the United
Nations Charter. Furthermore it is evident that if actions of the United States complied with all
requirements of the United Nations Charter so as to constitute the exercise of the right of
collective self-defence, it could not be argued that they could nevertheless constitute a violation
of Article 21 of the Organization of American States Charter. It therefore follows that the
situation of El Salvador with regard to the assertion by the United States of the right of collective
self-defence is the same under the Organization of American States Charter as it is under the
United Nations Charter.

51. In its Judgment of 26 November 1984, the Court recalled that Nicaragua's Application,
according to that State, does not cast doubt on El Salvador's right to receive aid, military or
otherwise, from the United States (I.C.J. Reports 1984, p. 430, para. 86). However, this refers to
the direct aid provided to the Government of El Salvador on its territory in order to help it
combat the insurrection with which it is faced, not to any indirect aid which might be contributed
to this combat by certain United States activities in and against Nicaragua. The Court has to
consider the consequences of a rejection of the United States' justification of its actions as the
exercise of the right of collective self-defence for the sake of El Salvador, in accordance with the
United Nations Charter. A judgment to that effect would declare contrary to treaty-law the
indirect aid which the United States Government considers itself entitled to give the Government
of El Salvador in the form of activities in and against Nicaragua. The Court would of course
refrain from any finding on whether El Salvador could lawfully exercise the right of individual
self- defence; but El Salvador would still be affected by the Court's decision on the lawfulness of
resort by the United States to collective self-defence. If the Court found that no armed attack had
occurred, then not only would action by the United States in purported exercise of the right of
collective self- defence prove to be unjustified, but so also would any action which El Salvador
might take or might have taken on the asserted ground of individual self- defence.

52. It could be argued that the Court, if it found that the situation does not permit the exercise by
El Salvador of its right of self-defence, would not be 'affecting' that right itself but the
application of it by El Salvador in the circumstances of the present case. However, it should be
recalled that the condition of the application of the multilateral treaty reservation is not that the
'right' of a State be affected, but that the State itself be 'affected' - a broader criterion.
Furthermore whether the relations between Nicaragua and El Salvador can be qualified as
relations between an attacker State and a victim State which is exercising its right of self-
defence, would appear to be a question in dispute between those two States. But El Salvador has
not submitted this dispute to the Court; it therefore has a right to have the Court refrain from
ruling upon a dispute which it has not submitted to it. Thus, the decision of the Court in this case
would affect this right of El Salvador and consequently this State itself.

53. Nor is it only in the case of a decision of the Court rejecting the United States claim to be
acting in self-defence that El Salvador would be "affected" by the decision. The multilateral
treaty reservation does not require, as a condition for the exclusion of a dispute from the
jurisdiction of the Court, that a State party to the relevant treaty be 'adversely' or 'prejudicially'
affected by the decision, even though this is clearly the case primarily in view. In other situations
in which the position of a State not before the Court is under consideration (cf. Monetary Gold
Removed from Rome in 1943, I.C.J. Reports 1954, p. 32; Continental Shelf (Libyan Arab
Jamahiriya/Malta), Application to Intervene, Judgment, I.C.J. Reports 1984, p. 20, para. 31) it is
clearly impossible to argue that that State may be differently treated if the Court's decision will
not necessarily be adverse to the interests of the absent State, but could be favourable to those
interests. The multilateral treaty reservation bars any decision that would 'affect' a third State
party to the relevant treaty. Here also, it is not necessary to determine whether the decision will
'affect' that State unfavourably or otherwise; the condition of the reservation is met if the State
will necessarily be 'affected', in one way or the other.

54. There may of course be circumstances in which the Court, having examined the merits of the
case, concludes that no third State could be 'affected' by the decision: for example, as pointed out
in the 1984 Judgment, if the relevant claim is rejected on the facts (I.C.J. Reports 1984, p. 425,
para. 75). If the Court were to conclude in the present case, for example, that the evidence was
not sufficient for a finding that the United States had used force against Nicaragua, the question
of justification on the grounds of self-defence would not arise, and there would be no possibility
of El Salvador being 'affected' by the decision. In 1984 the Court could not, on the material
available to it, exclude the possibility of such a finding being reached after fuller study of the
case, and could not therefore conclude at once that El Salvador would necessarily be 'affected' by
the eventual decision. It was thus this possibility which prevented the objection based on the
reservation from having an exclusively preliminary character.

55. As indicated in paragraph 49 above, there remains the claim of Nicaragua that the United
States has intervened in the internal and external affairs of Nicaragua in violation of Article 18 of
the Organization of American States Charter. That Article provides:

'No State or group of States has the right to intervene, directly or indirectly, for any reason
whatever, in the internal or external affairs of any other State. The foregoing principle prohibits
not only armed force but also any other form of interference or attempted threat against the
personality of the State or against its political, economic, and cultural elements.'

The potential link, recognized by this text, between intervention and the use of armed force, is
actual in the present case, where the same activities attributed to the United States are
complained of under both counts, and the response of the United States is the same to each
complaint - that it has acted in self-defence. The Court has to consider what would be the impact,
for the States identified by the United States as likely to be 'affected', of a decision whereby the
Court would decline to rule on the alleged violation of Article 21 of the Organization of
American States Charter, concerning the use of force, but passed judgment on the alleged
violation of Article 18. The Court will not here enter into the question whether self- defence may
justify an intervention involving armed force, so that it has to be treated as not constituting a
breach either of the principle of non-use of force or of that of non-intervention. At the same time,
it concludes that in the particular circumstances of this case, it is impossible to say that a ruling
on the alleged breach by the United States of Article 18 of the Organization of American States
Charter would not 'affect' El Salvador.
56. The Court therefore finds that El Salvador, a party to the United Nations Charter and to the
Charter of the Organization of American States, is a State which would be 'affected' by the
decision which the Court would have to take on the claims by Nicaragua that the United States
has violated Article 2, paragraph 4, of the United Nations Charter and Articles 18, 20 and 21 of
the Organization of American States Charter. Accordingly, the Court, which under Article 53 of
the Statute has to be 'satisfied' that it has jurisdiction to decide each of the claims it is asked to
uphold, concludes that the jurisdiction conferred upon it by the United States declaration of
acceptance of jurisdiction under Article 36, paragraph 2, of the Statute does not permit the Court
to entertain these claims. It should however be recalled that, as will be explained further below,
the effect of the reservation in question is confined to barring the applicability of the United
Nations Charter and Organization of American States Charter as multilateral treaty law, and has
no further impact on the sources of international law which Article 38 of the Statute requires the
Court to apply.

57. One of the Court's chief difficulties in the present case has been the determination of the facts
relevant to the dispute. First of all, there is marked disagreement between the Parties not only on
the interpretation of the facts, but even on the existence or nature of at least some of them.
Secondly, the respondent State has not appeared during the present merits phase of the
proceedings, thus depriving the Court of the benefit of its complete and fully argued statement
regarding the facts. The Court's task was therefore necessarily more difficult, and it has had to
pay particular heed, as said above, to the proper application of Article 53 of its Statute. Thirdly,
there is the secrecy in which some of the conduct attributed to one or other of the Parties has
been carried on. This makes it more difficult for the Court not only to decide on the imputability
of the facts, but also to establish what are the facts. Sometimes there is no question, in the sense
that it does not appear to be disputed, that an act was done, but there are conflicting reports, or a
lack of evidence, as to who did it. The problem is then not the legal process of imputing the act
to a particular State for the purpose of establishing responsibility, but the prior process of tracing
material proof of the identity of the perpetrator. The occurrence of the act itself may however
have been shrouded in secrecy. In the latter case, the Court has had to endeavour first to establish
what actually happened, before entering on the next stage of considering whether the act (if
proven) was imputable to the State to which it has been attributed.

58. A further aspect of this case is that the conflict to which it relates has continued and is
continuing. It has therefore been necessary for the Court to decide, for the purpose of its
definition of the factual situation, what period of time, beginning from the genesis of the dispute,
should be taken into consideration. The Court holds that general principles as to the judicial
process require that the facts on which its Judgment is based should be those occurring up to the
close of the oral proceedings on the merits of the case. While the Court is of course very well
aware, from reports in the international press, of the developments in Central America since that
date, it cannot, as explained below (paragraphs 62 and 63), treat such reports as evidence, nor has
it had the benefit of the comments or argument of either of the Parties on such reports. As the
Court recalled in the Nuclear Tests cases, where facts, apparently of such a nature as materially
to affect its decision, came to its attention after the close of the hearings:

'It would no doubt have been possible for the Court, had it considered that the interests of justice
so required, to have afforded the Parties the opportunity, e.g., by reopening the oral proceedings,
of addressing to the Court comments on the statements made since the close of those
proceedings.' (I.C.J. Reports 1974, p. 264, para. 33; p. 468, para. 34.)

Neither Party has requested such action by the Court; and since the reports to which reference
has been made do not suggest any profound modification of the situation of which the Court is
seised, but rather its intensification in certain respects, the Court has seen no need to reopen the
hearings.

59. The Court is bound by the relevant provisions of its Statute and its Rules relating to the
system of evidence, provisions devised to guarantee the sound administration of justice, while
respecting the equality of the parties. The presentation of evidence is governed by specific rules
relating to, for instance, the observance of time-limits, the communication of evidence to the
other party, the submission of observations on it by that party, and the various forms of challenge
by each party of the other's evidence. The absence of one of the parties restricts this procedure to
some extent. The Court is careful, even where both parties appear, to give each of them the same
opportunities and chances to produce their evidence; when the situation is complicated by the
non-appearance of one of them, then a fortiori the Court regards it as essential to guarantee as
perfect equality as possible between the parties. Article 53 of the Statute therefore obliges the
Court to employ whatever means and resources may enable it to satisfy itself whether the
submissions of the applicant State are well-founded in fact and law, and simultaneously to
safeguard the essential principles of the sound administration of justice.

60. The Court should now indicate how these requirements have to be met in this case so that it
can properly fulfil its task under that Article of its Statute. In so doing, it is not unaware that its
role is not a passive one; and that, within the limits of its Statute and Rules, it has freedom in
estimating the value of the various elements of evidence, though it is clear that general principles
of judicial procedure necessarily govern the determination of what can be regarded as proved.

61. In this context, the Court has the power, under Article 50 of its Statute, to entrust 'any
individual, body, bureau, commission or other organization that it may select, with the task of
carrying out an enquiry or giving an expert opinion', and such a body could be a group of judges
selected from among those sitting in the case. In the present case, however, the Court felt it was
unlikely that an enquiry of this kind would be practical or desirable, particularly since such a
body, if it was properly to perform its task, might have found it necessary to go not only to the
applicant State, but also to several other neighbouring countries, and even to the respondent
State, which had refused to appear before the Court.

62. At all events, in the present case the Court has before it documentary material of various
kinds from various sources. A large number of documents have been supplied in the form of
reports in press articles, and some also in the form of extracts from books. Whether these were
produced by the applicant State, or by the absent Party before it ceased to appear in the
proceedings, the Court has been careful to treat them with great caution; even if they seem to
meet high standards of objectivity, the Court regards them not as evidence capable of proving
facts, but as material which can nevertheless contribute, in some circumstances, to corroborating
the existence of a fact, i.e., as illustrative material additional to other sources of evidence.
63. However, although it is perfectly proper that press information should not be treated in itself
as evidence for judicial purposes, public knowledge of a fact may nevertheless be established by
means of these sources of information, and the Court can attach a certain amount of weight to
such public knowledge. In the case of United States Diplomatic and Consular Staff in Tehran,
the Court referred to facts which 'are, for the most part, matters of public knowledge which have
received extensive coverage in the world press and in radio and television broadcasts from Iran
and other countries' (I.C.J. Reports 1980, p. 9, para. 12). On the basis of information, including
press and broadcast material, which was 'wholly consistent and concordant as to the main facts
and circumstances of the case', the Court was able to declare that it was satisfied that the
allegations of fact were well-founded (ibid., p. 10, para. 13). The Court has however to show
particular caution in this area. Widespread reports of a fact may prove on closer examination to
derive from a single source, and such reports, however numerous, will in such case have no
greater value as evidence than the original source. It is with this important reservation that the
newspaper reports supplied to the Court should be examined in order to assess the facts of the
case, and in particular to ascertain whether such facts were matters of public knowledge.

64. The material before the Court also includes statements by representatives of States,
sometimes at the highest political level. Some of these statements were made before official
organs of the State or of an international or regional organization, and appear in the official
records of those bodies. Others, made during press conferences or interviews, were reported by
the local or international press. The Court takes the view that statements of this kind, emanating
from high-ranking official political figures, sometimes indeed of the highest rank, are of
particular probative value when they acknowledge facts or conduct unfavourable to the State
represented by the person who made them. They may then be construed as a form of admission.

65. However, it is natural also that the Court should treat such statements with caution, whether
the official statement was made by an authority of the Respondent or of the Applicant. Neither
Article 53 of the Statute, nor any other ground, could justify a selective approach, which would
have undermined the consistency of the Court's methods and its elementary duty to ensure
equality between the Parties. The Court must take account of the manner in which the statements
were made public; evidently, it cannot treat them as having the same value irrespective of
whether the text is to be found in an official national or international publication, or in a book or
newspaper. It must also take note whether the text of the official statement in question appeared
in the language used by the author or on the basis of a translation (cf. I.C.J. Reports 1980, p. 10,
para. 13). It may also be relevant whether or not such a statement was brought to the Court's
knowledge by official communications filed in conformity with the relevant requirements of the
Statute and Rules of Court. Furthermore, the Court has inevitably had sometimes to interpret the
statements, to ascertain precisely to what degree they constituted acknowledgments of a fact.

66. At the hearings in this case, the applicant State called five witnesses to give oral evidence,
and the evidence of a further witness was offered in the form of an affidavit 'subscribed and
sworn' in the United States, District of Columbia, according to the formal requirements in force
in that place. A similar affidavit, sworn by the United States Secretary of State, was annexed to
the Counter-Memorial of the United States on the questions of jurisdiction and admissibility.
One of the witnesses presented by the applicant State was a national of the respondent State,
formerly in the employ of a government agency the activity of which is of a confidential kind,
and his testimony was kept strictly within certain limits; the witness was evidently concerned not
to contravene the legislation of his country of origin. In addition, annexed to the Nicaraguan
Memorial on the merits were two declarations, entitled 'affidavits', in the English language, by
which the authors 'certify and declare' certain facts, each with a notarial certificate in Spanish
appended, whereby a Nicaraguan notary authenticates the signature to the document. Similar
declarations had been filed by Nicaragua along with its earlier request for the indication of
provisional measures.

67. As regards the evidence of witnesses, the failure of the respondent State to appear in the
merits phase of these proceedings has resulted in two particular disadvantages. First, the absence
of the United States meant that the evidence of the witnesses presented by the Applicant at the
hearings was not tested by cross-examination; however, those witnesses were subjected to
extensive questioning from the bench. Secondly, the Respondent did not itself present any
witnesses of its own. This latter disadvantage merely represents one aspect, and a relatively
secondary one, of the more general disadvantage caused by the non-appearance of the
Respondent.

68. The Court has not treated as evidence any part of the testimony given which was not a
statement of fact, but a mere expression of opinion as to the probability or otherwise of the
existence of such facts, not directly known to the witness. Testimony of this kind, which may be
highly subjective, cannot take the place of evidence. An opinion expressed by a witness is a mere
personal and subjective evaluation of a possibility, which has yet to be shown to correspond to a
fact; it may, in conjunction with other material, assist the Court in determining a question of fact,
but is not proof in itself. Nor is testimony of matters not within the direct knowledge of the
witness, but known to him only from hearsay, of much weight; as the Court observed in relation
to a particular witness in the Corfu Channel case:

'The statements attributed by the witness . . . to third parties, of which the Court has received no
personal and direct confirmation, can be regarded only as allegations falling short of conclusive
evidence.' (I.C.J. Reports 1949, pp. 16-17.)

69. The Court has had to attach considerable significance to the declarations made by the
responsible authorities of the States concerned in view of the difficulties which it has had to face
in determining the facts. Nevertheless, the Court was still bound to subject these declarations to
the necessary critical scrutiny. A distinctive feature of the present case was that two of the
witnesses called to give oral evidence on behalf of Nicaragua were members of the Nicaraguan
Government, the Vice-Minister of the Interior (Commander Carrion), and the Minister of
Finance (Mr. Huper). The Vice- Minister of the Interior was also the author of one of the two
declarations annexed to the Nicaraguan Memorial on the merits, the author of the other being the
Minister for Foreign Affairs. On the United States side, an affidavit was filed sworn by the
Secretary of State. These declarations at ministerial level on each side were irreconcilable as to
their statement of certain facts. In the view of the Court, this evidence is of such a nature as to be
placed in a special category. In the general practice of courts, two forms of testimony which are
regarded as prima facie of superior credibility are, first the evidence of a disinterested witness -
one who is not a party to the proceedings and stands to gain or lose nothing from its outcome -
and secondly so much of the evidence of a party as is against its own interest. Indeed the latter
approach was invoked in this case by counsel for Nicaragua.

70. A member of the government of a State engaged, not merely in international litigation, but in
litigation relating to armed conflict, will probably tend to identify himself with the interests of
his country, and to be anxious when giving evidence to say nothing which could prove adverse to
its cause. The Court thus considers that it can certainly retain such parts of the evidence given by
Ministers, orally or in writing, as may be regarded as contrary to the interests or contentions of
the State to which the witness owes allegiance, or as relating to matters not controverted. For the
rest, while in no way impugning the honour or veracity of the Ministers of either Party who have
given evidence, the Court considers that the special circumstances of this case require it to treat
such evidence with great reserve. The Court believes this approach to be the more justified in
view of the need to respect the equality of the parties in a case where one of them is no longer
appearing; but this should not be taken to mean that the non-appearing party enjoys a priori a
presumption in its favour.

71. However, before outlining the limits of the probative effect of declarations by the authorities
of the States concerned, the Court would recall that such declarations may involve legal effects,
some of which it has defined in previous decisions (Nuclear Tests, United States Diplomatic and
Consular Staff in Tehran cases). Among the legal effects which such declarations may have is
that they may be regarded as evidence of the truth of facts, as evidence that such facts are
attributable to the States the authorities of which are the authors of these declarations and, to a
lesser degree, as evidence for the legal qualification of these facts. The Court is here concerned
with the significance of the official declarations as evidence of specific facts and of their
imputability to the States in question.

72. The declarations to which the Court considers it may refer are not limited to those made in
the pleadings and the oral argument addressed to it in the successive stages of the case, nor are
they limited to statements made by the Parties. Clearly the Court is entitled to refer, not only to
the Nicaraguan pleadings and oral argument, but to the pleadings and oral argument submitted to
it by the United States before it withdrew from participation in the proceedings, and to the
Declaration of Intervention of El Salvador in the proceedings. It is equally clear that the Court
may take account of public declarations to which either Party has specifically drawn attention,
and the text, or a report, of which has been filed as documentary evidence. But the Court
considers that, in its quest for the truth, it may also take note of statements of representatives of
the Parties (or of other States) in international organizations, as well as the resolutions adopted or
discussed by such organizations, in so far as factually relevant, whether or not such material has
been drawn to its attention by a Party.

73. In addition, the Court is aware of the existence and the contents of a publication of the United
States State Department entitled 'Revolution Beyond Our Borders', Sandinista Intervention in
Central America intended to justify the policy of the United States towards Nicaragua. This
publication was issued in September 1985, and on 6 November 1985 was circulated as an official
document of the United Nations General Assembly and the Security Council, at the request of
the United States (A/40/858; S/17612); Nicaragua had circulated in reply a letter to the
Secretary-General, annexing inter alia an extract from its Memorial on the Merits and an extract
from the verbatim records of the hearings in the case (A/40/907; S/17639). The United States
publication was not submitted to the Court in any formal manner contemplated by the Statute
and Rules of Court, though on 13 September 1985 the United States Information Office in The
Hague sent copies to an official of the Registry to be made available to anyone at the Court
interested in the subject. The representatives of Nicaragua before the Court during the hearings
were aware of the existence of this publication, since it was referred to in a question put to the
Agent of Nicaragua by a Member of the Court. They did not attempt to refute before the Court
what was said in that publication, pointing out that materials of this kind 'do not constitute
evidence in this case', and going on to suggest that it 'cannot properly be considered by the
Court'. The Court however considers that, in view of the special circumstances of this case, it
may, within limits, make use of information in such a publication.

74. In connection with the question of proof of facts, the Court notes that Nicaragua has relied on
an alleged implied admission by the United States. It has drawn attention to the invocation of
collective self-defence by the United States, and contended that 'the use of the justification of
collective self-defence constitutes a major admission of direct and substantial United States
involvement in the military and paramilitary operations' directed against Nicaragua. The Court
would observe that the normal purpose of an invocation of self-defence is to justify conduct
which would otherwise be wrongful. If advanced as a justification in itself, not coupled with a
denial of the conduct alleged, it may well imply both an admission of that conduct, and of the
wrongfulness of that conduct in the absence of the justification of self-defence. This reasoning
would do away with any difficulty in establishing the facts, which would have been the subject
of an implicit overall admission by the United States, simply through its attempt to justify them
by the right of self-defence. However, in the present case the United States has not listed the
facts or described the measures which it claims to have taken in self- defence; nor has it taken the
stand that it is responsible for all the activities of which Nicaragua accuses it but such activities
were justified by the right of self-defence. Since it has not done this, the United States cannot be
taken to have admitted all the activities, or any of them; the recourse to the right of self-defence
thus does not make possible a firm and complete definition of admitted facts. The Court thus
cannot consider reliance on self-defence to be an implicit general admission on the part of the
United States; but it is certainly a recognition as to the imputability of some of the activities
complained of.

75. Before examining the complaint of Nicaragua against the United States that the United States
is responsible for the military capacity, if not the very existence, of the contra forces, the Court
will first deal with events which, in the submission of Nicaragua, involve the responsibility of
the United States in a more direct manner. These are the mining of Nicaraguan ports or waters in
early 1984; and certain attacks on, in particular, Nicaraguan port and oil installations in late 1983
and early 1984. It is the contention of Nicaragua that these were not acts committed by members
of the contras with the assistance and support of United States agencies. Those directly
concerned in the acts were, it is claimed, not Nicaraguan nationals or other members of the FDN
or ARDE, but either United States military personnel or persons of the nationality of unidentified
Latin American countries, paid by, and acting on the direct instructions of, United States military
or intelligence personnel. (These persons were apparently referred to in the vocabulary of the
CIA as 'UCLAs' - 'Unilaterally Controlled Latino Assets', and this acronym will be used, purely
for convenience, in what follows.) Furthermore, Nicaragua contends that such United States
personnel, while they may have refrained from themselves entering Nicaraguan territory or
recognized territorial waters, directed the operations and gave very close logistic, intelligence
and practical support. A further complaint by Nicaragua which does not relate to contra activity
is that of overflights of Nicaraguan territory and territorial waters by United States military
aircraft. These complaints will now be examined.

76. On 25 February 1984, two Nicaraguan fishing vessels struck mines in the Nicaraguan port of
El Bluff, on the Atlantic coast. On 1 March 1984 the Dutch dredger Geoponte, and on 7 March
1984 the Panamanian vessel Los Caraibes were damaged by mines at Corinto. On 20 March
1984 the Soviet tanker Lugansk was damaged by a mine in Puerto Sandino. Further vessels were
damaged or destroyed by mines in Corinto on 28, 29 and 30 March. The period for which the
mines effectively closed or restricted access to the ports was some two months. Nicaragua claims
that a total of 12 vessels or fishing boats were destroyed or damaged by mines, that 14 people
were wounded and two people killed. The exact position of the mines - whether they were in
Nicaraguan internal waters or in its territorial sea - has not been made clear to the Court: some
reports indicate that those at Corinto were not in the docks but in the access channel, or in the
bay where ships wait for a berth. Nor is there any direct evidence of the size and nature of the
mines; the witness Commander Carrion explained that the Nicaraguan authorities were never
able to capture an unexploded mine. According to press reports, the mines were laid on the sea-
bed and triggered either by contact, acoustically, magnetically or by water pressure; they were
said to be small, causing a noisy explosion, but unlikely to sink a ship. Other reports mention
mines of varying size, some up to 300 pounds of explosives. Press reports quote United States
administration officials as saying that mines were constructed by the CIA with the help of a
United States Navy Laboratory.

77. According to a report in Lloyds List and Shipping Gazette, responsibility for mining was
claimed on 2 March 1984 by the ARDE. On the other hand, according to an affidavit by Mr.
Edgar Chamorro, a former political leader of the FDN, he was instructed by a CIA official to
issue a press release over the clandestine radio on 5 January 1984, claiming that the FDN had
mined several Nicaraguan harbours. He also stated that the FDN in fact played no role in the
mining of the harbours, but did not state who was responsible. According to a press report, the
contras announced on 8 January 1984, that they were mining all Nicaraguan ports, and warning
all ships to stay away from them; but according to the same report, nobody paid much attention
to this announcement. It does not appear that the United States Government itself issued any
warning or notification to other States of the existence and location of the mines.

78. It was announced in the United States Senate on 10 April 1984 that the Director of the CIA
had informed the Senate Select Committee on Intelligence that President Reagan had approved a
CIA plan for the mining of Nicaraguan ports; press reports state that the plan was approved in
December 1983, but according to a member of that Committee, such approval was given in
February 1984. On 10 April 1984, the United States Senate voted that 'it is the sense of the
Congress that no funds . . . shall be obligated or expended for the purpose of planning, directing,
executing or supporting the mining of the ports or territorial waters of Nicaragua'.

During a televised interview on 28 May 1984, of which the official transcript has been produced
by Nicaragua, President Reagan, when questioned about the mining of ports, said 'Those were
homemade mines . . . that couldn't sink a ship. They were planted in those harbors . . . by the
Nicaraguan rebels.' According to press reports quoting sources in the United States
administration, the laying of mines was effected from speed boats, not by members of the ARDE
or FDN, but by the 'UCLAs'. The mother ships used for the operation were operated, it is said, by
United States nationals; they are reported to have remained outside the 12-mile limit of
Nicaraguan territorial waters recognized by the United States. Other less sophisticated mines
may, it appears, have been laid in ports and in Lake Nicaragua by contras operating separately; a
Nicaraguan military official was quoted in the press as stating that 'most' of the mining activity
was directed by the United States.

79. According to Nicaragua, vessels of Dutch, Panamanian, Soviet, Liberian and Japanese
registry, and one (Homin) of unidentified registry, were damaged by mines, though the damage
to the Homin has also been attributed by Nicaragua rather to gunfire from minelaying vessels.
Other sources mention damage to a British or a Cuban vessel. No direct evidence is available to
the Court of any diplomatic protests by a State whose vessel had been damaged; according to
press reports, the Soviet Government accused the United States of being responsible for the
mining, and the British Government indicated to the United States that it deeply deplored the
mining, as a matter of principle. Nicaragua has also submitted evidence to show that the mining
of the ports caused a rise in marine insurance rates for cargo to and from Nicaragua, and that
some shipping companies stopped sending vessels to Nicaraguan ports.

80. On this basis, 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.

81. The operations which Nicaragua attributes to the direct action of United States personnel or
'UCLAs', in addition to the mining of ports, are apparently the following:

(i) 8 September 1983: an attack was made on Sandino international airport in Managua by a
Cessna aircraft, which was shot down;

(ii) 13 September 1983: an underwater oil pipeline and part of the oil terminal at Puerto Sandino
were blown up;

(iii) 2 October 1983: an attack was made on oil storage facilities at Benjamin Zeledon on the
Atlantic coast, causing the loss of a large quantity of fuel;
(iv) 10 October 1983: an attack was made by air and sea on the port of Corinto, involving the
destruction of five oil storage tanks, the loss of millions of gallons of fuel, and the evacuation of
large numbers of the local population;

(v) 14 October 1983: the underwater oil pipeline at Puerto Sandino was again blown up;

(vi) 4/5 January 1984: an attack was made by speedboats and helicopters using rockets against
the Potosi Naval Base;

(vii) 24/25 February 1984: an incident at El Bluff listed under this date appears to be the mine
explosion already mentioned in paragraph 76;

(viii) 7 March 1984: an attack was made on oil and storage facility at San Juan del Sur by
speedboats and helicopters;

(ix) 28/30 March 1984: clashes occurred at Puerto Sandino between speedboats, in the course of
minelaying operations, and Nicaraguan patrol boats; intervention by a helicopter in support of
the speed-boats;

(x) 9 April 1984: a helicopter allegedly launched from a mother ship in international waters
provided fire support for an ARDE attack on San Juan del Norte.

82. At the time these incidents occurred, they were considered to be acts of the contras, with no
greater degree of United States support than the many other military and paramilitary activities
of the contras. The declaration of Commander Carrion lists the incidents numbered (i), (ii), (iv)
and (vi) above in the catalogue of activities of 'mercenaries', without distinguishing these items
from the rest; it does not mention items (iii), (v) and (vii) to (x). According to a report in the New
York Times (13 October 1983), the Nicaraguan Government, after the attack on Corinto (item
(iv) above) protested to the United States Ambassador in Managua at the aid given by the United
States to the contras, and addressed a diplomatic note in the same sense to the United States
Secretary of State. The Nicaraguan Memorial does not mention such a protest, and the Court has
not been supplied with the text of any such note.

83. On 19 October 1983, thus nine days after the attack on Corinto, a question was put to
President Reagan at a press conference. Nicaragua has supplied the Court with the official
transcript which, so far as relevant, reads as follows:

'Question: Mr. President, regarding the recent rebel attacks on a Nicaraguan oil depot, is it proper
for the CIA to be involved in planning such attacks and supplying equipment for air raids? And
do the American people have a right to be informed about any CIA role?

The President: I think covert actions have been a part of government and a part of government's
responsibilities for as long as there has been a government. I'm not going to comment on what, if
any, connection such activities might have had with what has been going on, or with some of the
specific operations down there.
But I do believe in the right of a country when it believes that its interests are best served to
practice covert activity and then, while your people may have a right to know, you can't let your
people know without letting the wrong people know, those that are in opposition to what you're
doing.'

Nicaragua presents this as one of a series of admissions 'that the United States was habitually and
systematically giving aid to mercenaries carrying out military operations against the Government
of Nicaragua'. In the view of the Court, the President's refusal to comment on the connection
between covert activities and 'what has been going on, or with some of the specific operations
down there' can, in its context, be treated as an admission that the United States had something to
do with the Corinto attack, but not necessarily that United States personnel were directly
involved.

84. The evidence available to the Court to show that the attacks listed above occurred, and that
they were the work of United States personnel or 'UCLAs', other than press reports, is as follows.
In his declaration, Commander Carrion lists items (i), (ii), (iv) and (vi), and in his oral evidence
before the Court he mentioned items (ii) and (iv). Items (vi) to (x) were listed in what was said to
be a classified CIA internal memorandum or report, excerpts from which were published in the
Wall Street Journal on 6 March 1985; according to the newspaper, 'intelligence and
congressional officials' had confirmed the authenticity of the document. So far as the Court is
aware, no denial of the report was made by the United States administration. The affidavit of the
former FDN leader Edgar Chamorro states that items (ii), (iv) and (vi) were the work of UCLAs
despatched from a CIA 'mother ship', though the FDN was told by the CIA to claim
responsibility. It is not however clear what the source of Mr. Chamorro's information was; since
there is no suggestion that he participated in the operation (he states that the FDN 'had nothing
whatsoever to do' with it), his evidence is probably strictly hearsay, and at the date of his
affidavit, the same allegations had been published in the press. Although he did not leave the
FDN until the end of 1984, he makes no mention of the attacks listed above of January to April
1984.

85. The Court considers that it should eliminate from further consideration under this heading the
following items:

- the attack of 8 September 1983 on Managua airport (item (i)): this was claimed by the ARDE; a
press report is to the effect that the ARDE purchased the aircraft from the CIA, but there is no
evidence of CIA planning, or the involvement of any United States personnel or UCLAs;

- the attack on Benjamin Zeledon on 2 October 1983 (item (iii)): there is no evidence of the
involvement of United States personnel or UCLAs;

- the incident of 24-25 February 1984 (item vii), already dealt with under the heading of the
mining of ports.

86. On the other hand the Court finds the remaining incidents listed in paragraph 81 to be
established. The general pattern followed by these attacks appears to the Court, on the basis of
that evidence and of press reports quoting United States administration sources, to have been as
follows. A 'mother ship' was supplied (apparently leased) by the CIA; whether it was of United
States registry does not appear. Speedboats, guns and ammunition were supplied by the United
States administration, and the actual attacks were carried out by 'UCLAs'. Helicopters piloted by
Nicaraguans and others piloted by United States nationals were also involved on some occasions.
According to one report the pilots were United States civilians under contract to the CIA.
Although it is not proved that any United States military personnel took a direct part in the
operations, agents of the United States participated in the planning, direction, support and
execution of the operations. The execution was the task rather of the 'UCLAs', while United
States nationals participated in the planning, direction and support. The imputability to the
United States of these attacks appears therefore to the Court to be established.

87. Nicaragua complains of infringement of its airspace by United States military aircraft. Apart
from a minor incident on 11 January 1984 involving a helicopter, as to which, according to a
press report, it was conceded by the United States that it was possible that the aircraft violated
Nicaraguan airspace, this claim refers to overflights by aircraft at high altitude for intelligence
reconnaissance purposes, or aircraft for supply purposes to the contras in the field, and aircraft
producing 'sonic booms'. The Nicaraguan Memorial also mentions low-level reconnaissance
flights by aircraft piloted by United States personnel in 1983, but the press report cited affords no
evidence that these flights, along the Honduran border, involved any invasion of airspace. In
addition Nicaragua has made a particular complaint of the activities of a United States SR-71
plane between 7 and 11 November 1984, which is said to have flown low over several
Nicaraguan cities 'producing loud sonic booms and shattering glass windows, to exert
psychological pressure on the Nicaraguan Government and population'.

88. The evidence available of these overflights is as follows. During the proceedings on
jurisdiction and admissibility, the United States Government deposited with the Court a
'Background Paper' published in July 1984, incorporating eight aerial photographs of ports,
camps, an airfield, etc., in Nicaragua, said to have been taken between November 1981 and June
1984. According to a press report, Nicaragua made a diplomatic protest to the United States in
March 1982 regarding overflights, but the text of such protest has not been produced. In the
course of a Security Council debate on 25 March 1982, the United States representative said that

'It is true that once we became aware of Nicaragua's intentions and actions, the United States
Government undertook overflights to safeguard our own security and that of other States which
are threatened by the Sandinista Government, and continued 'These overflights, conducted by
unarmed, high-flying planes, for the express and sole purpose of verifying reports of Nicaraguan
intervention, are no threat to regional peace and stability; quite the contrary.' (S/PV.2335, p. 48,
emphasis added.)

The use of the present tense may be taken to imply that the overflights were continuing at the
time of the debate. Press reports of 12 November 1984 confirm the occurrence of sonic booms at
that period, and report the statement of Nicaraguan Defence Ministry officials that the plane
responsible was a United States SR-71.
89. The claim that sonic booms were caused by United States aircraft in November 1984 rests on
assertions by Nicaraguan Defence Ministry officials, reported in the United States press; the
Court is not however aware of any specific denial of these flights by the United States
Government. On 9 November 1984 the representative of Nicaragua in the Security Council
asserted that United States SR-71 aircraft violated Nicaraguan airspace on 7 and 9 November
1984; he did not specifically mention sonic booms in this respect (though he did refer to an
earlier flight by a similar aircraft, on 31 October 1984, as having been 'accompanied by loud
explosions' (S/PV. 2562, pp. 8-10)). The United States representative in the Security Council did
not comment on the specific incidents complained of by Nicaragua but simply said that 'the
allegation which is being advanced against the United States' was 'without foundation' (ibid., p.
28).

90. As to low-level reconnaissance flights by United States aircraft, or flights to supply the
contras in the field, Nicaragua does not appear to have offered any more specific evidence of
these; and it has supplied evidence that United States agencies made a number of planes
available to the contras themselves for use for supply and low-level reconnaissance purposes.
According to Commander Carrion, these planes were supplied after late 1982, and prior to the
contras receiving the aircraft, they had to return at frequent intervals to their basecamps for
supplies, from which it may be inferred that there were at that time no systematic overflights by
United States planes for supply purposes.

91. The Court concludes that, as regards the high-altitude overflights for reconnaissance
purposes, the statement admitting them made in the Security Council is limited to the period up
to March 1982. However, not only is it entitled to take into account that the interest of the United
States in 'verifying reports of Nicaraguan intervention' - the justification offered in the Security
Council for these flights - has not ceased or diminished since 1982, but the photographs attached
to the 1984 Background Paper are evidence of at least sporadic overflights subsequently. It sees
no reason therefore to doubt the assertion of Nicaragua that such flights have continued. The
Court finds that the incidents of overflights causing 'sonic booms' in November 1984 are to some
extent a matter of public knowledge. As to overflights of aircraft for supply purposes, it appears
from Nicaragua's evidence that these were carried out generally, if not exclusively, by the contras
themselves, though using aircraft supplied to them by the United States. Whatever other
responsibility the United States may have incurred in this latter respect, the only violations of
Nicaraguan airspace which the Court finds imputable to the United States on the basis of the
evidence before it are first of all, the high-altitude reconnaissance flights, and secondly the low-
altitude flights of 7 to 11 November 1984, complained of as causing 'sonic booms'.

92. One other aspect of activity directly carried out by the United States in relation to Nicaragua
has to be mentioned here, since Nicaragua has attached a certain significance to it. Nicaragua
claims that the United States has on a number of occasions carried out military manoeuvres
jointly with Honduras on Honduran territory near the Honduras/Nicaragua frontier; it alleges that
much of the military equipment flown in to Honduras for the joint manoeuvres was turned over
to the contras when the manoeuvres ended, and that the manoeuvres themselves formed part of a
general and sustained policy of force intended to intimidate the Government of Nicaragua into
accepting the political demands of the United States Government. The manoeuvres in question
are stated to have been carried out in autumn 1982; February 1983 ('Ahuas Tara I'); August 1983
('Ahuas Tara II'), during which American warships were, it is said, sent to patrol the waters off
both Nicaragus's coasts; November 1984, when there were troop movements in Honduras and
deployment of warships off the Atlantic coast of Nicaragua; February 1985 ('Ahuas Tara III');
March 1985 ('Universal Trek ' 85'); June 1985, paratrooper exercises. As evidence of these
manoeuvres having taken place, Nicaragua has offered newspaper reports; since there was no
secrecy about the holding of the manoeuvres, the Court considers that it may treat the matter as
one of public knowledge, and as such, sufficiently established.

93. The Court must now examine in more detail the genesis, development and activities of the
contra force, and the role of the United States in relation to it, in order to determine the legal
significance of the conduct of the United States in this respect. According to Nicaragua, the
United States 'conceived, created and organized a mercenary army, the contra force'. However,
there is evidence to show that some armed opposition to the Government of Nicaragua existed in
1979-1980, even before any interference or support by the United States. Nicaragua dates the
beginning of the activity of the United States to 'shortly after' 9 March 1981, when, it was said,
the President of the United States made a formal presidential finding authorizing the CIA to
undertake 'covert activities' directed against Nicaragua. According to the testimony of
Commander Carrion, who stated that the 'organized military and paramilitary activities' began in
December 1981, there were Nicaraguan 'anti-government forces' prior to that date, consisting of
'just a few small bands very poorly armed, scattered along the northern border of Nicaragua and .
. . composed mainly of ex-members of the Somoza's National Guard. They did not have any
military effectiveness and what they mainly did was rustling cattle and killing some civilians
near the borderlines.'

These bands had existed in one form or another since the fall of the Somoza government: the
affidavit of Mr. Edgar Chamorro refers to 'the ex-National Guardsmen who had fled to Honduras
when the Somoza government fell and had been conducting sporadic raids on Nicaraguan border
positions ever since'. According to the Nicaraguan Memorial, the CIA initially conducted
military and paramilitary activities against Nicaragua soon after the presidential finding of 9
March 1981, 'through the existing armed bands'; these activities consisted of 'raids on civilian
settlements, local militia outposts and army patrols'. The weapons used were those of the former
National Guard. In the absence of evidence, the Court is unable to assess the military
effectiveness of these bands at that time; but their existence is in effect admitted by the
Nicaraguan Government.

94. According to the affidavit of Mr. Chamorro, there was also a political opposition to the
Nicaraguan Government, established outside Nicaragua, from the end of 1979 onward, and in
August 1981 this grouping merged with an armed opposition force called the 15th of September
Legion, which had itself incorporated the previously disparate armed opposition bands, through
mergers arranged by the CIA. It was thus that the FDN is said to have come into being. The other
major armed opposition group, the ARDE, was formed in 1982 by Alfonso Robelo Callejas, a
former member of the original 1979 Junta and Eden Pastora Gomez, a Sandinista military
commander, leader of the FRS (Sandino Revolutionary Front) and later Vice-Minister in the
Sandinista government. Nicaragua has not alleged that the United States was involved in the
formation of this body. Even on the face of the evidence offered by the Applicant, therefore, the
Court is unable to find that the United States created an armed opposition in Nicaragua.
However, according to press articles citing official sources close to the United States Congress,
the size of the contra force increased dramatically once United States financial and other
assistance became available: from an initial body of 500 men (plus, according to some reports,
1,000 Miskito Indians) in December 1981, the force grew to 1,000 in February 1982, 1,500 in
August 1982, 4,000 in December 1982, 5,500 in February 1983, 8,000 in June 1983 and 12,000
in November 1983. When (as explained below) United States aid other than 'humanitarian
assistance' was cut off in September 1984, the size of the force was reported to be over 10,000
men.

95. The financing by the United States of the aid to the contras was initially undisclosed, but
subsequently became the subject of specific legislative provisions and ultimately the stake in a
conflict between the legislative and executive organs of the United States. Initial activities in
1981 seem to have been financed out of the funds available to the CIA for 'covert' action;
according to subsequent press reports quoted by Nicaragua, $19.5 million was allocated to these
activities. Subsequently, again according to press sources, a further $19 million was approved in
late 1981 for the purpose of the CIA plan for military and paramilitary operations authorized by
National Security Decision Directive 17. The budgetary arrangements for funding subsequent
operations up to the end of 1983 have not been made clear, though a press report refers to the
United States Congress as having approved 'about $20 million' for the fiscal year to 30
September 1983, and from a Report of the Permanent Select Committee on Intelligence of the
House of Representatives (hereinafter called the 'Intelligence Committee') it appears that the
covert programme was funded by the Intelligence Authorization Act relating to that fiscal year,
and by the Defense Appropriations Act, which had been amended by the House of
Representatives so as to prohibit 'assistance for the purpose of overthrowing the Government of
Nicaragua'. In May 1983, this Committee approved a proposal to amend the Act in question so as
to prohibit United States support for military or paramilitary operations in Nicaragua. The
proposal was designed to have substituted for these operations the provision of open security
assistance to any friendly Central American country so as to prevent the transfer of military
equipment from or through Cuba or Nicaragua. This proposal was adopted by the House of
Representatives, but the Senate did not concur; the executive in the meantime presented a request
for $45 million for the operations in Nicaragua for the fiscal year to 30 September 1984.

Again conflicting decisions emerged from the Senate and House of Representatives, but
ultimately a compromise was reached. In November 1983, legislation was adopted, coming into
force on 8 December 1983, containing the following provision:

'During fiscal year 1984, not more than $24,000,000 of the funds available to the Central
Intelligence Agency, the Department of Defense, or any other agency or entity of the United
States involved in intelligence activities may be obligated or expended for the purpose or which
would have the effect of supporting, directly or indirectly, military or paramilitary operations in
Nicaragua by any nation, group, organization, movement, or individual.' (Intelligence
Authorization Act 1984, Section 108.)

96. In March 1984, the United States Congress was asked for a supplemental appropriation of
$21 million 'to continue certain activities of the Central Intelligence Agency which the President
has determined are important to the national security of the United States', i.e., for further
support for the contras. The Senate approved the supplemental appropriation, but the House of
Representatives did not. In the Senate, two amendments which were proposed but not accepted
were: to prohibit the funds appropriated from being provided to any individual or group known
to have as one of its intentions the violent overthrow of any Central American government; and
to prohibit the funds being used for acts of terrorism in or against Nicaragua. In June 1984, the
Senate took up consideration of the executive's request for $28 million for the activities in
Nicaragua for the fiscal year 1985. When the Senate and the House of Representatives again
reached conflicting decisions, a compromise provision was included in the Continuing
Appropriations Act 1985 (Section 8066). While in principle prohibiting the use of funds during
the fiscal year to 30 September 1985 'for the purpose or which would have the effect of
supporting, directly or indirectly, military or paramilitary operations in Nicaragua by any nation,
group, organization, movement or individual', the Act provided $14 million for that purpose if
the President submitted a report to Congress after 28 February 1985 justifying such an
appropriation, and both Chambers of Congress voted affirmatively to approve it. Such a report
was submitted on 10 April 1985; it defined United States objectives toward Nicaragua in the
following terms:

'United States policy toward Nicaragua since the Sandinistas' ascent to power has consistently
sought to achieve changes in Nicaraguan government policy and behavior. We have not sought
to overthrow the Nicaraguan Government nor to force on Nicaragua a specific system of
government.'

The changes sought were stated to be:

'- termination of all forms of Nicaraguan support for insurgencies or subversion in neighboring
countries;

- reduction of Nicaragua's expanded military/security apparatus to restore military balance in the


region;

- severance of Nicaragua's military and security ties to the Soviet Bloc and Cuba and the return
to those countries of their military and security advisers now in Nicaragua; and

- implementation of Sandinista commitment to the Organization of American States to political


pluralism, human rights, free elections, non- alignment, and a mixed economy.'

At the same time the President of the United States, in a press conference, referred to an offer of
a cease-fire in Nicaragua made by the opponents of the Nicaraguan Government on 1 March
1984, and pledged that the $14 million appropriation, if approved, would not be used for arms or
munitions, but for 'food, clothing and medicine and other support for survival' during the period
'while the cease-fire offer is on the table'. On 23 and 24 April 1985, the Senate voted for, and the
House of Representatives against, the $14 million appropriation.

97. In June 1985, the United States Congress was asked to approve the appropriation of $38
million to fund military or paramilitary activities against Nicaragua during the fiscal years 1985
and 1986 (ending 30 September 1986). This appropriation was approved by the Senate on 7 June
1985. The House of Representatives, however, adopted a proposal for an appropriation of $27
million, but solely for humanitarian assistance to the contras, and administration of the funds was
to be taken out of the hands of the CIA and the Department of Defense. The relevant legislation,
as ultimately agreed by the Senate and House of Representatives after submission to a
Conference Committee, provided '$27,000,000 for humanitarian assistance to the Nicaraguan
democratic resistance. Such assistance shall be provided in such department or agency of the
United States as the President shall designate, except the Central Intelligence Agency or the
Department of Defense . . .

As used in this subsection, the term 'humanitarian assistance' means the provision of food,
clothing, medicine, and other humanitarian assistance, and it does not include the provision of
weapons, weapons systems, ammunition, or other equipment, vehicles, or material which can be
used to inflict serious bodily harm or death.'

The Joint Explanatory Statement of the Conference Committee noted that while the legislation
adopted 'does proscribe these two agencies [CIA and DOD] from administering the funds and
from providing any military training or advice to the democratic resistance . . . none of the
prohibitions on the provision of military or paramilitary assistance to the democratic resistance
prevents the sharing of intelligence information with the democratic resistance'.

In the House of Representatives, it was stated that an assurance had been given by the National
Security Council and the White House that 'neither the [CIA] reserve for contingencies nor any
other funds available [would] be used for any material assistance other than that authorized . . .
for humanitarian assistance for the Nicaraguan democratic resistance, unless authorized by a
future act of Congress'. Finance for supporting the military and paramilitary activities of the
contras was thus available from the budget of the United States Government from some time in
1981 until 30 September 1984; and finance limited to 'humanitarian assistance' has been
available since that date from the same source and remains authorized until 30 September 1986.

98. It further appears, particularly since the restriction just mentioned was imposed, that financial
and other assistance has been supplied from private sources in the United States, with the
knowledge of the Government. So far as this was earmarked for 'humanitarian assistance', it was
actively encouraged by the United States President. According to press reports, the State
Department made it known in September 1984 that the administration had decided 'not to
discourage' private American citizens and foreign governments from supporting the contras. The
Court notes that this statement was prompted by an incident which indicated that some private
assistance of a military nature was being provided.

99. The Court finds at all events that from 1981 until 30 September 1984 the United States
Government was providing funds for military and paramilitary activities by the contras in
Nicaragua, and thereafter for 'humanitarian assistance'. The most direct evidence of the specific
purposes to which it was intended that these funds should be put was given by the oral testimony
of a witness called by Nicaragua: Mr. David MacMichael, formerly in the employment of the
CIA as a Senior Estimates Officer with the Analytic Group of the National Intelligence Council.
He informed the Court that in 1981 he participated in that capacity in discussion of a plan
relating to Nicaragua, excerpts from which were subsequently published in the Washington Post,
and he confirmed that, with the exception of a detail (here omitted), these excerpts gave an
accurate account of the plan, the purposes of which they described as follows:

'Covert operations under the CIA proposal, according to the NSC records, are intended to:

'Build popular support in Central America and Nicaragua for an opposition front that would be
nationalistic, anti-Cuban and anti-Somoza.

Support the opposition front through formation and training of action teams to collect
intelligence and engage in paramilitary and political operations in Nicaragua and elsewhere.

Work primarily through non-Americans'

to achieve these covert objectives . . .'

100. Evidence of how the funds appropriated were spent, during the period up to autumn 1984,
has been provided in the affidavit of the former FDN leader, Mr. Chamorro; in that affidavit he
gives considerable detail as to the assistance given to the FDN. The Court does not however
possess any comparable direct evidence as to support for the ARDE, though press reports
suggest that such support may have been given at some stages. Mr. Chamorro states that in 1981
former National Guardsmen in exile were offered regular salaries from the CIA, and that from
then on arms (FAL and AK-47 assault rifles and mortars), ammunition, equipment and food were
supplied by the CIA. When he worked full time for the FDN, he himself received a salary, as did
the other FDN directors. There was also a budget from CIA funds for communications,
assistance to Nicaraguan refugees or family members of FDN combatants, and a military and
logistics budget; however, the latter was not large since all arms, munitions and military
equipment, including uniforms, boots and radio equipment, were acquired and delivered by the
CIA.

101. According to Mr. Chamorro, training was at the outset provided by Argentine military
officers, paid by the CIA, gradually replaced by CIA personnel. The training given was in

'guerrilla warfare, sabotage, demolitions, and in the use of a variety of weapons, including
assault rifles, machine guns, mortars, grenade launchers, and explosives, such as Claymore
mines . . . also . . . in field communications, and the CIA taught us how to use certain
sophisticated codes that the Nicaraguan Government forces would not be able to decipher'.

The CIA also supplied the FDN with intelligence, particularly as to Nicaraguan troop
movements, derived from radio and telephonic interception, code-breaking, and surveillance by
aircraft and satellites. Mr. Chamorro also refers to aircraft being supplied by the CIA; from press
reports it appears that those were comparatively small aircraft suitable for reconnaissance and a
certain amount of supply-dropping, not for offensive operations. Helicopters with Nicaraguan
crews are reported to have taken part in certain operations of the 'UCLAs' (see paragraph 86
above), but there is nothing to show whether these belonged to the contras or were lent by United
States agencies.
102. It appears to be recognized by Nicaragua that, with the exception of some of the operations
listed in paragraph 81 above, operations on Nicaraguan territory were carried out by the contras
alone, all United States trainers or advisers remaining on the other side of the frontier, or in
international waters. It is however claimed by Nicaragua that the United States Government has
devised the strategy and directed the tactics of the contra force, and provided direct combat
support for its military operations.

103. In support of the claim that the United States devised the strategy and directed the tactics of
the contras, counsel for Nicaragua referred to the successive stages of the United States
legislative authorization for funding the contras (outlined in paragraphs 95 to 97 above), and
observed that every offensive by the contras was preceded by a new infusion of funds from the
United States. From this, it is argued, the conclusion follows that the timing of each of those
offensives was determined by the United States. In the sense that an offensive could not be
launched until the funds were available, that may well be so; but, in the Court's view, it does not
follow that each provision of funds by the United States was made in order to set in motion a
particular offensive, and that that offensive was planned by the United States.

104. The evidence in support of the assertion that the United States devised the strategy and
directed the tactics of the contras appears to the Court to be as follows. There is considerable
material in press reports of statements by FDN officials indicating participation of CIA advisers
in planning and the discussion of strategy or tactics, confirmed by the affidavit of Mr. Chamorro.
Mr. Chamorro attributes virtually a power of command to the CIA operatives: he refers to them
as having 'ordered' or 'instructed' the FDN to take various action. The specific instances of
influence of United States agents on strategy or tactics which he gives are as follows: the CIA, he
says, was at the end of 1982 'urging' the FDN to launch an offensive designed to take and hold
Nicaraguan territory. After the failure of that offensive, the CIA told the FDN to move its men
back into Nicaragua and keep fighting. The CIA in 1983 gave a tactical directive not to destroy
farms and crops, and in 1984 gave a directive to the opposite effect. In 1983, the CIA again
indicated that they wanted the FDN to launch an offensive to seize and hold Nicaraguan territory.
In this respect, attention should also be drawn to the statement of Mr. Chamorro (paragraph 101
above) that the CIA supplied the FDN with intelligence, particularly as to Nicaraguan troop
movements, and small aircraft suitable for reconnaissance and a certain amount of supply-
dropping. Emphasis has been placed, by Mr. Chamorro, by Commander Carrion, and by counsel
for Nicaragua, on the impact on contra tactics of the availability of intelligence assistance and,
still more important, supply aircraft.

105. It has been contended by Nicaragua that in 1983 a 'new strategy' for contra operations in
and against Nicaragua was adopted at the highest level of the United States Government. From
the evidence offered in support of this, it appears to the Court however that there was, around
this time, a change in contra strategy, and a new policy by the United States administration of
more overt support for the contras, culminating in the express legislative authorization in the
Department of Defense Appropriations Act, 1984, section 775, and the Intelligence
Authorization Act for Fiscal Year 1984, section 108. The new contra strategy was said to be to
attack 'economic targets like electrical plants and storage facilities' and fighting in the cities.
106. 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 wholly devised by the United States. However, it is in the Court's view established that
the support of the United States authorities 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, the deployment of
field broadcasting networks, radar coverage, etc. The Court finds it clear that a number of
military and paramilitary operations by this force were decided and planned, if not actually by
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, particularly the
supply aircraft provided to the contras by the United States.

107. To sum up, despite the secrecy which surrounded it, at least initially, the financial support
given by the Government of the United States to the military and paramilitary activities of the
contras in Nicaragua is a fully established fact. The legislative and executive bodies of the
respondent State have moreover, subsequent to the controversy which has been sparked off in the
United States, openly admitted the nature, volume and frequency of this support. Indeed, they
clearly take responsibility for it, this government aid having now become the major element of
United States foreign policy in the region. As to the ways in which such financial support has
been translated into practical assistance, the Court has been able to reach a general finding.

108. Despite the large quantity of documentary evidence and testimony which it has examined,
the Court has not been able to satisfy itself that the respondent State 'created' the contra force in
Nicaragua. It seems certain that members of the former Somoza National Guard, together with
civilian opponents to the Sandinista regime, withdrew from Nicaragua soon after that regime was
installed in Managua, and sought to continue their struggle against it, even if in a disorganized
way and with limited and ineffectual resources, before the Respondent took advantage of the
existence of these opponents and incorporated this fact into its policies vis-a-vis the regime of
the Applicant. Nor does the evidence warrant a finding that the United States gave 'direct and
critical combat support', at least if that form of words is taken to mean that this support was
tantamount to direct intervention by the United States combat forces, or that all contra operations
reflected strategy and tactics wholly devised by the United States. On the other hand, the Court
holds it established that the United States authorities largely financed, trained, equipped, armed
and organized the FDN.

109. What the Court has to determine at this point is whether or not the relationship of the
contras to the United States Government was so much one of dependence on the one side and
control on the other that it would be right to equate the contras, for legal purposes, with an organ
of the United States Government, or as acting on behalf of that Government. Here it is relevant
to note that in May 1983 the assessment of the Intelligence Committee, in the Report referred to
in paragraph 95 above, was that the contras 'constitute[d] an independent force' and that the 'only
element of control that could be exercised by the United States' was 'cessation of aid'.
Paradoxically this assessment serves to underline, a contrario, the potential for control inherent
in the degree of the contras' dependence on aid. Yet despite the heavy subsides and other support
provided to them by the United States, there is no clear evidence of the United States having
actually exercised such a degree of control in all fields as to justify treating the contras as acting
on its behalf.

110. So far as the potential control constituted by the possibility of cessation of United States
military aid is concerned, it may be noted that after 1 October 1984 such aid was no longer
authorized, though the sharing of intelligence, and the provision of 'humanitarian assistance' as
defined in the above-cited legislation (paragraph 97) may continue. Yet, according to Nicaragua's
own case, and according to press reports, contra activity has continued. In sum, the evidence
available to the Court indicates that the various forms of assistance provided to the contras by the
United States have been crucial to the pursuit of their activities, but is insufficient to demonstrate
their complete dependence on United States aid. On the other hand, it indicates that in the initial
years of United States assistance the contra force was so dependent. However, whether the
United States Government at any stage devised the strategy and directed the tactics of the contras
depends on the extent to which the United States made use of the potential for control inherent in
that dependence. The Court already indicated that it has insufficient evidence to reach a finding
on this point. It is a fortiori unable to determine that the contra force may be equated for legal
purposes with the forces of the United States. This conclusion, however, does not of course
suffice to resolve the entire question of the responsibility incurred by the United States through
its assistance to the contras.

111. In the view of the Court it is established that the contra force has, at least at one period,
been so dependent on the United States that it could not conduct its crucial or most significant
military and paramilitary activities without the multi-faceted support of the United States. This
finding is fundamental in the present case. Nevertheless, adequate direct proof that all or the
great majority of contra activities during that period received this support has not been, and
indeed probably could not be, advanced in every respect. It will suffice the Court to stress that a
degree of control by the United States Government, as described above, is inherent in the
position in which the contra force finds itself in relation to that Government.

112. To show the existence of this control, the Applicant argued before the Court that the
political leaders of the contra force had been selected, installed and paid by the United States; it
also argued that the purpose herein was both to guarantee United States control over this force,
and to excite sympathy for the Government's policy within Congress and among the public in the
United States. According to the affidavit of Mr. Chamorro, who was directly concerned, when
the FDN was formed 'the name of the organization, the members of the political junta, and the
members of the general staff were all chosen or approved by the CIA'; later the CIA asked that a
particular person be made head of the political directorate of the FDN, and this was done.
However, the question of the selection, installation and payment of the leaders of the contra force
is merely one aspect among others of the degree of dependency of that force. This partial
dependency on the United States authorities, the exact extent of which the Court cannot
establish, may certainly be inferred inter alia from the fact that the leaders were selected by the
United States. But it may also be inferred from other factors, some of which have been examined
by the Court, such as the organization, training and equipping of the force, the planning of
operations, the choosing of targets and the operational support provided.
113. The question of the degree of control of the contras by the United States Government is
relevant to the claim of Nicaragua attributing responsibility to the United States for activities of
the contras whereby the United States has, it is alleged, violated an obligation of international
law not to kill, wound or kidnap citizens of Nicaragua. The activities in question are said to
represent a tactic which includes 'the spreading of terror and danger to non- combatants as an end
in itself with no attempt to observe humanitarian standards and no reference to the concept of
military necessity'. In support of this, Nicaragua has catalogued numerous incidents, attributed to
'CIA- trained mercenaries' or 'mercenary forces', of kidnapping, assassination, torture, rape,
killing of prisoners, and killing of civilians not dictated by military necessity. The declaration of
Commander Carrion annexed to the Memorial lists the first such incident in December 1981, and
continues up to the end of 1984. Two of the witnesses called by Nicaragua (Father Loison and
Mr. Glennon) gave oral evidence as to events of this kind. By way of examples of evidence to
provide 'direct proof of the tactics adopted by the contras under United States guidance and
control', the Memorial of Nicaragua offers a statement, reported in the press, by the ex-FDN
leader Mr. Edgar Chamorro, repeated in the latter's affidavit, of assassinations in Nicaraguan
villages; the alleged existence of a classified Defence Intelligence Agency report of July 1982,
reported in the New York Times on 21 October 1984, disclosing that the contras were carrying
out assassinations; and the preparation by the CIA in 1983 of a manual of psychological warfare.
At the hearings, reliance was also placed on the affidavit of Mr. Chamorro.

114. In this respect, the Court notes that according to Nicaragua, the contras are no more than
bands of mercenaries which have been recruited, organized, paid and commanded by the
Government of the United States. This would mean that they have no real autonomy in relation
to that Government. Consequently, any offences which they have committed would be imputable
to the Government of the United States, like those of any other forces placed under the latter's
command. In the view of Nicaragua, 'stricto sensu, the military and paramilitary attacks launched
by the United States against Nicaragua do not constitute a case of civil strife. They are
essentially the acts of the United States.' If such a finding of the imputability of the acts of the
contras to the United States were to be made, no question would arise of mere complicity in
those acts, or of incitement of the contras to commit them.

115. The Court has taken the view (paragraph 110 above) that United States participation, even if
preponderant or decisive, in the financing, organizing, training, supplying and equipping of the
contras, the selection of its military or paramilitary targets, and the planning of the whole of its
operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court,
for the purpose of attributing to the United States the acts committed by the contras in the course
of their military or paramilitary operations in Nicaragua. All the forms of United States
participation mentioned above, and even the general control by the respondent State over a force
with a high degree of dependency on it, would not in themselves mean, without further evidence,
that the United States directed or enforced the perpetration of the acts contrary to human rights
and humanitarian law alleged by the applicant State. Such acts could well be committed by
members of the contras without the control of the United States. For this conduct to give rise to
legal responsibility of the United States, it would in principle have to be proved that that State
had effective control of the military or paramilitary operations in the course of which the alleged
violations were committed.
116. The Court does not consider that the assistance given by the United States to the contras
warrants the conclusion that these forces are subject to the United States to such an extent that
any acts they have committed are imputable to that State. It takes the view that the contras
remain responsible for their acts, and that the United States is not responsible for the acts of the
contras, but for its own conduct vis-a-vis Nicaragua, including conduct related to the acts of the
contras. What the Court has to investigate is not the complaints relating to alleged violations of
humanitarian law by the contras, regarded by Nicaragua as imputable to the United States, but
rather unlawful acts for which the United States may be responsible directly in connection with
the activities of the contras. The lawfulness or otherwise of such acts of the United States is a
question different from the violations of humanitarian law of which the contras may or may not
have been guilty. It is for this reason that the Court does not have to determine whether the
violations of humanitarian law attributed to the contras were in fact committed by them. At the
same time, the question whether the United States Government was, or must have been, aware at
the relevant time that allegations of breaches of humanitarian law were being made against the
contras is relevant to an assessment of the lawfulness of the action of the United States. In this
respect, the material facts are primarily those connected with the issue in 1983 of a manual of
psychological operations.

117. Nicaragua has in fact produced in evidence before the Court two publications which it
claims were prepared by the CIA and supplied to the contras in 1983. The first of these, in
Spanish, is entitled 'Operaciones sicologicas en guerra de guerrillas' (Psychological Operations in
Guerrilla Warfare), by 'Tayacan'; the certified copy supplied to the Court carries no publisher's
name or date. In its Preface, the publication is described as

'a manual for the training of guerrillas in psychological operations, and its application to the
concrete case of the Christian and democratic crusade being waged in Nicaragua by the Freedom
Commandos'.

The second is entitled the Freedom Fighter's Manual, with the subtitle 'Practical guide to
liberating Nicaragua from oppression and misery by paralyzing the military-industrial complex
of the traitorous marxist state without having to use special tools and with minimal risk for the
combatant'. The text is printed in English and Spanish, and illustrated with simple drawings: it
consists of guidance for elementary sabotage techniques. The only indications available to the
Court of its authorship are reports in the New York Times, quoting a United States Congressman
and Mr. Edgar Chamorro as attributing the book to the CIA. Since the evidence linking the
Freedom Fighter's Manual to the CIA is no more than newspaper reports the Court will not treat
its publication as an act imputable to the United States Government for the purposes of the
present case.

118. The Court will therefore concentrate its attention on the other manual, that on
'Psychological Operations'. That this latter manual was prepared by the CIA appears to be clearly
established: a report published in January 1985 by the Intelligence Committee contains a specific
statement to that effect. It appears from this report that the manual was printed in several
editions; only one has been produced and it is of that text that the Court will take account. The
manual is devoted to techniques for winning the minds of the population, defined as including
the guerrilla troops, the enemy troops and the civilian population. In general, such parts of the
manual as are devoted to military rather than political and ideological matters are not in conflict
with general humanitarian law; but there are marked exceptions. A section on 'Implicit and
Explicit Terror', while emphasizing that 'the guerrillas should be careful not to become an
explicit terror, because this would result in a loss of popular support', and stressing the need for
good conduct toward the population, also includes directions to destroy military or police
installations, cut lines of communication, kidnap officials of the Sandinista government, etc.
Reference is made to the possibility that 'it should be necessary . . . to fire on a citizen who was
trying to leave the town', to be justified by the risk of his informing the enemy. Furthermore, a
section on 'Selective Use of Violence for Propagandistic Effects' begins with the words:

'It is possible to neutralize carefully selected and planned targets, such as court judges, mesta
judges, police and State Security officials, CDS chiefs, etc. For psychological purposes it is
necessary to take extreme precautions, and it is absolutely necessary to gather together the
population affected, so that they will be present, take part in the act, and formulate accusations
against the oppressor.'

In a later section on 'Control of mass concentrations and meetings', the following guidance is
given (inter alia):

'If possible, professional criminals will be hired to carry out specific selective 'jobs'.

Specific tasks will be assigned to others, in order to create a 'martyr' for the cause, taking the
demonstrators to a confrontation with the authorities, in order to bring about uprisings or
shootings, which will cause the death of one or more persons, who would become the martyrs, a
situation that should be made use of immediately against the regime, in order to create greater
conflicts.'

119. According to the affidavit of Mr. Chamorro, about 2,000 copies of the manual were
distributed to members of the FDN, but in those copies Mr. Chamorro had arranged for the pages
containing the last two passages quoted above to be torn out and replaced by expurgated pages.
According to some press reports, another edition of 3,000 copies was printed (though according
to one report Mr. Chamorro said that he knew of no other edition), of which however only some
100 are said to have reached Nicaragua, attached to balloons. He was quoted in a press report as
saying that the manual was used to train 'dozens of guerrilla leaders' for some six months from
December 1983 to May 1984. In another report he is quoted as saying that 'people did not read it'
and that most of the copies were used in a special course on psychological warfare for middle-
level commanders. In his affidavit, Mr. Chamorro reports that the attitude of some unit
commanders, in contrast to that recommended in the manual, was that 'the best way to win the
loyalty of the civilian population was to intimidate it' - by murders, mutilations, etc. - 'and make
it fearful of us'.

120. A question examined by the Intelligence Committee was whether the preparation of the
manual was a contravention of United States legislation and executive orders; inter alia, it
examined whether the advice on 'neutralizing' local officials contravened Executive Order
12333. This Executive Order, re- enacting earlier directives, was issued by President Reagan in
December 1981; it provides that
'2.11. No person employed by or acting on behalf of the United States Government shall engage
in or conspire to engage in, assassination.

2.12. No agency of the Intelligence Community shall participate in or request any person to
undertake activities forbidden by this Order.' (US Code, Congressional and Administrative
News, 97th Congress, First Session, 1981, p. B. 114.)

The manual was written, according to press reports, by 'a low-level contract employee' of the
CIA; the Report of the Intelligence Committee concluded:

'The Committee believes that the manual has caused embarrassment to the United States and
should never have been released in any of its various forms. Specific actions it describes are
repugnant to American values. The original purpose of the manual was to provide training to
moderate FDN behavior in the field. Yet, the Committee believes that the manual was written,
edited, distributed and used without adequate supervision. No one but its author paid much
attention to the manual. Most CIA officials learned about it from news accounts.

The Committee was told that CIA officers should have reviewed the manual and did not. The
Committee was told that all CIA officers should have known about the Executive Order's ban on
assassination . . . but some did not. The entire publication and distribution of the manual was
marked within the Agency by confusion about who had authority and responsibility for the
manual. The incident of the manual illustrates once again to a majority of the Committee that the
CIA did not have adequate command and control of the entire Nicaraguan covert action . . .

CIA officials up the chain of command either never read the manual or were never made aware
of it. Negligence, not intent to violate the law, marked the manual's history.

The Committee concluded that there was no intentional violation of Executive Order 12333.'

When the existence of the manual became known at the level of the United States Congress,
according to one press report, 'the CIA urged rebels to ignore all its recommendations and began
trying to recall copies of the document'.

121. When the Intelligence Committee investigated the publication of the psychological
operations manual, the question of the behaviour of the contras in Nicaragua became of
considerable public interest in the United States, and the subject of numerous press reports.
Attention was thus drawn to allegations of terrorist behaviour or atrocities said to have been
committed against civilians, which were later the subject of reports by various investigating
teams, copies of which have been supplied to the Court by Nicaragua. According to the press,
CIA officials presented to the Intelligence Committee in 1984 evidence of such activity, and
stated that this was the reason why the manual was prepared, it being intended to 'moderate the
rebels' behaviour'. This report is confirmed by the finding of the Intelligence Committee that
'The original purpose of the manual was to provide training to moderate FDN behaviour in the
field'. At the time the manual was prepared, those responsible were aware of, at the least,
allegations of behaviour by the contras inconsistent with humanitarian law.
122. The Court concludes that in 1983 an agency of the United States Government supplied to
the FDN a manual on psychological guerrilla warfare which, while expressly discouraging
indiscriminate violence against civilians, considered the possible necessity of shooting civilians
who were attempting to leave a town; and advised the 'neutralization' for propaganda purposes of
local judges, officials or notables after the semblance of trial in the presence of the population.
The text supplied to the contras also advised the use of professional criminals to perform
unspecified 'jobs', and the use of provocation at mass demonstrations to produce violence on the
part of the authorities so as to make 'martyrs'.

123. Nicaragua has complained to the Court of certain measures of an economic nature taken
against it by the Government of the United States, beginning with the cessation of economic aid
in April 1981, which it regards as an indirect form of intervention in its internal affairs.
According to information published by the United States Government, it provided more than
$100 million in economic aid to Nicaragua between July 1979 and January 1981; however,
concern in the United States Congress about certain activities attributed to the Nicaraguan
Government led to a requirement that, before disbursing assistance to Nicaragua, the President
certify that Nicaragua was not 'aiding, abetting or supporting acts of violence or terrorism in
other countries' (Special Central American Assistance Act, 1979, Sec. 536 (g)). Such a
certification was given in September 1980 (45 Federal Register 62779), to the effect that

'on the basis of an evaluation of the available evidence, that the Government of Nicaragua 'has
not co-operated with or harbors any international terrorist organization or is aiding, abetting or
supporting acts of violence or terrorism in other countries".

An official White House press release of the same date stated that

'The certification is based upon a careful consideration and evaluation of all the relevant
evidence provided by the intelligence community and by our Embassies in the field . . . Our
intelligence agencies as well as our Embassies in Nicaragua and neighboring countries were fully
consulted, and the diverse information and opinions from all sources were carefully weighed.'

On 1 April 1981 however a determination was made to the effect that the United States could no
longer certify that Nicaragua was not engaged in support for 'terrorism' abroad, and economic
assistance, which had been suspended in January 1981, was thereby terminated. According to the
Nicaraguan Minister of Finance, this also affected loans previously contracted, and its economic
impact was more than $36 million per annum. Nicaragua also claims that, at the multilateral
level, the United States has acted in the Bank for International Reconstruction and Development
and the Inter-American Development Bank to oppose or block loans to Nicaragua.

124. On 23 September 1983, the President of the United States made a proclamation modifying
the system of quotas for United States imports of sugar, the effect of which was to reduce the
quota attributed to Nicaragua by 90 per cent. The Nicaraguan Finance Minister assessed the
economic impact of the measure at between $15 and $18 million, due to the preferential system
of prices that sugar has in the market of the United States.
125. On 1 May 1985, the President of the United States made an Executive Order, which
contained a finding that 'the policies and actions of the Government of Nicaragua constitute an
unusual and extraordinary threat to the national security and foreign policy of the United States'
and declared a 'national emergency'. According to the President's message to Congress, this
emergency situation had been created by 'the Nicaraguan Government's aggressive activities in
Central America'. The Executive Order declared a total trade embargo on Nicaragua, prohibiting
all imports from and exports to that country, barring Nicaraguan vessels from United States ports
and excluding Nicaraguan aircraft from air transportation to and from the United States.

126. The Court has before it, in the Counter-Memorial on jurisdiction and admissibility filed by
the United States, the assertion that the United States, pursuant to the inherent right of individual
and collective self-defence, and in accordance with the Inter-American Treaty of Reciprocal
Assistance, has responded to requests from El Salvador, Honduras and Costa Rica, for assistance
in their self-defence against aggression by Nicaragua. The Court has therefore to ascertain, so far
as possible, the facts on which this claim is or may be based, in order to determine whether
collective self-defence constitutes a justification of the activities of the United States here
complained of. Furthermore, it has been suggested that, as a result of certain assurances given by
the Nicaraguan 'Junta of the Government of National Reconstruction' in 1979, the Government
of Nicaragua is bound by international obligations as regards matters which would otherwise be
matters of purely domestic policy, that it is in breach of those obligations, and that such breach
might justify the action of the United States. The Court will therefore examine the facts
underlying this suggestion also.

127. Nicaragua claims that the references made by the United States to the justification of
collective self-defence are merely 'pretexts' for the activities of the United States. It has alleged
that the true motive for the conduct of the United States is unrelated to the support which it
accuses Nicaragua of giving to the armed opposition in El Salvador, and that the real objectives
of United States policy are to impose its will upon Nicaragua and force it to comply with United
States demands. In the Court's view, however, if Nicaragua has been giving support to the armed
opposition in El Salvador, and if this constitutes an armed attack on El Salvador and the other
appropriate conditions are met, collective self-defence could be legally invoked by the United
States, even though there may be the possibility of an additional motive, one perhaps even more
decisive for the United States, drawn from the political orientation of the present Nicaraguan
Government. The existence of an additional motive, other than that officially proclaimed by the
United States, could not deprive the latter of its right to resort to collective self-defence. The
conclusion to be drawn is that special caution is called for in considering the allegations of the
United States concerning conduct by Nicaragua which may provide a sufficient basis for self-
defence.

128. In its Counter-Memorial on jurisdiction and admissibility, the United States claims that
Nicaragua has 'promoted and supported guerrilla violence in neighboring countries', particularly
in El Salvador; and has openly conducted cross-border military attacks on its neighbours,
Honduras and Costa Rica. In support of this, it annexed to the Memorial an affidavit by Secretary
of State George P. Shultz. In his affidavit, Mr. Shultz declares, inter alia, that:
'The United States has abundant evidence that the Government of Nicaragua has actively
supported armed groups engaged in military and paramilitary activities in and against El
Salvador, providing such groups with sites in Nicaragua for communications facilities, command
and control headquarters, training and logistics support. The Government of Nicaragua is directly
engaged with these armed groups in planning ongoing military and paramilitary activities
conducted in and against El Salvador. The Government of Nicaragua also participates directly in
the procurement, and transshipment through Nicaraguan territory, of large quantities of
ammunition, supplies and weapons for the armed groups conducting military and paramilitary
activities in and against El Salvador.

In addition to this support for armed groups operating in and against El Salvador, the
Government of Nicaragua has engaged in similar support, albeit on a smaller scale, for armed
groups engaged, or which have sought to engage, in military or paramilitary activities in and
against the Republic of Costa Rica, the Republic of Honduras, and the Republic of Guatemala.
The regular military forces of Nicaragua have engaged in several direct attacks on Honduran and
Costa Rican territory, causing casualties among the armed forces and civilian populations of
those States.'

In connection with this declaration, the Court would recall the observations it has already made
(paragraphs 69 and 70) as to the evidential value of declarations by ministers of the government
of a State engaged in litigation concerning an armed conflict.

129. In addition, the United States has quoted Presidents Magana and Duarte of El Salvador,
press reports, and United States Government publications. With reference to the claim as to
cross-border military attacks, the United States has quoted a statement of the Permanent
Representative of Honduras to the Security Council, and diplomatic protests by the Governments
of Honduras and Costa Rica to the Government of Nicaragua. In the subsequent United States
Government publication 'Revolution Beyond Our Borders', referred to in paragraph 73 above,
these claims are brought up to date with further descriptive detail. Quoting 'Honduran
government records', this publication asserts that there were 35 border incursions by the
Sandinista People's Army in 1981 and 68 in 1982.

130. In its pleading at the jurisdictional stage, the United States asserted the justification of
collective self-defence in relation to alleged attacks on El Salvador, Honduras and Costa Rica. It
is clear from the material laid before the Court by Nicaragua that, outside the context of the
present judicial proceedings, the United States administration has laid the greatest stress on the
question of arms supply and other forms of support to opponents of the Government in El
Salvador. In 1983, on the proposal of the Intelligence Committee, the covert programme of
assistance to the contras 'was to be directed only at the interdiction of arms to El Salvador'.
Nicaragua's other neighbours have not been lost sight of, but the emphasis has continued to be on
El Salvador: the United States Continuing Appropriations Act 1985, Section 8066 (b) (1) (A),
provides for aid for the military or paramilitary activities in Nicaragua to be resumed if the
President reports inter alia that
'the Government of Nicaragua is providing material or monetary support to anti-government
forces engaged in military or paramilitary operations in El Salvador or other Central American
countries'.

131. In the proceedings on the merits, Nicaragua has addressed itself primarily to refuting the
claim that it has been supplying arms and other assistance to the opponents of the Government of
El Salvador; it has not specifically referred to the allegations of attacks on Honduras or Costa
Rica. In this it is responding to what is, as noted above, the principal justification announced by
the United States for its conduct. In ascertaining whether the conditions for the exercise by the
United States of the right of collective self-defence are satisfied, the Court will accordingly first
consider the activities of Nicaragua in relation to El Salvador, as established by the evidence and
material available to the Court. It will then consider whether Nicaragua's conduct in relation to
Honduras or Costa Rica may justify the exercise of that right; in that respect it will examine only
the allegations of direct cross-border attacks, since the affidavit of Mr. Shultz claims only that
there was support by the provision of arms and supplies for military and paramilitary activities
'on a smaller scale' in those countries than in El Salvador.

132. In its Declaration of Intervention dated 15 August 1984, the Government of El Salvador
stated that: 'The reality is that we are the victims of aggression and armed attack from Nicaragua
and have been since at least 1980.' (Para. IV.) The statements of fact in that Declaration are
backed by a declaration by the Acting Minister for Foreign Affairs of El Salvador, similar in
form to the declarations by Nicaraguan Ministers annexed to its pleadings. The Declaration of
Intervention asserts that 'terrorists' seeking the overthrow of the Government of El Salvador were
'directed, armed, supplied and trained by Nicaragua' (para. III); that Nicaragua provided 'houses,
hideouts and communication facilities' (para. VI), and training centres managed by Cuban and
Nicaraguan military personnel (para. VII). On the question of arms supply, the Declaration states
that

'Although the quantities of arms and supplies, and the routes used, vary, there has been a
continuing flow of arms, ammunition, medicines, and clothing from Nicaragua to our country.'
(Para. VIII.)

133. In its observations, dated 10 September 1984, on the Declaration of Intervention of El


Salvador, Nicaragua stated as follows:

'The Declaration includes a series of paragraphs alleging activities by Nicaragua that El Salvador
terms an 'armed attack'. The Court should know that this is the first time El Salvador has asserted
it is under armed attack from Nicaragua. None of these allegations, which are properly addressed
to the merits phase of the case, is supported by proof or evidence of any kind. Nicaragua denies
each and every one of them, and stands behind the affidavit of its Foreign Minister, Father
Miguel d'Escoto Brockmann, in which the Foreign Minister affirms that the Government of
Nicaragua has not supplied arms or other materials of war to groups fighting against the
Government of El Salvador or provided financial support, training or training facilities to such
groups or their members.'
134. Reference has also to be made to the testimony of one of the witnesses called by Nicaragua.
Mr. David MacMichael (paragraph 99 above) said in evidence that he was in the full time
employment of the CIA from March 1981 to April 1983, working for the most part on Inter-
American affairs. During his examination by counsel for Nicaragua, he stated as follows:

'[Question:] In your opinion, if the Government of Nicaragua was sending arms to rebels in El
Salvador, could it do so without detection by United States intelligence-gathering capabilities?

[Answer:] In any significant manner over this long period of time I do not believe they could
have done so.

Q.: And there was in fact no such detection during the period that you served in the Central
Intelligence Agency?

A.: No.

Q.: In your opinion, if arms in significant quantities were being sent from Nicaraguan territory to
the rebels in El Salvador - with or without the Government's knowledge or consent - could these
shipments have been accomplished without detection by United States intelligence capabilities?

A.: If you say in significant quantities over any reasonable period of time, no I do not believe so.

Q.: And there was in fact no such detection during your period of service with the Agency?

A.: No.

Q.: Mr. MacMichael, up to this point we have been talking about the period when you were
employed by the CIA - 6 March 1981 to 3 April 1983. Now let me ask you without limit of time:
did you see any evidence of arms going to the Salvadorian rebels from Nicaragua at any time?

A.: Yes, I did.

Q.: When was that?

A.: Late 1980 to very early 1981.'

Mr. MacMichael indicated the sources of the evidence he was referring to, and his examination
continued:

'[Question:] Does the evidence establish that the Government of Nicaragua was involved during
this period?

[Answer:] No, it does not establish it, but I could not rule it out.'

135. After counsel for Nicaragua had completed his examination of the witness, Mr. MacMichael
was questioned from the bench, and in this context he stated (inter alia) as follows:
'[Question:] Thus if the Government of Nicaragua had shipped arms to El Salvador before March
1981, for example in 1980 and early 1981, in order to arm the big January offensive of the
insurgents in El Salvador, you would not be in a position to know that; is that correct?

[Answer:] I think I have testified, your honour, that I reviewed the immediate past intelligence
material at that time, that dealt with that period, and I have stated today that there was credible
evidence and that on the basis of my reading of it I could not rule out a finding that the
Nicaraguan Government had been involved during that period.

Q.: Would you rule it 'in'?

A.: I prefer to stay with my answer that I could not rule it out, but to answer you as directly as I
can my inclination would be more towards ruling ' in' than ruling 'out'.

.............................

Q.: I understand you to be saying, Mr. MacMichael, that you believe that it could be taken as a
fact that at least in late 1980/early 1981 the Nicaraguan Government was involved in the supply
of arms to the Salvadorian insurgency. Is that the conclusion I can draw from your remarks?

A.: I hate to have it appear that you are drawing this from me like a nail out of a block of wood
but, yes, that is my opinion.'

In short, the Court notes that the evidence of a witness called by Nicaragua in order to negate the
allegation of the United States that the Government of Nicaragua had been engaged in the supply
of arms to the armed opposition in El Salvador only partly contradicted that allegation.

136. Some confirmation of the situation in 1981 is afforded by an internal Nicaraguan


Government report, made available by the Government of Nicaragua in response to a request by
the Court, of a meeting held in Managua on 12 August 1981 between Commander Ortega, Co-
ordinator of the Junta of the Government of Nicaragua and Mr. Enders, Assistant Secretary of
State for Inter-American Affairs of the United States. According to this report, the question of
the flow of 'arms, munitions and other forms of military aid' to El Salvador, was raised by Mr.
Enders as one of the 'major problems' (problemas principales). At one point he is reported to
have said:

'On your part, you could take the necessary steps to ensure that the flow of arms to El Salvador is
again halted as in March of this year. We do not seek to involve ourselves in deciding how and
with whom this object should be achieved, but we may well monitor the results.'

Later in the course of the discussion, the following exchange is recorded:

'[Ortega:] As for the flow of arms to El Salvador, what must be stated is that as far as we have
been informed by you, efforts have been made to stop it; however, I want to make clear that there
is a great desire here to collaborate with the Salvadorian people, also among members of our
armed forces, although our Junta and the National Directorate have a decision that activities of
this kind should not be permitted. We would ask you to give us reports about that flow to help us
control it.

[Enders:] You have succeeded in doing so in the past and I believe you can do so now. We are
not in a position to supply you with intelligence reports. We would compromise our sources, and
our nations have not yet reached the necessary level to exchange intelligence reports.'

137. As regards the question, raised in this discussion, of the picture given by United States
intelligence sources, further evidence is afforded by the 1983 Report of the Intelligence
Committee (paragraphs 95, 109 above). In that Report, dated 13 May 1983, it was stated that

'The Committee has regularly reviewed voluminous intelligence material on Nicaraguan and
Cuban support for leftist insurgencies since the 1979 Sandinista victory in Nicaragua.'

The Committee continued:

'At the time of the filing of this report, the Committee believes that the intelligence available to it
continues to support the following judgments with certainty:

A major portion of the arms and other material sent by Cuba and other communist countries to
the Salvadorian insurgents transits Nicaragua with the permission and assistance of the
Sandinistas.

The Salvadorian insurgents rely on the use of sites in Nicaragua, some of which are located in
Managua itself, for communications, command-and-control, and for the logistics to conduct their
financial, material and propaganda activities.

The Sandinista leadership sanctions and directly facilitates all of the above functions.

Nicaragua provides a range of other support activities, including secure transit of insurgents to
and from Cuba, and assistance to the insurgents in planning their activities in El Salvador.

In addition, Nicaragua and Cuba have provided - and appear to continue providing - training to
the Salvadorian insurgents.'

The Court is not aware of the contents of any analogous report of a body with access to United
States intelligence material covering a more recent period. It notes however that the Resolution
adopted by the United States Congress on 29 July 1985 recorded the expectation of Congress
from the Government of Nicaragua of:

'the end to Sandinista support for insurgencies in other countries in the region, including the
cessation of military supplies to the rebel forces fighting the democratically elected government
in El Salvador'.

138. In its Declaration of Intervention, El Salvador alleges that 'Nicaraguan officials have
publicly admitted their direct involvement in waging war on us' (para. IX). It asserts that the
Foreign Minister of Nicaragua admitted such support at a meeting of the Foreign Ministers of the
Contadora Group in July 1983. Setting this against the declaration by the Nicaraguan Foreign
Minister annexed to the Nicaraguan Memorial, denying any involvement of the Nicaraguan
Government in the provision of arms or other supplies to the opposition in El Salvador, and in
view of the fact that the Court has not been informed of the exact words of the alleged
admission, or with any corroborative testimony from others present at the meeting, the Court
cannot regard as conclusive the assertion in the Declaration of Intervention. Similarly, the public
statement attributed by the Declaration of Intervention (para. XIII) to Commander Ortega,
referring to 'the fact of continuing support to the Salvadorian guerrillas' cannot, even assuming it
to be accurately quoted, be relied on as proof that that support (which, in the form of political
support, is openly admitted by the Nicaraguan Government) takes any specific material form,
such as the supply of arms.

139. The Court has taken note of four draft treaties prepared by Nicaragua in 1983, and
submitted as an official proposal within the framework of the Contadora process, the text of
which was supplied to the Court with the Nicaraguan Application. These treaties, intended to be
'subscribed to by all nations that desire to contribute to the peaceful solution of the present armed
conflict in the Republic of El Salvador' (p. 58), contained the following provisions:

'Article One

The High Contracting Parties promise to not offer and, should such be the case, to suspend
military assistance and training and the supply and trafficking of arms, munitions and military
equipment that may be made directly to the contending forces or indirectly through third States.

Article Two

The High Contracting Parties promise to adopt in their respective territories whatever measures
may be necessary to impede all supply and trafficking of arms, munitions and military equipment
and military assistance to and training of the contending forces in the Republic of El Salvador.'
(P. 60.)

In the Introduction to its proposal the Nicaraguan Government stated that it was ready to enter
into an agreement of this kind immediately, even if only with the United States, 'in order that the
Government of that country cease justifying its interventionist policy in El Salvador on the basis
of supposed actions by Nicaragua' (p. 58).

140. When filing its Counter-Memorial on the questions of jurisdiction and admissibility, the
United States deposited a number of documents in the Registry of the Court, two of which are
relevant to the questions here under examination. The first is a publication of the United States
Department of State dated 23 February 1981, entitled Communist Interference in El Salvador,
reproducing a number of documents (in Spanish with English translation) stated to have been
among documents in 'two particularly important document caches . . . recovered from the
Communist Party of El Salvador (PCS) in November 1980 and the People's Revolutionary Army
(ERP) in January 1981'. A summary of the documents is also to be found in an attachment to the
1983 Report of the Intelligence Committee, filed by Nicaragua. The second is a 'background
Paper' published by the United States Department of State and Department of Defense in July
1984, entitled Nicaragua's Military Build-Up and Support for Central American Subversion.

141. The full significance of the documents reproduced in the first of these publications, which
are 'written using cryptic language and abbreviations', is not readily apparent, without further
assistance from United States experts, who might have been called as witnesses had the United
States appeared in the proceedings. For example, there are frequent references to 'Lagos' which,
according to the United States, is a code-name for Nicaragua; but without such assistance the
Court cannot judge whether this interpretation is correct. There is also however some specific
reference in an undated document to aid to the armed opposition 'which all would pass through
Nicaragua' - no code-name being here employed - which the Court must take into account for
what it is worth.

142. The second document, the Background Paper, is stated to be based on 'Sandinista
documents, press reports, and interviews with captured guerrillas and defectors' as well as
information from 'intelligence sources'; specific intelligence reports are not cited 'because of the
potential consequences of revealing sources and methods'. The only material evidence included
is a number of aerial photographs (already referred to in paragraph 88 above), and a map said to
have been captured in a guerrilla camp in El Salvador, showing arms transport routes; this map
does not appear of itself to indicate that arms enter El Salvador from Nicaraguan territory.

143. The Court's attention has also been drawn to various press reports of statements by
diplomats, by leaders of the armed opposition in El Salvador, or defectors from it, supporting the
view that Nicaragua was involved in the arms supply. As the Court has already explained, it
regards press reports not as evidence capable of proving facts, but considers that they can
nevertheless contribute, in some circumstances, to corroborating the existence of a particular fact
(paragraph 62 above). The press reports here referred to will therefore be taken into account only
to that extent.

144. In an interview published in English in the New York Times Magazine on 28 April 1985,
and in Spanish in ABC, Madrid, on 12 May 1985 given by Daniel Ortega Saavedra, President of
the Junta of Nicaragua, he is reported to have said:

'We've said that we're willing to send home the Cubans, the Russians, the rest of the advisers.
We're willing to stop the movement of military aid, or any other kind of aid, through Nicaragua
to El Salvador, and we're willing to accept international verification. In return, we're asking for
one thing: that they don't attack us, that the United States stop arming and financing . . . the
gangs that kill our people, burn our crops and force us to divert enormous human and economic
resources into war when we desperately need them for development.' ...

The Court has to consider whether this press report can be treated as evidence of an admission by
the Nicaraguan Head of State that the Nicaraguan Government is in a position to stop the
movement of military or other aid through Nicaraguan territory to El Salvador; and whether it
can be deduced from this (in conjunction with other material) that the Nicaraguan Government is
responsible for the supply or transit of such aid.
145. Clearly the remarks attributed to President Ortega raise questions as to his meaning, namely
as to what exactly the Nicaraguan Government was offering to stop. According to Nicaragua's
own evidence, President Ortega had offered during the meeting of 12 August 1981 to stop the
arms flow if the United States would supply the necessary information to enable the Nicaraguan
Government to track it down; it may in fact be the interview of 12 August 1981 that President
Ortega was referring to when he spoke of what had been said to the United States Government.
At all events, against the background of the firm denial by the Nicaraguan Government of
complicity in an arms flow to El Salvador, the Court cannot regard remarks of this kind as an
admission that that Government was in fact doing what it had already officially denied and
continued subsequently to deny publicly.

146. Reference was made during the hearings to the testimony of defectors from Nicaragua or
from the armed opposition in El Salvador; the Court has no such direct testimony before it. The
only material available in this respect is press reports, some of which were annexed to the United
States Counter-Memorial on the questions of jurisdiction and admissibility. With appropriate
reservations, the Court has to consider what the weight is of such material, which includes
allegations of arms supply and of the training of Salvadoreans at a base near Managua. While the
Court is not prepared totally to discount this material, it cannot find that it is of any great weight
in itself. Still less can statements attributed in the press to unidentified diplomats stationed in
Managua be regarded as evidence that the Nicaraguan Government was continuing to supply aid
to the opposition in El Salvador.

147. The evidence or material offered by Nicaragua in connection with the allegation of arms
supply has to be assessed bearing in mind the fact that, in responding to that allegation,
Nicaragua has to prove a negative. Annexed to the Memorial was a declaration dated 21 April
1984 of Miguel d'Escoto Brockmann, the Foreign Minister of Nicaragua. In this respect the
Court has, as in the case of the affidavit of the United States Secretary of State, to recall the
observations it has already made (paragraphs 69 and 70) as to the evidential value of such
declarations. In the declaration, the Foreign Minister states that the allegations made by the
United States, that the Nicaraguan Government 'is sending arms, ammunition, communications
equipment and medical supplies to rebels conducting a civil war against the Government of El
Salvador, are false'. He continues:

'In truth, my government is not engaged, and has not been engaged, in the provision of arms or
other supplies to either of the factions engaged in the civil war in El Salvador . . . Since my
government came to power on July 19, 1979, its policy and practice has been to prevent our
national territory from being used as a conduit for arms or other military supplies intended for
other governments or rebel groups. In fact, on numerous occasions the security forces of my
government have intercepted clandestine arms shipments, apparently destined for El Salvador,
and confiscated them.'

The Foreign Minister explains the geographical difficulty of patrolling Nicaragua's frontiers:

'Nicaragua's frontier with Honduras, to the north, is 530 kilometers long. Most of it is
characterized by rugged mountains, or remote and dense jungles. Most of this border area is
inaccessible by motorized land transport and simply impossible to patrol. To the south,
Nicaragua's border with Costa Rica extends for 220 kilometers. This area is also characterized by
dense and remote jungles and is also virtually inaccessible by land transport. As a small
underdeveloped country with extremely limited resources, and with no modern or sophisticated
detection equipment, it is not easy for us to seal off our borders to all unwanted and illegal
traffic.'

He then points out the complication of the presence of the contras along the northern and
southern borders, and describes efforts by Nicaragua to obtain verifiable international
agreements for halting all arms traffic in the region.

148. Before turning to the evidence offered by Nicaragua at the hearings, the Court would note
that the action of the United States Government itself, on the basis of its own intelligence reports,
does not suggest that arms supply to El Salvador from the territory of Nicaragua was continuous
from July 1979, when the new regime took power in Managua, and the early months of 1981.
The presidential Determination of 12 September 1980, for the purposes of the Special Central
American Assistance Act 1979, quoted in paragraph 123 above, officially certified that the
Government of Nicaragua was not aiding, abetting or supporting acts of violence or terrorism in
other countries, and the press release of the same date emphasized the 'careful consideration and
evaluation of all the relevant evidence provided by the intelligence community and by our
Embassies in the field' for the purposes of the Determination. The 1983 Report of the
Intelligence Committee, on the other hand, referring to its regular review of intelligence since
'the 1979 Sandinista victory in Nicaragua', found that the intelligence available to it in May 1983
supported 'with certainty' the judgment that arms and material supplied to 'the Salvadorian
insurgents transits Nicaragua with the permission and assistance of the Sandinistas' (see
paragraph 137 above).

149. During the oral proceedings Nicaragua offered the testimony of Mr. MacMichael, already
reviewed above (paragraphs 134 and 135) from a different aspect. The witness, who was well
placed to judge the situation from United States intelligence, stated that there was no detection
by United States intelligence capabilities of arms traffic from Nicaraguan territory to El Salvador
during the period of his service (March 1981 to April 1983). He was questioned also as to his
opinion, in the light of official statements and press reports, on the situation after he left the CIA
and ceased to have access to intelligence material, but the Court considers it can attach little
weight to statements of opinion of this kind (cf. paragraph 68 above).

150. In weighing up the evidence summarized above, the Court has to determine also the
significance of the context of, or background to, certain statements or indications. That
background includes, first, the ideological similarity between two movements, the Sandinista
movement in Nicaragua and the armed opposition to the present government in El Salvador;
secondly the consequent political interest of Nicaragua in the weakening or overthrow of the
government in power in El Salvador; and finally, the sympathy displayed in Nicaragua, including
among members of the army, towards the armed opposition in El Salvador. At the meeting of 12
August 1981 (paragraph 136 above), for example, Commander Ortega told the United States
representative, Mr. Enders, that 'we are interested in seeing the guerrillas in El Salvador and
Guatemala triumph . . .', and that 'there is a great desire here to collaborate with the Salvadorian
people . . .'. Against this background, various indications which, taken alone, cannot constitute
either evidence or even a strong presumption of aid being given by Nicaragua to the armed
opposition in El Salvador, do at least require to be examined meticulously on the basis that it is
probable that they are significant.

151. It is in this light, for example, that one indirect piece of evidence acquires particular
importance. From the record of the meeting of 12 August 1981 in Managua, mentioned in the
preceding paragraph, it emerges that the Nicaraguan authorities may have immediately taken
steps, at the request of the United States, to bring to a halt or prevent various forms of support to
the armed opposition in El Salvador. The United States representative is there reported to have
referred to steps taken by the Government of Nicaragua in March 1981 to halt the flow of arms
to El Salvador, and his statement to that effect was not contradicted. According to a New York
Times report (17 September 1985) Commander Ortega stated that around this time measures
were taken to prevent an airstrip in Nicaragua from continuing to be used for this type of
activities. This, in the Court's opinion, is an admission of certain facts, such as the existence of
an airstrip designed to handle small aircraft, probably for the transport of weapons, the likely
destination being El Salvador, even if the Court has not received concrete proof of such
transport. The promptness with which the Nicaraguan authorities closed off this channel is a
strong indication that it was in fact being used, or had been used for such a purpose.

152. The Court finds, in short, that support for the armed opposition in El Salvador from
Nicaraguan territory was a fact up to the early months of 1981. While the Court does not possess
full proof that there was aid, or as to its exact nature, its scale and its continuance until the early
months of 1981, it cannot overlook a number of concordant indications, many of which were
provided moreover by Nicaragua itself, from which it can reasonably infer the provision of a
certain amount of aid from Nicaraguan territory. The Court has already explained (paragraphs
64, 69 and 70) the precise degree to which it intended to take account, as regards factual
evidence, of statements by members of the governments of the States concerned, including those
of Nicaragua. It will not return to this point.

153. After the early months of 1981, evidence of military aid from or through Nicaragua remains
very weak. This is so despite the deployment by the United States in the region of extensive
technical resources for tracking, monitoring and intercepting air, sea and land traffic, described
in evidence by Mr. MacMichael and its use of a range of intelligence and information sources in
a political context where, moreover, the Government had declared and recognized surveillance of
Nicaragua as a 'high priority'. The Court cannot of course conclude from this that no transborder
traffic in arms existed, although it does not seem particularly unreasonable to believe that traffic
of this kind, had it been persistent and on a significant scale, must inevitably have been
discovered, in view of the magnitude of the resources used for that purpose. The Court merely
takes note that the allegations of arms-trafficking are not solidly established; it has not, in any
event, been able to satisfy itself that any continuing flow on a significant scale took place after
the early months of 1981.

154. In this connection, it was claimed in the Declaration of Intervention by El Salvador that
there was a 'continuing flow of arms, ammunition, medicines, and clothing from Nicaragua to
our country' (para. VIII), and El Salvador also affirmed the existence of 'land infiltration routes
between Nicaragua and El Salvador'. Had evidence of this become available, it is not apparent
why El Salvador, given full knowledge of an arms-flow and the routes used, could not have put
an end to the traffic, either by itself or with the assistance of the United States, which has
deployed such powerful resources. There is no doubt that the United States and El Salvador are
making considerable effort to prevent any infiltration of weapons and any form of support to the
armed opposition in El Salvador from the direction of Nicaragua. So far as the Court has been
informed, however, they have not succeeded in tracing and intercepting this infiltration and these
various forms of support. Consequently, it can only interpret the lack of evidence of the
transborder arms-flow in one of the following two ways: either this flow exists, but is neither as
frequent nor as considerable as alleged by the respondent State; or it is being carried on without
the knowledge, and against the will, of a government which would rather put a stop to it. If this
latter conclusion is at all valid with regard to El Salvador and the United States it must therefore
be at least equally valid with regard to Nicaragua.

155. Secondly, even supposing it well established that military aid is reaching the armed
opposition in El Salvador from the territory of Nicaragua, it still remains to be proved that this
aid is imputable to the authorities of the latter country. Indeed, the applicant State has in no way
sought to conceal the possibility of weapons en route to the armed opposition in El Salvador
crossing its territory but it denies that this is the result of any deliberate official policy on its part.
As the Court observed in 1949:

'it cannot be concluded from the mere fact of the control exercised by a State over its territory
and waters that that State necessarily knew, or ought to have known, of any unlawful act
perpetrated therein, nor yet that it necessarily knew, or should have known, the authors. This
fact, by itself and apart from other circumstances, neither involves prima facie responsibility nor
shifts the burden of proof.' (Corfu Channel, I.C.J. Reports 1949, p. 18.)

Here it is relevant to bear in mind that there is reportedly a strong will for collaboration and
mutual support between important elements of the populations of both El Salvador and
Nicaragua, not least among certain members of the armed forces in Nicaragua. The Court sees no
reason to dismiss these considerations, especially since El Salvador itself recognizes the
existence in Nicaraguan coastal areas of 'traditional smugglers' (Declaration, para. VIII, H),
because Nicaragua is accused not so much of delivering weapons itself as of allowing them to
transit through its territory; and finally because evidence has been provided, in the report of the
meeting of 12 August 1981 referred to in paragraph 136 above, of a degree of co-operation
between the United States and Nicaragua for the purpose of putting a stop to these arms
deliveries. The continuation of this co-operation does not seem to have depended solely on the
Government of Nicaragua, for the Government of the United States, which in 1981 again raised
with it the question of this traffic, this time refused to provide the Nicaraguan authorities, as it
had on previous occasions, with the specific information and details that would have enabled
them to call a halt to it. Since the Government of the United States has justified its refusal by
claiming that any disclosure would jeopardize its sources of information, the Court has no means
of assessing the reality or cogency of the undivulged evidence which the United States claimed
to possess.

156. In passing, the Court would remark that, if this evidence really existed, the United States
could be expected to have taken advantage of it in order to forestall or disrupt the traffic
observed; it could presumably for example arrange for the deployment of a strong patrol force in
El Salvador and Honduras, along the frontiers of these States with Nicaragua. It is difficult to
accept that it should have continued to carry out military and paramilitary activities against
Nicaragua if their only purpose was, as alleged, to serve as a riposte in the exercise of the right of
collective self-defence. If, on the other hand, this evidence does not exist, that, as the Court has
pointed out, implies that the arms traffic is so insignificant and casual that it escapes detection
even by the sophisticated techniques employed for the purpose, and that, a fortiori, it could also
have been carried on unbeknown to the Government of Nicaragua, as that Government claims.
These two conclusions mutually support each other.

157. This second hypothesis would provide the Court with a further reason for taking
Nicaragua's affirmation into consideration, in that, if the flow of arms is in fact reaching El
Salvador without either Honduras or El Salvador or the United States succeeding in preventing
it, it would clearly be unreasonable to demand of the Government of Nicaragua a higher degree
of diligence than is achieved by even the combined efforts of the other three States. In particular,
when Nicaragua is blamed for allowing consignments of arms to cross its territory, this is
tantamount, where El Salvador is concerned, to an admission of its inability to stem the flow.
This is revealing as to the predicament of any government, including that of Nicaragua, faced
with this arms traffic: its determination to put a stop to it would be likely to fail. More especially,
to the extent that some of this aid is said to be successfully routed through Honduras, this
accusation against Nicaragua would also signify that Honduras, which is not suspected of
seeking to assist the armed opposition in El Salvador, is providing involuntary proof that it is by
no means certain that Nicaragua can combat this clandestine traffic any better than Honduras. As
the means at the disposal of the governments in the region are roughly comparable, the
geographical obstacles, and the intrinsic character of any clandestine arms traffic, simply show
that this traffic may be carried on successfully without any complicity from governmental
authorities, and even when they seek to put a stop to it. Finally, if it is true that the exceptionally
extensive resources deployed by the United States have been powerless to prevent this traffic
from keeping the Salvadorian armed opposition supplied, this suggests even more clearly how
powerless Nicaragua must be with the much smaller resources at its disposal for subduing this
traffic if it takes place on its territory and the authorities endeavour to put a stop to it.

158. Confining itself to the regional States concerned, the Court accordingly considers that it is
scarcely possible for Nicaragua's responsibility for an arms traffic taking place on its territory to
be automatically assumed while the opposite assumption is adopted with regard to its neighbours
in respect of similar traffic. Having regard to the circumstances characterizing this part of
Central America, the Court considers it more realistic, and consistent with the probabilities, to
recognize that an activity of that nature, if on a limited scale, may very well be pursued
unbeknown to the territorial government.

159. It may be objected that the Nicaraguan authorities are alleged to have declared on various
occasions that military assistance to the armed opposition in El Salvador was part of their official
policy. The Court has already indicated that it is unable to give weight to alleged statements to
that effect of which there is insufficient evidence. In the report of the diplomatic talks held on 12
August 1981 at Managua, Commander Ortega did not in any sense promise to cease sending
arms, but, on the contrary, said on the one hand that Nicaragua had taken immediate steps to put
a stop to it once precise information had been given and, on the other hand, expressed inability to
take such steps where Nicaragua was not provided with information enabling that traffic to be
located. The Court would further observe that the four draft treaties submitted by Nicaragua
within the Contadora process in 1983 (quoted in paragraph 139 above) do not constitute an
admission by Nicaragua of the supply of assistance to the armed opposition in El Salvador, but
simply make provision for the future in the context of the inter-American system, in which a
State is prohibited from assisting the armed opposition within another State.

160. On the basis of the foregoing, the Court is satisfied that, between July 1979, the date of the
fall of the Somoza regime in Nicaragua, and the early months of 1981, an intermittent flow of
arms was routed via the territory of Nicaragua to the armed opposition in El Salvador. On the
other hand, the evidence is insufficient to satisfy the Court that, since the early months of 1981,
assistance has continued to reach the Salvadorian armed opposition from the territory of
Nicaragua on any significant scale, or that the Government of Nicaragua was responsible for any
flow of arms at either period.

161. The Court therefore turns to the claim that Nicaragua has been responsible for cross-border
military attacks on Honduras and Costa Rica. The United States annexed to its Counter-
Memorial on jurisdiction, inter alia, a document entitled 'Resume of Sandinista Aggression in
Honduran Territory in 1982' issued by the Press and Information Officer of the Honduran
Ministry of Foreign Relations on 23 August 1982. That document listed 35 incidents said to
involve violations of Honduran territory, territorial waters or airspace, attacks on and harassment
of the Honduran population or Honduran patrols, between 30 January 1982 and 21 August 1982.
Also attached to the Counter- Memorial were copies of diplomatic Notes from Honduras to
Nicaragua protesting at other incidents stated to have occurred in June/July 1983 and July 1984.
The Court has no information as to whether Nicaragua replied to these communications, and if so
in what terms.

162. With regard to Costa Rica, the United States has supplied the text of diplomatic Notes of
protest from Costa Rica to Nicaragua concerning incidents in September 1983, February 1984
and April 1984, and a Note from Costa Rica to the Foreign Ministers of Colombia, Mexico,
Panama and Venezuela, referring to an incident of 29 April 1984, and requesting the sending of a
mission of observers. Again, the Court has no information as to the contemporary reaction of
Nicaragua to these allegations; from press reports it appears that the matter was later amicably
settled.

163. As the Court has already observed (paragraphs 130 to 131 above), both the Parties have
addressed themselves primarily to the question of aid by the Government of Nicaragua to the
armed opposition in El Salvador, and the question of aggression directed against Honduras and
Costa Rica has fallen somewhat into the background. Nevertheless the allegation that such
aggression affords a basis for the exercise by the United States of the right of collective self-
defence remains on the record; and the Court has to note that Nicaragua has not taken the
opportunity during the proceedings of expressly refuting the assertion that it has made cross-
border military attacks on the territory of those two States. At the opening of the hearings in
1984 on the questions of jurisdiction and admissibility, the Agent of Nicaragua referred to the
'supposed armed attacks of Nicaragua against its neighbours', and proceeded to 'reiterate our
denial of these accusations which in any case we will amply address in the merits phase of these
proceedings'. However, the declaration of the Nicaraguan Foreign Minister annexed to the
Memorial on the merits filed on 30 April 1985, while repudiating the accusation of support for
the armed opposition in El Salvador, did not refer at all to the allegation of border incidents
involving Honduras and Costa Rica.

164. The Court, while not as fully informed on the question as it would wish to be, therefore
considers as established the fact that certain trans-border military incursions into the territory of
Honduras and Costa Rica are imputable to the Government of Nicaragua. The Court is also
aware of the fact that the FDN operates along the Nicaraguan border with Honduras, and the
ARDE operates along the border with Costa Rica.

165. In view of the assertion by the United States that it has acted in exercise of the right of
collective self-defence for the protection of El Salvador, Honduras and Costa Rica, the Court has
also to consider the evidence available on the question whether those States, or any of them,
made a request for such protection. In its Counter-Memorial on jurisdiction and admissibility, the
United States informed the Court that

'El Salvador, Honduras, and Costa Rica have each sought outside assistance, principally from the
United States, in their self-defense against Nicaragua's aggression. Pursuant to the inherent right
of individual and collective self-defense, and in accordance with the terms of the Inter-American
Treaty of Reciprocal Assistance, the United States has responded to these requests.'

No indication has however been given of the dates on which such requests for assistance were
made. The affidavit of Mr. Shultz, Secretary of State, dated 14 August 1984 and annexed to the
United States Counter-Memorial on jurisdiction and admissibility, while asserting that the United
States is acting in accord with the provisions of the United Nations Charter, and pursuant to the
inherent right of self defence, makes no express mention of any request for assistance by the
three States named. El Salvador, in its Declaration of Intervention in the present proceedings of
15 August 1984, stated that, faced with Nicaraguan aggression,

'we have been called upon to defend ourselves, but our own economic and military capability is
not sufficient to face any international apparatus that has unlimited resources at its disposal, and
we have, therefore, requested support and assistance from abroad. It is our natural, inherent right
under Article 51 of the Charter of the United Nations to have recourse to individual and
collective acts of self-defence. It was with this in mind that President Duarte, during a recent
visit to the United States and in discussions with United States congressmen, reiterated the
importance of this assistance for our defence from the United States and the democratic nations
of the world.' (Para. XII.)

Again, no dates are given, but the Declaration continues 'This was also done by the
Revolutionary Junta of Government and the Government of President Magana', i.e., between
October 1979 and December 1980, and between April 1982 and June 1984.
166. The Court however notes that according to the report, supplied by the Agent of Nicaragua,
of the meeting on 12 August 1981 between President Ortega of Nicaragua and Mr. Enders, the
latter is reported to have referred to action which the United States might take

'if the arms race in Central America is built up to such a point that some of your [sc. Nicaragua's]
neighbours in Central America seek protection from us under the Inter-American Treaty [of
Reciprocal Assistance]'.

This remark might be thought to carry the implication that no such request had yet been made.
Admittedly, the report of the meeting is a unilateral one, and its accuracy cannot be assumed as
against the United States. In conjunction with the lack of direct evidence of a formal request for
assistance from any of the three States concerned to the United States, the Court considers that
this report is not entirely without significance.

167. Certain events which occurred at the time of the fall of the regime of President Somoza
have next to be mentioned, since reliance has been placed on them to support a contention that
the present Government of Nicaragua is in violation of certain alleged assurances given by its
immediate predecessor, the Government of National Reconstruction, in 1979. From the
documents made available to the Court, at its request, by Nicaragua, it appears that what
occurred was as follows. On 23 June 1979, the Seventeenth Meeting of Consultation of Ministers
of Foreign Affairs of the Organization of American States adopted by majority, over the negative
vote of, inter alios, the representative of the Somoza government of Nicaragua, a resolution on
the subject of Nicaragua. By that resolution after declaring that 'the solution of the serious
problem is exclusively within the jurisdiction of the people of Nicaragua', the Meeting of
Consultation declared

'That in the view of the Seventeenth Meeting of Consultation of Ministers of Foreign Affairs this
solution should be arrived at on the basis of the following:

1. Immediate and definitive replacement of the Somoza regime.

2. Installation in Nicaraguan territory of a democratic government, the composition of which


should include the principal representative groups which oppose the Somoza regime and which
reflects the free will of the people of Nicaragua.

3. Guarantee of the respect for human rights of all Nicaraguans without exception.

4. The holding of free elections as soon as possible, that will lead to the establishment of a truly
democratic government that guarantees peace, freedom, and justice.'

On 12 July 1979, the five members of the Nicaraguan 'Junta of the Government of National
Reconstruction' sent from Costa Rica a telegram to the Secretary- General of the Organization of
American States, communicating the 'Plan of the Government of National Reconstruction to
Secure Peace'. The telegram explained that the plan had been developed on the basis of the
Resolution of the Seventeenth Meeting of Consultation; in connection with that plan, the Junta
members stated that they wished to 'ratify' (ratificar) some of the 'goals that have inspired their
government'. These included, first

'our firm intention to establish full observance of human rights in our country in accordance with
the United Nations Universal Declaration of the Rights of Man [sic], and the Charter on Human
Rights of the Organization of American States';

The Inter-American Commission on Human Rights was invited 'to visit our country as soon as
we are installed in our national territory'. A further goal was

'the plan to call the first free elections our country has known in this century, so that Nicaraguans
can elect their representatives to the city councils and to a constituent assembly, and later elect
the country's highest authorities'.

The Plan to Secure Peace provided for the Government of National Reconstruction, as soon as
established, to decree a Fundamental Statute and an Organic Law, and implement the Program of
the Government of National Reconstruction. Drafts of these texts were appended to the Plan;
they were enacted into law on 20 July 1979 and 21 August 1979.

168. In this connection, the Court notes that, since thus announcing its objectives in 1979, the
Nicaraguan Government has in fact ratified a number of international instruments on human
rights. At the invitation of the Government of Nicaragua, the Inter-American Commission on
Human Rights visited Nicaragua and compiled two reports (OEA/Ser.L/V/11.53 and 62). A state
of emergency was declared by the Nicaraguan Government (and notified to the United Nations
Secretary-General) in July 1979, and was re-declared or extended on a number of subsequent
occasions. On 4 November 1984, presidential and legislative elections were held, in the presence
of foreign observers; seven political parties took part in the election, while three parties abstained
from taking part on the ground that the conditions were unsatisfactory.

169. The view of the United States as to the legal effect of these events is reflected in, for
example, a Report submitted to Congress by President Reagan on 10 April 1985 in connection
with finance for the contras. It was there stated that one of the changes which the United States
was seeking from the Nicaraguan Government was:

'implementation of Sandinista commitment to the Organization of American States to political


pluralism, human rights, free elections, non-alignment, and a mixed economy'.

A fuller statement of those views is contained in a formal finding by Congress on 29 July 1985,
to the following effect:

'(A) the Government of National Reconstruction of Nicaragua formally accepted the June 23,
1979, resolution as a basis for resolving the Nicaraguan conflict in its 'Plan to Achieve Peace'
which was submitted to the Organization of American States on July 12, 1979;
(B) the June 23, 1979, resolution and its acceptance by the Government of National
Reconstruction of Nicaragua was the formal basis for the removal of the Somoza regime and the
installation of the Government of National Reconstruction;

(C) the Government of National Reconstruction, now known as the Government of Nicaragua
and controlled by the Frente Sandinista (the FSLN), has flagrantly violated the provisions of the
June 23, 1979, resolution, the rights of the Nicaraguan people, and the security of the nations in
the region, in that it -

(i) no longer includes the democratic members of the Government of National Reconstruction in
the political process;

(ii) is not a government freely elected under conditions of freedom of the press, assembly, and
organization, and is not recognized as freely elected by its neighbors, Costa Rica, Honduras, and
El Salvador;

(iii) has taken significant steps towards establishing a totalitarian Communist dictatorship,
including the formation of FSLN neighborhood watch committees and the enactment of laws that
violate human rights and grant undue executive power;

(iv) has committed atrocities against its citizens as documented in reports by the Inter-American
Commission on Human Rights of the Organization of American States;

(v) has aligned itself with the Soviet Union and Soviet allies, including the German Democratic
Republic, Bulgaria, Libya, and the Palestine Liberation Organization;

(vi) has committed and refuses to cease aggression in the form of armed subversion against its
neighbors in violation of the Charter of the United Nations, the Charter of the Organization of
American States, the Inter- American Treaty of Reciprocal Assistance, and the 1965 United
Nations General Assembly Declaration on Intervention; and

(vii) has built up an army beyond the needs of immediate self-defense, at the expense of the
needs of the Nicaraguan people and about which the nations of the region have expressed
deepest concern.'

170. The resolution goes on to note the belief expressed by Costa Rica, El Salvador and
Honduras that

'their peace and freedom is not safe so long as the Government of Nicaragua excludes from
power most of Nicaragua's political leadership and is controlled by a small sectarian party,
without regard to the will of the majority of Nicaraguans'

and adds that

'the United States, given its role in the installation of the current Government of Nicaragua, has a
special responsibility regarding the implementation of the commitments made by that
Government in 1979, especially to those who fought against Somoza to bring democracy to
Nicaragua with United States support'.

Among the findings as to the 'Resolution of the Conflict' is the statement that the Congress

'supports the Nicaraguan democratic resistance in its efforts to peacefully resolve the Nicaraguan
conflict and to achieve the fulfillment of the Government of Nicaragua's solemn commitments to
the Nicaraguan people, the United States, and the Organization of American States'.

From the transcripts of speeches and press conferences supplied to the Court by Nicaragua, it is
clear that the resolution of Congress expresses a view shared by the President of the United
States, who is constitutionally responsible for the foreign policy of the United States.

171. The question whether the alleged violations by the Nicaraguan Government of the 1979
Resolution of the Organization of American States Meeting of Consultation, listed in paragraph
169, are relied on by the United States Government as legal justifications of its conduct towards
Nicaragua, or merely as political arguments, will be examined later in the present Judgment. It
may however be observed that the resolution clearly links United States support for the contras
to the breaches of what the United States regards as the 'solemn commitments' of the
Government of Nicaragua.

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

173. According to the United States, these consequences are extremely wide- ranging. The
United States has argued that:

'Just as Nicaragua's claims allegedly based on 'customary and general international law' cannot
be determined without recourse to the United Nations Charter as the principal source of that law,
they also cannot be determined without reference to the 'particular international law' established
by multilateral conventions in force among the parties.'

The United States contends that the only general and customary international law on which
Nicaragua can base its claims is that of the Charter: in particular, the Court could not, it is said,
consider the lawfulness of an alleged use of armed force without referring to the 'principal source
of the relevant international law', namely, Article 2, paragraph 4, of the United Nations Charter.
In brief, in a more general sense 'the provisions of the United Nations Charter relevant here
subsume and supervene related principles of customary and general international law'. The
United States concludes that 'since the multilateral treaty reservation bars adjudication of claims
based on those treaties, it bars all of Nicaragua's claims'. Thus the effect of the reservation in
question is not, it is said, merely to prevent the Court from deciding upon Nicaragua's claims by
applying the multilateral treaties in question; it further prevents it from applying in its decision
any rule of customary international law the content of which is also the subject of a provision in
those multilateral treaties.

174. In its Judgment of 26 November 1984, the Court has already commented briefly on this line
of argument. Contrary to the views advanced by the United States, it affirmed that it

'cannot dismiss the claims of Nicaragua under principles of customary and general international
law, simply because such principles have been enshrined in the texts of the conventions relied
upon by Nicaragua. The fact that the above-mentioned principles, recognized as such, have been
codified or embodied in multilateral conventions does not mean that they cease to exist and to
apply as principles of customary law, even as regards countries that are parties to such
conventions. Principles such as those of the non-use of force, non-intervention, respect for the
independence and territorial integrity of States, and the freedom of navigation, continue to be
binding as part of customary international law, despite the operation of provisions of
conventional law in which they have been incorporated.' (I.C.J. Reports 1984, p. 424, para. 73.)

Now that the Court has reached the stage of a decision on the merits, it must develop and refine
upon these initial remarks. The Court would observe that, according to the United States
argument, it should refrain from applying the rules of customary international law because they
have been 'subsumed' and 'supervened' by those of international treaty law, and especially those
of the United Nations Charter. Thus the United States apparently takes the view that the
existence of principles in the United Nations Charter precludes the possibility that similar rules
might exist independently in customary international law, either because existing customary
rules had been incorporated into the Charter, or because the Charter influenced the later adoption
of customary rules with a corresponding content.

175. The Court does not consider that, in the areas of law relevant to the present dispute, it can
be claimed 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. On a number of points, the areas governed by the two sources of law do not exactly
overlap, and the substantive rules in which they are framed are not identical in content. But in
addition, 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. Nor can the multilateral treaty reservation be interpreted as meaning that, once
applicable to a given dispute, it would exclude the application of any rule of customary
international law the content of which was the same as, or analogous to, that of the treaty-law
rule which had caused the reservation to become effective.

176. As regards the suggestion that the areas covered by the two sources of law are identical, the
Court observes that the United Nations Charter, the convention to which most of the United
States argument is directed, by no means covers the whole area of the regulation of the use of
force in international relations. On one essential point, this treaty itself refers to pre-existing
customary international law; this reference to customary law is contained in the actual text of
Article 51, which mentions the 'inherent right' (in the French text the 'droit naturel') of individual
or collective self-defence, which 'nothing in the present Charter shall impair' and which applies
in the event of an armed attack. The Court therefore finds that Article 51 of the Charter is only
meaningful on the basis that there is a 'natural' or 'inherent' right of self-defence, and it is hard to
see how this can be other than of a customary nature, even if its present content has been
confirmed and influenced by the Charter. Moreover the Charter, having itself recognized the
existence of this right, does not go on to regulate directly all aspects of its content. For example,
it does not contain any specific rule whereby self-defence would warrant only measures which
are proportional to the armed attack and necessary to respond to it, a rule well established in
customary international law. Moreover, a definition of the 'armed attack' which, if found to exist,
authorizes the exercise of the 'inherent right' of self-defence, is not provided in the Charter, and
is not part of treaty law. It cannot therefore be held that Article 51 is a provision which
'subsumes and supervenes' customary international law. It rather demonstrates that in the field in
question, the importance of which for the present dispute need hardly be stressed, customary
international law continues to exist alongside treaty law. The areas governed by the two sources
of law thus do not overlap exactly, and the rules do not have the same content. This could also be
demonstrated for other subjects, in particular for the principle of non-intervention.

177. But as observed above (paragraph 175), even if the customary norm and the treaty norm
were to have exactly the same content, this would not be a reason for the Court to hold that the
incorporation of the customary norm into treaty-law must deprive the customary norm of its
applicability as distinct from that of the treaty norm. The existence of identical rules in
international treaty law and customary law has been clearly recognized by the Court in the North
Sea Continental Shelf cases. To a large extent, those cases turned on the question whether a rule
enshrined in a treaty also existed as a customary rule, either because the treaty had merely
codified the custom, or caused it to 'crystallize', or because it had influenced its subsequent
adoption. The Court found that this identity of content in treaty law and in customary
international law did not exist in the case of the rule invoked, which appeared in one article of
the treaty, but did not suggest that such identity was debarred as a matter of principle: on the
contrary, it considered it to be clear that certain other articles of the treaty in question 'were ...
regarded as reflecting, or as crystallizing, received or at least emergent rules of customary
international law' (I.C.J. Reports 1969, p. 39, para. 63). More generally, there are no grounds for
holding that when customary international law is comprised of rules identical to those of treaty
law, the latter 'supervenes' the former, so that the customary international law has no further
existence of its own.

178. There are a number of reasons for considering that, even if two norms belonging to two
sources of international law appear identical in content, and even if the States in question are
bound by these rules both on the level of treaty-law and on that of customary international law,
these norms retain a separate existence. This is so from the standpoint of their applicability. In a
legal dispute affecting two States, one of them may argue that the applicability of a treaty rule to
its own conduct depends on the other State's conduct in respect of the application of other rules,
on other subjects, also included in the same treaty. For example, if a State exercises its right to
terminate or suspend the operation of a treaty on the ground of the violation by the other party of
a 'provision essential to the accomplishment of the object or purpose of the treaty' (in the words
of Art. 60, para. 3 (b), of the Vienna Convention on the Law of Treaties), it is exempted, vis-a-
vis the other State, from a rule of treaty-law because of the breach by that other State of a
different rule of treaty-law. But if the two rules in question also exist as rules of customary
international law, the failure of the one State to apply the one rule does not justify the other State
in declining to apply the other rule. Rules which are identical in treaty law and in customary
international law are also distinguishable by reference to the methods of interpretation and
application. A State may accept a rule contained in a treaty not simply because it favours the
application of the rule itself, but also because the treaty establishes what that State regards as
desirable institutions or mechanisms to ensure implementation of the rule. Thus, if that rule
parallels a rule of customary international law, two rules of the same content are subject to
separate treatment as regards the organs competent to verify their implementation, depending on
whether they are customary rules or treaty rules. The present dispute illustrates this point.

179. It will therefore be clear that customary international law continues to exist and to apply,
separately from international treaty law, even where the two categories of law have an identical
content. Consequently, in ascertaining the content of the customary international law applicable
to the present dispute, the Court must satisfy itself that the Parties are bound by the customary
rules in question; but the Court is in no way bound to uphold these rules only in so far as they
differ from the treaty rules which it is prevented by the United States reservation from applying
in the present dispute.

180. The United States however presented a further argument, during the proceedings devoted to
the question of jurisdiction and admissibility, in support of its contention that the multilateral
treaty reservation debars the Court from considering the Nicaraguan claims based on customary
international law. The United States observed that the multilateral treaties in question contain
legal standards specifically agreed between the Parties to govern their mutual rights and
obligations, and that the conduct of the Parties will continue to be governed by these treaties,
irrespective of what the Court may decide on the customary law issue, because of the principle
of pacta sunt servanda. Accordingly, in the contention of the United States, the Court cannot
properly adjudicate the mutual rights and obligations of the two States when reference to their
treaty rights and obligations is barred; the Court would be adjudicating those rights and
obligations by standards other than those to which the Parties have agreed to conduct themselves
in their actual international relations.

181. The question raised by this argument is whether the provisions of the multilateral treaties in
question, particularly the United Nations Charter, diverge from the relevant rules of customary
international law to such an extent that a judgment of the Court as to the rights and obligations of
the parties under customary law, disregarding the content of the multilateral treaties binding on
the parties, would be a wholly academic exercise, and not 'susceptible of any compliance or
execution whatever' (Northern Cameroons, I.C.J. Reports 1963, p. 37). The Court does not
consider that this is the case. As already noted, on the question of the use of force, the United
States itself argues for a complete identity of the relevant rules of customary international law
with the provisions of the Charter. The Court has not accepted this extreme contention, having
found that on a number of points the areas governed by the two sources of law do not exactly
overlap, and the substantive rules in which they are framed are not identical in content
(paragraph 174 above). However, so far from having constituted a marked departure from a
customary international law which still exists unmodified, the Charter gave expression in this
field to principles already present in customary international law, and that law has in the
subsequent four decades developed under the influence of the Charter, to such an extent that a
number of rules contained in the Charter have acquired a status independent of it. The essential
consideration is that both the Charter and the customary international law flow from a common
fundamental principle outlawing the use of force in international relations. The differences which
may exist between the specific content of each are not, in the Court's view, such as to cause a
judgment confined to the field of customary international law to be ineffective or inappropriate,
or a judgment not susceptible of compliance or execution.

182. The Court concludes that it should exercise the jurisdiction conferred upon it by the United
States declaration of acceptance under Article 36, paragraph 2, of the Statute, to determine the
claims of Nicaragua based upon customary international law notwithstanding the exclusion from
its jurisdiction of disputes 'arising under' the United Nations and Organization of American
States Charters.

183. In view of this conclusion, the Court has next to consider what are the rules of customary
international law applicable to the present dispute. For this purpose, it has to direct its attention
to the practice and opinio juris of States; as the Court recently observed,

'It is of course axiomatic that the material of customary international law is to be looked for
primarily in the actual practice and opinio juris of States, even though multilateral conventions
may have an important role to play in recording and defining rules deriving from custom, or
indeed in developing them.' (Continental Shelf (Libyan Arab Jamahiriya/Malta), I.C.J. Reports
1985, pp. 29-30, para. 27.)

In this respect the Court must not lose sight of the Charter of the United Nations and that of the
Organization of American States, notwithstanding the operation of the multilateral treaty
reservation. Although the Court has no jurisdiction to determine whether the conduct of the
United States constitutes a breach of those conventions, it can and must take them into account in
ascertaining the content of the customary international law which the United States is also
alleged to have infringed.

184. The Court notes that there is in fact evidence, to be examined below, of a considerable
degree of agreement between the Parties as to the content of the customary international law
relating to the non-use of force and non- intervention. This concurrence of their views does not
however dispense the Court from having itself to ascertain what rules of customary international
law are applicable. The mere fact that States declare their recognition of certain rules is not
sufficient for the Court to consider these as being part of customary international law, and as
applicable as such to those States. Bound as it is by Article 38 of its Statute to apply, inter alia,
international custom 'as evidence of a general practice accepted as law', the Court may not
disregard the essential role played by general practice. Where two States agree to incorporate a
particular rule in a treaty, their agreement suffices to make that rule a legal one, binding upon
them; but in the field of customary international law, the shared view of the Parties as to the
content of what they regard as the rule is not enough. The Court must satisfy itself that the
existence of the rule in the opinio juris of States is confirmed by practice.
185. In the present dispute, the Court, while exercising its jurisdiction only in respect of the
application of the customary rules of non-use of force and non-intervention, cannot disregard the
fact that the Parties are bound by these rules as a matter of treaty law and of customary
international law. Furthermore, in the present case, apart from the treaty commitments binding
the Parties to the rules in question, there are various instances of their having expressed
recognition of the validity thereof as customary international law in other ways. It is therefore in
the light of this 'subjective element' - the expression used by the Court in its 1969 Judgment in
the North Sea Continental Shelf cases (I.C.J. Reports 1969, p. 44) - that the Court has to appraise
the relevant practice.

186. It is not to be expected that in the practice of States the application of the rules in question
should have been perfect, in the sense that States should have refrained, with complete
consistency, from the use of force or from intervention in each other's internal affairs. The Court
does not consider that, for a rule to be established as customary, the corresponding practice must
be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary
rules, the Court deems it sufficient that the conduct of States should, in general, be consistent
with such rules, and that instances of State conduct inconsistent with a given rule should
generally have been treated as breaches of that rule, not as indications of the recognition of a new
rule. If a State acts in a way prima facie incompatible with a recognized rule, but defends its
conduct by appealing to exceptions or justifications contained within the rule itself, then whether
or not the State's conduct is in fact justifiable on that basis, the significance of that attitude is to
confirm rather than to weaken the rule.

187. The Court must therefore determine, first, the substance of the customary rules relating to
the use of force in international relations, applicable to the dispute submitted to it. The United
States has argued that, on this crucial question of the lawfulness of the use of force in inter-State
relations, the rules of general and customary international law, and those of the United Nations
Charter, are in fact identical. In its view this identity is so complete that, as explained above
(paragraph 173), it constitutes an argument to prevent the Court from applying this customary
law, because it is indistinguishable from the multilateral treaty law which it may not apply. In its
Counter-Memorial on jurisdiction and admissibility the United States asserts that 'Article 2(4) of
the Charter is customary and general international law'. It quotes with approval an observation by
the International Law Commission to the effect that

'the great majority of international lawyers today unhesitatingly hold that Article 2, paragraph 4,
together with other provisions of the Charter, authoritatively declares the modern customary law
regarding the threat or use of force' (ILC Yearbook, 1966, Vol. II, p. 247).

The United States points out that Nicaragua has endorsed this view, since one of its counsel
asserted that 'indeed it is generally considered by publicists that Article 2, paragraph 4, of the
United Nations Charter is in this respect an embodiment of existing general principles of
international law'. And the United States concludes:

'In sum, the provisions of Article 2(4) with respect to the lawfulness of the use of force are
'modern customary law' (International Law Commission, loc. cit.) and the 'embodiment of
general principles of international law' (counsel for Nicaragua, Hearing of 25 April 1984,
morning, loc. cit.). There is no other 'customary and general international law' on which
Nicaragua can rest its claims.'

'It is, in short, inconceivable that this Court could consider the lawfulness of an alleged use of
armed force without referring to the principal source of the relevant international law - Article
2(4) of the United Nations Charter.'

As for Nicaragua, the only noteworthy shade of difference in its view lies in Nicaragua's belief
that 'in certain cases the rule of customary law will not necessarily be identical in content and
mode of application to the conventional rule'.

188. The Court thus 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. The Parties thus both take the view that the fundamental principle in this area
is expressed in the terms employed in Article 2, paragraph 4, of the United Nations Charter.
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. The Court has however
to be satisfied that there exists in customary international law an opinio juris as to the binding
character of such abstention. This opinio juris may, though with all due caution, be deduced
from, inter alia, the attitude of the Parties and the attitude 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'. The effect of consent to the text of such
resolutions cannot be understood as merely that of a 'reiteration or elucidation' of the treaty
commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance
of the validity of the rule or set of rules declared by the resolution by themselves. The principle
of non-use of force, for example, may thus be regarded as a principle of customary international
law, not as such conditioned by provisions relating to collective security, or to the facilities or
armed contingents to be provided under Article 43 of the Charter. It would therefore seem
apparent that the attitude referred to expresses an opinio juris respecting such rule (or set of
rules), to be thenceforth treated separately from the provisions, especially those of an
institutional kind, to which it is subject on the treaty-law plane of the Charter.

189. As regards the United States in particular, the weight of an expression of opinio juris can
similarly be attached to its support of the resolution of the Sixth International Conference of
American States condemning aggression (18 February 1928) and ratification of the Montevideo
Convention on Rights and Duties of States (26 December 1933), Article 11 of which imposes the
obligation not to recognize territorial acquisitions or special advantages which have been
obtained by force. Also significant is United States acceptance of the principle of the prohibition
of the use of force which is contained in the declaration on principles governing the mutual
relations of States participating in the Conference on Security and Co-operation in Europe

(Helsinki, 1 August 1975), whereby the participating States undertake to 'refrain in their mutual
relations, as well as in their international relations in general,' (emphasis added) from the threat
or use of force. Acceptance of a text in these terms confirms the existence of an opinio juris of
the participating States prohibiting the use of force in international relations.

190. A further confirmation of the validity as customary international law of the principle of the
prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter of the United
Nations may be found in the fact that it is frequently referred to in statements by State
representatives as being not only a principle of customary international law but also a
fundamental or cardinal principle of such law. The International Law Commission, in the course
of its work on the codification of the law of treaties, expressed the view that 'the law of the
Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example
of a rule in international law having the character of jus cogens' (paragraph (1) of the
commentary of the Commission to Article 50 of its draft Articles on the Law of Treaties, ILC
Yearbook, 1966-II, p. 247). Nicaragua in its Memorial on the Merits submitted in the present
case states that the principle prohibiting the use of force embodied in Article 2, paragraph 4, of
the Charter of the United Nations 'has come to be recognized as jus cogens'. The United States,
in its Counter- Memorial on the questions of jurisdiction and admissibility, found it material

to quote the views of scholars that this principle is a 'universal norm', a 'universal international
law', a 'universally recognized principle of international law', and a 'principle of jus cogens'.

191. As regards certain particular aspects of the principle in question, it will be necessary to
distinguish the most grave forms of the use of force (those constituting an armed attack) from
other less grave forms. In determining the legal rule which applies to these latter forms, the Court
can again draw on the formulations contained in the Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States in accordance with the
Charter of the United Nations (General Assembly resolution 2625 (XXV), referred to above). As
already observed, the adoption by States of this text affords an indication of their opinio juris as
to customary international law on the question. Alongside certain descriptions which may refer
to aggression, this text includes others which refer only to less grave forms of the use of force. In
particular, according to this resolution:

'Every State has the duty to refrain from the threat or use of force to violate the existing
international boundaries of another State or as a means of solving international disputes,
including territorial disputes and problems concerning frontiers of States.

.............................

States have a duty to refrain from acts of reprisal involving the use of force.

.............................

Every State has the duty to refrain from any forcible action which deprives peoples referred to in
the elaboration of the principle of equal rights and self-determination of that right to self-
determination and freedom and independence.
Every State has the duty to refrain from organizing or encouraging the organization of irregular
forces or armed bands, including mercenaries, for incursion into the territory of another State.

Every State has the duty to refrain from organizing, instigating, assisting or participating in acts
of civil strife or terrorist acts in another State or acquiescing in organized activities within its
territory directed towards the commission of such acts, when the acts referred to in the present
paragraph involve a threat or use of force.'

192. Moreover, in the part of this same resolution devoted to the principle of non-intervention in
matters within the national jurisdiction of States, a very similar rule is found:

'Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or
armed activities directed towards the violent overthrow of the regime of another State, or
interfere in civil strife in another State.'

In the context of the inter-American system, this approach can be traced back at least to 1928
(Convention on the Rights and Duties of States in the Event of Civil Strife, Art. 1 (1)); it was
confirmed by resolution 78 adopted by the General Assembly of the Organization of American
States on 21 April 1972. The operative part of this resolution reads as follows:

'The General Assembly Resolves:

1. To reiterate solemnly the need for the member states of the Organization to observe strictly the
principles of nonintervention and self-determination of peoples as a means of ensuring peaceful
coexistence among them and to refrain from committing any direct or indirect act that might
constitute a violation of those principles.

2. To reaffirm the obligation of those states to refrain from applying economic, political, or any
other type of measures to coerce another state and obtain from it advantages of any kind.

3. Similarly, to reaffirm the obligation of these states to refrain from organizing, supporting,
promoting, financing, instigation, or tolerating subversive, terrorist, or armed activities against
another state and from intervening in a civil war in another state or in its internal struggles.'

193. The general rule prohibiting force allows for certain exceptions. In view of the arguments
advanced by the United States to justify the acts of which it is accused by Nicaragua, the Court
must express a view on the content of the right of self-defence, and more particularly the right of
collective self-defence. First, with regard to the existence of this right, it notes that in the
language of Article 51 of the United Nations Charter, the inherent right (or 'droit naturel') which
any State possesses in the event of an armed attack, covers both collective and individual self-
defence. Thus, the Charter itself testifies to the existence of the right of collective self-defence in
customary international law. Moreover, just as the wording of certain General Assembly
declarations adopted by States demonstrates their recognition of the principle of the prohibition
of force as definitely a matter of customary international law, some of the wording in those
declarations operates similarly in respect of the right of self-defence (both collective and
individual). Thus, in the declaration quoted above on the Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance with the Charter of
the United Nations, the reference to the prohibition of force is followed by a paragraph stating
that:

'nothing in the foregoing paragraphs shall be construed as enlarging or diminishing in any way
the scope of the provisions of the Charter concerning cases in which the use of force is lawful'.

This resolution demonstrates that the States represented in the General Assembly regard the
exception to the prohibition of force constituted by the right of individual or collective self-
defence as already a matter of customary international law.

194. With regard to the characteristics governing the right of self-defence, since the Parties
consider the existence of this right to be established as a matter of customary international law,
they have concentrated on the conditions governing its use. In view of the circumstances in
which the dispute has arisen, reliance is placed by the Parties only on the right of self-defence in
the case of an armed attack which has already occurred, and the issue of the lawfulness of a
response to the imminent threat of armed attack has not been raised. Accordingly the Court
expresses no view on that issue. The Parties also agree in holding that whether the response to
the attack is lawful depends on observance of the criteria of the necessity and the proportionality
of the measures taken in self-defence. Since the existence of the right of collective self-defence is
established in customary international law, the Court must define the specific conditions which
may have to be met for its exercise, in addition to the conditions of necessity and proportionality
to which the Parties have referred.

195. In the case of individual self-defence, the exercise of this right is subject to the State
concerned having been the victim of an armed attack. Reliance on collective self-defence of
course does not remove the need for this. There appears now to be general agreement on the
nature of the acts which can be treated as constituting armed attacks. In particular, it may be
considered to be agreed that an armed attack must be understood as including not merely action
by regular armed forces across an international border, but also 'the sending by or on behalf of a
State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force
against another State of such gravity as to amount to' (inter alia) an actual armed attack
conducted by regular forces, 'or its substantial involvement therein'. This description, contained
in Article 3, paragraph (g), of the Definition of Aggression annexed to General Assembly
resolution 3314 (XXIX), may be taken to reflect customary international law. The Court sees no
reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending
by a State of armed bands to the territory of another State, if such an operation, because of its
scale and effects, would have been classified as an armed attack rather than as a mere frontier
incident had it been carried out by regular armed forces. But the Court does not believe that the
concept of 'armed attack' includes not only acts by armed bands where such acts occur on a
significant scale but also assistance to rebels in the form of the provision of weapons or logistical
or other support. Such assistance may be regarded as a threat or use of force, or amount to
intervention in the internal or external affairs of other States.

It is also clear that it is the State which is the victim of an armed attack which must form and
declare the view that it has been so attacked. There is no rule in customary international law
permitting another State to exercise the right of collective self-defence on the basis of its own
assessment of the situation. Where collective self-defence is invoked, it is to be expected that the
State for whose benefit this right is used will have declared itself to be the victim of an armed
attack.

196. The question remains whether the lawfulness of the use of collective self-defence by the
third State for the benefit of the attacked State also depends on a request addressed by that State
to the third State. A provision of the Charter of the Organization of American States is here in
point: and while the Court has no jurisdiction to consider that instrument as applicable to the
dispute, it may examine it to ascertain what light it throws on the content of customary
international law. The Court notes that the Organization of American States Charter includes, in
Article 3 (f), the principle that: 'an act of aggression against one American State is an act of
aggression against all the other American States' and a provision in Article 27 that:

'Every act of aggression by a State against the territorial integrity or the inviolability of the
territory or against the sovereignty or political independence of an American State shall be
considered an act of aggression against the other American States.'

197. Furthermore, by Article 3, paragraph 1, of the Inter-American Treaty of Reciprocal


Assistance, signed at Rio de Janeiro on 2 September 1947, the High- Contracting Parties

'agree that an armed attack by any State against an American State shall be considered as an
attack against all the American States and, consequently, each one of the said Contracting Parties
undertakes to assist in meeting the attack in the exercise of the inherent right of individual or
collective self-defence recognized by Article 51 of the Charter of the United Nations';

and under paragraph 2 of that Article,

'On the request of the State or States directly attacked and until the decision of the Organ of
Consultation of the Inter-American System, each one of the Contracting Parties may determine
the immediate measures which it may individually take in fulfilment of the obligation contained
in the preceding paragraph and in accordance with the principle of continental solidarity.'

(The 1947 Rio Treaty was modified by the 1975 Protocol of San Jose, Costa Rica, but that
Protocol is not yet in force.)

198. The Court observes that the Treaty of Rio de Janeiro provides that measures of collective
self-defence taken by each State are decided 'on the request of the State or States directly
attacked'. It is significant that this requirement of a request on the part of the attacked State
appears in the treaty particularly devoted to these matters of mutual assistance; it is not found in
the more general text (the Charter of the Organization of American States), but Article 28 of that
Charter provides for the application of the measures and procedures laid down in 'the special
treaties on the subject'.

199. At all events, the Court finds that in customary international law, whether of a general kind
or that particular to the inter-American legal system, there is no rule permitting the exercise of
collective self-defence in the absence of a request by the State which regards itself as the victim
of an armed attack. The Court concludes that the requirement of a request by the State which is
the victim of the alleged attack is additional to the requirement that such a State should have
declared itself to have been attacked.

200. At this point, the Court may consider whether in customary international law there is any
requirement corresponding to that found in the treaty law of the United Nations Charter, by
which the State claiming to use the right of individual or collective self-defence must report to an
international body, empowered to determine the conformity with international law of the
measures which the State is seeking to justify on that basis. Thus Article 51 of the United
Nations Charter requires that measures taken by States in exercise of this right of self-defence
must be 'immediately reported' to the Security Council. As the Court has observed above
(paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in customary international
law, may well be so unencumbered with the conditions and modalities surrounding it in the
treaty. Whatever influence the Charter may have had on customary international law in these
matters, it is clear that in customary international law it is not a condition of the lawfulness of the
use of force in self-defence that a procedure so closely dependent on the content of a treaty
commitment and of the institutions established by it, should have been followed. On the other
hand, if self-defence is advanced as a justification for measures which would otherwise be in
breach both of the principle of customary international law and of that contained in the Charter,
it is to be expected that the conditions of the Charter should be respected. Thus for the purpose of
enquiry into the customary law position, the absence of a report may be one of the factors
indicating whether the State in question was itself convinced that it was acting in self-defence.

201. To justify certain activities involving the use of force, the United States has relied solely on
the exercise of its right of collective self-defence. However the Court, having regard particularly
to the non- participation of the United States in the merits phase, considers that it should enquire
whether customary international law, applicable to the present dispute, may contain other rules
which may exclude the unlawfulness of such activities. It does not, however, see any need to
reopen the question of the conditions governing the exercise of the right of individual self-
defence, which have already been examined in connection with collective self-defence. On the
other hand, the Court must enquire whether there is any justification for the activities in question,
to be found not in the right of collective self-defence against an armed attack, but in the right to
take counter-measures in response to conduct of Nicaragua which is not alleged to constitute an
armed attack. It will examine this point in connection with an analysis of the principle of non-
intervention in customary international law.

202. The principle of non-intervention involves the right of every sovereign State to conduct its
affairs without outside interference; though examples of trespass against this principle are not
infrequent, the Court considers that it is part and parcel of customary international law. As the
Court has observed: 'Between independent States, respect for territorial sovereignty is an
essential foundation of international relations' (I.C.J. Reports 1949, p. 35), and international law
requires political integrity also to be respected. Expressions of an opinio juris regarding the
existence of the principle of non- intervention in customary international law are numerous and
not difficult to find. Of course, statements whereby States avow their recognition of the
principles of international law set forth in the United Nations Charter cannot strictly be
interpreted as applying to the principle of non-intervention by States in the internal and external
affairs of other States, since this principle is not, as such, spelt out in the Charter. But it was
never intended that the Charter should embody written confirmation of every essential principle
of international law in force. The existence in the opinio juris of States of the principle of non-
intervention is backed by established and substantial practice. It has moreover been presented as
a corollary of the principle of the sovereign equality of States. A particular instance of this is
General Assembly resolution 2625 (XXV), the Declaration on the Principles of International
Law concerning Friendly Relations and Co-operation among States. In the Corfu Channel case,
when a State claimed a right of intervention in order to secure evidence in the territory of another
State for submission to an international tribunal (I.C.J. Reports 1949, p. 34), the Court observed
that:

'the alleged right of intervention as the manifestation of a policy of force, such as has, in the past,
given rise to most serious abuses and such as cannot, whatever be the present defects in
international organization, find a place in international law. Intervention is perhaps still less
admissible in the particular form it would take here; for, from the nature of things, it would be
reserved for the most powerful States, and might easily lead to perverting the administration of
international justice itself.' (I.C.J. Reports 1949, p. 35.)

203. The principle has since been reflected in numerous declarations adopted by international
organizations and conferences in which the United States and Nicaragua have participated, e.g.,
General Assembly resolution 2131 (XX), the Declaration on the Inadmissibility of Intervention
in the Domestic Affairs of States and the Protection of their Independence and Sovereignty. It is
true that the United States, while it voted in favour of General Assembly resolution 2131 (XX),
also declared at the time of its adoption in the First Committee that it considered the declaration
in that resolution to be 'only a statement of political intention and not a formulation of law'
(Official Records of the General Assembly, Twentieth Session, First Committee, A/C.1/SR.1423,
p. 436). However, the essentials of resolution 2131 (XX) are repeated in the Declaration
approved by resolution 2625 (XXV), which set out principles which the General Assembly
declared to be 'basic principles' of international law, and on the adoption of which no analogous
statement was made by the United States representative.

204. As regards inter-American relations, attention may be drawn to, for example, the United
States reservation to the Montevideo Convention on Rights and Duties of States (26 December
1933), declaring the opposition of the United States Government to 'interference with the
freedom, the sovereignty or other internal affairs, or processes of the Governments of other
nations'; or the ratification by the United States of the Additional Protocol relative to Non-
Intervention (23 December 1936). Among more recent texts, mention may be made of
resolutions AG/RES.78 and AG/RES.128 of the General Assembly of the Organization of
American States. In a different context, the United States expressly accepted the principles set
forth in the declaration, to which reference has already been made, appearing in the Final Act of
the Conference on Security and Co-operation in Europe (Helsinki, 1 August 1975), including an
elaborate statement of the principle of non-intervention; while these principles were presented as
applying to the mutual relations among the participating States, it can be inferred that the text
testifies to the existence, and the acceptance by the United States, of a customary principle which
has universal application.
205. Notwithstanding the multiplicity of declarations by States accepting the principle of non-
intervention, there remain two questions: first, what is the exact content of the principle so
accepted, and secondly, is the practice sufficiently in conformity with it for this to be a rule of
customary international law? As regards the first problem - that of the content of the principle of
non-intervention - the Court will define only those aspects of the principle which appear to be
relevant to the resolution of the dispute. In this respect it notes that, in view of the generally
accepted formulations, the principle forbids all States or groups of States to intervene directly or
indirectly in internal or external affairs of other States. A prohibited intervention must
accordingly be one bearing on matters in which each State is permitted, by the principle of State
sovereignty, to decide freely. One of these is the choice of a political, economic, social and
cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses
methods of coercion in regard to such choices, which must remain free ones. The element of
coercion, which defines, and indeed forms the very essence of, prohibited intervention, is
particularly obvious in the case of an intervention which uses force, either in the direct form of
military action, or in the indirect form of support for subversive or terrorist armed activities
within another State. As noted above (paragraph 191), General Assembly resolution 2625 (XXV)
equates assistance of this kind with the use of force by the assisting State when the acts
committed in another State 'involve a threat or use of force'. These forms of action are therefore
wrongful in the light of both the principle of non-use of force, and that of non-intervention. In
view of the nature of Nicaragua's complaints against the United States, and those expressed by
the United States in regard to Nicaragua's conduct towards El Salvador, it is primarily acts of
intervention of this kind with which the Court is concerned in the present case.

206. However, before reaching a conclusion on the nature of prohibited intervention, the Court
must be satisfied that State practice justifies it.

There have been in recent years a number of instances of foreign intervention for the benefit of
forces opposed to the government of another State. The Court is not here concerned with the
process of decolonization; this question is not in issue in the present case. It has to consider
whether there might be indications of a practice illustrative of belief in a kind of general right for
States to intervene, directly or indirectly, with or without armed force, in support of an internal
opposition in another State, whose cause appeared particularly worthy by reason of the political
and moral values with which it was identified. For such a general right to come into existence
would involve a fundamental modification of the customary law principle of non-intervention.

207. In considering the instances of the conduct above described, the Court has to emphasize
that, as was observed in the North Sea Continental Shelf cases, for a new customary rule to be
formed, not only must the acts concerned 'amount to a settled practice', but they must be
accompanied by the opinio juris sive necessitatis. Either the States taking such action or other
States in a position to react to it, must have behaved so that their conduct is 'evidence of a belief
that this practice is rendered obligatory by the existence of a rule of law requiring it. The need
for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the
opinio juris sive necessitatis.' (I.C.J. Reports 1969, p. 44, para. 77.)

The Court has no jurisdiction to rule upon the conformity with international law of any conduct
of States not parties to the present dispute, or of conduct of the Parties unconnected with the
dispute; nor has it authority to ascribe to States legal views which they do not themselves
advance. The significance for the Court of cases of State conduct prima facie inconsistent with
the principle of non-intervention lies in the nature of the ground offered as justification. Reliance
by a State on a novel right or an unprecedented exception to the principle might, if shared in
principle by other States, tend towards a modification of customary international law. In fact
however the Court finds that States have not justified their conduct by reference to a new right of
intervention or a new exception to the principle of its prohibition. The United States authorities
have on some occasions clearly stated their grounds for intervening in the affairs of a foreign
State for reasons connected with, for example, the domestic policies of that country, its ideology,
the level of its armaments, or the direction of its foreign policy. But these were statements of
international policy, and not an assertion of rules of existing international law.

208. In particular, as regards the conduct towards Nicaragua which is the subject of the present
case, the United States has not claimed that its intervention, which it justified in this way on the
political level, was also justified on the legal level, alleging the exercise of a new right of
intervention regarded by the United States as existing in such circumstances.

As mentioned above, the United States has, on the legal plane, justified its intervention expressly
and solely by reference to the 'classic' rules involved, namely, collective self-defence against an
armed attack. Nicaragua, for its part, has often expressed its solidarity and sympathy with the
opposition in various States, especially in El Salvador. But Nicaragua too has not argued that this
was a legal basis for an intervention, let alone an intervention involving the use of force.

209. The Court therefore finds that no such general right of intervention, in support of an
opposition within another State, exists in contemporary international law. The Court concludes
that acts constituting a breach of the customary principle of non-intervention will also, if they
directly or indirectly involve the use of force, constitute a breach of the principle of non-use of
force in international relations.

210. When dealing with the rule of the prohibition of the use of force, the Court considered the
exception to it constituted by the exercise of the right of collective self-defence in the event of
armed attack. Similarly, it must now consider the following question: if one State acts towards
another State in breach of the principle of non-intervention, may a third State lawfully take such
action by way of counter-measures against the first State as would otherwise constitute an
intervention in its internal affairs? A right to act in this way in the case of intervention would be
analogous to the right of collective self-defence in the case of an armed attack, but both the act
which gives rise to the reaction, and that reaction itself, would in principle be less grave. Since
the Court is here dealing with a dispute in which a wrongful use of force is alleged, it has
primarily to consider whether a State has a right to respond to intervention with intervention
going so far as to justify a use of force in reaction to measures which do not constitute an armed
attack but may nevertheless involve a use of force. The question is itself undeniably relevant
from the theoretical viewpoint. However, since the Court is bound to confine its decision to those
points of law which are essential to the settlement of the dispute before it, it is not for the Court
here to determine what direct reactions are lawfully open to a State which considers itself the
victim of another State's acts of intervention, possibly involving the use of force. Hence it has
not to determine whether, in the event of Nicaragua's having committed any such acts against El
Salvador, the latter was lawfully entitled to take any particular counter-measure. It might
however be suggested that, in such a situation, the United States might have been permitted to
intervene in Nicaragua in the exercise of some right analogous to the right of collective self-
defence, one which might be resorted to in a case of intervention short of armed attack.

211. The Court has recalled above (paragraphs 193 to 195) that for one State to use force against
another, on the ground that that State has committed a wrongful act of force against a third State,
is regarded as lawful, by way of exception, only when the wrongful act provoking the response
was an armed attack. Thus the lawfulness of the use of force by a State in response to a wrongful
act of which it has not itself been the victim is not admitted when this wrongful act is not an
armed attack. In the view of the Court, under international law in force today - whether
customary international law or that of the United Nations system - States do not have a right of
'collective' armed response to acts which do not constitute an 'armed attack'. Furthermore, the
Court has to recall that the United States itself is relying on the 'inherent right of self-defence'
(paragraph 126 above), but apparently does not claim that any such right exists as would, in
respect of intervention, operate in the same way as the right of collective self-defence in respect
of an armed attack. In the discharge of its duty under Article 53 of the Statute, the Court has
nevertheless had to consider whether such a right might exist; but in doing so it may take note of
the absence of any such claim by the United States as an indication of opinio juris.

212. The Court should now mention the principle of respect for State sovereignty, which in
international law is of course closely linked with the principles of the prohibition of the use of
force and of non-intervention. The basic legal concept of State sovereignty in customary
international law, expressed in, inter alia, Article 2, paragraph 1, of the United Nations Charter,
extends to the internal waters and territorial sea of every State and to the air space above its
territory. As to superjacent air space, the 1944 Chicago Convention on Civil Aviation (Art. 1)
reproduces the established principle of the complete and exclusive sovereignty of a State over the
air space above its territory. That convention, in conjunction with the 1958 Geneva Convention
on the Territorial Sea, further specifies that the sovereignty of the coastal State extends to the
territorial sea and to the air space above it, as does the United Nations Convention on the Law of
the Sea adopted on 10 December 1982. The Court has no doubt that these prescriptions of treaty-
law merely respond to firmly established and longstanding tenets of customary international law.

213. The duty of every State to respect the territorial sovereignty of others is to be considered for
the appraisal to be made of the facts relating to the mining which occurred along Nicaragua's
coasts. The legal rules in the light of which these acts of mining should be judged depend upon
where they took place. The laying of mines within the ports of another State is governed by the
law relating to internal waters, which are subject to the sovereignty of the coastal State. The
position is similar as regards mines placed in the territorial sea. It is therefore the sovereignty of
the coastal State which is affected in such cases. It is also by virtue of its sovereignty that the
coastal State may regulate access to its ports.

214. On the other hand, it is true that in order to enjoy access to ports, foreign vessels possess a
customary right of innocent passage in territorial waters for the purposes of entering or leaving
internal waters; Article 18, paragraph 1 (b), of the United Nations Convention on the Law of the
Sea of 10 December 1982, does no more than codify customary international law on this point.
Since freedom of navigation is guaranteed, first in the exclusive economic zones which may
exist beyond territorial waters (Art. 58 of the Convention), and secondly, beyond territorial
waters and on the high seas (Art. 87), it follows that any State which enjoys a right of access to
ports for its ships also enjoys all the freedom necessary for maritime navigation. It may therefore
be said that, if this right of access to the port is hindered by the laying of mines by another State,
what is infringed is the freedom of communications and of maritime commerce. At all events, it
is certain that interference with navigation in these areas prejudices both the sovereignty of the
coastal State over its internal waters, and the right of free access enjoyed by foreign ships.

215. The Court has noted above (paragraph 77 in fine) that the United States did not issue any
warning or notification of the presence of the mines which had been laid in or near the ports of
Nicaragua. Yet even in time of war, the Convention relative to the laying of automatic submarine
contact mines of 18 October 1907 (the Hague Convention No. VIII) provides that 'every possible
precaution must be taken for the security of peaceful shipping' and belligerents are bound

'to notify the danger zones as soon as military exigencies permit, by a notice addressed to ship
owners, which must also be communicated to the Governments through the diplomatic channel'
(Art. 3). Neutral Powers which lay mines off their own coasts must issue a similar notification, in
advance (Art. 4). It has already been made clear above that in peacetime for one State to lay
mines in the internal or territorial waters of another is an unlawful act; but in addition, if a State
lays mines in any waters whatever in which the vessels of another State have rights of access or
passage, and fails to give any warning or notification whatsoever, in disregard of the security of
peaceful shipping, it commits a breach of the principles of humanitarian law underlying the
specific provisions of Convention No. VIII of 1907. Those principles were expressed by the
Court in the Corfu Channel case as follows:

'certain general and well recognized principles, namely: elementary considerations of humanity,
even more exacting in peace than in war' (I.C.J. Reports 1949, p. 22).

216. This last consideration leads the Court on to examination of the international humanitarian
law applicable to the dispute. Clearly, use of force may in some circumstances raise questions of
such law. Nicaragua has in the present proceedings not expressly invoked the provisions of
international humanitarian law as such, even though, as noted above (paragraph 113), it has
complained of acts committed on its territory which would appear to be breaches of the
provisions of such law. In the submissions in its Application it has expressly charged

'That the United States, in breach of its obligation under general and customary international law,
has killed, wounded and kidnapped and is killing, wounding and kidnapping citizens of
Nicaragua.' (Application, 26 (f).)

The Court has already indicated (paragraph 115) that the evidence available is insufficient for the
purpose of attributing to the United States the acts committed by the contras in the course of their
military or paramilitary operations in Nicaragua; accordingly, this submission has to be rejected.
The question however remains of the law applicable to the acts of the United States in relation to
the activities of the contras, in particular the production and dissemination of the manual on
psychological operations described in paragraphs 117 to 122 above; as already explained
(paragraph 116), this is a different question from that of the violations of humanitarian law of
which the contras may or may not have been guilty.

217. The Court observes that Nicaragua, which has invoked a number of multilateral treaties, has
refrained from making reference to the four Geneva Conventions of 12 August 1949, to which
both Nicaragua and the United States are parties. Thus at the time when the Court was seised of
the dispute, that dispute could be considered not to 'arise', to use the wording of the United States
multilateral treaty reservation, under any of these Geneva Conventions. The Court did not
therefore have to consider whether that reservation might be a bar to the Court treating the
relevant provisions of these Conventions as applicable. However, if the Court were on its own
initiative to find it appropriate to apply these Conventions, as such, for the settlement of the
dispute, it could be argued that the Court would be treating it as a dispute arising' under them; on
that basis, it would have to consider whether any State party to those Conventions would be
'affected' by the decision, for the purposes of the United States multilateral treaty reservation.

218. The Court however sees no need to take a position on that matter, since in its view the
conduct of the United States may be judged according to the fundamental general principles of
humanitarian law; in its view, the Geneva Conventions are in some respects a development, and
in other respects no more than the expression, of such principles. It is significant in this respect
that, according to the terms of the Conventions, the denunciation of one of them

'shall in no way impair the obligations which the Parties to the conflict shall remain bound to
fulfil by virtue of the principles of the law of nations, as they result from the usages established
among civilized peoples, from the laws of humanity and the dictates of the public conscience'
(Convention I, Art. 63; Convention II, Art. 62; Convention III, Art. 142; Convention IV, Art.
158).

Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain
rules to be applied in the armed conflicts of a non- international character. There is no doubt that,
in the event of international armed conflicts, these rules also constitute a minimum yardstick, in
addition to the more elaborate rules which are also to apply to international conflicts; and they
are rules which, in the Court's opinion, reflect what the Court in 1949 called 'elementary
considerations of humanity' (Corfu Channel, Merits, I.C.J. Reports 1949, p. 22; paragraph 215
above). The Court may therefore find them applicable to the present dispute, and is thus not
required to decide what role the United States multilateral treaty reservation might otherwise
play in regard to the treaties in question.

219. The conflict between the contras' forces and those of the Government of Nicaragua is an
armed conflict which is 'not of an international character'. The acts of the contras towards the
Nicaraguan Government are therefore governed by the law applicable to conflicts of that
character; whereas the actions of the United States in and against Nicaragua fall under the legal
rules relating to international conflicts. Because the minimum rules applicable to international
and to non-international conflicts are identical, there is no need to address the question whether
those actions must be looked at in the context of the rules which operate for the one or for the
other category of conflict. The relevant principles are to be looked for in the provisions of Article
3 of each of the four Conventions of 12 August 1949, the text of which, identical in each
Convention, expressly refers to conflicts not having an international character.

220. The Court considers that there is an obligation on the United States Government, in the
terms of Article 1 of the Geneva Conventions, to 'respect' the Conventions and even 'to ensure
respect' for them 'in all circumstances', since such an obligation does not derive only from the
Conventions themselves, but from the general principles of humanitarian law to which the
Conventions merely give specific expression. The United States is thus under an obligation not
to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the
provisions of Article 3 common to the four 1949 Geneva Conventions, which reads as follows:

'In the case of armed conflict not of an international character occurring in the territory of one of
the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum,
the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have
laid down their arms and those placed hors de combat by sickness, wounds, detention, or any
other cause, shall in all circumstances be treated humanely, without any *115

adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other
similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place
whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and
torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court affording all the judicial guarantees which are
recognized as indispensable by civilized peoples.

(2) the wounded and sick shall be collected and cared for . . .

The Parties to the conflict should further endeavour to bring into force, by means of special
agreements, all or part of the other provisions of the present Convention . . .'

221. In its Judgment of 26 November 1984, the Court concluded that, in so far as the claims
presented in Nicaragua's Application revealed the existence of a dispute as to the interpretation
or application of the Articles of the 1956 Treaty of Friendship, Commerce and Navigation
between the Parties mentioned in paragraph 82 of that Judgment (that is, Arts. XIX, XIV, XVII,
XX, I), it had jurisdiction to deal with them under Article XXIV, paragraph 2, of that treaty.
Having thus established its jurisdiction to entertain the dispute between the Parties in respect of
the interpretation and application of the Treaty in question, the Court must determine the
meaning of the various provisions which are relevant for its judgment. In this connection, the
Court has in particular to ascertain the scope of Article XXI, paragraphs 1 (c) and 1 (d), of the
Treaty. According to that clause

'the present Treaty shall not preclude the application of measures:

...........................

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

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

In the Spanish text of the Treaty (equally authentic with the English text) the last phrase is
rendered as 'sus intereses esenciales y seguridad'.

222. This article cannot be interpreted as removing the present dispute as to the scope of the
Treaty from the Court's jurisdiction. Being itself an article of the treaty, it is covered by the
provision in Article XXIV that any dispute about the 'interpretation or application' of the Treaty
lies within the Court's jurisdiction. Article XXI defines the instances in which the Treaty itself
provides for exceptions to the generality of its other provisions, but it by no means removes the
interpretation and application of that article from the jurisdiction of the Court as contemplated in
Article XXIV. That the Court has jurisdiction to determine whether measures taken by one of the
Parties fall within such an exception, is also clear a contrario from the fact that the text of Article
XXI of the Treaty does not employ the wording which was already to be found in Article XXI of
the General Agreement on Tariffs and Trade. This provision of GATT, contemplating exceptions
to the normal implementation of the General Agreement, stipulates that the Agreement is not to
be construed to prevent any contracting party from taking any action which it 'considers
necessary for the protection of its essential security interests', in such fields as nuclear fission,
arms, etc. The 1956 Treaty, on the contrary, speaks simply of 'necessary' measures, not of those
considered by a party to be such.

223. The Court will therefore determine the substantial nature of the two categories of measures
contemplated by this Article and which are not barred by the Treaty. No comment is required at
this stage on subparagraph 1 (c) of Article XXI. As to subparagraph 1 (d), clearly 'measures ...
necessary to fulfill the obligations of a Party for the maintenance or restoration of international
peace and security' must signify measures which the State in question must take in performance
of an international commitment of which any evasion constitutes a breach. A commitment of this
kind is accepted by Members of the United Nations in respect of Security Council decisions
taken on the basis of Chapter VII of the United Nations Charter (Art. 25), or, for members of the
Organization of American States, in respect of decisions taken by the Organ of Consultation of
the Inter-American system, under Articles 3 and 20 of the Inter-American Treaty of Reciprocal
Assistance (Rio de Janeiro, 1947). The Court does not believe that this provision of the 1956
Treaty can apply to the eventuality of the exercise of the right of individual or collective self-
defence.

224. On the other hand, action taken in self-defence, individual or collective, might be
considered as part of the wider category of measures qualified in Article XXI as 'necessary to
protect' the 'essential security interests' of a party. In its Counter-Memorial on jurisdiction and
admissibility, the United States contended that: 'Any possible doubts as to the applicability of the
FCN Treaty to Nicaragua's claims is dispelled by Article XXI of the Treaty ...' After quoting
paragraph 1 (d) (set out in paragraph 221 above), the Counter-Memorial continues:

'Article XXI has been described by the Senate Foreign Relations Committee as containing 'the
usual exceptions relating ... to traffic in arms, ammunition and implements of war and to
measures for collective or individual self- defense'.'

It is difficult to deny that self-defence against an armed attack corresponds to measures necessary
to protect essential security interests. But the concept of essential security interests certainly
extends beyond the concept of an armed attack, and has been subject to very broad
interpretations in the past. The Court has therefore to assess whether the risk run by these
'essential security interests' is reasonable, and secondly, whether the measures presented as being
designed to protect these interests are not merely useful but necessary'.

225. Since Article XXI of the 1956 Treaty contains a power for each of the parties to derogate
from the other provisions of the Treaty, the possibility of invoking the clauses of that Article
must be considered once it is apparent that certain forms of conduct by the United States would
otherwise be in conflict with the relevant provisions of the Treaty. The appraisal of the conduct
of the United States in the light of these relevant provisions of the Treaty pertains to the
application of the law rather than to its interpretation, and the Court will therefore undertake this
in the context of its general evaluation of the facts established in relation to the applicable law.

226. The Court, having outlined both the facts of the case as proved by the evidence before it,
and the general rules of international law which appear to it to be in issue as a result of these
facts, and the applicable treaty-law, has now to appraise the facts in relation to the legal rules
applicable. In so far as acts of the Respondent may appear to constitute violations of the relevant
rules of law, the Court will then have to determine whether there are present any circumstances
excluding unlawfulness, or whether such acts may be justified upon any other ground.

227. The Court will first appraise the facts in the light of the principle of the non-use of force,
examined in paragraphs 187 to 200 above. What is unlawful, in accordance with that principle, is
recourse to either the threat or the use of force against the territorial integrity or political
independence of any State. For the most part, the complaints by Nicaragua are of the actual use
of force against it by the United States. Of the acts which the Court has found imputable to the
Government of the United States, the following are relevant in this respect:

- the laying of mines in Nicaraguan internal or territorial waters in early 1984 (paragraph 80
above);
- certain attacks on Nicaraguan ports, oil installations and a naval base (paragraphs 81 and 86
above).

These activities constitute infringements of the principle of the prohibition of the use of force,
defined earlier, unless they are justified by circumstances which exclude their unlawfulness, a
question now to be examined. The Court has also found (paragraph 92) the existence of military
manoeuvres held by the United States near the Nicaraguan borders; and Nicaragua has made
some suggestion that this constituted a 'threat of force', which is equally forbidden by the
principle of non-use of force. The Court is however not satisfied that the manoeuvres complained
of, in the circumstances in which they were held, constituted on the part of the United States a
breach, as against Nicaragua, of the principle forbidding recourse to the threat or use of force.

228. Nicaragua has also claimed that the United States has violated Article 2, paragraph 4, of the
Charter, and has used force against Nicaragua in breach of its obligation under customary
international law in as much as it has engaged in 'recruiting, training, arming, equipping,
financing, supplying and otherwise encouraging, supporting, aiding, and directing military and
paramilitary actions in and against Nicaragua' (Application, para. 26 (a) and (c)).

So far as the claim concerns breach of the Charter, it is excluded from the Court's jurisdiction by
the multilateral treaty reservation. As to the claim that United States activities in relation to the
contras constitute a breach of the customary international law principle of the non-use of force,
the Court finds that, subject to the question whether the action of the United States might be
justified as an exercise of the right of self-defence, the United States has committed a prima facie
violation of that principle by its assistance to the contras in Nicaragua, by 'organizing or
encouraging the organization of irregular forces or armed bands ... for incursion into the territory
of another State', and 'participating in acts of civil strife ... in another State', in the terms of
General Assembly resolution 2625 (XXV). According to that resolution, participation of this
kind is contrary to the principle of the prohibition of the use of force when the acts of civil strife
referred to 'involve a threat or use of force'. In the view of the Court, while the arming and
training of the contras can certainly be said to involve the threat or use of force against
Nicaragua, this is not necessarily so in respect of all the assistance given by the United States
Government. In particular, the Court considers that the mere supply of funds to the contras, while
undoubtedly an act of intervention in the internal affairs of Nicaragua, as will be explained
below, does not in itself amount to a use of force.

229. The Court must thus consider whether, as the Respondent claims, the acts in question of the
United States are justified by the exercise of its right of collective self-defence against an armed
attack. The Court must therefore establish whether the circumstances required for the exercise of
this right of self-defence are present and, if so, whether the steps taken by the United States
actually correspond to the requirements of international law. For the Court to conclude that the
United States was lawfully exercising its right of collective self-defence, it must first find that
Nicaragua engaged in an armed attack against El Salvador, Honduras or Costa Rica.

230. As regards El Salvador, the Court has found (paragraph 160 above) that it is satisfied that
between July 1979 and the early months of 1981, an intermittent flow of arms was routed via the
territory of Nicaragua to the armed opposition in that country. The Court was not however
satisfied that assistance has reached the Salvadorian armed opposition, on a scale of any
significance, since the early months of 1981, or that the Government of Nicaragua was
responsible for any flow of arms at either period. Even assuming that the supply of arms to the
opposition in El Salvador could be treated as imputable to the Government of Nicaragua, to
justify invocation of the right of collective self-defence in customary international law, it would
have to be equated with an armed attack by Nicaragua on El Salvador. As stated above, the Court
is unable to consider that, in customary international law, the provision of arms to the opposition
in another State constitutes an armed attack on that State. Even at a time when the arms flow was
at its peak, and again assuming the participation of the Nicaraguan Government, that would not
constitute such armed attack.

231. Turning to Honduras and Costa Rica, the Court has also stated (paragraph 164 above) that it
should find established that certain transborder incursions into the territory of those two States,
in 1982, 1983 and 1984, were imputable to the Government of Nicaragua. Very little information
is however available to the Court as to the circumstances of these incursions or their possible
motivations, which renders it difficult to decide whether they may be treated for legal purposes
as amounting, singly or collectively, to an 'armed attack' by Nicaragua on either or both States.
The Court notes that during the Security Council debate in March/April 1984, the representative
of Costa Rica made no accusation of an armed attack, emphasizing merely his country's
neutrality and support for the Contadora process (S/PV.2529, pp. 13-23); the representative of
Honduras however stated that

'my country is the object of aggression made manifest through a number of incidents by
Nicaragua against our territorial integrity and civilian population' (ibid., p. 37).

There are however other considerations which justify the Court in finding that neither these
incursions, nor the alleged supply of arms to the opposition in El Salvador, may be relied on as
justifying the exercise of the right of collective self-defence.

232. The exercise of the right of collective self-defence presupposes that an armed attack has
occurred; and it is evident that it is the victim State, being the most directly aware of that fact,
which is likely to draw general attention to its plight. It is also evident that if the victim State
wishes another State to come to its help in the exercise of the right of collective self-defence, it
will normally make an express request to that effect. Thus in the present instance, the Court is
entitled to take account, in judging the asserted justification of the exercise of collective self-
defence by the United States, of the actual conduct of El Salvador, Honduras and Costa Rica at
the relevant time, as indicative of a belief by the State in question that it was the victim of an
armed attack by Nicaragua, and of the making of a request by the victim State to the United
States for help in the exercise of collective self-defence.

233. The Court has seen no evidence that the conduct of those States was consistent with such a
situation, either at the time when the United States first embarked on the activities which were
allegedly justified by self- defence, or indeed for a long period subsequently. So far as El
Salvador is concerned, it appears to the Court that while El Salvador did in fact officially declare
itself the victim of an armed attack, and did ask for the United States to exercise its right of
collective self-defence, this occurred only on a date much later than the commencement of the
United States activities which were allegedly justified by this request. The Court notes that on 3
April 1984, the representative of El Salvador before the United Nations Security Council, while
complaining of the 'open foreign intervention practised by Nicaragua in our internal affairs'
(S/PV.2528, p. 58), refrained from stating that El Salvador had been subjected to armed attack,
and made no mention of the right of collective self-defence which it had supposedly asked the
United States to exercise. Nor was this mentioned when El Salvador addressed a letter to the
Court in April 1984, in connection with Nicaragua's complaint against the United States. It was
only in its Declaration of Intervention filed on 15 August 1984, that El Salvador referred to
requests addressed at various dates to the United States for the latter to exercise its right of
collective self-defence (para. XII), asserting on this occasion that it had been the victim of
aggression from Nicaragua 'since at least 1980'. In that Declaration, El Salvador affirmed that
initially it had 'not wanted to present any accusation or allegation [against Nicaragua] to any of
the jurisdictions to which we have a right to apply', since it sought 'a solution of understanding
and mutual respect' (para. III).

234. As to Honduras and Costa Rica, they also were prompted by the institution of proceedings
in this case to address communications to the Court; in neither of these is there mention of armed
attack or collective self-defence. As has already been noted (paragraph 231 above), Honduras in
the Security Council in 1984 asserted that Nicaragua had engaged in aggression against it, but
did not mention that a request had consequently been made to the United States for assistance by
way of collective self-defence. On the contrary, the representative of Honduras emphasized that
the matter before the Security Council 'is a Central American problem, without exception, and it
must be solved regionally' (S/PV.2529, p. 38), i.e., through the Contadora process. The
representative of Costa Rica also made no reference to collective self-defence. Nor, it may be
noted, did the representative of the United States assert during that debate that it had acted in
response to requests for assistance in that context.

235. There is also an aspect of the conduct of the United States which the Court is entitled to take
into account as indicative of the view of that State on the question of the existence of an armed
attack. At no time, up to the present, has the United States Government addressed to the Security
Council, in connection with the matters the subject of the present case, the report which is
required by Article 51 of the United Nations Charter in respect of measures which a State
believes itself bound to take when it exercises the right of individual or collective self-defence.
The Court, whose decision has to be made on the basis of customary international law, has
already observed that in the context of that law, the reporting obligation enshrined in Article 51
of the Charter of the United Nations does not exist. It does not therefore treat the absence of a
report on the part of the United States as the breach of an undertaking forming part of the
customary international law applicable to the present dispute. But the Court is justified in
observing that this conduct of the United States hardly conforms with the latter's avowed
conviction that it was acting in the context of collective self-defence as consecrated by Article 51
of the Charter.This fact is all the more noteworthy because, in the Security Council, the United
States has itself taken the view that failure to observe the requirement to make a report
contradicted a State's claim to be acting on the basis of collective self-defence (S/PV.2187).

236. Similarly, while no strict legal conclusion may be drawn from the date of El Salvador's
announcement that it was the victim of an armed attack, and the date of its official request
addressed to the United States concerning the exercise of collective self-defence, those dates
have a significance as evidence of El Salvador's view of the situation. The declaration and the
request of El Salvador, made publicly for the first time in August 1984, do not support the
contention that in 1981 there was an armed attack capable of serving as a legal foundation for
United States activities which began in the second half of that year. The states concerned did not
behave as though there were an armed attack at the time when the activities attributed by the
United States to Nicaragua, without actually constituting such an attack, were nevertheless the
most accentuated; they did so behave only at a time when these facts fell furthest short of what
would be required for the Court to take the view that an armed attack existed on the part of
Nicaragua against El Salvador.

237. Since the Court has found that the condition sine qua non required for the exercise of the
right of collective self-defence by the United States is not fulfilled in this case, the appraisal of
the United States activities in relation to the criteria of necessity and proportionality takes on a
different significance. As a result of this conclusion of the Court, even if the United States
activities in question had been carried on in strict compliance with the canons of necessity and
proportionality, they would not thereby become lawful. If however they were not, this may
constitute an additional ground of wrongfulness. On the question of necessity, the Court observes
that the United States measures taken in December 1981 (or, at the earliest, March of that year -
paragraph 93 above) cannot be said to correspond to a 'necessity' justifying the United States
action against Nicaragua on the basis of assistance given by Nicaragua to the armed opposition
in El Salvador. First, these measures were only taken, and began to produce their effects, several
months after the major offensive of the armed opposition against the Government of El Salvador
had been completely repulsed (January 1981), and the actions of the opposition considerably
reduced in consequence. Thus it was possible to eliminate the main danger to the Salvadorian
Government without the United States embarking on activities in and against Nicaragua.
Accordingly, it cannot be held that these activities were undertaken in the light of necessity.
Whether or not the assistance to the contras might meet the criterion of proportionality, the Court
cannot regard the United States activities summarized in paragraphs 80, 81 and 86, i.e., those
relating to the mining of the Nicaraguan ports and the attacks on ports, oil installations, etc., as
satisfying that criterion. Whatever uncertainty may exist as to the exact scale of the aid received
by the Salvadorian armed opposition from Nicaragua, it is clear that these latter United States
activities in question could not have been proportionate to that aid. Finally on this point, the
Court must also observe that the reaction of the United States in the context of what it regarded
as self-defence was continued long after the period in which any presumed armed attack by
Nicaragua could reasonably be contemplated.

238. Accordingly, the Court concludes that the plea of collective self-defence against an alleged
armed attack on El Salvador, Honduras or Costa Rica, advanced by the United States to justify
its conduct toward Nicaragua, cannot be upheld; and accordingly that the United States has
violated the principle prohibiting recourse to the threat or use of force by the acts listed in
paragraph 227 above, and by its assistance to the contras to the extent that this assistance
'involve[s] a threat or use of force' (paragraph 228 above).
239. The Court comes now to the application in this case of the principle of non-intervention in
the internal affairs of States. It is argued by Nicaragua that the 'military and paramilitary
activities aimed at the government and people of Nicaragua' have two purposes:

(a) The actual overthrow of the existing lawful government of Nicaragua and its replacement by
a government acceptable to the United States; and

(b) The substantial damaging of the economy, and the weakening of the political system, in order
to coerce the government of Nicaragua into the acceptance of United States policies and political
demands.'

Nicaragua also contends that the various acts of an economic nature, summarized in paragraphs
123 to 125 above, constitute a form of 'indirect' intervention in Nicaragua's internal affairs.

240. Nicaragua has laid much emphasis on the intentions it attributes to the Government of the
United States in giving aid and support to the contras. It contends that the purpose of the policy
of the United States and its actions against Nicaragua in pursuance of this policy was, from the
beginning, to overthrow the Government of Nicaragua. In order to demonstrate this, it has drawn
attention to numerous statements by high officials of the United States Government, in particular
by President Reagan, expressing solidarity and support for the contras, described on occasion as
'freedom fighters', and indicating that support for the contras would continue until the
Nicaraguan Government took certain action, desired by the United States Government,
amounting in effect to a surrender to the demands of the latter Government. The official Report
of the President of the United States to Congress of 10 April 1985, quoted in paragraph 96
above, states that: 'We have not sought to overthrow the Nicaraguan Government nor to force on
Nicaragua a specific system of government.' But it indicates also quite openly that 'United States
policy toward Nicaragua' - which includes the support for the military and paramilitary activities
of the contras which it was the purpose of the Report to continue - 'has consistently sought to
achieve changes in Nicaraguan government policy and behavior'.

241. The Court however does not consider it necessary to seek to establish whether the intention
of the United States to secure a change of governmental policies in Nicaragua went so far as to
be equated with an endeavour to overthrow the Nicaraguan Government. It appears to the Court
to be clearly established first, that the United States intended, by its support of the contras, to
coerce the Government of Nicaragua in respect of matters in which each State is permitted, by
the principle of State sovereignty, to decide freely (see paragraph 205 above); and secondly that
the intention of the contras themselves was to overthrow the present Government of Nicaragua.
The 1983 Report of the Intelligence Committee refers to the contras' 'openly acknowledged goal
of overthrowing the Sandinistas'. Even if it be accepted, for the sake of argument, that the
objective of the United States in assisting the contras was solely to interdict the supply of arms to
the armed opposition in El Salvador, it strains belief to suppose that a body formed in armed
opposition to the Government of Nicaragua, and calling itself the 'Nicaraguan Democratic Force',
intended only to check Nicaraguan interference in El Salvador and did not intend to achieve
violent change of government in Nicaragua. The Court considers that in international law, 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 the government of that State, that amounts to an intervention by
the one State in the internal affairs of the other, whether or not the political objective of the State
giving such support and assistance is equally far reaching. It is for this reason that the Court has
only examined the intentions of the United States Government so far as they bear on the question
of self-defence.

242. The Court therefore finds that the support given by the United States, up to the end of
September 1984, 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. The Court has however taken note that, with
effect from the beginning of the United States governmental financial year 1985, namely 1
October 1984, the United States Congress has restricted the use of the funds appropriated for
assistance to the contras to 'humanitarian assistance' (paragraph 97 above). There can be no
doubt that the provision of strictly humanitarian aid to persons or forces in another country,
whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or
as in any other way contrary to international law. The characteristics of such aid were indicated
in the first and second of the fundamental principles declared by the Twentieth International
Conference of the Red Cross, that

'The Red Cross, born of a desire to bring assistance without discrimination to the wounded on the
battlefield, endeavours - in its international and national capacity - to prevent and alleviate
human suffering wherever it may be found. Its purpose is to protect life and health and to ensure
respect for the human being. It promotes mutual understanding, friendship, co- operation and
lasting peace amongst all peoples' and that

'It makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It
endeavours only to relieve suffering, giving priority to the most urgent cases of distress.'

243. The United States legislation which limited aid to the contras to humanitarian assistance
however also defined what was meant by such assistance, namely:

'the provision of food, clothing, medicine, and other humanitarian assistance, and it does not
include the provision of weapons, weapons systems, ammunition, or other equipment, vehicles,
or material which can be used to inflict serious bodily harm or death' (paragraph 97 above).

It is also to be noted that, while the United States Congress has directed that the CIA and
Department of Defense are not to administer any of the funds voted, it was understood that
intelligence information might be 'shared' with the contras. Since the Court has no information as
to the interpretation in fact given to the Congress decision, or as to whether intelligence
information is in fact still being supplied to the contras, it will limit itself to a declaration as to
how the law applies in this respect. An essential feature of truly humanitarian aid is that it is
given 'without discrimination' of any kind. In the view of the Court, if the provision of
'humanitarian assistance' is to escape condemnation as an intervention in the internal affairs of
Nicaragua, not only must it be limited to the purposes hallowed in the practice of the Red Cross,
namely 'to prevent and alleviate human suffering', and 'to protect life and health and to ensure
respect for the human being'; it must also, and above all, be given without discrimination to all in
need in Nicaragua, not merely to the contras and their dependents.
244. As already noted, Nicaragua has also asserted that the United States is responsible for an
'indirect' form of intervention in its internal affairs inasmuch as it has taken, to Nicaragua's
disadvantage, certain action of an economic nature. The Court's attention has been drawn in
particular to the cessation of economic aid in April 1981; the 90 per cent reduction in the sugar
quota for United States imports from Nicaragua in April 1981; and the trade embargo adopted on
1 May 1985. While admitting in principle that some of these actions were not unlawful in
themselves, counsel for Nicaragua argued that these measures of economic constraint add up to a
systematic violation of the principle of non-intervention.

245. The Court does not here have to concern itself with possible breaches of such international
economic instruments as the General Agreement on Tariffs and Trade, referred to in passing by
counsel for Nicaragua; any such breaches would appear to fall outside the Court's jurisdiction,
particularly in view of the effect of the multilateral treaty reservation, nor has Nicaragua seised
the Court of any complaint of such breaches. The question of the compatibility of the actions
complained of with the 1956 Treaty of Friendship, Commerce and Navigation will be examined
below, in the context of the Court's examination of the provisions of that Treaty. At this point,
the Court has merely to say that it is unable to regard such action on the economic plane as is
here complained of as a breach of the customary-law principle of non-intervention.

246. Having concluded that the activities of the United States in relation to the activities of the
contras in Nicaragua constitute prima facie acts of intervention, the Court must next consider
whether they may nevertheless be justified on some legal ground. As the Court has stated, the
principle of non- intervention derives from customary international law. It would certainly lose
its effectiveness as a principle of law if intervention were to be justified by a mere request for
assistance made by an opposition group in another State - supposing such a request to have
actually been made by an opposition to the regime in Nicaragua in this instance. Indeed, it is
difficult to see what would remain of the principle of non-intervention in international law if
intervention, which is already allowable at the request of the government of a State, were also to
be allowed at the request of the opposition. This would permit any State to intervene at any
moment in the internal affairs of another State, whether at the request of the government or at the
request of its opposition. Such a situation does not in the Court's view correspond to the present
state of international law.

247. The Court has already indicated (paragraph 238) its conclusion that the conduct of the
United States towards Nicaragua cannot be justified by the right of collective self-defence in
response to an alleged armed attack on one or other of Nicaragua's neighbours. So far as regards
the allegations of supply of arms by Nicaragua to the armed opposition in El Salvador, the Court
has indicated that while the concept of an armed attack includes the despatch by one State of
armed bands into the territory of another State, the supply of arms and other support to such
bands cannot be equated with armed attack. Nevertheless, such activities may well constitute a
breach of the principle of the non-use of force and an intervention in the internal affairs of a
State, that is, a form of conduct which is certainly wrongful, but is of lesser gravity than an
armed attack. The Court must therefore enquire now whether the activities of the United States
towards Nicaragua might be justified as a response to an intervention by that State in the internal
affairs of another State in Central America.
248. The United States admits that it is giving its support to the contras in Nicaragua, but
justifies this by claiming that that State is adopting similar conduct by itself assisting the armed
opposition in El Salvador, and to a lesser extent in Honduras and Costa Rica, and has committed
transborder attacks on those two States. The United States raises this justification as one of self-
defence; having rejected it on those terms, the Court has nevertheless to consider whether it may
be valid as action by way of counter-measures in response to intervention. The Court has
however to find that the applicable law does not warrant such a justification.

249. On the legal level the Court cannot regard response to an intervention by Nicaragua as such
a justification. While an armed attack would give rise to an entitlement to collective self-defence,
a use of force of a lesser degree of gravity cannot, as the Court has already observed (paragraph
211 above), produce any entitlement to take collective counter-measures involving the use of
force. The acts of which Nicaragua is accused, even assuming them to have been established and
imputable to that State, could only have justified proportionate counter-measures on the part of
the State which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica.
They could not justify counter-measures taken by a third State, the United States, and
particularly could not justify intervention involving the use of force.

250. In the Application, Nicaragua further claims:

'That the United States, in breach of its obligation under general and customary international law,
has violated and is violating the sovereignty of Nicaragua by:

- armed attacks against Nicaragua by air, land and sea;

- incursions into Nicaraguan territorial waters;

- aerial trespass into Nicaraguan airspace;

- efforts by direct and indirect means to coerce and intimidate the Government of Nicaragua.'
(Para. 26 (b).)

The Nicaraguan Memorial, however, enumerates under the heading of violations of sovereignty
only attacks on Nicaraguan territory, incursions into its territorial sea, and overflights. The claim
as to United States 'efforts by direct and indirect means to coerce and intimidate the Government
of Nicaragua' was presented in the Memorial under the heading of the threat or use of force,
which has already been dealt with above (paragraph 227). Accordingly, that aspect of
Nicaragua's claim will not be pursued further.

251. The effects of the principle of respect for territorial sovereignty inevitably overlap with
those of the principles of the prohibition of the use of force and of non-intervention. Thus the
assistance to the contras, as well as the direct attacks on Nicaraguan ports, oil installations, etc.,
referred to in paragraphs 81 to 86 above, not only amount to an unlawful use of force, but also
constitute infringements of the territorial sovereignty of Nicaragua, and incursions into its
territorial and internal waters. Similarly, the mining operations in the Nicaraguan ports not only
constitute breaches of the principle of the non-use of force, but also affect Nicaragua's
sovereignty over certain maritime expanses. The Court has in fact found that these operations
were carried on in Nicaragua's territorial or internal waters or both (paragraph 80), and
accordingly they constitute a violation of Nicaragua's sovereignty. The principle of respect for
territorial sovereignty is also directly infringed by the unauthorized overflight of a State's
territory by aircraft belonging to or under the control of the government of another State. The
Court has found above that such overflights were in fact made (paragraph 91 above).

252. These violations cannot be justified either by collective self-defence, for which, as the Court
has recognized, the necessary circumstances are lacking, nor by any right of the United States to
take counter-measures involving the use of force in the event of intervention by Nicaragua in El
Salvador, since no such right exists under the applicable international law. They cannot be
justified by the activities in El Salvador attributed to the Government of Nicaragua. The latter
activities, assuming that they did in fact occur, do not bring into effect any right belonging to the
United States which would justify the actions in question. Accordingly, such actions constitute
violations of Nicaragua's sovereignty under customary international law.

253. At this point it will be convenient to refer to another aspect of the legal implications of the
mining of Nicaragua's ports. As the Court has indicated in paragraph 214 above, where the
vessels of one State enjoy a right of access to ports of another State, if that right of access is
hindered by the laying of mines, this constitutes an infringement of the freedom of
communications and of maritime commerce. This is clearly the case here. It is not for the Court
to pass upon the rights of States which are not parties to the case before it; but it is clear that
interference with a right of access to the ports of Nicaragua is likely to have an adverse effect on
Nicaragua's economy and its trading relations with any State whose vessels enjoy the right of
access to its ports. Accordingly, the Court finds, in the context of the present proceedings
between Nicaragua and the United States, that the laying of mines in or near Nicaraguan ports
constituted an infringement, to Nicaragua's detriment, of the freedom of communications and of
maritime commerce.

254. The Court now turns to the question of the application of humanitarian law to the activities
of the United States complained of in this case. Mention has already been made (paragraph 215
above) of the violations of customary international law by reason of the failure to give notice of
the mining of the Nicaraguan ports, for which the Court has found the United States directly
responsible. Except as regards the mines, Nicaragua has not however attributed any breach of
humanitarian law to either United States personnel or the 'UCLAs', as distinct from the contras.
The Applicant has claimed that acts perpetrated by the contras constitute breaches of the
'fundamental norms protecting human rights'; it has not raised the question of the law applicable
in the event of conflict such as that between the contras and the established Government. In
effect, Nicaragua is accusing the contras of violations both of the law of human rights and
humanitarian law, and is attributing responsibility for these acts to the United States. The Court
has however found (paragraphs 115, 216) that this submission of Nicaragua cannot be upheld;
but it has also found the United States responsible for the publication and dissemination of the
manual on 'Psychological Operations in Guerrilla Warfare' referred to in paragraphs 118 to 122
above.
255. The Court has also found (paragraphs 219 and 220 above) that general principles of
humanitarian law include a particular prohibition, accepted by States, and extending to activities
which occur in the context of armed conflicts, whether international in character or not. By virtue
of such general principles, the United States is bound to refrain from encouragement of persons
or groups engaged in the conflict in Nicaragua to commit violations of Article 3 which is
common to all four Geneva Conventions of 12 August 1949. The question here does not of
course relate to the definition of the circumstances in which one State may be regarded as
responsible for acts carried out by another State, which probably do not include the possibility of
incitement. The Court takes note of the advice given in the manual on psychological operations
to 'neutralize' certain 'carefully selected and planned targets', including judges, police officers,
State Security officials, etc., after the local population have been gathered in order to 'take part in
the act and formulate accusations against the oppressor'. In the view of the Court, this must be
regarded as contrary to the prohibition in Article 3 of the Geneva Conventions, with respect to
non-combatants, of 'the passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all the judicial guarantees which
are recognized as indispensable by civilized peoples' and probably also of the prohibition of
'violence to life and person, in particular murder to all kinds, ...'.

256. It is also appropriate to recall the circumstances in which the manual of psychological
operations was issued. When considering whether the publication of such a manual, encouraging
the commission of acts contrary to general principles of humanitarian law, is unlawful, it is
material to consider whether that encouragement was offered to persons in circumstances where
the commission of such acts was likely or foreseeable. The Court has however found (paragraph
121) that at the relevant time those responsible for the issue of the manual were aware of, at the
least, allegations that the behaviour of the contras in the field was not consistent with
humanitarian law; it was in fact even claimed by the CIA that the purpose of the manual was to
'moderate' such behaviour. The publication and dissemination of a manual in fact containing the
advice quoted above must therefore be regarded as an encouragement, which was likely to be
effective, to commit acts contrary to general principles of international humanitarian law
reflected in treaties.

257. The Court has noted above (paragraphs 169 and 170) the attitude of the United States, as
expressed in the finding of the Congress of 29 July 1985, linking United States support to the
contras with alleged breaches by the Government of Nicaragua of its 'solemn commitments to
the Nicaraguan people, the United States, and the Organization of American States'. Those
breaches were stated to involve questions such as the composition of the government, its political
ideology and alignment, totalitarianism, human rights, militarization and aggression. So far as
the question of 'aggression in the form of armed subversion against its neighbours' is concerned,
the Court has already dealt with the claimed justification of collective self-defence in response to
armed attack, and will not return to that matter. It has also disposed of the suggestion of a right to
collective counter-measures in face of an armed intervention. What is now in question is whether
there is anything in the conduct of Nicaragua which might legally warrant counter-measures by
the United States.

258. The questions as to which the Nicaraguan Government is said to have entered into a
commitment are questions of domestic policy. The Court would not therefore normally consider
it appropriate to engage in a verification of the truth of assertions of this kind, even assuming that
it was in a position to do so. A State's domestic policy falls within its exclusive jurisdiction,
provided of course that it does not violate any obligation of international law. Every State
possesses a fundamental right to choose and implement its own political, economic and social
systems. Consequently, there would normally be no need to make any enquiries, in a matter
outside the Court's jurisdiction, to ascertain in what sense and along what lines Nicaragua has
actually exercised its right.

259. However, the assertion of a commitment raises the question of the possibility of a State
binding itself by agreement in relation to a question of domestic policy, such as that relating to
the holding of free elections on its territory. The Court cannot discover, within the range of
subjects open to international agreement, any obstacle or provision to hinder a State from making
a commitment of this kind. A State, which is free to decide upon the principle and methods of
popular consultation within its domestic order, is sovereign for the purpose of accepting a
limitation of its sovereignty in this field. This is a conceivable situation for a State which is
bound by institutional links to a confederation of States, or indeed to an international
organization. Both Nicaragua and the United States are members of the Organization of
American States. The Charter of that Organization however goes no further in the direction of an
agreed limitation on sovereignty of this kind than the provision in Article 3 (d) that 'The
solidarity of the American States and the high aims which are sought through it require the
political organization of those States on the basis of the effective exercise of representative
democracy;' on the other hand, it provides for the right of every State 'to organize itself as it sees
fit' (Art. 12), and to 'develop its cultural, political and economic life freely and naturally' (Art.
16).

260. The Court has set out above the facts as to the events of 1979, including the resolution of
the XVIIth Meeting of Consultation of Ministers for Foreign Affairs of the Organization of
American States, and the communications of 12 July 1979 from the Junta of the Government of
National Reconstruction of Nicaragua to the Secretary-General of the Organization,
accompanied by a 'Plan to secure peace'. The letter contained inter alia a list of the objectives of
the Nicaraguan Junta and stated in particular its intention of installing the new regime by a
peaceful, orderly transition and of respecting human rights under the supervision of the Inter-
American Commission on Human Rights, which the Junta invited to visit Nicaragua 'as soon as
we are installed'. In this way, before its installation in Managua, the new regime soothed
apprehensions as desired and expressed its intention of governing the country democratically.

261. However, the Court is unable to find anything in these documents, whether the resolution or
the communication accompanied by the 'Plan to secure peace', from which it can be inferred that
any legal undertaking was intended to exist. Moreover, the Junta made it plain in one of these
documents that its invitation to the Organization of American States to supervise Nicaragua's
political life should not be allowed to obscure the fact that it was the Nicaraguans themselves
who were to decide upon and conduct the country's domestic policy. The resolution of 23 June
1979 also declares that the solution of their problems is a matter 'exclusively' for the Nicaraguan
people, while stating that that solution was to be based (in Spanish, deberia inspirarse) on certain
foundations which were put forward merely as recommendations to the future government. This
part of the resolution is a mere statement which does not comprise any formal offer which if
accepted would constitute a promise in law, and hence a legal obligation. Nor can the Court take
the view that Nicaragua actually undertook a commitment to organize free elections, and that this
commitment was of a legal nature. The Nicaraguan Junta of National Reconstruction planned the
holding of free elections as part of its political programme of government, following the
recommendation of the XVIIth Meeting of Consultation of Foreign Ministers of the Organization
of American States. This was an essentially political pledge, made not only to the Organization,
but also to the people of Nicaragua, intended to be its first beneficiaries. But the Court cannot
find an instrument with legal force, whether unilateral or synallagmatic, whereby Nicaragua has
committed itself in respect of the principle or methods of holding elections. The Organization of
American States Charter has already been mentioned, with its respect for the political
independence of the member States; in the field of domestic policy, it goes no further than to list
the social standards to the application of which the Members 'agree to dedicate every effort',
including:

'The incorporation and increasing participation of the marginal sectors of the population, in both
rural and urban areas, in the economic, social, civic, cultural, and political life of the nation, in
order to achieve the full integration of the national community, acceleration of the process of
social mobility, and the consolidation of the democratic system.' (Art. 43 (f).)

It is evident that provisions of this kind are far from being a commitment as to the use of
particular political mechanisms.

262. Moreover, even supposing that such a political pledge had had the force of a legal
commitment, it could not have justified the United States insisting on the fulfilment of a
commitment made not directly towards the United States, but towards the Organization, the latter
being alone empowered to monitor its implementation. The Court can see no legal basis for the
'special responsibility regarding the implementation of the commitments made' by the
Nicaraguan Government which the United States considers itself to have assumed in view of 'its
role in the installation of the current Government of Nicaragua' (see paragraph 170 above).
Moreover, even supposing that the United States were entitled to act in lieu of the Organization,
it could hardly make use for the purpose of methods which the Organization could not use itself;
in particular, it could not be authorized to use force in that event. Of its nature, a commitment
like this is one of a category which, if violated, cannot justify the use of force against a sovereign
State.

263. The finding of the United States Congress also expressed the view that the Nicaraguan
Government had taken 'significant steps towards establishing a totalitarian Communist
dictatorship'. However the regime in Nicaragua be defined, adherence by a State to any particular
doctrine does not constitute a violation of customary international law; to hold otherwise would
make nonsense of the fundamental principle of State sovereignty, on which the whole of
international law rests, and the freedom of choice of the political, social, economic and cultural
system of a State. Consequently, Nicaragua's domestic policy options, even assuming that they
correspond to the description given of them by the Congress finding, cannot justify on the legal
plane the various actions of the Respondent complained of. 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.
264. The Court has also emphasized the importance to be attached, in other respects, to a text
such as the Helsinki Final Act, or, on another level, to General Assembly resolution 2625 (XXV)
which, as its name indicates, is a declaration on 'Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with the Charter of the United
Nations'. Texts like these, in relation to which the Court has pointed to the customary content of
certain provisions such as the principles of the non-use of force and non-intervention, envisage
the relations among States having different political, economic and social systems on the basis of
coexistence among their various ideologies; the United States not only voiced no objection to
their adoption, but took an active part in bringing it about.

265. Similar considerations apply to the criticisms expressed by the United States of the external
policies and alliances of Nicaragua. Whatever the impact of individual alliances on regional or
international political-military balances, the Court is only competent to consider such questions
from the standpoint of international law. From that aspect, it is sufficient to say that State
sovereignty evidently extends to the area of its foreign policy, and that there is no rule of
customary international law to prevent a State from choosing and conducting a foreign policy in
co-ordination with that of another State.

266. The Court also notes that these justifications, advanced solely in a political context which it
is naturally not for the Court to appraise, were not advanced as legal arguments. The respondent
State has always confined itself to the classic argument of self-defence, and has not attempted to
introduce a legal argument derived from a supposed rule of 'ideological intervention', which
would have been a striking innovation. The Court would recall that one of the accusations of the
United States against Nicaragua is violation of 'the 1965 General Assembly Declaration on
Intervention' (paragraph 169 above), by its support for the armed opposition to the Government
in El Salvador. It is not aware of the United States having officially abandoned reliance on this
principle, substituting for it a new principle 'of ideological intervention', the definition of which
would be discretionary. As stated above (paragraph 29), the Court is not solely dependent for its
decision on the argument of the Parties before it with respect to the applicable law: it is required
to consider on its own initiative all rules of international law which may be relevant to the
settlement of the dispute even if these rules have not been invoked by a party. The Court is
however not entitled to ascribe to States legal views which they do not themselves formulate.

267. The Court also notes that Nicaragua is accused by the 1985 finding of the United States
Congress of violating human rights. This particular point requires to be studied independently of
the question of the existence of a 'legal commitment' by Nicaragua towards the Organization of
American States to respect these rights; the absence of such a commitment would not mean that
Nicaragua could with impunity violate human rights. However, where human rights are protected
by international conventions, that protection takes the form of such arrangements for monitoring
or ensuring respect for human rights as are provided for in the conventions themselves. The
political pledge by Nicaragua was made in the context of the Organization of American States,
the organs of which were consequently entitled to monitor its observance. The Court has noted
above (paragraph 168) that the Nicaraguan Government has since 1979 ratified a number of
international instruments on human rights, and one of these was the American Convention on
Human Rights (the Pact of San Jose, Costa Rica). The mechanisms provided for therein have
functioned. The Inter- American Commission on Human Rights in fact took action and compiled
two reports (OEA/Ser.L/V/11.53 and 62) following visits by the Commission to Nicaragua at the
Government's invitation. Consequently, the Organization was in a position, if it so wished, to
take a decision on the basis of these reports.

268. In any event, while the United States might form its own appraisal of the situation as to
respect for human rights in Nicaragua, the use of force could not be the appropriate method to
monitor or ensure such respect. With regard to the steps actually taken, the protection of human
rights, a strictly humanitarian objective, cannot be compatible with the mining of ports, the
destruction of oil installations, or again with the training, arming and equipping of the contras.
The Court concludes that the argument derived from the preservation of human rights in
Nicaragua cannot afford a legal justification for the conduct of the United States, and cannot in
any event be reconciled with the legal strategy of the respondent State, which is based on the
right of collective self-defence.

269. The Court now turns to another factor which bears both upon domestic policy and foreign
policy. This is the militarization of Nicaragua, which the United States deems excessive and such
as to prove its aggressive intent, and in which it finds another argument to justify its activities
with regard to Nicaragua. It is irrelevant and inappropriate, in the Court's opinion, to pass upon
this allegation of the United States, since 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.

270. Having thus concluded its examination of the claims of Nicaragua based on customary
international law, the Court must now consider its claims based on the Treaty of Friendship,
Commerce and Navigation between the Parties, signed at Managua on 21 January 1956; Article
XXIV, paragraph 2, of that Treaty provides for the jurisdiction of the Court for any dispute
between the Parties as to its interpretation or application. The first claim which Nicaragua makes
in relation to the Treaty is however one not based directly on a specific provision thereof.
Nicaragua has argued that the United States, by its conduct in relation to Nicaragua, has deprived
the Treaty of its object and purpose, and emptied it of real content. For this purpose, Nicaragua
has relied on the existence of a legal obligation of States to refrain from acts which would
impede the due performance of any treaties entered into by them. However, if there is a duty of a
State not to impede the due performance of a treaty to which it is a party, that is not a duty
imposed by the treaty itself. Nicaragua itself apparently contends that this is a duty arising under
customary international law independently of the treaty, that it is implicit in the rule pacta sunt
servanda. This claim therefore does not in fact fall under the heading of possible breach by the
United States of the provisions of the 1956 Treaty, though it may involve the interpretation or
application thereof.

271. In view of the Court's finding in its 1984 Judgment that the Court has jurisdiction both
under the 1956 FCN Treaty and on the basis of the United States acceptance of jurisdiction under
the Optional Clause of Article 36, paragraph 2, this poses no problem of jurisdiction in the
present case. It should however be emphasized that the Court does not consider that a
compromissory clause of the kind included in Article XXIV, paragraph 2, of the 1956 FCN
Treaty, providing for jurisdiction over disputes as to its interpretation or application, would
enable the Court to entertain a claim alleging conduct depriving the treaty of its object and
purpose. It is only because in the present case the Court has found that it has jurisdiction, apart
from Article XXIV, over any legal dispute between the Parties concerning any of the matters
enumerated in Article 36, paragraph 2, of the Statute, that it can proceed to examine Nicaragua's
claim under this head. However, as indicated in paragraph 221 above, the Court has first to
determine whether the actions of the United States complained of as breaches of the 1956 FCN
Treaty have to be regarded as 'measures ... necessary to protect its essential security interests [sus
intereses esenciales y seguridad]', since Article XXI of the Treaty provides that 'the present
Treaty shall not preclude the application of' such measures. The question thus arises whether
Article XXI similarly affords a defence to a claim under customary international law based on
allegation of conduct depriving the Treaty of its object and purpose if such conduct can be shown
to be 'measures ... necessary to protect' essential security interests.

272. In the view of the Court, an act cannot be said to be one calculated to deprive a treaty of its
object and purpose, or to impede its due performance, if the possibility of that act has been
foreseen in the treaty itself, and it has been expressly agreed that the treaty 'shall not preclude'
the act, so that it will not constitute a breach of the express terms of the treaty. Accordingly, the
Court cannot entertain either the claim of Nicaragua alleging conduct depriving the treaty of its
object and purpose, or its claims of breach of specific articles of the treaty, unless it is first
satisfied that the conduct complained of is not 'measures ... necessary to protect' the essential
security interests of the United States. The Court will first proceed to examine whether the
claims of Nicaragua in relation to the Treaty appear to be well founded, and then determine
whether they are nevertheless justifiable by reference to Article XXI.

273. The argument that the United States has deprived the Treaty of its object and purpose has a
scope which is not very clearly defined, but it appears that in Nicaragua's contention the Court
could on this ground make a blanket condemnation of the United States for all the activities of
which Nicaragua complains on more specific grounds. For Nicaragua, the Treaty is 'without
doubt a treaty of friendship which imposes on the Parties the obligation to conduct amicable
relations with each other', and 'Whatever the exact dimensions of the legal norm of 'friendship'
there can be no doubt of a United States violation in this case'. In other words, the Court is asked
to rule that a State which enters into a treaty of friendship binds itself, for so long as the Treaty is
in force, to abstain from any act toward the other party which could be classified as an unfriendly
act, even if such act is not in itself the breach of an international obligation. Such a duty might of
course be expressly stipulated in a treaty, or might even emerge as a necessary implication from
the text; but as a matter of customary international law, it is not clear that the existence of such a
far-reaching rule is evidenced in the practice of States. There must be a distinction, even in the
case of a treaty of friendship, between the broad category of unfriendly acts, and the narrower
category of acts tending to defeat the object and purpose of the Treaty. That object and purpose
is the effective implementation of friendship in the specific fields provided for in the Treaty, not
friendship in a vague general sense.

274. The Court has in this respect to note that the Treaty itself provides in Article XXIV,
paragraph 1, as follows:
'Each Party shall accord sympathetic consideration to, and shall afford adequate opportunity for
consultation regarding, such representations as the other Party may make with respect to any
matter affecting the operation of the present Treaty.' Nicaragua claims that the conduct of the
United States is such as drastically to 'affect the operation' of the Treaty; but so far as the Court is
informed, no representations on the specific question have been made. The Court has therefore
first to be satisfied that a claim based on the 1956 FCN Treaty is admissible even though no
attempt has been made to use the machinery of Article XXIV, paragraph 1, to resolve the
dispute. In general, treaty rules being lex specialis, it would not be appropriate that a State should
bring a claim based on a customary-law rule if it has by treaty already provided means for
settlement of such a claim. However, in the present case, the operation of Article XXIV,
paragraph 1, if it had been invoked, would have been wholly artificial. While Nicaragua does
allege that certain activities of the United States were in breach of the 1956 FCN Treaty, it has
also claimed, and the Court has found, that they were violations of customary international law.
In the Court's view, it would therefore be excessively formalistic to require Nicaragua first to
exhaust the procedure of Article XXIV, paragraph 1, before bringing the matter to the Court. In
its 1984 Judgment the Court has already dealt with the argument that Article XXIV, paragraph 2,
of the Treaty required that the dispute be 'one not satisfactorily adjusted by diplomacy', and that
this was not the case in view of the absence of negotiations between the Parties. The Court held
that:

'it does not necessarily follow that, because a State has not expressly referred in negotiations
with another State to a particular treaty as having been violated by conduct of that other State, it
is debarred from invoking a compromissory clause in that treaty' (I.C.J. Reports 1984, p. 428).

The point now at issue is different, since the claim of conduct impeding the operation of the
Treaty is not advanced on the basis of the compromissory clause in the Treaty. The Court
nevertheless considers that neither paragraph of Article XXIV constitutes a bar to examination of
Nicaragua's claims.

275. In respect of the claim that the United States activities have been such as to deprive the
1956 FCN Treaty of its object and purpose, the Court has to make a distinction. It is unable to
regard all the acts complained of in that light; but it does consider that there are certain activities
of the United States which are such as to undermine the whole spirit of a bilateral agreement
directed to sponsoring friendship between the two States parties to it. These are: the direct
attacks on ports, oil installations, etc., referred to in paragraphs 81 to 86 above; and the mining of
Nicaraguan ports, mentioned in paragraph 80 above. Any action less calculated to serve the
purpose of 'strengthening the bonds of peace and friendship traditionally existing between' the
Parties, stated in the Preamble of the Treaty, could hardly be imagined.

276. While the acts of economic pressure summarized in paragraphs 123 to 125 above are less
flagrantly in contradiction with the purpose of the Treaty, the Court reaches a similar conclusion
in respect of some of them. A State is not bound to continue particular trade relations longer than
it sees fit to do so, in the absence of a treaty commitment or other specific legal obligation; but
where there exists such a commitment, of the kind implied in a treaty of friendship and
commerce, such an abrupt act of termination of commercial intercourse as the general trade
embargo of 1 May 1985 will normally constitute a violation of the obligation not to defeat the
object and purpose of the treaty. The 90 per cent cut in the sugar import quota of 23 September
1983 does not on the other hand seem to the Court to go so far as to constitute an act calculated
to defeat the object and purpose of the Treaty. The cessation of economic aid, the giving of
which is more of a unilateral and voluntary nature, could be regarded as such a violation only in
exceptional circumstances. The Court has also to note that, by the very terms of the legislation
authorizing such aid (the Special Central American Assistance Act, 1979), of which the
Government of Nicaragua must have been aware, the continuance of aid was made subject to the
appreciation of Nicaragua's conduct by the President of the United States. As to the opposition to
the grant of loans from international institutions, the Court cannot regard this as sufficiently
linked with the 1956 FCN Treaty to constitute an act directed to defeating its object and purpose.

277. Nicaragua claims that the United States is in breach of Article I of the 1956 FCN Treaty,
which provides that each Party is to accord 'equitable treatment' to the nationals of the other.
Nicaragua suggests that whatever meaning given to the expression 'equitable treatment'

'it necessarily precludes the Government of the United States from ... killing, wounding or
kidnapping citizens of Nicaragua, and, more generally from threatening Nicaraguan citizens in
the integrity of their persons or the safety of their property'.

It is Nicaragua's claim that the treatment of Nicaraguan citizens complained of was inflicted by
the United States or by forces controlled by the United States. The Court is however not satisfied
that the evidence available demonstrates that the contras were 'controlled' by the United States
when committing such acts. As the Court has indicated (paragraph 110 above), the exact extent
of the control resulting from the financial dependence of the contras on the United States
authorities cannot be established; and it has not been able to conclude that the contras are subject
to the United States to such an extent that any acts they have committed are imputable to that
State (paragraph 115 above). Even if the provision for 'equitable treatment' in the Treaty is read
as involving an obligation not to kill, wound or kidnap Nicaraguan citizens in Nicaragua - as to
which the Court expresses no opinion - those acts of the contras performed in the course of their
military or paramilitary activities in Nicaragua are not conduct attributable to the United States.

278. Secondly, Nicaragua claims that the United States has violated the provisions of the Treaty
relating to freedom of communication and commerce. For the reasons indicated in paragraph 253
above, the Court must uphold the contention that the mining of the Nicaraguan ports by the
United States is in manifest contradiction with the freedom of navigation and commerce
guaranteed by Article XIX, paragraph 1, of the 1956 Treaty; there remains the question whether
such action can be justified under Article XXI (see paragraphs 280 to 282 below). In the
commercial context of the Treaty, Nicaragua's claim is justified not only as to the physical
damage to its vessels, but also the consequential damage to its trade and commerce. Nicaragua
however also contended that all the activities of the United States in and against Nicaragua are
'violative of the 1956 Treaty':

'Since the word 'commerce' in the 1956 Treaty must be understood in its broadest sense, all of the
activities by which the United States has deliberately inflicted on Nicaragua physical damage
and economic losses of all types, violate the principle of freedom of commerce which the Treaty
establishes in very general terms.'
It is clear that considerable economic loss and damage has been inflicted on Nicaragua by the
actions of the contras: apart from the economic impact of acts directly attributable to the United
States, such as the loss of fishing boats blown up by mines, the Nicaraguan Minister of Finance
estimated loss of production in 1981-1984 due to inability to collect crops, etc., at some US$ 300
million. However, as already noted (paragraph 277 above) the Court has not found the
relationship between the contras and the United States Government to have been proved to be
such that the United States is responsible for all acts of the contras.

279. The trade embargo declared by the United States Government on 1 May 1985 has already
been referred to in the context of Nicaragua's contentions as to acts tending to defeat the object
and purpose of the 1956 FCN Treaty. The question also arises of its compatibility with the letter
and the spirit of Article XIX of the Treaty. That Article provides that 'Between the territories of
the two Parties there shall be freedom of commerce and navigation' (para. 1) and continues

'3. Vessels of either Party shall have liberty, on equal terms with vessels of the other Party and
on equal terms with vessels of any third country, to come with their cargoes to all ports, places
and waters of such other Party open to foreign commerce and navigation ...'

By the Executive Order dated 1 May 1985 the President of the United States declared 'I hereby
prohibit vessels of Nicaraguan registry from entering into United States ports, and transactions
relating thereto'. The Court notes that on the same day the United States gave notice to Nicaragua
to terminate the Treaty under Article XXV, paragraph 3, thereof; but that Article requires 'one
year's written notice' for the termination to take effect. The freedom of Nicaraguan vessels, under
Article XIX, paragraph 3, 'to come with their cargoes to all ports, places and waters' of the
United States could not therefore be interfered with during that period of notice, let alone
terminated abruptly by the declaration of an embargo. The Court accordingly finds that the
embargo constituted a measure in contradiction with Article XIX of the 1956 FCN Treaty.

280. The Court has thus found that the United States is in breach of a duty not to deprive the
1956 FCN Treaty of its object and purpose, and has committed acts which are in contradiction
with the terms of the Treaty, subject to the question whether the exceptions in Article XXI,
paragraphs 1 (c) and 1 (d), concerning respectively 'traffic in arms' and 'measures ... necessary to
fulfill' obligations 'for the maintenance or restoration of international peace and security' or
necessary to protect the 'essential security interests' of a party, may be invoked to justify the acts
complained of. In its Counter- Memorial on jurisdiction and admissibility, the United States
relied on paragraph 1 (c) as showing the inapplicability of the 1956 FCN Treaty to Nicaragua's
claims. This paragraph appears however to be relevant only in respect of the complaint of supply
of arms to the contras, and since the Court does not find that arms supply to be a breach of the
Treaty, or an act calculated to deprive it of its object and purpose, paragraph 1 (c) does not need
to be considered further. There remains the question of the relationship of Article XXI,
paragraph 1 (d), to the direct attacks on ports, oil installations, etc.; the mining of Nicaraguan
ports; and the general trade embargo of 1 May 1985 (paragraphs 275 to 276 above).

281. In approaching this question, the Court has first to bear in mind the chronological sequence
of events. If the activities of the United States are to be covered by Article XXI of the Treaty,
they must have been, at the time they were taken, measures necessary to protect its essential
security interests. Thus the finding of the President of the United States on 1 May 1985 that 'the
policies and actions of the Government of Nicaragua constitute an unusual and extraordinary
threat to the national security and foreign policy of the United States', even if it be taken as
sufficient evidence that that was so, does not justify action by the United States previous to that
date.

282. Secondly, the Court emphasizes the importance of the word 'necessary' in Article XXI: the
measures taken must not merely be such as tend to protect the essential security interests of the
party taking them, but must be 'necessary' for that purpose. Taking into account the whole
situation of the United States in relation to Central America, so far as the Court is informed of it
(and even assuming that the justification of self-defence, which the Court has rejected on the
legal level, had some validity on the political level), the Court considers that the mining of
Nicaraguan ports, and the direct attacks on ports and oil installations, cannot possibly be justified
as 'necessary' to protect the essential security interests of the United States. As to the trade
embargo, the Court has to note the express justification for it given in the Presidential finding
quoted in paragraph 125 above, and that the measure was one of an economic nature, thus one
which fell within the sphere of relations contemplated by the Treaty. But by the terms of the
Treaty itself, whether a measure is necessary to protect the essential security interests of a party
is not, as the Court has emphasized (paragraph 222 above), purely a question for the subjective
judgment of the party; the text does not refer to what the party 'considers necessary' for that
purpose. Since no evidence at all is available to show how Nicaraguan policies had in fact
become a threat to 'essential security interests' in May 1985, when those policies had been
consistent, and consistently criticized by the United States, for four years previously, the Court is
unable to find that the embargo was 'necessary' to protect those interests. Accordingly, Article
XXI affords no defence for the United States in respect of any of the actions here under
consideration.

283. The third submission of Nicaragua in its Memorial on the merits, set out in paragraph 15
above, requests the Court to adjudge and declare that compensation is due to Nicaragua and

'to receive evidence and to determine, in a subsequent phase of the present proceedings, the
quantum of damages to be assessed as the compensation due to the Republic of Nicaragua'.

The fourth submission requests the Court to award to Nicaragua the sum of 370,200,000 United
States dollars, 'which sum constitutes the minimum valuation of the direct damages' claimed by
Nicaragua. In order to decide on these submissions, the Court must satisfy itself that it possesses
jurisdiction to do so. In general, jurisdiction to determine the merits of a dispute entails
jurisdiction to determine reparation. More specifically, the Court notes that in its declaration of
acceptance of jurisdiction under the Optional Clause of 26 August 1946, the United States
expressly accepted the Court's jurisdiction in respect of disputes concerning 'the nature or extent
of the reparation to be made for the breach of an international obligation'. The corresponding
declaration by which Nicaragua accepted the Court's jurisdiction contains no restriction of the
powers of the Court under Article 36, paragraph 2 (d), of its Statute; Nicaragua has thus accepted
the 'same obligation'. Under the 1956 FCN Treaty, the Court has jurisdiction to determine 'any
dispute between the Parties as to the interpretation or application of the present Treaty' (Art.
XXIV, para. 2); and as the Permanent Court of International Justice stated in the case concerning
the Factory at Chorzow, 'Differences relating to reparations, which may be due by reason of
failure to apply a convention, are consequently differences relating to its application.'
(Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21.)

284. The Court considers appropriate the request of Nicaragua for the nature and amount of the
reparation due to it to be determined in a subsequent phase of the proceedings. While a certain
amount of evidence has been provided, for example, in the testimony of the Nicaraguan Minister
of Finance, of pecuniary loss sustained, this was based upon contentions as to the responsibility
of the United States which were more far reaching than the conclusions at which the Court has
been able to arrive. The opportunity should be afforded Nicaragua to demonstrate and prove
exactly what injury was suffered as a result of each action of the United States which the Court
has found contrary to international law. Nor should it be overlooked that, while the United States
has chosen not to appear or participate in the present phase of the proceedings, Article 53 of the
Statute does not debar it from appearing to present its arguments on the question of reparation if
it so wishes. On the contrary, the principle of the equality of the Parties requires that it be given
that opportunity. It goes without saying, however, that in the phase of the proceedings devoted to
reparation, neither Party may call in question such findings in the present Judgment as have
become res judicata.

285. There remains the request of Nicaragua (paragraph 15 above) for an award, at the present
stage of the proceedings, of $370,200,000 as the 'minimum (and in that sense provisional)
valuation of direct damages'. There is no provision in the Statute of the Court either specifically
empowering the Court to make an interim award of this kind, or indeed debarring it from doing
so. In view of the final and binding character of the Court's judgments, under Articles 59 and 60
of the Statute, it would however only be appropriate to make an award of this kind, assuming
that the Court possesses the power to do so, in exceptional circumstances, and where the
entitlement of the State making the claim was already established with certainty and precision.
Furthermore, in a case in which the respondent State is not appearing, so that its views on the
matter are not known to the Court, the Court should refrain from any unnecessary act which
might prove an obstacle to a negotiated settlement. It bears repeating that 'the judicial settlement
of international disputes, with a view to which the Court has been established, is simply an
alternative to the direct and friendly settlement of such disputes between the Parties; as
consequently it is for the Court to facilitate, so far as is compatible with its Statute, such direct
and friendly settlement ...' (Free Zones of Upper Savoy and the District of Gex, Order of 19
August 1929, P.C.I.J., Series A, No. 22, p. 13).

Accordingly, the Court does not consider that it can accede at this stage to the request made in
the Fourth Submission of Nicaragua.

286. By its Order of 10 May 1984, the Court indicated, pursuant to Article 41 of the Statute of
the Court, the provisional measures which in its view 'ought to be taken to preserve the
respective rights of either party', pending the final decision in the present case. In connection
with the first such measure, namely that

'The United States of America should immediately cease and refrain from any action restricting,
blocking or endangering access to or from Nicaraguan ports, and, in particular, the laying of
mines', the Court notes that no complaint has been made that any further action of this kind has
been taken.

287. On 25 June 1984, the Government of Nicaragua addressed a communication to the Court
referring to the Order indicating provisional measures, informing the Court of what Nicaragua
regarded as 'the failure of the United States to comply with that Order', and requesting the
indication of further measures. The action by the United States complained of consisted in the
fact that the United States was continuing 'to sponsor and carry out military and paramilitary
activities in and against Nicaragua'. By a letter of 16 July 1984, the President of the Court
informed the Agent of Nicaragua that the Court considered that that request should await the
outcome of the proceedings on jurisdiction which were then pending before the Court. The
Government of Nicaragua has not reverted to the question.

288. The Court considers that it should re-emphasize, in the light of its present findings, what
was indicated in the Order of 10 May 1984:

'The right to sovereignty and to political independence possessed by the Republic of Nicaragua,
like any other State of the region or of the world, should be fully respected and should not in any
way be jeopardized by any military and paramilitary activities which are prohibited by the
principles of international law, in particular the principle that States should refrain in their
international relations from the threat or use of force against the territorial integrity or the
political independence of any State, and the principle concerning the duty not to intervene in
matters within the domestic jurisdiction of a State, principles embodied in the United Nations
Charter and the Charter of the Organization of American States.'

289. Furthermore, the Court would draw attention to the further measures indicated in its Order,
namely that the Parties 'should each of them ensure that no action of any kind is taken which
might aggravate or extend the dispute submitted to the Court' and 'should each of them ensure
that no action is taken which might prejudice the rights of the other Party in respect of the
carrying out of whatever decision the Court may render in the case'.

When the Court finds that the situation requires that measures of this kind should be taken, it is
incumbent on each party to take the Court's indications seriously into account, and 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 affect the results of conduct which the Court
may rule to have been contrary to international law.

290. In the present Judgment, the Court has found that the Respondent has, by its activities in
relation to the Applicant, violated a number of principles of customary international law. The
Court has however also to recall a further principle of international law, one which is
complementary to the principles of a prohibitive nature examined above, and respect for which is
essential in the world of today: the principle that the parties to any dispute, particularly any
dispute the continuance of which is likely to endanger the maintenance of international peace and
security, should seek a solution by peaceful means. Enshrined in Article 33 of the United Nations
Charter, which also indicates a number of peaceful means which are available, this principle has
also the status of customary law. In the present case, the Court has already taken note, in its
Order indicating provisional measures and in its Judgment on jurisdiction and admissibility
(I.C.J. Reports 1984, pp. 183-184, paras. 34 ff., pp. 438-441, paras. 102 ff.) of the diplomatic
negotiation known as the Contadora Process, which appears to the Court to correspond closely to
the spirit of the principle which the Court has here recalled.

291. In its Order indicating provisional measures, the Court took note of the Contadora Process,
and of the fact that it had been endorsed by the United Nations Security Council and General
Assembly (I.C.J. Reports 1984, pp. 183- 184, para. 34). During that phase of the proceedings as
during the phase devoted to jurisdiction and admissibility, both Nicaragua and the United States
have expressed full support for the Contadora Process, and praised the results achieved so far.
Therefore, the Court could not but take cognizance of this effort, which merits full respect and
consideration as a unique contribution to the solution of the difficult situation in the region. The
Court is aware that considerable progress has been achieved on the main objective of the process,
namely agreement on texts relating to arms control and reduction, exclusion of foreign military
bases or military interference and withdrawal of foreign advisers, prevention of arms traffic,
stopping the support of groups aiming at the destabilization of any of the Governments
concerned, guarantee of human rights and enforcement of democratic processes, as well as on
co-operation for the creation of a mechanism for the verification of the agreements concerned.
The work of the Contadora Group may facilitate the delicate and difficult negotiations, in accord
with the letter and spirit of the United Nations Charter, that are now required. The Court recalls
to both Parties to the present case the need to co-operate 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.

292. For these reasons,

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 United States of
America deposited on 26 August 1946;

IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; 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 Lacharriere; 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 Lacharriere; 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 Lacharriere; Judges Lachs, Ruda,


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

AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.

(5) By twelve votes to three,

Decides that the United States of America, by directing or authorizing overflights 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 Lacharriere; Judges Lachs, Ruda,


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

AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.


(6) By twelve votes to three,

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;

IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges Lachs, Ruda,


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

AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.

(7) By fourteen votes to one,

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 Lacharriere; 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 *148

(6) hereof, has acted in breach of its obligations under customary international law in this
respect;

IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges Lachs, Ruda,


Elias, Ago, Sette-Camara, Schwebel, Sir Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen;
Judge ad hoc Colliard;

AGAINST: Judge Oda.

(9) By fourteen votes to one,

Finds that the United States of America, by producing in 1983 a manual entitled Operaciones
sicologicas 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;

IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges Lachs, Ruda,


Elias, Ago, Sette-Camara, Schwebel, Sir Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen;
Judge ad hoc Colliard;

AGAINST: Judge Oda.

(10) 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 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;

IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges Lachs, Ruda,


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

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 Lacharriere; 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 Lacharriere; 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 Lacharriere; 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,

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;

IN FAVOUR: President Nagendra Singh; Vice-President de Lacharriere; Judges Lachs, Ruda,


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

AGAINST: Judge Schwebel.

(15) By fourteen votes to one,

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 Lacharriere; Judges Lachs, Ruda,


Elias, Oda, Ago, Sette-Camara, Sir 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.

Additional Concurring and Dissenting opinions Omitted.


G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and
represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA,
minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD
and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and
NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and
DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and
represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN,
minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO,
minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA
CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO,
JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T.
NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY
NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all
surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ,
KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors,
represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE
VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and
TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented
by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all
surnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA,
CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and
represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN
JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE
MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all
surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS
BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the
Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U.
ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.

Oposa Law Office for petitioners.

The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology
which the petitioners dramatically associate with the twin concepts of "inter-generational
responsibility" and "inter-generational justice." Specifically, it touches on the issue of whether the
said petitioners have a cause of action to "prevent the misappropriation or impairment" of Philippine
rainforests and "arrest the unabated hemorrhage of the country's vital life support systems and
continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati,
Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal
plaintiffs therein, now the principal petitioners, are all minors duly represented and joined by their
respective parents. Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc.
(PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia,
engaging in concerted action geared for the protection of our environment and natural resources.
The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the
Department of Environment and Natural Resources (DENR). His substitution in this petition by the
new Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the
petitioners. 1 The complaint 2 was instituted as a taxpayers' class suit 3 and alleges that the plaintiffs "are
all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment
of the natural resource treasure that is the country's virgin tropical forests." The same was filed for
themselves and others who are equally concerned about the preservation of said resource but are "so
numerous that it is impracticable to bring them all before the Court." The minors further asseverate that
they "represent their generation as well as generations yet unborn." 4 Consequently, it is prayed for that
judgment be rendered:

. . . ordering defendant, his agents, representatives and other persons acting in his
behalf to

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or approving
new timber license agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5

The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands
has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant
rainforests in which varied, rare and unique species of flora and fauna may be found; these
rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are also the
habitat of indigenous Philippine cultures which have existed, endured and flourished since time
immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology,
the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest
cover and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other uses;
the distortion and disturbance of this balance as a consequence of deforestation have resulted in a
host of environmental tragedies, such as (a) water shortages resulting from drying up of the water
table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of
the water table as a result of the intrusion therein of salt water, incontrovertible examples of which
may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and
the consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded
estimated at one billion (1,000,000,000) cubic meters per annum approximately the size of the
entire island of Catanduanes, (d) the endangering and extinction of the country's unique, rare and
varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the
disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a critical reduction in marine
resource productivity, (g) recurrent spells of drought as is presently experienced by the entire
country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i)
the floodings of lowlands and agricultural plains arising from the absence of the absorbent
mechanism of forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams
constructed and operated for the purpose of supplying water for domestic uses, irrigation and the
generation of electric power, and (k) the reduction of the earth's capacity to process carbon dioxide
gases which has led to perplexing and catastrophic climatic changes such as the phenomenon of
global warming, otherwise known as the "greenhouse effect."

Plaintiffs further assert that the adverse and detrimental consequences of continued and
deforestation are so capable of unquestionable demonstration that the same may be submitted as a
matter of judicial notice. This notwithstanding, they expressed their intention to present expert
witnesses as well as documentary, photographic and film evidence in the course of the trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares
of rainforests constituting roughly 53% of the country's land mass.

9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million
hectares of said rainforests or four per cent (4.0%) of the country's land area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago
and about 3.0 million hectares of immature and uneconomical secondary growth
forests.

11. Public records reveal that the defendant's, predecessors have granted timber
license agreements ('TLA's') to various corporations to cut the aggregate area of 3.89
million hectares for commercial logging purposes.

A copy of the TLA holders and the corresponding areas covered is hereto attached
as Annex "A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25
hectares per hour nighttime, Saturdays, Sundays and holidays included the
Philippines will be bereft of forest resources after the end of this ensuing decade, if
not earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable
damage of this continued trend of deforestation to the plaintiff minor's generation and
to generations yet unborn are evident and incontrovertible. As a matter of fact, the
environmental damages enumerated in paragraph 6 hereof are already being felt,
experienced and suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the
remaining forest stands will work great damage and irreparable injury to plaintiffs
especially plaintiff minors and their successors who may never see, use, benefit
from and enjoy this rare and unique natural resource treasure.

This act of defendant constitutes a misappropriation and/or impairment of the natural


resource property he holds in trust for the benefit of plaintiff minors and succeeding
generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology
and are entitled to protection by the State in its capacity as the parens patriae.

16. Plaintiff have exhausted all administrative remedies with the defendant's office.
On March 2, 1990, plaintiffs served upon defendant a final demand to cancel all
logging permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the
continuing serious damage and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act
violative of the rights of plaintiffs, especially plaintiff minors who may be left with a
country that is desertified (sic), bare, barren and devoid of the wonderful flora, fauna
and indigenous cultures which the Philippines had been abundantly blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to


the public policy enunciated in the Philippine Environmental Policy which, in pertinent
part, states that it is the policy of the State

(a) to create, develop, maintain and improve conditions under which man and nature
can thrive in productive and enjoyable harmony with each other;

(b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos and;

(c) to ensure the attainment of an environmental quality that is conductive to a life of


dignity and well-being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's


is contradictory to the Constitutional policy of the State to

a. effect "a more equitable distribution of opportunities, income and wealth" and
"make full and efficient use of natural resources (sic)." (Section 1, Article XII of the
Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section
14, Article XIV,id.);

d. "protect and advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature." (Section 16, Article II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind the natural
law and violative of plaintiffs' right to self-preservation and perpetuation.

22. There is no other plain, speedy and adequate remedy in law other than the
instant action to arrest the unabated hemorrhage of the country's vital life support
systems and continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the
complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him
and (2) the issue raised by the plaintiffs is a political question which properly pertains to the
legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion, the
petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action, (2) the
motion is dilatory and (3) the action presents a justiciable question as it involves the defendant's
abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to
dismiss. 7 In the said order, not only was the defendant's claim that the complaint states no cause of
action against him and that it raises a political question sustained, the respondent Judge further ruled
that the granting of the relief prayed for would result in the impairment of contracts which is prohibited by
the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of
Court and ask this Court to rescind and set aside the dismissal order on the ground that the
respondent Judge gravely abused his discretion in dismissing the action. Again, the parents of the
plaintiffs-minors not only represent their children, but have also joined the latter in this case. 8

On 14 May 1992, We resolved to give due course to the petition and required the parties to submit
their respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf
of the respondents and the petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as it
contains sufficient allegations concerning their right to a sound environment based on Articles 19, 20
and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating
the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy),
Section 16, Article II of the 1987 Constitution recognizing the right of the people to a balanced and
healthful ecology, the concept of generational genocide in Criminal Law and the concept of man's
inalienable right to self-preservation and self-perpetuation embodied in natural law. Petitioners
likewise rely on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard
the people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in
granting Timber License Agreements (TLAs) to cover more areas for logging than what is available
involves a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment clause,
petitioners maintain that the same does not apply in this case because TLAs are not contracts. They
likewise submit that even if TLAs may be considered protected by the said clause, it is well settled
that they may still be revoked by the State when the public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their complaint a
specific legal right violated by the respondent Secretary for which any relief is provided by law. They
see nothing in the complaint but vague and nebulous allegations concerning an "environmental right"
which supposedly entitles the petitioners to the "protection by the state in its capacity as parens
patriae." Such allegations, according to them, do not reveal a valid cause of action. They then
reiterate the theory that the question of whether logging should be permitted in the country is a
political question which should be properly addressed to the executive or legislative branches of
Government. They therefore assert that the petitioners' resources is not to file an action to court, but
to lobby before Congress for the passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done
by the State without due process of law. Once issued, a TLA remains effective for a certain period of
time usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor
cancelled unless the holder has been found, after due notice and hearing, to have violated the terms
of the agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the requirements of due
process.

Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil
Case No. 90-777 as a class suit. The original defendant and the present respondents did not take
issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit.
The subject matter of the complaint is of common and general interest not just to several, but to all
citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes
impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that
the plaintiffs therein are numerous and representative enough to ensure the full protection of all
concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule
3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the
latter being but an incident to the former.

This case, however, has a special and novel element. Petitioners minors assert that they represent
their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for
themselves, for others of their generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned.
Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm
and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal
and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and
other natural resources to the end that their exploration, development and utilization be equitably
accessible to the present as well as future generations. 10 Needless to say, every generation has a
responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and
healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment
constitutes, at the same time, the performance of their obligation to ensure the protection of that right for
the generations to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits
of the petition.

After a careful perusal of the complaint in question and a meticulous consideration and evaluation of
the issues raised and arguments adduced by the parties, We do not hesitate to find for the
petitioners and rule against the respondent Judge's challenged order for having been issued with
grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions of the said order
reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot help
but agree with the defendant. For although we believe that plaintiffs have but the
noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a
specific legal right they are seeking to enforce and protect, or a specific legal wrong
they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete with vague assumptions and vague
conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action
in its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed with
political color and involving a matter of public policy, may not be taken cognizance of
by this Court without doing violence to the sacred principle of "Separation of Powers"
of the three (3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease and desist from receiving,
accepting, processing, renewing or approving new timber license agreements. For to
do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the
complaint is replete with vague assumptions and conclusions based on unverified data. A reading of
the complaint itself belies these conclusions.

The complaint focuses on one specific fundamental legal right the right to a balanced and
healthful ecology which, for the first time in our nation's constitutional history, is solemnly
incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:

Sec. 16. The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature.

This right unites with the right to health which is provided for in the preceding section
of the same article:

Sec. 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles
and State Policies and not under the Bill of Rights, it does not follow that it is less important than any
of the civil and political rights enumerated in the latter. Such a right belongs to a different category of
rights altogether for it concerns nothing less than self-preservation and self-perpetuation aptly and
fittingly stressed by the petitioners the advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic rights need not even be written in the
Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly
mentioned in the fundamental charter, it is because of the well-founded fear of its framers that
unless the rights to a balanced and healthful ecology and to health are mandated as state policies by
the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a
solemn obligation to preserve the first and protect and advance the second, the day would not be too
far when all else would be lost not only for the present generation, but also for those to come
generations which stand to inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from
impairing the environment. During the debates on this right in one of the plenary sessions of the
1986 Constitutional Commission, the following exchange transpired between Commissioner Wilfrido
Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:

Does this section mandate the State to provide sanctions against all
forms of pollution air, water and noise pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment


necessarily carries with it the correlative duty of not impairing the
same and, therefore, sanctions may be provided for impairment of
environmental balance. 12

The said right implies, among many other things, the judicious management and conservation of the
country's forests.

Without such forests, the ecological or environmental balance would be irreversiby disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as
well as the other related provisions of the Constitution concerning the conservation, development
and utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on
10 June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of
Environment and Natural Resources "shall be the primary government agency responsible for the
conservation, management, development and proper use of the country's environment and natural
resources, specifically forest and grazing lands, mineral, resources, including those in reservation and
watershed areas, and lands of the public domain, as well as the licensing and regulation of all natural
resources as may be provided for by law in order to ensure equitable sharing of the benefits derived
therefrom for the welfare of the present and future generations of Filipinos." Section 3 thereof makes the
following statement of policy:

Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure
the sustainable use, development, management, renewal, and conservation of the
country's forest, mineral, land, off-shore areas and other natural resources, including
the protection and enhancement of the quality of the environment, and equitable
access of the different segments of the population to the development and the use of
the country's natural resources, not only for the present generation but for future
generations as well. It is also the policy of the state to recognize and apply a true
value system including social and environmental cost implications relative to their
utilization, development and conservation of our natural resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of
1987, 15specifically in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the
Filipino people, the full exploration and development as well as the judicious
disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources, consistent with the necessity of maintaining a sound ecological balance
and protecting and enhancing the quality of the environment and the objective of
making the exploration, development and utilization of such natural resources
equitably accessible to the different segments of the present as well as future
generations.
(2) The State shall likewise recognize and apply a true value system that takes into
account social and environmental cost implications relative to the utilization,
development and conservation of our natural resources.

The above provision stresses "the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment." Section 2 of the same Title, on the other
hand, specifically speaks of the mandate of the DENR; however, it makes particular reference to the
fact of the agency's being subject to law and higher authority. Said section provides:

Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall
be primarily responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the
State's constitutional mandate to control and supervise the exploration, development,
utilization, and conservation of the country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as
the bases for policy formulation, and have defined the powers and functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution, specific
statutes already paid special attention to the "environmental right" of the present and future
generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152
(Philippine Environment Code) were issued. The former "declared a continuing policy of the State (a)
to create, develop, maintain and improve conditions under which man and nature can thrive in
productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other
requirements of present and future generations of Filipinos, and (c) to insure the attainment of an
environmental quality that is conducive to a life of dignity and well-being." 16 As its goal, it speaks of
the "responsibilities of each generation as trustee and guardian of the environment for succeeding
generations." 17 The latter statute, on the other hand, gave flesh to the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is
as clear as the DENR's duty under its mandate and by virtue of its powers and functions under
E.O. No. 192 and the Administrative Code of 1987 to protect and advance the said right.

A denial or violation of that right by the other who has the corelative duty or obligation to respect or
protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs,
which they claim was done with grave abuse of discretion, violated their right to a balanced and
healthful ecology; hence, the full protection thereof requires that no further TLAs should be renewed
or granted.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of the other;
and its essential elements are legal right of the plaintiff, correlative obligation of the
defendant, and act or omission of the defendant in violation of said legal right. 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails
to state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of
the facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of
falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted.
The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court
render a valid judgment in accordance with the prayer in the complaint? 20 InMilitante vs.
Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care and
circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of
action] lest, by its failure to manifest a correct appreciation of the facts alleged and deemed hypothetically
admitted, what the law grants or recognizes is effectively nullified. If that happens, there is a blot on the
legal order. The law itself stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements under the introductory
affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF
ACTION, to be adequate enough to show, prima facie, the claimed violation of their rights. On the
basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing,
however, that insofar as the cancellation of the TLAs is concerned, there is the need to implead, as
party defendants, the grantees thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy
formulation or determination by the executive or legislative branches of Government is not squarely
put in issue. What is principally involved is the enforcement of a right vis-a-vis policies already
formulated and expressed in legislation. It must, nonetheless, be emphasized that the political
question doctrine is no longer, the insurmountable obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and legislative actions from judicial inquiry or review. The
second paragraph of section 1, Article VIII of the Constitution states that:

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a
distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power,
involving the settlement of conflicting rights as conferred as law. The second part of
the authority represents a broadening of judicial power to enable the courts of justice
to review what was before forbidden territory, to wit, the discretion of the political
departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme
Court, the power to rule upon even the wisdom of the decisions of the executive and
the legislature and to declare their acts invalid for lack or excess of jurisdiction
because tainted with grave abuse of discretion. The catch, of course, is the meaning
of "grave abuse of discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even less tenable
and decisive. The reason is that, even if we were to assume that the issue presented
before us was political in nature, we would still not be precluded from revolving it
under the expanded jurisdiction conferred upon us that now covers, in proper cases,
even the political question. Article VII, Section 1, of the Constitution clearly provides:
...
The last ground invoked by the trial court in dismissing the complaint is the non-impairment of
contracts clause found in the Constitution. The court a quo declared that:

The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease and desist from receiving,
accepting, processing, renewing or approving new timber license agreements. For to
do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even
invoke in his motion to dismiss the non-impairment clause. If he had done so, he would have acted
with utmost infidelity to the Government by providing undue and unwarranted benefits and
advantages to the timber license holders because he would have forever bound the Government to
strictly respect the said licenses according to their terms and conditions regardless of changes in
policy and the demands of public interest and welfare. He was aware that as correctly pointed out by
the petitioners, into every timber license must be read Section 20 of the Forestry Reform Code (P.D.
No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may amend,
modify, replace or rescind any contract, concession, permit, licenses or any other
form of privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not
a contract, property or a property right protested by the due process clause of the
Constitution. In Tan vs. Director of Forestry, 25 this Court held:

. . . A timber license is an instrument by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. A timber
license is not a contract within the purview of the due process clause; it is only a
license or privilege, which can be validly withdrawn whenever dictated by public
interest or public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful, and


is not a contract between the authority, federal, state, or municipal, granting it and
the person to whom it is granted; neither is it property or a property right, nor does it
create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held that the
granting of license does not create irrevocable rights, neither is it property or property
rights (People vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive
Secretary: 26

. . . Timber licenses, permits and license agreements are the principal instruments by
which the State regulates the utilization and disposition of forest resources to the end
that public welfare is promoted. And it can hardly be gainsaid that they merely
evidence a privilege granted by the State to qualified entities, and do not vest in the
latter a permanent or irrevocable right to the particular concession area and the
forest products therein. They may be validly amended, modified, replaced or
rescinded by the Chief Executive when national interests so require. Thus, they are
not deemed contracts within the purview of the due process of law clause
[See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v.
Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be passed. 27

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case does
not involve a law or even an executive issuance declaring the cancellation or modification of existing
timber licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting
further that a law has actually been passed mandating cancellations or modifications, the same
cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very
nature and purpose, such as law could have only been passed in the exercise of the police power of
the state for the purpose of advancing the right of the people to a balanced and healthful ecology,
promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:

The freedom of contract, under our system of government, is not meant to be


absolute. The same is understood to be subject to reasonable legislative regulation
aimed at the promotion of public health, moral, safety and welfare. In other words,
the constitutional guaranty of non-impairment of obligations of contract is limited by
the exercise of the police power of the State, in the interest of public health, safety,
moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American
Life Insurance Co. vs. Auditor General, 30 to wit:

Under our form of government the use of property and the making of contracts are
normally matters of private and not of public concern. The general rule is that both
shall be free of governmental interference. But neither property rights nor contract
rights are absolute; for government cannot exist if the citizen may at will use his
property to the detriment of his fellows, or exercise his freedom of contract to work
them harm. Equally fundamental with the private right is that of the public to regulate
it in the common interest.

In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with
respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing,
renewing or approving new timber licenses for, save in cases of renewal, no contract would have as
of yet existed in the other instances. Moreover, with respect to renewal, the holder is not entitled to it
as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the
challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby
set aside. The petitioners may therefore amend their complaint to implead as defendants the holders
or grantees of the questioned timber license agreements.

No pronouncement as to costs.
SO ORDERED.

G.R. No. 101063, July 30, 1993


Juan Antonio Oposa, Anna Rosario Oposa, Jose Alfonso Oposa, et al. and the Philippine Ecological Network vs.
Fulgencio Factoran, in his capacity as the Secretary of the Department of Environment and Natural Resources and
Eriberto U. Rosario, Presiding Judge of the RTC, Makati, Branch 66

Facts: The complaint was instituted as a taxpayers class suit and alleges that the plaintiffs, minors who are represented by their
parents, are all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the
natural resource treasure that is the countrys virgin tropical forests. The minors further acerbate that they represent their
generation as well as generations yet unborn. They prayed that the defendant and his agents cancel all existing timber license
agreements in the country and that they cease and desist from receiving, accepting, processing, renewing or approving new
timber license agreements. They contend that the continued abuse of the natural resources of the country are causing various
environmental tragedies and such violate peoples right to a healthful environment.

Secretary Factoran filed a Motion to Dismiss based on two grounds: first, the plaintiffs have no cause of action against him and
second, the issue raised by the plaintiffs is a political question which properly pertains to the legislative or executive branches of
the Government. The RTC Judge issued an order granting the aforementioned motion to dismiss. The Judge further ruled that
the granting of the relief prayed for would result in the impairment of contracts which is prohibited by the fundamental law of the
land. Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 on the ground that the Judge gravely abused
his discretion in dismissing the action.

Issue: Whether or not the petitioners have a cause of action to prevent the misappropriation or impairment of Philippine
rainforests and arrest the unabated hemorrhage of the countrys vital life support systems and continued rape of Mother Earth.

Held: Yes. They can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility
insofar as the right to a balanced and healthful ecology is concerned. Every generation has a responsibility to the next to
preserve that rhythm and harmony of nature for the full enjoyment of a balanced and healthful ecology. The minors assertion of
their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of
that right for the generations to come.

In addition, while the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State
Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights
enumerated in the latter. Furthermore, the right to a balanced and healthful ecology carries with it the correlative duty to refrain
from impairing the environment and as stated by law, the Department of Environment and Natural Resources shall be the
primary government agency responsible for the conservation, management, development and proper use of the countys
environment and natural resources. Thus, the right of the petitioners (and all those they represent) to a balanced and healthful
ecology is as clear as the DENRs duty under its mandate and by virtue of its power and functions under E.O. No. 192 and the
Administrative Code of 1987 to protect and advance the said right.

A denial or violation of that right by the other who has the correlative duty or obligation to respect or protect the same gives rise
to a cause of action.

In re Yamashita
U.S. Supreme Court
327 U.S. 1, 13-16, 28, 34-35 (1946)

FACTS
After World War II, Japanese General Tomoyuki Yamashita was tried before a U.S. military tribunal in
Manilla for war crimes committed by troops under his command.
-U.S. claimed that D failed to discharge his duty as a commander to control the operations of the
members of his command, allowing them to commit brutal atrocities and other high crimes against the
U.S. and allies and was in violation of laws of war.
ISSUE
Does the law of war impose upon an army commander to take appropriate measures to control his troops
for prevention of violations of the law of war which are likely to attend occupation of hostile territory, and
whether he may be charged with personal responsibility for the failure to take such measures when
violations result?
HOLDING
There is an affirmative duty to take such measures as were in his power and appropriate in the
circumstances to protect prisoners of war and civilians.
DISCUSSION
Purpose of the law is to protect civilians and prisoners of war from brutality.
Fourth Hague Convention of 1907: Armed force must be commanded by a person responsible for his
subordinates.

Syllabus

Prior to September 3, 1945, petitioner was the Commanding General of the Fourteenth
Army Group of the Imperial Japanese Army in the Philippine Islands. On that day, he
surrendered to the United States Army and became a prisoner of war. Respondent was
the Commanding General of the United States Army Forces, Western Pacific, whose
command embraced the Philippine Islands. Respondent appointed a military
commission to try the petitioner on a charge of violation of the law of war. The gist of the
charge was that petitioner had failed in his duty as an army commander to control the
operations of his troops, "permitting them to commit" specified atrocities against the
civilian population and prisoners of war. Petitioner was found guilty, and sentenced to
death.

Held:

1. The military commission appointed to try the petitioner was lawfully created. P. 327
U. S. 9.

(a) Nature of the authority to create military commissions for the trial of enemy
combatants for offenses against the law of war, and principles governing the exercise of
jurisdiction by such commissions, considered. Citing Ex parte Quirin, 317 U. S. 1, and
other cases. Pp. 327 U. S. 7-9.

(b) A military commission may be appointed by any field commander, or by any


commander competent to appoint a general court-martial, as was respondent by order
of the President. P. 327 U. S. 10.

(c) The order creating the military commission was in conformity with the Act of
Congress (10 U.S.C. 1471-1593) sanctioning
Page 327 U. S. 2

the creation of such tribunals for the trial of offenses against the law of war committed
by enemy combatants. P. 327 U. S. 11.

2. Trial of the petitioner by the military commission was lawful, although hostilities had
ceased. P. 327 U. S. 12.

(a) A violation of the law of war, committed before the cessation of hostilities, may
lawfully be tried by a military commission after hostilities have ceased -- at least until
peace has been officially recognized by treaty or proclamation by the political branch of
the Government. P. 327 U. S. 12.

(b) Trial of the petitioner by the military commission was authorized by the political
branch of the Government, by military command, by international law and usage, and by
the terms of the surrender of the Japanese government. P. 327 U. S. 13.

3. The charge preferred against the petitioner was of a violation of the law of war.
P. 327 U. S. 13.

(a) The law of war imposes on an army commander a duty to take such appropriate
measures as are within his power to control the troops under his command for the
prevention of acts which are violations of the law of war and which are likely to attend
the occupation of hostile territory by an uncontrolled soldiery, and he may be charged
with personal responsibility for his failure to take such measures when violations result.
Pp. 327 U. S. 14,327 U. S. 16.

(b) What measures, if any, petitioner took to prevent the alleged violations of the law of
war, and whether such measures as he may have taken were appropriate and sufficient
to discharge the duty imposed upon him, were questions within the peculiar
competence of the military officers composing the commission, and were for it to
decide. P. 327 U. S. 16.

(c) Charges of violations of the law of war triable before a military tribunal need not be
stated with the precision of a common law indictment. P. 327 U. S. 17.

(d) The allegations of the charge here, tested by any reasonable standard, sufficiently
set forth a violation of the law of war, and the military commission had authority to try
and to decide the issue which it raised. P.327 U. S. 17.

4. In admitting on behalf of the prosecution a deposition and hearsay and opinion


evidence, the military commission did not violate any Act of Congress, treaty, or military
command defining the commission's authority. Pp. 327 U. S. 18, 327 U. S. 23.

(a) The Articles of War, including Articles 25 and 38, are not applicable to the trial of an
enemy combatant by a military commission
Page 327 U. S. 3

for violations of the law of war, and imposed no restrictions upon the procedure to be
followed in such trial. Pp. 327 U. S. 19-20.

(b) Article 63 of the Geneva Convention of 1929, which provides that

"Sentence may be pronounced against a prisoner of war only by the same courts and
according to the same procedure as in the case of persons belonging to the armed
forces of the detaining Power,"

does not require that Articles 25 and 38 of the Articles of War be applied in the trial of
the petitioner. Article 63 refers to sentence "pronounced against a prisoner of war" for
an offense committed while a prisoner of war, and not for a violation of the law of war
committed while a combatant. P. 327 U. S. 20.

(c) The Court expresses no opinion on the question of the wisdom of considering such
evidence as was received in this proceeding, nor on the question whether the action of
a military tribunal in admitting evidence which Congress or controlling military command
has directed to be excluded may be drawn in question by petition for habeas corpus or
prohibition. P.327 U. S. 23.

5. On an application for habeas corpus, the Court is not concerned with the guilt or
innocence of the petitioner. P. 327 U. S. 8.

6. By sanctioning trials of enemy aliens by military commission for offenses against the
law of war, Congress recognized the right of the accused to make a defense, and did
not foreclose their right to contend that the Constitution or laws of the United States
withhold authority to proceed with the trial. P.327 U. S. 9.

7. The Court does not appraise the evidence on which the petitioner here was
convicted. P. 327 U. S. 17.

8. The military commission's rulings on evidence and on the mode of conducting the
proceedings against the petitioner are not reviewable by the courts, but only by the
reviewing military authorities. From this viewpoint, it is unnecessary to consider what, in
other situations, the Fifth Amendment might require. Pp. 327 U. S. 8, 327 U. S. 23.

9. Article 60 of the Geneva Convention of 1929, which provides that,

"At the opening of a judicial proceeding directed against a prisoner of war, the detaining
Power shall advise the representative of the protecting Power thereof as soon as
possible, and always before the date set for the opening of the trial,"

applies only to persons who are subjected to judicial proceedings for offenses
committed while prisoners of war. P. 327 U. S. 23.
10. The detention of the petitioner for trial, and his detention upon his conviction, subject
to the prescribed review by the military authorities, were lawful. P. 327 U. S. 25.

Leave and petition denied.

Page 328 U. S. 4

No. 61, Misc. Application for leave to file a petition for writs of habeas corpus and
prohibition in this Court challenging the jurisdiction and legal authority of a military
commission which convicted applicant of a violation of the law of war and sentenced
him to be hanged. Denied.

No. 672. Petition for certiorari to review an order of the Supreme Court of the
Commonwealth of the Philippines, 42 Off.Gaz. 664, denying an application for writs of
habeas corpus and prohibition likewise challenging the jurisdiction and legal authority of
the military commission which tried and convicted petitioner. Denied.

U.S. Supreme Court


In re Yamashita, 327 U.S. 1 (1946)

In re Yamashita

No. 61, Misc.

Argued January 7, 8, 1946

Decided February 4, 1946*

327 U.S. 1

APPLICATION FOR LEAVE TO FILE PETITION FOR WRIT OF

HABEAS CORPUS AND WRIT OF PROHIBITION

Syllabus

Prior to September 3, 1945, petitioner was the Commanding General of the Fourteenth
Army Group of the Imperial Japanese Army in the Philippine Islands. On that day, he
surrendered to the United States Army and became a prisoner of war. Respondent was
the Commanding General of the United States Army Forces, Western Pacific, whose
command embraced the Philippine Islands. Respondent appointed a military
commission to try the petitioner on a charge of violation of the law of war. The gist of the
charge was that petitioner had failed in his duty as an army commander to control the
operations of his troops, "permitting them to commit" specified atrocities against the
civilian population and prisoners of war. Petitioner was found guilty, and sentenced to
death.

Held:

1. The military commission appointed to try the petitioner was lawfully created. P. 327
U. S. 9.

(a) Nature of the authority to create military commissions for the trial of enemy
combatants for offenses against the law of war, and principles governing the exercise of
jurisdiction by such commissions, considered. Citing Ex parte Quirin, 317 U. S. 1, and
other cases. Pp. 327 U. S. 7-9.

(b) A military commission may be appointed by any field commander, or by any


commander competent to appoint a general court-martial, as was respondent by order
of the President. P. 327 U. S. 10.

(c) The order creating the military commission was in conformity with the Act of
Congress (10 U.S.C. 1471-1593) sanctioning

Page 327 U. S. 2

the creation of such tribunals for the trial of offenses against the law of war committed
by enemy combatants. P. 327 U. S. 11.

2. Trial of the petitioner by the military commission was lawful, although hostilities had
ceased. P. 327 U. S. 12.

(a) A violation of the law of war, committed before the cessation of hostilities, may
lawfully be tried by a military commission after hostilities have ceased -- at least until
peace has been officially recognized by treaty or proclamation by the political branch of
the Government. P. 327 U. S. 12.

(b) Trial of the petitioner by the military commission was authorized by the political
branch of the Government, by military command, by international law and usage, and by
the terms of the surrender of the Japanese government. P. 327 U. S. 13.

3. The charge preferred against the petitioner was of a violation of the law of war.
P. 327 U. S. 13.
(a) The law of war imposes on an army commander a duty to take such appropriate
measures as are within his power to control the troops under his command for the
prevention of acts which are violations of the law of war and which are likely to attend
the occupation of hostile territory by an uncontrolled soldiery, and he may be charged
with personal responsibility for his failure to take such measures when violations result.
Pp. 327 U. S. 14,327 U. S. 16.

(b) What measures, if any, petitioner took to prevent the alleged violations of the law of
war, and whether such measures as he may have taken were appropriate and sufficient
to discharge the duty imposed upon him, were questions within the peculiar
competence of the military officers composing the commission, and were for it to
decide. P. 327 U. S. 16.

(c) Charges of violations of the law of war triable before a military tribunal need not be
stated with the precision of a common law indictment. P. 327 U. S. 17.

(d) The allegations of the charge here, tested by any reasonable standard, sufficiently
set forth a violation of the law of war, and the military commission had authority to try
and to decide the issue which it raised. P.327 U. S. 17.

4. In admitting on behalf of the prosecution a deposition and hearsay and opinion


evidence, the military commission did not violate any Act of Congress, treaty, or military
command defining the commission's authority. Pp. 327 U. S. 18, 327 U. S. 23.

(a) The Articles of War, including Articles 25 and 38, are not applicable to the trial of an
enemy combatant by a military commission

Page 327 U. S. 3

for violations of the law of war, and imposed no restrictions upon the procedure to be
followed in such trial. Pp. 327 U. S. 19-20.

(b) Article 63 of the Geneva Convention of 1929, which provides that

"Sentence may be pronounced against a prisoner of war only by the same courts and
according to the same procedure as in the case of persons belonging to the armed
forces of the detaining Power,"

does not require that Articles 25 and 38 of the Articles of War be applied in the trial of
the petitioner. Article 63 refers to sentence "pronounced against a prisoner of war" for
an offense committed while a prisoner of war, and not for a violation of the law of war
committed while a combatant. P. 327 U. S. 20.

(c) The Court expresses no opinion on the question of the wisdom of considering such
evidence as was received in this proceeding, nor on the question whether the action of
a military tribunal in admitting evidence which Congress or controlling military command
has directed to be excluded may be drawn in question by petition for habeas corpus or
prohibition. P.327 U. S. 23.

5. On an application for habeas corpus, the Court is not concerned with the guilt or
innocence of the petitioner. P. 327 U. S. 8.

6. By sanctioning trials of enemy aliens by military commission for offenses against the
law of war, Congress recognized the right of the accused to make a defense, and did
not foreclose their right to contend that the Constitution or laws of the United States
withhold authority to proceed with the trial. P.327 U. S. 9.

7. The Court does not appraise the evidence on which the petitioner here was
convicted. P. 327 U. S. 17.

8. The military commission's rulings on evidence and on the mode of conducting the
proceedings against the petitioner are not reviewable by the courts, but only by the
reviewing military authorities. From this viewpoint, it is unnecessary to consider what, in
other situations, the Fifth Amendment might require. Pp. 327 U. S. 8, 327 U. S. 23.

9. Article 60 of the Geneva Convention of 1929, which provides that,

"At the opening of a judicial proceeding directed against a prisoner of war, the detaining
Power shall advise the representative of the protecting Power thereof as soon as
possible, and always before the date set for the opening of the trial,"

applies only to persons who are subjected to judicial proceedings for offenses
committed while prisoners of war. P. 327 U. S. 23.

10. The detention of the petitioner for trial, and his detention upon his conviction, subject
to the prescribed review by the military authorities, were lawful. P. 327 U. S. 25.

Leave and petition denied.

Page 328 U. S. 4

No. 61, Misc. Application for leave to file a petition for writs of habeas corpus and
prohibition in this Court challenging the jurisdiction and legal authority of a military
commission which convicted applicant of a violation of the law of war and sentenced
him to be hanged. Denied.

No. 672. Petition for certiorari to review an order of the Supreme Court of the
Commonwealth of the Philippines, 42 Off.Gaz. 664, denying an application for writs of
habeas corpus and prohibition likewise challenging the jurisdiction and legal authority of
the military commission which tried and convicted petitioner. Denied.

MR. CHIEF JUSTICE STONE delivered the opinion of the Court.


No. 61 Miscellaneous is an application for leave to file a petition for writs of habeas
corpus and prohibition in this Court. No. 672 is a petition for certiorari to review an order
of the Supreme Court of the the Philippines (28 U.S.C. 349) denying petitioner's
application to that court for writs of habeas corpus and prohibition. As both applications
raise substantially like questions, and because of the importance and novelty of some of
those presented, we set the two applications down for oral argument as one case.

Page 327 U. S. 5

From the petitions and supporting papers, it appears that, prior to September 3, 1945,
petitioner was the Commanding General of the Fourteenth Army Group of the Imperial
Japanese Army in the Philippine Islands. On that date, he surrendered to and became a
prisoner of war of the United States Army Forces in Baguio, Philippine Islands. On
September 25th, by order of respondent, Lieutenant General Wilhelm D. Styer,
Commanding General of the United States Army Forces, Western Pacific, which
command embraces the Philippine Islands, petitioner was served with a charge
prepared by the Judge Advocate General's Department of the Army, purporting to
charge petitioner with a violation of the law of war. On October 8, 1945, petitioner, after
pleading not guilty to the charge, was held for trial before a military commission of five
Army officers appointed by order of General Styer. The order appointed six Army
officers, all lawyers, as defense counsel. Throughout the proceedings which followed,
including those before this Court, defense counsel have demonstrated their professional
skill and resourcefulness and their proper zeal for the defense with which they were
charged.

On the same date, a bill of particulars was filed by the prosecution, and the commission
heard a motion made in petitioner's behalf to dismiss the charge on the ground that it
failed to state a violation of the law of war. On October 29th, the commission was
reconvened, a supplemental bill of particulars was filed, and the motion to dismiss was
denied. The trial then proceeded until its conclusion on December 7, 1945, the
commission hearing two hundred and eighty-six witnesses, who gave over three
thousand pages of testimony. On that date, petitioner was found guilty of the offense as
charged, and sentenced to death by hanging.

The petitions for habeas corpus set up that the detention of petitioner for the purpose of
the trial was unlawful for

Page 327 U. S. 6

reasons which are now urged as showing that the military commission was without
lawful authority or jurisdiction to place petitioner on trial, as follows:

(a) That the military commission which tried and convicted petitioner was not lawfully
created, and that no military commission to try petitioner for violations of the law of war
could lawfully be convened after the cessation of hostilities between the armed forces of
the United States and Japan;
(b) that the charge preferred against petitioner fails to charge him with a violation of the
law of war;

(c) that the commission was without authority and jurisdiction to try and convict
petitioner, because the order governing the procedure of the commission permitted the
admission in evidence of depositions, affidavits, and hearsay and opinion evidence, and
because the commission's rulings admitting such evidence were in violation of the 25th
and 38th Articles of War (10 U.S.C. 1496, 1509) and the Geneva Convention (47
Stat. 2021), and deprived petitioner of a fair trial in violation of the due process clause of
the Fifth Amendment;

(d) that the commission was without authority and jurisdiction in the premises because
of the failure to give advance notice of petitioner's trial to the neutral power representing
the interests of Japan as a belligerent as required by Article 60 of the Geneva
Convention, 47 Stat. 2021, 2051.

On the same grounds, the petitions for writs of prohibition set up that the commission is
without authority to proceed with the trial.

The Supreme Court of the Philippine Islands, after hearing argument, denied the
petition for habeas corpus presented to it on the ground, among others, that its
jurisdiction was limited to an inquiry as to the jurisdiction of the commission to place
petitioner on trial for the offense charged, and that the commission, being validly
constituted

Page 327 U. S. 7

by the order of General Styer, had jurisdiction over the person of petitioner and over the
trial for the offense charged.

In Ex parte Quirin, 317 U. S. 1, we had occasion to consider at length the sources and
nature of the authority to create military commissions for the trial of enemy combatants
for offenses against the law of war. We there pointed out that Congress, in the exercise
of the power conferred upon it by Article I, 8, Cl. 10, of the Constitution to "define and
punish . . . Offenses against the Law of Nations . . . " of which the law of war is a part,
had, by the Articles of War (10 U.S.C. 1471-1593), recognized the "military
commission" appointed by military command, as it had previously existed in United
States Army practice, as an appropriate tribunal for the trial and punishment of offenses
against the law of war. Article 15 declares that

"the provisions of these articles conferring jurisdiction upon courts-martial shall not be
construed as depriving military commissions . . . or other military tribunals of concurrent
jurisdiction in respect of offenders of offenses that, by statute or by the law of war, may
be triable by such military commissions . . . or other military tribunals."
See a similar provision of the Espionage Act of 1917, 50 U.S.C. 38. Article 2 includes
among those persons subject to the Articles of War the personnel of our own military
establishment. But this, as Article 12 indicates, does not exclude from the class of
persons subject to trial by military commissions "any other person who, by the law of
war, is subject to trial by military tribunals" and who, under Article 12, may be tried by
court martial, or, under Article 15, by military commission.

We further pointed out that Congress, by sanctioning trial of enemy combatants for
violations of the law of war by military commission, had not attempted to codify the law
of war or to mark its precise boundaries. Instead, by Article 15, it had incorporated, by
reference, as within the

Page 327 U. S. 8

preexisting jurisdiction of military commissions created by appropriate military


command, all offenses which are defined as such by the law of war and which may
constitutionally be included within that jurisdiction. It thus adopted the system of military
common law applied by military tribunals so far as it should be recognized and deemed
applicable by the courts, and as further defined and supplemented by the Hague
Convention, to which the United States and the Axis powers were parties.

We also emphasized in Ex parte Quirin, as we do here, that, on application for habeas


corpus, we are not concerned with the guilt or innocence of the petitioners. We consider
here only the lawful power of the commission to try the petitioner for the offense
charged. In the present cases, it must be recognized throughout that the military
tribunals which Congress has sanctioned by the Articles of War are not courts whose
rulings and judgments are made subject to review by this Court. See Ex parte
Vallandingham, 1 Wall. 243; In re Vidal, 179 U. S. 126; cf. Ex parte Quirin, supra,317 U.
S. 39. They are tribunals whose determinations are reviewable by the military
authorities either as provided in the military orders constituting such tribunals or as
provided by the Articles of War. Congress conferred on the courts no power to review
their determinations save only as it has granted judicial power "to grant writs of habeas
corpus for the purpose of an inquiry into the cause of the restraint of liberty." 28 U.S.C.
451, 452. The courts may inquire whether the detention complained of is within the
authority of those detaining the petitioner. If the military tribunals have lawful authority to
hear, decide, and condemn, their action is not subject to judicial review merely because
they have made a wrong decision on disputed facts. Correction of their errors of
decision is not for the courts, but for the military authorities, which are alone authorized
to review their decisions. See Dynes v. Hoover, 20 How. 5, 61 U. S. 81; Runkle v.
United States, 122

Page 327 U. S. 9

U.S. 543, 122 U. S. 555-556; Carter v. McClaughry, 183 U. S. 365; Collins v.


McDonald, 258 U. S. 416. Cf. Matter of Moran, 203 U. S. 96, 203 U. S. 105.
Finally, we held in Ex parte Quirin, supra, 317 U. S. 24-25, as we hold now, that
Congress, by sanctioning trials of enemy aliens by military commission for offenses
against the law of war, had recognized the right of the accused to make a defense. Cf.
Ex parte Kawato, 317 U. S. 69. It has not foreclosed their right to contend that the
Constitution or laws of the United States withhold authority to proceed with the trial. It
has not withdrawn, and the Executive branch of the government could not, unless there
was suspension of the writ, withdraw from the courts the duty and power to make such
inquiry into the authority of the commission as may be made by habeas corpus.

With these governing principles in mind, we turn to the consideration of the several
contentions urged to establish want of authority in the commission. We are not here
concerned with the power of military commissions to try civilians. See Ex parte
Milligan, 4 Wall. 2, 71 U. S. 132; Sterling v. Constantin, 287 U. S. 378; Ex parte Quirin,
supra, 317 U. S. 45. The Government's contention is that General Styer's order creating
the commission conferred authority on it only to try the purported charge of violation of
the law of war committed by petitioner, an enemy belligerent, while in command of a
hostile army occupying United States territory during time of war. Our first inquiry must
therefore be whether the present commission was created by lawful military command,
and, if so, whether authority could thus be conferred on the commission to place
petitioner on trial after the cessation of hostilities between the armed forces of the
United States and Japan.

The authority to create the Commission. General Styer's order for the appointment of
the commission was made by him as Commander of the United States Armed Forces,
Western Pacific. His command includes, as part

Page 327 U. S. 10

of a vastly greater area, the Philippine Islands, where the alleged offenses were
committed, where petitioner surrender as a prisoner of war, and where, at the time of
the order convening the commission, he was detained as a prisoner in custody of the
United States Army. The Congressional recognition of military commissions and its
sanction of their use in trying offenses against the law of war to which we have referred
sanctioned their creation by military command in conformity to long established
American precedents. Such a commission may be appointed by any field commander,
or by any commander competent to appoint a general court martial, as was General
Styer, who had been vested with that power by order of the President. 2 Winthrop,
Military Law and Precedents,2d Ed., *1302; cf. Article of War 8.

Here, the commission was not only created by a commander competent to appoint it,
but his order conformed to the established policy of the Government and to higher
military commands authorizing his action. In a proclamation of July 2, 1942 (56 Stat.
1964), the President proclaimed that enemy belligerents who, during time of war, enter
the United States, or any territory possession thereof, and who violate the law of war,
should be subject to the law of war and to the jurisdiction of military tribunals. Paragraph
10 of the Declaration of Potsdam of July 6, 1945, declared that " . . . stern justice shall
be meted out to all war criminals, including those who have visited cruelties upon
prisoners." U.S. Dept. of State Bull., Vol. XIII, No. 318, pp. 137, 138. This Declaration
was accepted by the Japanese government by its note of August 10, 1945. U.S. Dept.
of State Bull., Vol. XIII, No. 320, p. 205.

By direction of the President, the Joint Chiefs of Staff of the American Military Forces,
on September 12, 1945, instructed General MacArthur, Commander in Chief, United
States Army Forces, Pacific, to proceed with the trial, before

Page 327 U. S. 11

appropriate military tribunals, of such Japanese war criminals "as have been or may be
apprehended." By order of General MacArthur of September 24, 1945, General Styer
was specifically directed to proceed with the trial of petitioner upon the charge here
involved. This order was accompanied by detailed rules and regulations which General
MacArthur prescribed for the trial of war criminals. These regulations directed, among
other things, that review of the sentence imposed by the commission should be by the
officer convening it, with "authority to approve, mitigate, remit, commute, suspend,
reduce, or otherwise alter the sentence imposed," and directed that no sentence of
death should be carried into effect until confirmed by the Commander in Chief, United
States Army Forces, Pacific.

It thus appears that the order creating the commission for the trial of petitioner was
authorized by military command, and was in complete conformity to the Act of Congress
sanctioning the creation of such tribunals for the trial of offenses against the law of war
committed by enemy combatants. And we turn to the question whether the authority to
create the commission and direct the trial by military order continued after the cessation
of hostilities.

An important incident to the conduct of war is the adoption of measures by the military
commander not only to repel and defeat the enemy, but to seize and subject to
disciplinary measures those enemies who, in their attempt to thwart or impede our
military effort, have violated the law of war. Ex parte Quirin, supra, 317 U. S. 28. The
trial and punishment of enemy combatants who have committed violations of the law of
war is thus not only a part of the conduct of war operating as a preventive measure
against such violations, but is an exercise of the authority sanctioned by Congress to
administer the system of military justice recognized by the law of war. That sanction is
without qualification as to the exercise of this authority so

Page 327 U. S. 12

long as a state of war exists -- from its declaration until peace is proclaimed.See United
States v. Anderson, 9 Wall. 56, 76 U. S. 70; The Protector, 12 Wall. 700, 79 U. S.
702; McElrath v. United States, 102 U. S. 426, 102 U. S. 438; Kahn v. Anderson, 255 U.
S. 1, 255 U. S. 9-10. The war power, from which the commission derives its existence,
is not limited to victories in the field, but carries with it the inherent power to guard
against the immediate renewal of the conflict, and to remedy, at least in ways Congress
has recognized, the evils which the military operations have produced. See Stewart v.
Kahn, 11 Wall. 493, 78 U. S. 507.

We cannot say that there is no authority to convene a commission after hostilities have
ended to try violations of the law of war committed before their cessation, at least until
peace has been officially recognized by treaty or proclamation of the political branch of
the Government. In fact, in most instances, the practical administration of the system of
military justice under the law of war would fail if such authority were thought to end with
the cessation of hostilities. For only after their cessation could the greater number of
offenders and the principal ones be apprehended and subjected to trial.

No writer on international law appears to have regarded the power of military tribunals,
otherwise competent to try violations of the law of war, as terminating before the formal
state of war has ended. [Footnote 1] In our own military history,

Page 327 U. S. 13

there have been numerous instances in which offenders were tried by military
commission after the cessation of hostilities and before the proclamation of peace, for
offenses against the law of war committed before the cessation of hostilities. [Footnote
2]

The extent to which the power to prosecute violations of the law of war shall be
exercised before peace is declared rests not with the courts, but with the political branch
of the Government, and may itself be governed by the terms of an armistice or the
treaty of peace. Here, peace has not been agreed upon or proclaimed. Japan, by her
acceptance of the Potsdam Declaration and her surrender, has acquiesced in the trials
of those guilty of violations of the law of war. The conduct of the trial by the military
commission has been authorized by the political branch of the Government, by military
command, by international law and usage, and by the terms of the surrender of the
Japanese government.

The Charge. Neither Congressional action nor the military orders constituting the
commission authorized it to place petitioner on trial unless the charge preferred against
him is of a violation of the law of war. The charge, so far as now relevant, is that
petitioner, between October 9, 1944, and September 2, 1945, in the Philippine Islands,

"while commander of armed forces of Japan at war with the United States of America
and its allies, unlawfully disregarded and failed to discharge his duty as commander to

Page 327 U. S. 14

control the operations of the members of his command, permitting them to commit
brutal atrocities and other high crimes against people of the United States and of its
allies and dependencies, particularly the Philippines, and he . . . thereby violated the
laws of war."

Bills of particulars, filed by the prosecution by order of the commission, allege a a series
of acts, one hundred and twenty-three in number, committed by members of the forces
under petitioner's command during the period mentioned. The first item specifies the
execution of a

"a deliberate plan and purpose to massacre and exterminate a large part of the civilian
population of Batangas Province, and to devastate and destroy public, private, and
religious property therein, as a result of which more than 25,000 men, women and
children, all unarmed noncombatant civilians, were brutally mistreated and killed,
without cause or trial, and entire settlements were devastated and destroyed wantonly
and without military necessity."

Other items specify acts of violence, cruelty, and homicide inflicted upon the civilian
population and prisoners of war, acts of wholesale pillage, and the wanton destruction
of religious monuments.

It is not denied that such acts directed against the civilian population of an occupied
country and against prisoners of war are recognized in international law as violations of
the law of war. Articles 4, 28, 46, and 47, Annex to Fourth Hague Convention, 1907, 36
Stat. 2277, 2296, 2303, 2306, 2307. But it is urged that the charge does not allege that
petitioner has either committed or directed the commission of such acts, and
consequently that no violation is charged as against him. But this overlooks the fact that
the gist of the charge is an unlawful breach of duty by petitioner as an army commander
to control the operations of the members of his command by "permitting them to
commit" the extensive and widespread atrocities specified. The question, then, is
whether the law of war imposes

Page 327 U. S. 15

on an army commander a duty to take such appropriate measures as are within his
power to control the troops under his command for the prevention of the specified acts
which are violations of the law of war and which are likely to attend the occupation of
hostile territory by an uncontrolled soldiery, and whether he may be charged with
personal responsibility for his failure to take such measures when violations result. That
this was the precise issue to be tried was made clear by the statement of the
prosecution at the opening of the trial.

It is evident that the conduct of military operations by troops whose excesses are
unrestrained by the orders or efforts of their commander would almost certainly result in
violations which it is the purpose of the law of war to prevent. Its purpose to protect
civilian populations and prisoners of war from brutality would largely be defeated if the
commander of an invading army could, with impunity, neglect to take reasonable
measures for their protection. Hence, the law of war presupposes that its violation is to
be avoided through the control of the operations of war by commanders who are to
some extent responsible for their subordinates.

This is recognized by the Annex to Fourth Hague Convention of 1907, respecting the
laws and customs of war on land. Article I lays down, as a condition which an armed
force must fulfill in order to be accorded the rights of lawful belligerents, that it must be
"commanded by a person responsible for his subordinates." 36 Stat. 2295. Similarly,
Article 19 of the Tenth Hague Convention, relating to bombardment by naval vessels,
provides that commanders in chief of the belligerent vessels "must see that the above
Articles are properly carried out." 36 Stat. 2389. And Article 26 of the Geneva Red
Cross Convention of 1929, 47 Stat. 2074, 2092, for the amelioration of the condition of
the wounded and sick in armies in the field, makes it

"the duty of the commanders in chief of the belligerent

Page 327 U. S. 16

armies to provide for the details of execution of the foregoing articles [of the
convention], as well as for unforeseen cases."

And, finally, Article 43 of the Annex of the Fourth Hague Convention, 36 Stat. 2306,
requires that the commander of a force occupying enemy territory, as was petitioner,

"shall take all the measures in his power to restore and ensure, as far as possible,
public order and safety, while respecting, unless absolutely prevented, the laws in force
in the country."

These provisions plainly imposed on petitioner, who at the time specified was military
governor of the Philippines as well as commander of the Japanese forces, an
affirmative duty to take such measures as were within his power and appropriate in the
circumstances to protect prisoners of war and the civilian population. This duty of a
commanding officer has heretofore been recognized, and its breach penalized by our
own military tribunals. [Footnote 3] A like principle has been applied so as to impose
liability on the United States in international arbitrations. Case of Jenaud, 3 Moore,
International Arbitrations 3000; Case of "The Zafiro," 5 Hackworth, Digest of
International Law 707.

We do not make the laws of war, but we respect them so far as they do not conflict with
the commands of Congress or the Constitution. There is no contention that the present
charge, thus read, is without the support of evidence, or that the commission held
petitioner responsible for failing to take measures which were beyond his control or
inappropriate for a commanding officer to take in the circumstances. [Footnote 4]

Page 327 U. S. 17
We do not here appraise the evidence on which petitioner was convicted. We do not
consider what measures, if any, petitioner took to prevent the commission, by the troops
under his command, of the plain violations of the law of war detailed in the bill of
particulars, or whether such measures as he may have taken were appropriate and
sufficient to discharge the duty imposed upon him. These are questions within the
peculiar competence of the military officers composing the commission, and were for it
to decide.See Smith v. Whitney, 116 U. S. 167, 116 U. S. 178. It is plain that the charge
on which petitioner was tried charged him with a breach of his duty to control the
operations of the members of his command, by permitting them to commit the specified
atrocities. This was enough to require the commission to hear evidence tending to
establish the culpable failure of petitioner to perform the duty imposed on him by the law
of war, and to pass upon its sufficiency to establish guilt.

Obviously, charges of violations of the law of war triable before a military tribunal need
not be stated with the precision of a common law indictment.Cf. Collins v. McDonald,
supra, 258 U. S. 420. But we conclude that the allegations of the charge, tested by any
reasonable standard, adequately allege a violation of the law of war, and that the

Page 327 U. S. 18

commission had authority to try and decide the issue which it raised. Cf. Dealy v. United
States, 152 U. S. 539; Williamson v. United States, 207 U. S. 425,207 U. S.
447; Glasser v. United States, 315 U. S. 60, 315 U. S. 66, and cases cited.

The Proceedings before the Commission. The regulations prescribed by General


MacArthur governing the procedure for the trial of petitioner by the commission directed
that the commission should admit such evidence

"as, in its opinion, would be of assistance in proving or disproving the charge, or such
as, in the commission's opinion, would have probative value in the mind of a reasonable
man,"

and that, in particular, it might admit affidavits, depositions, or other statements taken by
officers detailed for that purpose by military authority. The petitions in this case charged
that, in the course of the trial, the commission received, over objection by petitioner's
counsel, the deposition of a witness taken pursuant to military authority by a United
States Army captain. It also, over like objection, admitted hearsay and opinion evidence
tendered by the prosecution. Petitioner argues, as ground for the writ of habeas corpus,
that Article 25 [Footnote 5] of the Articles of War prohibited the reception in evidence by
the commission of depositions on behalf of the prosecution in a capital case, and that
Article 38 [Footnote 6] prohibited the reception of hearsay and of opinion evidence.

Page 327 U. S. 19

We think that neither Article 25 nor Article 38 is applicable to the trial of an enemy
combatant by a military commission for violations of the law of war. Article 2 of the
Articles of War enumerates "the persons . . . subject to these articles," who are
denominated, for purposes of the Articles, as "persons subject to military law." In
general, the persons so enumerated are members of our own Army and of the
personnel accompanying the Army. Enemy combatants are not included among them.
Articles 12, 13, and 14, before the adoption of Article 15 in 1916, 39 Stat. 653, made all
"persons subject to military law" amenable to trial by courts-martial for any offense
made punishable by the Articles of War. Article 12 makes triable by general court
martial "any other person who, by the law of war, is [triable] by military tribunals." Since
Article 2, in its 1916 form, 39 Stat. 651, includes some persons who, by the law of war,
were, prior to 1916, triable by military commission, it was feared by the proponents of
the 1916 legislation that, in the absence of a saving provision, the authority given by
Articles 12, 13, and 14 to try such persons before courts-martial might be construed to
deprive the nonstatutory military commission of a portion of what was considered to be
its traditional jurisdiction. To avoid this, and to preserve that jurisdiction intact, Article 15
was added to the Articles. [Footnote 7] It declared that

"The provisions of these articles

Page 327 U. S. 20

conferring jurisdiction upon courts-martial shall not be construed as depriving military


commissions . . . of concurrent jurisdiction in respect of offenders or offenses that, by
the law of war, may be lawfully triable by such military commissions."

By thus recognizing military commissions in order to preserve their traditional


jurisdiction over enemy combatants unimpaired by the Articles, Congress gave
sanction, as we held in Ex parte Quirin, to any use of the military commission
contemplated by the common law of war. But it did not thereby make subject to the
Articles of War persons other than those defined by Article 2 as being subject to the
Articles, nor did it confer the benefits of the Articles upon such persons. The Articles
recognized but one kind of military commission, not two. But they sanctioned the use of
that one for the trial of two classes of persons, to one of which the Articles do, and to
the other of which they do not, apply in such trials. Being of this latter class, petitioner
cannot claim the benefits of the Articles, which are applicable only to the members of
the other class. Petitioner, an enemy combatant, is therefore not a person made subject
to the Articles of War by Article 2, and the military commission before which he was
tried, though sanctioned, and its jurisdiction saved, by Article 15, was not convened by
virtue of the Articles of War, but pursuant to the common law of war. It follows that the
Articles of War, including Articles 25 and 38, were not applicable to petitioner's trial, and
imposed no restrictions upon the procedure to be followed. The Articles left the control
over the procedure in such a case where it had previously been -- with the military
command.

Petitioner further urges that, by virtue of Article 63 of the Geneva Convention of 1929,
47 Stat. 2052, he is entitled to the benefits afforded by the 25th and 38th Articles of War
to members of our own forces. Article 63 provides:
"Sentence may be pronounced against a prisoner of war

Page 327 U. S. 21

only by the same courts and according to the same procedure as in the case of persons
belonging to the armed forces of the detaining Power."

Since petitioner is a prisoner of war, and as the 25th and 38th Articles of War apply to
the trial of any person in our own armed forces, it is said that Article 63 requires them to
be applied in the trial of petitioner. But we think examination of Article 63 in its setting in
the Convention plainly shows that it refers to sentence "pronounced against a prisoner
of war" for an offense committed while a prisoner of war, and not for a violation of the
law of war committed while a combatant.

Article 63 of the Convention appears in part 3, entitled "Judicial Suits," of Chapter 3,


"Penalties Applicable to Prisoners of War," of V, "Prisoners' Relations with the
Authorities," one of the sections of Title III, "Captivity." All taken together relate only to
the conduct and control of prisoners of war while in captivity as such. Chapter 1 of
Section V, Article 42, deals with complaints of prisoners of war because of the
conditions of captivity. Chapter 2, Articles 43 and 44, relates to those of their number
chosen by prisoners of war to represent them.

Chapter 3 of Section V, Articles 45 through 67, is entitled "Penalties Applicable to


Prisoners of War." Part 1 of that chapter, Articles 45 through 53, indicates what acts of
prisoners of war committed while prisoners shall be considered offenses, and defines to
some extent the punishment which the detaining power may impose on account of such
offenses. [Footnote 8] Punishment is of two kinds -- "disciplinary" and

Page 327 U. S. 22

"judicial," the latter being the more severe. Article 52 requires that leniency be exercised
in deciding whether an offense requires disciplinary or judicial punishment. Part 2 of
Chapter 3 is entitled "Disciplinary Punishments," and further defines the extent of such
punishment and the mode in which it may be imposed. Part 3, entitled "Judicial Suits,"
in which Article 63 is found, describes the procedure by which "judicial" punishment may
be imposed. The three parts of Chapter 3, taken together, are thus a comprehensive
description of the substantive offenses which prisoners of war may commit during their
imprisonment, of the penalties which may be imposed on account of such offenses, and
of the procedure by which guilt may be adjudged and sentence pronounced.

We think it clear, from the context of these recited provisions, that part 3, and Article 63
which it contains, apply only to judicial proceedings directed against a prisoner of war
for offenses committed while a prisoner of war. Section

Page 327 U. S. 23
V gives no indication that this part was designed to deal with offenses other than those
referred to in parts 1 and 2 of chapter 3.

We cannot say that the commission, in admitting evidence to which objection is now
made, violated any act of Congress, treaty, or military command defining the
commission's authority. For reasons already stated, we hold that the commission's
rulings on evidence and on the mode of conducting these proceedings against petitioner
are not reviewable by the courts, but only by the reviewing military authorities. From this
viewpoint, it is unnecessary to consider what, in other situations, the Fifth Amendment
might require, and as to that, no intimation one way or the other is to be implied.
Nothing we have said is to be taken as indicating any opinion on the question of the
wisdom of considering such evidence, or whether the action of a military tribunal in
admitting evidence which Congress or controlling military command has directed to be
excluded may be drawn in question by petition for habeas corpus or prohibition.

Effect of failure to give notice of the trial to the protecting power. Article 60 of the
Geneva Convention of July 27, 1929, 47 Stat. 2051, to which the United States and
Japan were signatories, provides that,

"At the opening of a judicial proceeding directed against a prisoner of war, the detaining
Power shall advise the representative of the protecting Power thereof as soon as
possible, and always before the date set for the opening of the trial."

Petitioner relies on the failure to give the prescribed notice to the protecting power
[Footnote 9] to establish want of authority in the commission to proceed with the trial.

Page 327 U. S. 24

For reasons already stated, we conclude that Article 60 of the Geneva Convention,
which appears in part 3, Chapter 3, Section V, Title III of the Geneva Convention,
applies only to persons who are subjected to judicial proceedings for offenses
committed while prisoners of war. [Footnote 10]

Page 327 U. S. 25

It thus appears that the order convening the commission was a lawful order, that the
commission was lawfully constituted, that petitioner was charged with violation of the
law of war, and that the commission had authority to proceed with the trial, and, in doing
so, did not violate any military, statutory, or constitutional command. We have
considered, but find it unnecessary to discuss, other contentions which we find to be
without merit. We therefore conclude that the detention of petitioner for trial and his
detention upon his conviction, subject to the prescribed review by the military
authorities, were lawful, and that the petition for certiorari, and leave to file in this Court

Page 327 U. S. 26
petitions for writs of habeas corpus and prohibition should be, and they are

Denied.

MR. JUSTICE JACKSON took no part in the consideration or decision of these cases.

* Together with No. 672, Yamashita v. Styer, Commanding General, on petition for writ
of certiorari to the Supreme Court of the the Philippines. For earlier orders in these
cases, see 326 U.S. 693-694.

[Footnote 1]

The Commission on the Responsibility of the Authors of the War and on the
Enforcement of Penalties of the Versailles Peace Conference, which met after cessation
of hostilities in the First World War, were of the view that violators of the law of war
could be tried by military tribunals. See Report of the Commission, March 9, 1919, 14
Am.J.Int.L. 95, 121. See also memorandum of American commissioners concurring on
this point, id. at p. 141. The treaties of peace concluded after World War I recognized
the right of the Allies and of the United States to try such offenders before military
tribunals. See Art. 228 of Treaty of Versailles, June 28, 1919; Art. 173 of Treaty of St.
Germain, Sept. 10, 1919; Art. 157 of Treaty of Trianon, June 4, 1920.

The terms of the agreement which ended hostilities in the Boer War reserved the right
to try, before military tribunals, enemy combatants who had violated the law of war. 95
British and Foreign State Papers (1901-1902) 160. See also trials cited in Colby, War
Crimes, 23 Michigan Law Rev. 482, 496-497.

[Footnote 2]

See cases mentioned in Ex parte Quirin, supra, 317 U. S. 32, note 10, and in 2
Winthrop, supra, *1310-1311, n. 5; 14 Op.Atty.Gen. 249 (Modoc Indian Prisoners).

[Footnote 3]

Failure of an officer to take measures to prevent murder of an inhabitant of an occupied


country committed in his presence. Gen.Orders No. 221, Hq.Div. of the Philippines,
August 17, 1901. And, in Gen.Orders No. 264, Hq.Div. of the Philippines, September 9,
1901, it was held that an officer could not be found guilty for failure to prevent a murder
unless it appeared that the accused had "the power to prevent" it.

[Footnote 4]

In its findings, the commission took account of the difficulties


"faced by the accused with respect not only to the swift and overpowering advance of
American forces, but also to errors of his predecessors, weakness in organization,
equipment, supply . . . , training, communication, discipline, and morale of his troops,"

and

"the tactical situation, the character, training and capacity of staff officers and
subordinate commanders, as well as the traits of character of his troops."

It nonetheless found that petitioner had not taken such measures to control his troops
as were "required by the circumstances." We do not weigh the evidence. We merely
hold that the charge sufficiently states a violation against the law of war, and that the
commission, upon the facts found, could properly find petitioner guilty of such a
violation.

[Footnote 5]

Article 25 provides:

"A duly authenticated deposition taken upon reasonable notice to the opposite party
may be read in evidence before any military court or commission in any case not
capital, or in any proceeding before a court of inquiry or a military board, . .
. Provided, That testimony by deposition may be adduced for the defense in capital
cases."

[Footnote 6]

Article 38 provides:

"The President may, by regulations, which he may modify from time to time, prescribe
the procedure, including modes of proof, in cases before courts-martial, courts of
inquiry, military commissions, and other military tribunals, which regulations shall,
insofar as he shall deem practicable, apply the rules of evidence generally recognized in
the trial of criminal cases in the district courts of the United States: Provided, That
nothing contrary to or inconsistent with these articles shall be so prescribed. . . ."

[Footnote 7]

General Crowder, the Judge Advocate General, who appeared before Congress as
sponsor for the adoption of Article 15 and the accompanying amendment of Article 25,
in explaining the purpose of Article 15, said:

"Article 15 is new. We have included in article 2, as subject to military law, a number of


persons who are also subject to trial by military commission. A military commission is
our common law war court. It has no statutory existence, though it is recognized by
statute law. As long as the articles embraced them in the designation 'persons subject
to military law,' and provided that they might be tried by court-martial, I was afraid that,
having made a special provision for their trial by court-martial [Arts. 12, 13, and 14], it
might be held that the provision operated to exclude trials by military commission and
other war courts; so this new article was introduced. . . ."

Sen.R. 130, 64th Cong., 1st Sess., p. 40.

[Footnote 8]

Part 1 of Chapter 3, "General Provisions," provides in Articles 45 and 46 that prisoners


of war are subject to the regulations in force in the armies of the detaining power, that
punishments other than those provided "for the same acts for soldiers of the national
armies" may not be imposed on prisoners of war, and that "collective punishment for
individual acts" is forbidden. Article 47 provides that

"Acts constituting an offense against discipline, and particularly attempted escape, shall
be verified immediately; for all prisoners of war, commissioned or not, preventive arrest
shall be reduced to the absolute minimum. Judicial proceedings against prisoners of
war shall be conducted as rapidly as the circumstances permit. . . . In all cases, the
duration of preventive imprisonment shall be deducted from the disciplinary or the
judicial punishment inflicted."

Article 48 provides that prisoners of war, after having suffered "the judicial of disciplinary
punishment which has been imposed on them," are not to be treated differently from
other prisoners, but provides that "prisoners punished as a result of attempted escape
may be subjected to special surveillance." Article 49 recites that prisoners "given
disciplinary punishment may not be deprived of the prerogatives attached to their rank."
Articles 50 and 51 deal with escaped prisoners who have been retaken or prisoners
who have attempted to escape. Article 52 provides:

"Belligerents shall see that the competent authorities exercise the greatest leniency in
deciding the question of whether an infraction committed by a prisoner of war should be
punished more than once because of the same act or the same count."

[Footnote 9]

Switzerland, at the time of the trial, was the power designated by Japan for the
protection of Japanese prisoners of war detained by the United States, except in
Hawaii. U.S.Dept. of State Bull. Vol. XIII, No. 317, p. 125.

[Footnote 10]

One of the items of the bill of particulars in support of the charge against petitioner
specifies that he permitted members of the armed forces under his command to try and
execute three named and other prisoners of war,
"subjecting to trial without prior notice to a representative of the protecting power,
without opportunity to defend, and without counsel; denying opportunity to appeal from
the sentence rendered; failing to notify the protecting power of the sentence
pronounced, and executing a death sentence without communicating to the
representative of the protecting power the nature and circumstances of the offense
charged."

It might be suggested that, if Article 60 is inapplicable to petitioner, it is inapplicable in


the cases specified, and that, hence, he could not be lawfully held or convicted on a
charge of failing to require the notice provided for in Article 60 to be given.

As the Government insists, it does not appear from the charge and specifications that
the prisoners in question were not charged with offenses committed by them as
prisoners, rather than with offenses against the law of war committed by them as enemy
combatants. But, apart from this consideration, independently of the notice
requirements of the Geneva Convention, it is a violation of the law of war, on which
there could be a conviction if supported by evidence, to inflict capital punishment on
prisoners of war without affording to them opportunity to make a defense. 2
Winthrop, supra, *434, 435, 1241; Article 84, Oxford Manual; U.S. War Dept., Basic
Field Manual, Rules of Land Warfare (1940) par. 356; Lieber's Code, G.O. No. 100
(1863) Instructions for the Government of Armies of the United States in the Field, par.
12; Spaight, War Rights on Land, 462, n.

Further, the commission, in making its findings, summarized as follows the charges on
which it acted in three classes, any one of which, independently of the others if
supported by evidence, would be sufficient to support the conviction: (1) execution or
massacre without trial and maladministration generally of civilian internees and
prisoners of war; (2) brutalities committed upon the civilian population, and (3) burning
and demolition, without adequate military necessity, of a large number of homes, places
of business, places of religious worship, hospitals, public buildings, and educational
institutions.

The commission concluded: "(1) that a series of atrocities and other high crimes have
been committed by members of the Japanese armed forces" under command of
petitioner

"against people of the United States, their allies and dependencies; . . . that they were
not sporadic in nature, but in many cases were methodically supervised by Japanese
officers and noncommissioned officers;"

(2) that, during the period in question, petitioner "failed to provide effective control of
[his] troops, as was required by the circumstances." The commission said:

"Where murder and rape and vicious, revengeful actions are widespread offenses, and
there is no effective attempt by a commander to discover and control the criminal acts,
such a commander may be held responsible, even criminally liable, for the lawless acts
of his troops, depending upon their nature and the circumstances surrounding them."

The commission made no finding of noncompliance with the Geneva Convention.


Nothing has been brought to our attention from which we could conclude that the
alleged noncompliance with Article 60 of the Geneva Convention had any relation to the
commission's finding of a series of atrocities committed by members of the forces under
petitioner's command, and that he failed to provide effective control of his troops, as
was required by the circumstances, or which could support the petitions for habeas
corpus on the ground that petitioner had been charged with or convicted for failure to
require the notice prescribed by Article 60 to be given.

MR. JUSTICE MURPHY, dissenting.

The significance of the issue facing the Court today cannot be overemphasized. An
American military commission has been established to try a fallen military commander
of a conquered nation for an alleged war crime. The authority for such action grows out
of the exercise of the power conferred upon Congress by Article I, 8, Cl. 10 of the
Constitution to "define and punish . . . Offenses against the Law of Nations. . . ." The
grave issue raised by this case is whether a military commission so established and so
authorized may disregard the procedural rights of an accused person as guaranteed by
the Constitution, especially by the due process clause of the Fifth Amendment.

The answer is plain. The Fifth Amendment guarantee of due process of law applies to
"any person" who is accused of a crime by the Federal Government or any of its
agencies. No exception is made as to those who are accused of war crimes or as to
those who possess the status of an enemy belligerent. Indeed, such an exception would
be contrary to the whole philosophy of human rights which makes the Constitution the
great living document that it is. The immutable rights of the individual, including those
secured by the due process clause of the Fifth Amendment, belong not alone to the
members of those nations that excel on the battlefield or that subscribe to the
democratic ideology. They belong to every person in the world, victor or vanquished,
whatever may be his race, color, or beliefs. They rise above any status of belligerency
or outlawry. They survive any popular passion or frenzy of the moment. No court or
legislature or executive, not even the mightiest

Page 327 U. S. 27

army in the world, can ever destroy them. Such is the universal and indestructible
nature of the rights which the due process clause of the Fifth Amendment recognizes
and protects when life or liberty is threatened by virtue of the authority of the United
States.

The existence of these rights, unfortunately, is not always respected. They are often
trampled under by those who are motivated by hatred, aggression, or fear. But, in this
nation, individual rights are recognized and protected, at least in regard to governmental
action. They cannot be ignored by any branch of the Government, even the military,
except under the most extreme and urgent circumstances.

The failure of the military commission to obey the dictates of the due process
requirements of the Fifth Amendment is apparent in this case. The petitioner was the
commander of an army totally destroyed by the superior power of this nation. While
under heavy and destructive attack by our forces, his troops committed many brutal
atrocities and other high crimes. Hostilities ceased, and he voluntarily surrendered. At
that point, he was entitled, as an individual protected by the due process clause of the
Fifth amendment, to be treated fairly and justly according to the accepted rules of law
and procedure. He was also entitled to a fair trial as to any alleged crimes, and to be
free from charges of legally unrecognized crimes that would serve only to permit his
accusers to satisfy their desires for revenge.

A military commission was appointed to try the petitioner for an alleged war crime. The
trial was ordered to be held in territory over which the United States has complete
sovereignty. No military necessity or other emergency demanded the suspension of the
safeguards of due process. Yet petitioner was rushed to trial under an improper charge,
given insufficient time to prepare an adequate defense, deprived of the benefits of some
of the most

Page 327 U. S. 28

elementary rules of evidence, and summarily sentenced to be hanged. In all this


needless and unseemly haste, there was no serious attempt to charge or to prove that
he committed a recognized violation of the laws of war. He was not charged with
personally participating in the acts of atrocity, or with ordering or condoning their
commission. Not even knowledge of these crimes was attributed to him. It was simply
alleged that he unlawfully disregarded and failed to discharge his duty as commander to
control the operations of the members of his command, permitting them to commit the
acts of atrocity. The recorded annals of warfare and the established principles of
international law afford not the slightest precedent for such a charge. This indictment, in
effect, permitted the military commission to make the crime whatever it willed,
dependent upon its biased view as to petitioner's duties and his disregard thereof, a
practice reminiscent of that pursued in certain less respected nations in recent years.

In my opinion, such a procedure is unworthy of the traditions of our people or of the


immense sacrifices that they have made to advance the common ideals of mankind.
The high feelings of the moment doubtless will be satisfied. But in the sober afterglow
will come the realization of the boundless and dangerous implications of the procedure
sanctioned today. No one in a position of command in an army, from sergeant to
general, can escape those implications. Indeed, the fate of some future President of the
United States and his chiefs of staff and military advisers may well have been sealed by
this decision. But even more significant will be the hatred and ill will growing out of the
application of this unprecedented procedure. That has been the inevitable effect of
every method of punishment disregarding the element of personal culpability. The effect
in this instance, unfortunately, will be magnified infinitely, for here we are dealing with
the rights of man on an international level. To subject an enemy belligerent

Page 327 U. S. 29

to an unfair trial, to charge him with an unrecognized crime, or to vent on him our
retributive emotions only antagonizes the enemy nation and hinders the reconciliation
necessary to a peaceful world.

That there were brutal atrocities inflicted upon the helpless Filipino people, to whom
tyranny is no stranger, by Japanese armed forces under the petitioner's command is
undeniable. Starvation, execution, or massacre without trial, torture, rape, murder, and
wanton destruction of property were foremost among the outright violations of the laws
of war and of the conscience of a civilized world. That just punishment should be meted
out to all those responsible for criminal acts of this nature is also beyond dispute. But
these factors do not answer the problem in this case. They do not justify the
abandonment of our devotion to justice in dealing with a fallen enemy commander. To
conclude otherwise is to admit that the enemy has lost the battle, but has destroyed our
ideals.

War breeds atrocities. From the earliest conflicts of recorded history to the global
struggles of modern times, inhumanities, lust, and pillage have been the inevitable
byproducts of man's resort to force and arms. Unfortunately, such despicable acts have
a dangerous tendency to call forth primitive impulses of vengeance and retaliation
among the victimized peoples. The satisfaction of such impulses, in turn, breeds
resentment and fresh tension. Thus does the spiral of cruelty and hatred grow.

If we are ever to develop an orderly international community based upon a recognition


of human dignity, it is of the utmost importance that the necessary punishment of those
guilty of atrocities be as free as possible from the ugly stigma of revenge and
vindictiveness. Justice must be tempered by compassion, rather than by vengeance. In
this, the first case involving this momentous problem ever to reach this Court, our
responsibility is both lofty and difficult. We must insist, within the confines of our proper

Page 327 U. S. 30

jurisdiction, that the highest standards of justice be applied in this trial of an enemy
commander conducted under the authority of the United States. Otherwise, stark
retribution will be free to masquerade in a cloak of false legalism. And the hatred and
cynicism engendered by that retribution will supplant the great ideals to which this
nation is dedicated.

This Court, fortunately, has taken the first and most important step toward insuring the
supremacy of law and justice in the treatment of an enemy belligerent accused of
violating the laws of war. Jurisdiction properly has been asserted to inquire "into the
cause of restraint of liberty" of such a person. 28 U.S.C. 452. Thus, the obnoxious
doctrine asserted by the Government in this case -- to the effect that restraints of liberty
resulting from military trials of war criminals are political matters completely outside the
arena of judicial review -- has been rejected fully and unquestionably. This does not
mean, of course, that the foreign affairs and policies of the nation are proper subjects of
judicial inquiry. But, when the liberty of any person is restrained by reason of the
authority of the United States, the writ of habeas corpus is available to test the legality
of that restraint, even though direct court review of the restraint is prohibited. The
conclusive presumption must be made, in this country at least, that illegal restraints are
unauthorized and unjustified by any foreign policy of the Government, and that
commonly accepted juridical standards are to be recognized and enforced. On that
basis, judicial inquiry into these matters may proceed within its proper sphere.

The determination of the extent of review of war trials calls for judicial statesmanship of
the highest order. The ultimate nature and scope of the writ of habeas corpus are within
the discretion of the judiciary unless validly circumscribed by Congress. Here, we are
confronted with a use of the writ under circumstances novel in the history of the

Page 327 U. S. 31

Court. For my own part, I do not feel that we should be confined by the traditional lines
of review drawn in connection with the use of the writ by ordinary criminals who have
direct access to the judiciary in the first instance. Those held by the military lack any
such access; consequently the judicial review available by habeas corpus must be
wider than usual in order that proper standards of justice may be enforceable.

But, for the purposes of this case, I accept the scope of review recognized by the Court
at this time. As I understand it, the following issues in connection with war criminal trials
are reviewable through the use of the writ of habeas corpus: (1) whether the military
commission was lawfully created and had authority to try and to convict the accused of
a war crime; (2) whether the charge against the accused stated a violation of the laws of
war; (3) whether the commission, in admitting certain evidence, violated any law or
military command defining the commission's authority in that respect, and (4) whether
the commission lacked jurisdiction because of a failure to give advance notice to the
protecting power as required by treaty or convention.

The Court, in my judgment, demonstrates conclusively that the military commission was
lawfully created in this instance, and that petitioner could not object to its power to try
him for a recognized war crime. Without pausing here to discuss the third and fourth
issues, however, I find it impossible to agree that the charge against the petitioner
stated a recognized violation of the laws of war.

It is important, in the first place, to appreciate the background of events preceding this
trial. From October 9, 1944, to September 2, 1945, the petitioner was the Commanding
General of the 14th Army Group of the Imperial Japanese Army, with headquarters in
the Philippines. The reconquest of the Philippines by the armed forces of the United
States began approximately at the time when
Page 327 U. S. 32

the petitioner assumed this command. Combined with a great and decisive sea battle,
an invasion was made on the island of Leyte on October 20, 1944.

"In the six days of the great naval action, the Japanese position in the Philippines had
become extremely critical. Most of the serviceable elements of the Japanese Navy had
become committed to the battle, with disastrous results. The strike had miscarried, and
General MacArthur's land wedge was firmly implanted in the vulnerable flank of the
enemy. . . . There were 260,000 Japanese troops scattered over the Philippines, but
most of them might as well have been on the other side of the world so far as the
enemy's ability to shift them to meet the American thrusts was concerned. If General
MacArthur succeeded in establishing himself in the Visayas, where he could stage,
exploit, and spread under cover of overwhelming naval and air superiority, nothing could
prevent him from overrunning the Philippines."

Biennial Report of the Chief of Staff of the United States Army, July 1, 1943, to June 30,
1945, to the Secretary of War, p. 74.

By the end of 1944, the island of Leyte was largely in American hands. And on January
9, 1945, the island of Luzon was invaded.

"Yamashita's inability to cope with General MacArthur's swift moves, his desired
reaction to the deception measures, the guerrillas, and General Kenney's aircraft,
combined to place the Japanese in an impossible situation. The enemy was forced into
a piecemeal commitment of his troops."

Ibid., p. 78. It was at this time and place that most of the alleged atrocities took place.
Organized resistance around Manila ceased on February 23. Repeated land and air
assaults pulverized the enemy, and, within a few months, there was little left of
petitioner's command except a few remnants which had gathered for a last stand among
the precipitous mountains.

As the military commission here noted,

"The Defense established the difficulties faced by the Accused with respect

Page 327 U. S. 33

not only to the swift and overpowering advance of American forces, but also to the
errors of his predecessors, weaknesses in organization, equipment, supply, with
especial reference to food and gasoline, training, communication, discipline, and morale
of his troops. It was alleged that the sudden assignment of Naval and Air Forces to his
tactical command presented almost insurmountable difficulties. This situation was
followed, the Defense contended, by failure to obey his orders to withdraw troops from
Manila, and the subsequent massacre of unarmed civilians, particularly by Naval forces.
Prior to the Luzon Campaign, Naval forces had reported to a separate ministry in the
Japanese Government, and Naval Commanders may not have been receptive or
experienced in this instance with respect to a joint land operation under a single
commander who was designated from the Army Service."

The day of final reckoning for the enemy arrived in August, 1945. On September 3, the
petitioner surrendered to the United States Army at Baguio, Luzon. He immediately
became a prisoner of war, and was interned in prison in conformity with the rules of
international law. On September 25, approximately three weeks after surrendering, he
was served with the charge in issue in this case. Upon service of the charge, he was
removed from the status of a prisoner of war and placed in confinement as an accused
war criminal. Arraignment followed on October 8 before a military commission specially
appointed for the case. Petitioner pleaded not guilty. He was also served on that day
with a bill of particulars alleging 64 crimes by troops under his command. A
supplemental bill alleging 59 more crimes by his troops was filed on October 29, the
same day that the trial began. No continuance was allowed for preparation of a defense
as to the supplemental bill. The trial continued uninterrupted until December 5, 1945.
On December 7 petitioner was found guilty as charged, and was sentenced to be
hanged.

Page 327 U. S. 34

The petitioner was accused of having

"unlawfully disregarded and failed to discharge his duty as commander to control the
operations of the members of his command, permitting them to commit brutal atrocities
and other high crimes."

The bills of particular further alleged that specific acts of atrocity were committed by
"members of the armed forces of Japan under the command of the accused." Nowhere
was it alleged that the petitioner personally committed any of the atrocities, or that he
ordered their commission, or that he had any knowledge of the commission thereof by
members of his command.

The findings of the military commission bear out this absence of any direct personal
charge against the petitioner. The commission merely found that atrocities and other
high crimes

"have been committed by members of the Japanese armed forces under your command
. . . ; that they were not sporadic in nature, but, in many cases, were methodically
supervised by Japanese officers and noncommissioned officers . . . ; that, during the
period in question, you failed to provide effective control of your troops, as was required
by the circumstances."

In other words, read against the background of military events in the Philippines
subsequent to October 9, 1944, these charges amount to this:
"We, the victorious American forces, have done everything possible to destroy and
disorganize your lines of communication, your effective control of your personnel, your
ability to wage war. In those respects, we have succeeded. We have defeated and
crushed your forces. And now, we charge and condemn you for having been inefficient
in maintaining control of your troops during the period when we were so effectively
beseiging and eliminating your forces and blocking your ability to maintain effective
control. Many terrible atrocities were committed by your disorganized troops. Because
these atrocities were so widespread, we will not bother to charge or prove that you
committed, ordered, or

Page 327 U. S. 35

condoned any of them. We will assume that they must have resulted from your
inefficiency and negligence as a commander. In short, we charge you with the crime of
inefficiency in controlling your troops. We will judge the discharge of your duties by the
disorganization which we ourselves created in large part. Our standards of judgment are
whatever we wish to make them."

Nothing in all history or in international law, at least as far as I am aware, justifies such a
charge against a fallen commander of a defeated force. To use the very inefficiency and
disorganization created by the victorious forces as the primary basis for condemning
officers of the defeated armies bears no resemblance to justice, or to military reality.

International law makes no attempt to define the duties of a commander of an army


under constant and overwhelming assault, nor does it impose liability under such
circumstances for failure to meet the ordinary responsibilities of command. The
omission is understandable. Duties, as well as ability to control troops, vary according to
the nature and intensity of the particular battle. To find an unlawful deviation from duty
under battle conditions requires difficult and speculative calculations. Such calculations
become highly untrustworthy when they are made by the victor in relation to the actions
of a vanquished commander. Objective and realistic norms of conduct are then
extremely unlikely to be used in forming a judgment as to deviations from duty. The
probability that vengeance will form the major part of the victor's judgment is an
unfortunate but inescapable fact. So great is that probability that international law
refuses to recognize such a judgment as a basis for a war crime, however fair the
judgment may be in a particular instance. It is this consideration that undermines the
charge against the petitioner in this case. The indictment permits -- indeed compels --
the military commission of a victorious nation to

Page 327 U. S. 36

sit in judgment upon the military strategy and actions of the defeated enemy, and to use
its conclusions to determine the criminal liability of an enemy commander. Life and
liberty are made to depend upon the biased will of the victor, rather than upon objective
standards of conduct.
The Court's reliance upon vague and indefinite references in certain of the Hague
Conventions and the Geneva Red Cross Convention is misplaced. Thus, the statement
in Article 1 of the Annex to Hague Convention No. IV of October 18, 1907, 36 Stat.
2277, 2295, to the effect that the laws, rights and duties of war apply to military and
volunteer corps only if they are "commanded by a person responsible for his
subordinates," has no bearing upon the problem in this case. Even if it has, the clause
"responsible for his subordinates" fails to state to whom the responsibility is owed, or to
indicate the type of responsibility contemplated. The phrase has received differing
interpretations by authorities on international law. In Oppenheim, International Law (6th
ed., rev. by Lauterpacht, 1940, vol. 2, p. 204, fn. 3) it is stated that

"The meaning of the word 'responsible' . . . is not clear. It probably means 'responsible
to some higher authority,' whether the person is appointed from above or elected from
below. . . ."

Another authority has stated that the word "responsible" in this particular context means
"presumably to a higher authority," or "possibly it merely means one who controls his
subordinates, and who therefore can be called to account for their acts." Wheaton,
International Law (14th ed., by Keith, 1944, p. 172, fn. 30). Still another authority,
Westlake, International Law (1907, Part II, p. 61), states that "probably the responsibility
intended is nothing more than a capacity of exercising effective control." Finally,
Edwards and Oppenheim, Land Warfare (1912, p. 19, par. 22) state that it is enough "if
the commander of the corps is regularly or temporarily commissioned as an officer or is
a person of

Page 327 U. S. 37

position and authority." It seems apparent beyond dispute that the word "responsible"
was not used in this particular Hague Convention to hold the commander of a defeated
army to any high standard of efficiency when he is under destructive attack; nor was it
used to impute to him any criminal responsibility for war crimes committed by troops
under his command under such circumstances.

The provisions of the other conventions referred to by the Court are, on their face,
equally devoid of relevance or significance to the situation here in issue. Neither Article
19 of Hague Convention No. X, 36 Stat. 2371, 2389, nor Article 26 of the Geneva Red
Cross Convention of 1929, 47 Stat. 2074, 2092, refers to circumstances where the
troops of a commander commit atrocities while under heavily adverse battle conditions.
Reference is also made to the requirement of Article 43 of the Annex to Hague
Convention No. IV, 36 Stat. 2295, 2306, that the commander of a force occupying
enemy territory

"shall take all the measures in his power to restore, and ensure, as far as possible,
public order and safety, while respecting, unless absolutely prevented, the laws in force
in the country."
But the petitioner was more than a commander of a force occupying enemy territory. He
was the leader of an army under constant and devastating attacks by a superior
reinvading force. This provision is silent as to the responsibilities of a commander under
such conditions as that.

Even the laws of war heretofore recognized by this nation fail to impute responsibility to
a fallen commander for excesses committed by his disorganized troops while under
attack. Paragraph 347 of the War Department publication, Basic Field Manual, Rules of
Land Warfare, FM 27-10 (1940), states the principal offenses under the laws of war
recognized by the United States. This includes all of the atrocities which the Japanese
troops were alleged to have committed in this instance. Originally,

Page 327 U. S. 38

this paragraph concluded with the statement that

"The commanders ordering the commission of such acts, or under whose authority they
are committed by their troops, may be punished by the belligerent into whose hands
they may fall."

The meaning of the phrase "under whose authority they are committed" was not clear.
On November 15, 1944, however, this sentence was deleted and a new paragraph was
added relating to the personal liability of those who violate the laws of war. Change 1,
FM 27-10. The new paragraph 345.1 states that

"Individuals and organizations who violate the accepted laws and customs of war may
be punished therefor. However, the fact that the acts complained of were done pursuant
to order of a superior or government sanction may be taken into consideration in
determining culpability, either by way of defense or in mitigation of punishment. The
person giving such orders may also be punished."

From this, the conclusion seems inescapable that the United States recognizes
individual criminal responsibility for violations of the laws of war only as to those who
commit the offenses or who order or direct their commission. Such was not the
allegation here. Cf. Article 67 of the Articles of War, 10 U.S.C. 1539.

There are numerous instances, especially with reference to the Philippine Insurrection
in 1900 and 1901, where commanding officers were found to have violated the laws of
war by specifically ordering members of their command to commit atrocities and other
war crimes. Francisco Frani, G.O. 143, Dec. 13, 1900, Hq. Div. Phil.; Eugenio
Fernandez and Juan Soriano, G.O. 28, Feb. 6, 1901, Hq.Div.Phil.; Ciriaco Cabungal,
G.O. 188, Jul. 22, 1901, Hq.Div.Phil.; Natalio Valencia, G.O. 221, Aug. 17, 1901,
Hq.Div.Phil.; Aniceta Angeles, G.O. 246, Sept. 2, 1901, Hq.Div.Phil.; Francisco
Braganza, G.O. 291, Sept. 26, 1901, Hq.Div.Phil.; Lorenzo Andaya, G.O. 328, Oct. 25,
1901, Hq.Div.Phil. And, in other cases, officers have been held
Page 327 U. S. 39

liable where they knew that a crime was to be committed, had the power to prevent it,
and failed to exercise that power. Pedro Abad Santos, G.O. 130, June 19, 1901,
Hq.Div.Phil. Cf. Pedro A. Cruz, G.O. 264, Sept. 9, 1901, Hq.Div.Phil. In no recorded
instance, however, has the mere inability to control troops under fire or attack by
superior forces been made the basis of a charge of violating the laws of war.

The Government claims that the principle that commanders in the field are bound to
control their troops has been applied so as to impose liability on the United States in
international arbitrations. Case of Jeannaud, 1880, 3 Moore, International Arbitrations
(1898) 3000; Case of The Zafiro, 1910, 5 Hackworth, Digest of International Law (1943)
707. The difference between arbitrating property rights and charging an individual with a
crime against the laws of war is too obvious to require elaboration. But even more
significant is the fact that even these arbitration cases fail to establish any principle of
liability where troops are under constant assault and demoralizing influences by
attacking forces. The same observation applies to the common law and statutory
doctrine, referred to by the Government, that one who is under a legal duty to take
protective or preventive action is guilty of criminal homicide if he willfully or negligently
omits to act and death is proximately caused. State v. Harrison, 107 N.J.L. 213, 152 A.
867; State v. Irvine,126 La. 434, 52 So. 567; Holmes, The Common Law, p. 278. No
one denies that inaction or negligence may give rise to liability, civil or criminal. But it is
quite another thing to say that the inability to control troops under highly competitive and
disastrous battle conditions renders one guilty of a war crime in the absence of personal
culpability. Had there been some element of knowledge or direct connection with the
atrocities, the problem would be entirely different. Moreover, it must be remembered
that we are not dealing

Page 327 U. S. 40

here with an ordinary tort or criminal action; precedents in those fields are of little if any
value. Rather, we are concerned with a proceeding involving an international crime, the
treatment of which may have untold effects upon the future peace of the world. That fact
must be kept uppermost in our search for precedent.

The only conclusion I can draw is that the charge made against the petitioner is clearly
without precedent in international law or in the annals of recorded military history. This
is not to say that enemy commanders may escape punishment for clear and unlawful
failures to prevent atrocities. But that punishment should be based upon charges fairly
drawn in light of established rules of international law and recognized concepts of
justice.

But the charge in this case, as previously noted, was speedily drawn and filed but three
weeks after the petitioner surrendered. The trial proceeded with great dispatch, without
allowing the defense time to prepare an adequate case. Petitioner's rights under the due
process clause of the Fifth Amendment were grossly and openly violated without any
justification. All of this was done without any thorough investigation and prosecution of
those immediately responsible for the atrocities, out of which might have come some
proof or indication of personal culpability on petitioner's part. Instead the loose charge
was made that great numbers of atrocities had been committed and that petitioner was
the commanding officer; hence he must have been guilty of disregard of duty. Under
that charge the commission was free to establish whatever standard of duty on
petitioner's part that it desired. By this flexible method a victorious nation may convict
and execute any or all leaders of a vanquished foe, depending upon the prevailing
degree of vengeance and the absence of any objective judicial review.

At a time like this when emotions are understandably high it is difficult to adopt a
dispassionate attitude toward

Page 327 U. S. 41

a case of this nature. Yet now is precisely the time when that attitude is most essential.
While peoples in other lands may not share our beliefs as to due process and the
dignity of the individual, we are not free to give effect to our emotions in reckless
disregard of the rights of others. We live under the Constitution, which is the
embodiment of all the high hopes and aspirations of the new world. And it is applicable
in both war and peace. We must act accordingly. Indeed, an uncurbed spirt of revenge
and retribution, masked in formal legal procedure for purposes of dealing with a fallen
enemy commander, can do more lasting harm than all of the atrocities giving rise to that
spirit. The people's faith in the fairness and objectiveness of the law can be seriously
undercut by that spirit. The fires of nationalism can be further kindled. And the hearts of
all mankind can be embittered and filled with hatred, leaving forlorn and impoverished
the noble ideal of malice toward none and charity to all. These are the reasons that lead
me to dissent in these terms.

MR. JUSTICE RUTLEDGE, dissenting.

Not with ease does one find his views at odds with the Court's in a matter of this
character and gravity. Only the most deeply felt convictions could force one to differ.
That reason alone leads me to do so now, against strong considerations for withholding
dissent.

More is at stake than General Yamashita's fate. There could be no possible sympathy
for him if he is guilty of the atrocities for which his death is sought. But there can be and
should be justice administered according to law. In this stage of war's aftermath, it is too
early for Lincoln's great spirit, best lighted in the Second Inaugural, to have wide hold for
the treatment of foes. It is not too early -- it is never too early -- for the nation steadfastly
to follow its great constitutional traditions, none older or more universally protective
against unbridled power than due process

Page 327 U. S. 42
of law in the trial and punishment of men -- that is, of all men, whether citizens, aliens,
alien enemies, or enemy belligerents. It can become too late.

This long held attachment marks the great divide between our enemies and ourselves.
Theirs was a philosophy of universal force. Ours is one of universal law, albeit
imperfectly made flesh of our system and so dwelling among us. Every departure
weakens the tradition, whether it touches the high or the low, the powerful or the weak,
the triumphant or the conquered. If we need not or cannot be magnanimous, we can
keep our own law on the plane from which it has not descended hitherto and to which
the defeated foes' never rose.

With all deference to the opposing views of my brethren, whose attachment to that
tradition needless to say is no less than my own, I cannot believe in the face of this
record that the petitioner has had the fair trial our Constitution and laws command.
Because I cannot reconcile what has occurred with their measure, I am forced to speak.
At bottom, my concern is that we shall not forsake in any case, whether Yamashita's or
another's, the basic standards of trial which, among other guaranties, the nation fought
to keep; that our system of military justice shall not, alone among all our forms of
judging, be above or beyond the fundamental law or the control of Congress within its
orbit of authority, and that this Court shall not fail in its part under the Constitution to see
that these things do not happen.

This trial is unprecedented in our history. Never before have we tried and convicted an
enemy general for action taken during hostilities or otherwise in the course of military
operations or duty. Much less have we condemned one for failing to take action. The
novelty is not lessened by the trial's having taken place after hostilities ended and the
enemy, including the accused, had surrendered. Moreover, so far as the time permitted
for our

Page 327 U. S. 43

consideration has given opportunity, I have not been able to find precedent for the
proceeding in the system of any nation founded in the basic principles of our
constitutional democracy, in the laws of war, or in other internationally binding authority
or usage.

The novelty is legal, as well as historical. We are on strange ground. Precedent is not
all-controlling in law. There must be room for growth, since every precedent has an
origin. But it is the essence of our tradition for judges, when they stand at the end of the
marked way, to go forward with caution keeping sight, so far as they are able, upon the
great landmarks left behind and the direction they point ahead. If, as may be hoped, we
are now to enter upon a new era of law in the world, it becomes more important than
ever before for the nations creating that system to observe their greatest traditions of
administering justice, including this one, both in their own judging and in their new
creation. The proceedings in this case veer so far from some of our time-tested road
signs that I cannot take the large strides validating them would demand.
I

It is not in our tradition for anyone to be charged with crime which is defined after his
conduct, alleged to be criminal, has taken place, [Footnote 2/1] or in language not
sufficient to inform him of the nature of the offense or to enable him to make defense.
[Footnote 2/2] Mass guilt we do not impute to individuals, perhaps in any case, but
certainly in none where the person is not charged or shown actively to have participated
in or knowingly to have failed in taking action to

Page 327 U. S. 44

prevent the wrongs done by others, having both the duty and the power to do so.

It is outside our basic scheme to condemn men without giving reasonable opportunity
for preparing defense; [Footnote 2/3] in capital or other serious crimes, to convict on
"official documents . . . ; affidavits; . . . documents or translations thereof; diaries . .
photographs, motion picture films, and . . . newspapers" [Footnote 2/4] or on hearsay,
once, twice or thrice removed, [Footnote 2/5] more particularly when the documentary
evidence or some of it is prepared ex parte by the prosecuting authority and includes
not only opinion but conclusions of guilt. Nor in such cases do we deny the rights of
confrontation of witnesses and cross-examination. [Footnote 2/6]

Our tradition does not allow conviction by tribunals both authorized and bound [Footnote
2/7] by the instrument of their creation to receive and consider evidence which is
expressly excluded by Act of Congress or by treaty obligation; nor is it in accord with our
basic concepts to make the tribunal, specially constituted for the particular trial,
regardless of those prohibitions, the sole and exclusive judge of the credibility,

Page 327 U. S. 45

probative value, and admissibility of whatever may be tendered as evidence.

The matter is not one merely of the character and admissibility of evidence. It goes to
the very competency of the tribunal to try and punish consistently with the Constitution,
the laws of the United States made in pursuance thereof, and treaties made under the
nation's authority.

All these deviations from the fundamental law, and others, occurred in the course of
constituting the commission, the preparation for trial and defense, the trial itself, and
therefore, in effect, in the sentence imposed. Whether taken singly in some instances as
departures from specific constitutional mandates or in totality as in violation of the Fifth
Amendment's command that no person shall be deprived of life, liberty or property
without due process of law, a trial so vitiated cannot withstand constitutional scrutiny.

One basis protection of our system, and one only, petitioner has had. He has been
represented by able counsel, officers of the army he fought. Their difficult assignment
has been done with extraordinary fidelity not only to the accused, but to their high
conception of military justice, always to be administered in subordination to the
Constitution and consistent Acts of Congress and treaties. But, as will appear, even this
conceded shield was taken away in much of its value by denial of reasonable
opportunity for them to perform their function.

On this denial and the commission's invalid constitution specifically, but also more
generally upon the totality of departures from constitutional norms inherent in the idea of
a fair trial, I rest my judgment that the commission was without jurisdiction from the
beginning to try or punish the petitioner, and that, if it had acquired jurisdiction then, its
power to proceed was lost in the course of what was done before and during trial.

Only on one view, in my opinion, could either of these conclusions be avoided. This
would be that an enemy

Page 327 U. S. 46

belligerent in petitioner's position is altogether beyond the pale of constitutional


protection, regardless of the fact that hostilities had ended and he had surrendered with
his country. The Government has so argued, urging that we are still at war with Japan,
and all the power of the military effective during active hostilities in theaters of combat
continues in full force, unaffected by the events of August 14, 1945, and after.

In this view, the action taken here is one of military necessity, exclusively within the
authority of the President as Commander-in-Chief and his military subordinates to take
in warding off military danger and subject to no judicial restraint on any account,
although, somewhat inconsistently, it is said this Court may "examine" the proceedings
generally.

As I understand the Court, this is in substance the effect of what has been done. For I
cannot conceive any instance of departure from our basic concepts of fair trial if the
failures here are not sufficient to produce that effect.

We are technically still at war, because peace has not been negotiated finally or
declared. But there is no longer the danger which always exists before surrender and
armistice. Military necessity does not demand the same measures. The nation may be
more secure now than at any time after peace is officially concluded. In these facts is
one great difference from Ex parte Quirin, 317 U. S. 1. Punitive action taken now can be
effective only for the next war, for purposes of military security. And enemy aliens,
including belligerents, need the attenuated protections our system extends to them
more now than before hostilities ceased or than they may after a treaty of peace is
signed. Ample power there is to punish them or others for crimes, whether under the
laws of war during its course or later during occupation. There can be no question of
that. The only question is how it shall be done, consistently

Page 327 U. S. 47
with universal constitutional commands or outside their restricting effects. In this sense,
I think the Constitution follows the flag.

The other thing to be mentioned in order to be put aside is that we have no question
here of what the military might have done in a field of combat. There, the maxim about
the law becoming silent in the noise of arms applies. The purpose of battle is to kill. But
it does not follow that this would justify killing by trial after capture or surrender, without
compliance with laws or treaties made to apply in such cases, whether trial is before or
after hostilities end.

I turn now to discuss some of the details of what has taken place. My basic difference is
with the Court's view that provisions of the Articles of War and of treaties are not made
applicable to this proceeding, and with its ruling that, absent such applicable provisions,
none of the things done so vitiated the trial and sentence as to deprive the commission
of jurisdiction.

My Brother MURPHY has discussed the charge with respect to the substance of the
crime. With his conclusions in this respect, I agree. My own primary concern will be with
the constitution of the commission and other matters taking place in the course of the
proceedings, relating chiefly to the denial of reasonable opportunity to prepare
petitioner's defense and the sufficiency of the evidence, together with serious questions
of admissibility, to prove on offense, all going, as I think, to the commission's
jurisdiction.

Necessarily, only a short sketch can be given concerning each matter. And it may be
stated at the start that, although it was ruled in Ex parte Quirin, supra,that this Court had
no function to review the evidence, it was not there or elsewhere determined that it
could not ascertain whether conviction is founded upon evidence expressly excluded by
Congress or treaty; nor does the Court purport to do so now.

Page 327 U. S. 48

II

Invalidity of the Commission's Constitution

The fountainhead of the commission's authority was General MacArthur's directive by


which General Styer was ordered to and pursuant to which he did proceed with
constituting the commission. [Footnote 2/8] The directive was accompanied by
elaborate and detailed rules and regulations prescribing the procedure and rules of
evidence to be followed, of which, for present purposes, Section 16, set forth below,
[Footnote 2/9] is crucial.

Page 327 U. S. 49
Section 16, as will be noted, permits reception of documents, reports, affidavits,
depositions, diaries, letters, copies of documents or other secondary evidence of their
contents, hearsay, opinion evidence and conclusions -- in fact, of anything which, in the
commission's opinion, "would be of assistance in proving or disproving the charge,"
without any of the usual modes of authentication.

A more complete abrogation of customary safeguards relating to the proof, whether in


the usual rules of evidence or any reasonable substitute and whether for use in the trial
of crime in the civil courts or military tribunals, hardly could have been made. So far as
the admissibility and probative value of evidence was concerned, the directive made the
commission a law unto itself.

It acted accordingly. As against insistent and persistent objection to the reception of all
kinds of "evidence," oral, documentary and photographic, for nearly every kind of defect
under any of the usual prevailing standards for admissibility and probative value, the
commission not only consistently ruled against the defense, but repeatedly stated it was
bound by the directive to receive the kinds of evidence it specified, [Footnote 2/10]
reprimanded counsel for continuing to make objection, declined to hear further
objections, and, in more than one instance during the course of the proceedings,
reversed its rulings favorable to the defense where initially it had declined to receive
what the prosecution offered. Every conceivable kind of statement, rumor, report at first,
second, third or further hand, written, printed, or oral, and one "propaganda" film were
allowed to come in, most of this relating to atrocities committed

Page 327 U. S. 50

by troops under petitioner's command throughout the several thousand islands of the
Philippine Archipelago during the period of active hostilities covered by the American
forces' return to and recapture of the Philippines. [Footnote 2/11]

The findings reflect the character of the proof and the charge. The statement quoted
above [Footnote 2/12] gives only a numerical idea of the instances in which ordinary
safeguards in reception of written evidence were ignored. In addition to these 423
"exhibits," the findings state the commission "has heard 286 persons during the course
of this trial, most of whom have given eye-witness accounts of what they endured or
what they saw."

But there is not a suggestion in the findings that petitioner personally participated in,
was present at the occurrence of, or ordered any of these incidents, with the exception
of the wholly inferential suggestion noted below. Nor is there any express finding that he
knew of any one of the incidents in particular or of all taken together. The only inferential
findings that he had knowledge, or that the commission so found, are in the statement
that "the crimes alleged to have been permitted by the accused in violation of the laws
of war may be grouped into three categories" set out below, [Footnote 2/13] in the
further statement that
"the prosecution

Page 327 U. S. 51

presented evidence to show that the crimes were so extensive and so widespread, both
as to time and area, [Footnote 2/14] that they must either have been willfully
permitted by the accused or secretly ordered by"

him, and in the conclusion of guilt and the sentence. [Footnote 2/15] (Emphasis added.)
Indeed, the commission's ultimate findings [Footnote 2/16] draw no express conclusion
of knowledge, but state only two things: (1) the fact of widespread atrocities and crimes;
(2) that petitioner "failed to provide effective control . . . as required by the
circumstances."

This vagueness, if not vacuity, in the findings runs throughout the proceedings, from the
charge itself, through the proof and the findings, to the conclusion. It affects

Page 327 U. S. 52

the very gist of the offense -- whether that was willful, informed, and intentional omission
to restrain and control troops known by petitioner to be committing crimes, or was only a
negligent failure on his part to discover this and take whatever measures he then could
to stop the conduct.

Although it is impossible to determine from what is before us whether petitioner in fact


has been convicted of one or the other or of both these things, [Footnote 2/17] the case
has been

Page 327 U. S. 53

presented on the former basis and, unless, as is noted below, there is fatal duplicity, it
must be taken that the crime charged and sought to be proved was only the failure, with
knowledge, to perform the commander's function of control, although the Court's opinion
nowhere expressly declares that knowledge was essential to guilt or necessary to be
set forth in the charge.

It is in respect to this feature especially, quite apart from the reception of unverified
rumor, report, etc., that perhaps the greatest prejudice arose from the admission of
untrustworthy, unverified, unauthenticated evidence which could not be probed by
cross-examination or other means of testing credibility, probative value, or authenticity.

Counsel for the defense have informed us in the brief and at the argument that the sole
proof of knowledge introduced at the trial was in the form of ex parte affidavits and
depositions. Apart from what has been excerpted from the record in the applications
and the briefs and such portions of the record as I have been able to examine, it has
been impossible for me fully to verify counsel's statement in this respect. But the
Government has not disputed it, and it has maintained that we have no right to examine
the record upon any question "of evidence." Accordingly, without concession to that
view, the statement of counsel is taken for the fact . And, in that state of things,
petitioner has been convicted of a crime in which knowledge is an essential element,
with no proof of knowledge other than what would be inadmissible in any other capital
case or proceeding under our system, civil or military, and which, furthermore, Congress
has expressly commanded shall not be received in such cases tried by military
commissions and other military tribunals. [Footnote 2/18]

Moreover, counsel assert in the brief, and this also is not denied, that the sole proof
made of certain of the specifications

Page 327 U. S. 54

in the bills of particulars was by ex parte affidavits. It was in relation to this also vital
phase of the proof that there occurred one of the commission's reversals of its earlier
rulings in favor of the defense [Footnote 2/19] -- a fact, in itself, conclusive
demonstration of the necessity to the prosecution's case of the prohibited type of
evidence and of its prejudicial effects upon the defense.

These two basic elements in the proof -- namely, proof of knowledge of the crimes and
proof of the specifications in the bills, that is, of the atrocities themselves -- constitute
the most important instances, perhaps, if not the most flagrant, [Footnote 2/20]

Page 327 U. S. 55

of departure not only from the express command of Congress against receiving such
proof, but from the whole British-American tradition of the common law and the
Constitution. Many others occurred which there is neither time nor space to mention.
[Footnote 2/21]

Petitioner asserts, and there can be no reason to doubt, that, by the use of all this
forbidden evidence, he was deprived of the right of cross-examination and other means
to establish the credibility of the deponents or affiants, not to speak of the authors of
reports, letters, documents, and newspaper articles; of opportunity to determine whether
the multitudinous crimes specified in the bills were committed in fact by troops under his
command or by naval or air force troops not under his command at the time alleged; to
ascertain whether the crimes attested were isolated acts of individual soldiers or were
military acts committed by troop units acting under supervision of officers; and, finally,
whether, "in short, there was such a pattern' of conduct as the prosecution alleged and
its whole theory of the crime and the evidence required to be made out."

He points out in this connection that the commission based its decision on a finding as
to the extent and number

Page 327 U. S. 56
of the atrocities, and that this, of itself, establishes the prejudicial effect of the affidavits,
etc., and of the denial resulting from their reception of any means of probing the
evidence they contained, including all opportunity for cross-examination. Yet it is said
there is no sufficient showing of prejudice. The effect could not have been other than
highly prejudicial. The matter is not one merely of "rules of evidence." It goes, as will
appear more fully later, to the basic right of defense, including some fair opportunity to
test probative value.

Insufficient as this recital is to give a fair impression of what was done, it is enough to
show that this was no trial in the traditions of the common law and the Constitution. If
the tribunal itself was not strange to them otherwise, it was in its forms and modes of
procedure, in the character and substance of the evidence it received, in the denial of all
means to the accused and his counsel for testing the evidence, in the brevity and
ambiguity of its findings made upon such a mass of material, and, as will appear, in the
denial of any reasonable opportunity for preparation of the defense. Because this last
deprivation not only is important in itself, but is closely related to the departures from all
limitations upon the character of and modes of making the proof, it will be considered
before turning to the important legal questions relating to whether all these violations of
our traditions can be brushed aside as not forbidden by the valid Acts of Congress,
treaties, and the Constitution, in that order. If all these traditions can be so put away,
then indeed will we have entered upon a new but foreboding era of law.

III

Denial of Opportunity to Prepare Defense

Petitioner surrendered September 3, 1945, and was interned as a prisoner of war in


conformity with Article 9

Page 327 U. S. 57

of the Geneva Convention of July 27, 1929. [Footnote 2/22] He was served with the
charge on September 25, and put in confinement as an accused war criminal. On
October 8, he was arraigned, and pleaded not guilty. On October 29, the trial began,
and it continued until December 7, when sentence was pronounced, exactly four years,
almost to the hour, from the attack on Pearl Harbor.

On the day of arraignment, October 8, three weeks before the trial began, petitioner was
served with a bill of particulars specifying 64 items setting forth a vast number of
atrocities and crimes allegedly committed by troops under his command. [Footnote
2/23] The six officers appointed as defense counsel thus had three weeks -- it is true, at
the prosecution's suggestion, a week longer than they sought at first -- to investigate
and prepare to meet all these items and the large number of incidents they embodied,
many of which had occurred in distant islands of the archipelago. There is some
question whether they then anticipated the full scope and character of the charge or the
evidence they would have to meet. But, as will appear, they worked night and day at the
task. Even so, it would have been impossible to do thoroughly had nothing more
occurred.

But there was more. On the first day of the trial, October 29, the prosecution filed a
supplemental bill of particulars

Page 327 U. S. 58

containing 59 more specifications of the same general character, involving perhaps as


many incidents occurring over an equally wide area. [Footnote 2/24] A copy had been
given the defense three days earlier. One item, No. 89, charged that American soldiers,
prisoners of war, had been tried and executed without notice having been given to the
protecting power of the United States in accordance with the requirements of the
Geneva Convention, which it is now argued, strangely, the United States was not
required to observe as to petitioner's trial. [Footnote 2/25]

But what is more important is that defense counsel, as they felt was their duty, at once
moved for a continuance. [Footnote 2/26] The application was denied. However the
commission indicated that if, at the end of the prosecution's presentation

Page 327 U. S. 59

concerning the original bill, counsel should "believe they require additional time . . . , the
Commission will consider such a motion at that time," before taking up the items of the
supplemental bill. Counsel again indicated, without other result, that time was desired at
once "as much, if not more" to prepare for cross-examination "as the Prosecutor's case
goes in" as to prepare affirmative defense.

On the next day, October 30, the commission interrupted the prosecutor to say it would
not then listen to testimony or discussion upon the supplemental bill. After colloquy, it
adhered to its prior ruling and, in response to inquiry from the prosecution, the defense
indicated it would require two weeks before it could proceed on the supplemental bill.
On November 1, the commission ruled it would not receive affidavits without
corroboration by witnesses on any specification, a ruling reversed four days later.

On November 2, after the commission had received an affirmative answer to its inquiry
whether the defense was prepared to proceed with an item in the supplemental bill
which the prosecution proposed to prove, it announced:

"Hereafter, then, unless there is no [sic] objection by the Defense, the Commission will
assume that you are prepared to proceed with any items in the Supplemental Bill."

On November 8, the question arose again upon the prosecution's inquiry as to when the
defense would be ready to proceed on the supplemental bill, the prosecutor adding:
"Frankly, sir, it took the War Crimes Commission some three months to investigate
these matters, and I cannot conceive of the Defense undertaking a similar investigation
with any less period of time."

Stating it realized "the tremendous burden which we have placed on the Defense" and
its "determination to give them the time they require," the commission again adhered to
its ruling of October 29.

Page 327 U. S. 60

Four days later, the commission announced it would grant a continuance "only for the
most urgent and unavoidable reasons." [Footnote 2/27]

On November 20, when the prosecution rested, senior defense counsel moved for a
reasonable continuance, recalling the commission's indication that it would then
consider such a motion and stating that, since October 29, the defense had been
"working night and day," with "no time whatsoever to prepare any affirmative defense,"
since counsel had been fully occupied trying "to keep up with the new Bill of
Particulars."

The commission thereupon retired for deliberation and, on resuming its sessions
shortly, denied the motion. Counsel then asked for "a short recess of a day." The
commission suggested a recess until 1:30 in the afternoon. Counsel responded this
would not suffice. The commission stated it felt "that the Defense should be prepared, at
least on its opening statement," to which senior counsel answered: "We haven't had
time to do that, sir." The commission then recessed until 8:30 the following morning.

Further comment is hardly required. Obviously the burden placed upon the defense, in
the short time allowed for preparation on the original bill, was not only "tremendous." In
view of all the facts, it was an impossible one, even though the time allowed was a week
longer than asked. But the grosser vice was later, when the burden was more than
doubled by service of the supplemental bill on the eve of trial, a procedure which, taken
in connection with the consistent denials of continuance and the commission's later
reversal of its rulings favorable to the defense

Page 327 U. S. 61

was wholly arbitrary, cutting off the last vestige of adequate chance to prepare defense
and imposing a burden the most able counsel could not bear. This sort of thing has no
place in our system of justice, civil or military. Without more, this wide departure from
the most elementary principles of fairness vitiated the proceeding. When added to the
other denials of fundamental right sketched above, it deprived the proceeding of any
semblance of trial as we know that institution.

IV
Applicability of the Articles of War

The Court's opinion puts the proceeding and the petitioner, insofar as any rights relating
to his trial and conviction are concerned, wholly outside the Articles of War. In view of
what has taken place, I think the decision's necessary effect is also to place them
entirely beyond limitation and protection, respectively, by the Constitution. I disagree as
to both conclusions or effects.

The Court rules that Congress has not made Article 25 and 38 applicable to this
proceeding. It think it has made them applicable to this and all other military
commissions or tribunals. If so, the commission not only lost all power to punish
petitioner by what occurred in the proceedings. It never acquired jurisdiction to try him.
For the directive by which it was constituted, in the provisions of Section 16, [Footnote
2/28] was squarely in conflict with Articles 25 and 38 of the Articles of War, [Footnote
2/29] and therefore was void.

Page 327 U. S. 62

Article 25 allows reading of depositions in evidence, under prescribed conditions, in the


plainest terms "before any military court or commission in any case not capital,"
providing, however, that "testimony by deposition may be adduced for the defense in
capital cases." (Emphasis added.) This language clearly and broadly covers every kind
of military tribunal, whether "court" or "commission." It covers all capital cases. It makes
no exception or distinction for any accused.

Article 38 authorizes the President, by regulations, to prescribe procedure, including


modes of proof, even more all-inclusively, if possible, "in cases before courts-martial,
courts of inquiry, military commissions, and other military tribunals." Language could not
be more broadly inclusive. No exceptions are mentioned or suggested, whether of
tribunals or of accused persons. Every kind of military body for performing the function
of trial is covered. That is clear from the face of the Article.

Article 38, moreover, limits the President's power. He is, so far as practicable, to
prescribe "the rules of evidence generally recognized in the trial of criminal cases in the

Page 327 U. S. 63

district courts of the United States," a clear mandate that Congress intended all military
trials to conform as closely as possible to our customary procedural and evidentiary
protections, constitutional and statutory, for accused persons. But there are also two
unqualified limitations, one "that nothing contrary to or inconsistent with these articles
(specifically here Article 25) shall be so prescribed," the other "that all rules made in
pursuance of this article shall be laid before the Congress annually."

Notwithstanding these broad terms, the Court, resting chiefly on Article 2, concludes the
petitioner was not among the persons there declared to be subject to the Articles of
War, and therefore the commission which tries him is not subject to them. That Article
does not cover prisoners of war or war criminals. Neither does it cover civilians in
occupied territories, theaters of military operations, or other places under military
jurisdiction within or without the United States or territory subject to its sovereignty,
whether they be neutrals or enemy aliens, even citizens of the United States, unless
they are connected in the manner Article 2 prescribes with our armed forces, exclusive
of the Navy.

The logic which excludes petitioner on the basic that prisoners of war are not mentioned
in Article 2 would exclude all these. I strongly doubt the Court would go so far, if
presented with a trial like this in such instances. Nor does it follow necessarily that,
because some persons may not be mentioned in Article 2, they can be tried without
regard to any of the limitations placed by any of the other Articles upon military
tribunals.

Article 2, in defining persons "subject to the articles of war," was, I think, specifying
those to whom the Articles in general were applicable. And there is no dispute that most
of the Articles are not applicable to the petitioner. It does not follow, however, and
Article 2 does not provide, that there may not be in the Articles specific provisions

Page 327 U. S. 64

covering persons other than those specified in Article 2. Had it so provided, Article 2
would have been contradictory not only of Articles 25 and 38, but also of Article 15,
among others.

In 1916, when the last general revision of the Articles of War took place, [Footnote 2/30]
for the first time, certain of the Articles were specifically made applicable to military
commissions. Until then, they had applied only to courts-martial. There were two
purposes -- the first to give statutory recognition to the military commission without loss
of prior jurisdiction, and the second to give those tried before military commissions
some of the more important protections afforded persons tried by courts-martial.

In order to effectuate the first purpose, the Army proposed Article 15. [Footnote 2/31] To
effectuate the second purpose, Articles

Page 327 U. S. 66

25 and 38 and several others were proposed. [Footnote 2/32] But, as the Court now
construes the Articles of War, they have no application to military commissions before
which alleged offenders against the laws of war are tried. What the Court holds, in
effect, is that there are two types of military commissions, one to try offenses which
might be cognizable by a court-martial, the other to try war crimes, and that Congress
intended the Articles of War referring in terms to military commissions without exception
to be applicable only to the first type.
Page 327 U. S. 67

This misconceives both the history of military commissions and the legislative history of
the Articles of War. There is only one kind of military commission. It is true, as the
history noted shows, that what is now called "the military commission" arose from two
separate military courts instituted during the Mexican War. The first military court, called
by General Scott a "military commission," was given jurisdiction in Mexico over criminal
offenses of the class cognizable by civil courts in time of peace. The other military court,
called a "counsel of war" was given jurisdiction over offenses against the laws of war.
Winthrop, Military Law and Precedents (2d ed., reprinted 1920) *1298-1299. During the
Civil War,

"the two jurisdictions of the earlier commission and council respectively . . . [were]
united in the . . . war court, for which the general designation of 'military commission'
was retained as the preferable one."

Winthrop, supra at *1299. Since that time, there has been only one type of military
tribunal, called the military commission, though it may exercise different kinds of
jurisdiction, [Footnote 2/33] according to the circumstances under which and purposes
for which it is convened.

The testimony of General Crowder is perhaps the most authoritative evidence of what
was intended by the legislation,

Page 327 U. S. 68

for he was its most active official sponsor, spending years in securing its adoption and
revision. Articles 15, 25, and 38 particularly are traceable to his efforts. His concern to
secure statutory recognition for military commissions was equalled by his concern that
the statutory provisions giving this should not restrict their preexisting jurisdiction. He did
not wish, by securing additional jurisdiction, overlapping partially that of the court-
martial, to surrender other. Hence, Article 15. That Article had one purpose and one
only. It was to make sure that the acquisition of partially concurrent jurisdiction with
courts-martial should not cause loss of any other. And it was jurisdiction, not procedure,
which was covered by other Articles with which he and Congress were concerned in
that Article. It discloses no purpose to deal in any way with procedure or to qualify
Articles 25 and 38. And it is clear that General Crowder at all times regarded all military
commissions as being governed by the identical procedure. In fact, so far as Articles 25
and 38 are concerned, this seems obvious for all types of military tribunals. The same
would appear to be true of other Articles also, e.g., 24, (prohibiting compulsory self-
incrimination), 26, 27, 32 (contempts), all except the last dealing with procedural
matters.

Article 12 is especially significant. It empowers general courts-martial to try two classes


of offenders: (1) "any person subject to military law," under the definition of Article 2, for
any offense "made punishable by these articles;" (2) "and any other person who by the
law of war is subject to trial by military tribunals," not covered by the terms of Article 2.
(Emphasis added.)

Article 12 thus, in conformity with Article 15, gives the general court-martial concurrent
jurisdiction of war crimes and war criminals with military commissions. Neither it nor any
other Article states or indicates there are to be two kinds of general courts-martial for
trying war crimes; yet

Page 327 U. S. 69

this is the necessary result of the Court's decision, unless, in the alternative, that would
be to imply that, in exercising such jurisdiction, there is only one kind of general court-
martial, but there are two or more kinds of military commission, with wholly different
procedures and with the result that "the commander in the field" will not be free to
determine whether general court-martial or military commission shall be used as the
circumstances may dictate, but must govern his choice by the kind of procedure he
wishes to have employed.

The only reasonable and, I think, possible conclusion to draw from the Articles is that
the Articles which are in terms applicable to military commissions are so uniformly, and
those applicable to both such commissions and to courts-martial when exercising
jurisdiction over offenders against the laws of war likewise are uniformly, applicable, and
not diversely according to the person or offense being tried.

Not only the face of the Articles, but specific statements in General Crowder's testimony
support this view. Thus, in the portion quoted above [Footnote 2/34] from his 1916
statement, after stating expressly the purpose of Article 15 to preserve unimpaired the
military commission's jurisdiction, and to make it concurrent with that of courts-martial
insofar as the two would overlap, "so that the military commander in the field in time of
war will be at liberty to employ either form of court that happens to be convenient," he
went on to say: "Both classes of courts have the same procedure," a statement so
unequivocal as to leave no room for question. And his quotation from Winthrop supports
his statement, namely: "Its (i.e., the military commission's) composition, constitution and
procedure follow the analogy of courts-martial."

At no point in the testimony is there suggestion that there are two types of military
commission, one bound by

Page 327 U. S. 70

the procedural provisions of the Articles, the other wholly free from their restraints, or,
as the Court strangely puts the matter, that there is only one kind of commission, but
that it is bound or not bound by the Articles applicable in terms, depending upon who is
being tried and for what offense; for that very difference makes the difference between
one and two. The history and the discussion show conclusively that General Crowder
wished to secure, and Congress intended to give, statutory recognition to all forms of
military tribunals; to enable commanding officers in the field to use either court-martial
or military commission as convenience might dictate, thus broadening to this extent the
latter's jurisdiction and utility; but, at the same time, to preserve its full preexisting
jurisdiction, and also to lay down identical provisions for governing or providing for the
government of the procedure and rules of evidence of every type of military tribunal,
wherever and however constituted. [Footnote 2/35]

Page 327 U. S. 71

Finally, unless Congress was legislating with regard to all military commissions, Article
38, which gives the President the power to "prescribe the procedure, including modes of
proof, in cases before courts-martial, courts of inquiry, military commissions, and other
military tribunals" takes on a rather senseless meaning, for the President would have
such power only with respect to those military commissions exercising concurrent
jurisdiction with courts-martial.

All this seems so obvious upon a mere reading of the Articles themselves and the
legislative history as not to require demonstration. And all this Congress knew, as that
history shows. In the face of that showing, I cannot accept the Court's highly strained
construction, first, because I think it is in plain contradiction of the facts disclosed by the
history of Articles 15, 25 and 38 as well as their language, and also because that
construction defeats at least two of the ends General Crowder had in mind -- namely, to
secure statutory recognition for every form of military tribunal and to provide for them a
basic uniform

Page 327 U. S. 72

mode of procedure or method of providing for their procedure.

Accordingly, I think Articles 25 and 38 are applicable to this proceeding; that the
provisions of the governing directive in Section 16 are in direct conflict with those
Articles, and, for that reason, the commission was invalidly constituted, was without
jurisdiction, and its sentence is therefore void.

The Geneva Convention of 1929

If the provisions of Articles 25 and 38 were not applicable to the proceeding by their own
force as Acts of Congress, I think they would still be made applicable by virtue of the
terms of the Geneva Convention of 1929, in particular, Article 63. And in other respects,
in my opinion, the petitioner's trial was not in accord with that treaty, namely with Article
60.
The Court does not hold that the Geneva Convention is not binding upon the United
States, and no such contention has been made in this case. [Footnote 2/36] It relies on
other

Page 327 U. S. 73

arguments to show that Article 60, which provides that the protecting power shall be
notified in advance of a judicial proceeding directed against a prisoner of war, and
Article 63, which provides that a prisoner of war may be tried only by the same courts
and according to the same procedure as in the case of persons belonging to the armed
forces of the detaining power, are not properly invoked by the petitioner. Before
considering the Court's view that these Articles are not applicable to this proceeding by
their terms, it may be noted that, on his surrender, petitioner was interned in conformity
with Article 9 of this Convention.

Page 327 U. S. 74

The chief argument is that Articles 60 and 63 have reference only to offenses committed
by a prisoner of war while a prisoner of war, and not to violations of the law of war
committed while a combatant. This conclusion is derived from the setting in which these
articles are placed. I do not agree that the context gives any support to this argument.
The argument is, in essence, of the same type as the argument the Court employs to
nullify the application of Articles 25 and 38 of the Articles of War by restricting their own
broader coverage by reference to Article 2. For reasons set forth in the margin,
[Footnote 2/37] I think it equally invalid here.

Page 327 U. S. 76

Neither Article 60 nor Article 63 contains such a restriction of meaning as the Court
reads into it. [Footnote 2/38] In the absence of any such limitation, it would seem that
they were intended to cover all judicial proceedings, whether instituted for crimes
allegedly committed before capture or later. Policy supports this view. For such a
construction is require for the security of our own soldiers, taken prisoner, as much as
for that of prisoners we take. And the opposite one leaves prisoners of war open to any
form of trial and punishment for offenses against the law of war their captors may wish
to use, while safeguarding them, to the extent of the treaty limitations, in cases of
disciplinary offense. This, in many instances, would be to make the treaty strain at a
gnat and swallow the camel.

The United States has complied with neither of these Articles. It did not notify the
protecting power of Japan in advance of trial, as Article 60 requires it to do, although the
supplemental bill charges the same failure to petitioner

Page 327 U. S. 77
in Item 89. [Footnote 2/39] It is said that, although this may be true, the proceeding is
not thereby invalidated. The argument is that our noncompliance merely gives Japan a
right of indemnity against us, and that Article 60 was not intended to give Yamashita
any personal rights. I cannot agree. The treaties made by the United States are, by the
Constitution, made the supreme law of the land. In the absence of something in the
treaty indicating that its provisions were not intended to be enforced, upon breach, by
more than subsequent indemnification, it is, as I conceive it, the duty of the courts of this
country to insure the nation's compliance with such treaties, except in the case of
political questions. This is especially true where the treaty has provisions -- such as
Article 60 -- for the protection of a man being tried for an offense the punishment for
which is death; for to say that it was intended to provide for enforcement of such
provisions solely by claim, after breach, of indemnity would be, in many instances,
especially those involving trial of nationals of a defeated nation by a conquering one, to
deprive the Articles of all force. Executed men are not much aided by post-war claims
for indemnity. I do not think the adhering powers' purpose was to provide only for such
ineffective relief.

Finally, the Government has argued that Article 60 has no application after the actual
cessation of hostilities, as there is no longer any need for an intervening power between
the two belligerents. The premise is that Japan no longer needs Switzerland to
intervene with the United

Page 327 U. S. 78

States to protect the rights of Japanese nationals, since Japan is now in direct
communication with this Government. This, of course, is in contradiction of the
Government's theory, in other connections, that the war is not over, and military
necessity still requires use of all the power necessary for actual combat.

Furthermore the premise overlooks all the realities of the situation. Japan is a defeated
power, having surrendered, if not unconditionally, then under the most severe
conditions. Her territory is occupied by American military forces. She is scarcely in a
position to bargain with us or to assert her rights. Nor can her nationals. She no longer
holds American prisoners of war. [Footnote 2/40] Certainly, if there was the need of an
independent neutral to protect her nationals during the war, there is more now. In my
opinion the failure to give the notice required by Article 60 is only another instance of
the commission's failure to observe the obligations of our law.

What is more important, there was no compliance with Article 63 of the same
Convention. Yamashita was not tried "according to the same procedure as in the case
of persons belonging to the armed forces of the detaining Power." Had one of our
soldiers or officers been tried for alleged war crimes, he would have been entitled to the
benefits of the Articles of War. I think that Yamashita was equally entitled to the same
protection. In any event, he was entitled to their benefits under the provisions of Article
63 of the Geneva Convention. Those benefits he did not receive. Accordingly, his trial
was in violation of the Convention.
VI

The Fifth Amendment

Wholly apart from the violation of the Articles of War and of the Geneva Convention, I
am completely unable to

Page 327 U. S. 79

accept or to understand the Court's ruling concerning the applicability of the due
process clause of the Fifth Amendment to this case. Not heretofore has it been held that
any human being is beyond its universally protecting spread in the guaranty of a fair trial
in the most fundamental sense. That door is dangerous to open. I will have no part in
opening it. For, once it is ajar, even for enemy belligerents, it can be pushed back wider
for others, perhaps ultimately for all.

The Court does not declare expressly that petitioner, as an enemy belligerent, has no
constitutional rights, a ruling I could understand, but not accept. Neither does it affirm
that he has some, if but little, constitutional protection. Nor does the Court defend what
was done. I think the effect of what it does is in substance to deny him all such
safeguards. And this is the great issue in the cause.

For it is exactly here we enter wholly untrodden ground. The safe signposts to the rear
are not in the sum of protections surrounding jury trials or any other proceeding known
to our law. Nor is the essence of the Fifth Amendment's elementary protection
comprehended in any single one of our time-honored specific constitutional safeguards
in trial, though there are some without which the words "fair trial" and all they cannot
become a mockery.

Apart from a tribunal concerned that the law as applied shall be an instrument of justice,
albeit stern in measure to the guilt established, the heart of the security lies in two
things. One is that conviction shall not rest in any essential part upon unchecked rumor,
report, or the results of the prosecution's ex parte investigations, but shall stand on
proven fact; the other, correlative, lies in a fair chance to defend. This embraces at the
least the rights to know with reasonable clarity in advance of the trial the exact nature of
the offense with which one is to be charged; to have reasonable time for preparing to
meet the charge, and to have the aid of counsel in doing so, as also in the

Page 327 U. S. 80

trial itself, and if, during its course, one is taken by surprise, through the injection of new
charges or reversal of rulings which brings forth new masses of evidence, then to have
further reasonable time for meeting the unexpected shift.

So far as I know, it has not yet been held that any tribunal in our system, of whatever
character, is free to receive "such evidence as in its opinion would be of assistance in
proving or disproving the charge" or, again as in its opinion, "would have probative
value in the mind of a reasonable man;" and, having received what in its unlimited
discretion it regards as sufficient, is also free to determine what weight may be given to
the evidence received without restraint. [Footnote 2/41]

When to this fatal defect in the directive, however innocently made, are added the broad
departures from the fundamentals of fair play in the proof and in the right to defend
which occurred throughout the proceeding, there can be no accommodation with the
due process of law which the Fifth Amendment demands.

All this the Court puts to one side with the short assertion that no question of due
process under the Fifth Amendment or jurisdiction reviewable here is presented. I do
not think this meets the issue, standing alone or in conjunction with the suggestion
which follows that the Court gives no intimation one way or the other concerning

Page 327 U. S. 81

what Fifth Amendment due process might require in other situations.

It may be appropriate to add here that, although without doubt the directive was drawn
in good faith in the belief that it would expedite the trial and that enemy belligerents in
petitioner's position were not entitled to more, that state of mind and purpose cannot
cure the nullification of basic constitutional standards which has taken place.

It is not necessary to recapitulate. The difference between the Court's view of this
proceeding and my own comes down in the end to the view, on the one hand, that there
is no law restrictive upon these proceedings other than whatever rules and regulations
may be prescribed for their government by the executive authority or the military and, on
the other hand, that the provisions of the Articles of War, of the Geneva Convention and
the Fifth Amendment apply.

I cannot accept the view that anywhere in our system resides or lurks a power so
unrestrained to deal with any human being through any process of trial. What military
agencies or authorities may do with our enemies in battle or invasion, apart from
proceedings in the nature of trial and some semblance of judicial action, is beside the
point. Nor has any human being heretofore been held to be wholly beyond elementary
procedural protection by the Fifth Amendment. I cannot consent to even implied
departure from that great absolute.

It was a great patriot who said:

"He that would make his own liberty secure must guard even his enemy from
oppression, for if he violates this duty he establishes a precedent that will reach himself.
[Footnote 2/42]"

MR. JUSTICE MURPHY joins in this opinion.


[Footnote 2/1]

Cummings v. Missouri, 4 Wall. 277; Kring v. Missouri, 107 U. S. 221.

[Footnote 2/2]

Armour Packing Co. v. United States, 209 U. S. 56, 209 U. S. 83-84; United States v.
Cohen Grocery Co., 255 U. S. 81, cf. Screws v. United States, 325 U. S. 91. Seenote
17 and text.

[Footnote 2/3]

Hawk v. Olson, 326 U. S. 271; Snyder v. Massachusetts, 291 U. S. 97, 291 U. S. 105:
"What may not be taken away is notice of the charge and an adequate opportunity to be
heard in defense of it." See 327 U. S.

[Footnote 2/4]

The commission's findings state:

"We have received for analysis and evaluation 423 exhibits consisting of official
documents of the United States Army, the United States State Department, and the the
Philippines; affidavits; captured enemy documents or translations thereof; diaries taken
from Japanese personnel, photographs, motion picture films, and Manila newspapers."

See notes 19 and 20.

Concerning the specific nature of these elements in the proof, the issues to which they
were directed, and their prejudicial effects, see text infra and notes in 327 U. S.

[Footnote 2/5]

Queen v. Hepburn, 7 Cranch. 290; Donnelly v. United States, 228 U. S. 243, 228 U. S.
273. See 327 U. S. note 21.

[Footnote 2/6]

Motes v. United States, 178 U. S. 458, 178 U. S. 471; Paoni v. United States, 281 F.
801. See Parts 327 U. S. S. 56|>III.

[Footnote 2/7]

See 327 U. S. S. 1fn2/10|>10, 19; 327 U. S.

[Footnote 2/8]
The line of authorization within the military hierarchy extended from the President,
through the Joint Chiefs of Staff and General MacArthur, to General Styer, whose order
of September 25th and others were made pursuant to and in conformity with General
MacArthur's directive. The charge was prepared by the Judge Advocate General's
Department of the Army. There is no dispute concerning these facts or that the directive
was binding on General Styer and the commission, though it is argued his own authority
as area commanding general was independently sufficient to sustain what was done.

[Footnote 2/9]

"16. Evidence. -- a. The commission shall admit such evidence as in its opinion would
be of assistance in proving or disproving the charge, or such as in the commission's
opinion would have probative value in the mind of a reasonable man. In particular, and
without limiting in any way the scope of the foregoing general rules, the following
evidence may be admitted:"

"(1) Any document while appears to the commission to have been signed or issued
officially by any officer, department, agency, or member of the armed forces of any
government, without proof of the signature or of the issuance of the document."

"(2) Any report which appears to the commission to have been signed or issued by the
International Red Cross or a member thereof, or by a medical doctor or any medical
service personnel, or by an investigator or intelligence officer, or by any other person
whom the commission finds to have been acting in the course of his duty when making
the report."

"(3) Affidavits, depositions, or other statements taken by an officer detailed for that
purpose by military authority."

"(4) Any diary, letter or other document appearing to the commission to contain
information relating to the charge."

"(5) A copy of any document or other secondary evidence of its contents, if the
commission believes that the original is not available or cannot be produced without
undue delay. . . ."

[Footnote 2/10]

In one instance, the president of the commission said:

"The rules and regulations which guide this Commission are binding upon the
Commission and agencies provided to assist the Commission. . . . We have been
authorized to receive and weigh such evidence as we can consider to have probative
value, and further comments by the Defense on the right which we have to accept this
evidence is decidedly out of order."
But see note 19.

[Footnote 2/11]

Cf. text infra at note 19 concerning the prejudicial character of the evidence.

[Footnote 2/12]

Note 4.

[Footnote 2/13]

Namely,

"(1) starvation, execution or massacre without trial, and maladministration generally of


civilian internees and prisoners of war; (2) torture, rape, murder, and mass execution of
very large numbers of residents of the Philippines, including women and children and
members of religious orders, by starvation, beheading, bayoneting, clubbing, hanging,
burning alive, and destruction by explosives; (3) burning and demolition without
adequate military necessity of large numbers of homes, places of business, places of
religious worship, hospitals, public buildings, and educational institutions. In point of
time, the offenses extended throughout the period the accused was in command of
Japanese troops in the Philippines. In point of area, the crimes extended through the
Philippine Archipelago, although by far he most of the incredible acts occurred on
Luzon."

[Footnote 2/14]

Cf. note 13.

[Footnote 2/15]

In addition, the findings set forth that captured orders of subordinate officers gave proof
that "they at least" ordered acts "leading directly to" atrocities; that

"the proof offered to the Commission alleged criminal neglect . . . as well as complete
failure by the higher echelons of command to detect and prevent cruel and inhuman
treatment accorded by local commanders and guards;"

and that, although "the defense had established the difficulties faced by the accused"
with special reference, among other things, to the discipline and morale of his troops
under the "swift and overpowering advance of American forces," and notwithstanding he
had stoutly maintained his complete ignorance of the crimes, still he was an officer of
long experience; his assignment was one of broad responsibility; it was his duty "to
discoverand control" crimes by his troops, if widespread, and therefore
"The Commission concludes: (1) that a series of atrocities and other high crimes have
been committed by members of the Japanese armed forces under your command
against the people of the United States, their allies, and dependencies throughout the
Philippine Islands; that they were not sporadic in nature, but in many cases were
methodically supervised by Japanese officers and noncommissioned officers; (2) that,
during the period in question, you failed to provide effective control of your troops, as
was required by the circumstances."

"Accordingly, upon secret written ballot, two-thirds or more of the members concurring,
the Commission finds you guilty as charged and sentences you to death by hanging."

(Emphasis added.)

[Footnote 2/16]

See note 15.

[Footnote 2/17]

The charge, set forth at the end of this note, is consistent with either theory -- or both --
and thus ambiguous, as were the findings. See note 15. The only word implying
knowledge was "permitting." If "willfully" is essential to constitute a crime or charge of
one, otherwise subject to the objection of "vagueness," cf. Screws v. United States, 325
U. S. 91, it would seem that "permitting" alone would hardly be sufficient to charge
"willful and intentional" action or omission; and, if taken to be sufficient to charge
knowledge, it would follow necessarily that the charge itself was not drawn to state, and
was insufficient to support, a finding of mere failure to detect or discover the criminal
conduct of others.

At the most, "permitting" could charge knowledge only by inference or implication. And,
reasonably, the word could be taken in the context of the charge to mean "allowing" or
"not preventing" -- a meaning consistent with absence of knowledge and mere failure to
discover. In capital cases, such ambiguity is wholly out of place. The proof was equally
ambiguous in the same respect, so far as we have been informed, and so, to repeat,
were the findings. The use of "willfully," even qualified by a "must have," one time only
in the findings hardly can supply the absence of that or an equivalent word or language
in the charge or in the proof to support that essential element in the crime.

The charge was as follows:

"Tomoyuki Yamashita, General Imperial Japanese Army, between 9 October 1944 and
2 September 1945 at Manila and other places in the Philippine Islands, while
commander of armed forces of Japan at war with the United States of America and its
allies, unlawfully disregarded and failed to discharge his duty as commander to control
the operations of the members of his command, permitting them to commit brutal
atrocities and other high crimes against people of the United States and of its allies and
dependencies, particularly the Philippines, and he, General Tomoyuki Yamashita,
thereby violated the laws of war."

[Footnote 2/18]

Cf. Text infra, 327 U. S.

[Footnote 2/19]

On November 1, early in the trial, the president of the commission stated:

"I think the Prosecution should consider the desirability of striking certain items. The
Commission feels that there must be witnesses introduced on each of the specifications
or items. It has no objection to considering affidavits, but it is unwilling to form an
opinion of a particular item based solely on an affidavit. Therefore, until evidence is
introduced, these particular exhibits are rejected."

(Emphasis added.)

Later evidence of the excluded type was offered, to introduction of which the defense
objected on various grounds, including the prior ruling. At the prosecution's urging, the
commission withdrew to deliberate. Later, it announced that,

"after further consideration, the Commission reverses that ruling [of November 1] and
affirms its prerogative of receiving and considering affidavits or depositions, if it chooses
to do so, for whatever probative value the Commission believes they may have, without
regard to the presentation of some partially corroborative oral testimony."

It then added:

"The Commission directs the prosecution again to introduce the affidavits or depositions
then in question, and other documents of similar nature which the prosecution stated
has been prepared for introduction."

(Emphasis added.)

Thereafter, this type of evidence was consistently received, and again by the
undisputed statement of counsel, as the sole proof of many of the specifications of the
bills a procedure which they characterized correctly, in my view, as having, "in effect,
stripped the proceeding of all semblance of a trial, and converted it into an ex
parte investigation."

[Footnote 2/20]

This perhaps consisted in the showing of the so-called "propaganda" film, "Orders from
Tokyo," portraying scenes of battle destruction in Manila, which counsel say "was not, in
itself, seriously objectionable." Highly objectionable, inflammatory and prejudicial,
however, was the accompanying sound track with comment that the film was "evidence
which will convict," mentioning petitioner specifically by name.

[Footnote 2/21]

Innumerable instances of hearsay, once or several times removed, relating to all


manner of incidents, rumors, reports, etc., were among these. Many instances, too, are
shown of the use of opinion evidence and conclusions of guilt, including reports made
after ex parte investigations by the War Crimes Branch of the Judge Advocate General's
Department, which it was and is urged had the effect of "putting the prosecution on the
witness stand" and of usurping the commission's function as judge of the law and the
facts. It is said also that some of the reports were received as the sole proof of some of
the specifications.

[Footnote 2/22]

Also with Paragraph 82 of the Rules of I and Warfare.

[Footnote 2/23]

Typical of the items are allegations that members of the armed forces of Japan under
the command of the accused committed the acts

"[d]uring the months of October, November, and December, 1944 [of] brutally
mistreating and torturing numerous unarmed noncombatant civilians at the Japanese
Military Police Headquarters located at Cortabitarte and Mabini Streets, Manila,"

and,

"On or about 19 February 1945, in the Town of Cuenca, Batangas Province, brutally
mistreating, massacring, and killing Jose M. Laguo, Esteban Magsamdol, Jose Lanbo,
Felisa Apuntar, Elfidio Lunar, Victoriana Ramo, and 978 other persons, all unarmed
noncombatant civilians, pillaging and unnecessarily, deliberately, and wantonly
devastating, burning, and destroying large areas of that town."

[Footnote 2/24]

The supplemental bill contains allegations similar to those set out in the original
bill. See note 23. For example, it charged that members of the armed forces of Japan
under the command of the accused "during the period from 9 October 1944 to about 1
February 1945 at Cavite City, Imus, and elsewhere in Cavite Province," were permitted
to commit the acts of "brutally mistreating, torturing, and killing or attempting to kill,
without cause or trial, unarmed noncombatant civilians."

[Footnote 2/25]
See note 39 and text, 327 U. S.

[Footnote 2/26]

In support of the motion, counsel indicated surprise by saying that, though it was
assumed two or three new specifications might be added, there had been no
expectation of 59 "about entirely new persons and times." The statement continued:

"We have worked earnestly seven days a week in order to prepare the defense on 64
specifications. And when I say 'prepare the defense,' sir, I do not mean merely an
affirmative defense, but to acquaint ourselves with the facts so that we could properly
cross-examine the Prosecution's witnesses."

". . . 'In advance of trial' means: sufficient time to allow the defense a chance to prepare
its defense."

"We earnestly state that we must have this time in order adequately to prepare the
defense. I might add, sir, we think this is important to the accused, but far more
important than any rights of this accused, we believe, is the proposition that this
Commission should not deviate from a fundamental American concept of fairness. . . ."

[Footnote 2/27]

The commission went on to question the need for all of the six officers representing the
defense to be present during presentation of all the case, suggested one or two would
be adequate and others "should be out of the courtroom" engaged in other matters, and
strongly suggested bringing in additional counsel in the midst of the trial, all to the end
that "need to request continuance may not arise."

[Footnote 2/28]

See note 9.

[Footnote 2/29]

Article 25 is as follows:

"A duly authenticated deposition taken upon reasonable notice to the opposite party
may be read in evidence before any military court or commission in any case not
capital, or in any proceeding before a court of inquiry or a military board, if such
deposition be taken when the witness resides, is found, or is about to go beyond the
State, Territory, or district in which the court, commission, or board is ordered to sit, or
beyond the distance of one hundred miles from the place of trial or hearing, or when it
appears to the satisfaction of the court, commission, board, or appointing authority that
the witness, by reason of age, sickness, bodily infirmity, imprisonment, or other
reasonable cause, is unable to appear and testify in person at the place of trial or
hearing: Provided, That testimony by deposition may be adduced for the defense in
capital cases."

(Emphasis added.) 10 U.S.C. 1496.

Article 38 reads:

"The President may, by regulations, which he may modify from time to time, prescribe
the procedure, including modes of proof, in cases before courts-martial, courts of
inquiry, military commissions, and other military tribunals, which regulations shall,
insofar as he shall deem practicable, apply the rules of evidence generally recognized in
the trial of criminal cases in the district courts of the United States: Provided, That
nothing contrary to or inconsistent with these articles shall be so prescribed: Provided
further, That all rules made in pursuance of this article shall be laid before the Congress
annually."

(Emphasis added.) 10 U.S.C. 1509.

[Footnote 2/30]

Another revision of the Articles of War took place in 1920. At this time, Article 15 was
slightly amended.

In 1916 Article 15, 39 Stat. 653, was enacted to read:

"The provisions of these articles conferring jurisdiction upon courts-martial shall not be
construed as depriving military commissions, provost courts, or other military
tribunals of concurrent jurisdiction in respect of offenders or offenses that, by the law of
war, may be lawfully triable by such military commissions, provost courts, or other
military tribunals."

(Emphasis added.)

The 1920 amendment put in the words "by statute or" before the words "by the law of
war" and omitted the word "lawfully."

[Footnote 2/31]

Speaking at the Hearings before the Committee on Military Affairs, House of


Representatives, 62nd Cong., 2d Sess., printed as an Appendix to S.Rep.229, 63rd
Cong., 2d Sess., General Crowder said:

"The next article, No. 15, is entirely new, and the reasons for its insertion in the code are
these: in our War with Mexico, two war courts were brought into existence by orders of
Gen. Scott, viz., the military commission and the council of war. By the military
commission, Gen. Scott tried cases cognizable in time of peace by civil courts, and by
the council of war, he tried offenses against the laws of war. The council of war did not
survive the Mexican War period, and, in our subsequent wars, its jurisdiction has been
taken over by the military commission, which, during the Civil War period, tried more
than 2,000 cases. While the military commission has not been formally authorized by
statute, its jurisdiction as a war court has been upheld by the Supreme Court of the
United States. It is an institution of the greatest importance in a period of war, and
should be preserved. In the new code, the jurisdiction of courts-martial has been
somewhat amplified by the introduction of the phrase 'Persons subject to military law.'
There will be more instances in the future than in the past when the jurisdiction of
courts-martial will overlap that of the war courts, and the question would arise whether
Congress having vested jurisdiction by statute the common law of war jurisdiction was
not ousted. I wish to make it perfectly plain by the new article that, in such cases, the
jurisdiction of the war court is concurrent."

S.Rep. No.229, 63rd Cong., 2d Sess., p. 53. (Emphasis added.)

And later, in 1916, speaking before the Subcommittee on Military Affairs of the Senate
at their Hearings on S.3191, a project for the revision of the Articles of War, 64th Cong.,
1st Sess., printed as an Appendix to S.Rep.230, 64th Cong., 1st Sess., General
Crowder explained at greater length:

"Article 15 is new. We have included in article 2 as subject to military law a number of


persons who are also subject to trial by military commissions. A military commission is
our common law war court. It has no statutory existence, though it is recognized by
statute law. As long as the articles embraced them in the designation 'persons subject
to military law,' and provided that they might be tried by court-martial, I was afraid that,
having made a special provision for their court-martial, it might be held that the provision
operated to exclude trials by military commission and other war courts; so this new
article was introduced. . . ."

"It just saves to these war courts the jurisdiction they now have and makes it a
concurrent jurisdiction with courts-martial, so that the military commander in the field in
time of war will be at liberty to employ either form of court that happens to be
convenient. Both classes of courts have the same procedure. For the information of the
committee and in explanation of these war courts to which I have referred, I insert here
an explanation from Winthrop's Military Law and Precedents --"

" The military commission -- a war court -- had its origin in G.O. 20, Headquarters of the
Army at Tampico, February 19, 1847 (Gen. Scott). Its jurisdiction was confined mainly to
criminal offenses of the class cognizable by civil courts in time of peace committed by
inhabitants of the theater of hostilities. A further war court was originated by Gen. Scott
at the same time, called 'council of war,' with jurisdiction to try the same classes of
persons for violations of the laws of war, mainly guerillas. These two jurisdictions were
united in the later war court of the Civil War and Spanish War periods, for which the
general designation of 'military commission' was retained. The military commission was
given statutory recognition in section 30, act of March 3, 1863, 12 Stat. 736, and in
various other statutes of that period. The United States Supreme Court has
acknowledged the validity of its judgments (Ex parte Vallandingham, 1 Wall. 243
and Coleman v. Tennessee, 97 U. S. 509). It tried more than 2,000 cases during the
Civil War and reconstruction period.Its composition, constitution, and procedure follows
the analogy of courts-martial. Another war court is the provost court, an inferior court
with jurisdiction assimilated to that of justices of the peace and police courts, and other
war courts variously designated 'courts of conciliation,' 'arbitrators,' 'military tribunals'
have been convened by military commanders in the exercise of the war power as
occasion and necessity dictated."

" Yet, as I have said, these war courts never have been formally authorized by statute."

" Senator Colt: They grew out of usage and necessity?"

" Gen. Crowder: Out of usage and necessity. I thought it was just as well, as inquiries
would arise, to put this information in the record."

S.Rep. No.130, 64th Cong., 1st Sess. (1916) p. 40. (Emphasis added.)

Article 15 was also explained in the "Report of a committee on the proposed revision of
the articles of war, pursuant to instructions of the Chief of Staff, March 10, 1915,"
included in Revision of the Articles of War, Comparative Prints, Etc., 1904-1920.
J.A.G.O., as follows:

"A number of articles . . . of the revision have the effect of giving courts-martial
jurisdiction over certain offenders and offenses which, under the law of war or by
statute, are also triable by military commissions, provost courts, etc. Article 15 is
introduced for the purpose of making clear that, in such cases, a court martial has only
a concurrent jurisdiction with such war tribunals."

[Footnote 2/32]

Of course, Articles 25 and 38, at the same time that they gave protection to defendants
before military commissions, also provided for the application by such tribunals of
modern rules of procedure and evidence.

[Footnote 2/33]

Winthrop, speaking of military commissions at the time he was writing, 1896, says:

"The offences cognizable by military commissions may thus be classed as follows: (1)
Crimes and statutory offences cognizable by State or U.S. courts, and which would
properly be tried by such courts if open and acting; (2) Violations of the laws and
usages of war cognizable by military tribunals only; (3) Breaches of military orders or
regulations for which offenders are not legally triable by court-martial under the Articles
of War."
(Emphasis added.) Winthrop at *1309. And cf. Fairman, The Law of Martial Rule (2d
ed.1943):

"Military commissions take cognizance of three categories of criminal cases:offenses


against the laws of war, breaches of military regulations, and civil crimes which, where
the ordinary courts have ceased to function, cannot be tried normally."

(Emphasis added.) Fairman, 265-266. See also Davis, A Treatise on the Military Law of
the United States (1915) 309, 310.

[Footnote 2/34]

Note 31.

[Footnote 2/35]

In addition to the statements of General Crowder with relation to Article 15, set out
in note 31, supra, see the following statements made with reference to Article 25 in
1912 at a hearing before the Committee on Military Affairs of the House:

"We come now to article 25, which relates to the admissibility of depositions. . . . It will
be noted further that the application of the old article has been broadened to include
military commissions, courts of inquiry, and military boards."

"Mr. SWEET. Please explain what you mean by military commission."

"Gen. CROWDER. That is our common law of war court, and was referred to by me in a
prior hearing. [The reference is to the discussion of Article 15.] This war court came into
existence during the Mexican War, and was created by orders of Gen. Scott. It had
jurisdiction to try all cases usually cognizable in time of peace by civil courts. Gen. Scott
created another war court, called the 'council of war,' with jurisdiction to try offenses
against the laws of war. The constitution, composition, and jurisdiction of these
courts have never been regulated by statute. The council of war did not survive the
Mexican War period, since which its jurisdiction has been taken over by the military
commission. The military commission received express recognition in the reconstruction
acts, and its jurisdiction has been affirmed and supported by all our courts. It was
extensively employed during the Civil War period and also during the Spanish-American
War. It is highly desirable that this important war court should be continued to be
governed as heretofore, by the laws of war, rather than by statute."

S.Rep. No.229, 63d Cong., 2d Sess., 59; cf. S.Rep. 130, 64th Cong., 1st Sess., 54-55.
(Emphasis added.) See also Hearings before the Subcommittee of the Committee on
Military Affairs of the Senate on Establishment of Military Justice, 66th Cong., 1st Sess.,
1182-1183.
Further evidence that procedural provisions of the Articles were intended to apply to all
forms of military tribunal is given by Article 24, 10 U.S.C. 1495, which provides against
compulsory self-incrimination "before a military court, commission, court of injury, or
board, or before any officer conducting an investigation." This article was drafted so that
"The prohibition should reach all witnesses, irrespective of the class of military
tribunal before which they appear. . . ." (Emphasis added.) Comparative Print showing
S.3191 with the Present Articles of War and other Related Statutes, and Explanatory
Notes, Printed for use of the Senate Committee on Military Affairs, 64th Cong., 1st
Sess., 17, included in Revision of the Articles of War, Comparative Prints, Etc., 1904-
1920, J.A.G.O.

[Footnote 2/36]

We are informed that Japan has not ratified the Geneva Convention. Seediscussion of
Article 82 in the paragraphs below. We are also informed, however -- and the record
shows this at least as to Japan -- that, at the beginning of the war, both the United
States and Japan announced their intention to adhere to the provisions of that treaty.
The force of that understanding continues, perhaps with greater reason, if not effect,
despite the end of hostilities. See note 40 and text.

Article 82 provides:

"The provisions of the present Convention must be respected by the High Contracting
Parties under all circumstances."

"In case, in time of war, one of the belligerents is not a party to the Convention, its
provisions shall nevertheless remain in force as between the belligerents who are
parties thereto."

It is not clear whether the Article means that, during a war, when one of the belligerents
is not a party to the Convention, the provisions must nevertheless be applied by all the
other belligerents to the prisoners of war not only of one another, but also of the power
that was not a party thereto, or whether it means that they need not be applied to
soldiers of the nonparticipating party who have been captured. If the latter meaning is
accepted, the first paragraph would seem to contradict the second.

"Legislative history" here is of some, if little, aid. A suggested draft of a convention on


war prisoners drawn up in advance of the Geneva meeting by the International
Committee of the Red Cross (Actes de la Conference Diplomatique de Geneve, edited
by Des Gouttes, pp. 21-34) provided in Article 92 that the provisions of the Convention

"ne cesseront d'etre obligatories qu'au cas ou l'un des Etats belligerents participant a la
Convention se trouve avoir a combattre les forces armees d'un autre Etat que n'y serait
par parties at a l'egard de cet Etat seulement."
See Rasmussen, Code des Prisonniers de Guerre (1931) 70. The fact that this
suggested article was not included in the Geneva Convention would indicate that the
nations in attendance were avoiding a decision on this problem. But I think it shows
more -- that is, it manifests an intention not to foreclose a future holding that, under the
terms of the Convention, a state is bound to apply the provisions to prisoners of war of
nonparticipating state. And not to foreclose such a holding is to invite one. We should, in
my opinion, so hold, for reasons of security to members of our own armed forces taken
prisoner, if for no others.

Moreover, if this view is wrong and the Geneva Convention is not strictly binding upon
the United States as a treaty, it is strong evidence of and should be held binding as
representing what have become the civilized rules of international warfare. Yamashita is
as much entitled to the benefit of such rules as to the benefit of a binding treaty which
codifies them. See U.S. War Dep't Basic Field Manual, Rules of Land Warfare (1940),
par. 5-b.

[Footnote 2/37]

Title III of the Convention, which comprises Articles 7 to 67, is called "Captivity." It
contains Section I, "Evacuation of Prisoners of War" (Articles 7, 8); Section II,
"Prisoners-of-War Camps" (Articles 9-26); Section III, "Labor of Prisoners of War"
(Articles 27-34); Section IV, "External Relations of Prisoners of War" (Articles 35-41),
and Section V, "Prisoners' Relations with the Authorities" (Articles 42-67). Thus, Title III
regulates all the various incidents of a prisoner of war's life while in captivity.

Section V, with which we are immediately concerned, is divided into three chapters.
Chapter 1 (Article 42) gives a prisoner of war the right to complain of his condition of
captivity. Chapter 2 (Articles 43-44) gives prisoners of war the right to appoint agents to
represent them. Chapter 3 is divided into three subsections, and is termed "Penalties
Applicable to Prisoners of War." Subsection 1 (Articles 45-53) contains various
miscellaneous articles to be considered in detail later. Subsection 2 (Articles 54-59)
contains provisions with respect to disciplinary punishments. And subsection 3 (Articles
60-67), which is termed "Judicial Suits," contains various provisions for protection of a
prisoner's rights in judicial proceedings instituted against him.

Thus, subsection 3, which contains Articles 60 and 63, as opposed to subsection 2, of


Chapter 3, is concerned not with mere problems of discipline, as is the latter, but with
the more serious matters of trial leading to imprisonment or possible sentence of
death; cf. Brereton, The Administration of Justice Among Prisoners of War by Military
Courts (1935) 1 Proc. Australian & New Zealand Society of International Law 143, 153.
The Court, however, would have the distinction between subsection 2 and subsection 3
one between minor disciplinary action against a prisoner of war for acts committed while
a prisoner and major judicial action against a prisoner of war for acts committed while a
prisoner. This narrow view not only is highly strained, confusing the different situations
and problems treated by the two subdivisions. It defeats the most important protections
subsection 3 was intended to secure, for our own as well as for enemy captive military
personnel.

At the most, there would be logic in the Court's construction if it could be said that all of
Chapter 3 deals with acts committed while a prisoner of war. Of course, subsection 2
does, because of the very nature of its subject matter. Disciplinary action will be taken
by a captor power against prisoners of war only for acts committed by prisoners after
capture.

But it is said that subsection 7 deals exclusively with acts committed by a prisoner of
war after having become a prisoner, and this indicates subsection 3 is limited similarly.
This ignores the fact that some of the articles in subsection 1 appear, on their face, to
apply to all judicial proceedings for whatever purpose instituted. Article 46, for example,
provides in part:

"Punishments other than those provided for the same acts for soldiers of the national
armies may not be imposed upon prisoners of war by the military authorities and courts
of the detaining Power."

This seems to refer to war crimes as well as to other offenses, for surely a country
cannot punish soldiers of another army for offenses against the law of war when it
would not punish its own soldiers for the same offences. Similarly, Article 47 in
subsection 1 appears to refer to war crimes as well as to crimes committed by a
prisoner after his capture. It reads in part:

"Judicial proceedings against prisoners of war shall be conducted as rapidly as the


circumstances permit; preventive imprisonment shall be limited as much as possible."

Thus, at the most, subjection 1 contains, in some of its articles, the same ambiguities,
and is open to the same problem, that we are faced with in construing Articles 60 and
63. It cannot be said therefore that all of chapter 3, and especially subsection 3, relate
only to acts committed by prisoners of war after capture, for the meaning of subsection
3, in this argument, is related to the meaning of subsection 1, and subsection 1 is no
more clear restricted to punishments and proceedings in disciplinary matters than is
subsection 3.

[Footnote 2/38]

Article 60 pertinently is as follows:

"At the opening of a judicial proceeding directed against a prisoner of war, the detaining
Power shall advise the representative of the protecting Power thereof as soon as
possible, and always before the date set for the opening of the trial."

"This advice shall contain the following information:"


"a) Civil state and rank of prisoner;"

"b) Place of sojourn or imprisonment;"

"c) Specification of the [count] or counts of the indictment, giving the legal provisions
applicable."

"If it is not possible to mention in that advice the court which will pass upon the matter,
the date of opening the trial, and the place where it will take place, this information must
be furnished to the representative of the protecting Power later, as soon as possible,
and at all events at least three weeks before the opening of the trial."

Article 63 reads:

"Sentence may be pronounced against a prisoner of war only by the same courts and
according to the same procedure as in the case of persons belonging to the armed
forces of the detaining Power."

[Footnote 2/39]

Item 89 charged the armed forces of Japan with subjecting to trial certain named and
other prisoners of war

"without prior notice to a representative of the protecting power, without opportunity to


defend, and without counsel; denying opportunity to appeal from the sentence rendered;
failing to notify the protecting power of the sentence pronounced, and executed a death
sentence without communicating to the representative of the protecting power the
nature and circumstances of the offense charged."

[Footnote 2/40]

Nations adhere to international treaties regulating the conduct of war at least in part
because of the fear of retaliation. Japan no longer has the means of retaliating.

[Footnote 2/41]

There can be no limit either to the admissibility or the use of evidence if the only test to
be applied concerns probative value and the only test of probative value, as the
directive commanded and the commission followed out, lies "in the Commission's
opinion," whether that be concerning the assistance the "evidence" tendered would give
in proving or disproving the charge or as it might think would "have value in the mind of
a reasonable man." Nor is it enough to establish the semblance of a constitutional right
that the commission declares, in receiving the evidence, that it comes in as having only
such probative value, if any, as the commission decides to award it and this is accepted
as conclusive.
[Footnote 2/42]

2 The Complete Writings of Thomas Paine (edited by Foner, 1945) 588.

Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain

Belgium had ceased pursuing the aforementioned case on account of efforts to


negotiate a friendly settlement. The negotiations broke down, however, and
Belgium filed a new Application on 19 June 1962. The following March, Spain filed
four preliminary objections to the Courts jurisdiction, and on 24 July 1964 the
Court delivered a Judgment dismissing the first two but joining the others to the
merits. After the filing, within the time-limits requested by the Parties, of the
pleadings on the merits and on the objections joined thereto, hearings were held
from 15 April to 22 July 1969. Belgium sought compensation for the damage
claimed to have been caused to its nationals, shareholders in the Barcelona
Traction, Light and Power Company, Ltd., as the result of acts contrary to
international law said to have been committed by organs of the Spanish State.
Spain, on the other hand, submitted that the Belgian claim should be declared
inadmissible or unfounded. In a Judgment delivered on 5 February 1970, the
Court found that Belgium had no legal standing to exercise diplomatic protection
of shareholders in a Canadian company in respect of measures taken against that
company in Spain. It also pointed out that the adoption of the theory of
diplomatic protection of shareholders as such would open the door to competing
claims on the part of different States, which could create an atmosphere of
insecurity in international economic relations. Accordingly, and in so far as the
companys national State (Canada) was able to act, the Court was not of the
opinion that jus standi was conferred on the Belgian Government by
considerations of equity. The Court accordingly rejected Belgiums claim.

BELGIUM
v.
SPAIN

JUDGMENT
[p6]
The Court,
composed as above,
delivers the following Judgment:

1. In 1958 the Belgian Government filed with the International Court of Justice an
Application against the Spanish Government seeking reparation for damage
allegedly caused to the Barcelona Traction, Light and Power Company, Limited, on
account of acts said to be contrary to international law committed by organs of the
Spanish State. After the filing of the Belgian Memorial and the submission of
preliminary objections by the Spanish Government, the Belgian Government gave
notice of discontinuance of the proceedings, with a view to negotiations between the
representatives of the private interests concerned. The case was removed from the
Court's General List on 10 April 1961.

2. On 19 June 1962, the negotiations having failed, the Belgian Government


submitted to the Court a new Application, claiming reparation for the damage
allegedly sustained by Belgian nationals, shareholders in the Barcelona Traction
company, on account of acts said to be contrary to international law committed in
respect of the company by organs of the Spanish State. On 15 March 1963 the
Spanish Government raised four preliminary objections to the Belgian Application.

3. By its Judgment of 24 July 1964, the Court rejected the first two preliminary
objections. The first was to the effect that the discontinuance, under Article 69,
paragraph 2, of the Court's Rules, of previous proceedings relative to the same
events in Spain, disentitled the Belgian Government from bringing the present
proceedings. The second was to the effect that even if this was not the case, the
Court was not competent, because the necessary jurisdictional basis requiring Spain
to submit to the jurisdiction of the Court did not exist. The Court joined the third
and fourth objections to the merits. The third was to the effect that the claim is
inadmissible because the Belgian Government lacks any jus standi to intervene or
make a judicial claim on behalf of Belgian interests in a Canadian company,
assuming that the Belgian character of such interests were established, which is
denied by the Spanish Government. The fourth was to the effect that even if the
Belgian Government has the necessary jus standi, the claim still remains
inadmissible because local remedies in respect of the acts complained of were not
exhausted.

4. Time-limits for the filing of the further pleadings were fixed or, at the request of
the Parties, extended by Orders of 28 July 1964, 11 June 1965, 12 January 1966, 23
November 1966, 12 April 1967, 15 September 1967 and 24 May 1968, in the last-
mentioned of which the Court noted with regret that the time-limits originally fixed
by the Court for the filing of the pleadings had not been observed, whereby the
written proceedings had been considerably prolonged. The written proceedings
finally came to an end on 1 July 1968 with the filing of the Rejoinder of the Spanish
Government. [p.7]

5. Pursuant to Article 31, paragraph 3, of the Statute, Mr. Willem Riphagen,


Professor of International Law at the Rotterdam School of Economics, and Mr.
Enrique C. Armand-Ugon, former President of the Supreme Court of Justice of
Uruguay and a former Member of the International Court of Justice, were chosen by
the Belgian and Spanish Governments respectively to sit as judges ad hoc.

6. Pursuant to Article 44, paragraph 2, of the Rules of Court, the pleadings and
annexed documents were, after consultation of the Parties, made available to the
Governments of Chile, Peru and the United States of America. Pursuant to
paragraph 3 of the same Article, the pleadings and annexed documents were, with
the consent of the Parties, made accessible to the public as from 10 April 1969.

7. At 64 public sittings held between 15 April and 22 July 1969 the Court heard oral
arguments and replies by Chevalier Devadder, Agent, Mr. Rolin, co-Agent and
Counsel, Mrs. Bastid, Mr. Van Ryn, Mr. Grgoire, Mr. Mann, Mr. Virally, Mr.
Lauterpacht, and Mr. Pattillo, Counsel, on behalf of the Belgian Government and by
Mr. Castro-Rial, Agent, Mr. Ago, Mr. Carreras Mr. Gil-Robles, Mr. Guggenheim,
Mr. Jimenez de Archaga, Mr. Malintoppi, Mr. Reuter, Mr. Sureda, Mr. Uria, Sir
Humphrey Waldock and Mr. Weil, Counsel or Advocates, on behalf of the Spanish
Government.

***

8. The Barcelona Traction, Light and Power Company, Limited, is a holding


company incorporated in 1911 in Toronto (Canada), where it has its head office. For
the purpose of creating and developing an electric power production and distribution
system in Catalonia (Spain), it formed a number of operating, financing and
concession-holding subsidiary companies. Three of these companies, whose shares
it owned wholly or almost wholly, were incorporated under Canadian law and had
their registered offices in Canada (Ebro Irrigation and Power Company, Limited,
Catalonian Land Company, Limited and International Utilities Finance Corporation,
Limited); the others were incorporated under Spanish law and had their registered
offices in Spain. At the time of the outbreak of the Spanish Civil War the group,
through its operating subsidiaries, supplied the major part of Catalonia's electricity
requirements.

9. According to the Belgian Government, some years after the First World War
Barcelona Traction's share capital came to be very largely held by Belgian
nationalsnatural or juristic personsand a very high percentage of the shares has
since then continuously belonged to Belgian nationals, particularly the Socit
Internationale d'Energie Hydro-Electrique (Sidro), whose principal shareholder, the
Socit Financire de Transports et d'Entreprises Industrielles (Sofina), is itself a
company in which Belgian interests are preponderant. The fact that large blocks of
shares were for certain periods transferred to American nominees, to [p.8]protect
these securities in the event of invasion of Belgian territory during the Second
World War, is not, according to the Belgian contention, of any relevance in this
connection, as it was Belgian nationals, particularly Sidro, who continued to be the
real owners. For a time the shares were vested in a trustee, but the Belgian
Government maintains that the trust terminated in 1946. The Spanish Government
contends, on the contrary, that the Belgian nationality of the shareholders is not
proven and that the trustee or the nominees must be regarded as the true
shareholders in the case of the shares concerned.

10. Barcelona Traction issued several series of bonds, some in pesetas but
principally in sterling. The issues were secured by trust deeds, with the National
Trust Company, Limited, of Toronto as trustee of the sterling bonds, the security
consisting essentially of a charge on bonds and shares of Ebro and other subsidiaries
and of a mortgage executed by Ebro in favour of National Trust. The sterling bonds
were serviced out of transfers to Barcelona Traction effected by the subsidiary
companies operating in Spain.

11. In 1936 the servicing of the Barcelona Traction bonds was suspended on
account of the Spanish civil war. In 1940 payment of interest on the peseta bonds
was resumed with the authorization of the Spanish exchange control authorities
(required because the debt was owed by a foreign company), but authorization for
the transfer of. the foreign currency necessary for the servicing of the sterling bonds
was refused and those interest payments were never resumed.

12. In 1945 Barcelona Traction proposed a plan of compromise which provided for
the reimbursement of the sterling debt. When the Spanish authorities refused to
authorize the transfer of the necessary foreign currency, this plan was twice
modified. In its final form, the plan provided, inter alia, for an advance redemption
by Ebro of Barcelona Traction peseta bonds, for which authorization was likewise
required. Such authorization was refused by the Spanish authorities. Later, when the
Belgian Government complained of the refusals to authorize foreign currency
transfers, without which the debts on the bonds could not be honoured, the Spanish
Government stated that the transfers could not be authorized unless it was shown
that the foreign currency was to be used to repay debts arising from the genuine
importation of foreign capital into Spain, and that this had not been established.

13. On 9 February 1948 three Spanish holders of recently acquired Barcelona


Traction sterling bonds petitioned the court of Reus (Province of Tarragona) for a
declaration adjudging the company bankrupt, on account of failure to pay the
interest on the bonds. The petition was admitted by an order of 10 February 1948
and a judgment declaring the company bankrupt was given on 12 February. This
judgment included provisions appointing a commissioner in bankruptcy and an
interim [p.9] receiver and ordering the seizure of the assets of Barcelona Traction,
Ebro and Compaa Barcelonesa de Electricidad, another subsidiary company.
14. The shares of Ebro and Barcelonesa had been deposited by Barcelona Traction
and Ebro with the National Trust company of Toronto as security for their bond
issues. All the Ebro and the Barcelonesa ordinary shares were held outside Spain,
and the possession taken of them was characterized as "mediate and constructive
civil possession", that is to say was not accompanied by physical possession.
Pursuant to the bankruptcy judgment the commissioner in bankruptcy at once
dismissed the principal management personnel of the two companies and during the
ensuing weeks the interim receiver appointed Spanish directors and declared that the
companies were thus "normalized". Shortly after the bankruptcy judgment the
petitioners brought about the extension of the taking of possession and related
measures to the other subsidiary companies.

15. Proceedings in Spain to contest the bankruptcy judgment and the related
decisions were instituted by Barcelona Traction, National Trust, the subsidiary
companies and their directors or management personnel. However, Barcelona
Traction, which had not received a judicial notice of the bankruptcy proceedings,
and was not represented before the Reus court in February, took no proceedings in
the courts until 18 June 1948. In particular it did not enter a plea of opposition
against the bankruptcy judgment within the time-limit of eight days from the date of
publication of the judgment laid down in Spanish legislation. On the grounds that
the notification and publication did not comply with the relevant legal requirements,
the Belgian Government contends that the eight-day time-limit had never begun to
run.

16. Motions contesting the jurisdiction of the Reus court and of the Spanish courts
as a whole, in particular by certain bondholders, had a suspensive effect on the
actions for redress; a decision on the question of jurisdiction was in turn delayed by
lengthy proceedings brought by the Genora company, a creditor of Barcelona
Traction, disputing Barcelona Traction's right to be a party to the proceedings on the
jurisdictional issue. One of the motions contesting jurisdiction was not finally
dismissed by the Barcelona court of appeal until 1963, after the Belgian Application
had been filed with the International Court of Justice.

17. In June 1949, on an application by the Namel company, with the intervention of
the Genora company, the Barcelona court of appeal gave a judgment making it
possible for the meeting of creditors to be convened for the election of the trustees
in bankruptcy, by excluding the necessary procedure from the suspensive effect of
the motion contesting jurisdiction. Trustees were then elected, and procured
decisions that new shares of the subsidiary companies should be created, cancelling
the shares located outside Spain (December 1949), and that the head offices of Ebro
and Catalonian Land should henceforth be at Barcelona and not [p.10]Toronto.
Finally in August 1951 the trustees obtained court authorization to sell "the totality
of the shares, with all the rights attaching to them, representing the corporate
capital" of the subsidiary companies, in the form of the newly created share
certificates. The sale took place by public auction on 4 January 1952 on the basis of
a set of General Conditions and became effective on 17 June 1952. The purchaser
was a newly formed company, Fuerzas Elctricas de Catalua, S.A. (Fecsa), which
thereupon acquired complete control of the undertaking in Spain.

18. Proceedings before the court of Reus, various courts of Barcelona and the
Spanish Supreme Court, to contest the sale and the operations which preceded or
followed it, were taken by, among others, Barcelona Traction, National Trust and
the Belgian company Sidro as a shareholder in Barcelona Traction, but without
success. According to the Spanish Government, up to the filing of the Belgian
Application, 2,736 orders had been made in the case and 494 judgments given by
lower and 37 by higher courts. For the purposes of this Judgment it is not necessary
to go into these orders and judgments.

19. After the bankruptcy declaration, representations were made to the Spanish
Government by the British, Canadian, United States and Belgian Governments.

20. The British Government made representations to the Spanish Government on 23


February 1948 concerning the bankruptcy of Barcelona Traction and the seizure of
its assets as well as those of Ebro and Barcelonesa, stating its interest in the
situation of the bondholders resident in the United Kingdom. It subsequently
supported the representations made by the Canadian Government.

21. The Canadian Government made representations to the Spanish Government in


a series of diplomatic notes, the first being dated 27 March 1948 and the last 21
April 1952; in addition, approaches were made on a less official level in July 1954
and March 1955. The Canadian Government first complained of the denials of
justice said to have been committed in Spain towards Barcelona Traction, Ebro and
National Trust, but it subsequently based its complaints more particularly on
conduct towards the Ebro company said to be in breach of certain treaty provisions
applicable between Spain and Canada. The Spanish Government did not respond to
a Canadian proposal for the submission of the dispute to arbitration and the
Canadian Government subsequently confined itself, until the time when its
interposition entirely ceased, to endeavouring to promote a settlement by agreement
between the private groups concerned.

22. The United States Government made representations to the Spanish Government
on behalf of Barcelona Traction in a note of 22 July 1949, in support of a note
submitted by the Canadian Government the previous day. It subsequently continued
its interposition through the diplomatic channel and by other means. Since
references were made by the United States Government in these representations to
the presence of [p.11] American interests in Barcelona Traction, the Spanish
Government draws the conclusion that, in the light of the customary practice of the
United States Government to protect only substantial American investments abroad,
the existence must be presumed of such large American interests as to rule out a
preponderance of Belgian interests. The Belgian Government considers that the
United States Government was motivated by a more general concern to secure
equitable treatment of foreign investments in Spain, and in this context cites, inter
alia, a note of 5 June 1967 from the United States Government.

23. The Spanish Government having stated in a note of 26 September 1949 that
Ebro had not furnished proof as to the origin and genuineness of the bond debts,
which justified the refusal of foreign currency transfers, the Belgian and Canadian
Governments considered proposing to the Spanish Government the establishment of
a tripartite committee to study the question. Before this proposal was made, the
Spanish Government suggested in March 1950 the creation of a committee on
which, in addition to Spain, only Canada and the United Kingdom would be
represented. This proposal was accepted by the United Kingdom and Canadian
Governments. The work of the committee led to a joint statement of 11 June 1951
by the three Governments to the effect, inter alia, that the attitude of the Spanish
administration in not authorizing the transfers of foreign currency was fully
justified. The Belgian Government protested against the fact that it had not been
invited to nominate an expert to take part in the enquiry, and reserved its rights; in
the proceedings before the Court it contended that the joint statement of 1951,
which was based on the work of the committee, could not be set up against it, being
res inter alios acta.

24. The Belgian Government made representations to the Spanish Government on


the same day as the Canadian Government, in a note of 27 March 1948. It continued
its diplomatic intervention until the rejection by the Spanish Government of a
Belgian proposal for submission to arbitration (end of 1951). After the admission of
Spain to membership in the United Nations (1955), which, as found by the Court in
1964, rendered operative again the clause of compulsory jurisdiction contained in
the 1927 Hispano-Belgian Treaty of Conciliation, Judicial Settlement and
Arbitration, the Belgian Government attempted further representations. After the
rejection of a proposal for a special agreement, it decided to refer the dispute
unilaterally to this Court.

***

25. In the course of the written proceedings, the following submissions were
presented by the Parties: [p. 12]

On behalf of the Belgian Government, the Application:

"May it please the Court

1. to adjudge and declare that the measures, acts, decisions and omissions of the
organs of the Spanish State described in the present Application are contrary to
international law and that the Spanish State is under an obligation towards Belgium
to make reparation for the consequential damage suffered by Belgian nationals,
natural and juristic persons, shareholders in Barcelona Traction;

2. to adjudge and declare that this reparation should, as far as possible, annul all the
consequences which these acts contrary to international law have had for the said
nationals, and that the Spanish State is therefore under an obligation to secure, if
possible, the annulment of the adjudication in bankruptcy and of the judicial and
other acts resulting therefrom, obtaining for the injured Belgian nationals all the
legal effects which should result for them from this annulment; further, to determine
the amount of the compensation to be paid by the Spanish State to the Belgian State
by reason of all the incidental damage sustained by Belgian nationals as a result of
the acts complained of, including the deprivation of enjoyment of rights and the
expenses incurred in the defence of their rights;

3. to adjudge and declare, in the event of the annulment of the consequences of the
acts complained of proving impossible, that the Spanish State shall be under an
obligation to pay to the Belgian State, by way of compensation, a sum equivalent to
88 per cent of the net value of the business on 12 February 1948; this compensation
to be increased by an amount corresponding to all the incidental damage suffered by
the Belgian nationals as the result of the acts complained of, including the
deprivation of enjoyment of rights and the expenses incurred in the defence of their
rights";

the Memorial:

"May it please the Court

I. to adjudge and declare that the measures, acts, decisions and omissions of the
organs of the Spanish State described in the present Memorial are contrary to
international law and that the Spanish State is under an obligation towards Belgium
to make reparation for the consequential damage suffered by Belgian nationals,
natural and juristic persons, shareholders in Barcelona Traction;

II. to adjudge and declare that this reparation should, as far as possible, annul all the
consequences which these acts contrary to international law have had for the said
nationals, and that the Spanish State is therefore under an obligation to secure, if
possible, the annulment by administrative means of the adjudication in bankruptcy
and of the judicial and other acts resulting therefrom, obtaining for the said injured
Belgian nationals all the legal effects which should result for them from this
annulment; further, to determine the amount of the compensation to be paid by the
Spanish State to the Belgian State by reason of all the incidental damage sustained
by Belgian nationals as a result of the acts complained of, including the deprivation
of enjoyment of rights and the expenses incurred in the defence of their rights;
[p.13]

III. to adjudge and declare, in the event of the annulment of the consequences of the
acts complained of proving impossible, that the Spanish State shall be under an
obligation to pay to the Belgian State, by way of compensation, a sum equivalent to
88 per cent of the sum of $88,600,000 arrived at in paragraph 379 of the present
Memorial, this compensation to be increased by an amount corresponding to all the
incidental damage suffered by the said Belgian nationals as the result of the acts
complained of, including the deprivation of enjoyment of rights, the expenses
incurred in the defence of their rights and the equivalent in capital and interest of the
amount of Barcelona Traction bonds held by Belgian nationals and of their other
claims on the companies in the group which it was not possible to recover owing to
the acts complained of";

in the Reply:

"May it please the Court, rejecting any other submissions of the Spanish State which
are broader or to a contrary effect,
to adjuge and declare

(1) that the Application of the Belgian Government is admissible;

(2) that the Spanish State is responsible for the damage sustained by the Belgian
State in the person of its nationals, shareholders in Barcelona Traction, as the result
of the acts contrary to international law committed by its organs, which led to the
total spoliation of the Barcelona Traction group;

(3) that the Spanish State is under an obligation to ensure reparation of the said
damage;

(4) that this damage can be assessed at U.S. $78,000,000, representing 88 per cent.
of the net value, on 12 February 1948, of the property of which the Barcelona
Traction group was despoiled;

(5) that the Spanish State is, in addition, under an obligation to pay, as an all-
embracing payment to cover loss of enjoyment, compensatory interest at the rate of
6 per cent. on the said sum of U.S. $78,000,000, from 12 February 1948 to the date
of judgment;
(6) that the Spanish State must, in addition, pay a sum provisionally assessed at U.S.
$3,800,000 to cover the expenses incurred by the Belgian nationals in defending
their rights since 12 February 1948;

(7) that the Spanish State is also liable in the sum of 433,821 representing the
amount, in principal and interest, on 4 January 1952, of the Barcelona Traction
sterling bonds held by the said nationals, as well as in the sum of U.S. $1,623,127,
representing a debt owed to one of the said nationals by a subsidiary company of
Barcelona Traction, this sum including lump-sum compensation for loss of profits
resulting from the premature termination of a contract;
that there will be due on those sums interest at the rate of 6 per cent, per annum, as
from 4 January 1952 so far as concerns the sum of 433,821, and as from 12
February 1948 so far as concerns the sum of U.S. $1,623,127; both up to the date of
judgment;
(8) that the Spanish State is also liable to pay interest, by way of interest on a sum
due and outstanding, at a rate to be determined by [p.14] reference to the rates
generally prevailing, on the amount of compensation awarded, from the date of the
Court's decision fixing such compensation up to the date of payment;

(9) in the alternative to submissions (4) to (6) above, that the amount of the
compensation due to the Belgian State shall be established by means of an expert
enquiry to be ordered by the Court; and to place on record that the Belgian
Government reserves its right to submit in the course of the proceedings such
observations as it may deem advisable concerning the object and methods of such
measure of investigation;

(10) and, should the Court consider that it cannot, without an expert enquiry, decide
the final amount of the compensation due to the Belgian State, have regard to the
considerable magnitude of the damage caused and make an immediate award of
provisional compensation, on account of the compensation to be determined after
receiving the expert opinion, the amount of such provisional compensation being
left to the discretion of the Court."

On behalf of the Spanish Government, in the Counter-Memorial:

"May it please the Court to adjudge and declare

I. that the Belgian claim which, throughout the diplomatic correspondence and in
the first Application submitted to the Court, has always been a claim with a view to
the protection of the Barcelona Traction company, has not changed its character in
the second Application, whatever the apparent modifications introduced into it;

that even if the true subject of the Belgian claim were, not the Barcelona Traction
company, but those whom the Belgian Government characterizes on some occasions
as 'Belgian shareholders' and on other occasions as 'Belgian interests' in that
company, and the damage allegedly sustained by those 'shareholders' or 'interests', it
would still remain true that the Belgian Government has not validly proved either
that the shares of the company in question belonged on the material dates to
'Belgian shareholders', or, moreover, that there is in the end, in the case submitted to
the Court, a preponderance of genuine 'Belgian interests';

that even if the Belgian claim effectively had as its beneficiaries alleged
'shareholders' of Barcelona Traction who were 'Belgian', or yet again alleged
genuine 'Belgian interests' of the magnitude which is attributed to them, the general
principles of international law governing this matter, confirmed by practice which
knows of no exception, do not recognize that the national State of shareholders or
'interests', whatever their number or magnitude, may make a claim on their behalf in
reliance on allegedly unlawful damage sustained by the company, which possesses
the nationality of a third State;
that the Belgian Government therefore lacks jus standi in the present case;

II. that a rule of general international law, confirmed both by judicial precedents and
the teachings of publicists, and reiterated in Article 3 of the Treaty of Conciliation,
Judicial Settlement and Arbitration of 19 July 1927 between Spain and Belgium,
requires that private persons [p.15] allegedly injured by a measure contrary to
international law should have used and exhausted the remedies and means of redress
provided by the internal legal order before diplomatic, and above all judicial,
protection may be exercised on their behalf;

that the applicability of this rule to the present case has not been disputed and that
the prior requirement which it lays down has not been satisfied;

III. that the organic machinery for financing the Barcelona Traction undertaking, as
conceived from its creation and constantly applied thereafter, placed it in a
permanent state of latent bankruptcy, and that the constitutional structure of the
group and the relationship between its members were used as the instrument for
manifold and ceaseless operations to the detriment both of the interests of the
creditors and of the economy and law of Spain, the country in which the
undertaking was to carry on all its business;

that these same facts led, on the part of the undertaking, to an attitude towards the
Spanish authorities which could not but provoke a fully justified refusal to give
effect to the currency applications made to the Spanish Government;

that the bankruptcy declaration of 12 February 1948, the natural outcome of the
conduct of the undertaking, and the bankruptcy proceedings which ensued, were in
all respects in conformity with the provisions of Spanish legislation on the matter;
and that moreover these provisions are comparable with those of other statutory
systems, in particular Bel-gian legislation itself;

that the complaint of usurpation of jurisdiction is not well founded where the
bankruptcy of a foreign company is connected in any way with the territorial
jurisdiction of the State, that being certainly so in the present case;

that the Spanish judicial authorities cannot be accused of either one or more denials
of justice in the proper sense of the term, Barcelona Traction never having been
denied access to the Spanish courts and the judicial decisions on its applications and
appeals never having suffered unjustified or unreasonable delays; nor is it possible
to detect in the conduct of the Spanish authorities the elements of some breach of
international law other than a denial of justice;

that the claim for reparation, the very principle of which is disputed by the Spanish
Government, is moreover, having regard to the circumstances of the case, an abuse
of the right of diplomatic protection in connection with which the Spanish
Government waives none of its possible rights;
IV. that, therefore, the Belgian claim is dismissed as inadmissible or, if not, as
unfounded";

in the Rejoinder:

"May it please the Court to adjudge and declare

that the claim of the Belgian Government is declared inadmissible or, if not,
unfounded."

In the course of the oral proceedings, the following text was presented as final
submissions [p.16]

on behalf of the Belgian Government,

after the hearing of 9 July 1969:

"1. Whereas the Court stated on page 9 of its Judgment of 24 July 1964 that 'The
Application of the Belgian Government of 19 June 1962 seeks reparation for
damage claimed to have been caused to a number of Belgian nationals, said to be
shareholders in the Barcelona Traction, Light and Power Company, Limited, a
company under Canadian law, by the conduct, alleged to have been contrary to
international law, of various organs of the Spanish State in relation to that company
and to other companies of its group';
Whereas it was therefore manifestly wrong of the Spanish Government, in the
submissions in the Counter-Memorial and in the oral arguments of its counsel, to
persist in the contention that the object of the Belgian claim is to protect the
Barcelona Traction company;

2. Whereas Barcelona Traction was adjudicated bankrupt in a judgment rendered by


the court of Reus, in Spain, on 12 February 1948;

3. Whereas that holding company was on that date in a perfectly sound financial
situation, as were its subsidiaries, Canadian or Spanish companies having their
business in Spain;

4. Whereas, however, the Spanish Civil War and the Second World War had, from
1936 to 1944, prevented Barcelona Traction from being able to receive, from its
subsidiaries operating in Spain, the foreign currency necessary for the service of the
sterling loans issued by it for the financing of the group's investments in Spain;

5. Whereas, in order to remedy this situation, those in control of Barcelona Traction


agreed with the bondholders in 1945, despite the opposition of the March group, to
a plan of compromise, which was approved by the trustee and by the competent
Canadian court; and whereas its implementation was rendered impossible as a result
of the opposition of the Spanish exchange authorities, even though the method of
financing finally proposed no longer involved any sacrifice of foreign currency
whatever for the Spanish economy;

6. Whereas, using this situation as a pretext, the March group, which in the
meantime had made further considerable purchases of bonds, sought and obtained
the judgment adjudicating Barcelona Traction bankrupt;

7. Whereas the bankruptcy proceedings were conducted in such a manner as to lead


to the sale to the March group, which took place on 4 January 1952, of all the assets
of the bankrupt company, far exceeding in value its liabilities, in consideration of
the assumption by the purchaser itself of solely the bonded debt, which, by new
purchases, it had concentrated into its own hands to the extent of approximately 85
per cent., while the cash price paid to the trustees in bankruptcy, 10,000,000
pesetas approximately $250,000, being insufficient to cover the bankruptcy
costs, did not allow them to pass anything to the bankrupt company or its
shareholders, or even to pay its unsecured creditors;

8. Whereas the accusations of fraud made by the Spanish Government against the
Barcelona Traction company and the allegation that that company was in a
permanent state of latent bankruptcy are devoid of all [p.17]relevance to the case
and, furthermore, are entirely unfounded;

9. Whereas the acts and omissions giving rise to the responsibility of the Spanish
Government are attributed by the Belgian Government to certain administrative
authorities, on the one hand,' and to certain judicial authorities, on the other hand;
Whereas it is apparent when those acts and omissions are examined as a whole that,
apart from the defects proper to each, they converged towards one common result,
namely the diversion of the bankruptcy procedure from its statutory purposes to the
forced transfer, without compensation, of the undertakings of the Barcelona
Traction group to the benefit of a private Spanish group, the March group;

I
Abuse of rights, arbitrary and discriminatory attitude of certain adminiustrative
authorities

Considering that the Spanish administrative authorities behaved in an improper,


arbitrary and discriminatory manner towards Barcelona Traction and its
shareholders, in that, with the purpose of facilitating the transfer of control over the
property of the Barcelona Traction group from Belgian hands into the hands of a
private Spanish group, they in particular

(a) frustrated, in October and December 1946, the implementation of the third
method for financing the plan of compromise, by refusing to authorize Ebro, a
Canadian company with residence in Spain, to pay 64,000,000 pesetas in the
national currency to Spanish residents on behalf of Barcelona Traction, a non-
resident company, so that the latter might redeem its peseta bonds circulating in
Spain, despite the fact that Ebro continued uninterruptedly to be granted periodical
authorization to pay the interest on those same bonds up to the time of the
bankruptcy;

(b) on the other hand, accepted that Juan March, a Spanish citizen manifestly
resident in Spain, should purchase considerable quantities of Barcelona Traction
sterling bonds abroad;

(c) made improper use of an international enquiry, from which the Belgian
Government was excluded, by gravely distorting the purport of the conclusions of
the Committee of Experts, to whom they attributed the finding of irregularities of all
kinds such as to entail severe penalties for the Barcelona Traction group, which
enabled the trustees in bankruptcy, at March's instigation, to bring about the
premature sale at a ridiculously low price of the assets of the Barcelona Traction
group and their purchase by the March group thanks to the granting of all the
necessary exchange authorizations;

II

Usurpation of jurisdiction

Considering that the Spanish courts, in agreeing to entertain the bankruptcy of


Barcelona Traction, a company under Canadian law with its registered office in
Toronto, having neither registered office nor commer [p.18]cial establishment in
Spain, nor possessing any property or carrying on any business there, usurped a
power of jurisdiction which was not theirs in international law;

Considering that the territorial limits of acts of sovereignty were patently


disregarded in the measures of enforcement taken in respect of property situated
outside Spanish territory without the concurrence of the competent foreign
authorities;

Considering that there was, namely, conferred upon the bankruptcy authorities,
through the artificial device of mediate and constructive civil possession, the power
to exercise in Spain the rights attaching to the shares located in Canada of several
subsidiary and sub-subsidiary com-panies on which, with the approval of the
Spanish judicial authorities, they relied for the purpose of replacing the directors of
those companies, modifying their terms of association, and cancelling their
regularly issued shares and replacing them with others which they had printed in
Spain and delivered to Fecsa at the time of the sale of the bankrupt company's
property, without there having been any effort to obtain possession of the real shares
in a regular way;
Considering that that disregard is the more flagrant in that three of the subsidiaries
were companies under Canadian law with their registered offices in Canada and that
the bankruptcy authorities purported, with the approval of the Spanish judicial
authorities, to transform two of them into Spanish companies, whereas such
alteration is not permitted by the law governing the status of those companies;

III

Denials of justice Lato Sensu

Considering that a large number of decisions of the Spanish courts are vitiated by
gross and manifest error in the application of Spanish law, by arbitrariness or
discrimination, constituting in international law denials of justice lato sensu;

Considering that in particular

(1) The Spanish courts agreed to entertain the bankruptcy of Barcelona Traction in
flagrant breach of the applicable provisions of Spanish law, which do not permit
that a foreign debtor should be adjudged bankrupt if that debtor does not have his
domicile, or at least an establishment, in Spanish territory;

(2) Those same courts adjudged Barcelona Traction bankrupt whereas that company
was neither in a state of insolvency nor in a state of final, general and complete
cessation of payments and had not ceased its payments in Spain, this being a
manifest breach of the applicable statutory provisions of Spanish law, in particular
Article 876 of the 1885 Commercial Code;

(3) The judgment of 12 February 1948 failed to order the publication of the
bankruptcy by announcement in the place of domicile of the bankrupt, which
constitutes a flagrant breach of Article 1044 (5) of the 1829 Commercial Code;

(4) The decisions failing to respect the separate estates of Barcelona Traction's
subsidiaries and sub-subsidiaries, in that they extended to their property the
attachment arising out of the bankruptcy of the parent [p.19] company, and thus
disregarded their distinct legal personalities, on the sole ground that all their shares
belonged to Barcelona Traction or one of its subsidiaries, had no legal basis in
Spanish law, were purely arbitrary and in any event constitute a flagrant breach of
Article 35 of the Civil Code, Articles 116 and 174 of the 1885 Commercial Code
(so far as the Spanish companies are concerned) and Article 15 of the same Code
(so far as the Canadian companies are concerned), as well as of Article 1334 of the
Civil Procedure Code;

If the estates of the subsidiaries and sub-subsidiaries could have been included in
that of Barcelona Tractionquod non, it would have been necessary to apply to
that company the special r!!!egime established by the imperative provisions of
Articles 930 et seq. of the 1885 Commercial Code and the Acts of 9 April 1904 and
2 January 1915 for the event that public-utility companies cease payment, and this
was not done;
(5) The judicial decisions which conferred on the bankruptcy authorities the
fictitious possession (termed "mediate and constructive civil possession") of the
shares of certain subsidiary and sub-subsidiary companies have no statutory basis in
Spanish bankruptcy law and were purely arbitrary; they comprise moreover a
flagrant breach not only of the general principle recognized in the Spanish as in the
majority of other legal systems to the effect that no person may exercise the rights
embodied in negotiable securities without having at his disposal the securities
themselves but also of Articles 1334 and 1351 of the Civil Procedure Code and
Article 1046 of the 1829 Commercial Code, which require the bankruptcy
authorities to proceed to the material apprehension of the bankrupt's property;

(6) The bestowal on the commissioner by the bankruptcy judgment of power to


proceed to the dismissal, removal or appointment of members of the staff,
employees and management, of the companies all of whose shares belonged to
Barcelona Traction or one of its subsidiaries had no statutory basis in Spanish law
and constituted a gross violation of the statutory provisions referred to under (4),
first sub-paragraph, above and also of Article 1045 of the 1829 Commercial Code;

(7) The Spanish courts approved or tolerated the action of the trustees in setting
themselves up as a purported general meeting of the two Canadian subsidiaries and
in transforming them, in that capacity, into companies under Spanish law, thus
gravely disregarding the rule embodied in Article 15 of the 1885 Commercial Code
to the effect that the status and internal functioning of foreign companies shall be
governed in Spain by the law under which they were incorporated;

(8) The Spanish courts approved or tolerated the action of the trustees in setting
themselves up as purported general meetings and modifying, in that capacity, the
terms of association of the Ebro, Catalonian Land, Union Elctrica de Catalua,
Electricista Catalana, Barcelonesa and Saltos del Segre companies, cancelling their
shares and issuing new shares; they thus committed a manifest breach of Article 15
of the 1885 Commercial Code (so far as the two Canadian companies were
concerned) and Articles 547 et seq. of the same code, which authorize the issue of
duplicates only in the circumstances they specify; they also gravely disregarded the
clauses of the trust deeds concerning voting-rights, in [p.20]flagrant contempt of the
undisputed rule of Spanish law to the effect that acts performed and agreements
concluded validly by the bankrupt before the date of the cessation of payments as
determined in the judicial decisions shall retain their effects and their binding force
in respect of the bankruptcy authorities (Articles 878 et seq. of the 1885
Commercial Code);

(9) The Spanish courts decided at one and the same time to ignore the separate legal
personalities of the subsidiary and sub-subsidiary companies (so as to justify the
attachment of their property in Spain and their inclusion in the bankrupt estate) and
implicitly but indubitably to recognize those same personalities by the conferring of
fictitious possession of their shares on the bankruptcy authorities, thus giving
decisions which were vitiated by an obvious self-contradiction revealing their
arbitrary and discriminatory nature;

(10) The general meeting of creditors of 19 September 1949 convened for the
purpose of appointing the trustees was, with the approval of the Spanish judicial
authorities, held in flagrant breach of Articles 300 and 1342 of the Civil Procedure
Code, and 1044 (3), 1060, 1061 and 1063 of the 1829 Commercial Code, in that (a)
it was not convened on cognizance of the list of creditors; (b). when that list was
prepared, it was not drawn up on the basis of particulars from the balance-sheet or
the books and documents of the bankrupt company, which books and documents
were not, as the Spanish Government itself admits, in the possession of the
commissioner on 8 October 1949, while the judicial authorities had not at any time
sent letters rogatory to Toronto, Canada, with the request that they be put at his
disposal ;

(11) By authorizing the sale of the property of the bankrupt company when the
adjudication in bankruptcy had not acquired irrevocability and while the
proceedings were suspended, the Spanish courts flagrantly violated Articles 919,
1167, 1319 and 1331 of the Civil Procedure Code and the general principles of the
right of defence;

In so far as that authorization was based on the allegedly perishable nature of the
property to be sold, it constituted a serious disregard of Article 1055 of the 1829
Commercial Code and Article 1354 of the Civil Procedure Code, which articles
allow the sale only of movable property which cannot be kept without deteriorating
or spoiling; even supposing that those provisions could be applied in general to the
property of Barcelona Traction, its subsidiaries and sub-subsidiariesquod non,
there would still have been a gross and flagrant violation of them, inasmuch as that
property as a whole was obviously not in any imminent danger of serious
depreciation ; indeed th only dangers advanced by the trustees, namely those
arising out of the threats' of prosecution contained in the Joint Statement, had not
taken shape, either by the day on which authorization to sell was requested or by the
day of the sale, in any proceedings or demand by the competent authorities and did
not ever materialize, except to an insignificant extent;

The only penalty which the undertakings eventually had to bear, 15 months after the
sale, was that relating to the currency offence, which had occasioned an embargo for
a much higher sum as early as April 1948;

(12) The authorization to sell and the sale, in so far as they related to the shares of
the subsidiary and sub-subsidiary companies without delivery of the certificates,
constituted a flagrant violation of Articles [p.21] 1461 and 1462 of the Spanish Civil
Code, which require delivery of the thing sold, seeing that the certificates delivered
to the successful bidder had not been properly issued and were consequently
without legal value; if the authorization to sell and the sale had applied, as the
respondent Government wrongly maintains, to the rights attaching to the shares and
bonds or to the bankrupt company's power of domination over its subsidiaries, those
rights ought to have been the subject of a joint valuation, on pain of flagrant
violation of Articles 1084 to 1089 of the 1829 Commercial Code and Article 1358
of the Civil Procedure Code: in any event, it was in flagrant violation of these last-
named provisions that the commissioner fixed an exaggeratedly low reserve price
on the basis of a unilateral expert opinion which, through the effect of the General
Conditions of Sale, allowed the March group to acquire the auctioned property at
that reserve price;

(13) By approving the General Conditions of Sale on the very day on which they
were submitted to them and then dismissing the proceedings instituted to contest
those conditions, the judicial authorities committed a flagrant violation of numerous
ordre public provisions of Spanish law; thus, in particular, the General Conditions
of Sale

(a) provided for the payment of the bondholder creditors, an operation which, under
Article 1322 of the Civil Procedure Code, falls under the fourth section of the
bankruptcy, whereas that section was suspended as a result of the effects attributed
to the Boter motion contesting jurisdiction, no exemption from that suspension
having been applied for or obtained in pursuance of the second paragraph of Article
114 of the Civil Procedure Code;

(b) provided for the payment of the debts owing on the bonds before they had been
approved and ranked by a general meeting of the creditors on the recommendation
of the trustees, contrary to Articles 1101 to 1109 of the 1829 Commercial Code and
to Articles 1266 to 1274, 1286 and 1378 of the Civil Procedure Code;

(c) in disregard of Articles 1236, 1240, 1512 and 1513 of the Civil Procedure Code,
did not require the price to be lodged or deposited at the Court's disposal;

(d) conferred on the trustees power to recognize, determine and declare effective the
rights attaching to the bonds, in disregard, on the one hand, of Articles 1101 to 1109
of the 1829 Commercial Code and of Articles 1266 to 1274 of the Civil Procedure
Code, which reserve such rights for the general meeting of creditors under the
supervision of the judge, and, on the other, of Articles 1445 and 1449 of the Civil
Code, which lay down that the purchase price must be a definite sum and may not
be left to the arbitrary decision of one of the contracting parties;

(e) in disregard of Articles 1291 to 1294 of the Civil Procedure Code, substituted
the successful bidder for the trustees in respect of the payment of the debts owing on
the bonds, whilst, in violation of the general principles applicable to novation,
replacing the security for those debts, consisting, pursuant to the trust deeds, of
shares and bonds issued by the subsidiary and sub-subsidiary companies, with the
deposit of a certain sum with a bank or with a mere banker's guarantee limited to
three years; [p.22]
(f) delegated to a third party the function of paying certain debts, in disregard of
Articles 1291 and 1292 of the Civil Procedure Code, which define the functions of
the trustees in this field and do not allow of any delegation;
(g) ordered the payment of the debts owing on the bonds in sterling, whereas a
forced execution may only be carried out in local currency and in the case of
bankruptcy the various operations which it includes require the conversion of the
debts into local currency on the day of the judgment adjudicating bankruptcy, as is
to be inferred from Articles 883 and 884 of the 1885 Commercial Code;

IV

Denials of justice Stricto Sensu

Considering that in the course of the bankruptcy proceedings the rights of the
defence were seriously disregarded; that in particular

(a) the Reus court, in adjudicating Barcelona Traction bankrupt on an ex parte


petition, inserted in its judgment provisions which went far beyond finding the
purported insolvency of or a general cessation of payments by the bankrupt
company, the only finding, in addition to one on the capacity of the petitioners, that
it was open to it to make in such proceedings;
This disregard of the rights of the defence was particularly flagrant in respect of the
subsidiary companies, whose property was ordered by the court to be attached
without their having been summonsed and without their having been adjudicated
bankrupt;

(b) the subsidiary companies that were thus directly affected by the judgment of 12
February 1948 nevertheless had their applications to set aside the order for
attachment which concerned them rejected as inadmissible on the grounds of lack of
capacity;

(c) the pursuit of those remedies and the introduction of any other such proceedings
were also made impossible for the subsidiary companies by the discontinuances
effected each time by the solicitors appointed to replace the original solicitors by the
new boards of directors directly or indirectly involved; these changes of solicitors
and discontinuances were effected by the new boards of directors by virtue of
authority conferred upon them by the interim receiver simultaneously with their
appointment;

(d) the proceedings for relief brought by those in control of the subsidiary
companies who had been dismissed by the commissioner were likewise held
inadmissible by the Reus court when they sought to avail themselves of the specific
provisions of Article 1363 of the Civil Procedure Code, which provide for
proceedings to reverse decisions taken by the commissioner in bankruptcy;

(e) there was discrimination on the part of the first special judge when he refused to
admit as a party to the bankruptcy the Canadian National Trust Company, Limited,
trustee for the bankrupt company's two sterling loans, even though it relied upon the
security of the mortgage which had been given to it by Ebro, whereas at the same
time he admitted to the proceedings the Bondholders' Committee [p.23]appointed
by Juan March, although National Trust and the Committee derived their powers
from the same trust deeds;

(f) the complaints against the General Conditions of Sale could be neither amplified
nor heard because the order which had approved the General Conditions of Sale was
deemed to be one of mere routine; Considering that many years elapsed after the
bankruptcy judgment and even after the ruinous sale of the property of the
Barcelona Traction group without either the bankrupt company or those co-
interested with it having had an opportunity to be heard on the numerous complaints
put forward against the bankruptcy judgment and related decisions in the opposition
of 18 June 1948 and in various other applications for relief;

Considering that those delays were caused by the motion contesting jurisdiction
fraudulently lodged by a confederate of the petitioners in bankruptcy and by
incidental proceedings instituted by other men of straw of the March group, which
were, like the motion contesting jurisdiction, regularly admitted by the various
courts;

Considering that both general international law and the Spanish-Belgian Treaty of
1927 regard such delays as equivalent to the denial of a hearing;

Considering that the manifest injustice resulting from the movement of the
proceedings towards the sale, whilst the actions contesting the bankruptcy judgment
and even the jurisdiction of the Spanish courts remained suspended, was brought
about by two judgments delivered by the same chamber of the Barcelona court of
appeal on the same day, 7 June 1949: in one of them it confirmed the admission,
with two effects, of the Boter appeal from the judgment of the special judge
rejecting his motion contesting jurisdiction, whereas in the other it reduced the
suspensive effect granted to that same appeal by excluding from the suspension the
calling of the general meeting of creditors for the purpose of appointing the trustees
in bankruptcy;

Damage and Reparation

Considering that the acts and omissions contrary to international law attributed to
the organs of the Spanish State had the effect of despoiling the Barcelona Traction
company of the whole of its property and of depriving it of the very objects of its
activity, and thus rendered it practically defunct;

Considering that Belgian nationals, natural and juristic persons, shareholders in


Barcelona Traction, in which they occupied a majority and controlling position, and
in particular the Sidro company, the owner of more than 75 per cent, of the
registered capital, on this account suffered direct and immediate injury to their
interests and rights, which were voided of all value and effectiveness;

Considering that the reparation due to the Belgian State from the Spanish State, as a
result of the internationally unlawful acts for which the latter State is responsible,
must be complete and must, so far as possible, reflect the damage suffered by its
nationals whose case the Belgian State has taken up; and that, since restitutio in
integrum is, in the circumstances [p.24]of the case, practically and legally
impossible, the reparation of the damage suffered can only take place in the form of
an all-embracing pecuniary idemnity, in accordance with the provisions of the
Spanish-Belgian Treaty of 1927 and with the rules of general international law;

Considering that in the instant case the amount of the indemnity must be fixed by
taking as a basis the net value of the Barcelona Traction company's property at the
time of its adjudication in bankruptcy, expressed in a currency which has remained
stable, namely the United States dollar;

Considering that the value of that property must be determined by the replacement
cost of the subsidiary and sub-subsidiary companies' plant for the production and
distribution of electricity at 12 February 1948, as that cost was calculated by the
Ebro company's engineers in 1946;

Considering that, according to those calculations, and after deduction for


depreciation through wear and tear, the value of the plant was at that date U.S.
$116,220,000; from this amount there must be deducted the principal of Barcelona
Traction's bonded debt and the interest that had fallen due thereon, that is to say,
U.S. $27,619,018, which leaves a net value of about U.S. $88,600,000, this result
being confirmed

(1) by the study submitted on 5 February 1949 and on behalf of Ebro to the Special
Technical Office for the Regulation and Distribution of Electricity (Catalonian
region) (Belgian New Document No. 50);

(2) by capitalization of the 1947 profits;

(3) by the profits made by Fecsa in 1956the first year after 1948 in which the
position of electricity companies was fully stabilized and the last year before the
changes made in the undertaking by Fecsa constituted an obstacle to any useful
comparison;

(4) by the reports of the experts consulted by the Belgian Government;

Considering that the compensation due to the Belgian Government must be


estimated, in the first place, at the percentage of such net value corresponding to the
participation of Belgian nationals in the capital of the Barcelona Traction company,
namely 88 per cent.;

Considering that on the critical dates of the bankruptcy judgment and the filing of
the Application, the capital of Barcelona Traction was represented by 1,798,854
shares, partly bearer and partly registered; that on 12 February 1948 Sidro owned
1,012,688 registered shares and 349,905 bearer shares; that other Belgian nationals
owned 420 registered shares and at least 244,832 bearer shares; that 1,607,845
shares, constituting 89.3 per cent. of the company's capital, were thus on that date
in. Belgian hands; that on 14 June 1962 Sidro owned 1,354,514 registered shares
and 31,228 bearer shares; that other Belgian nationals owned 2,388 registered shares
and at least 200,000 bearer shares; and that 1,588,130 shares, constituting 88 per
cent. of the company's capital, were thus on that date in Belgian hands;

Considering that the compensation claimed must in addition cover all incidental
damage suffered by the said Belgian nationals as a result of the acts complained of,
including the deprivation of enjoyment of rights, the expenses incurred in the
defence of their rights and the equivalent, in capital and interest, of the amount of
the Barcelona Traction bonds held by Belgian nationals, and of their other claims on
the companies in the [p.25]group which it was not possible to recover owing to the
acts complained of;

Considering that the amount of such compensation, due to the Belgian State on
account of acts contrary to international law attributable to the Spanish State, cannot
be affected by the latter's purported charges against the private persons involved,
those charges furthermore not having formed the subject of any counterclaim before
the Court;

VI

Objection derived from the alleged lack of Jus Standi of the Belgian Government

Considering that in its Judgment of 24 July 1964 the Court decided to join to the
merits the third preliminary objection raised by the Spanish Government;

Considering that the respondent Government wrongly denies to the Belgian


Government jus standi in the present proceedings;

Considering that the object of the Belgian Government's Application of 14 June


1962 is reparation for the damage caused to a certain number of its nationals, natural
and juristic persons, in their capacity as shareholders in the Barcelona Traction,
Light and Power Company, Limited, by the conduct contrary to international law of
various organs of the Spanish State towards that company and various other
companies in its group;

Considering that the Belgian Government has established that 88 per cent. of
Barcelona Traction's capital was in Belgian hands on the critical dates of 12
February 1948 and 14 June 1962 and so remained continuously between those dates,
that a single Belgian company, Sidro, possessed more than 75 per cent. of the
shares; that the Belgian nationality of that company and the effectiveness of its
nationality have not been challenged by the Spanish Government;

Considering that the fact that the Barcelona Traction registered shares possessed by
Sidro were registered in Canada in the name of American nominees does not affect
their Belgian character; that in this case, under the applicable systems of statutory
law, the nominee could exercise the rights attaching to the shares entered in its name
only as Sidro's agent;

Considering that the preponderence of Belgian interests in the Barcelona Traction


company was well known to the Spanish authorities at the different periods in which
the conduct complained of against them occurred, and has been explicitly admitted
by them on more than one occasion;

Considering that the diplomatic protection from which the company benefited for a
certain time on the part of its national Government ceased in 1952, well before the
filing of the Belgian Application, and has never subsequently been resumed;

Considering that by depriving the organs appointed by the Barcelona Traction


shareholders under the company's terms of association of their power of control in
respect of its subsidiaries, which removed from the company the very objects of its
activities, and by depriving it of the whole of its property, the acts and omissions
contrary to international law attributed to the Spanish authorities rendered the
company practically defunct and directly and immediately injured the rights and
interests [p.26]attaching to the legal situation of shareholder as it is recognized by
international law; that they thus caused serious damage to the company's Belgian
shareholders and voided the rights which they possessed in that capacity of all
useful content;

Considering that in the absence of reparation to the company for the damage
inflicted on it, from which they would have benefited at the same time as itself, the
Belgian shareholders of Barcelona Traction thus have separate and independent
rights and interests to assert; that they did in fact have to take the initiative for and
bear the cost of all the proceedings brought through the company's organs to seek
relief in the Spanish courts; that Sidro and other Belgian shareholders, after the sale
of Barcelona Traction's property, themselves brought actions the dismissal of which
is complained of by the Belgian Government as constituting a denial of Justice;

Considering that under the general principles of international law in this field the
Belgian Government has jus standi to claim through international judicial
proceedings reparation for the damage thus caused to its nationals by the
internationally unlawful acts and omissions attributed to the Spanish State;
VII

Objection of Non-Exhaustion of Local Remedies

Considering that no real difference has emerged between the Parties as to the scope
and significance of the rule of international law embodied in Article 3 of the Treaty
of Conciliation, Judicial Settlement and Arbitration concluded between Spain and
Belgium on 19 July 1927, which makes resort to the procedures provided for in that
Treaty dependant on the prior use, until a judgment with final effect has been
pronounced, of the normal means of redress which are available and which offer
genuine possibilities of effectiveness within the limitation of a reasonable time;

Considering that in this case the Respondent itself estimates at 2,736 the number of
orders alone made in the case by the Spanish courts as of the date of the Belgian
Application;

Considering that in addition the pleadings refer to more than 30 decisions by the
Supreme Court;
Considering that it is not contended that the remedies as a whole of which
Barcelona Traction and its co-interested parties availed themselves and which gave
rise to those decisions were inadequate or were not pursued to the point of
exhaustion;

Considering that this circumstance suffices as a bar to the possibility of the fourth
objection being upheld as setting aside the Belgian claim;

Considering that the only complaints which could be set aside are those in respect of
which the Spanish Government proved failure to make use of means of redress or
the insufficiency of those used;
Considering that such proof has not been supplied;

1. With Respect to the Complaints Against the Acts of the Administrative


Authorities

Considering that the Spanish Government is wrong in contending that the Belgian
complaint concerning the decisions of October and [p.27] December 1946 referred
to under I (a) above is not admissible on account of Barcelona Traction's failure to
exercise against them the remedies of appeal to higher authority and contentious
administrative proceedings;

Considering that the remedy of appeal to higher authority was inconceivable in this
case, being by definition an appeal which may be made from a decision by one
administrative authority to another hierarchically superior authority namely the
Minister, whereas the decisions complained of were taken with the co-operation and
approval of the Minister himself, and even brought to the knowledge of those
concerned by the Minister at the same time as by the competent administrative
authority;

Considering that it was likewise not possible to envisage contentious administrative


proceedings against a decision which patently did not fall within the ambit of
Article 1 of the Act of 22 June 1894, which recognizes such a remedy only against
administrative decisions emanating from administrative authorities in the exercise of
their regulated powers and "infringing a right of an administrative character
previously established in favour of the applicant by an Act, a regulation or some
other administrative provision", which requirements were patently not satisfied in
this case;

2. With Respect to the Complaint concerning the Reus Court's Lack of Jurisdiction
to Declare the Bankruptcy of Barcelona Traction

Considering that the Spanish Government is wrong in seeking to derive an argument


from the fact that Barcelona Traction and its co-interested parties supposedly failed
to challenge the jurisdiction of the Reus court by means of a motion contesting its
competence, and allowed the time-limit for entering opposition to expire without
having challenged that jurisdiction;

Considering that in fact a motion contesting jurisdiction is not at all the same thing
as a motion contesting competence ratione materiae and may properly be presented
cumulatively with the case on the merits;

Considering that the bankrupt company contested jurisdiction at the head of the
complaints set out in its opposition plea of 18 June 1948;

Considering that it complained again of lack of jurisdiction in its application of 5


July 1948 for a declaration of nullity and in its pleading of 3 September 1948 in
which it confirmed its opposition to the bankruptcy judgment;

Considering that National Trust submitted a formal motion contesting jurisdiction in


its application of 27 November 1948 for admission to the bankruptcy proceedings;

Considering that Barcelona Traction, after having as early as 23 April 1949 entered
an appearance in the proceedings concerning the Boter motion contesting
jurisdiction, formally declared its adherence to that motion by a procedural
document of 11 April 1953;

Considering that the question of jurisdiction being a matter of ordre public, as is the
question of competence ratione materiae, the complaint of belatedness could not be
upheld, even in the event of the expiry of the allegedly applicable time-limit for
entering a plea of opposition;

3. With Respect to the Complaints concerning the Bankruptcy Judgment and


Related Decisions
Considering that the Spanish Government is wrong in contending that the said
decisions were not attacked by adequate remedies pursued to [p.28] the point of
exhaustion or for a reasonable length of time;

Considering that in fact, as early as 16 February 1948, the bankruptcy judgment was
attacked by an application for its setting aside on the part of the subsidiary
companies, Ebro and Barcelonesa;
Considering that while those companies admittedly confined their applications for
redress to the parts of the judgment which gave them grounds for complaint, the
said remedies were nonetheless adequate and they were brought to nought in
circumstances which are themselves the subject of a complaint which has been set
out above;

Considering that, contrary to what is asserted by the Spanish Government, the


bankrupt company itself entered a plea of opposition to the judgment by a
procedural document of 18 June 1948, confirmed on 3 September 1948;

Considering that it is idle for the Spanish Government to criticize the summary
character of this procedural document, while the suspension decreed by the special
judge on account of the Boter motion contesting jurisdiction prevented the party
entering opposition from filing, pursuant to Article 326 of the Civil Procedure Code,
the additional pleading developing its case;

Considering that likewise there can be no question of belatedness, since only


publication of the bankruptcy at the domicile of the bankrupt company could have
caused the time-limit for entering opposition to begin to run, and no such
publication took place;

Considering that the bankruptcy judgment and the related decisions were moreover
also attacked in the incidental application for a declaration of nullity submitted by
Barcelona Traction on 5 July 1948 and amplified on 31 July 1948;

4. With Respect to the Complaints concerning the Blocking of the Remedies

Considering that the various decisions which instituted and prolonged the
suspension of the first section of the bankruptcy proceedings were attacked on
various occasions by numerous proceedings taken by Barcelona Traction, beginning
with the incidental application for a declaration of nullity which it submitted on 5
July 1948;

5. With Respect to the Complaint concerning the Dismissal of the Officers of the
Subsidiary Companies by Order of the Commissioner

Considering that this measure was also attacked by applications for its setting aside
on the part of the persons concerned, which were quite improperly declared
inadmissible; and that the proceedings seeking redress against those decisions were
adjourned until 1963;

6. With Respect to the Failure to Observe the No-Action Clause

Considering that this clause was explicitly referred to by National Trust in its
application of 27 November 1948 for admission to the proceedings;

7. With Respect to the Measures Preparatory to the Sale and the Sale

Considering that the other side, while implicitly admitting that adequate proceedings
were taken to attack the appointment of the trustees and the authorization to sell, is
wrong in contending that this was supposedly not so in respect of[p.29]

(1) The failure to draw up a list of creditors prior to the convening of the meeting of
creditors for the appointment of the trustees, whereas this defect was complained of
in the procedural document attacking the appointment of the trustees and in the
application that the sale be declared null and void;

(2) Certain acts and omissions on the part of the trustees, whereas they were referred
to in the proceedings taken to attack the authorization to sell and the decision
approving the method of unilateral valuation of the assets;

(3) The conditions of sale, whereas they were attacked by Barcelona Traction in an
application to set aside and on appeal, in the application of 27 December 1951 for a
declaration of nullity containing a formal prayer that the order approving the
conditions of sale be declared null and void, and in an application of 28 May 1955
(New Documents submitted by the Belgian Government, 1969, No. 30); the same
challenge was expressed by Sidro in its action of 7 February 1953 (New Documents
submitted by the Spanish Government, 1969) and by two other Belgian shareholders
of Barcelona Traction, Mrs. Mathot and Mr. Duvi-vier, in their application of 26
May 1955 (New Documents submitted by the Belgian Government, 1969, No. 29);

8. With Respect to the Exceptional Remedies

Considering that the Spanish Government is wrong in raising as an objection to the


Belgian claim the allegation that Barcelona Traction did not make use of certain
exceptional remedies against the bankruptcy judgment, such as application for
revision, action for civil liability and criminal proceedings against the judges, and
application for a hearing by a party in default;

Considering that the first of these remedies could patently not be contemplated, not
only on account of the nature of the bankruptcy judgment, but also because until
1963 there was an opposition outstanding against that Judgment and,
superabundantly, because Barcelona Traction, its subsidiaries and co-interested
parties would not have been in a position to prove the facts of subornation, violence
or fraudulent machination which alone could have entitled such proceedings to be
taken;

Considering that the remedies of an action for civil liability and criminal
proceedings against the judges were not adequate, since they were not capable of
bringing about the annulment or setting aside of the decisions constituting denials of
justice;

Considering that similarly the remedy of application for a hearing accorded by


Spanish law to a party in default was patently in this case neither available to
Barcelona Traction nor adequate;

For These Reasons, and any others which have been adduced by the Belgian
Government in the course of the proceedings,

May it please the Court, rejecting any other submissions of the Spanish State which
are broader or to a contrary effect,

To uphold the claims of the Belgian Government expressed in the submissions [in]
the Reply."[p.30]

The following final submissions were presented

on behalf of the Spanish Government,

at the hearing of 22 July 1969:

"Considering that the Belgian Government has no jus standi in the present case,
either for the protection of the Canadian Barcelona Traction company or for the
protection of alleged Belgian 'shareholders' of that company;

Considering that the requirements of the exhaustion of local remedies rule have not
been satisfied either by the Barcelona Traction company or by its alleged
'shareholders';

Considering that as no violation of an international rule binding on Spain has been


established, Spain has not incurred any responsibility vis--vis the applicant State
on any account; and that, in particular

(a) Spain is not responsible for any usurpation of jurisdiction on account of the
action of its judicial organs;

(b) the Spanish judicial organs have not violated the rules of international law
requiring that foreigners be given access to the courts, that a decision be given on
their claims and that their proceedings for redress should not be subjected to
unjustified delays;
(c) there have been no acts of the Spanish judiciary capable of giving rise to
international responsibility on the part of Spain on account of the content of judicial
decisions; and
(d) there has not been on the part of the Spanish administrative authorities any
violation of an international obligation on account of abuse of rights or
discriminatory acts;

Considering that for these reasons, and any others expounded in the written and oral
proceedings, the Belgian claims must be deemed to be inadmissible or unfounded;

The Spanish Government presents to the Court its final submissions:

May it please the Court to adjudge and declare that the Belgian Government's
claims are dismissed."

***

26. As has been indicated earlier, in opposition to the Belgian Application the
Spanish Government advanced four objections of a preliminary nature. In its
Judgment of 24 July 1964 the Court rejected the first and second of these (see
paragraph 3 above), and decided to join the third and fourth to the merits. The latter
were, briefly, to the effect that the Belgian Government lacked capacity to submit
any claim in respect of wrongs done to a Canadian company, even if the
shareholders were Belgian, and that local remedies available in Spain had not been
exhausted.

27. In the subsequent written and oral proceedings the Parties supplied the Court
with abundant material and information bearing both on the preliminary objections
not decided in 1964 and on the merits of the case. In this connection the Court
considers that reference should be made to the unusual length of the present
proceedings, which has been due to the [p.31] very long time-limits requested by the
Parties for the preparation of their written pleadings and in addition to their repeated
requests for an extension of these limits. The Court did not find that it should refuse
these requests and thus impose limitations on the Parties in the preparation and
presentation of the arguments and evidence which they considered necessary. It
nonetheless remains convinced of the fact that it is in the interest of the authority
and proper functioning of international justice for cases to be decided without
unwarranted delay.

28. For the sake of clarity, the Court will briefly recapitulate the claim and identify
the entities concerned in it. The claim is presented on behalf of natural and juristic
persons, alleged to be Belgian nationals and shareholders in the Barcelona Traction,
Light and Power Company, Limited. The submissions of the Belgian Government
make it clear that the object of its Application is reparation for damage allegedly
caused to these persons by the conduct, said to be contrary to international law, of
various organs of the Spanish State towards that company and various other
companies in the same group.

29. In the first of its submissions, more specifically in the Counter-Memorial, the
Spanish Government contends that the Belgian Application of 1962 seeks, though
disguisedly, the same object as the Application of 1958, i.e., the protection of the
Barcelona Traction company as such, as a separate corporate entity, and that the
claim should in consequence be dismissed. However, in making its new
Application, as it has chosen to frame it, the Belgian Government was only
exercising the freedom of action of any State to formulate its claim in its own way.
The Court is therefore bound to examine the claim in accordance with the explicit
content imparted to it by the Belgian Government.

30. The States which the present case principally concerns are Belgium, the national
State of the alleged shareholders, Spain, the State whose organs are alleged to have
committed the unlawful acts complained of, and Canada, the State under whose
laws Barcelona Traction was incorporated and in whose territory it has its registered
office ("head office" in the terms of the by-laws of Barcelona Traction).

31. Thus the Court has to deal with a series of problems arising out of a triangular
relationship involving the State whose nationals are shareholders in a company
incorporated under the laws of another State, in whose territory it has its registered
office; the State whose organs are alleged to have committed against the company
unlawful acts prejudicial to both it and its shareholders; and the State under whose
laws the company is incorporated, and in whose territory it has its registered office.

*[p.32]
32. In these circumstances it is logical that the Court should first address itself to
what was originally presented as the subject-matter of the third preliminary
objection: namely the question of the right of Belgium to exercise diplomatic
protection of Belgian shareholders in a company which is a juristic entity
incorporated in Canada, the measures complained of having been taken in relation
not to any Belgian national but to the company itself.

33. When a State admits into its territory foreign investments or foreign nationals,
whether natural or juristic persons, it is bound to extend to them the protection of
the law and assumes obligations concerning the treatment to be afforded them.
These obligations, however, are neither absolute nor unqualified. In particular, an
essential distinction should be drawn between the obligations of a State towards the
international community as a whole, and those arising vis-a-vis another State in the
field of diplomatic protection. By their very nature the former are the concern of all
States. In view of the importance of the rights involved, all States can be held to
have a legal interest in their protection; they are obligations erga omnes.
34. Such obligations derive, for example, in contemporary international law, from
the outlawing of acts of aggression, and of genocide, as also from the principles and
rules concerning the basic rights of the human person, including protection from
slavery and racial discrimination. Some of the corresponding rights of protection
have entered into the body of general international law (Reservations to the
Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, I.C.J. Reports 1951, p. 23); others are conferred by international
instruments of a universal or quasi-universal character.

35. Obligations the performance of which is the subject of diplomatic protection are
not of the same category. It cannot be held, when one such obligation in particular is
in question, in a specific case, that all States have a legal interest in its observance.
In order to bring a claim in respect of the breach of such an obligation, a State must
first establish its right to do so, for the rules on the subject rest on two suppositions:

"The first is that the defendant State has broken an obligation towards the national
State in respect of its nationals. The second is that only the party to whom an
international obligation is due can bring a claim in respect of its breach."
(Reparation for Injuries Suffered in the Service of the United Nations, Advisory
Opinion, I.C.J. Reports 1949, pp. 181-182.)

In the present case it is therefore essential to establish whether the losses allegedly
suffered by Belgian shareholders in Barcelona Traction were the consequence of the
violation of obligations of which they were the beneficiaries. In other words: has a
right of Belgium been violated on account [p.33] of its nationals' having suffered
infringement of their rights as shareholders in a company not of Belgian nationality?

36. Thus it is the existence or absence of a right, belonging to Belgium and


recognized as such by international law, which is decisive for the problem of
Belgium's capacity.

"This right is necessarily limited to intervention [by a State] on behalf of its own
nationals because, in the absence of a special agreement, it is the bond of nationality
between the State and the individual which alone confers upon the State the right of
diplomatic protection, and it is as a part of the function of diplomatic protection that
the right to take up a claim and to ensure respect for the rules of international law
must be envisaged." (Panevezys-Saldutiskis Railway, Judgment, 1939, P.C.I.J.,
Series A/B, No. 76, p. 16.)

It follows that the same question is determinant in respect of Spain's responsibility


towards Belgium. Responsibility is the necessary corollary of a right. In the absence
of any treaty on the subject between the Parties, this essential issue has to be
decided in the light of the general rules of diplomatic protection.

*
37. In seeking to determine the law applicable to this case, the Court has to bear in
mind the continuous evolution of international law. Diplomatic protection deals
with a very sensitive area of international relations, since the interest of a foreign
State in the protection of its nationals confronts the rights of the territorial
sovereign, a fact of which the general law on the subject has had to take cognizance
in order to prevent abuses and friction. From its origins closely linked with
international commerce, diplomatic protection has sustained a particular impact
from the growth of international economic relations, and at the same time from the
profound transformations which have taken place in the economic life of nations.
These latter changes have given birth to municipal institutions, which have
transcended frontiers and have begun to exercise considerable influence on
international relations. One of these phenomena which has a particular bearing on
the present case is the corporate entity.

38. In this field international law is called upon to recognize institutions of


municipal law that have an important and extensive role in the international field.
This does not necessarily imply drawing any analogy between its own institutions
and those of municipal law, nor does it amount to making rules of international law
dependent upon categories of municipal law. All it means is that international law
has had to recognize the corporate entity as an institution created by States in a
domain essentially within their domestic jurisdiction. This in turn requires that,
whenever legal issues arise concerning the rights of States with regard to the treat
[p. 34] ment of companies and shareholders, as to which rights international law has
not established its own rules, it has to refer to the relevant rules of municipal law.
Consequently, in view of the relevance to the present case of the rights of the
corporate entity and its shareholders under municipal law, the Court must devote
attention to the nature and interrelation of those rights.

39. Seen in historical perspective, the corporate personality represents a


development brought about by new and expanding requirements in the economic
field, an entity which in particular allows of operation in circumstances which
exceed the normal capacity of individuals. As such it has become a powerful factor
in the economic life of nations. Of this, municipal law has had to take due account,
whence the increasing volume of rules governing the creation and operation of
corporate entities, endowed with a specific status. These entities have rights and
obligations peculiar to themselves.

40. There is, however, no need to investigate the many different forms of legal
entity provided for by the municipal laws of States, because the Court is concerned
only with that exemplified by the company involved in the present case: Barcelona
Tractiona limited liability company whose capital is represented by shares. There
are, indeed, other associations, whatever the name attached to them by municipal
legal systems, that do not enjoy independent corporate personality. The legal
difference between the two kinds of entity is that for the limited liability company it
is the overriding tie of legal personality which is determinant; for the other
associations, the continuing autonomy of the several members.

41. Municipal law determines the legal situation not only of such limited liability
companies but also of those persons who hold shares in them. Separated from the
company by numerous barriers, the shareholder cannot be identified with it. The
concept and structure of the company are founded on and determined by a firm
distinction between the separate entity of the company and that of the shareholder,
each with a distinct set of rights. The separation of property rights as between
company and shareholder is an important manifestation of this distinction. So long
as the company is in existence the shareholder has no right to the corporate assets.

42. It is a basic characteristic of the corporate structure that the company alone,
through its directors or management acting in its name, can take action in respect of
matters that are of a corporate character. The underlying justification for this is that,
in seeking to serve its own best interests, the company will serve those of the
shareholder too. Ordinarily, no individual shareholder can take legal steps, either in
the[p.35] name of the company or in his own name. If the shareholders disagree
with the decisions taken on behalf of the company they may, in accordance with its
articles or the relevant provisions of the law, change them or replace its officers, or
take such action as is provided by law. Thus to protect the company against abuse
by its management or the majority of shareholders, several municipal legal systems
have vested in shareholders (sometimes a particular number is specified) the right to
bring an action for the defence of the company, and conferred upon the minority of
shareholders certain rights to guard against decisions affecting the rights of the
company vis--vis its management or controlling shareholders. Nonetheless the
shareholders' rights in relation to the company and its assets remain limited, this
being, moreover, a corollary of the limited nature of their liability.

43. At this point the Court would recall that in forming a company, its promoters are
guided by all the various factors involved, the advantages and disadvantages of
which they take into account. So equally does a shareholder, whether he is an
original subscriber of capital or a subsequent purchaser of the company's shares
from another shareholder. He may be seeking safety of investment, high dividends
or capital appreciation or a combination of two or more of these. Whichever it is,
it does not alter the legal status of the corporate entity or affect the rights of the
shareholder. In any event he is bound to take account of the risk of reduced
dividends, capital depreciation or even loss, resulting from ordinary commercial
hazards or from prejudice caused to the company by illegal treatment of some kind.

44. Notwithstanding the separate corporate personality, a wrong done to the


company frequently causes prejudice to its shareholders. But the mere fact that
damage is sustained by both company and shareholder does not imply that both are
entitled to claim compensation. Thus no legal conclusion can be drawn from the fact
that the same event caused damage simultaneously affecting several natural or
juristic persons. Creditors do not have any right to claim compensation from a
person who, by wronging their debtor, causes them loss. In such cases, no doubt, the
interests of the aggrieved are affected, but not their rights. Thus whenever a
shareholder's interests are harmed by an act done to the company, it is to the latter
that he must look to institute appropriate action; for although two separate entities
may have suffered from the same wrong, it is only one entity whose rights have
been infringed.

45. However, it has been argued in the present case that a company represents
purely a means of achieving the economic purpose of its members, namely the
shareholders, while they themselves constitute in fact the reality behind it. It has
furthermore been repeatedly emphasized [p.36] that there exists between a company
and its shareholders a relationship describable as a community of destiny. The
alleged acts may have been directed at the company and not the shareholders, but
only in a formal sense: in reality, company and shareholders are so closely
interconnected that prejudicial acts committed against the former necessarily wrong
the latter; hence any acts directed against a company can be conceived as directed
against its shareholders, because both can be considered in substance, i.e., from the
economic viewpoint, identical. Yet even if a company is no more than a means for
its shareholders to achieve their economic purpose, so long as it is in esse it enjoys
an independent existence. Therefore the interests of the shareholders are both
separable and indeed separated from those of the company, so that the possibility of
their diverging cannot be denied.

46. It has also been contended that the measures complained of, although taken with
respect to Barcelona Traction and causing it direct damage, constituted an unlawful
act vis--vis Belgium, because they also, though indirectly, caused damage to the
Belgian shareholders in Barcelona Traction. This again is merely a different way of
presenting the distinction between injury in respect of a right and injury to a simple
interest. But, as the Court has indicated, evidence that damage was suffered does not
ipso facto justify a diplomatic claim. Persons suffer damage or harm in most varied
circumstances. This in itself does not involve the obligation to make reparation. Not
a mere interest affected, but solely a right infringed involves responsibility, so that
an act directed against and infringing only the company's rights does not involve
responsibility towards the shareholders, even if their interests are affected.

47. The situation is different if the act complained of is aimed at the direct rights of
the shareholder as such. It is well known that there are rights which municipal law
confers upon the latter distinct from those of the company, including the right to any
declared dividend, the right to attend and vote at general meetings, the right to share
in the residual assets of the company on liquidation. Whenever one of his direct
rights is infringed, the shareholder has an independent right of action. On this there
is no disagreement between the Parties. But a distinction must be drawn between a
direct infringement of the shareholder's rights, and difficulties or financial losses to
which he may be exposed as the result of the situation of the company.
48. The Belgian Government claims that shareholders of Belgian nationality
suffered damage in consequence of unlawful acts of the Spanish authorities and, in
particular, that the Barcelona Traction shares, though they did not cease to exist,
were emptied of all real economic content. It accordingly contends that the
shareholders had an [p.37] independent right to redress, notwithstanding the fact
that the acts complained of were directed against the company as such. Thus the
legal issue is reducible to the question of whether it is legitimate to identify an
attack on company rights, resulting in damage to shareholders, with the violation of
their direct rights.

49. The Court has noted from the Application, and from the reply given by Counsel
on 8 July 1969, that the Belgian Government did not base its claim on an
infringement of the direct rights of the shareholders. Thus it is not open to the Court
to go beyond the claim as formulated by the Belgian Government and it will not
pursue its examination of this point any further.

50. In turning now to the international legal aspects of the case, the Court must, as
already indicated, start from the fact that the present case essentially involves
factors derived from municipal lawthe distinction and the community between the
company and the shareholderwhich the Parties, however widely their
interpretations may differ, each take as the point of departure of their reasoning. If
the Court were to decide the case in disregard of the relevant institutions of
municipal law it would, without justification, invite serious legal difficulties. It
would lose touch with reality, for there are no corresponding institutions of
international law to which the Court could resort. Thus the Court has, as indicated,
not only to take cognizance of municipal law but also to refer to it. It is to rules
generally accepted by municipal legal systems which recognize the limited
company whose capital is represented by shares, and not to the municipal law of a
particular State, that international law refers. In referring to such rules, the Court
cannot modify, still less deform them.

51. On the international plane, the Belgian Government has advanced the
proposition that it is inadmissible to deny the shareholders' national State a right of
diplomatic protection merely on the ground that another State possesses a
corresponding right in respect of the company itself. In strict logic and law this
formulation of the Belgian claim to jus standi assumes the existence of the very
right that requires demonstration. In fact the Belgian Government has repeatedly
stressed that there exists no rule of international law which would deny the national
State of the shareholders the right of diplomatic protection for the purpose of
seeking redress pursuant to unlawful acts committed by another State against the
company in which they hold shares. This, by emphasizing the absence of any
express denial of the right, conversely implies the admission that there is no rule of
international law which expressly confers such a right on the shareholders' national
State.[p.38]

52. International law may not, in some fields, provide specific rules in particular
cases. In the concrete situation, the company against which allegedly unlawful acts
were directed is expressly vested with a right, whereas no such right is specifically
provided for the shareholder in respect of those acts. Thus the position of the
company rests on a positive rule of both municipal and international law. As to the
shareholder, while he has certain rights expressly provided for him by municipal
law as referred to in paragraph 42 above, appeal can, in the circumstances of the
present case, only be made to the silence of international law. Such silence scarcely
admits of interpretation in favour of the shareholder.

53. It is quite true, as was recalled in the course of oral argument in the present case,
that concurrent claims are not excluded in the case of a person who, having entered
the service of an international organization and retained his nationality, enjoys
simultaneously the right to be protected by his national State and the right to be
protected by the organization to which he belongs. This however is a case of one
person in possession of two separate bases of protection, each of which is valid
(Reparation for Injuries Suffered in the Service of the United Nations, Advisory
Opinion, I.C.J. Reports 1949, p. 185). There is no analogy between such a situation
and that of foreign shareholders in a company which has been the victim of a
violation of international law which has caused them damage.

54. Part of the Belgian argument is founded on an attempt to assimilate interests to


rights, relying on the use in many treaties and other instruments of such expressions
as property, rights and interests. This is not, however, conclusive. Property is
normally protected by law. Rights are ex hypothesi protected by law, otherwise they
would not be rights. According to the Belgian Government, interests, although
distinct from rights, are also protected by the aforementioned conventional rules.
The Court is of the opinion that, for the purpose of interpreting the general rule of
international law concerning diplomatic protection, which is its task, it has no need
to determine the meaning of the term interests in the conventional rules, in other
words to determine whether by this term the conventional rules refer to rights rather
than simple interests.

*
55. The Court will now examine other grounds on which it is conceivable that the
submission by the Belgian Government of a claim on behalf of shareholders in
Barcelona Traction may be justified.

56. For the same reasons as before, the Court must here refer to municipal law.
Forms of incorporation and their legal personality have[p.39] sometimes not been
employed for the sole purposes they were originally intended to serve; sometimes
the corporate entity has been unable to protect the rights of those who entrusted
their financial resources to it; thus inevitably there have arisen dangers of abuse, as
in the case of many other institutions of law. Here, then, as elsewhere, the law,
confronted with economic realities, has had to provide protective measures and
remedies in the interests of those within the corporate entity as well as of those
outside who have dealings with it: the law has recognized that the independent
existence of the legal entity cannot be treated as an absolute. It is in this context that
the process of "lifting the corporate veil" or "disregarding the legal entity" has been
found justified and equitable in certain circumstances or for certain purposes. The
wealth of practice already accumulated on the subject in municipal law indicates
that the veil is lifted, for instance, to prevent the misuse of the privileges of legal
personality, as in certain cases of fraud or malfeasance, to protect third persons such
as a creditor or purchaser, or to prevent the evasion of legal requirements or of
obligations.

57. Hence the lifting of the veil is more frequently employed from without, in the
interest of those dealing with the corporate entity. However, it has also been
operated from within, in the interest ofamong othersthe shareholders, but only
in exceptional circumstances.

58. In accordance with the principle expounded above, the process of lifting the
veil, being an exceptional one admitted by municipal law in respect of an institution
of its own making, is equally admissible to play a similar role in international law. It
follows that on the international plane also there may in principle be special
circumstances which justify the lifting of the veil in the interest of shareholders.

59. Before proceeding, however, to consider whether such circumstances exist in


the present case, it will be advisable to refer to two specific cases involving
encroachment upon the legal entity, instances of which have been cited by the
Parties. These are: first, the treatment of enemy and allied property, during and after
the First and Second World Wars, in peace treaties and other international
instruments; secondly, the treatment of foreign property consequent upon the
nationalizations carried out in recent years by many States.

60. With regard to the first, enemy-property legislation was an instrument of


economic warfare, aimed at denying the enemy the advantages to be derived from
the anonymity and separate personality of corporations. Hence the lifting of the veil
was regarded as justified ex necessitate and was extended to all entities which were
tainted with enemy character, even the nationals of the State enacting the
legislation. The provisions of the peace treaties had a very specific function: to
protect allied property, and to seize and pool enemy property with a view to
covering reparation [p.40] claims. Such provisions are basically different in their
rationale from those normally applicable.

61. Also distinct are the various arrangements made in respect of compensation for
the nationalization of foreign property. Their rationale too, derived as it is from
structural changes in a State's economy, differs from that of any normally applicable
provisions. Specific agreements have been reached to meet specific situations, and
the terms have varied from case to case. Far from evidencing any norm as to the
classes of beneficiaries of compensation, such arrangements are sui generis and
provide no guide in the present case.

62. Nevertheless, during the course of the proceedings both Parties relied on
international instruments and judgments of international tribunals concerning these
two specific areas. It should be clear that the developments in question have to be
viewed as distinctive processes, arising out of circumstances peculiar to the
respective situations. To seek to draw from them analogies or conclusions held to be
valid in other fields is to ignore their specific character as lex specialis and hence to
court error.

63. The Parties have also relied on the general arbitral jurisprudence which has
accumulated in the last half-century. However, in most cases the decisions cited
rested upon the terms of instruments establishing the jurisdiction of the tribunal or
claims commission and determining what rights might enjoy protection; they cannot
therefore give rise to generalization going beyond the special circumstances of each
case. Other decisions, allowing or disallowing claims by way of exception, are not,
in view of the particular facts concerned, directly relevant to the present case.

64. The Court will now consider whether there might not be, in the present case,
other special circumstances for which the general rule might not take effect. In this
connection two particular situations must be studied: the case of the company
having ceased to exist and the case of the company's national State lacking capacity
to take action on its behalf.

65. As regards the first of these possibilities the Court observes that the Parties have
put forward conflicting interpretations of the present situation of Barcelona
Traction. There can, however, be no question but that Barcelona Traction has lost
all its assets in Spain, and was placed in receivership in Canada, a receiver and
manager having been appointed. It is common ground that from the economic
viewpoint the company has been entirely paralyzed. It has been deprived of all its
Spanish sources of income, and the Belgian Government has asserted that the
company [p.41] could no longer find the funds for its legal defence, so that these
had to be supplied by the shareholders.

66. It cannot however, be contended that the corporate entity of the company has
ceased to exist, or that it has lost its capacity to take corporate action. It was free to
exercise such capacity in the Spanish courts and did in fact do so. It has not become
incapable in law of defending its own rights and the interests of the shareholders. In
particular, a precarious financial situation cannot be equated with the demise of the
corporate entity, which is the hypothesis under consideration: the company's status
in law is alone relevant, and not its economic condition, nor even the possibility of
its being "practically defunct"a description on which argument has been based but
which lacks all legal precision. Only in the event of the legal demise of the company
are the shareholders deprived of the possibility of a remedy available through the
company; it is only if they became deprived of all such possibility that an
independent right of action for them and their government could arise.

67. In the present case, Barcelona Traction is in receivership in the country of


incorporation. Far from implying the demise of the entity or of its rights, this much
rather denotes that those rights are preserved for so long as no liquidation has
ensued. Though in receivership, the company continues to exist. Moreover, it is a
matter of public record that the company's shares were quoted on the stock-market
at a recent date.

68. The reason for the appointment in Canada not only of a receiver but also of a
manager was explained as follows:

"In the Barcelona Traction case it was obvious, in view of the Spanish bankruptcy
order of 12 February 1948, that the appointment of only a receiver would be useless,
as positive steps would have to be taken if any assets seized in the bankruptcy in
Spain were to be recovered." (Hearing of 2 July 1969.)

In brief, a manager was appointed in order to safeguard the company's rights; he has
been in a position directly or indirectly to uphold them. Thus, even if the company
is limited in its activity after being placed in receivership, there can be no doubt that
it has retained its legal capacity and that the power to exercise it is vested in the
manager appointed by the Canadian courts. The Court is thus not confronted with
the first hypothesis contemplated in paragraph 64, and need not pronounce upon it.

69. The Court will now turn to the second possibility, that of the lack of capacity of
the company's national State to act on its behalf. The first question which must be
asked here is whether Canadathe third apex of [p.42] the triangular relationship
is, in law, the national State of Barcelona Traction.

70. In allocating corporate entities to States for purposes of diplomatic protection,


international law is based, but only to a limited extent, on an analogy with the rules
governing the nationality of individuals. The traditional rule attributes the right of
diplomatic protection of a corporate entity to the State under the laws of which it is
incorporated and in whose territory it has its registered office. These two criteria
have been confirmed by long practice and by numerous international instruments.
This notwithstanding, further or different links are at times said to be required in
order that a right of diplomatic protection should exist. Indeed, it has been the
practice of some States to give a company incorporated under their law diplomatic
protection solely when it has its seat (siege social) or management or centre of
control in their territory, or when a majority or a substantial proportion of the shares
has been owned by nationals of the State concerned. Only then, it has been held,
does there exist between the corporation and the State in question a genuine
connection of the kind familiar from other branches of international law. However,
in the particular field of the diplomatic protection of corporate entities, no absolute
test of the "genuine connection" has found general acceptance. Such tests as have
been applied are of a relative nature, and sometimes links with one State have had to
be weighed against those with another. In this connection reference has been made
to the Nottebohm case. In fact the Parties made frequent reference to it in the course
of the proceedings. However, given both the legal and factual aspects of protection
in the present case the Court is of the opinion that there can be no analogy with the
issues raised or the decision given in that case.

71. In the present case, it is not disputed that the company was incorporated in
Canada and has its registered office in that country. The incorporation of the
company under the law of Canada was an act of free choice. Not only did the
founders of the company seek its incorporation under Canadian law but it has
remained under that law for a period of over 50 years. It has maintained in Canada
its registered office, its accounts and its share registers. Board meetings were held
there for many years; it has been listed in the records of the Canadian tax
authorities. Thus a close and permanent connection has been established, fortified
by the passage of over half a century. This connection is in no way weakened by the
fact that the company engaged from the very outset in commercial activities outside
Canada, for that was its declared object. Barcelona Traction's links with Canada are
thus manifold.

72. Furthermore, the Canadian nationality of the company has received general
recognition. Prior to the institution of proceedings before the Court, three other
governments apart from that of Canada (those of the United Kingdom, the United
States and Belgium) made representa-[p.43]
tions concerning the treatment accorded to Barcelona Traction by the Spanish
authorities. The United Kingdom Government intervened on behalf of bondholders
and of shareholders. Several representations were also made by the United States
Government, but not on behalf of the Barcelona Traction company as such.

73. Both Governments acted at certain stages in close co-operation with the
Canadian Government. An agreement was reached in 1950 on the setting-up of an
independent committee of experts. While the Belgian and Canadian Governments
contemplated a committee composed of Belgian, Canadian and Spanish members,
the Spanish Government suggested a committee composed of British, Canadian and
Spanish members. This was agreed to by the Canadian and United Kingdom
Governments, and the task of the committee was, in particular, to establish the
monies imported into Spain by Barcelona Traction or any of its subsidiaries, to
determine and appraise the materials and services brought into the country, to
determine and appraise the amounts withdrawn from Spain by Barcelona Traction
or any of its subsidiaries, and to compute the profits earned in Spain by Barcelona
Traction or any of its subsidiaries and the amounts susceptible of being withdrawn
from the country at 31 December 1949.

74. As to the Belgian Government, its earlier action was also undertaken in close
co-operation with the Canadian Government. The Belgian Government admitted the
Canadian character of the company in the course of the present proceedings. It
explicitly stated that Barcelona Traction was a company of neither Spanish nor
Belgian nationality but a Canadian company incorporated in Canada. The Belgian
Government has even conceded that it was not concerned with the injury suffered
by Barcelona Traction itself, since that was Canada's affair.

75. The Canadian Government itself, which never appears to have doubted its right
to intervene on the company's behalf, exercised the protection of Barcelona Traction
by diplomatic representation for a number of years, in particular by its note of 27
March 1948, in which it alleged that a denial of justice had been committed in
respect of the Barcelona Traction, Ebro and National Trust companies, and
requested that the bankruptcy judgment be cancelled. It later invoked the Anglo-
Spanish treaty of 1922 and the agreement of 1924, which applied to Canada. Further
Canadian notes were addressed to the Spanish Government in 1950, 1951 and 1952.
Further approaches were made in 1954, and in 1955 the Canadian Government
renewed the expression of its deep interest in the affair of Barcelona Traction and its
Canadian subsidiaries.

76. In sum, the record shows that from 1948 onwards the Canadian Government
made to the Spanish Government numerous representations which cannot be viewed
otherwise than as the exercise of diplomatic [p.44] protection in respect of the
Barcelona Traction company. Therefore this was not a case where diplomatic
protection was refused or remained in the sphere of fiction. It is also clear that over
the whole period of its diplomatic activity the Canadian Government proceeded in
full knowledge of the Belgian attitude and activity.

77. It is true that at a certain point the Canadian Government ceased to act on behalf
of Barcelona Traction, for reasons which have not been fully revealed, though a
statement made in a letter of 19 July 1955 by the Canadian Secretary of State for
External Affairs suggests that it felt the matter should be settled by means of private
negotiations. The Canadian Government has nonetheless retained its capacity to
exercise diplomatic protection; no legal impediment has prevented it from doing so:
no fact has arisen to render this protection impossible. It has discontinued its action
of its own free will.

78. The Court would here observe that, within the limits prescribed by international
law, a State may exercise diplomatic protection by whatever means and to whatever
extent it thinks fit, for it is its own right that the State is asserting. Should the natural
or legal persons on whose behalf it is acting consider that their rights are not
adequately protected, they have no remedy in international law. All they can do is to
resort to municipal law, if means are available, with a view to furthering their cause
or obtaining redress. The municipal legislator may lay upon the State an obligation
to protect its citizens abroad, and may also confer upon the national a right to
demand the performance of that obligation, and clothe the right with corresponding
sanctions. However, all these questions remain within the province of municipal law
and do not affect the position internationally.

79. The State must be viewed as the sole judge to decide whether its protection will
be granted, to what extent it is granted, and when it will cease. It retains in this
respect a discretionary power the exercise of which may be determined by
considerations of a political or other nature, unrelated to the particular case. Since
the claim of the State is not identical with that of the individual or corporate person
whose cause is espoused, the State enjoys complete freedom of action. Whatever the
reasons for any change of attitude, the fact cannot in itself constitute a justification
for the exercise of diplomatic protection by another government, unless there is
some independent and otherwise valid ground for that.

80. This cannot be regarded as amounting to a situation where a violation of law


remains without remedy: in short, a legal vacuum.[p. 45]There is no obligation upon
the possessors of rights to exercise them. Sometimes no remedy is sought, though
rights are infringed. To equate this with the creation of a vacuum would be to equate
a right with an obligation.

81. The cessation by the Canadian Government of the diplomatic protection of


Barcelona Traction cannot, then, be interpreted to mean that there is no remedy
against the Spanish Government for the damage done by the allegedly unlawful acts
of the Spanish authorities. It is not a hypothetical right which was vested in Canada,
for there is no legal impediment preventing the Canadian Government from
protecting Barcelona Traction. Therefore there is no substance in the argument that
for the Belgian Government to bring a claim before the Court represented the only
possibility of obtaining redress for the damage suffered by Barcelona Traction and,
through it, by its shareholders.

82. Nor can the Court agree with the view that the Canadian Government had of
necessity to interrupt the protection it was giving to Barcelona Traction, and to
refrain from pursuing it by means of other procedures, solely because there existed
no link of compulsory jurisdiction between Spain and Canada. International judicial
proceedings are but one of the means available to States in pursuit of their right to
exercise diplomatic protection (Reparation for Injuries Suffered in the Service of the
United Nations, Advisory Opinion, I.C.J. Reports 1949, p. 178). The lack of a
jurisdictional link cannot be regarded either in this or in other fields of international
law as entailing the non-existence of a right.

83. The Canadian Government's right of protection in respect of the Barcelona


Traction company remains unaffected by the present proceedings. The Spanish
Government has never challenged the Canadian nationality of the company, either
in the diplomatic correspondence with the Canadian Government or before the
Court. Moreover it has unreservedly recognized Canada as the national State of
Barcelona Traction in both written pleadings and oral statements made in the course
of the present proceedings. Consequently, the Court considers that the Spanish
Government has not questioned Canada's right to protect the company.

84. Though, having regard to the character of the case, the question of Canada's
right has not been before it, the Court has considered it necessary to clarify this
issue.

85. The Court will now examine the Belgian claim from a different point of view,
disregarding municipal law and relying on the rule that in inter-State relations,
whether claims are made on behalf of a State's national or on behalf of the State
itself, they are always the claims of the [p.46]
State. As the Permanent Court said,

"The question, therefore, whether the . . . dispute originates in an injury to a private


interest, which in point of fact is the case in many international disputes, is
irrelevant from this standpoint." (Mavrom-matis Palestine Concessions, Judgment
No. 2, 1924, P.C.I.J., Series A, No. 2, p. 12. See also Nottebohm, Second Phase,
Judgment, I.C.J. Reports 1955, p. 24.)
86. Hence the Belgian Government would be entitled to bring a claim if it could
show that one of its rights had been infringed and that the acts complained of
involved the breach of an international obligation arising out of a treaty or a
generalrule of law. The opinion has been expressed that a claim can accordingly be
made when investments by a State's nationals abroad are thus prejudicially affected,
and that since such investments are part of a State's national economic resources,
any prejudice to them directly involves the economic interest of the State.

87. Governments have been known to intervene in such circumstances not only
when their interests were affected, but also when they were threatened. However, it
must be stressed that this type of action is quite different from and outside the field
of diplomatic protection. When a State admits into its territory foreign investments
or foreign nationals it is, as indicated in paragraph 33, bound to extend to them the
protection of the law. However, it does not thereby become an insurer of that part of
another State's wealth which these investments represent. Every investment of this
kind carries certain risks. The real question is whether a right has been violated,
which right could only be the right of the State to have its nationals enjoy a certain
treatment guaranteed by general international law, in the absence of a treaty
applicable to the particular case. On the other hand it has been stressed that it must
be proved that the investment effectively belongs to a particular economy. This is,
as it is admitted, sometimes very difficult, in particular where complex undertakings
are involved. Thus the existing concrete test would be replaced by one which might
lead to a situation in which no diplomatic protection could be exercised, with the
consequence that an unlawful act by another State would remain without remedy.

88. It follows from what has already been stated above that, where it is a question of
an unlawful act committed against a company representing foreign capital, the
general rule of international law authorizes the national State of the company alone
to make a claim.

89. Considering the important developments of the last half-century, the growth of
foreign investments and the expansion of the international activities of corporations,
in particular of holding companies, which are [p.47] often multinational, and
considering the way in which the economic interests of States have proliferated, it
may at first sight appear surprising that the evolution of law has not gone further
and that no generally accepted rules in the matter have crystallized on the
international plane. Nevertheless, a more thorough examination of the facts shows
that the law on the subject has been formed in a period characterized by an intense
conflict of systems and interests. It is essentially bilateral relations which have been
concerned, relations in which the rights of both the State exercising diplomatic
protection and the State in respect of which protection is sought have had to be
safeguarded. Here as elsewhere, a body of rules could only have developed with the
consent of those concerned. The difficulties encountered have been reflected in the
evolution of the law on the subject.

90. Thus, in the present state of the law, the protection of shareholders requires that
recourse be had to treaty stipulations or special agreements directly concluded
between the private investor and the State in which the investment is placed. States
ever more frequently provide for such protection, in both bilateral and multilateral
relations, either by means of special instruments or within the framework of wider
economic arrangements. Indeed, whether in the form of multilateral or bilateral
treaties between States, or in that of agreements between States and companies,
there has since the Second World War been considerable development in the
protection of foreign investments. The instruments in question contain provisions as
to jurisdiction and procedure in case of disputes concerning the treatment of
investing companies by the States in which they invest capital. Sometimes
companies are themselves vested with a direct right to defend their interests against
States through prescribed procedures. No such instrument is in force between the
Parties to the present case.

91. With regard more particularly to human rights, to which reference has already
been made in paragraph 34 of this Judgment, it should be noted that these also
include protection against denial of justice. However, on the universal level, the
instruments which embody human rights do not confer on States the capacity to
protect the victims of infringements of such rights irrespective of their nationality. It
is therefore still on the regional level that a solution to this problem has had to be
sought; thus, within the Council of Europe, of which Spain is not a member, the
problem of admissibility encountered by the claim in the present case has been
resolved by the European Convention on Human Rights, which entitles each State
which is a party to the Convention to lodge a complaint against any other
contracting State for violation of the Convention, irrespective of the nationality of
the victim.

*[p.48]

92. Since the general rule on the subject does not entitle the Belgian Government to
put forward a claim in this case, the question remains to be considered whether
nonetheless, as the Belgian Government has contended during the proceedings,
considerations of equity do not require that it be held to possess a right of
protection. It is quite true that it has been maintained that, for reasons of equity, a
State should be able, in certain cases, to take up the protection of its nationals,
shareholders in a company which has been the victim of a violation of international
law. Thus a theory has been developed to the effect that the State of the
shareholders has a right of diplomatic protection when the State whose
responsibility is invoked is the national State of the company. Whatever the validity
of this theory may be, it is certainly not applicable to the present case, since Spain is
not the national State of Barcelona Traction.

93. On the other hand, the Court considers that, in the field of diplomatic protection
as in all other fields of international law, it is necessary that the law be applied
reasonably. It has been suggested that if in a given case it is not possible to apply
the general rule that the right of diplomatic protection of a company belongs to its
national State, considerations of equity might call for the possibility of protection of
the shareholders in question by their own national State. This hypothesis does not
correspond to the circumstances of the present case.

94. In view, however, of the discretionary nature of diplomatic protection,


considerations of equity cannot require more than the possibility for some protector
State to intervene, whether it be the national State of the company, by virtue of the
general rule mentioned above, or, in a secondary capacity, the national State of the
shareholders who claim protection. In this connection, account should also be taken
of the practical effects of deducing from considerations of equity any broader right
of protection for the national State of the shareholders. It must first of all be
observed that it would be difficult on an equitable basis to make distinctions
according to any quantitative test: it would seem that the owner of 1 per cent. and
the owner of 90 per cent. of the share-capital should have the same possibility of
enjoying the benefit of diplomatic protection. The protector State may, of course, be
disinclined to take up the case of the single small shareholder, but it could scarcely
be denied the right to do so in the name of equitable considerations. In that field,
protection by the national State of the shareholders can hardly be graduated
according to the absolute or relative size of the shareholding involved.

95. The Belgian Government, it is true, has also contended that as high a proportion
as 88 per cent. of the shares in Barcelona Traction belonged to natural or juristic
persons of Belgian nationality, and it has used this as an argument for the purpose
not only of determining the amount of the damages which it claims, but also of
establishing its right of action on behalf of the Belgian shareholders. Nevertheless,
this does[p.49] not alter the Belgian Government's position, as expounded in the
course of the proceedings, which implies, in the last analysis, that it might be
sufficient for one single share to belong to a national of a given State for the latter to
be entitled to exercise its diplomatic protection.

96. The Court considers that the adoption of the theory of diplomatic protection of
shareholders as such, by opening the door to competing diplomatic claims, could
create an atmosphere of confusion and insecurity in international economic
relations. The danger would be all the greater inasmuch as the shares of companies
whose activity is international are widely scattered and frequently change hands. It
might perhaps be claimed that, if the right of protection belonging to the national
States of the shareholders were considered as only secondary to that of the national
State of the company, there would be less danger of difficulties of the kind
contemplated. However, the Court must state that the essence of a secondary right is
that it only comes into existence at the time when the original right ceases to exist.
As the right of protection vested in the national State of the company cannot be
regarded as extinguished because it is not exercised, it is not possible to accept the
proposition that in case of its non-exercise the national States of the shareholders
have a right of protection secondary to that of the national State of the company.
Furthermore, study of factual situations in which this theory might possibly be
applied gives rise to the following observations.

97. The situations in which foreign shareholders in a company wish to have


recourse to diplomatic protection by their own national State may vary. It may
happen that the national State of the company simply refuses to grant it its
diplomatic protection, or that it begins to exercise it (as in the present case) but does
not pursue its action to the end. It may also happen that the national State of the
company and the State which has committed a violation of international law with
regard to the company arrive at a settlement of the matter, by agreeing on
compensation for the company, but that the foreign shareholders find the
compensation insufficient. Now, as a matter of principle, it would be difficult to
draw a distinction between these three cases so far as the protection of foreign
shareholders by their national State is concerned, since in each case they may have
suffered real damage. Furthermore, the national State of the company is perfectly
free to decide how far it is appropriate for it to protect the company, and is not
bound to make public the reasons for its decision. To reconcile this discretionary
power of the company's national State with a right of protection falling to the
shareholders' national State would be particularly difficult when the former State
has concluded, with the State which has contravened international law with regard
to the company, an agreement granting the company compensation which the
foreign shareholders find inadequate. If, after such a settlement, the national State of
the foreign shareholders could in its turn put forward [p.50] a claim based on the
same facts, this would be likely to introduce into the negotiation of this kind of
agreement a lack of security which would be contrary to the stability which it is the
object of international law to establish in international relations.

98. It is quite true, as recalled in paragraph 53, that international law recognizes
parallel rights of protection in the case of a person in the service of an international
organization. Nor is the possibility excluded of concurrent claims being made on
behalf of persons having dual national-ity, although in that case lack of a genuine
link with one of the two States may be set up against the exercise by that State of
the right of protection. It must be observed, however, that in these two types of
situation the number of possible protectors is necessarily very small, and their
identity normally not difficult to determine. In this respect such cases of dual
protection are markedly different from the claims to which recognition of a general
right of protection of foreign shareholders by their various national States might
give rise.

99. It should also be observed that the promoters of a company whose operations
will be international must take into account the fact that States have, with regard to
their nationals, a discretionary power to grant diplomatic protection or to refuse it.
When establishing a company in a foreign country, its promoters are normally
impelled by particular considerations; it is often a question of tax or other
advantages offered by the host State. It does not seem to be in any way inequitable
that the advantages thus obtained should be balanced by the risks arising from the
fact that the protection of the company and hence of its shareholders is thus
entrusted to a State other than the national State of the shareholders.

100. In the present case, it is clear from what has been said above that Barcelona
Traction was never reduced to a position of impotence such that it could not have
approached its national State, Canada, to ask for its diplomatic protection, and that,
as far as appeared to the Court, there was nothing to prevent Canada from
continuing to grant its diplomatic protection to Barcelona Traction if it had
considered that it should do so.

101. For the above reasons, the Court is not of the opinion that, in the particular
circumstances of the present case, jus standi is conferred on the Belgian
Government by considerations of equity.

102. In the course of the proceedings, the Parties have submitted a great amount of
documentary and other evidence intended to substantiate [p.51] their respective
submissions. Of this evidence the Court has taken cognizance. It has been argued on
one side that unlawful acts had been com-mitted by the Spanish judicial and
administrative authorities, and that as a result of those acts Spain has incurred
international responsibility. On the other side it has been argued that the activities of
Barcelona Traction and its subsidiaries were conducted in violation of Spanish law
and caused damage to the Spanish economy. If both contentions were substantiated,
the truth of the latter would in no way provide justification in respect of the former.
The Court fully appreciates the importance of the legal problems raised by the
allegation, which is at the root of the Belgian claim for reparation, concerning the
denials of justice allegedly committed by organs of the Spanish State. However, the
possession by the Belgian Government of a right of protection is a prerequisite for
the examination of these problems. Since no jus standi before the Court has been
established, it is not for the Court in its Judgment to pronounce upon any other
aspect of the case, on which it should take a decision only if the Belgian
Government had a right of protection in respect of its nationals, shareholders in
Barcelona Traction.

*****

103. Accordingly,

The Court

rejects the Belgian Government's claim by fifteen votes to one, twelve votes of the
majority being based on the reasons set out in the present Judgment.

Done in French and in English, the French text being authoritative, at the Peace
Palace, The Hague, this fifth day of February, one thousand nine hundred and
seventy, in three copies, one of which will be placed in the Archives of the Court
and the others transmitted to the Government of the Kingdom of Belgium and to the
Government of the Spanish State, respectively.

(Signed) J.L. Bustamante Y Rivero,


President.

(Signed) S. Aquarone,
Registrar.
[p.52]

JUDGE PETREN AND JUDGE ONYEAMA MAKE THE FOLLOWING JOINT


DECLARATION:

We agree with the operative provision and the reasoning of the Judgment subject to
the following declaration:

With regard to the nationality of Barcelona Traction, the Judgment refers to the
existence of opinions to the effect that the absence of a genuine connection between
a company and the State claiming the right of diplomatic protection of the company
might be set up against the exercise of such a right. In this context the Judgment
also mentions the decision in the Nottebohm case to the effect that the absence of a
genuine connecting link between a State and a natural person who has acquired its
nationality may be set up against the exercise by that State of diplomatic protection
of the person concerned. The present Judgment then concludes that given the legal
and factual aspects of protection in the present case there can be no analogy with the
issues raised or the decision given in the Nottebohm case.

Now in the present case the Spanish Government has asserted and the Belgian
Government has not disputed that, Barcelona Traction having been incorporated
under Canadian law and having its registered office in Toronto, it is of Canadian
nationality and Canada is qualified to protect it.
Canada's right of protection being thus recognized by both Parties to the
proceedings, the first question which the Court has to answer within the framework
of the third preliminary objection is simply whether, alongside the right of
protection pertaining to the national State of a company, another State may have a
right of protection of the shareholders of the company who are its nationals. This
being so, the Court has not in this case to consider the question whether the genuine
connection principle is applicable to the diplomatic protection of juristic persons,
and, still less, to speculate whether, if it is, valid objections could have been raised
against the exercise by Canada of diplomatic protection of Barcelona Traction.

JUDGE LACHS MAKES THE FOLLOWING DECLARATION:

I am in full agreement with the reasoning and conclusions of the Judgment, but
would wish to add the following observation:

The Court has found, in the light of the relevant elements of law and of fact, that the
Applicant, the Belgian Government, has no capacity in the present case. At the same
time it has stated that the Canadian Government's right of protection in respect of
the Barcelona Traction company has remained unaffected by the proceedings now
closed.[p.53]

I consider that the existence of this right is an essential premise of the Court's
reasoning, and that its importance is emphasized by the seriousness of the claim and
the particular nature of the unlawful acts with which it charges certain authorities of
the respondent State.

President Bustamante Y Rivero, Judges Sir Gerald Fitzmaurice, Tanaka, Jessup,


Morelli, Padilla Nervo, Gros and Ammoun append Separate Opinions to the
Judgment of the Court.

Judge ad hoc Riphagen appends a Dissenting Opinion to the Judgment of the Court.

(Initialled) J. L. B.-R.
(Initialled) S. A.

[p.286]
SEPARATE OPINION OF JUDGE AMMOUN

[Translation]

1. At the beginning of his separate opinion in the Corfu Channel case, Judge A.
Alvarez, alluding to the fundamental changes which have taken place in every
sphere of human activity in recent decades, and especially in international affairs
and international law, wrote:

"It is therefore necessary to consider what is the present state of that law. We must
examine it in connection with the questions raised by the dispute submitted to the
Court. That does not mean that this Court should pronounce on all the legal issues
which those questions connote; but it seems desirable that one of the judges, at least,
should examine them, and that is the task I have set myself in this individual
opinion." (I.C.J. Reports 1949, p. 39.)

I subscribe to this statement, the more so since the legal questions raised by the case
which has been submitted to the Court cannot but feel the effects of the great
renovating movement in international law which is evident in the relations between
nations and in the activities of inter-national institutions. The development which
the modern world is witnessing affects the very structures of international law
including the concept of sovereigntyand even its main sources, namely treaties,
custom and the general principles of law recognized by the nations. More than one
concept, principle or legal norm of the older classical law has been called into
question anew since international co-operation has become common practice, since
law has become imbued with morality, anda point of particular importance
since a considerable number of States have acquired independence and sovereignty,
or have siezed them by main force, and have entered into the world community of
nations. Linked to this development, which it will be necessary to touch upon, to
this dynamism of the law which, it has been said, is a continual creation, is the idea
which must be formed of the international responsibility of States, and its corollary,
diplomatic protection, upon which the Court is called upon to pronounce.

2. In order to make an exhaustive study of Belgium's jus standi in judicio which had
been the subject of a preliminary objection, it was recognized by the Judgment of 24
July 1964 as indispensable to refer to certain points of fact and of law relating to the
merits of the case, al-though jus standi does not thereby lose its character as an
objection.

Belgium has however questioned whether, in view of the subject of the


[p.287]dispute between the Parties, which it contends deals only with the conditions
and limits of the international responsibility of a State towards the foreign
shareholders in a commercial holding company, it is possible to speak of a
preliminary objection on this point. In other words, what is being debated as a
preliminary issue is, it is said, international responsibility, rather than diplomatic
protection.

In order to reply to this question, it is sufficient to add to the arguments appearing in


the aforementioned Judgment that the right of diplomatic protection, so far as it
materializes in a legal action, is to be distinguished from the substantive right which
the applicant State claims to have reestablished. The question thus involves the
distinction between the subject-matter of the action and the subject-matter of the
right claimed, a distinction about which legal writers are generally in agreement
FN1. An objection, considered in opposition to the setting in motion of a legal
action, should not be confused with a defence concerning the right at issue. There
would in fact be an internal contradiction in the fact of confusing two different
things in the concept of a claim, namely its admissibility and its validity. Proof that
an applicant has the status required to exercise legal power, or that he has a right
entitling him to bring the matter before a court, may, as in the present case, involve
raising questions which are not unrelated to the merits, but it cannot have any
influence on the nature of the action, or the nature of the objection to the exercise
thereof.

-----------------------------------------------------------------------------------------------------
----------------
FN1 Solus and Perrot, Droit judiciaire priv, Vol. I, pp. 94-107, and the Italian and
German writers on Continental law to whom they refer.
-----------------------------------------------------------------------------------------------------
----------------

At all events, the joinder of the objection to the merits justifies, so far as this may be
necessary, extending the present study beyond diplomatic protection to include
international responsibility.

3. That much having been said, the solution to the problem of jus standi, which calls
in question the principle of international responsibility and the rules of diplomatic
and judicial protection designed to give effect to that principle, is clearly linked to
the overall problem of the development of modern international law in the face of
recent transformations in international life. This is a burning question of today, the
more complex in that it is conditioned by the essential needs of various peoples,
ever since nations have emerged from dependence with inter-ests which are
manifold and often difficult to reconcile among themselves or with those of the
other nations of the world. This problem must therefore not be lost sight of
throughout the present opinion.

***

The radical transformations which have occurred in economic affairs in the last
half-century, the constantly increasing expansion which has marked the recent
decades in a world undergoing rapid social and political development, and the new
problems to which these changes have given rise, call for a corresponding
development of juridical structures. The [p. 288] law, a rigid conservative kind of
law, cannot adapt the emerging reality to sacrosanct rules rooted in the remote past.
It must, on the contrary, adapt itself to the imperious needs of an international
society which is moving towards universalism; it must adapt itself thereto in order
to avoid confrontation between peoples, and lest it lose its footing in the upward
march of progress towards better justice and the common aspiration towards the
ideals of prosperity and peace.

It is well known that the established lead taken by facts and events over the law has
had to be corrected more than once in the past FN2. In the sphere of international
law, the adaptation of law to factual situations, rendered necessary by the political
change which had world-wide repercussions in the middle of this century, was
largely accomplished by the solemn enunciation of the principles and purposes of
the United Nations. The implementation of these has however been more effective
within the political organs of the world Organization than it has been in the domain
of international tribunals where problems have arisen on the legal level as a result of
the breach between law and social reality. Thus it is in the interests of justice and of
law that these problems should be approached with a clear vision of the meaning of
history and an overall picture of a world from which no-one should henceforth be
excluded, no matter how late he has come on the scene.

-----------------------------------------------------------------------------------------------------
----------------
FN2 In Rome, by the intervention of the Praetor whose edict, idealistic in outlook,
supplemented the formalistic quiritary law, which had lagged behind the
development of the quasi-international structures of the Emipire; by the blossoming
of Moslem law, freed from all outgrown formalism and all illusory symbolism,
which set its seal on the basic transformation of legal concepts in most of the
countries under its sway; and nearer to our own day, in the United Kingdom and
those countries which adopted its law, with the institution of equity which plays an
important part in making up for the insufficiencies of the common law; lastly, by the
complete renewal of law in the Socialist countries in order to keep pace with the
advent of a new ideology and a new way of life which have broken radically with
the past.
-----------------------------------------------------------------------------------------------------
----------------

This situation could however not escape the foresight of the International Court of
Justice. Thus the Advisory Opinion which it delivered in 1949, in connection with
the reparation for injuries suffered in the service of the United Nations, must be
given its full significance; it stated that: "Throughout its history, the development of
international law has been influenced by the requirements of international life FN3.

-----------------------------------------------------------------------------------------------------
----------------
FN3 I.C.J. Reports 1949, p. 178.
-----------------------------------------------------------------------------------------------------
----------------

This observation is more topical than ever. International life is being influenced by
those States which have now rounded out the circle of the community of nations,
increasing the number thereof almost threefold. International law cannot leave out
of account the aspirations of the world in which henceforth it has its existence, and
it is significant that these States are manifesting a certain amount of impatience
tinged with apprehension.
We shall see later what their attitude has been with regard to the rules concerning
the responsibility of States and diplomatic protection.[p.289]

4. The problems confronting the world, now that a large-scale political


emancipation of the dependent peoples has been carried out, are those relating to the
establishment of economic and social justice and to development. According to one
of the great African leaders, President L. S. Senghor, "legal independence without
economic independence is but a new form of dependency, worse than the first
because it is less obvious" FN4. The Director-General of FAO recently warned the
world about the dangers of a world-wide famine in the next 24 to 28 years, unless
production is increased in the developing countries. And more recently the
Symposium of African archbishops and bishops, which was brought to a close on 1
August 1969 by the Sovereign Pontiff, roundly denounced the increase in the riches
of some through the exploitation of the poverty of others FN5.

-----------------------------------------------------------------------------------------------------
----------------
FN4 Extract from his address to the United Nations General Assembly in New York
on 31 October 1961 (Official documents of the General Assembly, Plenary
Meetings, Vol. II, p. 540).
See in this connection I. Brownlie, Principles of Public International Law, 1966, p.
485. He writes:
". . . The concept of self-determination has been applied in the different context of
economic self-determination."

G. I. Tunkin considers that:

". . . respect for State sovereignty finds itself compatible with . .. a de facto
dependence of the smaller States upon the bigger ones, since their economic
dependence means that their sovereignty is merely formal". (Droit international
public, published in co-operation with the Centre franais de la recherche
scientifique, p. 237 [Translation by the Registry].)

FN5 Le Monde, 2 August 1969.


Reference may also be made to the conclusions of E. McWhinney who writes:

"It becomes clear that the development and completion of a viable system of
international ordre public in the last third of the century will depend to a
considerable extent upon the efforts made to bridge the gap in prosperity that exists
between on the one hand the countries of the Soviet bloc and the West, and the
Third World on the other" (Latin America, Africa and Asia). Revue gnrale de
droit international public, 1968, p. 341. [Translation by the Registry]).
-----------------------------------------------------------------------------------------------------
----------------

This problem arises particularly in connection with the great economic, commercial
and financial undertakings which have multiplied and grown beyond the confines of
their respective countries in such a way as to necessitate a parallel development of
international law. International law should certainly avoid trying to fit their action
into outworn forms; it should work to bring about a just protection of their interests
in the bitter but beneficient struggle of international competition FN6.

-----------------------------------------------------------------------------------------------------
----------------
FN6 Cf. what was said by Mr. Haroldo Vallado, the then President of the Session
of the Institut de droit international, referring to

"the power of the international companies with investments in the developing


countries, [which] has given rise to a special treatment for such investments".
(Annuaire de l'Institut de droit international, 1967, II, p. 432 [Translation by the
Registry].)
-----------------------------------------------------------------------------------------------------
----------------

On the other hand, the law should be no less concerned with the interests of the
countries to which those powerful undertakings and the companies controlling
themtrusts or holding companies of pyramidal structureextend their activities,
thereby certainly rendering appreciable [p.290] service to the economy of the host
countries, but also exposing that weaker economy to dangers which it ought to be
spared. The States of the Third World showed insight when they agreed to insert in
the 1960 Declaration on the Grant of Independence the provision:

"affirming that peoples may, for their own ends, freely dispose of their natural
wealth and resources without prejudice to any obligations arising out of
international economic co-operation, based upon the principle of mutual benefit and
international law". (UN Doc. A/4684, p. 66.)

One cannot help thinking, in this connection, of the large companies which continue
to undertake the exploitation of the natural resources of the less developed
countries, including their agricultural, timber and mineral wealth, their oil
production, and also their transport and other public or municipal services. An
equitable sharing of the profits is mandatory. The anxieties of the countries whose
resources are being exploited by means of foreign technical and financial co-
operation are deeply felt, as will be seen below in connection with the application of
diplomatic protection and its possible extension, as in the present case, to new
situations, with a view to the increased protection of foreign interests.

The development of international law cannot therefore have as its sole or principal
object the protection of foreign nationals and of the international economic activities
of the industrialized Powers. It must set itself an objective which is more
comprehensive and more just, and a more equitable and more humanitarian ideal, in
which the material and intangible interests of the weaker and deprived peoples are
factors to be taken into account.

***

5. In this connection, it is essential to stress the trends of Latin-American law and


that of Asia and Africa, and their undeniable influence on the development of
traditional international law.

It seems indeed that among the principles and norms which have sprung from the
regional law peculiar to Latin America are the norms and principles whose aim is to
protect countries in that part of the world against the more powerful industrialized
States of North America and Europe.

An Afro-Asian law also seems to be developing as a result of the same


preoccupations, springing from the same causes. In the field of the responsibility of
States and of diplomatic protection, the same points of view have been adopted in
the countries of the three continents, thus initiating a form of co-operation which
will not be of slight effect on the renewal of law FN6a.[p.291]

-----------------------------------------------------------------------------------------------------
----------------
FN6a This co-operation received an initial implementation, as regards the effect of
economic facts on international law, at the United Nations Conference on Trade and
Development held in Geneva in 1964, where 77 Latin American, African and Asian
States resolved to meet and negotiate through the intermediary of common
spokesmen.
-----------------------------------------------------------------------------------------------------
----------------

The first reaction to the rules of traditional law came however from the countries of
Latin America; witness the vehement speech made by Mr. Seijas, a former
Venezuelan minister, at the 1891 Session of the Institut de droit international at
Hamburg, which was no mere display of bad temper. Evidence of this too is the
appearance of the Calvo Clause, excluding recourse to international adjudication in
favour of internal remedies, on which the jurists of Latin America have never
compromised, because of their lack of confidence in diplomatic protection as
conceived by traditional law and the practices of western nations. This reaction on
the part of the Latin American States would, moreover, explain their opposition
from 1948 onwards to the draft insurance guarantee agreement proposed by the
United States, providing for the exercise of diplomatic protection by that power
without local remedies having been exhausted FN7.

-----------------------------------------------------------------------------------------------------
----------------
FN7 Mexico had been forced to agree in the 1923 Convention with the United
States not to avail itself of the condition of the prior exhaustion of local remedies.
See in this connection the relevant speeches to the Institut de droit international by
Mr. Haroldo Valladao and Mr. Kamil Yasseen and by Mr. Jimnez de Archaga,
who rightly points to the discrimination which the exclusion of prior recourse to
local remedies would entail (Annuaire de l'Institut de droit international, 1967, II
pp. 431, 432, 435-436).
-----------------------------------------------------------------------------------------------------
----------------

This attitude on the part of the Hispanic States, which is shared by the Afro-Asian
States, is the more readily understandable if the extra-legal forms and means to
which diplomatic protection formerly had recourse are borne in mind. It will be
recalled that the claims of great States and their nationals abroad often led, during
the period preceding the renewal of the law consequent upon two world wars and
the creation of a means of international adjudication, to acute conflicts and to acts of
deliberate violence going so far as armed intervention and permanent occupation
FN8, or to demonstrations of force FN9, against which the Drago doctrine, which
was endorsed by the Pan-American Conference of 1906 and has since become one
of the basic principles of Latin American international law, has, since 1926, reacted
not without success. Recourse to force, subject to an offer of arbitration, was
nevertheless tolerated by The Hague Peace Conference of 1907, which admitted
intervention sub modo by virtue of the Porter Convention, against which
Convention Drago and his Latin American colleagues vainly protested at the
Conference. This was not the [p 292] least of the contradictions which attended it,
contradictions which bespeak the still predominant influence of the colonialist era.
Accordingly, one is entitled to suspect certain arbitral decisions of having been
agreed to or accepted under duress, those decisions having been preceded by
ultimata or menaces or by a deployment of force more or less in the spirit of the said
Conference, which was struggling to free itself from a tyrannical tradition FN10.

-----------------------------------------------------------------------------------------------------
----------------
FN8 Occupation of China's western provinceswhich brought on the Boxer
Rebellion of 1900, of Tunisia from 1881 to 1956, of Egypt from 1882 to 1954 and
of Mexico from 1859 to 1866, the conquest of which took the form of the
installation of the ephemeral Mexican Empire (P. C. Jessup, A Modern Law of
Nations, p. 113).
FN9 Against more than one Latin American State: Argentina, Paraguay, Mexico,
Brazil, Cuba, Nicaragua, Colombia, Haiti, the Dominican Republic, Venezuela, etc.
The Ottoman Empire was also an example (referred to in footnote 64 below).
FN10 Of the 44 States which took part in the 1907 Conference, there were only four
Asian States and one African State.
-----------------------------------------------------------------------------------------------------
----------------

If the Drago doctrine has finally triumphed, and if the Porter Convention, on the
insistence of Mexico, expressing Latin American opinion at the Chapultepec
Conference in 1945, is now recognized as incompatible with the terms of Article
103 of the United Nations Charter, it is nevertheless the case that many decisions
have not avoided all confusion between reparation sticto sensu, as in private
municipal law, and the "satisfaction" demanded by powerful States, which gives
reparation lato sensu the character of a measure aimed at deterrence or punishment
FN10a. This right to punish, which is arrogated to themselves by certain States, and
to which such eminent writers as Bluntschli, Liszt and Fau-chille, as well as a 1927
resolution of the Institut de droit international have lent their authority, seems to
have been rejected by Anzilotti, who noted that in all forms of reaction against the
unlawful act there were present ". .. an element of satisfaction and an element of
reparation, the notion of punishment of the unlawful act and that of reparation for
the wrong suffered"FN11. Thus, the opposition of Latin American or Afro-Asian
jurists to the western conception of responsibility and diplomatic protection is
founded not only on memories of a painful past, but also on serious apprehensions.

-----------------------------------------------------------------------------------------------------
----------------
FN10a See in this connection the report by Mr. Garcia Amador to the 13th Session
of the International Law Commission. (Yearbook of the I.L.C., 1961, Vol. II, paras.
4 to 6, 17, 26, 53, 56, 75, 102, 140, 142 and 145.)
See also the dissenting opinion in the Corfu Channel case of Judge Azevedo, who
regarded measures of satisfaction as reminiscent of ultimata of a "mediaeval" nature
(I.C.J. Reports 1949, p. 114).
FN11 Cours de droit international [Translation by the Registry from] Fr. trans. by
G. Gidel, 1929, p. 522.
-----------------------------------------------------------------------------------------------------
----------------

The development of Latin American thought concerning diplomatic protection and


its limits must be particularly stressed in the present discussion, on account of the
influence which it can have on the development of that institution. This thought is at
present centred on the following aspects of the problem:

A. The 20 States of South and Central America all reject the rule laid down by Vatel
and endorsed by the Permanent Court of International Justice, according to which
the right of diplomatic protection is "to ensure, in the person of its subjects, respect
for the rules of international law". They hold it to be a fiction, which one of their
most eminent jurists,[p. 293]
Garcia Robles, has described as "a product of Hegelian influence, resulting from the
expansionism of the nineteenth century"FN12. And all these States, at inter-
American conferences, in the writings of publicists, in the positions adopted by
governments, are united in their efforts for its elimination, on the understanding that
the individual's status as a subject of the law is to be recognized, thus enabling him
to seek legal redress himself, and not under the cloak of his national StateFN12a.
But before what tribunal? Before an American regional tribunal. The resolution
submitted to the Inter-American Conference at Buenos Aires and adopted almost
unanimously reads: "American legal controversies should be decided by American
judges . . . and a correct understanding of acts pertaining to the Americas is more
readily to be obtained by Americans themselves".

-----------------------------------------------------------------------------------------------------
----------------
FN12 At the Third Session of the Inter-American Bar Association, Mr. Garcia
Robles won over to the Latin American cause Mr. F. R. Coudert, the North
American President of the Association, and all its members.

FN12a The status of the individual as a subject of the law, which has its supporters
outside America, was to a certain extent recognized in the 1926 award by the
Mexican-American Commission in the North American Dredging Company case.
-----------------------------------------------------------------------------------------------------
----------------

Since the same causes produce the same effects, the States of the Organization of
African Unity wrote into the Addis Ababa Charter the same objective of the creation
of a regional tribunal FN13.
-----------------------------------------------------------------------------------------------------
----------------
FN13 E. McWhinney has pointed out that

"there has in the past been a notable reluctance on the part of numerous States, and,
in particular, of the new States, to accept the compulsory jurisdiction of the
International Court of Justice, because those States have felt that the Court would
apply the old rules, in the elaboration and development of which they had not
participated and a great number of which they regarded as unreasonable or unjust"
(op. cit., p. 331 [Translation by the Registry]).
-----------------------------------------------------------------------------------------------------
----------------

The countries of Latin America have gone further still. In 1948 they unanimously
adopted a resolution at Bogota whereby they undertook not to bring a claim before a
court of international jurisdiction, not excluding the International Court of
JusticeFN13a.
-----------------------------------------------------------------------------------------------------
----------------
FN13a"The High Contracting Parties bind themselves not to make diplomatic
representations in order to protect their nationals, or to refer a controversy to a court
of international jurisdiction for that purpose, when the said nationals have had
available the means to place their case before competent domestic courts of the
respective State." (Art. VII of the Pact of Bogota, 1948.)
-----------------------------------------------------------------------------------------------------
----------------

B. The States of Latin America remain firmly attached to the Calvo Clause, which
they habitually insert in contracts entered into with foreign undertakings. Their
constitutions and laws generally make it compulsory. Their doctrine with regard
thereto, founded upon the two principles of equality between States and non-
intervention, was forcefully expressed by Judge Guerrero, a former President of the
Court, in the report which he submitted on behalf of the Subcommittee set up by the
Committee of Experts of the League of Nations to study the responsibility of States.
Several non-American countries were not hostile to this point of view. China,
Holland and Finland were frankly favourable to it.[p294]

Finally, the United States, which had found in Borchard a vigorous defender of the
thesis that the individual cannot dispose of a right which, according to Vatelian
doctrine, is that of the State and not his own, allowed itself to be won over, with the
inauguration of the "good neighbour" policy of F. D. Roosevelt, to the doctrine of
its southern neighbours FN14.

-----------------------------------------------------------------------------------------------------
----------------
FN14 See also the important award in the North American Dredging Company case
in 1926 between the United States and Mexico, which took a clear step in this
direction and has since become an authoritative precedent. The Calvo Clause was
unanimously upheld in order to dismiss the claim, notwithstanding the provisions of
the 1923 Treaty exonerating the claimant from having to exhaust local remedies.
The scope of the clause is, however, limited to the individual's right and leaves
untouched that of the State in the event of a violation of international law.
-----------------------------------------------------------------------------------------------------
----------------

C. The Calvo clause, which on the other side of the Atlantic is regarded merely as a
compromise, was destined to prepare the way for the adoption of the Calvo doctrine,
which is aimed at nothing less than the abolition of unilateral diplomatic protection
in order to substitute for it a protection exercised by the collectivity on the basis of
human rights.

The path towards this unconcealed objective is certainly a long and arduous one; its
success seems bound up with the progress of mankind towards an inter-American or
international organization less removed than the United Nations from the concept of
the Super-State.

It was the more necessary to recall these features of American law in that other
States are treading the same path towards the limitation of diplomatic protection.
The States of Africa and of Asia, since they too have come to participate in
international life, share the same concerns, as witness the proceedings of the
International Law Commission. At its Ninth Session in 1957, Mr. Padilla Nervo
stated that:

"... the history of the institution of State responsibility was the history of the
obstacles placed in the way of the new Latin American countriesobstacles to the
defence of their . . . independence, to the ownership and development of their
resources, and to their social integration".

And he added:

"With State responsibility . . . international rules were established, not merely


without reference to small States but against them FN15."

-----------------------------------------------------------------------------------------------------
----------------
FN15 Yearbook of the International Law Commission, 1957, Vol. I, p. 155.
-----------------------------------------------------------------------------------------------------
----------------

And Mr. El-Erian, of the United Arab Republic, stressed the twofold consequence
of the privileged condition accorded to nationals of Western countries in their
relations with the countries of Africa or Asia, which on[p295] the one hand had led
to the system of capitulations and on the other afforded a pretext for intervention in
the domestic affairs of States FN16.

-----------------------------------------------------------------------------------------------------
----------------
FN16 Ibid., p. 161. See also S. Prakash Sinha, New Nations and the Law of Nations,
pp. 91-93 and 140.
-----------------------------------------------------------------------------------------------------
----------------

The similarity of the essential views and objectives of the States of the three
continents of America, Africa and Asia, and the action they are able to take to
develop a positive international law of world-wide ambit, will tend to direct them
toward a universalist concept of law and bring them back to a system of
international adjudication which will no longer be of an exclusive nature but will,
through its effective composition, meet the wishes expressed in the United Nations
Charter, which would have it represent the main legal systems and principal forms
of civilization of the world.

It is in the light of these preliminary considerations that the connected problem of


diplomatic protection and the jus standi of the applicant State should have been
approached.

6. It is generally recognized that the attribution of nationality to a company, or the


recognition of its legal allegiance, on the basis of its siege social or of the law of the
place of formation or registration, confer upon the national State of the company, by
virtue of a rule of law enshrined in jurisprudence and of a constant practice FN17,
the right to take action for the reparation of damage resulting, to the prejudice of the
company, from an international tort.

-----------------------------------------------------------------------------------------------------
----------------
FN17 This practice goes back to the beginning of the nineteenth century, when the
United Kingdom intervened with the Kingdom of the Two Sicilies on behalf of 19
companies, and it was endorsed by the Committee of Experts of the League of
Nations in 1927. With respect to the jurisprudence, in addition to a number of
arbitral awards at the turn of the century, see the Panevezys-Saldutiskis Railway
case, P.C.I.J., Series A/B, No. 76, p. 16.
-----------------------------------------------------------------------------------------------------
----------------

Is it, however, necessary in addition that there should exist between the national
State and the company a link of effectiveness, consisting of a substantial
participation in the company by national capital or of control of the company's
management? Since intervention by a State in favour of its nationals is a
discretionary act, the practice of States which take up a case for their nationals only
on this condition does not give rise to a legal obligation. Furthermore, no less than a
dozen arbitral awards reported by Mr. J. de Hochepied FN18 have held that the
nationality of the company alone justified diplomatic intervention. As for those
arbitral or judicial decisions that might be cited in support of the concept of
effectiveness or connection (Canevaro, I'm Alone, Nottebohm cases), they do not
amount to precedents affording any analogy based upon essential factors with the
question of the nationality of companies in international law. It will be observed in
particular that the Nottebohm Judgment had to determine a conflict of a particular
kind, that of dual nationality. It was based upon concrete facts peculiar to the
situation of the former German citizen Nottebohm and his endeavours to "substitute
for his status as a national [p 296] of a belligerent State that of a national of a
neutral State, with the sole aim of thus coming within the protection of
Liechtenstein"FN18a. Does not this reasoning in the Judgment seem to fall into line
with the practice of the courts or of the administration, taking into account the
motive for the act, of ignoring changes of nationality effected for the purpose of
obtaining, for example, a divorce, or changes of religion or belief in order to
overcome an obstacle to a marriage or to an election, in a State where seats in the
elected chambers are distributed between members of the country's various religions
and beliefs.

-----------------------------------------------------------------------------------------------------
----------------
FN18 La protection diplomatique des socits et des actionnaires, pp. 95-101.

FN18a I.C.J. Reports 1955, p. 26.


-----------------------------------------------------------------------------------------------------
----------------

***

The right of protection of the company by its national State being the rule, does this
right leave room, in appropriate circumstances, for an action by the national State of
the shareholders?

This question relates, within the framework of the third preliminary objection, to the
basic legal condition governing the exercise of international judicial protection, in
other words, to the existence of a rule of law which would, in the instant case,
authorize recourse to a judicial action. It is of a preliminary nature in relation to the
fourth preliminary objection, concerning the exhaustion of local remedies, as well as
to the other questions raised by the third objection, namely the nationality of the
claim and the connected question of the continuity of the nationality and that of
legal owners and nominees. It is in fact the legal rule which, in appropriate cases,
gives access to the Court. In the absence of this rule, access to the judicial tribunal is
denied the claimant, even if his claim be absolutely justified from the point of view
of such other questions as might be raised at this preliminary stage of the
proceedings.

Since, however, the Court has affirmed the preliminary character of the question of
the possible existence of the legal rule, could it embark upon one or other of the
subsidiary questions and yet manage to avoid, in the rigour of would-be logical
reasoning, disregarding its first decision and, as it were, going back on itself? That
decision had the unavoidable consequence of putting an end to the proceedings, and
it is not open to anyone to restore it to life in order to embark upon a new discussion
which would not only be obiter dicta, but would be reasoning based upon an
hypothesis which the Court has already rejected, and which would introduce an
internal contradiction into the judgment.

This being my point of view on the problem, my separate opinion will deal only
with the legal question the solution of which has of itself, to my mind, led to the
rejection of Belgium's Application.

7. The question occasions no difficulty if the members of the company or


shareholders complain, ut singuli, of direct damage, as is generally the case in
municipal law; if, in other words, he is injured with respect to his subjective
interests, as distinct from those of the company: e.g., in
[p 297] the case of individual despoilment or discriminatory measures. He is then in
the position of any individual claiming the diplomatic or jurisdictional protection of
the State of which he is a national FN19.

-----------------------------------------------------------------------------------------------------
----------------
FN19 Cf. I. Brownlie, op. cit., p. 401.
-----------------------------------------------------------------------------------------------------
----------------

But what will be the position if the shareholder's claim relates to an indirect injury
resulting from a measure which affects the company as such? The charges which
may be expressed as denials of justice, abuse of right or misuse of power are those
which, according to Belgium, affected the company, beginning with the refusal to
allocate foreign currency and the bankruptcy judgment. It is no longer a question of
the corporate action to be exercised on behalf of the company, but of proceedings
limited to the right or legal interest of the shareholder, to the extent that he is
indirectly injured as a result of a measure affecting the company.

***

Since the theory of the reality of the personality of companies has generally been
abandoned in favour of the theory of artificial or juridical personality, it has seemed
to certain writers that arbitral awards have taken a line which, whilst rejecting this
fiction to the extent that it is absolute or excessive, has opened a fresh perspective
which is in conformity with the international character assumed by numerous
companies. As between the right and the fiction, which thus stand opposed to each
other, which must give way? Are we not faced with one of those cases where the
adjustment of law to the reality of human affairs and to the sense of justice must
carry the day?

There is no doubt that the personality attributed to the group of corporate interests
was so attributed with a view to giving to the elements contained therein and
bonded together thereby, common means of action and effective protection.
Accordingly, the moment that that protection proves insufficient, or even harmful,
in the field of international relationships, should not legal personality give way, to
the extent that this is necessary and possible, in favour of a more realistic concept
and one which is more in accordance with the nature of things, that of corporate
reality, in order to leave individuals and capital appropriately revealed, in the
interest of the community and in their own interest?

Is there not ground for thinking that it is above all in the world of fiction that value-
judgments, applied to the law, should be based upon teleological considerations?
Jhering stated that: "The end in view is the creator of all law." Let us also recall the
proposition of Saleilles, put forward half a century ago, and which is more
mandatory than ever: "Nothing is important", he wrote, "other than the object to be
attained; often our most learned constructions serve only to compromise the
realization thereof." Curiously enough, one of those learned constructions is the
legal fiction. A fiction is indeed "a representation which is contrary to the truth". P.
Roubier, to whom I owe this formula, recommends[p 298]"direct enquiry as to what
is the object of the legal rule which has thus been laid down in this dissimulated
form FN20".

-----------------------------------------------------------------------------------------------------
----------------
FN20 P. Roubier, Theorie gnrale du droit, p. 116. [Translation by the Registry.]
-----------------------------------------------------------------------------------------------------
----------------

It might therefore be considered that the fact of maintaining the fiction of juristic
personality contrary to the avowed interest of its component parts would create a
situation contrary to the object thereof.

And in fact, however stubborn the fiction of juristic personality may be, as fictions
generally are, the diplomatic practice of the creditor Powers and of capital-exporting
countries, as well as certain arbitral decisions, have not, after the hesitation prior to
the First World War, been slow in accepting, though not without a certain amount of
circumspection, the rule which permits the interests of members or shareholders to
be dissociated from the abstract personality covering them and given independent
considerationthough only where, since the company has the nationality of the
respondent State, an action in the name of the company could naturally not be
brought against the latter except by local means of redress.

8. However, this arbitral jurisprudence, upon which international courts have not yet
had to pronounce, is neither unanimous nor decisive on all points.

In the first place, we must leave out of consideration awards given ex aequo et bono,
which are not merely without relevance to the present case, but are clearly out of
place in this discussion. Thus, it should be recalled that the Special Agreement
between the United States and Chile in the Alsop case empowered the arbitrator to
decide in equity and as amiable compositeur. The same was the case with the
awards delivered on the basis of the 1923 General Convention between the United
States and Mexico, which empowered the arbitral tribunals it set up to decide in
accordance with justice and equity, a customary expression for authorizing
decisions ex aequo et bono.

Nor can account be taken of awards dealing with partnerships, since the personality
of the members is not absorbed into the corporate personality, as the personality of
the shareholders would be in the case of a joint-stock company FN21; nor of awards
dealing with companies described as "defunct", or which were obligatorily judged
according to the terms of the Special Agreement FN22, nor, finally, of awards
couched in uncertain or ambiguous terms, nor of awardsin particular those given
by heads of State FN23where the absence of reasons for the decision deprives
such awards of any absolute relevance.[p 299]

-----------------------------------------------------------------------------------------------------
----------------
FN21 Thus, there must be excluded from this discussion the opinion expressed by
Mr. Huber in the report of the Mohammed Ziat, Ben Kiran case, which related to a
partnership.

FN22 The awards in the Delagoa Bay Railway Company, Standard Oil, Pierce Oil
and Sun Oil cases.

FN23 The award of President Grover Cleveland of the United States in the Cerruti
case and the award of King George V of Great Britain in the Alsop case
-----------------------------------------------------------------------------------------------------
----------------

The same should be the case for awards suspected of having been given under the
influence of other than juridical motives, or which were preceded by a
demonstration of power, or by threats on the part of a State which trusted in the
force of its arms at least as much as in the force of its rights FN24.

-----------------------------------------------------------------------------------------------------
----------------
FN24 Supra, Section 5.
-----------------------------------------------------------------------------------------------------
----------------

***

In any case, arbitral precedents and diplomatic practice, supported by part of


Western legal writing, do not amount to, as has been said, "a coherent body of
doctrine", and consequently do not seem to constitute a custom to the effect that
diplomatic protection, and its judicial sequel, might cover damage caused by the
national State of a company to shareholders who were aliens in relation to the
company. Thus it appears that it is in treaty law that the protection of foreign
investments must be sought, whether it be a question of companies which have been
obliged to adopt the nationality of the host country, or of nationalizations, "the
scandal of